Finney Pty Limited t/as Cut Price Car Rentals v Chequer
[2021] NSWPICPD 13
•11 May 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13 |
| APPELLANT: | Finney Pty Limited t/as Cut Price Car Rentals |
| FIRST RESPONDENT: | Craig Chequer |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (icare) |
| FILE NUMBER: | A1-1949/20 |
| MEMBER: | Mr R Bell |
| DATE OF MEMBER’S DECISION: | 8 October 2020 |
| DATE OF APPEAL DECISION: | 11 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Section 9AA of the Workers Compensation Act 1987 – connection with State of New South Wales – procedural fairness – credibility of witness – findings of dishonesty, creating false and misleading evidence made without Arbitrator raising preliminary view with the parties – State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226 applied – weekly compensation – whether weekly payments made under Queensland workers compensation scheme should be taken into account for entitlement to weekly compensation under the Workers Compensation Act 1987 |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J de Greenlaw, counsel | |
| Mulcahy Lawyers | |
| First Respondent: | |
| Mr L Brazel, counsel | |
| Stacks Law Firm | |
| Second Respondent: | |
| Mr G Dolan, solicitor | |
| HWL Ebsworth Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 8 October 2020 is revoked and the following determinations made in its place: (a) Remit the matter to a different Member of the Personal Injury Commission to determine whether in accordance with s 9AA(1) of the Workers Compensation Act 1987 the First Respondent’s employment is connected with New South Wales. (b) Confirm determinations 2, 3 and 5 of the Certificate of Determination dated 8 October 2020. (c) In the event of a determination under s 9AA(1) that the first respondent’s employment is connected with New South Wales confirm order 5 and revoke determination 4 of the Certificate of Determination dated 8 October 2020 and determine that “Such payments to continue until 13 June 2020.” (d) In the event of a determination that the first respondent’s employment is not connected with New South Wales revoke determinations 4 and 5 of the Certificate of Determination dated 8 October 2020. |
INTRODUCTION AND BACKGROUND
Mr Craig Chequer (the first respondent), a motor mechanic, was employed by Finney Pty Limited t/as Cut Price Car Rentals during two periods, namely, December 2016 to mid-January 2017 and from August 2017.
On 13 December 2017 at the appellant’s workshop at Tweed Heads, Mr Chequer was dragging a Toyota Tarago motor across the workshop floor to make it available to the “scrap metal man” when he sustained injury to his right knee. Mr Chequer said that he reported the injury to his knee to Mr Dean King.
The appellant employer had business premises at Brisbane Airport, at a location in Tweed Heads in New South Wales, and at Bilinga, a location in Queensland.
The appellant was insured for its workers compensation liability under the relevant Queensland legislation. Although the appellant had employees working in Tweed Heads, New South Wales, it did not have insurance under the New South Wales workers compensation legislation for those employees.
Mr Chequer’s claim was initially submitted to the Queensland workers compensation authorities and he was paid compensation pursuant to the Workers Compensation and Rehabilitation Act2003 (Qld) by the Queensland WorkCover Authority. The Queensland Workcover Authority subsequently ceased making payments and denied liability on the basis that pursuant to s 9AA of the Workers Compensation Act 1987 (NSW) (the 1987 Act), the injury was connected to New South Wales.
On 9 December 2019, the New South Wales insurer icare Workers Insurance wrote to Mr Chequer informing him that it would make payments under the New South Wales legislation from 9 December 2019.
At issue in the proceedings was whether Mr Chequer should be compensated under the New South Wales or the Queensland legislation. As the appellant was uninsured under the New South Wales legislation, the second respondent was joined to the proceedings and has presumably made payments to Mr Chequer pursuant to the award.
On 8 October 2020, the Arbitrator determined that Mr Chequer had “suffered injury to the right knee in the course of his employment with the [appellant] in the form of the aggravation, acceleration, exacerbation or deterioration of previously asymptomatic osteoarthritis disease including tear of the meniscus for the purposes of s 4(b)(ii) of the 1987 Act.”[1]
[1] Chequer v Finney Pty Ltd t/as Cut Price Car Rentals [2020] NSWWCC 355 (Reasons), [105].
The Arbitrator determined further that the medical evidence supported the conclusion that the employment of Mr Chequer by the appellant was the main contributing factor.[2]
[2] Reasons, [106].
The Arbitrator held that Mr Chequer was totally incapacitated and made an award in Mr Chequer’s favour from 18 November 2019 pursuant to sections 36 and 37 of the 1987 Act.
On 8 October 2020 the Workers Compensation Commission, pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (the 1998 Act), issued a Certificate of Determination in the following terms:
“The Commission determines:
1. The applicant’s employment was connected with New South Wales pursuant to s 9AA(3)(b); or alternatively pursuant to s 9AA(3)(b)(c) of the Workers Compensation Act 1987.
2. The applicant suffered injury in the course of the employment with the first respondent in the form of the aggravation, acceleration, exacerbation, or deterioration of a disease of the right knee; the employment with the respondent was the main contributing factor to the injury.
3. The second respondent is to pay to the applicant weekly compensation:
(a)from 18 November 2019 to 17 February 2020 at the rate of $970.27;
(b)from 18 February 2020 to 31 March 2020 at the rate of $817.07;
(c)from 1 April 2020 to date at the rate of $825.56, pursuant to sections 36 and 37 of the Workers Compensation Act 1987.
4. Such payments to continue in accordance with the Act.
5. The second respondent to pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts/receipts.”
GROUNDS OF APPEAL
On 5 November 2020, the appellant filed an appeal against the decision of the Arbitrator. The grounds of the appeal are:
“1. That the Arbitrator failed to:
1.1. make a finding in respect of the credit issues raised in the evidence of the Applicant Worker.
