Freeth v Volvo Group Australia Pty Ltd
[2025] NSWPICPD 78
•5 November 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Freeth v Volvo Group Australia Pty Ltd [2025] NSWPICPD 78 |
APPELLANT: | Jayne Freeth |
RESPONDENT: | Volvo Group Australia Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W28517/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 5 November 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 16 April 2025 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – operation of s 46 of the Workers Compensation Act 1987 – House v the King [1936] HCA 40; 55 CLR 499 considered and applied – Member not in error by exercising discretion under s 46 to prevent dual benefits of the same kind – separate injuries with different incapacities not germane to the exercise of the discretion under s 46 of the 1987 Act – consideration of requirement to give notice of a dispute under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B McManamey, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL: | Freeth v Volvo Group Australia Pty Ltd [2025] NSWPIC 153 |
MEMBER: | Ms R Homan |
DATE OF MEMBER’S DECISION: | 16 April 2025 |
INTRODUCTION AND BACKGROUND
Jayne Freeth (the appellant) was employed by Volvo Group Australia Pty Ltd (the respondent) as a store person. On 31 August 2021[1] the appellant sustained a physical injury to her bilateral shoulders and elbows for which she received and continues to receive compensation.
[1] Date of injury recorded in the certificates of capacity, Application to Lodge Additional Documents dated 19 March 2025.
The appellant subsequently made a claim for a primary psychological injury sustained during the course of her employment between 2017 to 20 August 2024, the date her employment was terminated.
The respondent issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 September 2024 disputing that the appellant had sustained a primary psychological injury for the purposes of s 4 of the 1987 Act and raised a defence pursuant to s 11A(1) of the 1987 Act that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer and/or dismissal. The respondent also disputed that the appellant was totally or partially incapacitated for work as a result of the injury.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) on 8 November 2024 claiming weekly benefits and medical expenses.[2] The matter was listed for conciliation conference and arbitration hearing on 21 February 2025. During the conciliation conference the parties reached agreement on the majority of the issues in dispute. The respondent conceded that the appellant had sustained a primary psychological injury deemed to have occurred on 20 August 2024 and that a defence pursuant to s 11A(1) of the 1987 Act did not arise. The parties agreed that the appellant had no capacity to work from 20 August 2024 and continuing, and the appellant’s pre-injury average weekly earnings (PIAWE) as at 20 August 2024 were $1,410 subject to periodic indexation. The parties were, however, unable to reach an agreement with respect to the quantification of the appellant’s entitlement to weekly compensation.
[2] Application to Resolve a Dispute (ARD).
The appellant believed she was entitled to receive the full amount of weekly compensation pursuant to ss 36 and 37 of the 1987 Act on the basis of having no work capacity, notwithstanding having already received weekly compensation during the same period in respect of a physical injury.
The respondent believed that weekly compensation for the primary psychological injury should be reduced to prevent dual benefits of the same kind being paid, noting the Commission has the discretion to make such order pursuant to s 46 of the 1987 Act.
The appellant raised two objections, firstly that the respondent could not rely on s 46 of the 1987 Act given it had not been notified as a dispute in the section 78 notice prior to the commencement of the proceedings, and, if it wished to rely on that provision, it needed to make an application for leave pursuant to s 289A(4) of the 1998 Act. Secondly, that the Application to Lodge Additional Documents (ALAD) lodged by the respondent on 18 February 2025 should not be admitted. The ALAD contained amongst other things, certificates of capacity relating to the appellant’s physical injury.
In a Direction dated 21 February 2025 the Member granted leave to the respondent pursuant to s 289A (4) of the 1998 Act to have a dispute heard as to whether the Commission can and ought to make an order pursuant to s 46 of the 1987 Act. The Member determined that the documents lodged by the respondent by way of ALAD be admitted. The conciliation conference and arbitration hearing was adjourned until 26 March 2025 to hear the remaining issues in dispute.
After a further conciliation conference and arbitration hearing on 26 March 2025, the Member issued a written determination on 16 April 2025 making an order reducing the amount of compensation pursuant to s 46 of the 1987 Act by amounts already paid by the respondent in respect of the physical injury. It is from that decision the appellant now appeals.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to 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 the 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 MEMBER’S REASONS
The Member identified the issues in dispute between the parties. The Member noted that neither party applied to adduce oral evidence or cross-examine any witness.
The Member summarised the respondent’s submissions.[3] It submitted that the appellant’s entitlement to weekly compensation in respect of the primary psychological injury ought to be reduced given the provisions of s 46 of the 1987 Act, noting that for the period claimed, the appellant was already in receipt of ongoing weekly payments for an incapacity to work from an accepted physical injury.
[3] Freeth v Volvo Group Australia Pty Ltd [2025] NSWPIC 153 (reasons), [24]–[30].
The respondent submitted that total incapacity, whether it be a physical or psychological injury, had the same result, an inability to work. The respondent referred the Member to its list of payments which identified payments already made to the appellant for a physical injury, during the relevant period based on an incapacity for work.
The respondent referred to Purkiss v Secretary, Department of Education[4] and submitted that the circumstances of the case are similar and that the order made ought to be the same. The respondent said the Commission should find it appropriate to exercise its discretion to prevent dual benefits in the form of weekly payments, and unless it did so, the appellant would be in receipt of double compensation. The respondent noted this approach was consistent with Cordina Chicken Farms Pty Ltd v Thoa Hong Le.[5] The respondent referred to the wording of the legislation noting the purpose was clearly to prevent dual benefits being paid.
[4] [2022] NSWPIC 269.
[5] [2008] NSWWCCPD 125 (Cordina).
The Member summarised the appellant’s submissions.[6] The appellant referred to s 46 of the 1987 Act and noted the critical question is the interpretation of the expression “in respect of the incapacity concerned”. The appellant referred to Sydney City Council v Ince[7] and submitted that it was well-established that there could be separate awards for compensation where separate injuries resulted in separate incapacities.
[6] Reasons, [31]–[47].
[7] (1989) 16 NSWLR 690.
The appellant submitted that Cordina could be distinguished as the case involved two injuries creating the one incapacity unlike the current circumstances, where the two injuries incapacitated the appellant in two different ways and did not affect the same aspects of work.
The Member noted it was accepted that the appellant had no work capacity because of the primary psychological injury since 20 August 2024 and the agreed PIAWE figure was $1,410 as at the date of injury.[8] Given these concessions, the Member was satisfied that the appellant was entitled to weekly compensation pursuant to ss 36 and 37 of the 1987 Act.[9]
[8] Reasons, [51]–[52].
[9] Reasons, [53]–[54].
The Member referred to the respondent’s list of payments and certificates of capacity and was further satisfied that the appellant had already been paid weekly compensation for the same period in respect of a physical injury. The Member accepted that these payments were made on the basis that the appellant had no current work capacity.[10]
[10] Reasons, [55].
The Member referred to the appellant’s submissions that there was no legislative basis for reducing the award of weekly compensation payable for the appellant’s psychological injury by offsetting payments made in relation to the physical injury.
The Member then referred to the respondent’s submissions that s 46 of the 1987 Act provides the Commission with a discretion to order a reduction in weekly compensation for the psychological injury.[11]
[11] Reasons, [57].
The Member set out s 46 of the 1987 Act. The Member referred to Roads & Traffic Authority of New South Wales v Smith[12] noting that it was a case that considered the effect of s 46 of the 1987 Act.
[12] [2007] NSWWCCPD 134.
The Member referred to Workers’ Compensation Dust Diseases Board of NSW v Cook[13] quoting remarks made by Basten JA on the operation of s 46 where a worker was not entitled to benefits under the Workers’ Compensation (Dust Diseases) Act 1942 for his dust disease in light of his previous recovery of common law damages.
[13] [2015] NSWCA 270 (Cook).
