Barnett v Country Rugby League of NSW Inc

[2010] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Barnett v Country Rugby League of NSW Inc [2010] NSWWCCPD 73
APPELLANT:		Le-Arne Cherilee Barnett
RESPONDENT:		Country Rugby League of NSW Inc
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-9751/09
ARBITRATOR:	Mr R Whitelaw
DATE OF ARBITRATOR’S DECISION:		15 March 2010
DATE OF APPEAL HEARING:		30 June 2010
DATE OF APPEAL DECISION:		12 July 2010
SUBJECT MATTER OF DECISION:		Psychological injury; sexual harassment; claim for compensation for unlawful discrimination in the Federal Magistrates Court discontinued upon execution of a deed of release; payment of bona fide redundancy and transfer of ownership of a work car to worker; construction of deed of release; whether worker had recovered damages; sections 149 and 151A of the Workers Compensation Act 1987; meaning of monetary compensation
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr R Hanrahan, instructed by Keddies Lawyers
Respondent:	Mr P Stockley, instructed by Goldbergs Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 15 March 2010 is revoked and the following orders made: “1. The respondent employer is to pay the applicant worker weekly compensation under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the statutory rate of compensation payable for a worker with one dependent child from 28 July 2007 to date and continuing. 2.      The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act. 3.      The applicant worker’s claim for compensation for whole person impairment as a result of her psychological injury is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The deemed date of injury is 22 August 2003. 4.      The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.” The respondent employer is to pay the appellant worker’s costs, as agreed or assessed.

BACKGROUND

1. The appellant worker, Le-Arne Barnett, started work for the respondent employer, Country Rugby League of NSW Inc (‘CRL’), as the personal assistant to the senior corporate manager in September 1996. In August 2002, CRL appointed a new general manager and Ms Barnett then worked as his personal assistant.

2. Ms Barnett’s claim is that, from about 2002 until August 2003, she had been sexually harassed, abused and humiliated by the new general manager in the course of her employment with CRL and that, as a result, she received a psychological injury, namely a Major Depressive Disorder. She ceased work when her employment was suspended in August 2003 because of an alleged breach of confidentiality. She completed a workers compensation claim form on 8 October 2003. CRL’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), accepted liability and paid compensation until 27 July 2007.

3. On 16 October 2003, Ms Barnett lodged a complaint with the Human Rights and Equal Opportunity Commission alleging that the general manager and CRL had breached the Sex Discrimination Act 1984. It is not known what came of that complaint.

4. Ms Barnett filed a claim against the general manager and CRL in the Federal Magistrates Court of Australia (‘the Federal Court’) on 7 April 2004 seeking compensation under the Sex Discrimination Act 1984. She filed an Amended Application in the Federal Court on 17 May 2004 in which she sought, among other things, undisclosed “compensation”. The Amended Application referred to the Human Rights and Equal Opportunity Commission Act 1986, but did not identify any specific section or claim.

5. In a document headed “Points of Claim” filed in the Federal Court on 17 May 2004, Ms Barnett alleged that the general manager and CRL had breached various provisions of the Sex Discrimination Act 1984 and that the general manager had, among other things, sexually harassed, bullied, discriminated against and victimised her in the course of her employment with CRL.

6. Ms Barnett discontinued the proceedings in the Federal Court in or about October 2004, having executed a deed of release (‘the deed’) on 29 September 2004. The deed released the general manager and CRL from liability for certain defined “circumstances” and required Ms Barnett to discontinue the proceedings in the Federal Court within seven days of receiving certain payments from CRL. Among other things, those payments included a “bona fide redundancy” in the sum of $38,000 (before tax) and the transfer to her of a car (and the payment of stamp duty on that transfer) that Ms Barnett had used in the course of her employment with CRL.

7. The “circumstances” defined in the deed excluded “claims for workers’ compensation under the workers’ compensation legislation”.

