Gardiner v Laing O'Rourke Australia Construction Pty Limited (No 2)

[2020] NSWWCCPD 47

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Gardiner v Laing O’Rourke Australia Construction Pty Limited (No 2) [2020] NSWWCCPD 47

APPELLANT:

James Gardiner

RESPONDENT:

Laing O’Rourke Australia Construction Pty Limited

INSURER:

Employers Mutual Limited

FILE NUMBER:

A1-1052/19

ARBITRATOR:

Ms C Rimmer

DATE OF ARBITRATOR’S DECISION:

28 June 2019

DATE OF APPEAL DECISION:

19 December 2019

DATE OF COURT OF APPEAL DECISION:

23 July 2020

DATE OF DECISION ON REMITTER:

28 July 2020

SUBJECT MATTER OF DECISION:

Orders on remitter from the Court of Appeal

PRESIDENTIAL MEMBER:

President Judge Phillips

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms E Grotte, of counsel

Turner Freeman Lawyers

Respondent:

Mr S Flett, of counsel

Rankin Ellison Lawyers

ORDERS MADE ON APPEAL:

1.    The Certificate of Determination dated 28 June 2019 is revoked.

2.    The matter is remitted for redetermination by a different Arbitrator, in accordance with the decision in Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151.

INTRODUCTION

1. This matter comes before the Commission pursuant to an order for remitter made by the Court of Appeal in Gardiner v Laing O’Rourke Australia Construction Pty Ltd.[1]

   [1] [2020] NSWCA 151 (Gardiner).

BACKGROUND

1. This matter concerns the terms of a deed of release entered by the appellant, Dr James Gardiner, and the respondent, Laing O’Rourke Australia Construction Pty Limited, Dr Gardiner’s employer. The Deed was entered into on 5 September 2018 and the issue for consideration was whether or not, as a result of the execution of that Deed, ss 149 and 151A of the Workers Compensation Act 1987 (the 1987 Act) had been engaged such as to deny Dr Gardiner the right or capacity to pursue his proceedings in this Commission.

2. The matter was determined initially by an Arbitrator on 28 June 2019,[2] with an award being entered in favour of the employer. That is, the learned Arbitrator concluded that Dr Gardiner was unable to pursue his workers compensation claim against the respondent due to the terms of the Deed of Release that he signed on 5 September 2018, by recovering general damages for personal injury pursuant to that Deed, and by the operation of ss 149 and 151A of the 1987 Act. An appeal to a Presidential member was determined on 19 December 2019[3] in a decision which confirmed that of the Arbitrator.

   [2] Gardiner v Laing O’Rourke Australia Construction Pty Limited, 1052/19, 28 June 2019.

   [3] Gardiner v Laing O’Rourke Australia Construction Pty Limited [2019] NSWWCCPD 66.

3. Dr Gardiner appealed the decision of the Presidential member to the Court of Appeal.

THE DECISION OF THE COURT OF APPEAL

1. The Court of Appeal decision is dated 23 July 2020. Justice Basten (Leeming JA and Emmett AJA agreeing) said:

   “The proper construction of the Deed negates any possibility that the payment by way of ‘General Damages’ was intended to settle any claim for workers’ compensation or work injury damages which might be available subject to the controls imposed by the Workers Compensation Act and the following of the procedures set out in the Workplace Injury Act. The characterisation of the payment made as consideration of the release from liability and the discontinuation of the complaint to the Anti-Discrimination Board follows from the proper characterisation of the Deed. That involved a question of law. The conclusions of the Arbitrator and the President were inconsistent with that conclusion and therefore involved an erroneous resolution of the question of law.”[4]

   [4] Gardiner, [66].

2. Justice Leeming (Basten JA and Emmett AJA agreeing) said:

   “Accordingly, the legal character of the $34,000 which was paid to the appellant and his solicitors is not sufficiently identified merely by observing that they were amounts payable under a settlement. The effect of the definition of ‘damages’, which accords with the general principle governing the character of payments made pursuant to a settlement, is to require an analysis of what was being compromised.

   One therefore asks whether the claims compromised by the deed were ‘in respect of an injury’. That requires an evaluation of the legal relationship between the payment of money and the claim that is made in respect of any injury.”[5]

   [5] Gardiner [82]–[83].

3. Justice Emmett (Basten JA and Leeming JA agreeing) said:

   “A fair reading of the Deed indicates that the payment made to Dr Gardiner by LORAC pursuant to the Deed did not constitute damages in respect of any injury suffered by Dr Gardiner that would be compensable under the Compensation Act or the Management Act. Rather, it was a payment in consideration of the release by Dr Gardiner of LORAC in respect of his claim under the Discrimination Act and the various other matters that were referred to in cll 3 and 4. That is made clear by the several references in the Deed that the Deed was not intended to be a payment in respect of any claim that Dr Gardiner might elect to pursue pursuant to any applicable workers’ compensation legislation. That is made explicitly clear in cll 3 and 4 as well as several other provisions of the Deed.”[6]

   [6] Gardiner, [101].

4. The orders of the Court of Appeal were:

   “(1)    Allow the appeal from the decision of the President dated 19 December 2019.

   (2)   With respect to the proceedings in the Workers Compensation Commission:

   (a)set aside the order of the President dismissing an appeal from the determination of an Arbitrator of 28 June 2019;

   (b)set aside the order confirming the certificate of determination of the Arbitrator;

   (c)set aside the certificate of determination made by the Arbitrator on 28 June 2019.

   (3)     Remit the matter to the Workers Compensation Commission to determine the remaining issues in the dispute.

   (4)     Order that the respondent pay the appellant’s costs of the proceeding in this Court.”

ORDERS ON REMITTER

1. It is necessary that appropriate orders be made in compliance with the judgment and orders of the Court of Appeal, in substitution for those in the Presidential decision dated 19 December 2019 which has been set aside.

DECISION

1. The Certificate of Determination dated 28 June 2019 is revoked.

2. The matter is remitted for redetermination by a different Arbitrator, in accordance with the Court of Appeal decision which identified the errors into which the original Arbitrator had fallen.

Judge Phillips

PRESIDENT

28 July 2020