The Member said it was clear the appellant was “entitled to benefits of the same kind, being weekly compensation under Division 2 of the 1987 Act, in respect of two injuries” and that both benefits were payable by the respondent during “the period of incapacity which is the subject of the current proceedings.”[14]
[14] Reasons, [62].
The Member noted the remaining question in dispute was whether the benefits payable are “in respect of the incapacity for work.”[15] The Member referred to the appellant’s submission that the incapacity for work resulting from her physical injury is distinct from the incapacity to work resulting from her psychological injury.
[15] Reasons, [63].
The Member said:
“I accept that the incapacity resulting from both injuries flows from different symptoms and restrictions. The physical injury affects the [appellant’s] ability to use her upper limbs for work. The injury which is the subject of these proceedings affects the [appellant’s] psychological ability to engage in work.”[16]
[16] Reasons, [65].
The Member quoted from the decision in Cordina and said:
“The evidence in this case indicates that while the symptoms and restrictions resulting from each injury are different, they have, at all relevant times, affected the [appellant’s] capacity for work in the same way. That is, they have rendered her unable to work in her pre-injury employment or in any other suitable employment. I am satisfied that the incapacity resulting from both injuries has, at all relevant times, been the same.[17]
[17] Reasons, [68].
The Member was thus satisfied that there was a discretion available under s 46 of the 1987 Act.[18]
[18] Reasons, [69].
The Member considered the various provisions under the 1987 Act which operate to prevent double recovery, including ss 50, 151Z and Division 8. The Member said that if the discretion under s 46 is not exercised, the amount of compensation the appellant would receive by way of weekly compensation would far exceed the amount she would have earned had she remained uninjured.[19]
[19] Reasons, [71]–[72].
Having found that there was a discretion under s 46 of the 1987 Act, the Member turned her attention to the extent that the amount of weekly compensation should be reduced. The Member referred to the appellant’s submissions that any reduction should be an amount that would leave 100% of PIAWE to allow the [appellant] to be properly compensated for the entirety of her losses. The Member said that while such approach is generally consistent with the approach taken in Alcan Australia Ltd v Jordan[20] which was based on the now repealed s 40 of the 1987 Act, the scheme in the present case is substantially different, noting that ss 36, 37 and 38 allow for a PIAWE of 95% or 80% depending on the entitlement period, which is then reduced based on the worker’s weekly earnings during periods where there is a capacity to work in suitable employment.[21]
[20] [1995] NSWCA 12 (Alcan).
[21] Reasons, [74]–[76].
The Member was ultimately satisfied that the weekly compensation awarded to the appellant in respect of the psychological injury should be reduced by the amount already paid in respect of the physical injury.[22]
[22] Reasons, [77]–[78].
Finally, the Member addressed her oral decision during the first arbitration hearing that the Commission had jurisdiction to consider s 46 of the 1987 Act despite it not having been raised in the respondent’s dispute notice issued pursuant to s 78 of the 1998 Act. The Member confirmed her view that s 78 did not require notice to be given of all decisions made by the insurer, and as s 46 concerned a discretion that was only exercisable by the Commission after the commencement of certain proceedings, it was not required to be raised in the s 78 notice.
The Member referred to the appellant’s jurisdictional question as to whether there was any dispute to be heard in the proceedings, given that during conciliation the parties had agreed to all aspects of the dispute, except the quantification of the appellant’s entitlement to weekly compensation.
The Member was of the view that the Commission had the power to make the relevant order. The Member said the insurer had disputed liability for the psychological injury in accordance with s 78 of the 1998 Act at the commencement of the proceedings and the dispute was then referred to the Commission pursuant to s 289 of the 1998 Act. The Member said that despite the respondent making several concessions at the conciliation conference on 21 February 2025, it was the referral of the dispute to the Commission which enlivened the Commission’s jurisdiction. The Member said “… the exercise of the discretion in s 46 of the 1987 [Act] was then a matter in respect of which both parties were entitled to be heard.”[23]
[23] Reasons, [79]–[82].