8. In a letter dated 9 June 2009, Ms Barnett’s solicitors claimed lump sum compensation and weekly compensation from CRL under the Workers Compensation Act 1987 (‘the 1987 Act’). Though the letter did not properly identify the nature of the injury, it is clear that the injury for which compensation was claimed was the psychological injury Ms Barnett received as a result of the circumstances of her employment with CRL.

9. Allianz disputed liability in a section 74 notice dated 30 July 2009. It contended that, by accepting the “bona fide redundancy” and the transfer of the car, Ms Barnett had recovered damages under section 151A of the 1987 Act. That section provides that if a person recovers damages in respect of “an injury” from his or her employer liable to pay compensation under the 1987 Act, then the person ceases to be entitled to further compensation under that Act “in respect of the injury concerned”. Damages in section 151A include “any form of monetary compensation” (section 149 of the 1987 Act).

10. In an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 1 December 2009, Ms Barnett claimed weekly compensation from 26 July 2007 to date and continuing, lump sum compensation in respect of a 22 per cent whole person impairment, and $11,236.50 in respect of hospital and medical expenses. The Application described the injury as “psychological”. The injury was alleged to have occurred as a result of “harassment at work”. The “date of injury” was described as “nature and conditions of employment deemed 22 August 2003”.

11. The Commission listed the matter for conciliation and arbitration on 5 February 2010. Each party was legally represented. Each party made lengthy submissions, but neither called any oral evidence. Counsel for CRL submitted that the matter called for the determination of “effectively, one single issue” (T2.24), namely, whether Ms Barnett had received damages so as to satisfy the definition of that term in section 149 of the 1987 Act.

12. In a reserved decision delivered on 15 March 2010, the Arbitrator rejected the submission that the payment of the “bona fide redundancy” amounted to the recovery of damages, but accepted that the transfer of the car to Ms Barnett could be characterised as “monetary compensation”, as it was “moneys worth” and was, therefore, damages. He also held that the transfer of the car amounted to damages paid “in respect of an injury” because it would have been open to CRL to maintain, in any claim for weekly compensation, that at least part of the obligation on it to pay weekly compensation was satisfied by the transfer of the car, at least to the extent of its value (Statement of Reasons (‘Reasons’) at [42]).

13. The Arbitrator concluded that the transfer of the car had the “character of damages for injury – ‘compensation’ as sought in the Applicant’s Amended Application in the Federal Magistrates Court arising from the same facts or injury as the claim for workers compensation” (Reasons at [43]). He therefore made an award for the respondent.

14. The Commission issued a Certificate of Determination on 15 March 2010 in the following terms:

    “The Commission determines:

    1. Award for the respondent.”

15. In an appeal filed on 12 April 2010, Ms Barnett seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

FRESH EVIDENCE

1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)   Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Ms Barnett seeks to rely upon fresh evidence or additional evidence in the form of a statement from David Barnhill dated 12 April 2010. Mr Barnhill had been Ms Barnett’s manager up to August 2002. He said that CRL provided Ms Barnett with a motor vehicle as part of her contract of employment. The vehicle was available for private and business use. He was present at a management committee meeting of the CRL when it was noted that Ms Barnett was entitled to retain the vehicle upon ceasing employment with CRL. He added that the vehicle would have been transferred to her in the absence of the deed and was “considered to have no commercial value”.

2. Ms Barnett’s solicitor has submitted on appeal that counsel sought to introduce evidence from Mr Barnhill at the arbitration and that that “suggestion was declined by the Arbitrator, who deemed it as not being necessary”. That submission was patently incorrect. Counsel made no application to rely upon evidence from Mr Barnhill at the arbitration. Mr Barnhill’s statement post-dates the arbitration by over two months.