1.2. engage with the Appellant’s contentions and/or provide proper reasons when he did.
2. Pursuant to section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998, the Appellant submits that the Arbitrator made an error of factual finding and law by disregarding the evidence of the First Respondent’s witnesses in so far as that evidence relates to where the Applicant usually worked and for the purposes of his determination pursuant to Section 9AA(3)(a) Workers Compensation Act 1987.
3. Pursuant to section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998, the […] Appellant submits that the Arbitrator made an error of factual finding and law by disregarding the evidence of the First Respondent’s witnesses in so far as that evidence relates to where the Applicant Worker was usually based and for the purposes of his determination pursuant to Section 9AA(3)(b) Workers Compensation Act 1987.
4. Further and in the alternative, pursuant to section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998, the Appellant submits that the Arbitrator made an error of law by finding that the Applicant was entitled to weekly compensation benefits after 13 June 2020.”
There is no appeal from the injury finding.
PRELIMINARY MATTERS
Two preliminary matters should be noted at this point:
(a) the Certificate of Determination contains a typographical error in the reference to the subparagraphs of s 9AA(3). The Certificate refers to “s 9AA(3)(b); or alternatively pursuant to s 9AA(3)(b)(c) of the Workers Compensation Act 1987” whereas it was intended, as is apparent from the Arbitrator’s Statement of Reasons, to refer to ss 9AA(3)(a) and (b) in the place of s 9AA(3)(b) and s 9AA(3)(b)(c) where appearing in the Certificate of Determination. There is no dispute that the typographical error has occurred and should be corrected;
(b) the second respondent, the Workers Compensation Nominal Insurer, has indicated that it does not intend to make submissions on the appeal and has filed a submitting appearance. It initially filed a supplementary submission supporting the first respondent’s submission with respect to the issues raised by the direction of 14 April 2021 but subsequently it advised by email that it withdrew that submission and merely agreed to accept whatever determination the Personal Injury Commission might make.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
On 14 April 2021, I issued a direction for further submissions. Additional submissions have been received from each of the active parties to the appeal.
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me and the submissions (including those responding to the Direction of 14 April 2021) of the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in these circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The available relief provided for in s 352(7) is:
“(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7).”
The principles for an appeal under s 352(5) are well known and are set out in Raulston v Toll Pty Ltd.[3] These principles need not be set out at this time.
[3] [2011] NSWWCCPD 25; 10 DDCR 156, [19].
TRANSFER OF THE MATTER FROM WORKERS COMPENSATION COMMISSION TO THE PERSONAL INJURY COMMISSION
The appeal was initially lodged with the Workers Compensation Commission. The Workers Compensation Commission was abolished and replaced with the Personal Injury Commission by operation of the 2020 Act from 1 March 2021.[4]
[4] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The 2020 Act amended the 1998 Act such that the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
GROUND ONE – CREDIT OF THE APPLICANT WORKER
Ground One of the appeal asserts that the Arbitrator failed to:
(a) make a finding in respect of the credit issues raised in the evidence of the applicant worker, and
(b) engage with the appellant’s contentions and/or provide proper reasons when he did.
The Arbitrator preferred Mr Chequer’s evidence. The difficulty with the decision is not the preference for Mr Chequer’s evidence, but the reasons expressed for rejecting Mr King’s evidence.
For the reasons which follow, in my view Ground One of the appeal must be allowed because in making the credit based finding in favour of Mr Chequer, the Arbitrator failed to afford Mr King procedural fairness. The error was of such magnitude that the matter should be remitted for further hearing on the central issue by a different member.
The Arbitrator’s reasons for rejecting the evidence of Mr King
The evidence and submissions before the Arbitrator were entirely documentary. There were a large number of statements, together with documentary evidence.
Neither Mr Chequer nor Mr King, the appellant’s manager, gave oral evidence or were subjected to cross-examination.
No application was made by either party for oral evidence or for cross-examination pursuant to r 14.2 of the Workers Compensation Commission Rules 2011.
The Arbitrator provided a detailed summary of the evidence of Mr Chequer and Mr King, and a less detailed summary of the evidence of the other witnesses. He then addressed under the heading “Credit Issues” the evidence of Messrs Chequer and King in particular.
Under the heading dealing with “Connection with New South Wales”, the Arbitrator said this concerning Mr King’s evidence:
“I find Mr King’s evidence has changed over time to suit the issues in this application as to the jurisdictional issues; Mr Chequer’s statements are consistent throughout on the relevant factors on this issue; the statements taken and witnessed by Mr King from employees are vague on many points and have a quality of convenience and tailoring about them. There are similar gratuitous comments about Mr Chequer’s appearance and manner. Without specifics they seek to suggest Mr Chequer was rarely at the Tweed Heads ‘shed’.”[5]
[5] Reasons, [80].
Under the heading “Injury” the Arbitrator says this:
“Given I find Mr King not to be a witness of truth I prefer Mr Chequer’s account of events. His account is consistent and plausible, and where possible supported by objective evidence.”[6]
[6] Reasons, [95].
The Arbitrator had previously said:
“Mr King also mentions in his later statements a medical condition which affects his memory. This may explain the unreliability of his evidence overall, but it does not explain the exaggeration related to the issue of the state of connection and the time spent by Mr Chequer away from the shed each day.
I treat the statements for the first respondent taken and witnessed by Mr King with care given the circumstances of their creation and the lack of specifics. By comparison Mr Chequer addresses the factual elements directly.”[7]
[7] Reasons, [60]–[61].
Later the Arbitrator says, referring to the assertion that Mr Chequer worked at Brisbane:
“Given the complete lack of objective evidence including work records that should be available to the first respondent about Mr Chequer’s work at Brisbane, and Mr Chequer’s bank records which are consistent with his statements, I find the evidence of Mr King and the statements he took and witnessed on this aspect to be false and misleading.
