Ballantyne v WorkCover Authority of New South Wales (No 2)
[2007] NSWWCCPD 241
•15 March 2005
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in Ballantyne v Work Cover Authority of NSW [2007] NSWCA 239; (2007) 5 DDCR 97 | ||||||
| CITATION: | Ballantyne v WorkCover Authority of New South Wales (No 2) [2007] NSWWCCPD 241 | |||||
| APPELLANT: | Michael and Alana Ballantyne | |||||
| RESPONDENT: | WorkCover Authority of New South Wale | |||||
| INSURER: | Uninsured | |||||
| FILE NUMBER: | WCC18935-04 | |||||
| DATE OF ARBITRATOR’S DECISION: | 15 March 2005 | |||||
| DATE OF INITIAL APPEAL DECISION: | 22 May 2006 | |||||
| DATE OF RECONSIDERATION DECISION: | 24 October 2006 | |||||
| DATE OF REMITTER FROM COURT OF APPEAL: | 11 September 2007 | |||||
| DATE OF DECISION ON REMITTER: | 10 December 2007 | |||||
| SUBJECT MATTER OF DECISION: | Section 352(2) of the Workplace Injury Management & Workers Compensation Act 1998; section 145 of the Workers Compensation Act 1987; jurisdiction of Commission. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea, Lawyers | ||||
| Respondent: | Turks Legal, Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 15 March 2005 is revoked. | |||||
| The matter is remitted to the Arbitrator concerned for substantive determination, unless in the meantime, the matter is settled between the parties, and discontinued in the Commission. | ||||||
| The Respondent is to pay the Appellants’ costs of the initial hearing of the appeal before the Acting Deputy President. | ||||||
| The Respondent is to pay the Appellants’ costs of this appeal. | ||||||
BACKGROUND
On 11 September 2007, the Court of Appeal remitted to the Workers Compensation Commission (‘the Commission’), the “Appellants’ application to review the decision of the Arbitrator of 15 March 2005 … for determination.” This requires the Commission constituted by a Presidential member to review, on appeal, the Arbitrator’s decision and to make a determination.
The WorkCover Authority of New South Wales (‘WorkCover’) succeeded before the Arbitrator on 15 March 2005, against Michael and Alana Ballantyne (‘the Appellants/the Ballantynes’), who were the employers of an injured worker, Mr Michael Andrew Crofton. The Ballantynes sought from the Commission a waiver of their liability to reimburse WorkCover for workers compensation paid by it to Mr Crofton. The Arbitrator held that the Commission did not have the power to waive the employers’ liability to reimburse WorkCover. (See section 145 of the Workers Compensation Act 1987 (‘the 1987 Act’)).
On 22 May 2006, The Appellants failed in their appeal to a Presidential member, Acting Deputy President Candy, who confirmed the Arbitrator’s decision of 15 March 2005 (See Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94 and [2006] NSWWCCPD 94R (‘Ballantyne (PD 94)’ and ‘Ballantyne (PD 94R)’).
On 15 August 2006 the Appellants lodged an ‘Application for Reconsideration of the Decision made on Appeal’ on the basis of the decision of the Court of Appeal in WorkCover Authority of New South Wales v Mackley [2006] NSWCA 294 (27 July 2006) (‘Mackley’). However, the application did not succeed and on 24 October 2006, Acting Deputy President Candy confirmed his original decision of 22 May 2006 (Ballantyne (PD 94R)).
The Appellants appealed to the Court of Appeal, the issue being that the Acting Deputy President erred in holding that the Appellants’ connection with Victoria and the workers compensation scheme in that state were irrelevant considerations. The Appellants succeeded in their appeal to the Court of Appeal (see Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 (‘Ballantyne (CA)’), and the matter was remitted to the Commission.
In allowing the appeal, the Court of Appeal determined as follows:
“(per Beazley JA)
1. The discretion under s 145(4) of the Workers Compensation Act is wider than that conferred by s 145(2): [12]-[13].
WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305 considered.
2. The Appellant’s connection with Victoria and the fact that workers compensation was in place in that state are relevant considerations in the exercise of discretion under s 145(4): [13]. The appeal should be allowed: [1]
3. The decision in WorkCover Authority of New South Wales v Mackley is wrong in principle and failed to follow existing authority in this Court: [14].WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305 considered.