The Certificate of Determination issued on 16 April 2025 records:
“1. Subject to Order 3 below, the respondent to pay the [appellant] weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 on the basis of the agreed pre-injury average weekly earnings figure of $1,410, as periodically indexed, for 13 weeks from 20 August 2024.
2. Subject to Order 3 below, after 13 weeks, the respondent to pay the [appellant] weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 on the basis of the agreed pre-injury average weekly earnings figure of $1,410, as periodically indexed, to date and continuing.
3. Pursuant to s 46 of the Workers Compensation Act 1987, the weekly compensation payable by the respondent to the [appellant] pursuant to ss 36(1) and 37(1) above is reduced by the amount already paid by the respondent … in respect of her physical injury on 31 August 2021 …”.
GROUNDS OF APPEAL
The appellant pursues four grounds of appeal. They are expressed in the following terms:
Ground One - The Member erred in fact and law when she applied s 46 to reduce the appellant’s entitlement to ongoing weekly compensation.
Ground Two - The Member erred in law when she considered that the incapacity resulting from the physical injury was the same incapacity resulting from the subject injury because they were both no current work capacity where she found that the restrictions resulting from each injury were different.
Ground Three - The Member erred in law when she found that s 46 did not authorise a deduction in weekly compensation so that the total of the two awards for compensation was equal to pre-injury average weekly earnings.
Ground Four - The Member erred in law when she found that a dispute about s 46 did not need to be notified in a s 78 notice.
APPROACH TO APPEALS POST-CULHANA
On 17 July 2025, a five member bench of the Court of Appeal delivered its decision in State of New South Wales v Culhana.[24] Culhana considered the nature of an appeal to a Presidential Member of the Commission under s 352(5) of the 1998 Act, disapproving what had been the leading authority of Raulston v Toll Pty Ltd.[25] The Court of Appeal rejected what it considered was the ‘narrow’ view of the appellate function under s 352(5) of the 1998 Act that Raulston had applied, instead framing the obligation of a Presidential Member in the following terms:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential Member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”[26]
[24] [2025] NSWCA 157 (Culhana).
[25] [2011] NSWWCCPD 25 (Raulston).
[26] Culhana, [91].
Both parties in this matter were invited to make submissions based on the relatively new authority of Culhana, given that this appeal was filed before the decision in Culhana was delivered. I will describe those submissions below.
I would remark that as no viva voce evidence was given in this matter, the advantages that a first instance decision maker would have are somewhat limited in this appeal. This is a relatively common occurrence in the Commission when first instance matters are heard. There is no right for such evidence to be given, rather leave must be sought and obtained.[27]
[27] Rule 34 of the PIC Rules 2021; Procedural Direction PIC 1, [38].
LEGISLATION
Section 46 of the 1987 Act provides:
“46 Reduction of weekly payments to prevent dual benefits (cf former s 13)
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2) Any such order shall have effect according to its tenor.
(3) This section does not affect the operation of section 49 or 50.”
Sections 78 and 79 of the 1998 Act outline the notice requirements on insurers. Relevantly:
“78 Insurer to give notice of decisions
(1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
…
79 How notice of decision is given
(1) A notice required by this Division must be given—
(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
…”
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
DISCUSSION
As to Ground One
The appellant submits the following:
“13. It is well established that a worker can be entitled to more than one award of compensation where he or she has suffered more than one injury which results in a different incapacity.
14. The cases that establish this principle all focus on the restrictions that flow from the separate injuries. Thus in [Alcan] there were two awards because the incapacities related to different body systems. In [Cordina] the opposite conclusion was reached because the two injuries caused the same restrictions.
15. The authorities do not support the proposition that the incapacity is to be identified by the extent of the incapacity. In this case there are separate restrictions as found by the Member such that section 46 does not apply.”
The appellant concludes by stating that it is doubtful that s 46 applies to cases where there are two injuries, citing Miller v CSR Timber Products Pty Ltd.[28]
[28] (1993) 29 NSWLR 611.