This means the statements of Mr King and those taken and witnessed by Mr King that attest to a belief that Mr Chequer worked in Brisbane for the first respondent cannot be accepted on any issue without independent objective corroboration. Where the statements differ from those of Mr Chequer in the absence of objective support, I prefer Mr Chequer’s evidence.”[8]
[8] Reasons, [65]–[65].
The Arbitrator then deals with the alleged meetings at the Bilinga office on the “VML” (vehicle maintenance list) issue as follows:
“I note about this that Mr King says in his statement of 30 January 2020 that Mr Chequer could finish his work at any location, yet in his statement of 21 May 2020 Mr King says Mr Chequer was required to be at the Bilinga office for VML meetings of 60–90 minutes as his last task for the day, after which he went home. I find these two versions incompatible and consistent with the production of a false account to suit the insurance position of the first respondent.
Leaving aside the part of his statement which I find to be untrue regarding Mr Chequer working on cars at the Brisbane office, Mr Symons says he took over as head mechanic based at the Tweed Heads shed but says nothing about being required to attend long meetings with Mr King about the VML at the Bilinga office. In the absence of workplace documentation about the meetings there is nothing to substantiate why these meetings took so long or occurred at all. Mr Chequer’s account of the list being discussed with Mr King by phone or at the Tweed Heads workshop is more plausible.
It follows that I do not accept the witness evidence that Mr Chequer worked at Brisbane, or that he spent long periods of the mornings working on cars for sale at the Bilinga office, or that he spent the last 60-90 minutes at the end of each day with Mr King at Bilinga going over the VML before he left for home. This was not mentioned by Mr King in his statement of 30 January 2020, and there is a glaring lack of supporting documentation.”[9]
[9] Reasons, [67]–[69].
The findings with respect to the evidence of Mr King were trenchantly made, grave and of a very serious nature. The Arbitrator found Mr King to have given exaggerated, unreliable evidence that was at least in part untrue, and that he had attempted to influence the evidence for the purpose of (“consistent with”) achieving “a false account to suit the insurance position of the” appellant.
Additional submissions of the parties in response to Personal Injury Commission’s Directions made 14 April 2021
On 14 April 2021, I issued directions directing the parties to make further submissions with respect to the evidence of Mr King:
(a) as to whether the proceedings should be remitted for determination by another [Member] on the grounds that Mr King not having been cross-examined was denied procedural fairness;
(b) the operation of s 354 of the 1998 Act;
(c) the relevance, if any, of State of New South Wales v Hunt.[10]
[10] [2014] NSWCA 47; 86 NSWLR 226 (Hunt).
Pursuant to that direction each active party to the proceedings has filed additional submissions.
I have endeavoured to summarise the essentials of those submissions. In doing so I intend no disrespect to the detailed and helpful submissions provided by counsel for the appellant and the first respondent.
Appellant’s submissions
The appellant submits that the proceedings should be remitted for determination by another member on the grounds that Mr King, not having been cross-examined, was denied procedural fairness.
The appellant cites and refers to the decision of South Western Sydney Area Health Service v Edmonds[11] per McColl JA (Tobias and Giles JJA agreeing), paragraphs [65], [73]–[74], [91].
[11] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
Her Honour, having referred to what was said in Sue v Hill,[12] concluded s 354 of the 1998 Act required “the application of, the rules of procedural fairness.”
[12] [1999] HCA 30; 199 CLR 462.
The appellant asserts:
“That cross examination of Mr King did not occur, on its own, would not, in most circumstances, be the subject of a denial of procedural fairness, even if the Arbitrator concluded, contrary to Mr King’s evidence, that he preferred the evidence of the applicant. Where procedural fairness arises as a concept, is when the Arbitrator in his ‘decision directly affected both parties’ private rights’. The cases of State of New South Wales v Hunt [2014] 86 NSWLR 229, with reference to proceedings at common law, and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, with reference to proceedings in the Commission, are both directly on point, in answer to the Deputy President’s first direction.”[13]
[13] Appellant’s submissions, 19 April 2021, [13].
Having regard to those two cases, the appellant asserts:
“Accordingly, whether at common law or in the Commission, where there are submissions or a finding made as to seriously wrongful conduct of a party-witness or witness, that person ‘must have been given an opportunity to deal with the criticism.’”[14]
[14] Appellant’s submissions, 19 April 2021, [25].
The appellant sets out at paragraph [28] of its submissions the Arbitrator’s findings of serious wrongful conduct on the part of Mr King. Reference is made to the Reasons at paragraphs [61], [64], [67], [72], [80] and [95]. The appellant says of these paragraphs:
“Confining these determinations solely to Mr King, the findings of impropriety against him are substantial and include that Mr King has purposefully sworn false evidence and persuaded others to attest to false evidence - which he witnessed, to suit the insurance/jurisdictional issues in the matter.”[15]
[15] Appellant’s submissions, 19 April 2021, [29].
The appellant concludes:
“… once the Arbitrator formed a preliminary view, as he did, the arbitration should have been recalled so that Mr King could be ‘confronted with it’ – see Hunt [44].
In either instance, by not being cross examined and either given an opportunity to defend himself or to be confronted with the findings – before they were finally determined, Mr King was not afforded procedural fairness.”[16]
[16] Appellant’s submissions, 19 April 2021, [32]–[33].
First respondent’s submissions
The first respondent’s primary submission is:
“The First Respondent strongly disagrees that the matter should be remitted to another Arbitrator as the Appellant accepted the original Arbitrator’s decision to determine the matter on submissions and without cross examination. No apparent issue was raised with any alleged procedural unfairness in submissions in respect of the initial Arbitration, nor as part of the grounds of appeal. The Appellant says that the Arbitrator’s decision is sound in light of the number of statements by Mr King (some six in total) which gave him a very good opportunity to deal with issues relating to his credit.”[17]
[17] First respondent’s submissions, 27 April 2021, [1].
