Dimmock v State of New South Wales

[2004] NSWWCCPD 64

WORKERS COMPENSATION COMMISSION

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

CITATION:George Albert Dimmock v The State of New South Wales [2004] NSWWCCPD 64

APPLICANT:  George Albert Dimmock

RESPONDENT:  The State of New South Wales

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 17237-2003

DATE OF DECISION:  21 September 2004

SUBJECT MATTER OF QUESTION:               Jurisdiction; Determination of “last employer”.

PRESIDENTIAL MEMBER:  Justice Terry Sheahan, President

HEARING:On the Papers

REPRESENTATION:  Applicant: Turner Freeman

Respondent: Vandervords

ORDERS MADE:  Leave to refer a question of law is refused.  No order as to costs.

THE QUESTION SOUGHT TO BE REFERRED

1. On 1 July 2004, the Arbitrator dealing with this matter submitted to the Commission a form of “Application for Leave to Refer a Question of Law”, drawing attention to an Annexure from which I quote the following “issue” I assume to be the relevant Question:

“4.The issue as to whether the Respondent was the last employer involves considerations of, inter alia, as to the applicability of the Seafarers Rehabilitation and Compensation Act 1992 and the provisions of Sections 15 & 16 of the Workers Compensation Act 1987 (NSW).”

1. Submissions on these issues were made to the Arbitrator by both sides prior to the referral, and I have had regard to those submissions, and also to some later correspondence referring to them and enclosing various authorities, on behalf of both sides.

DETERMINATION OF THE QUESTION OF LEAVE

1. Solicitors for both the Applicant and the Respondent urged that the question referred for opinion be dealt with at a hearing rather than “on the papers”.
   
   

2. However, before coming to any decision on the question of law, section 351(3) of the Workplace Injury Management & Workers Compensation Act 1998 (“the 1998 Act”) requires that I not grant leave for the referral “unless satisfied that the question involves a novel or complex Question of Law”.
   
   

3. Having regard to s 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, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE CASE BEFORE THE ARBITRATOR

1. Evidence before the Arbitrator supports the assertion that Mr Dimmock’s work conditions over many years constitute a substantial contributing factor to his current skin cancer condition, and that he has been treated for skin cancers since about 1982.
   
   

2. Following some period of service in the Royal Australian Navy, Mr Dimmock was employed by the Public Works Department Dredging Service, which came within the auspices of the then State Dockyard in Newcastle, between 1958 and November 1975.
   
   

3. Upon leaving the State Dockyard he joined the Merchant Navy as an employee of “BHP” and then retired from active work in 1994.
   
   

4. His claim now before the Commission in this matter involves his skin cancer condition, and the Respondent, as his employer 1958-1975, denies any liability to pay Mr Dimmock any compensation.
   
   

5. It appears from the papers that Mr Dimmock also brought proceedings in the Administrative Appeals Tribunal on or about 15 May 2003 seeking from BHP compensation regarding the same condition, and may have settled those proceedings.
   
   

6. The submissions already made in the matter place several threshold issues before the Arbitrator, not the least  important being those which arise from the facts:

   (i)that some 28 years has elapsed since the Applicant ceased employment with the Respondent,

   (ii)that the employing State enterprise (namely the Dockyard) closed down altogether in approximately 1983, and

   (iii)that he has claimed compensation elsewhere for the same condition.
   
   

7. It may be open to the Arbitrator to find that compensation is payable to the Applicant by this Respondent if the employment at the State Dockyard is shown to be the last employment to which the NSW legislation applies, and the Arbitrator sought submissions from the parties on that very question in his Directions of 15 March 2004, made during or following a teleconference.

DISCUSSION

1. The authorities cited by the parties deal with the “last employer” issue, e.g. the decision of the Court of Appeal in Russo v World Services & Construction Pty Ltd [1979] 1 NSWLR 330, and with the interrelationship between relevant Commonwealth and State legislation, e.g. the decision of the High Court in Telstra Corporation Ltd v Worthing & Anor [1999] HCA 12 .
   
   

2. Questions such as arise in this case - deciding the appropriate description of an injury or disease, making findings in respect of the appropriate date of onset, the two matters referred to in paragraph [13], and questions of jurisdiction generally – are commonly faced by primary decision-makers in the workers compensation field.
   
   

3. In the new dispute resolution regime applying in this State, it is incumbent upon the Commission’s Arbitrators, who deal with a wide range of disputes, to determine in all cases any questions of jurisdiction, to make findings of fact, to interpret relevant statutory provisions (not just those of the NSW Workers Compensation legislation), to determine the applicability of such provisions to the facts so found, and then, in appropriate instances, to apply them.
   
   

4. 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.
   
   

5. The fact that the determination of such issues in particular cases may be regarded as difficult or “complex”, or indeed may be “novel” to particular decision-makers, is not sufficient to attract the provisions of section 351. They fall for determination by the Arbitrator assigned the particular case, and cannot be “abdicated” to the President pursuant to section 351.
   
   

6. Once all the Arbitrator’s functions are carried out, and a determination made by him or her of entitlements under the NSW Workers Compensation legislation, the aggrieved party to the proceedings may avail itself of the legislation’s appeal provisions as appropriate.
   
   
   
   
   

7. The attempted referral of this Question of Law - assuming paragraph 4 of the annexure to the application raises a question of law - while proceedings are before the Arbitrator is, accordingly, misconceived, and the matters in dispute should be determined by the Arbitrator, if the parties cannot reach their own settlement of their dispute.

DECISION

1. Leave to refer the question of law is refused.

COSTS

1. I make no order as to costs.

Justice Terry Sheahan

President

21 September 2004

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