In reply, the respondent says s 46 of the 1987 Act is specifically directed to the circumstances present in this case. The respondent relies on the Presidential authority (from the former Workers Compensation Commission) of Cordina and the Member’s application of that decision as representing the correct approach. The respondent submitted:
“19. The appellant asserts at [15] that the authorities do not support the proposition that the incapacity referred to in section 46 would not be determined by the extent of the incapacity. But incapacity is not a complex concept. It denotes in this context the absence of the ability to work.
20. The [M]ember carefully and correctly at [71] and [72] considered the objectives of the 1987 Act, to provide compensation in accordance with its provisions, and not to produce an improper outcome, again correctly identified at [72]. While the [M]ember’s consideration of these objectives was in the context of the question as to whether she should or should not exercise her discretion, her observations are equally relevant to the anterior question as to whether the discretion exists.”
The respondent says no error is established.
In supplementary submissions directed to the application of Culhana to this matter, the appellant stated the following, having referenced my decision in Ferguson v Connemara Jack Pty Ltd:[29]
“In this case the challenge in grounds 1 and 2 is that the Member erred by asking the wrong question with respect to what is ‘the incapacity for work’ within the meaning of section 46. The Appellant’s contention is that in the circumstances where there can be 2 separate awards for incapacities resulting from separate injuries section 46 has no role to play. That is because the two awards are for different incapacities. This arises where the injuries result in different restrictions for work. The error made by the Member was that she considered that the incapacity was the same because each was sufficient to establish no current work capacity. The error was that she thought that the test was whether both incapacities were incapacities for work. This ignores the fact that all incapacities are by definition incapacities for work.”[30]
[29] [2025] NSWPICPD 55, [49].
[30] Appellant’s supplementary submissions 19 August 2025, [16].
The respondent in its supplementary submissions argues the following:
“2.2 In relation to paragraph 16 of the appellant’s supplementary submissions, the respondent denies that Member Homan made an error of law or fact. Contrary to what is suggested by the appellant, Member Homan was required to exercise the discretion prescribed under section 46(1) of the [1987 Act] to make orders which prevented the payment of dual benefits of the same kind being payable by the respondent during and in respect of the incapacity for work.
2.3 The appellant’s contention that there can be two separate awards for incapacities arising from separate injuries is misplaced; and more so when two separate injuries are said to both result in total incapacity for the applicant to perform work. Deputy President Bill Roche noted in [Cordina] at [60]:
‘The determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to work or to look for work. It will be a question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities.’
2.4 Roche DP continued, at [61]:
‘Applying the above principles to Ms Le’s case requires the following questions to be answered:
(a) has Ms Le received one injury or two;
(b) has she sustained one incapacity, or two separate and distinct incapacities, and
(c) what is the appropriate compensation payable.’
…
2.8 The respondent submits that the effect of Culhana on the present case is that the Presidential Member reviewing Member Homan’s decision ought to be satisfied that on his or her own review of the available evidence, that it was not only open to Member Homan to find that the incapacity arising from both the appellant’s injuries was the same, but that the evidence makes it plain that the appellant was certified as having total incapacity for work as a result of both her physical injury and her psychological injury during the same period during which the appellant has already been in receipt of the payment of weekly benefits at a maximum assessment under and pursuant to sections 36, 37, and 38 of the 1987 Act.
2.9 The respondent says the evidence does not support a finding that there are different incapacities for work resulting from the appellant’s injuries.”
Consideration
There are a number of matters that are not in dispute. The first is that the appellant suffers from both physical and psychiatric injuries, both of which incapacitate her for work. Both were suffered while working for the respondent. Secondly, the benefits claimed by the appellant in respect of both injuries are the same, namely weekly compensation payments from the respondent. Thirdly, there was no contest that the appellant had suffered a physical injury on 31 August 2021 for which she was paid and continued to be in receipt of weekly payments of compensation. Fourthly, that the power in s 46 of the 1987 Act is discretionary.
For the following reasons, I do not accept the appellant’s arguments in this ground.
(a) Unlike the situation confronting the Court of Appeal in Cook, in this case the benefits claimed by the appellant are “of the same kind” and are payable by the respondent employer. That is, the appellant claims weekly compensation against the respondent employer under the 1987 Act for both injuries.