The first respondent says:
(a) At paragraph [2.8] that the case was set for formal hearing (that is with cross-examination) and the appellant made a forensic decision to accept having the matter determined by submissions without formal hearing or cross-examination.
(b) At paragraph [2.10]:
“The First Respondent accepts that there may be occasions where cross examination is appropriate but the principles of common law in Courts should not be directly related. The determination that there not be cross examination is within the Arbitrator’s discretion especially as this process was accepted and Mr King had made a number of different statements.”
(c) At paragraph [2.18] that this was not a case in which cross-examination was required or that the elements of Browne v Dunn[18] needed to be complied with. The remarks of Beazley JA in Hancock v East Coast Timber Products Pty Limited[19] should be distinguished on the basis that Her Honour was disapproving of submissions suggesting fraud in circumstances where there was no support for the allegation.
[18] (1893) 6 R 67 (Browne v Dunn).
[19] [2011] NSWCA 11 (Hancock).
(d) At paragraphs [2.13]–[2.14]:
“The First Respondent says that there was no substantial denial of procedural fairness and adopts the submission by the Appellant ‘That cross examination of Mr King did not occur, on its own, would not, in most circumstances, be the subject of a denial of procedural fairness, even if the Arbitrator concluded, contrary to Mr Kings evidence, that he preferred the evidence of the Applicant’ which obviously occurred. In a sense a finding about the nature of Mr King’s evidence was not going to affect his private rights in the same manner as the police officer in [Hunt] or Dr Summersell (who was not party) in the matter of [Hancock] (discussed below). There may be occasions for cross examination but merely dispensing with cross examination does not automatically mean that there has not been procedural unfairness.
In the case of the facts of the matter of [Hunt] were unusual. Firstly, the Officer had been cross examined but unusually some matters which would normally have been put to the officer, were not. Oddly, the parties both specifically took no issue as would be expected following [Browne v Dunn]. These proceedings were obviously being conducted in a Court and not in the Commission and there was no suggestion of limited cross examination. The officer’s credit was obviously a big issue - assumably he would have been before the court more regularly and a court would have been relying on him to provide evidence. Likewise, Dr Summersell may well have provided reports for various courts and again his credit and reliability would have been important in Hancock above. The First Respondent says that this situation is distinguishable.
…
It is accepted that there may be occasions where cross examination may be required. It is submitted that this is not one of them. It is ventured to submit that cross examination may be required, and further, the elements of Browne v Dunn complied with, more rigidly in Courts. It is worth noting that Deputy President Wood in Baines v Hany [2018] NSWWCCPD 14 noted the effect of West v Mead where Campbell J noted:
‘Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness’s account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness’ account is not challenged in cross examination.’
If a matter of credit had existed against Constable Oochs it would be very difficult to imagine that he would be able to carry out his duties. Nothing of the kind is submitted here.”[20]
[20] First respondent’s submissions, 27 April 2021, [2.13]–[2.19].
On the issue of whether or not the Arbitrator should have informed the parties of his potential findings adverse to Mr King, the first respondent says:
“This was not a case where the defects had not been properly drawn to the attention of the representatives and the Appellant did not have the opportunity to deal with them. Mr King had filed several statements. The number of inconsistencies could have led to a variety of concerns about the veracity of that evidence - and it is not necessary to have cross examination to deal with them. With respect the Appellant should have well known that those inferences could be drawn against Mr King.
…
It is not accepted that the Appellant or Mr King had no opportunity to respond. Indeed, if the Appellant thought that there was, it could have sought to have the matter relisted for further submissions in response rather than trying to await and appeal the issue. The Commission is not bound by the Rules of Evidence and could have perhaps even allowed for a re-opening of the case. It is submitted that the First Respondent should not be punished by a further hearing for forensic decisions made.”[21]
[21] First respondent’s submissions, 27 April 2021, [2.27]–[2.30].
At [4.9] the first respondent refers to its submissions to the Arbitrator, which included submissions with specific reference to Mr King’s credit and the weight to be accorded to his evidence. The submissions included the submission that on crucial matters, Mr King’s evidence was not credible and that “at best” his medical condition had caused Mr King to “misremember” some of the events.
The appellant concludes:
“No complaint is made about any procedural unfairness.
…
There should be no doubt that the Commission can, in appropriate cases determine cases without a formal hearing ... Obviously the concept of fairness is critical and is one that Arbitrator’s would consider.
Here the challenges to Mr King’s credit were very clear before the Arbitration hearing and a number of statements had been filed.
This huge proliferation (much more than usual) in the number of statements set it apart from a person who does not have the opportunity to deal with issues.
It is submitted that there was no procedural unfairness.
It is submitted that by inference from the materials and submissions there has been acquiescence to the process by [the] Appellant, and that as a consequence it is estopped from now complaining. This was a forensic decision.”[22]
[22] First respondent’s submissions, 27 April 2021, [4.15]–[4.21].
Consideration
The Arbitration was conducted under section 354 of the 1998 Act. The transitional provisions to the Personal Injury Commission Act 2020 provide that for the purpose of this appeal s 354 continues to apply even though the 1998 Act has been repealed. This is critical to the Arbitrator’s determination, as it is to my determination of the Appeal.[23]
[23] Schedule 1, Div 4A, Subdivision 2, cl 14C(3)(b).
It provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
…”
The Commission is obliged to afford the parties and witnesses procedural fairness:
“Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bondand Others [1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged ‘to observe the recognized standards of judicial fairness’ (Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bondand Others (at 366 – 367) per Deane J.”[24]
[24] Edmonds, [91], per McColl JA.