3. At the oral hearing of the appeal, counsel for Ms Barnett, Mr Hanrahan (who appeared at the arbitration), submitted that the question of why Mr Barnhill was not available to give evidence at the arbitration was discussed at the conciliation stage of the proceedings. That stage of the proceedings is always informal and never transcribed. Mr Hanrahan made no application to tender a statement of what transpired at the conciliation. He submitted that the matter (of Mr Barnhill’s evidence) had been discussed in such a way that Ms Barnett considered the hearing should not be delayed. Exactly what was discussed is not known, but Mr Hanrahan made an oblique reference to the parole evidence rule in his submissions on appeal. He submitted that the fact that the Arbitrator relied on the deed “took us by surprise”. He submitted that it was in the interests of justice that Mr Barnhill’s statement be admitted on appeal.

4. CRL opposed the introduction of Mr Barnhill’s statement on the ground that Ms Barnett provided no evidence in support of her application for leave to tender that document and it would be irreparably prejudiced if it were to be admitted on appeal. It relied on the principles discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 in support of a submission that proceedings should be disposed of in a “just and timely manner”.

5. My preliminary view was that, if CRL was able to respond to Mr Barnhill’s evidence, it might have been appropriate for the evidence to be admitted on appeal. To that end, I directed CRL to file any documents in response to Mr Barnhill’s statement by 4.30 pm on 7 July 2010.

6. In compliance with that direction, CRL’s solicitors filed a letter dated 7 July 2010 stating that they were instructed that the only executive committee meeting between 1996 and 2003 referring to Ms Barnett was the meeting on 24 January 2001. Minutes for that meeting, which were attached, did not support Mr Barnhill’s assertions.

7. The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634, where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:

   “These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

1. However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:

   “Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”

1. In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).

2. In the present case, the following matters militate strongly against the introduction of Mr Barnhill’s statement on appeal:

   (a)     Ms Barnett’s solicitor has offered no proper explanation as to why the evidence was not obtained and attached to the Application before the matter was listed for arbitration. It was unacceptable and unsatisfactory for Mr Hanrahan to attempt to offer an “explanation” during the course of the hearing of the appeal. Such explanation, if there was one, should have been fully set out in a statement attached to the appeal filed on 12 April 2010;

   (b)     there is no evidence that Mr Barnhill was not available to provide a statement before Ms Barnett’s solicitors filed the Application;

   (c)     Mr Hanrahan’s “explanation”, such as it was, really amounted to an admission that a forensic decision was made at the arbitration not to rely on evidence from Mr Barnhill;

   (d)     though Mr Barnhill’s evidence is credible, the case does not turn on that evidence but on the construction of the deed and the relevant legislation, and

   (e)     CRL’s response filed on 7 July 2010 indicates that the matter raised in Mr Barnhill’s evidence is not unchallenged and may require further evidence for that issue to be properly resolved.

3. Each application to rely on fresh evidence or additional evidence on appeal must be determined on its own facts. Given that Ms Barnett’s legal advisers made a forensic decision not to tender evidence from Mr Barnhill at the arbitration, and given that his evidence is not critical to the outcome of the case in any event, I am not satisfied that it is in the interests of justice that Mr Barnhill’s statement be admitted into evidence as fresh evidence or additional evidence on appeal.

1. Parties are reminded, yet again, that arbitrations are not a trial run where they can await the outcome and then decide to prepare their case.

THE LEGISLATION

1. CRL relies on sections 149 and 151A of the 1987 Act. So far as is relevant for the present claim, section 151A of the 1987 Act provides:

   “(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):

   (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and

   (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

   (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act …”

2. Section 149 defines damages as follows:

   “damages includes:

   (a) any form of monetary compensation, and

   (b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

   but does not include:

   (c) compensation under this Act, …”

THE DEED OF RELEASE

1. The deed is dated 29 September 2004 and includes the following recitals:

   “A. The Applicant was employed by the Second Respondent from 2 September 1996 to 24 August 2004 (‘the Employment’) under a contract of employment (‘the Contract’).

