De Witte v Tawnay Pty Ltd T/as Country Coast Real Estate

[2005] NSWWCCPD 116

WORKERS COMPENSATION COMMISSION

REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT

CITATION:De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate [2005] NSWWCCPD 116

APPLICANT:  Margaret De Witte

RESPONDENT:  Tawnay Pty Ltd t/as Country Coast Real Estate

INSURER:GIO Workers Compensation Ltd

FILE NUMBER:  WCC2540-04

DATE OF DECISION:  29 September 2005

SUBJECT MATTER OF QUESTION:               ‘Novel or complex’ question of law.

PRESIDENTIAL MEMBER:  President Justice Sheahan

HEARING:On the papers

REPRESENTATION:  Applicant: Higgins & Higgins Lawyers

Respondent: Rankin & Nathan Solicitors

ORDERS MADE: Leave to refer the question of law is refused.

No order as to costs.

1. On or around 7 March 2005, by the Arbitrator’s own motion, an Application for Leave to refer a Question of Law to the President (‘the Application’) was received by the Workers Compensation Commission (‘the Commission’). The Application was incomplete, but submissions (contained in letters exchanged between the parties’ legal reprentatives) had been filed by both parties and were annexed to the Application. Submissions on behalf of the Applicant are contained in a letter dated 8 February 2005, and submissions on behalf of the Respondent are contained in letters dated 9 and18 February 2005.

1. No specific question is stated in the Application, but I note that the solicitors for both parties are in agreement that the ‘Question of Law’ is as articulated by the solicitors for the Respondent in their letter dated 9 February 2005. The question has arisen in the circumstances where O’Toole CCJ on 30 September 2003 had made orders in accordance with Terms of Settlement, which orders included an award for the Respondent on the Applicant’s claim for weekly compensation. After the award was made, the insurer continued to pay weekly compensation until 17 December 2003, when payments were ceased, without the insurer giving notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998.

1. The question is whether in the above circumstances “Section 74 of the1998 Act compelled the Insurer to give written notice of its intention to cease weekly payments… If this is answered in the affirmative, then a further question is whether the Insurer is required to reinstate weekly payments until a valid Section 74 notice is given…”.

1. The Application to refer a Question, and the submissions, were served on the WorkCover Authority, and on 22 August 2005 the Authority indicated it sought to be heard and would intervene and lodge submissions on 26 August 2005. The Commission subsequently notified the parties of WorkCover’s intention. On 26 August 2005, WorkCover sought an extension to 2 September 2005 to file submissions. On 12 September 2005 I received correspondence from WorkCover confirming that it did not wish to exercise its right to be heard in the proceedings. Upon receipt of this letter I requested that the Commission inform the parties that, contrary to previous information, WorkCover did not now seek to be heard and the matter was ready to proceed.

1. The Applicant submits:

·     that the “Award for the Respondent” in relation to the claim for weekly compensation payments in the Terms of Settlement dated 30 September 2003 “was appropriate as there [sic] then being no dispute in relation to these payments and no monies then owed and liability was agreed. The Respondent now argues that the said Award disentitles her to weekly benefits”,

· that at the hearing [before the Arbitrator] she argued that failure to give this notice “disentitles the Respondent from ‘denying liability’ or now seeking to argue s40 [sic] Workers Compensation Act 1987”, and

· that “[t]he Arbitrator found on the facts that the Respondent’s conduct in continuing compensation until 17 December 2004 was consistent with the Applicants [sic] belief that liability was admitted and that Notice under S74 was required to be given.

Upon the Arbitrator finding the Respondent breached S74, the Respondent then sought immediate review of that decision under S350 (3) Workplace Injury Management Act [sic]. It was agreed to refer to the President as a ‘question of law’ the question of whether in the above circumstances notice was required under section 74 for the Respondent to deny liability as and from 17 December 2003.”

1. Whilst the Respondent confirms the history of the matter in the Commission, as recorded in the above submissions, the documents in the Commission files before me, including the document titled “Teleconference Arrangements and Outcomes” dated 6 January 2005, do not disclose that the Arbitrator made such a finding, or that any application for reconsideration under section 350 of the 1998 Act was made by the Respondent. The document records that the parties could not agree on the weekly compensation claim, and that the matter was to be set down for a conciliation conference/ arbitration hearing.

1. In submission dated 9 February 2005, the Respondent asserts that “[t]he Insurer ceased weekly compensation payments in accordance with the Compensation Court order on 17 December 2003. The Respondent submits that [the] delay in ceasing weekly payments was occasioned by administrative error. There is no evidence before the Commission to the contrary”.

1. The Respondent submits that:

· [o]n 17 December 2003 there was no liability which the Insurer could dispute, and, therefore, there was no requirement under Section 74 to give notice before ceasing weekly payments”, and

· “[a]ny liability arising from an estoppel (the existence of which is denied) is not a liability to pay weekly compensation under the Workers Compensation Acts…section 74(1) refers only to a liability to make payments under the Acts…[T]he Arbitrator’s appeal to ‘the spirit of the law’ confirms that her determination was based on principles of equity rather than on any requirement of Section 74 of the 1998 Act.”

1. The Respondent’s solicitors’ letter dated 18 February 2005 essentially restates the submissions in their letter dated 9 February 2005 with the exception of the slightly varied history of the matter in the Compensation Court, including an assertion that, at the time the Applicant commenced proceedings in the Compensation Court, liability was denied and “[f]or reasons undisclosed by the evidence before the Commission, the Insurer commenced voluntary payments of weekly compensation in February 2001.”

1. Having regard to section 354(6) of the 1998 Act, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine the question of leave to refer a question of law, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.

1. Section 351(3) of the 1998 Act, requires that leave to refer a question of law is only to be granted if the question involves “a novel or complex question of law”.

1. The question in this case is not “novel” or “complex”, within the meaning of those words in section 351of the 1998 Act, and the ‘Question of Law’ procedure is not an appropriate mechanism for a determination of the question which has arisen in this matter.

1. As I stated in George Albert Dimmock v The State of New South Wales [2004] NSW WCC PD 64 at paragraph 16:

   “The Question of Law procedure envisaged by section 351 is not designed for the determination of matters such as whether a particular Applicant in a particular set of circumstances can successfully argue that the Commission has jurisdiction to deal with a claim for compensation, or that a particular piece of legislation might apply to the facts of the case.”

2. The Arbitrator must determine questions of jurisdiction and statutory interpretation, and she must make findings of fact on the evidence placed before her by the parties. In particular, the Arbitrator in this case must determine the effect of the terms of the prior settlement on the current claim for weekly compensation, and the operation of the notice provisions in section 74 of the 1998 Act to the particular facts of this case.

1. Any party aggrieved by the decision of the Arbitrator may make an application for reconsideration under section 350(3) of the 1998 Act, or avail her/itself of the legislation’s appeal provisions, as appropriate.

1. Accordingly, leave to refer a question of law in this matter is refused.

COSTS

1. No order as to costs.

Justice Terry Sheahan

President

29 September 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE