Employers Mutual Limited v Heise - [2022] NSWSC 465

Supreme Court

New South Wales

Medium Neutral Citation: Employers Mutual Limited v Heise [2022] NSWSC 465
Hearing dates: 13 April 2022
Decision date: 19 April 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Grant leave to the plaintiff to appeal against its conviction in respect of both grounds in the amended summons filed on 13 April 2022.
(2)   Allow the appeal.
(3)   Set aside the conviction.
(4)   Set aside the order made by the Local Court that the plaintiff (the defendant in the Local Court) pay the defendant’s (the prosecutor’s in the Local Court) costs of the proceedings.
(5)   Order the defendant to pay the plaintiff’s costs of the proceedings in this Court, such costs to be paid within 28 days of agreement or assessment.
(6)   Grant liberty to the plaintiff to seek an order that the defendant pay its costs of the proceedings in the Local Court, such liberty to be exercised by notice in writing to my Associate within seven days, with a view to directions being made in chambers and the question being determined on the papers.

Catchwords:
CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person convicted or sentenced on a question of law alone — where appeal found to involve a mixed question of law and fact — whether to grant leave to appeal — where leave granted
STATUTORY INTERPRETATION — where statute part of workers compensation scheme — where statute references guidelines — where related legislation and guidelines inform interpretation
WORKERS COMPENSATION — Claim for compensation — offence of failing to determine a claim as and when required — where claims manager who is also an insurer was convicted of the offence — whether claims manager without legal obligation to determine claims was a ‘person’ for the purpose of the offence — where claims manager found not to be a ‘person’ for the purpose of the offence

Legislation Cited:
Crimes Act 1914 (Cth), s 29D
Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 72
Criminal Procedure Act 1986 (NSW), s 213
NSW Self Insurance Corporation Act 2004 (NSW), s 8
Police Regulation Act 1958 (Vic), s 8AA
Workers Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW), ss 2A, 3, 9, 65, 66, 154A, 154B, 154G, 154I, 154M, 155, 211B
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 74, 250, 254, 260, 264, 281, 282, 283, 289

Cases Cited:
Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343
Employers Mutual Limited v Heise [2018] NSWSC 1842
Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244
Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60; [2007] NSWCA 137
O’Connell v Nixon (2007) 16 VR 440; [2007] VSCA 131

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 465
Decision Date: 19 April 2022

CaseChat Overview and Summary

Employers Mutual Limited sought an appeal from the Local Court to the Supreme Court against a conviction of one of its claims managers, Heise, who was found guilty of an offence under the Workers Compensation Act. The dispute centred on whether Heise, who was both a claims manager and an insurer, was legally obligated to determine claims as and when required, and if his failure to do so constituted an offence. The Supreme Court was tasked with determining whether the appeal involved purely a question of law or a mixed question of law and fact, and if leave to appeal should be granted. Additionally, the court had to interpret the Workers Compensation Act and related guidelines to determine whether Heise was a 'person' for the purposes of the offence.

The court needed to decide if the appeal involved a pure question of law, which would entitle the appellant to an automatic right to appeal, or if it involved a mixed question of law and fact, which would require leave to be granted. The court also had to interpret the statutory language of the Workers Compensation Act and related guidelines to ascertain whether Heise, as a claims manager who was also an insurer, had a legal obligation to determine claims as and when required, and if his failure to do so constituted an offence. This required a comprehensive analysis of the statutory provisions and guidelines to establish if Heise was a 'person' for the purposes of the offence.

The Supreme Court determined that the appeal involved a mixed question of law and fact, thus requiring leave to be granted. The court found that the relevant provisions of the Workers Compensation Act and the related guidelines did not impose a legal obligation on Heise to determine claims as and when required. Consequently, Heise was not considered a 'person' for the purposes of the offence. The court emphasised that the interpretation of the statute and guidelines led to the conclusion that Heise's dual role as a claims manager and insurer did not create a legal duty to determine claims, and thus, his conviction was not sustainable. The Supreme Court allowed the appeal and quashed the conviction.

The final orders of the Supreme Court were that leave to appeal was granted, the conviction of Heise was quashed, and the matter was remitted to the Local Court for further proceedings in light of the Supreme Court's findings.

Orders