   B.On 16 October 2003 the Applicant lodged a complaint with the Human Rights and Equal Opportunity Commission alleging that the conduct of the First and Second Respondents breached the Sex Discrimination Act 1984 (‘the Complaint’).

   C.On 13 April 2004 the Applicant filed an application in the Federal Magistrates Court of Australia in relation to the Complaint (Matter No SZ1073 of 2004) (‘the Proceedings’).

   D.On 17 May 2004 the Applicant filed an amended application in the Proceedings.

   E.The First and Second Respondents deny any liability to the Applicant in relation to the Complaint and in relation to the Proceedings.

   F.The First and Second Respondents and the Applicant, without admitting liability, have reached agreement on the terms set out in this Deed.” (emphasis included in original)

2. The deed includes a definitions section. The term “circumstances” is defined in the following terms in clause 1:

   “‘Circumstances’ means any or all present and future Claims touching upon the matters recited including but not limited to the Employment, the terms of the Employment including the terms of the Contract or any related condition or collateral arrangement, relating to the Employment, any treatment of the Applicant by the Second Respondent during the Employment, any treatment of the Applicant by the First Respondent during the Employment, the terms and conditions of any industrial instrument applying to the work done by the Applicant, the Complaint, any act or omission that amounts to discrimination of any type, and the Proceedings except for claims for workers’ compensation under workers’ compensation legislation.” (emphasis included in original)

3. Clause 2 of the deed required CRL to, among other things, within 28 days of receiving an executed copy of the document:

(a)pay to Ms Barnett the sum of $38,000.00 gross as a “bona fide redundancy”, being a net amount of $35,810.00;

(b)pay to Ms Barnett the sum of $6,359.50 gross, being a net amount of $4,356.26, in payment of her long service leave entitlements;

(c)pay to Ms Barnett the sum of $7,045.37 gross, being the net amount of $4,826.08, in payment of her accrued annual leave entitlement;

(d)pay Ms Barnett’s costs, agreed in the sum of $10,000.00;

(e)provide Ms Barnett with an executed transfer for the registration of the motor vehicle registration number YJJ 053, and

(f)pay to Ms Barnett the amount charged by the Roads and Traffic Authority as stamp duty for transfer of motor vehicle registered number YJJ 053.

1. Clause 4 of the deed placed the following obligations on Ms Barnett:

   “The Applicant must:

   (a)execute this Deed;

   (b)bare [sic] her own legal and other costs, if any of the Proceedings and the preparation of this Deed;

   (c)indemnify and keep indemnified the First and Second Respondents in relation to all Claims that the Applicant has or, but for this Deed, may have against the First and Second Respondents on any account whatsoever including, but not limited to, indemnifying the First and Second Respondents against any judgement, order, award, penalty, damages, compensation and interest ordered against the First and Second Respondents in any Claim by the Applicant and any legal costs and expenses incurred by the First and Second Respondents in defending or incidental to defending a Claim made by the Applicant;

   (d)acknowledges [sic] and accepts [sic] that payment of the amounts in clause 2 are in full and final satisfaction and discharge of all obligations of the Second Respondent to the Applicant in respect of the Employment, the Contract any statute governing leave entitlements and any statute governing superannuation entitlements;

   (e)not make any adverse statement, publicly or otherwise, about the First Respondent but the parties agree that refusal to comment on the Circumstances will not be considered a breach of this clause.

   (f)not make any adverse statement, publicly or otherwise, about the Second Respondent but the parties agree that refusal to comment on the Circumstances will not be considered a breach of this clause.

   (g)not commence any proceedings in respect of the Circumstances;

   (h)releases [sic] and discharges [sic] the First Respondent from the Circumstances;

   (i)releases [sic] and discharges [sic] the Second Respondent from the Circumstances;

   (j)not make or remake any of the allegations contained in the Complaint or referred to in the Proceedings or publish the Complaint or any of the documents filed in the Proceedings or discuss their contents and/or bring it to the attention of any other person unless required by law to do so;

   (k)within 7 days of the Second Respondent complying with clauses 2(a), (b), (c), (d) and (e) return the mobile phone to the Second Respondent.

