BHP Billiton Iron Ore Pty Ltd v Workers' Compensation and Rehabilitation Commission

[2002] WASCA 195

BHP BILLITON IRON ORE PTY LTD -v- WORKERS' COMPENSATION AND REHABILITATION COMMISSION [2002] WASCA 195

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 195
Court:	THE FULL COURT (WA)	Published:	29/07/2002
Case No:	CIV:1028/2002	Heard:	21 JUNE 2002
Coram:	MURRAY J STEYTLER J TEMPLEMAN J	Delivered:	21/06/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Orders absolute for certiorari granted
Category:	B
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Parties:	BHP BILLITON IRON ORE PTY LTD (ACN 008 700 981) WORKERS' COMPENSATION AND REHABILITATION COMMISSION ALCOA OF AUSTRALIA LTD (ACN 004 879 298)
Catchwords:	Certiorari Jurisdictional error by Commission in fixing levy to be paid into Employers' Indemnity Supplementation Fund Advice of Insurance Advisory Committee required but not obtained Turns on own facts
Legislation:	Employers' Indemnity Supplementation Fund Act 1980, s 16
Case References:	Craig v South Australia (1995) 184 CLR 163 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 Ex parte Helena Valley/Boya Association (Inc); State Planning Commission (1990) 2 WAR 422 Hockey v Yelland (1984) 157 CLR 124 Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149 Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 King-Brooks v Roberts (1991) 5 WAR 500 Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 Pennings v Selby, unreported; SCt of WA (Parker J); Library No 970096; 17 March 1997 Public Service Association (SA) v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Selby v Pennings [1998] WASCA 224 Tasker v Fullwood [1978] 1 NSWLR 20 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BHP BILLITON IRON ORE PTY LTD -v- WORKERS' COMPENSATION AND REHABILITATION COMMISSION [2002] WASCA 195 CORAM : MURRAY J

STEYTLER J
TEMPLEMAN J

HEARD : 21 JUNE 2002 DELIVERED : 21 JUNE 2002 PUBLISHED : 29 JULY 2002 FILE NO/S : CIV 1028 of 2002 BETWEEN : BHP BILLITON IRON ORE PTY LTD (ACN 008 700 981)

Applicant

AND

WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Respondent

FILE NO/S : CIV 1029 of 2002 BETWEEN : ALCOA OF AUSTRALIA LTD (ACN 004 879 298)

Applicant

AND

(Page 2)

WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Respondent

Catchwords:

Certiorari - Jurisdictional error by Commission in fixing levy to be paid into Employers' Indemnity Supplementation Fund - Advice of Insurance Advisory Committee required but not obtained - Turns on own facts

Legislation:

Employers' Indemnity Supplementation Fund Act 1980, s 16

Result:

Orders absolute for certiorari granted

Category: B

Representation:

CIV 1028 of 2002

Counsel:

Applicant : Mr J D Allanson
Respondent : No appearance

Amicus Curiae : Ms J C Pritchard

Solicitors:

Applicant : Blake Dawson Waldron
Respondent : No appearance

Amicus Curiae : State Crown Solicitor

(Page 3)

CIV 1029 of 2002

Counsel:

Applicant : Mr J D Allanson
Respondent : No appearance

Amicus Curiae : Ms J C Pritchard

Solicitors:

Applicant : Blake Dawson Waldron
Respondent : No appearance

Amicus Curiae : State Crown Solicitor

Case(s) referred to in judgment(s):

Craig v South Australia (1995) 184 CLR 163

Case(s) also cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194
Ex parte Helena Valley/Boya Association (Inc); State Planning Commission (1990) 2 WAR 422
Hockey v Yelland (1984) 157 CLR 124
Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149
Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88
King-Brooks v Roberts (1991) 5 WAR 500
Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498
Pennings v Selby, unreported; SCt of WA (Parker J); Library No 970096; 17 March 1997
Public Service Association (SA) v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100


(Page 4)

R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Selby v Pennings [1998] WASCA 224
Tasker v Fullwood [1978] 1 NSWLR 20
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

(Page 5)

1 JUDGMENT OF THE COURT: These were the returns of two orders nisi for writs of certiorari and prohibition, alternatively applications for declarations. The two matters raised the identical point and they were therefore heard together. The respondent had given notice in each case that it did not intend to appear by counsel and would abide the decision of the Court save as to costs. We had the benefit, however, of the assistance of counsel for the Hon Attorney-General appearing by leave as amicus curiae.