(b) Contrary to the appellant’s submission that s 46 does not apply in this circumstance, the whole point of s 46 of the 1987 Act is to vest the Commission with a discretion to prevent the payment of dual benefits. The fact that the appellant has separate injuries with different incapacities is not to the point. Section 46 does not make this distinction nor require the Commission to make this distinction.
(c) The section directs attention to dual benefits “in respect of the incapacity for work”. It does not direct attention to an enquiry about respective incapacities. In my view, the situation presenting itself in this case is precisely the type of circumstance that is contemplated by s 46 of the 1987 Act. I do not accept the appellant’s contention that the Member misdirected herself or asked the wrong question in considering incapacity for work. It was a relevant consideration and was the right question to posit under s 46. There is no House v The King[31] type error in this approach.
(d) I would also make the following remark. The appellant makes much of the assertion that she has suffered different injuries and thus different incapacities. The appellant’s statement appears at pages 1–3 of the ARD. The statement describes the problems which created the appellant’s psychiatric injury. The appellant states at paragraph [22], “I believe my physical injuries occurred due to how much pressure I was under to increase my line per hour.” In terms of the statement, the appellant does not give any evidence about the different restrictions she is said to suffer as a result of the two injuries. Indeed the whole tenor of the statement is to attribute the bullying type behaviour, which caused the psychiatric injury, as being causative or related to the physical injury. I note that the medical evidence quite naturally deals with the respective injuries, the appellant does not. Reading the appellant’s statement leads one to a conclusion that the incapacity is a single incapacity for work. This statement does not sit well with what has been submitted in this ground by the appellant.
(e) The appellant complains that she suffers from different restrictions, physical and psychiatric, and as such s 46 does not apply.[32] This submission ignores the words of s 46 which refers to incapacity for work. This submission attempts, without warrant, to read other matters, namely different restrictions arising from different injuries, into a consideration of s 46. This is wrong in principle.
[31] [1936] HCA 40; 55 CLR 499 (House v King).
[32] Appellant’s submissions 14 May 2025, [15].
The Member was not in error by exercising the s 46 discretion. The various pre-requisites for exercising the discretion were all established. No error has been established.
Ground One is dismissed.
As to Ground Two
Both parties in their submissions in chief rely on their submissions with respect to Ground One to substantiate their arguments in Ground Two. Both address Ground Two in their supplementary submissions. I will not repeat the submissions as they are relevantly set out under Ground One.
Consideration
For the same reasons that Ground One has been rejected, this ground too must fail. The fact that the restrictions suffered by the appellant were different is not germane to the exercise of the discretion under s 46 of the 1987 Act.
Ground Two is dismissed.
As to Ground Three
The appellant argues the following discrete point:
“Section 46 provides for a discretion to reduce payments to prevent double compensation. The section does not prescribe how the discretion is to be exercised. In Alcan the equivalent discretion in section 40 was exercised to reduce the combination of the payments to pre-injury earnings. There is no warrant for restricting the discretion in the way that the [M]ember did at paragraphs 76 and 77. The question is not what constitutes the compensation payable for a single injury but rather what would constitute over compensation for a person with two injuries. The starting point under the Act is that the Appellant was entitled to a payment of 80% of pre-injury earnings in respect of each injury.”[33]
[33] Appellant’s submissions 14 May 2025, [18].
In response the respondent submits:
“The [M]ember dealt with this proposition, it is submitted correctly, in her reasons at [77] ... The Act provides a statutory scheme for benefits. The extent of those benefits is explicit in this scheme. Benefits are not identical with wages. As observed above, the clear object of section 46 of the 1987 Act is to prevent dual benefits. ‘Benefits’ clearly means the benefits provided by the legislation.
The [M]ember exercised her discretion to promote the object of the legislation. There was no error.”[34]
[34] Respondent’s submissions 17 June 2025, [24]–[25].
