Forstaff Pty Ltd v Kosta Trajcevski
[2002] NSWWCCPD 4
•9 October 2002
REFERRAL OF A QUESTION OF LAW
CITATION:Forstaff Pty Ltd v Kosta Trajcevski
[2002] NSWWCCPD 4
APPLICANT: Forstaff Pty Ltd
RESPONDENT: Kosta Trajcevski
INTERVENER: WorkCover NSW
INSURER:Allianz Australia Workers Compensation
FILE NO:WCC 783-2002
DATE OF DECISION: 9 October 2002
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
Acting President
QUESTION OF LAW: Whether Mr Trajcevski is estopped from having his application determined by the Commission because the Compensation Court has made a determination of the same matters?
HEARING: On the Papers
REPRESENTATION: Applicant:
In person
Respondent:
Goldberg Lawyers
Intervener:
WorkCover NSW
ORDERS MADE: Leave to refer the Question of Law is refused.
THE QUESTION OF LAW
On 3 September 2002 Allianz Australia Workers Compensation (‘the Respondent”) filed and served an ‘Application for Leave to Refer a Question of Law’ to the President of the Workers Compensation Commission (‘the Commission”). The matter was before an Arbitrator who sought leave to refer the following question of law for the opinion of the President:
Whether the Applicant Mr Kosta Trajcevski is estopped from having the above matter determined by the Workers Compensation Commission?
BACKGROUND TO THE APPLICATION
The original Application to Resolve a Dispute was filed in the Commission on 27 June 2002 by Kosta Trajcevski (‘the Applicant’) and served on the Respondent on 19 July 2002.
The Respondent, through its legal representative, filed a Reply to the Application for Dispute Resolution on 7 August 2002 and a Certificate of Service of the Reply on 12 August 2002.
The parties appeared before the Arbitrator at a telephone conference on 29 August 2002.
Mr Trajcevski has not been legally represented for the purpose of filing his application, appearing before the Arbitrator or responding to the application to refer the question of law to the President. The Commission file notes that an officer contacted the applicant by phone and explained a number of things to him including the nature of the proceedings, the procedures of the Commission and the fact that he was permitted to have legal representation if he wished to obtain it.
THE ISSUES REGARDING LEAVE
The referral of a question of law on a compensation claim filed in the Commission is governed by section 351 of the Workplace Injury Management and Workers Compensation Act 1998 as follows:
351Reference of Question of law on compensation claim to Commission constituted by Presidential Member
(1)A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President.
(2)The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.
(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
(4)If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.
(5)Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under the Act in relation to a matter.
(6)On the determination of a question referred to the Commission under this section:
(a)if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or
(b)if an award has been made in the matter in which the question arose, the award must be varied in such a way as will make it consistent with the opinion of the Commission on the question.
(7)The reference of a question of law under this section may be by stating a case on a question of law.
The application for leave was dealt with in accordance with the President’s Practice Direction 5A. The WorkCover Authority was advised of the aplication on 6 September 2002 and has advised that it does not seek to intervene in this matter.
The application for leave to refer the question of law was accompanied by a written submission. The Respondent’s solicitor advised the Commission by e-mail that “. . . implicit in the Application . . . is that the referral on the question of law involves a novel and complex issue of law”.
DISCUSSION
Despite the Respondent’s solicitor’s assertion, her submissions do not address the issue of whether the identified question of law is ‘novel or complex’. The submission filed on 3 September 2002 addresses the substantive issues in the dispute and asks that the original proceedings be dismissed. The Respondent’s submission sets out the “Reasons for Referral” as follows;
The Respondent makes this request on the basis that the Applicant brought proceedings seeking the same compensation in the Compensation Court of New South Wales by filing of an Amended Application for Determination in proceedings number 34896/99 dated 16 October 2000, . . . . . In the Application for Determination the Applicant alleged that as a result of his employment with the Respondent on 16 October 1997, whilst lifting/carrying boxes, he suffered infestation of skin, rash, dermatitis. The worker sought weekly payments of compensation in the order of $696.00 per week, plus section 60 expenses.
This matter proceeded to hearing before Judge Burke on 10 May 2002. On 13 May 2002, Judge Burke delivered Judgment. . . . Judge Burke found in favour of the two Respondents. . . . The Judgment and Award in proceedings number 34896 of 1999 dealt with exactly the same issues that the worker wishes to have determined by the Commission.
It is not necessary to delve into the substantive issues for the purpose of determining the issue of leave. For leave to be granted the question of law sought to be referred must be adjudged novel or complex.
DECISION
The question posed in this matter is not a ‘novel or complex’ question of law in the ordinary meaning of those words. As noted by the President in the matter of Sheridan v Clarke [2002] NSW WCC PD 3, questions of jurisdiction “. . . arise frequently in the ordinary course of dispute resolution by courts and tribunals. Jurisdiction cannot be conferred on a court or tribunal simply by agreement or disagreement between disputing parties - it requires the satisfaction, on the facts, of particular tests”.
In this matter the Applicant has filed a number of documents and has referred the Commission to the Compensation Court to obtain his ‘file’ in the matter that was before Judge Burke. A copy of the decision and reasons of Judge Burke in matter no 34896 of 1999 have been filed by the Respondent. It is a matter for the Arbitrator to hear from the Applicant as to the nature of the claim he now makes to the Commission. It is for the Arbitrator to then determine whether the claim made by the Applicant has already been the subject of a decision of the Compensation Court or whether his application to the Commission involves different matters.
The result of that determination of fact will lead as a matter of law, to a determination of whether the Commission has jurisdiction to hear the matter or whether any ‘estoppel’ applies.
This matter should proceed before the Arbitrator for the determination of the issue of jurisdiction and, if applicable, the determination of the substantive matters in the application. In accordance with directions made by the Arbitrator on 4 September 2002, the matter should be listed for determination of the preliminary ‘estoppel’ question within 14 days of the date of this decision.
COSTS
No order as to costs has been sought and it is appropriate that none be made.
Dr Gabriel Fleming
Acting President
I certify that this is a true and accurate record of the reasons for decision of Dr Gabriel Fleming, Acting President, Workers Compensation Commission
Registrar
Date: 9 October 2002
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