   (l)discontinue the Proceedings within 7 days of the Second Respondent complying with clauses 2(a), (b), (c), (d) and (e);

   (m)bear her own legal and other costs.” (emphasis included in original)

1. It is assumed that the payments referred to in [37] above have been made, that the transfer of ownership of the motor vehicle has been effected, and that Ms Barnett discontinued her proceedings in the Federal Court.

2. In addition to the obligations in clause 4 of the deed, Ms Barnett warranted in clause 6 that, among other things, she would not “commence any proceedings against the Second Respondent in relation to the Circumstances” (see clause 6(h)).

1. Clause 13 provides that CRL may use the deed against Ms Barnett “as a bar to any proceedings arising out of or in connection with the matters covered by it”.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)     his description of the benefits provided by way of the car;

(b)     finding that the transfer of ownership of the car amounted to the recovery of damages;

(c)     finding that the transfer of ownership of the car was part of the worker’s wage or salary and therefore any weekly benefits payable by CRL were satisfied by the transfer, and

(d)     construing the terms of the deed as he did.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The submissions made on behalf of CRL at the arbitration may be summarised as follows:

   (a)     Ms Barnett claimed compensation for a psychological injury alleged to have arisen as a result of the nature and conditions of her employment, with a deemed date of 22 August 2003;

   (b)     in the Federal Court, Ms Barnett made a claim that “really” was a “claim for damages” (T2.44), which was settled upon the basis of a deed that provided for, among other things, “the payment of moneys” by CRL to her;

   (c)     clause 2(a) of the deed (see [37] above) would be construed as providing for the payment of a lump sum of money which was, in effect, “the damages for the applicant giving up her right to continue to work with the respondent” (T2.55);

   (d)     the transfer of the vehicle referred to at clause 2(e) and 2(f) of the deed would, without more, constitute clear prima facie evidence of the payment of damages to Ms Barnett (T2.58);

   (e)     CRL’s position was supported by Burns v Gladesville Bowling & Sports Club Ltd [2000] NSWCC 53; (2000) 20 NSWCCR 648; (‘Burns’);

   (f) Ms Barnett’s claim in the Commission was “in respect of an injury for which she claimed compensation in the Federal Magistrates Court” (T4.42) and the provision for the payment of money to her in the deed amounted to the payment of damages under section 151A of the 1987 Act;

   (g)     having received damages, Ms Barnett ceased to be entitled to any further compensation in respect of the injury concerned;

   (h)     by reason of section 234 of the 1998 Act, Ms Barnett was not precluded from bringing the current proceedings in the Commission, but CRL had a complete defence to the claim;

   (i)   there was no evidence that Ms Barnett was otherwise entitled to a redundancy payment as a result of a re-organisation of the workforce or of a forced redundancy because of a downturn in work;

   (j)   CRL paid damages to Ms Barnett to “buy or to limit” (T6.12) her claim for damages under the discrimination legislation;

   (k)     the Federal Magistrates Court had “no business with the adjudication or the determination of industrial rights of a worker in New South Wales” (T14.57);

   (l)   all of the points identified in the “Points of Claim” document, apart from one, referred to sexual and other harassment, intimidation, bullying and other unfortunate activities of the manager, and that is what the case in the Commission was about;

   (m)   the deed could only be properly construed as providing for the payment of damages to Ms Barnett. There was no evidence that Ms Barnett would have been entitled to a redundancy. The inference was that it was “the payment of damages dressed up in another term” (T16.20), and

   (n)     Ms Barnett had not attempted to deal with the parties’ intentions when executing the deed.