(per Ipp JA)
4. On the basis that WorkCover Authority of New South Wales v Mackley is correct as a matter of law, the matters listed in s 145(2) of the Workers Compensation Act 1987 are relevant considerations when exercising the discretion under s 145(4) of the Act. When evidence capable of establishing one or more of those matters is adduced and relied on, the decision maker is bound by the Act to take that evidence into account. Alternatively, a refusal to take such evidence is a constructive failure to exercise jurisdiction: [36].
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1985) 162 CLR 24; WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305 applied.
5. In excluding consideration of the Appellants’ connection with Victoria and the fact that they had workers compensation insurance in that state, the Acting Deputy President committed an error of law: [37]. The appeal should be upheld: [38].
(per Basten JA)
6. Prior to 1 January 2006, the basic premise upon which the Workers Compensation Act 1987 operated was that it might apply to any person who employed a worker to undertake work in New South Wales or to pass through New South Wales in the course of his or her employment: [65].
Tomalin v S. Pearson & Son Ltd [1909] 2 KB 61; Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68 applied.
(per Basten JA, Beazley JA agreeing)
7. The following propositions can be inferred from the language, structure and context of s 145 of the Workers Compensation Act 1987 (at [14], [78]):
(a) The purpose of Part 4, Division 6 is to ensure that a worker’s statutory rights to compensation are not compromised in circumstances where his or her employer is uninsured (or unidentifiable).
(b) A payment made by the Authority, which may be the subject of a notice under sub-s (1), is, relevantly for present purposes, a payment of “compensation in accordance with this Act”, made pursuant to s 143(1)(a) or pursuant to an award or order by the Commission, made under s 144(3).
(c) The notice served under s 145(1) will give rise to a debt enforceable in a court of competent jurisdiction, pursuant to sub-s (6) subject to two qualifications.
(d) The first qualification is that, if satisfied of one of the matters identified in paragraphs (a)-(f) of sub-s (2), the liability to make such payment may be waived by the Authority by instrument in writing.
(e) The second qualification is that the person served with the notice may dispute his or her liability in respect of the payment concerned, by a timely application to the Commission for a determination of the liability.
(f) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of “compensation in accordance with this Act”, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.(g) If satisfied as to the amount of the payment concerned and the identity of the employer, the Commission would ordinarily make whatever order it thought appropriate to dispose of the application according to law. As now envisaged by sub-s (7), the appropriate order would be that the person served with the notice pay the amount to the Authority by way of reimbursement of the WorkCover Authority Fund, within a specified time.
(per Basten JA)
8. The term “liability” as found in s 145 is to be understood as a legal liability, that is a liability enforceable by law: [80]. An application under s 145(3) is to be determined by the Commission by reference to the appropriate award for payment of compensation under the Act, and not otherwise: [84].
GRE Workers’ Compensation Insurance (NSW) Ltd v Nohil Pty Ltd (1996) 13 NSWCCR 74; Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594; Raniere Nominees Pty Ltd v Daley [2006] NSWCA 235 applied.
Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 considered.
9. The use of the term “may” in a statutory provision does not necessarily confer a broad discretionary power, but may be limited by an obligation to exercise the power in certain circumstances. The scope of the power conferred must be determined with respect to the statutory context: [90]-[91].
Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140; Raniere Nominees Pty Ltd v Daley [2006] NSWCA 235 applied.
Hall v A and A Sheiban Pty Ltd (1989) 20 FCR 217 considered.
10. The powers of the Commission under s 145(4) are conferred for the sole purpose of determining an application made under s 145(3) with respect to the liability of a person served with a notice under s 145(1). Liability pursuant to s 145 depends on the following factors (at [106]):
(a) was the person properly served with a notice under sub-s (1);
(b)did the notice require payment of an amount not exceeding the payment made by the Authority;
(c)was the person served the employer or an insurer of the employer of the injured worker;
(d)was the payment made by the Authority a payment of “compensation in accordance with this Act”.
