Finney Pty Limited t/as Cut Price Car Rentals v Chequer (No 2)
[2021] NSWPICPD 20
•11 May 2021
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |
| CITATION: | Finney Pty Limited t/as Cut Price Car Rentals v Chequer (No 2) [2021] NSWPICPD 20 |
| 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 |
| DATE OF RECONSIDERATION DECISION: | 8 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – section 350(3) of the Workplace Injury Management and Workers Compensation Act1998 |
| 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: | The decision of Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13 is amended pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 as follows: 1. At paragraph [51] delete the word “appellant” and replace with the words “first respondent”. 2. Paragraph [107] is amended to read: “The appellant does not challenge Order 2. The challenge to Orders 3 and 4 is to confine the award to the period ending 13 June 2020.” 3. Paragraph [109] is amended to read: “Order 2 of the original Certificate of Determination should not be disturbed.” 4. Paragraph [111] is amended to read: “It follows that if the determination which is made is that the employment is connected to Queensland then Orders 3, 4 and 5 should be revoked. If the determination is that the employment is connected to New South Wales then Order 3 should be limited to 13 June 2020, Order 4 should be revoked 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.” 5. Paragraph [112] is amended to read as follows: “The Certificate of Determination dated 8 October 2020 is revoked and the following determination is 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 Act1987 the first respondent’s employment is connected with New South Wales. (b) In the event that the first respondent’s employment is connected with New South Wales confirm determinations 2 and 3(a) and (b) of the Certificate of Determination and amend Order 3(c) to delete ‘to date’ and substitute ’13 June 2020’. (c) In the event that the first respondent’s employment is connected with New South Wales confirm Order 5 of the Certificate of Determination and revoke determination 4 dated 8 October 2020. (d) In the event that the first respondent’s employment is not connected with New South Wales revoke determinations 3, 4 and 5 of the Certificate of Determination.” |
INTRODUCTION
On 8 October 2020 an arbitrator of the Workers Compensation Commission made an award in favour of the first respondent against the appellant and the second respondent.[1]
[1] Chequer v Finney Pty Ltd t/as Cut Price Car Rentals [2020] NSWWCC 355.
On 28 May 2021 the Personal Injury Commission determined an appeal from the Arbitrator’s decision.[2]
[2] Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.
The determination of the appeal against the decision of the Arbitrator and the attached reasons for determination (Reasons) are alleged to contain errors. An issue arose as to whether Presidential members other than the President himself had jurisdiction to consider, and if required correct, the asserted errors.
On 29 June 2021 the President of the Personal Injury Commission convened a teleconference with the parties’ representatives to provide directions as to the matter’s further progress.
At the teleconference the President, with the concurrence of the parties, concluded that the matter was governed by clause 14B(4)(c) of Subdivision 2 of Division 4A of Part 2 of Schedule 1 to the Personal Injury Commission Act2020 (the 2020 Act) which provides as follows:
“(4) The following provisions apply to the completion of proceedings under this clause—
…
(c)the provisions of any Act, statutory rule or other law that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,”
Clause 14B(1) applies to permit the original decision maker to exercise the powers provided for under the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
Clause 14B(4)(c) operates so as to apply, as may be required, s 350 of the 1998 Act (which was repealed under the 2020 Act).
Section 350(3) of the 1998 provides:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The appeal determination and the Reasons have been referred back to me to consider and determine the parties’ submissions with respect to the asserted errors. I do so herewith by reference to the paragraph numbers appearing in the original appeal decision.
AS TO PARAGRAPH 51
The parties agree that the word “appellant” should be deleted and replaced with the words “first respondent”. I agree that that correction should be made. The Reasons should be amended accordingly.
AS TO PARAGRAPH 107
The existing paragraph reads:
“107. The appellant does not challenge Orders 2 or 3. The challenge to Order 5 is to confine the award to the period ending 13 June 2020.”
The appellant and the second respondent submit the paragraph should read:
“107. The appellant does not challenge Order 2. The challenge to Orders 3 and 4 is to confine the award to the period ending 13 June 2020.”
The first respondent submits the orders should reflect that there was no challenge to Order 2 but that the subject matter of Orders 3 and 4 was challenged and in this circumstance the slip rule cannot be used to effect the correction. (A further submission by the first respondent that only the President has jurisdiction (that is under s 57(2) of the 2020 Act) is, after the teleconference of 29 June 2021, presumably not now maintained.)
In my view paragraph [107] misstates the appellant’s position. The text proposed by the appellant states the correct position. Paragraph [107] contains an inconsistency which I correct pursuant to s 350(3) of the 1998 Act.
The Reasons should be amended and reissued with a revised paragraph [107] as follows:
“107. The appellant does not challenge Order 2. The challenge to Orders 3 and 4 is to confine the award to the period ending 13 June 2020.”
AS TO PARAGRAPH 109
The existing paragraph reads:
“109. Orders 2 and 3 of the original Certificate of Determination should not be disturbed.
The appellant submits the paragraph should read:
“109. Order 2 of the original Certificate of Determination should not be disturbed.”
The amendment is opposed by the first respondent because “the effect of the amendments proposed by the Appellant would be to make the same correction twice (at both [107] and [109])”.
The second respondent has made no submission with respect to paragraph [109].
In my view if the amendment is not made, paragraphs [107] and [109] are inconsistent. Paragraph [109] of the Reasons should be amended to read:
“109. Order 2 of the original Certificate of Determination should not be disturbed.”
AS TO PARAGRAPH 111
The existing paragraph reads:
“111. 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 appellant says that the paragraph should read as follows:
“111. It follows that if the determination which is made is that the employment is connected to Queensland then Orders 3, 4 and 5 should be revoked. If the determination is that the employment is connected to New South Wales then Order 3 should be limited to 13 June 2020, Order 4 should be revoked 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 appellant’s point is that if on the remittal it is determined that the employment is connected to Queensland, Orders 3, 4 and 5, are inappropriate because they respond to a circumstance in which the employment is connected to New South Wales.
The first respondent submits that these are not simply amendments to make the orders consistent. Grounds 2 and 3 of the appeal were dismissed. Positive findings were made and the amendments should not be made because they conflict with the tenor of the reasons of the determination.
The second respondent agrees with the appellant’s submission with respect to paragraph [111].
I agree with the appellant and the second respondent.
I do not think that the amendment to paragraph [111] is amenable to any slip rule. However, it was not my intention nor did I have any jurisdiction to inadvertently order the second respondent to make payments under the Queensland legislation. Pursuant to s 350(3) of the 1998 Act I reconsider the contents of paragraph [111].
Paragraph [111] of the Reasons is amended as follows:
“111. It follows that if the determination which is made is that the employment is connected to Queensland then Orders 3, 4 and 5 should be revoked. If the determination is that the employment is connected to New South Wales then Order 3(c) should be limited to 13 June 2020, Order 4 should be revoked 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.”
AS TO PARAGRAPH 112
The existing paragraph reads:
“112. 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.”
The appellant says the paragraph should be amended as to (b) as follows:
“(b) Confirm determination 2 of the Certificate of Determination dated 8 October 2020.”
And as to (c) and (d) as follows:
“(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, revoke determination 4 of the Certificate of Determination dated 8 October 2020 and confirm Order 3 on the basis that Order 3(c) should read 1 April 2020 to 13 June 2020 at the rate of $825.56 pursuant to ss 36 and 37 of the Workers Compensation Act 1987.
(d) In the event of a determination that the first respondent’s employment is not connected with New South Wales revoke determinations 3, 4 and 5 of the Certificate of Determination dated 8 October 2020.”
The first respondent says:
“This is a summary of the reasons and is not consistent with the ‘Orders made on Appeal’ as in subparagraph (b). Without criticism, the amendments proposed are not consistent with the body of the orders. ‘Obvious errors’ should only be corrected by the President unless that power has been delegated. In any event these are not obvious errors.”
The second respondent says the orders should be as follows:
“(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 Act1987 the first respondent’s employment is connected with New South Wales.
(b) Confirm determinations 2 and 3(a) and (b) of the Certificate of Determination and delete ‘to date’ from order 3(c) and substitute ‘13 June 2020’.
(c) In the event that the first respondent’s employment is connected with New South Wales confirm Order 5 of the Certificate of Determination and revoke determination 4 dated 8 October 2020 and determine such payments to continue to 13 June 2020.
(d) In the event that the first respondent’s employment is not connected with New South Wales revoke determination 3, 4 and 5 of the Certificate of Determination.”
I substantially agree with the orders proposed by the second respondent. However if the amendment in (b) to Order 3(c) is made it seems to me that Order 4 becomes otiose and should be deleted altogether.
In my view paragraph [112] should be amended to read as follows:
“112. The Certificate of Determination dated 8 October 2020 is revoked and the following determination is 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 Act1987 the first respondent’s employment is connected with New South Wales.
(b)In the event that the first respondent’s employment is connected with New South Wales confirm determinations 2 and 3(a) and (b) of the Certificate of Determination and amend Order 3(c) to delete ‘to date’ and substitute ’13 June 2020’.
(c)In the event that the first respondent’s employment is connected with New South Wales confirm Order 5 of the Certificate of Determination and revoke determination 4 dated 8 October 2020.
(d)In the event that the first respondent’s employment is not connected with New South Wales revoke determinations 3, 4 and 5 of the Certificate of Determination.”
Pursuant to clause 14B(4)(c) of Subdivision 2 of Division 4A of Part 2 of Schedule 1 to the 2020 Act I apply s 350(3) of the Workplace Injury Management and Workers Compensation Act1998. I make the amendments to the appeal determination and Reasons indicated above.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
8 July 2021
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