1. It is first necessary to deal with a preliminary point. Counsel for CRL submitted at the arbitration that his client did not carry the onus of proof in relation to its defence (T15.32). That was incorrect. The defence in this matter is not a mere denial of the claim, but is an assertion of the existence of a factual situation that, if correct, will constitute a complete defence under section 151A. CRL therefore carries the onus of establishing that defence (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125) and it must establish that Ms Barnett recovered damages “in respect of an injury from the employer liable to pay compensation under this Act” (section 151A(1)). For the reasons set out below, it has failed to do so.

2. At the hearing of the appeal, counsel for CRL, Mr Stockley (who did not appear at the arbitration), submitted that the deed was analogous to the situation in Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114 (‘Hunt’). In that case, the worker claimed compensation in the Commission in respect of a psychological injury received as a result of numerous acts of sexual harassment and victimisation in the course of her employment between May 2004 and 29 March 2006. The employer defended the claim on the ground that Ms Hunt had recovered damages in proceedings in the Administrative Decisions Tribunal as a result of sexual harassment on three specific occasions on 31 May 2004, 9 July 2004 and on 3 February 2005. The defence failed because the employer was unable to establish that the injury for which Ms Hunt sought compensation in the Commission was the same injury for which she had recovered damages in the Administrative Decisions Tribunal.

1. Mr Stockley argued that, in the present case, there was a global settlement in the Federal Court with no determination of which events came within “the legislation and which did not”. Therefore, as the claim in the Commission was also a global claim for a psychological injury as a result of the nature and conditions of employment, the claims are for the same injury and settlement of the claim in the Federal Court precludes the recovery of compensation in the Commission.

2. I do not accept these submissions.

3. In its section 74 notice, Allianz referred to section 46PO of the Human Rights and Equal Opportunity Commission Act. The relevant provision is in fact found in section 46PO of the Australian Human Rights Commission Act 1986. Subsection (4)(d) of section 46PO refers to the court concerned having power to make an order “requiring the respondent to pay an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”. However, such an order can only be made after a finding of “unlawful discrimination”, or, presumably, by consent. There was no such finding (or consent order) in Ms Barnett’s case because the Federal Court proceedings were discontinued. The Federal Court made no order for the payment of damages, by consent or otherwise. Had there been such a finding, or consent order (and consequential order for the payment of damages), it would then have been necessary to consider, as occurred in Hunt, the terms of that finding, or consent order, to determine if it amounted to the recovery of damages for the “injury concerned” (section 151A(1)(a)) in the claim for compensation. As there was no determination, or consent order, by the Federal Court, it is not possible to conclude (apart from a consideration of the terms of the deed) that Ms Barnett recovered damages for the psychological injury for which she now seeks compensation in the Commission.

1. Mr Stockley also relied on Burns. In that case, it was agreed that the worker had recovered $15,000 under the Anti-Discrimination Act 1977 from the employer in a consent settlement before the Equal Opportunity Tribunal because of discrimination in the course of his employment on the grounds of his sexuality. Bishop CCJ held that the conduct of the employer referred to in section 113 of the Anti-Discrimination Act was the same as the conduct of the employer for which compensation was sought. Therefore, the injury that gave rise to the damages ordered to be paid by the Equal Opportunity Tribunal was the same injury for which the worker claimed compensation in the Compensation Court. Therefore, the worker was prevented from recovering compensation.

2. The critical difference between Burns and the present case is that, in respect of the psychological injury for which Ms Barnett seeks compensation in the Commission, she never recovered damages in, or as a result of, the Federal Court proceedings. She did not file terms of settlement in that court, as occurred in Burns, and did not recover an award of compensation or damages, as occurred in Hunt. She discontinued those proceedings on the terms set out in the deed. The matter therefore turns on the construction of the deed and the terms of the legislation.