GRE Workers’ Compensation Insurance (NSW) Ltd v Nohil Pty Ltd (1996) 13 NSWCCR 74; Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594; WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305; Raniere Nominees Pty Ltd v Daley [2006] NSWCA 235 considered.
(per Basten JA, Beazley JA agreeing)
11. It was sufficient for the purposes of WorkCover Authority of New South Wales v Mackley that consideration of matters set out in s 145(2) of the Workers Compensation Act 1987 was not precluded as a matter of law. The judgment of Bryson JA in WorkCover Authority of New South Wales v Mackley should be understood as saying that the matters in s 145(2) are legitimate but not mandatory considerations which may be taken into account by the Commission in declining to make an order: [9], [113].
WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305 considered.
(per Basten JA)
12. A failure to take into account matters of fact which are not in dispute, or were established to the satisfaction of the Commission, and were material to the outcome of the application, could constitute a failure to exercise the power or jurisdiction conferred on the Commission and may thus involve an error in point of law: [114].
13. The question of connection with New South Wales depended entirely upon the place where the accident occurred. Those factors which demonstrated a connection between the Appellants and the State of Victoria were irrelevant to the question of whether the Appellants were an employer for the purposes of obligations imposed under the Workers Compensation Act 1987. The reasoning of Deputy President Candy reveals no error in point of law: [124]. The appeal should be dismissed: [129].”
The Court made the following orders:
“(1) Appeal allowed.
(2)Decisions of the Acting Deputy President of the Workers Compensation Commission of 24 May 2006 and 24 October 2006 be set aside.
(3)Appellants’ application to review the decision of the Arbitrator of 15 March 2005 be remitted to the Workers Compensation Commission for determination.
(4)Respondent to pay the Appellants’ costs of the rehearing before the Acting Deputy President.
(5)The costs of the initial hearing before the Acting Deputy President abide the outcome of the determination on remittal.
(6) Respondent to pay the Appellants’ costs in this Court.”
Accordingly, my task on this remitter is to determine the Appellants’ appeal against the decision of the Arbitrator dated 15 March 2005.
RELEVANT HISTORY
Michael Crofton (‘the worker’) was employed as a deckhand on the fishing vessel ‘Episode’ in waters off the coast of Australia. The ‘Episode’ was owned and operated at all relevant times by the partnership of Michael and Alana Ballantyne, the Appellants. The Appellants were covered by workers compensation insurance under the laws of Victoria but did not have workers compensation insurance cover in New South Wales.
The worker suffered injuries while employed by the Appellants in December 1999, and on 6 February 2000, a later injury was sustained at the wharf at Eden, on the New South Wales south coast. A claim was made on the Victorian insurer. This was accepted and payments of compensation were made. There was no dispute as to the employment of the worker or of injury.
The worker also commenced proceedings in the Compensation Court of New South Wales (No. 57891 of 2001) in which the Appellants and the WorkCover Authority of New South Wales (‘WorkCover’) were named as respondents. On 9 April 2003 the matter was listed before Armitage J. The Appellants, through counsel, consented to various awards of compensation under sections 60, 66 and 67 of the 1987 Act, which totalled $35,841.00. Further orders were made by consent as to the non-insurance of the Appellants, with WorkCover to pay the compensation awarded and the Appellants to reimburse WorkCover in respect of that compensation and costs. Provision was also made in the further orders for the Appellants to apply to WorkCover for waiver of reimbursement within 60 days.
On 4 March 2004 further proceedings took place in this matter in the Commission (WCC11302-03) in which weekly compensation was awarded from 17 June 2003. The Appellants and WorkCover were both named as respondents. However, the Arbitrator determined that “the Respondent …pay” compensation and costs. The Arbitrator, in his Statement of Reasons, was satisfied as to service of the ‘Application to Resolve a Dispute’ on the Appellants, but who took no part in the proceedings. WorkCover conceded that the worker was entitled to a full and continuing award of weekly compensation.
The Appellants sent to WorkCover a waiver application on 28 May 2004. WorkCover did not respond to this application and on or about 23 September 2004 WorkCover served on the Appellants a ‘Notice to Reimburse’ pursuant to section 145 of the 1987 Act specifying an amount of $88,523.25 as being the sum that was required to be reimbursed.