2 In the end both counsel made submissions which caused the Court to come unanimously to the view that the order nisi for certiorari should be made absolute and we so ordered. In the circumstances it was unnecessary to consider further the applications for prohibition and those orders nisi were discharged. In the circumstances, the question of declaratory relief did not, in the opinion of the Court, arise. The applications for costs made by the applicants were referred to Murray J for determination and will be dealt with separately.

3 These are our reasons for the grant of relief by way of certiorari.

4 The grounds upon which the order nisi were made were:

(a) The Workers' Compensation and Rehabilitation Commission erred in law in failing to obtain the advice of the Insurers' Advisory Committee pursuant to s 16(1) of the Employers' Indemnity Supplementation Fund Act 1980 (WA) (the Act) prior to assessing the levy made under that section.

(b) The Workers' Compensation and Rehabilitation Commission erred in law in failing to assess the levy in accordance with the criteria set out in s 16(2) of the Act.

In each case the decision of the Commission challenged in the proceedings and which was quashed by the grant of the orders absolute for certiorari was made on 23 August 2001. The levy in the case of the applicant in CIV 1028 of 2002 was assessed in the sum of $219,146.50. The levy in the case of the applicant in CIV 1029 of 2002 was assessed in the sum of $282,645.01.

5 The point is a short one. Each applicant is a "self-insurer" as defined by the Act, s 3; ie each is an employer generally exempt under the Workers' Compensation and Rehabilitation Act 1981 (WA), s 164 from the obligation to insure pursuant to that Act against its potential liability to pay compensation for what may be described as industrial disabilities.
(Page 6)

6 The Act, s 5 provides for the respondent to establish a fund known as the Employers' Indemnity Supplementation Fund. The basic sources of moneys in the fund are surcharges required to be paid by insured employers and by self-insurers. The purpose of the Fund is to provide money to pay claims by workers for compensation or at common law where the employer is insured but the insurer for one reason or another is unable to indemnify the employer and so meet the worker's claim.

7 The obligation of self-insurers to contribute to the Fund is set out in s 16(1) and (2), although there are other statutory obligations. These provisions are as follows:

"(1) A self-insurer shall pay to the Commission —

(a) in the case of an employer who becomes a self-insurer before or on the commencement of a surcharge period, within one month after that commencement; or

(b) in the case of an employer who becomes a self-insurer during a surcharge period, within one month after becoming a self-insurer,


and thereafter once in each succeeding period of 12 months any of which is during a surcharge period an amount assessed by the Commission on the advice of the Committee.

(2) The amount assessed by the Commission under subsection (1) shall be an amount equal to the amount of the surcharge that would have been payable by the self-insurer under this Act in relation to an employer’s policy obtained under section 160 of the Workers’ Compensation and Rehabilitation Act 1981 had he been an employer who was not a self-insurer."

8 It can be seen that the amount to be levied upon each self-insurer is to be assessed by the Commission. The Commission has to make a judgment about that amount and so it is a body whose decisions are liable to be quashed upon the grant of certiorari for jurisdictional error: Craig v South Australia (1995) 184 CLR 163, 175 – 6.

9 Under s 16(1) there is a jurisdictional fact which is a pre-condition to the valid exercise of the Commission's jurisdiction. It must obtain the

(Page 7)

advice of the Committee, defined by s 3 as the Insurer's Advisory Committee established by s 27(1) of the Act. The purpose is that guided by that expert advice, the Commission will then be able to make its assessment in accordance with the requirements of s 16(2). In other words, it will be able to satisfy itself that the amount to be paid by a self-insurer equals the amount that would have been payable by that employer had it been insured against claims under the Workers' Compensation and Rehabilitation Act.

10 The simple fact in each of these cases is that in neither case did the Commission obtain the advice of the Committee before making its assessment of the amount of the levy to be paid by each applicant. It follows, in our opinion, that each decision was affected by jurisdictional error and had to be quashed. It is not to the point in these proceedings to consider whether the Commission, having taken the advice of the Committee, is bound by it. It is sufficient to understand that the assessment of the proper amount to be paid in terms of s 16(2) is intended at least to be guided by the advice of the Committee which under Pt VI of the Act appears clearly to be a Committee of persons knowledgeable about the relevant aspects of the insurance industry.

11 Ground (a) was made out and in the circumstances it was unnecessary to give any detailed consideration to ground (b), except to say that s 16(2) cannot be satisfied in our view unless the relevant advice of the Committee is received.