Consideration
The appellant calls in aid of this submission the treatment of the former s 40 of the 1987 Act. The Member dealt with this at reasons [75]–[76]. In these two paragraphs the Member reasons as to why the approach under the former s 40 is not apt for the present circumstance. The appellant criticises this approach without saying why the approach was in error or why the Member’s distinguishing of the approach to the former s 40 was wrong.
The appellant also says that there is no assistance in s 46 as to how the discretion is to be exercised. Plainly the provision provides for a Member to exercise a discretion to prevent the payment of dual benefits. It is trite to say that such a discretion is to be exercised in accordance with the long standing authority of House v King. I do not consider that the Member’s remarks at reasons [76]–[77] restrict the discretion as asserted by the appellant. Rather, at reasons [76] the Member is distinguishing the approach taken under the former s 40 of the 1987 Act. Reasons [77] is the Member responding to a submission that had been put by the appellant. The error alleged with respect to these two paragraphs simply has not been substantiated.
The appellant has made no submission alleging a House v King error as one would normally expect in a challenge to the exercise of a discretion.
Accepting the appellant’s submission that the starting point under the Act is that the appellant is entitled to two awards, one in respect of each injury, pays no regard to the discretion under s 46 of the 1987 Act to alter that situation to prevent the payment of dual benefits.
The complaint in this ground has no merit.
Ground Three is dismissed.
As to Ground Four
This ground is a complaint about the Member permitting the respondent to rely on a matter that had not been raised in the s 78 notice. The appellant says:
“19. Section 78 provides that notice must be given of a decision to dispute liability in respect of a claim or any aspect of a claim.
20. The Appellant's claim was for payment of weekly compensation at the rate prescribed by sections 36 and 37 of the 1987 Act. The dispute notice did not raise an issue that the liability to pay compensation was reduced by operation of section 46. The application of section 46 is to reduce the liability to pay and to that extent must be a dispute about the extent of the liability to pay compensation. The issue was one that needed to be addressed by evidence and notice needed to be given.
21. The Member erred by thinking that notice was not required because the Commission was being asked to exercise the discretion. That only occurred because the Respondent sought that the discretion be exercised in its behaviour [sic, favour]. The position is similar to the exercise of the discretion under the former section 40 where it was only exercised when its relevance was raised by the parties.
22. The Member’s conclusion also meant that the Member erred by allowing the Respondent to tender the two sets of late documents in circumstances where they were not included in the dispute notice and were therefore inadmissible pursuant to section 73.”
In reply, the respondent argues as follows:
“26. It is clear from Members Homan’s direction of 21 February 2025 … that, to the extent required, leave was granted to the respondent pursuant to section 289A(4) of the 1998 Act to have a dispute heard as to whether the Commission can and ought to make an order pursuant to section 46 of the 1987 Act.
27. The appellant does not challenge the granting of that leave, and accordingly, the error asserted under Ground 4 can have no bearing on the outcome of the appeal.”
In the appellant’s supplementary submissions the following is submitted:
“18. Culhana is also relevant to ground 4. The Member exercised a discretion [to] permit the section 46 point to be raised. That was a decision that was open to her however the decision was influenced by her view that it was not necessary to raise the issue in a section 78 Notice. In the circumstances the Presidential Member should consider whether the decision was the correct decision. The matter had been raised at a very late time with no explanation other than a contention that notice was not required. Once the requirement to give notice is taken into account the prejudice to the Appellant becomes the paramount consideration.
19. The view that leave was not required was also pivotal to the decision to admit the late documents filed on 18 February 2025 and 19 March 2025. In particular the Member failed to consider whether the documents are excluded by section 73. A proper consideration of the matters leads to a conclusion that those documents should not have been admitted.”
The respondent in its supplementary submissions says Culhana has no effect at all on the Member’s decision on this issue. The respondent submits that the issue is one of law, not one of fact and in any event, leave was granted to rely on s 46 of the 1987 Act under s 289A(4) of the 1998 Act, which leave is not the subject of challenge.[35]
[35] Respondent’s supplementary submissions 25 August 2025, [2.14]–[2.18].
Consideration
Unlike the courts, the Commission does not possess inherent jurisdiction. Rather, the Commission’s authority to determine a dispute depends upon the powers conferred by statute, relevantly in this case the 1998 Act. The combination of ss 78 and 79 of the 1998 Act set out the requirements of the insurer to provide notice to the claimant (in this case the appellant) of all matters that are in dispute. Section 289A specifically prohibits the Commission from determining matters which have not been notified as being in dispute.
I have closely read the s 78 notice[36] and the result of the appellant’s application for a review.[37] Neither document in terms notifies the appellant that s 46 of the 1987 Act was being relied upon. Indeed, contrary to the respondent’s assertion to the Member that such notice was not required for reliance on s 46 of the 1987 Act, I would merely refer to the terms of the s 78 notice and s 278A review issued by the respondent. Each document lists all of the provisions of the 1987 Act called in aid of the dispute of the claim. This fact alone serves to detract from the respondent’s argument in this regard.
[36] ARD, p 4.
[37] Section 278A review notice, 25 October 2024, ARD, p 10.
In my view, if the respondent seeks to rely on the provisions of s 46 of the 1987 Act, it is duty bound under ss 78 and 79 of the 1998 Act to give notice of this fact in terms that are readily understandable.[38] The fact that the power under s 46 of the 1987 Act sits with the Commission is in my view no answer to the requirement to notify. If injury is put in dispute under s 4 of the 1987 Act, that is a matter that the Commission is called upon to decide. This is just another provision under which a decision is to be made by the Commission.
[38] See my remarks in Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPICPD 81 at [52]–[53] regarding the s 78 requirements.
However, s 289A(4) of the 1998 Act provides relief from the obligations I have just described. A party seeking to rely on unnotified matters may be permitted to do so if the Commission “is of the opinion that it is in the interests of justice to do so.” The respondent, notwithstanding its submission that it did not have to notify its reliance on s 46 of the 1987 Act, made an application to the Member for relief under s 289A(4) of the 1998 Act[39] which was opposed by the appellant.[40]
[39] Transcript of proceedings 21 February 2025 (T), T5–7.
[40] T8–11.
The Member considered the application, including the authority on the seeking of leave under s 289A(4) of the 1998 Act[41] before deciding to grant leave in an ex tempore decision.[42] Having granted leave the matter did not proceed to a hearing on 21 February 2025, the transcript records it as being adjourned and it returned before the Member for hearing on 26 March 2025, shortly over four weeks later.
[41] Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227.
[42] T17.24–33.
Whilst I do not agree with the Member’s view that reliance on s 46 of the 1987 Act did not require notification, this is not ultimately determinative. If that was an error as asserted it could not have affected the result. This is because the Member gave leave under s 289A(4) of the 1998 Act for s 46 of the 1987 Act to be relied upon.
On appeal, the appellant has taken no issue with the Member’s reasoning regarding the granting of leave under s 289A(4) of the 1998 Act. For the reasons expressed orally, the Member determined that it was in the interests of justice to grant leave. There being no aspect of this ground directed to the grant of leave, by definition the Member was not in error.
However, I have considered the Member’s reasoning in dealing with the s 289A(4) application. Not only is there no error in the reasoning, I agree with the approach taken by the Member. I am also fortified in this view by the following. The Member weighed the respective prejudice that could accrue to both parties.[43] Obviously the appellant could have been at a disadvantage had leave been granted and the matter proceeded to a finality on 21 February 2025. The matter did not proceed, it was adjourned and heard over a month later on 26 March 2025. Any prejudice that may have arisen because the appellant could not contend with the s 46 issue was ameliorated by the adjournment. The Member was right to grant leave.
[43] T16–17.
There is no merit in this ground. No error has been established (or asserted) with respect to the granting of leave under s 289A(4) of the 1998 Act. Ground Four is dismissed.
DECISION
The Certificate of Determination dated 16 April 2025 is confirmed.
Judge Phillips
PRESIDENT
5 November 2025
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