On 21 October 2004, the Appellants applied under s 145(3) of the Act for a determination as to their liability to reimburse the WorkCover Authority, seeking an order that the amounts sought by the Authority be waived. (For the sake of completeness, it is noted that ADP Candy observed in his reconsideration determination in Ballantyne (94R) at [21] that:
“The Appellant’s written submissions before the Arbitrator were headed “Applicant’s Submissions as to why the employer’s liability should be reduced pursuant to section 145(2)”. However, the oral submissions before the Arbitrator on 25 February 2005 make clear that reliance was placed upon section 145(3) and (4). In the application to appeal against a decision of the Arbitrator, the Appellant gives the following reasons:
‘3.1. The Arbitrator construed section 145 as giving the Commission no power to waive the applicant employer’s liability to reimburse the WorkCover Authority.
3.2. The applicant submits this is an incorrect construction of the Section.’”
(Emphasis added).
DIRECTION
This matter was referred to me on 25 October 2007. On 1 November 2007 I issued a Direction to the parties in the following terms:
“Following the decision of the Court of Appeal, Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239, upholding the appeal against the decision of the Acting Deputy President and remitting the matter to the Commission for determination, the parties are directed, if they wish, to provide further submissions that each of them submits, are relevant.
The following direction is made in this matter:
1.The Appellants are directed to lodge in the Commission and serve on the respondent to the appeal, any submissions in light of or further to the above, in writing, on or before Friday, 16 November 2007.
2.The Respondents in the appeal are directed to lodge in the Commission and serve on the Appellants, full submissions in reply to the Appellants, in writing, on or before Friday, 30 November 2007.
3.The Appellants and the Respondent in the appeal are each required forthwith upon service to lodge in the Commission, certificates of service, in relation to the documents, if any, served by each of them, on the other party.”
While there is an abundance of evidence and submissions before me at this point, in addition to the judgment of the Court of Appeal in Ballantyne (CA), I note among other things, in affording the parties the opportunity to make further submissions, the comments made in that case by Basten JA at [13]. His Honour said:
“Secondly, for the reasons explained above, there appear to be significant disparities between the approach adopted by this Court in Mackley and that which underlies three other decisions of this Court dealing with substantially the same provisions, although raising different issues. The Authority’s submission that no error in point of law has been demonstrated in the decision of the Commission under appeal has been upheld: nevertheless, it is surprising that a statutory authority should eschew an opportunity to clarify matters of doubt which caused difficulty for the Commission in the case under appeal and which must cause difficulty for employers, and workers, and possibly insurers and the Authority, in the administration of legislation having social and financial significance for every accident occurring in the course of employment, where the accident occurs within the State.”
His Honour was referring to WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305; [2006] NSWCA 204 (‘Mackley’); GRE Workers’ Compensation Insurance (NSW) Ltd v Nohil Pty Ltd (1996) 13 NSWCCR 74 (‘Nohil’); Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594 (‘Raniere Nominees (No 1)); and Raniere Nominees Pty Ltd v Daley [2006] NSWCA 235 (‘Raniere Nominees (No 2)).
However, I note further, that the Court of Appeal in Ballantyne (CA) held that Mackley is wrong in principle and failed to follow the existing authority of that Court, but that nevertheless, it is correct, as a matter of law (see Beazley JA at [14] and Ipp JA at [36]).
The Appellants’ solicitors wrote to the Commission by letter dated 16 November 2007, indicating that additional submissions were in the process of being drafted by counsel. The solicitors said that competing court commitments had caused a delay in those submissions being completed. A further, brief period of time was sought in order to complete and file the submissions. The solicitors indicated that its written submissions should be supplemented by oral submissions. They stated:
“It should be apparent from the Court of Appeal proceedings that the issues that arise in this case particularly relating to the scope of the discretion conferred upon the Workers Compensation Commission by section 145(4) of the Workers Compensation Act 1987 are of such fundamental significance as to necessitate oral argument. … We anticipate that the submissions to be made … should be available by 20 November 2007.
No submissions or other advice were received by 20 November 2007.
Inquiries were made on 26 November 2007 to ascertain the status of the matter, and informal advice was given to the Commission by the Appellants’ solicitors that negotiations had commenced with a view to the possible settlement of the substantive dispute between the parties.
On 30 November 2007, following further inquiries by the Commission, informal advice was provided that it was anticipated, that a notice of discontinuance would be filed in the Commission.
However, the matter has not been discontinued as at the date of these Reasons for Decision and no further advice or information has been forthcoming.
No communication or response has been received from WorkCover.
ON THE PAPERS REVIEW
Each of the parties to the appeal sought an oral hearing before the Acting Deputy President. The Appellants submitted that the matters to be raised would be complex, and the earlier decisions of the Court and the Commission should not be followed. WorkCover also sought a hearing, but advanced no reasons in support of its request.
I note that the Acting Deputy President was satisfied that he was able to proceed on the papers without holding any conference or formal hearing, and that this was the appropriate course in the circumstances. He said, “The question posed is purely a legal one. The parties have had an opportunity to refer to the relevant authorities and to make submissions in relation to those authorities.”
I note also, that in the reconsideration of his decision in Ballantyne (PD 94R), ADP Candy placed reliance on the following passage in Raniere No.1, which he considered was inconsistent with the decision made by ADP Handley in Mackley. Tobias JA stated:
“In my opinion, these provisions make clear that an employer upon whom a notice is served is entitled to apply to the Compensation Court for a determination as to its liability in respect of any payment made by the Authority to an injured worker under the Scheme. It must follow that that liability relates to that of the employer to pay compensation to an injured worker under the Act. Accordingly, subject to the provisions of section 145(5), the fact that the Authority has made a payment to the injured worker under the Scheme, whether of its own motion pursuant to section 143(1)(a) or pursuant to an order of the Compensation Court under section 144(3), is not conclusive of the employer’s liability to reimburse the Fund from which the payment is made. That liability, if not otherwise conceded by the employer, is to be determined by the Compensation Court pursuant to section 145(4).”(Emphasis added)
The Court of Appeal decision in Mackley establishes that the factors referred to in section 145(2) of the 1987 Act may be taken into account by the Commission, in the exercise of a broad discretionary power, under section 145(4) of that Act. That has been confirmed on appeal from this Commission to the Court of Appeal in Ballantyne (CA), subject to what was said in that case.
Having regard to all of the circumstances, and to Practice Directions 1 and 6, the documents that are before me, I am satisfied subject to what follows in these Reasons for Decision, that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course to be followed.
THE REMITTER
As stated at [8] above, the decision of the Court in Ballantyne (CA) requires the Commission to determine the Appellants’ appeal against the decision of the Arbitrator, dated 15 March 2005.
THE DECISION UNDER REVIEW IN THIS APPEAL
The Certificate of Determination dated 15 March 2005 records the Arbitrator’s orders as follows:
“1. Award for the respondent.
2.No order as to costs.”
ISSUE IN DISPUTE ON APPEAL
The issue in dispute in this appeal is whether the Commission has power to waive the Appellants’ liability to reimburse WorkCover.
SUBMISSIONS
All submissions made to date before this Commission, as well as the decision in Ballantyne (CA) have been read and taken into account. There is no necessity to reproduce any of this material here.
Apart from the letter dated 16 November 2007 from the Appellants’ solicitors, referred to above, no submissions on appeal have been received from either party.
DISCUSSION
Section 145 of the 1987 Act provided:
“Section 145 - Employer or insurer to reimburse Authority
(1)The Authority may serve on a person who, in the opinion of the Authority, was:
(a)in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the WorkCover Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)The Authority may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the WorkCover Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that:
(a)the amount is beyond the capacity of the employer to pay,
(b)the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c)the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d)the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f)it would not be commercially feasible for the Authority to attempt to recover the amount.
(3)A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4) The Commission may hear any such application and may:
(a) make such determination in relation to the application, and
(b)make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(5)In any proceedings under subsection (4), a certificate executed by the Authority and certifying that:
(a)the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)The Authority may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7)An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”
As pointed out in Ballantyne (CA), subsection (7) was not inserted into section 145 until 1 January 2002, when section 362 was inserted in the 1998 Act (see –Workers Compensation Legislation Amendment Act 2001 (NSW), Schedule 6.1 [73] and Schedule 4.2 [17]). “Nevertheless, the provision was in place at the time that each of the orders of the Commission was made in the present proceedings”, per Basten JA at [73].
Section 145(2) provided that WorkCover may waive the liability of an uninsured employer to pay moneys specified in a notice under section 145(1). Those moneys in effect amounted to the compensation that had been paid by WorkCover to the worker under the uninsured liability scheme created by the 1987 Act. The parties had agreed at the time when the worker’s benefits under the Act were determined, that the Appellants could make an application under section 145(2) of the 1987 Act for a waiver of their obligation to reimburse WorkCover the amount of benefits that had been paid. In Ballantyne (CA), Beazley JA made the observation at [3] that this may have involved a misunderstanding of the way the Act operates.
The waiver application made was not an application under section 145(2) of the 1987 Act, but was an application under section 145(3) of that Act, for a determination by the Commission of the Appellants’ liability in respect of the payment of workers compensation, which had been made by WorkCover, and subject of a notice under section 145(1) of the Act.
In Ballantyne (CA), Beazley JA said at [7] and [8]:
“7Both the appellants and the respondent proceeded before the Acting Deputy President, in the circumstances explained by Basten JA, on the premise that the decision of this Court in WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305; [2006] NSWCA 204 (Mackley) was correct. They continued to accept the correctness of that decision before this Court.
8The effect of the decision in Mackley is that the factors referred to in s 145(2) may be taken into account for the purposes of the exercise of the discretion under s 145(4). This is apparent from the comments of Bryson JA at [52] where his Honour stated:
‘Although s 145(2) confers the waiver power on the Authority and not on the Commission, the six subjects listed in s 145(2) are relevant considerations when exercising a discretion within the limits of a discretion which may be exercised for the purposes of s 145(4). It could not be said, for example, that consideration by the Commission of the capacity of the employer to pay and basing its order under subs (4) on that consideration would take the Commission outside the purposes for which the power was conferred. Nor could it be said that consideration of whether the employer could reasonably have been expected to regard himself as an employer was outside the purposes of that power; nor could it be said that consideration whether it would or would not be commercially feasible for WorkCover Authority to attempt to recover the amount would be extraneous. The discretion of WorkCover Authority under s 145(2) is a discretion to waive the reimbursement …’.”
Given that the factors referred to in section 145(2) of the 1987 Act may be taken into account for the purpose of the exercise of the discretion under section 145(4), it is necessary to review the decision of the Arbitrator, dated 15 March 2005, on that basis.
Having regard to the decisions and reasons of the Court of Appeal in Mackley and Ballantyne (CA), the Arbitrator was in error in point of law, in finding that the Commission does not have the power to waive the liability of the Appellants to reimburse WorkCover. Accordingly, I must and do find that the Commission does have the power to waive the liability of the Appellants to reimburse WorkCover. This finding essentially determines the specific issue on appeal in the instant case.
It remains to be seen, if the dispute remains on foot, whether the Commission ought to exercise its discretion to waive the liability in the circumstances of this particular matter, in accordance with the decision, reasons and qualifications in Ballantyne (CA) and Mackley. Obviously, the Arbitrator has not yet made a determination of the substantive and associated issues. It seems to me that the proper course in the circumstances is to remit the matter to the Arbitrator for determination of the substantive issues in dispute.
However, the status of the dispute between the parties needs to be ascertained formally in the first instance, having regard to the informal indications given to the Commission that settlement of the dispute may be achieved. The last, informal advice that this may be the case was received on 30 November 2007, but as yet, this remains unconfirmed in any formal sense.
DECISION
The decision of the Arbitrator dated 15 March 2005 is revoked. The matter is remitted to the Arbitrator concerned for substantive determination, unless in the meantime, the matter is settled between the parties, and discontinued in the Commission.
COSTS
The WorkCover Authority of New South Wales, the Respondent, is to pay the Appellants’ costs of the initial hearing of the appeal before the Acting Deputy President.
The WorkCover Authority of New South Wales, the Respondent, is to pay the Appellants’ costs of this appeal.
OTHER
The Registrar should ascertain the current status of negotiations between the parties, before the matter proceeds any further.
Gary Byron
Deputy President
10 December 2007
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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