1. CRL’s argument is based on the “Points of Claim” attached to the Amended Application filed in the Federal Court and on the fact that Ms Barnett claimed “compensation” in that Application. Its submissions have overlooked the fact that the money paid by CRL under the deed to Ms Barnett (including the transfer of the car and the payment of stamp duty on that transfer) was paid in return for her releasing CRL, and the manager, from any liability for the “circumstances” identified in the deed and for her discontinuing the Federal Court proceedings. Those circumstances expressly excluded “claims for workers’ compensation under workers’ compensation legislation”. It follows that the deed did not release CRL from any potential liability under the New South Wales workers’ compensation legislation. This would follow from the effect of section 234 of the 1998 Act in any event, regardless of the terms of the deed (Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 (‘Adams’) at [17]).

2. The question remains whether the payments made to Ms Barnett under the deed (including the transfer of the car and the payment of stamp duty on that transfer) amounted to the recovery of damages “in respect of the injury concerned”, namely, a psychological injury in the form of a Major Depressive Disorder. In considering the payments made under the deed, it is appropriate to have regard to the recitals in it, as they are the means by which the surrounding circumstances are identified and the object and purpose of the transaction are ascertained (Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407).

3. The recitals make no reference to any “injury”, but recite, among other things, Ms Barnett’s “complaint” to the Human Rights and Equal Opportunity Commission alleging a breach of the Sex Discrimination Act 1984 and her application in the Federal Court “in relation to the Complaint”. In return for the payments noted at [37] above, Ms Barnett agreed to discontinue the proceedings in the Federal Court. Nowhere in the deed is it suggested that the payments to Ms Barnett amounted to either compensation or damages under either the Australian Human Rights Commission Act 1986 or the Sex Discrimination Act 1984. Regardless of the Points of Claim, which were general allegations, the payments were not made in “respect of an injury” (section 151A(1)).

4. The facts in the present case are in sharp contrast to those in Adams. In that case, the worker received an injury to his left hand and wrist on 20 June 2003. His employment was terminated in 2003 and he commenced proceedings in the Australian Industrial Relations Commission against his former employer for unfair dismissal. Those proceedings were compromised and the parties executed a deed of release in January 2005. The deed recited the worker’s allegation that he had received work injuries in the course of his employment. Those injuries included, but were not limited to, an injury to his left hand and wrist. The deed stated that the employer agreed to pay the employee the sum of $2,500.00 “in respect of general and other damages” in return for the employee releasing the employer from “all claims and liabilities of any nature”.

5. The employer forwarded the sum of $2,500.00 to the worker by cheque under cover of a letter dated 7 January 2005 which stated:

   “Thank you for providing us with a signed Deed of Release. We enclose a cheque made payable to you in the sum of $2,500.00 being in respect of the agreed work injury damages.”

6. Handley AJA (Allsop P and Giles JA agreeing) held (at [24]) that the “character of the payment is governed by the deed and the letter of 17 January 2005 which accompanied the cheque”. His Honour added (at [27]):

   “The amount of $2,500.00 was also paid in respect of other claims, but this cannot matter. The deed and the letter, construed on their face, or in the light of the surrounding circumstances, establish that the payment was made ‘in respect of’ the injury to the worker’s left hand and wrist. Accordingly, he ceased to be entitled to compensation ‘in respect of the injury concerned’, that is, the injury to his left hand and wrist.” (emphasis added)

7. Unlike Adams, the recitals in the deed in the present case make no reference to any work injury and it is incorrect to suggest that Ms Barnett recovered from CRL “damages in respect of an injury”. As I have noted above, the payments made pursuant to the deed (including the transfer of the car and the stamp duty on that transfer) were made in return for Ms Barnett undertaking to discontinue the proceedings in the Federal Court and, among other things, releasing and discharging CRL and the former manager from “the Circumstances” defined in the deed. Those circumstances did not refer to any work injury, let alone the psychological injury for which Ms Barnett now seeks compensation in the Commission. In this situation, it is clear beyond doubt that the payments made by CRL to Ms Barnett pursuant to the deed were not “damages in respect of an injury” (section 151A(1)). Therefore, Ms Barnett has not recovered damages in respect of her psychological injury and she is not prevented from claiming further compensation “in respect of the injury concerned” (section 151A(1)(a)).