McColl JA’s decision was expressly agreed to by Tobias JA[25] and Giles JA who made some additional observations.[26]
[25] Edmonds, [11].
[26] Edmonds, [2].
The absence of cross examination is relevant but not determinative of whether procedural fairness has been achieved in the Workers Compensation Commission. In Aluminium Louvres & Ceilings Pty Limited v Zheng,[27] Bryson JA, in a decision agreed with by Handley JA and Bell J, said at [37]:
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
[27] [2006] NSWCA 34; 4 DDCR 358.
In New South Wales Police Force v Winter,[28] Campbell JA said this:
“Section 354 [of the 1998 Act] permits proceedings in the Workers Compensation Commission to be conducted with less formality and more truncated procedure than applies to litigation in a court. Nevertheless, an Arbitrator in the Workers Compensation Commission is subject to obligations of procedural fairness: [citations omitted].
However, s 354 influences the content of the obligations of procedural fairness in the Commission. In Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 at [20] Bryson JA (Handley JA and Bell J agreeing) said:
‘... when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.’”
[28] [2011] NSWCA 330; 10 DDCR 69, [77]–[78].
These decisions show:
(a) that in appropriate circumstances leave to cross-examine should be sought and obtained,
(b) section 354 required the Workers Compensation Commission to ensure that the parties are afforded procedural fairness and that the determination accords with good conscience.
What did procedural fairness require in the present matter?
For the reasons that follow, in my view, procedural fairness required:
(a) the findings of dishonesty, creating false and misleading evidence not be made until those allegations were put squarely to Mr King;
(b) the Arbitrator should have informed the parties that he had formed a preliminary view with respect to the evidence of Mr King;
(c) the Arbitrator should have re-convened the hearing;
(d) the parties should have been invited to make submissions as to what course the proceedings should then take in view of the articulated “preliminary view”, and
(e) the parties should have been permitted to make additional submissions addressing what findings should be made and as to the terms in which the findings should be made.
In Hunt, Leeming JA (with the agreement of Barrett JA and Tobias AJA) said this:
“In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67], a majority of the High Court (Heydon, Crennan and Bell JJ) considered a trial judge’s finding that a party-witness was reluctant to say what had happened. Their Honours said that it amounted to a conclusion that the witness was deliberately failing to comply with the duty to tell the whole truth: at [62]. Their Honours said that two conditions needed to be satisfied before such a criticism could be made by a judge in circumstances where it was crucial to the dismissal of the claim:
‘First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.’
Both those conditions were applicable to the present case. The finding of fabrication of the terms of the initial conversation and the threat amounted to something even more serious than the finding of reluctance in Kuhl. Rather than merely failing to comply with the duty to tell the whole truth, it was, expressly, a finding of conscious untruth. It was a finding capable of amounting to a conclusion of perjury, and with serious professional consequences for Senior Constable Ochs. The gravity of such a finding against a police officer cannot be overstated.”[29]
[29] Hunt, [32]–[33].
Later his Honour said:
“True it is that Kuhl concerned a party-witness, and it might be queried whether Senior Constable Ochs ought to be regarded as such for the purpose of the rule. Strictly, of course, he was merely a witness - albeit a witness whom the plaintiff had chosen not to sue as a defendant - and it was possible depending on the course taken by the trial that his interests might diverge from those of the State notwithstanding the admission of vicarious liability. But the position in terms of fairness remains the same whether he be a party-witness or merely a witness. In Bale v Mills [2011] NSWCA 22; 81 NSWLR 498 at [66]–[67], Allsop P, Giles JA and Tobias AJA said:
‘Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly …
Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence.’”[30]
[30] Hunt, [39].
In Hunt it was pointed out that at the trial, counsel had agreed and informed her Honour that neither was taking any Browne v Dunn points. Leeming JA said this:
“That agreement between the parties does not alter the position for two reasons. The first is that it is one thing to reject the recollection of a witness, and quite another to find that he or she was fabricating evidence. The second is that in any event, the parties cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness. (emphasis added)
That is sufficient to require the appeal to be allowed. It was unfair to Senior Constable Ochs, to be found to have fabricated evidence without that allegation having been squarely put to him. It was unfair to the State to lose on a basis which was not advanced in evidence or in submissions. And ultimately, it was unfair to Mr Hunt, as the disposition of this appeal indicates, for him to be denied the chance to submit to the primary judge that he should win on a basis which did not involve a finding of fabricating the initial conversation and threat, or that, if the judge had formed the preliminary view that there was fabrication, that the witness should be recalled so that he could be confronted with it.”[31]
[31] Hunt, [43]–[44].
The Arbitrator made findings that Mr King’s evidence was dishonest; that he gave a false account to suit the insurance position of the appellant; that he gave false and misleading evidence; that his evidence had changed over time to suit the jurisdictional issues; that he was not a witness of truth, and that he had participated in the creation of statements from witnesses that were false and misleading.
Mr King was not cross examined and necessarily he was not confronted with the proposed findings with respect to his evidence. He was not afforded an opportunity to provide an explanation or otherwise deal with the ultimate conclusions.
The appellant’s case relied heavily on Mr King’s evidence. The findings adverse to Mr King and the witnesses whose statements he witnessed were not raised with counsel for the parties. The appellant was thereby denied an opportunity of seeking to persuade the Arbitrator to another view with respect to the evidence of Mr King and those other witnesses. The first respondent was deprived of the opportunity of seeking to persuade the Arbitrator that he was entitled to succeed without such substantial findings affecting Mr King being made.
It is correct that the appellant does not in terms raise procedural fairness as a ground of the appeal. Furthermore, previously no complaint was advanced with respect to the particular findings adverse to Mr King’s evidence. However, Ground One of the appeal squarely raises the question of credit, albeit in the context of the first respondent’s evidence, nevertheless, it is inevitable that in considering the Arbitrator’s finding favourable to Mr Chequer’s credit it is necessary to consider the findings adverse to Mr King’s credit.
More significantly, the decision in Hunt makes clear (at [60] quoted above) that the parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness.” I do not believe the Personal Injury Commission is in any different position. In my view s 354(3) in requiring the Commission to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” means that it must afford the parties and the witnesses in the case procedural fairness whatever position the parties themselves may adopt.
I do not think that it makes any difference that the witness to whom procedural fairness has been denied is not a police officer, solicitor or medical referee.
The first respondent submits that he is in effect being punished if the matter is remitted. The disadvantage to the first respondent must be acknowledged. However:
(a) the respondent has received compensation payments to date;
(b) for the reasons given later, Ground Four of the appeal has been established. It follows that payments of weekly compensation should not be made after 13 June 2020;
(c) the determination of the Arbitrator does not satisfy the duty imposed on the Workers Compensation Commission by s 354(3). It follows that the parties have not received a fair trial and the Arbitrator has not determined the matter on its true merits, and
(d) the remittal proposed is limited to the issues arising under s 9AA. It is not intended to permit the appellant to agitate the issue of injury in the course of employment.
Contrary to the first respondent’s submissions at [2.18], [2.27], [2.30], this was not a case in which the need for cross examination was obviated by the extensive documentation and statements exchanged by the parties or the opportunity for explanation given could overcome the substantial unfairness to Mr King and the appellant. The approach submitted by the first respondent may suffice where the finding in respect of a witness’s evidence was that it could not be accepted for reasons of inconsistency, incoherence or the multitude of other factors upon which the tribunal might justifiably have refused to accept evidence.
The appellant is correct in its submission that the findings made by the Arbitrator against Mr King were substantial and included findings that Mr King had purposefully given false evidence and persuaded others to attest to false evidence which he witnessed to suit the insurance/jurisdictional issue in the matter.
Such findings are of such a serious character that in my view they should not have been made unless Mr King was confronted with the allegation(s) and, further, should not have been made without first inviting the parties to make submissions on whether such finding(s) were available and appropriate.
The arbitration failed to achieve procedural fairness in the credit-based finding. Ground One of the appeal has been made out. The matter should be remitted for re-determination by another member.
I deal with the remaining grounds of appeal.
GROUND TWO – SECTION 9AA(3) CONNECTION WITH NEW SOUTH WALES
The Arbitrator found this:
“When Mr Chequer worked from December 2016 to mid-January 2017, he worked at the Tweed Heads workshop. When re-employed from August 2017 Mr Chequer was in a different position as head mechanic but still usually worked at the Tweed Heads workshop. This is supported by Mr Chequer’s statements, which are consistent and Mr King’s statement of 30 January 2020, in which he said that Mr Chequer ‘normally’ began each day at the Tweed Heads ‘shed’. The statement of Mr Hinkley as to what Mr King said are consistent with this statement of Mr King. Mr Symons, although he adjusted his evidence in the further statement taken and witnessed by Mr King, nevertheless says Mr Chequer’s motor bike was ‘always’ at the shed. Mr Chequer was employed as chief mechanic for the first respondent and to sort out the Tweed Heads workshop equipment and safety; Mr West states that he saw Mr Chequer daily at the Tweed Heads workshop. There is no statement from Mr Robinson, the shed supervisor.
I am satisfied that Mr Chequer usually worked in New South Wales …
For these reasons I find that Mr Chequer usually worked in New South Wales and his employment was connected with New South Wales in terms of s 9AA(3)(a) of the 1987 Act.”[32]
[32] Reasons, [81]–[83].
Appellant’s submissions
The appellant submits that Mr Chequer’s evidence is consistent with Mr King’s evidence with respect to the location (that is Queensland and New South Wales) of where the applicant worker usually worked. The appellant submits, having regard to the evidence:
“Leaving aside Mr King’s evidence, it is the […] Appellant’s submission that the duties described by other witnesses for the […] Appellant, and the Applicant worker himself, made up the Applicant Worker's average working day where he performed that work in both Queensland and New South Wales.
It is the […] Appellant’s submission that on a correct assessment of the factual evidence, the Applicant Worker usually worked in both Queensland and New South Wales and accordingly Arbitrator Bell has erred in his fact finding that the Applicant Worker was usually employed in New South Wales when there was no such evidence to base that finding.
It is the […] Appellant’s submission that the Arbitrator should have found that the Applicant Worker usually worked in both Queensland and New South Wales and moved on to the second test in Section 9AA(3)(b) Workers Compensation Act 1987.”[33]
[33] Appellant’s submissions in respect of Ground Two, [11]–[13].
First respondent’s submissions
The first respondent says the appellant’s submissions on appeal merely repeat the submissions advance before and rejected by the Arbitrator. The first respondent rejects the submission that the Arbitrator failed to make findings as to the credit of the Respondent and the other witnesses directing attention to the reasons commencing at [59].
Mr Chequer submits that his evidence was consistent throughout, “it is obvious and logical” that for the most part he would perform his duties in the mechanics workshop referred to in the evidence as “the shed”. He points out:
“The Arbitrator was not critical of the Respondents evidence, no doubt because he has been consistent.”[34]
“The Applicant did not need to say much about his work at the shed. He was a mechanic and that has been admitted. It is submitted that it is obvious and logical that such duties would for the most part take place in the mechanics workshop (the ‘Shed’). In fact the Respondent hurt himself carrying out mechanical duties at the shed. The Respondent started and stopped work each day at the shed. In fact one of the statements produced by the Appellant actually says that his bike was always there [2RR 39]. There was no suggestion that Mr [Symons] did not work at the shed. The finding of fact by the Arbitrator was reasonable in the circumstances and was in accordance with the weight of evidence. However, this is all speculation and does not amount to any error.”[35]
“It is correct to note that the Plaintiff may have been working in both states at various times but it is not simply a mathematical exercise anyway.
The Appellant’s submission that the Respondent should have been found to work in both Queensland and not NSW is rejected. It is submitted that these questions are not simply a mathematical formulae and are really a matter of ‘fact and degree’.”[36]
[34] First respondent’s submissions, [26].
[35] First respondent’s submissions, [31].
[36] First respondent’s submissions, [35]–[36].
Consideration
In Martin v R J HibbensPty Ltd,[37] Roche DP said of the “usually works test”:
“‘usually works’ means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]). It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]), though the time worked in a particular location will naturally be relevant. It will also be relevant to look at where the worker is contracted to work (Falls). Regard must be had to the worker’s work history with the employer and the parties’ intentions, but ‘temporary arrangements’ for not longer than six months within a longer or indefinite period of employment are to be ignored.”
[37] [2010] NSWWCCPD 83; 8 DDCR 535 (Martin), [60(b)].
The Arbitrator accepted Mr Chequer’s evidence and, for the reasons he gave at Reasons [81]–[82], he found that Mr Chequer usually worked in New South Wales. The accepted evidence was that Mr Chequer was seen daily at the Tweed Heads workshop, his motor bike was always at the shed, Mr King initially said Mr Chequer normally began each day at Tweed Heads. Importantly there was no statement from the workshop manager Mr Robinson. I am not persuaded that the Arbitrator’s conclusion was wrong. I am not satisfied that there is evidence of an error on the part of the Arbitrator.
GROUND THREE – SECTION 9AA(3)(B) OF THE WORKERS COMPENSATION ACT 1987
The Arbitrator found in the alternative that if Mr Chequer did not usually work in New South Wales, he was “usually based in New South Wales”. The Arbitrator said this:
“Where a worker usually works and where they are usually based can coincide but do not always …
In Mr Chequer’s case, as discussed above, where he was usually based was the mechanical workshop at Tweed Heads. This was where he usually commenced and finished work, left his motor bike, performed most of his mechanical work, and from where he went into Queensland to service or bring back cars. It was not the Bilinga office, which did not have a workshop. I have already accepted Mr Chequer’s evidence that he did not attend regular meetings about the VML at Bilinga, or work for part of the time at Brisbane.
The test for the operation of this sub-section is where the worker is usually based must be for the purposes of the employment; it is about connecting an element of the employment to a state. Given the basis of Mr Chequer’s employment was as a mechanic and the mechanical workshop where he was based was in New South Wales. The evidence of Mr Chequer, Mr West, and Mr Symons supports this conclusion. I have dealt above with the credit of Mr King and the statements he witnessed.
Even if Mr Chequer had spent 2-3 days per fortnight at Brisbane, spent some time at Bilinga with the cars for sale, and had regular meetings at Bilinga with Mr King about the VML it would nevertheless have been open to find on the authorities that Mr Chequer usually worked and was usually based in New South Wales a the workshop. The nature of his work as head mechanic centred at the workshop at Tweed Heads, when there was no workshop at Bilinga is a key element, whereas the relative amount of time spent in each state is of lesser importance.”[38]
[38] Reasons, [85]–[88].
Appellant’s submissions
The appellant bases its submission in respect of s 9AA(3)(b) on Ferguson v WorkCover Queensland.[39]
[39] [2013] QSC 78 (Ferguson).
The appellant submits:
“The Applicant/worker was seen at the Bilinga Queensland Head Office ‘in the early morning’ by Jason Murphy in his Statement dated 14 July 2020 (First Respondent’s Application to Admit Late Documents dated 15 July 2020 - Page 8), Crystal Masters Statement dated 14 July 2020 (First Respondent’s Application to Admit Late Documents dated 15 July 2020 - page 14), Hayden McNeill Statement dated 11 July 2020 (First Respondent’s Application to Admit Late Documents dated 15 July 2020 - paragraph 13, page 17).”[40]
[40] Appellant’s submissions in respect of Ground Three, [4].
Further the appellant submits that Mr Chequer regularly attended upon the appellant’s Gold Coast/Bilinga premises to obtain instructions from Dean King not limited to the vehicle maintenance list and that, in accordance with the Queensland Supreme Court decision in Ferguson, the applicant worker was based in the State of Queensland where he received his daily instructions which were then passed on to mechanics and car detailers in the Tweed Heads depot/shed.
The appellant submits that the applicant worker was usually based in Queensland and accordingly Queensland is the State of connection for the purpose of s 9AA of the 1987 Act.
First respondent’s submissions
The first respondent submits that the appellant did not produce independent corroborative evidence such as work records or even a statement from the then Shed Manager to the effect that the respondent was based at Bilinga.
The first respondent furthermore submits that the statements relied upon by the appellant were all taken or witnessed by Mr King or were connected with the employment and were not independent. The first respondent criticises the reliance on the evidence of Mr Murphy relating to starting and finishing times and the respondent points to the evidence of Messrs Symons and West who said they saw Mr Chequer daily at the shed.
Consideration
In Martin, Roche DP said:
“In considering where a worker is ‘usually based’, regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker’s wages are paid …”.[41]
[41] Martin, [60(c)].
The Arbitrator made a finding of fact that in Mr Chequer’s case he usually commenced and finished work at Tweed Heads, he left his motorbike there, he performed most of his mechanical work there and it was from that place that he went to Queensland to service or bring back cars. The Arbitrator noted that the Bilinga office did not have a workshop. He accepted Mr Chequer’s evidence that he did not attend regular meetings about the VML at Bilinga and that he did not work part of the time at Brisbane.[42]
[42] Reasons, [86].
In my view the Arbitrator was entitled to find that Mr Chequer was usually based in New South Wales for the purpose of s 9AA(3)(b). The fact that there may be other evidence pointing to a different conclusion does not falsify the conclusion reached by the Arbitrator. There is no error of fact or law demonstrated. Ground Three of the appeal is dismissed.
GROUND FOUR – WEEKLY COMPENSATION BENEFITS AFTER 13 JUNE 2020
The Arbitrator found Mr Chequer to be totally incapacitated. He said:
“Despite the submissions of the first respondent, there is no apparent period involving dual payments in contravention of any relevant provisions if weekly compensation is awarded.”[43]
[43] Reasons, [109].
Appellant’s submissions
The appellant’s position is that the Arbitrator simply failed to address its submissions with respect to this issue.
It submits that:
(a) Mr Chequer received weekly compensation from Queensland WorkCover up until 18 November 2020 (sic, 2019) and was then paid weekly payments under the New South Wales scheme until 2 March 2020;
(b) the applicant’s whole person impairment is 5% and therefore the limit of his weekly compensation payments is a maximum of 130 weeks;
(c) as WorkCover Queensland paid compensation to Mr Chequer from the date of injury 13 December 2017 until 18 November 2019 and that from that date until 3 March 2020 icare (the NSW scheme) made payments, the first respondent’s entitlement during the first and second periods of 130 weeks concluded on 13 June 3020, and
(d) the weekly payments of compensation should be limited to the period 3 March 2020 to 13 June 2020.
First respondent’s submissions
The first respondent submits the claim is not overstated and there has been no duplication. However, he says:
“The contents of s 9AC of the [1987 Act] are noted. However, at this stage it is not known whether the respondent will be the subject of recovery proceedings in Queensland. The fact that payments were apparently wrongly made before being ceased should not preclude the Plaintiff from making a claim in the correct jurisdiction.
…
If it accepted that the Respondent does not exceed an impairment of 20% then he may well be limited to 130 weeks compensation unless he relies on s 38.
It is submitted that it not irrelevant to the Applicant’s entitlements as he has not claimed for any period where he has received compensation from another quarter.”[44]
[44] First respondent’s submissions, [52], [55]–[56].
Consideration
The Arbitrator did not provide adequate reasons with respect to this part of the appellant’s claim.
Section 9AC(1) of the 1987 Act provides:
“Compensation under this Act is not payable in respect of any matter to the extent that compensation has been received under the laws of a place other than this State.” (emphasis added)
Section 38(1) of the 1987 Act provides:
“A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.”
The second entitlement period is defined in s 32A of the 1987 Act as follows:
“second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.”
It is common ground that the worker is not entitled under s 38.
There does not seem to me any reason why if the worker received compensation under the Queensland system those payments should not be taken into account for the purpose of calculating the first and second entitlement periods.
Under s 9AC(1) compensation is not payable under the New South Wales legislation where compensation has been received by the worker “under the laws of a place other than this State”. It is plain that Mr Chequer has received compensation under the Queensland system and whilst he retains those compensation payments, in my view, s 9AC operates to preclude him obtaining payments beyond 13 June 2020 from the second respondent.
In my view, Ground Four of the appeal is made out and Mr Chequer’s entitlement to compensation payments ended on 13 June 2020.
CONCLUSION
The appellant has made out Grounds One and Four of the appeal. The decision of the Arbitrator must be set aside.
The appellant has not challenged the finding of injury and this finding in favour of Mr Chequer should not be disturbed. The award should be varied to end the entitlement to weekly payments on 13 June 2020.
The issue with respect to s 9AA must be remitted to be re-determined by a member other than the previous Arbitrator.
DECISION
The relief sought by the appellant are:
(a) The Arbitrator’s orders of the Certificate of Determination dated 8 October 2020 be revoked.
(b) A determination should be made that the claim is connected with Queensland and thereafter, in these proceedings awards should be entered in favour of the first and second respondents at first instance.
(c) Alternatively the matter should be remitted to another arbitrator for re-determination of the matter.
(d) Further alternatively the award of weekly compensation and/or medical expenses should be limited to the period up to 13 June 2020.
The appellant does not challenge Orders 2 or 3. The challenge to Order 5 is to confine the award to the period ending13 June 2020.
Notwithstanding that it is the second respondent that is required to make payments under the award I have no submissions from it as to the appropriate orders that should be made.
Orders 2 and 3 of the original Certificate of Determination should not be disturbed.
In my view an order for payment of s 60 expenses on production of accounts and receipts is no more than a statement of the requirements of the 1987 Act.
It follows that if the determination which is made is that the employment is connected to Queensland then Orders 4 and 5 should be revoked. If the determination is that the employment is connected to New South Wales then order 4 should be limited to 13 June 2020 but order 5 should be confirmed because it would be inappropriate to constrain in point of time the liability under s 60 of the 1987 Act.
The Certificate of Determination dated 8 October 2020 is revoked and the following determinations made in its place:
(a) Remit the matter to a different Member of the Personal Injury Commission to determine whether in accordance with s 9AA(1) of the Workers Compensation Act 1987 the first respondent’s employment is connected with New South Wales.
(b) Confirm determinations 2, and 3 of the Certificate of Determination dated 8 October 2020.
(c) In the event of a determination under s 9AA(1) that the first respondent’s employment is connected with New South Wales confirm order 5 of the Certificate of Determination and revoke determination 4 of the Certificate of Determination dated 8 October 2020 and determine that “Such payments to continue until 13 June 2020”.
(d) In the event of a determination that the first respondent’s employment is not connected with New South Wales revoke determinations 4 and 5 of the Certificate of Determination dated 8 October 2020.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
11 May 2021
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