1. Given this conclusion, it is not necessary to consider whether the transfer of the car and the agreement to pay the stamp duty on that transfer amounted to monetary compensation so as to constitute damages. However, in deference to the submissions made on appeal, I make the following observation on that issue. The term “damages” is defined in section 149 to include “any form of monetary compensation”. Mr Stockley referred to the definition of monetary in the Concise Oxford Dictionary. The Macquarie Dictionary defines monetary to mean “of or pertaining to the coinage or currency of a country” and “of or pertaining to money, or pecuniary matters”. The Shorter Oxford English Dictionary defines monetary as “of or pertaining to coinage or currency” and “of or pertaining to money with reference to its value or purchasing power; pecuniary, financial”.

2. Given these definitions, and given the context in which the expression is used in the legislation, namely in Part 5 of the 1987 Act, which deals with “common law remedies”, I find that the expression “monetary compensation” refers to the recovery of money, not the transfer of an asset. This conclusion is consistent with subsection (b) of section 149, which refers to “any amount paid under a compromise or settlement of a claim for damages” (emphasis added). The reference to an “amount paid” can only be a reference to monetary compensation, as opposed to the transfer of an asset. Stamp duty on the transfer was similarly not monetary compensation. It was not money paid to Ms Barnett as compensation, but was money paid to her solely to meet the cost of stamp duty on the transfer of the car into her name. She did not recover any monetary compensation.

3. This conclusion is consistent with Smith v Commonwealth Oil Refineries Ltd [1938] HCA 33, 60 CLR 141 (cited in Adams), where Latham CJ held (at 147-8) that, in the context of whether a worker had recovered damages or compensation, “recover” meant the “receipt of moneys”. As noted by Handley AJA in Adams, this decision was followed in Luya Julius Ltd v Shepherd [1955] HCA, 99 CLR 278 and treated as settled law in Watson v Newcastle Corporation [1962] HCA 6, 106 CLR 426. It follows that I do not accept that the transfer of the car and/or the agreement to pay stamp duty on that transfer amounted to the recovery of damages as defined in section 149.

4. It follows that the Arbitrator erred in concluding that the transfer of the car had the “character of damages for injury – ‘compensation’ as sought in the Applicant’s Amended Application in the Federal Magistrates Court arising from the same facts or injury as the claim for workers compensation” (Reasons at [43]). Ms Barnett has not recovered damages. As the recitals to the deed make clear, the payments made by CRL under the deed were not made in respect of “an injury” but were made in return for Ms Barnett agreeing, among other things, to discontinue the claim in the Federal Court. The payments were not “monetary compensation” in respect of the “injury” with which the Application in the Commission is concerned.

CONCLUSION

1. Having conducted a review on the merits, I have concluded that Ms Barnett did not recover damages when she received the payments (including the transfer of the car and payment of stamp duty on that transfer) referred to in the deed. As that was the only issue in dispute in Allianz’s section 74 notice, it follows that Ms Barnett is entitled to an award of compensation at the statutory rate of compensation for a worker with one dependent child on the basis of total incapacity. It is agreed that compensation was paid until 27 July 2007. Therefore, the award should date from 28 July 2007, not 26 July as appears in the Application.

DECISION

1. The Arbitrator’s determination of 15 March 2010 is revoked and the following orders made:

“1.The respondent employer is to pay the applicant worker weekly compensation under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the statutory rate of compensation payable for a worker with a dependent child from 28 July 2007 to date and continuing.

2.The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act.

3.The applicant worker’s claim for compensation for whole person impairment as a result of her psychological injury is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The deemed date of injury is 22 August 2003.

4.The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.”

COSTS

1. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Acting President

12 July 2010

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE