Gievski v Victorian WorkCover Authority
[2017] VSC 598
•4 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02186
| GOCE GIEVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2017 |
DATE OF JUDGMENT: | 4 October 2017 |
CASE MAY BE CITED AS: | Gievski v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2017] VSC 598 |
---
ACCIDENT COMPENSATION – Application by a worker under s 134AB(4) of Accident Compensation Act 1985 to bring proceedings for damages for an injury – Obligation on the Victorian WorkCover Authority (the Authority) to advise the worker under s 134AB(7) – Power of the Authority under s 134AB(16)(a) – Where the Authority is of the view, mistakenly, that the worker’s entitlement to damages was governed by the Transport Accident Act 1986 – Worker did not make application within time provided in s 134AB(16)(b) – Whether error as to jurisdictional fact or jurisdictional error by the Authority in exercise of the power under sub-s 16(a) – Whether declaratory relief available – Discretion not to grant relief where lack of utility.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Masel SC with Mr N Wood | Arnold Thomas & Becker |
| For the Defendant | Mr M Wheelahan QC with Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
Introduction
Goce Gievski injured his left foot in a workplace accident in April 2011. In February 2013, Mr Gievski’s then solicitors made application to the Victorian WorkCover Authority (the Authority) pursuant to s 134AB(4) of the Accident Compensation Act 1985 (the ACA)[1] to recover damages in respect of the injury. The Authority responded to Mr Gievski’s application in accordance with s 134AB(7) by advising that it would not issue a certificate under sub-s (16)(a) consenting to him bringing proceedings. At the same time the Authority communicated its view that Mr Gievski was injured as a result of a transport accident and that the provisions of the Transport Accident Act 1986 (the TAA) applied so that his serious injury application should be pursued under s 93 of that Act. After receiving the advice, Mr Gievski’s solicitors did not make application to a court for leave to bring proceedings within the 30-day period as required by s 134AB(16)(b) of the ACA. An application by Mr Gievski for the consent of the Authority to extend the time to commence sub-s (16)(b) proceedings was refused. The parties now agree that Mr Gievski’s injury was not a result of a transport accident, and that the TAA does not apply to Mr Gievski’s prospective claim for recovery of damages in respect of the injury. As a consequence there was no avenue available to Mr Gievski under s 134AB to bring proceedings to recover damages in respect of the injury.
[1]All references are to the Accident Compensation Act 1985 Authorised Version No 190 incorporating amendments as at 11 February 2013 (unless otherwise indicated).
In this proceeding Mr Gievski seeks declarations that the Authority has not lawfully considered his s 134AB(4) application and that the Authority is now required to lawfully consider that application. Mr Gievski characterised the function of the Authority as being the exercise of a jurisdiction to receive, consider and determine a sub-s (4) application by a worker. He submitted that relief should be granted because the Authority wrongly determined a ‘jurisdictional fact’ to the exercise of jurisdiction under sub-s 16(a), namely whether his injury was a result of a transport accident, with the consequence that the Authority wrongly denied its true jurisdiction to give genuine consideration to his application. In the alternative, Mr Gievski submitted that determination of his s 134AB(4) application by the Authority was vitiated by jurisdictional error because the Authority took into account an irrelevant consideration, that is, its conclusion that Mr Gievski’s injury was a result of a transport accident; failed to determine the issue of serious injury on the merits; or reached a conclusion as to serious injury not open on the evidence. In answer the Authority submitted, first, that the only relevant function of the Authority in response to receiving a sub-s (4) application from a worker was the obligation under sub-s (7) to advise the worker, and that the Authority legally performed that function in response to receiving the application from Mr Gievski. Secondly, in the alternative, the grounds relied on by Mr Gievski as supporting declaratory relief should be rejected. Thirdly, the relief sought lacks utility and on that basis should be refused.
The injury
In mid-2010 Mr Gievski commenced employment with Highrise Building Services Pty Ltd (Highrise) as a despatch manager. On 19 April 2011 Mr Gievski suffered a crush injury to his left foot. Mr Gievski alleges the crush injury occurred in the course of his employment with Highrise when the front frame of a trailer slipped off the tines of a forklift and landed on his left foot. Mr Gievski alleges that as a consequence of the injury he required numerous surgical procedures, and that he continues to suffer severe pain and disability affecting his left foot. Mr Gievski has not worked since 2 May 2012, and continues to receive weekly payments of compensation pursuant to the ACA in respect of the injury.
The medical materials provided in support of Mr Gievski’s s 134AB(4) application consisted of St Vincent’s Hospital records, a report of his treating surgeon, Mr Tymms, dated 13 February 2012, and the medico-legal report of orthopaedic surgeon, Mr Jones, dated 4 January 2013. Mr Tymms’ report includes the following:
I have discussed further options with Goce [Mr Gievski]. I think he will need further reconstructive surgery to try and improve his foot shape and function, for the longer term. This would most likely require a dorsiflexion osteotomy and fusion through the medial column, most likely centred in the navicular cuneiform joint. The second and third TMT of MC joints will also require correction and elevation. The first MTP joint will require reduction and either stabilisation with a temporary pin or fusion. I think correction of his hindfoot varus is appropriate with a calcaneal osteotomy to realign his hindfoot.
Mr Jones’ report, which followed examination of Mr Gievski on 13 December 2012, included the following opinion:
Mr Gievski has sustained a severe crushing injury to his left mid foot involving multiple tarsal fractures and cuneiform dislocations. Extensive reconstruction surgery is necessary and is a work in progress. He remains off work, pending further surgery earlier this year, but the obvious outcome here is going to be a stiff and rather painful left foot. Whether he will be able to return to his previous employment with Highrise Building Services is another matter. Mr Gievski said that he did complete year 12 and was reasonably competent with computer use, but was not keen on further study at this point in time.
It will probably be at least 12 months before any point of stability can be reached.
This worker requires further surgery.
Mr Gievski’s application to bring proceedings to recover damages
It is agreed that Mr Gievski suffered injury arising out of or in the course of his employment with Highrise on 19 April 2011. In order to access a gateway to recover damages in respect of the injury Mr Gievski made an application to the Authority pursuant to s 134AB(4) of the ACA. Mr Gievski applied on the basis that injury to his left foot met sub-paragraph (a) of the definition of serious injury in s 134AB(37) and relied upon consequences with respect to both pain and suffering and loss of earning capacity.[2]
[2]All references to ‘serious injury’ are within the meaning of s 134AB(37) (unless otherwise indicated).
The application was received by the Authority on 18 February 2013 and was allocated on the same day to solicitors Lander & Rogers.
On 23 May 2013 Ms Rizkalla, a partner of Lander & Rogers with conduct of the proceeding for the Authority, wrote to Mr Pagic of LawCorp Lawyers, the solicitor for Mr Gievski, in the following terms:
We refer to the above matter and to your client’s serious injury application.
We are currently investigating your client’s claim. In our view your client’s injury appears to be the result of a transport accident.
As you will no doubt be aware, where a workplace accident involves a “transport accident”, access to damages must be made via s.93 of the Transport Accident Act (TAA) rather than s.134AB of the Accident Compensation Act. The definition of a transport accident as defined in section 3 of the TAA, includes an incident directly caused by the driving of a motor vehicle, as well as an incident involving a motor vehicle which is ‘out of control’. In our view, the forklift driven by the co-worker Nathan is a motor vehicle within the definition of the Act. The accident occurred directly as a result of driving that motor vehicle. In the alternative, we consider that the trailer is a registered motor vehicle that was ‘out of control’ and thus caused your client’s accident.
Could you please advise whether you have considered these issues and/or lodged a serious injury application directly with the transport accident commission?
We would be pleased to hear from you in this regard as soon as possible.
On 3 June 2013 Ms Rizkalla telephoned Mr Pagic in order to discuss Mr Gievski’s application. In evidence given in this proceeding, Mr Pagic stated Ms Rizkalla repeated the view that Mr Gievski’s injuries were the result of a transport accident, and said that if two concurrent claims for serious injury were made the Authority and the Transport Accident Commission (TAC) would confer with each other. Mr Pagic said he made a note of that conversation which reads:
Will be rejecting the application because it doesn’t form part of WorkCover. A TAC claim should be made. TAC and VWA usually confer but no TAC claim has been made.
By letter dated 13 June 2013 from Lander & Rogers to LawCorp Lawyers, the Authority advised Mr Gievski as required by s 134AB(7):
We refer to your client’s application pursuant to Section 134AB(4) of the Accident Compensation Act 1985 dated 13 February 2013 and received by the Victorian WorkCover Authority on 18 February 2013.
Our client has instructed us pursuant to Section 134AB(7) to advise that as a result of the injuries sustained on 19 April 2011 in the course of employment with Highrise Building Services Pty Ltd:
1.The degree of impairment of the worker was less than 30% when assessed under Section 104B of the Act and therefore the injury is not deemed to be a serious injury within the meaning of Section 134AB of the Act.
2.It is not satisfied the worker has suffered a serious injury within the meaning of Section 134AB of the Act. Therefore the Authority will not issue a certificate under Section 134AB(16)(a).
Further, it is the view of our client that your client’s injuries arose out of a transport accident. Accordingly, the provisions of the Transport Accident Act 1986 apply and his serious injury application should be pursued under s.93 of that Act.
In the event that the provisions of the Accident Compensation Act are applicable, we enclose affidavit of Lillian Rizkalla sworn 14 June 2013, which includes draft defence by way of service.[3]
On the same day, possibly in response to the advice received from the Authority, Mr Pagic wrote to the TAC advising of Mr Gievski’s intention to pursue a common law claim for damages under s 93 of the TAA in respect of the injury. For that purpose Mr Pagic requested that TAC assess Mr Gievski’s impairment and applied to TAC for a serious injury certificate. Mr Pagic advised TAC that a concurrent application had been made by Mr Gievski pursuant to s 134AB(4).
[3]In error the letter refers to an affidavit of Ms Rizkalla sworn 14 June 2013. The affidavit of Ms Rizkalla enclosed with the letter was sworn by her on 13 June 2013.
Pursuant to s 134AB(16)(b), Mr Gievski had 30 days from receipt of the letter of advice from Lander & Rogers within which to make application to a court for leave to bring proceedings for the recovery of damages. Sometime after 13 June 2013 Mr Pagic telephoned Ms Rizkalla to enquire whether the Authority would consent to the deadline for the sub-s (16)(b) application being postponed. On 5 July 2013 Ms Rizkalla telephoned Mr Pagic to advise him that she did not have discretion to extend the time limit provided for by sub-s (16)(b). The originating motion seeking leave for Mr Gievski to proceed at common law was not issued until 23 July 2013, over a week after the expiration of the period provided for by sub-s 16(b).
By letter of 4 March 2014, TAC responded to the request made pursuant to s 93 of the TAA by communicating that it did not consider Mr Gievski was injured as a result of a transport accident within the meaning of the TAA, and that TAC was unable to make an impairment determination or to determine whether or not a serious injury was sustained pursuant to the TAA. In response, Mr Pagic invited the Authority and TAC to liaise for the purposes of determining which statutory regime applied to Mr Gievski’s injury. Ms Rizkalla responded to that request on behalf of the Authority by letter to LawCorp Lawyers on 29 May 2014, which included:
We are instructed that WorkSafe and the TAC are currently working through the dispute management protocol that exists between the statutory authorities to resolve the dispute as to which legislation governs your client’s serious injury application. Section 134AB(1) of the Accident Compensation Act 1985 (the Act) states that if your client’s injuries arose out of a transport accident, then the TAC should make that consideration pursuant to the Transport Accident Act 1986.
In the meantime, it is important to note that your client is not bound to accept the decision that results from this process.
If the conclusion reached by this process is that the Act governs your client’s serious injury application, it may well be that [your] client is no longer able to bring proceedings for the recovery of damages in respect of his injuries. It appears your client falls foul of section 134AB(16)(b) of the Act as he did not file an originating motion in time.
In the same letter Ms Rizkalla brought to the attention of Mr Pagic the possibility of Mr Gievski making application pursuant to s 134AB(20) for the consent of the Authority to commence the sub-s (16)(b) proceedings out of time.
The dispute management protocol between WorkSafe and TAC referred to by Ms Rizkalla involved determination of the issue by an agreed arbitrator. The Authority made submissions to the arbitrator to the effect that Mr Gievski’s injury was a result of a transport accident. On 22 June 2014 the arbitrator determined that the accident circumstances resulting in Mr Gievski’s injury did not constitute a transport accident as defined in the TAA. The Authority agreed to be bound by the arbitrator’s determination.
Lander & Rogers advised LawCorp Lawyers of the outcome of the dispute management protocol arbitration by letter dated 2 July 2014. In January 2015 LawCorp Lawyers sought the consent of the Authority pursuant to s 134AB(20) for Mr Gievski to bring his application for leave to proceed with a common law claim for damages outside the time prescribed by sub-s (16)(b). The Authority refused that application by letter to LawCorp Lawyers dated 18 March 2015.
Under s 134AB there are five avenues enabling a worker who is entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment on or after 20 October 1999 to bring proceedings for the recovery of damages in respect of the injury. By March 2015 none of these avenues remained available to Mr Gievski. He agreed with the determination of TAC that the injury to his left foot was not a result of a transport accident, and that s 134AB(1)(a)(i) and (b)(i) did not provide an avenue to him to seek to recover damages in respect of the injury in accordance with the TAA. Mr Gievski did not have a deemed serious injury in accordance with either s 134AB(9) or (15). The Authority did not provide a certificate consenting to Mr Gievski bringing proceedings pursuant to sub-s (16)(a). Mr Gievski did not apply to a court for leave to bring proceedings within the time provided by sub-s (16)(b).
Mr Gievski’s pleaded case
It is necessary to set out much of the pleading in the statement of claim. Paragraphs 1 and 2 read as follows:
1.The Plaintiff (Gievski) was at all material times a “worker” within the meaning of the Accident Compensation Act 1985 (Vic) (AC Act), employed by Highrise Building Services Pty Ltd (Highrise).
2.The Defendant (the Authority):
(a)is and was at all material times a body corporate with perpetual succession;
(b)was established under section 18 of the AC Act, and continues in existence by operation of section 491 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic);
(c)is and at all material times was charged under the AC Act with the function of receiving, considering and determining applications made to it under section 134AB(4) of the AC Act by workers who claim to have suffered a “serious injury” arising out of or in the course of their employment other than as a result of a “transport accident” within the meaning of the Transport Accident Act 1986 (Vic) (the TA Act), and who sought the consent of the Authority under section 134AB(16)(b) of that Act to commence a proceeding for the recovery of damages in respect of such injury.
There followed paragraphs pleading occurrence of injury to Mr Gievski on 19 April 2011, allegation that the injury was suffered as a consequence of the negligence or breach of duty of Highrise, and that Mr Gievski made the serious injury application to the Authority pursuant to s 134AB(4) on 18 February 2013. Paragraph 6 of the pleading reads:
6. At all material times:
(a)the Authority’s jurisdiction to determine an application made to it under section 134AB(4) of the AC Act only arose if certain jurisdictional facts described in section 134AB(1) existed, including that the injury was not sustained as a result of a “transport accident” within the meaning of the TA Act; and
(b)if those jurisdictional facts existed, the Authority was bound to give genuine consideration to whether the alleged injury was a “serious injury”.
Subsequent paragraphs recite the history of assertions by Ms Rizkalla, representing the Authority, the injury to Mr Gievski was suffered as a result of the transport accident and his prospective common law claim for damages was governed by the TAA. Paragraph 9 reads:
9.On or about 13 June 2013, the Authority purported to determine the Serious Injury Application (Purported Decision), and by its Purported Decision did not issue Gievski a certificate under section 134AB(16)(a) consenting to the bringing of a proceeding to recover damages for the Injury (the Purported Decision).
Paragraph 10 recites the content of the Authority’s letter of advice. Paragraph 11 reads:
11. In fact, at or about the time it made the Purported Decision:
(a)the only matter that the Authority gave genuine consideration to in deciding to reject the Serious Injury Application was whether Gievski suffered the Injury as a result of a “transport accident”;
(b)the Authority believed and determined that the Injury arose out of a “transport accident”;
(c)Gievski’s degree of impairment had not been assessed under section 104B of the AC Act;
(d)the Authority knew that Gievski’s degree of impairment had not been assessed under Section 104B of the AC Act;
(e)the Authority did not give genuine consideration to whether the Injury was a “serious injury”;
(f)the materials that the Authority had before it relevant to the Serious Injury Application were:
(i)the Serious Injury Application, including the supporting material served with the application; and
(ii)the materials identified in the affidavit of Ms Rizkalla that was served with the Lander & Rogers letter dated 13 June 2013;
(g)on the materials that the Authority had before it, no reasonable decision-maker in the position of the Authority could be not satisfied that the Injury was a “serious injury” within the meaning of section 134AB of the AC Act.
In paragraph 12 it is again pleaded that the Authority believed Mr Gievski’s injury was sustained as a result of a transport accident. Paragraphs 13 to 20 of the pleading read:
13.In fact, the Injury was not sustained as a result of a “transport accident”.
14.In the circumstances aforesaid, in determining that the Injury was sustained as a result of a “transport accident” the Authority erred as to the existence of a jurisdictional fact and thereby wrongly denied its true jurisdiction to give genuine consideration to whether the Injury was a “serious injury”.
15.Alternatively, in the circumstances aforesaid, the Authority, having assumed jurisdiction to consider and determine the Serious Injury Application, in purporting to determine that it was not satisfied that the Injury was a “serious injury” the Authority made a jurisdictional error by asking itself the wrong question or relying upon an irrelevant consideration, namely whether the Injury was sustained as a result of a “transport accident”, the same being irrelevant in the sense that the Authority’s jurisdiction to determine the Serious Injury Application depended, relevantly, upon the Injury not being sustained as a result of a “transport accident”.
16.Further and alternatively, in the circumstances aforesaid, in purporting to determine that it was not satisfied that the Injury was a “serious injury” the Authority made a jurisdictional error by:
(a)failing to give genuine consideration to whether the Injury was a “serious injury”;
(b)failing to take into account relevant materials, including the materials identified to in paragraph 11(f) above and any such further materials as the Authority would acting reasonably have obtained in order to determine whether it was satisfied that the Injury was a “serious injury”.
17.Further and alternatively, in the circumstances aforesaid, in purporting to determine that it was not satisfied that the Injury was a “serious injury” the Authority made a jurisdictional error by making a decision that no reasonable decision-maker exercising the Authority’s jurisdiction could have made.
18.By reason of the matters alleged above:
(a)the Authority has not lawfully considered the Serious Injury Application; and
(b)the Purported Decision is vitiated by jurisdictional error and is, at law, no decision at all.
19.Gievski did not bring an application under section 134AB(16)(b) of the AC Act within the permitted time and so, unless and until the Purported Decision is set aside, Gievski is precluded from bringing a proceeding against Highrise to recover damages in respect of the Injury.
20.Despite being requested to do so, the Authority has refused or failed to consider the Serious Injury Application according to law.
Particulars
The requests are set out in letters dated 17 October 2015 and 5 May 2016 from Gievski’s current solicitors, Arnold Thomas & Becker, to Lander & Rogers on behalf of the Authority. Copies of the letters may be inspected by arrangement at the office of the Gievski’s solicitors.
Mr Gievski seeks the following relief:
AA declaration that the Authority has not lawfully considered the Serious Injury Application.
BA declaration that the Purported Decision is at law a nullity and no decision at all.
CA declaration that the Authority is required to lawfully consider the Serious Injury Application.
Submissions
Mr Gievski
Mr Gievski submitted first that the Authority is a creature of statute and all powers which it exercises emanate from and must be exercised pursuant to the ACA and the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act). The exercise of a power by the Authority pursuant to either Act is amenable to judicial review by this Court.
Secondly, the TAA and the ACA contain complementary schemes regulating access to common law damages for injuries which are a result of a transport accident and for compensable work injuries. Both Acts conditionally extinguish such common law rights. When a compensable work injury is the result of a transport accident, s 134AB(1) directs that any revival of common law rights of the injured worker are subject to and in accordance with the TAA. The remaining subsections of s 134AB are only relevantly engaged where the recovery of damages is not ‘in accordance with the Transport Accident Act’.[4] Therefore, the occurrence of a compensable injury to a worker other than as a result of a transport accident is a jurisdictional fact in respect of an application by a worker for leave to recover common law damages made pursuant to s 134AB(4). If the compensable injury to a worker is a result of a transport accident, the Authority has no power, in response to an application made pursuant to s 134AB(4), to grant or withhold its consent pursuant to s 134AB(16)(a). If a worker suffers compensable injury other than as a result of a transport accident, the Authority must consider any application made pursuant to sub-s (4) on its merits, including giving genuine consideration to whether the injury is a serious injury.
[4]ACA s 134AB(1) read in conjunction with s 134AA.
Thirdly, the Authority wrongly determined that the compensable injury suffered by Mr Gievski was a result of a transport accident. That determination was an error as to a jurisdictional fact, which had the effect of denying the Authority its true jurisdiction to determine Mr Gievski’s application on its merits.
Fourthly, the power to be exercised by the Authority in response to Mr Gievski’s application was that conferred by sub-s (16)(a), which required the Authority to consider Mr Gievski’s application on the merits and to determine whether the injury was a serious injury. There were jurisdictional errors by the Authority in the purported exercise of that power by taking into account an irrelevant consideration, that is, its determination that the injury was the result of a transport accident; by ignoring relevant material, that is evidence that the injury was a serious injury; and by reaching a conclusion as to serious injury that was not open to it on the available evidence, or which no reasonable decision-maker could have reached in the circumstances. The court should conclude that there was no deliberation or evaluation by the Authority of the issue of serious injury. The purported decision of the Authority, communicated by the letter of 13 June 2013, is vitiated by jurisdictional error.
Fifthly, either because of the erroneous decision by the Authority as to a jurisdictional fact, which had the effect that the Authority denied itself jurisdiction to determine Mr Gievski’s application pursuant to sub-s (16) or because the Authority’s purported decision is vitiated by jurisdictional error, in law there has been no decision at all by the Authority in response to Mr Gievski’s application. In response to the court granting the declaratory relief sought by Mr Gievski the Authority will exercise its jurisdiction to properly determine his application either by providing a certificate consenting to the bringing of proceedings pursuant to sub-s (16)(a), or by advising Mr Gievski pursuant to sub-s (7)(b) that it will not issue a certificate. In the former case, Mr Gievski will be entitled to bring proceedings for the recovery of damages in accordance with s 134AB(12). In the latter case, Mr Gievski will be entitled to make application to a court pursuant to sub-s (16)(b).
Sixthly, there is no merit in the argument that Mr Gievski’s right to pursue either option is foreclosed because in response to the Authority’s letter of advice of 13 June 2013 he did not make application to a court for leave within the 30-day period provided by s 134AB(16)(b). Mr Gievski accepts that the letter was an advice given by the Authority within time pursuant to sub-s (7), and therefore the deeming provision in sub‑s (9) did not apply. The advice did trigger an opportunity for Mr Gievski to issue an application pursuant to sub-s (16)(b). Mr Gievski submits, however, there is nothing in the Act which provides that the Authority is precluded from issuing a further advice pursuant to sub-s (7) upon the proper consideration of the merits of Mr Gievski’s application pursuant to sub-s (16)(a).
The Authority
The Authority submitted first that its only relevant function after receiving Mr Gievski’s sub-s (4) application was to give advice under sub-s(7). Relevant to that advice was whether or not the Authority would issue a certificate under sub-s (16)(a) consenting to Mr Gievski bringing proceedings for recovery of damages in respect of the injury. The Authority performed that function by giving the advice by letter of 13 June 2013. Consistent with the objects of the Act, and the statutory objectives and functions of the Authority, the Authority was entitled to act as a litigant defending common law actions by workers. The Authority observed it had a pecuniary interest in the outcome of common law proceedings because it had a statutory obligation to indemnify an employer under a policy of WorkCover insurance,[5] and because it was entitled to defend common law proceedings on behalf of an employer to the exclusion of the employer and other insurers.[6] Section 134AB provided for pre-litigation procedures anterior to an application for leave by a worker pursuant to s 134AB(16)(b).[7] The decision by the Authority not to issue a certificate under s 134AB(16)(a) is not a decision which forecloses rights, but is simply a precursor to an adversarial application for determination of the worker’s rights by a court in accordance with sub-s (16)(b). The only limits on the choice by the Authority whether or not to consent to a worker bringing proceedings are those that are express in or implied by the ACA. The Authority submitted that it was entitled to refuse to consent to the worker’s application because it wished to test the application in the adversarial environment of the court. The Authority had a genuinely free discretion to decide whether it would consent, and was entitled to take into account matters such as whether Mr Gievski was a worker, the injury occurred on or after 20 October 1999, the injury was as a result of a transport accident, and whether Mr Gievski satisfied the loss of earning capacity calculations required by sub-s (38)(e). The core issue is the legality of the Authority’s advice that it did not consent to Mr Gievski bringing proceedings. Mr Gievski has not established illegality by the Authority in exercise of its function to respond after receiving his s 134AB(4) application.
[5]Accident Compensation (WorkCover Insurance) Act 1993 s 9(2).
[6]ACA s 129R.
[7]ACA s 134AB (5)–(8), (10)–(11).
Secondly, it was submitted that a decision of the Authority not to consent to a worker’s application for serious injury was not an exercise of governmental power. Application to a court under sub-s 16(b) was in no sense a review of the decision of the Authority to refuse consent, and the Authority’s decision not to consent was not relevant to adjudication of that application. A decision by the Authority not to consent to a sub-s (4) application by a worker ‘is not a determination of rights in the exercise of a power to adjudicate, but an election by the Authority or self-insurer, following pre-litigation steps, whether to contest the foreshadowed application to bring a damages proceeding to which it will be an adversary of the worker’.[8] Because the Authority was in an adversarial position in respect to a worker who had made a serious injury application, the Authority was entitled to act in self-interest.[9] That meant that in response to receiving a serious injury application from a worker the Authority was entitled to act so as to limit its exposure to liability. The text of s 134AB(16)(a), which speaks of ‘consent’ rather than ‘determination’, reflects the adversarial position of the parties. A decision by the Authority whether or not to consent to commencement of a damages proceeding by a worker should therefore be regarded as being of a private rather than public character.[10] In summary, the Authority submitted:
It would be inconsistent with the statutory framework described above to constrain decisions by the Authority or self-insurer about the defence of common law litigation by reference to considerations of ‘jurisdictional facts’, relevant and irrelevant considerations, and Wednesbury unreasonableness. This is especially so when the Act provides for judicial evaluation and adjudication should the Authority or self-insurer not consent.
The Authority submitted that for these reasons there was no basis to question the legality of its advice to Mr Gievski in response to his application.
[8]Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260, [30], [45]–[46] (J Forrest J).
[9]NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277 [297], [49]–[51] (McHugh, Hayne and Callinan JJ).
[10]Mercury Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385.
Thirdly, it was submitted that the grounds advanced by Mr Gievski as justifying judicial review of the decision of the Authority not to consent to him bringing a common law claim for damages in respect of the injury should be rejected in any event because:
(a) The Authority was entitled to give consideration to whether Mr Gievski’s injury was a result of a transport accident when determining whether to consent to him bringing a damages proceeding under s 134AB. Once the Authority formed the view that the injury was a result of a transport accident, it was entitled to determine not to consent, and was not then required to consider whether Mr Gievski had suffered a serious injury. Whether the injury was a result of a transport accident was not a jurisdictional fact, but was a matter for the proper consideration of the Authority in determining whether it would consent to the bringing of a damages proceeding. Other matters relevant to the decision by the Authority whether to consent to the application included whether the applicant for serious injury was a ‘worker’, whether there was an injury to the applicant worker which arose out of, or in the course of, or due to the nature of employment, whether the injury arose out of, or in the course of or due to the nature of employment after 20 October 1999, whether the applicant worker was or might be entitled to compensation in respect of the injury. Each of those matters, including the whether the injury was a result of a transport accident, would, when relevant, be determined by a court on an application made pursuant to s 134AB(16)(b). The existence of the right of an applicant worker to make such an application to a court and to have those matters determined was the clearest indication that those were matters the Authority was entitled to take into account when considering whether or not to give consent.
(b) Mr Gievski’s submission that the Authority gave no consideration to the question of serious injury should be rejected, because the Authority stated in the advice that it was not satisfied Mr Gievski had suffered a serious injury; contrary to Mr Gievski’s submission, there was not ‘overwhelming evidence’ that his injury was a serious injury and at the time the advice was given the evidence established that Mr Gievski did not succeed on the loss of earning capacity serious injury test; and discovery made by the Authority and other documents in evidence in this proceeding do not support the inference that the Authority gave no genuine consideration to the question of serious injury prior to giving the advice.
Fourthly, there is no utility in the declaratory relief sought by Mr Gievski, and on that basis it should be refused. The letter of 13 June 2013 was the advice of the Authority pursuant to s 134AB(7) given in response to Mr Gievski’s serious injury application. Mr Gievski makes no application to quash that advice and in any event is well out of time to do so. Mr Gievski, in response to the advice, did not make application to a court within the time allowed by sub-s (16)(b). There is no provision for the giving of further advice by the Authority.
The ACA
The objects of the ACA are contained in s 3, and include:
(d)to provide adequate and just compensation to injured workers;
(e)to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses;
In a similar vein the objectives of the Authority, set out in s 19 of the ACA, include to:
(a)manage the accident compensation scheme as effectively and efficiently and economically as is possible;
(f)ensure that appropriate compensation is paid to injured workers in the most socially and economically appropriate manner and as expeditiously as possible;
Pursuant to s 20(1) the functions of the Authority include to:
(aa)receive and assess and accept or reject claims for compensation
(b)pay compensation to persons entitled to compensation under this Act;
(g)defend actions against employers under this Act and at common law.
Part IV of the ACA deals with payment of compensation. Section 82(1), which appears in Division 1 of Part IV, provides:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
Divisions 2, 2A and 2B of Part IV provide for entitlement to compensation in respect of the death of a worker, by way of weekly payments, lump sum payments in respect of certain injuries that arose prior to 12 November 1997 or in respect of injury resulting in permanent impairment, and for medical and like services. Division 8A of Part IV governs actions for damages in respect of injuries arising on or after 20 October 1999. The effect of s 134AB(1), which appears within Division 8A, is to contingently extinguish the common law right of a worker to bring proceedings to recover damages in respect of injury arising out of or in the course of, or due to the nature of employment on or after 20 October 1999. Proceedings to recover damages in respect of an injury may only be brought by a worker if a gateway provided for by s 135AB has been accessed. Subsection (1) of s 134AB reads:
(1)A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999—
(a)shall not, in proceedings in respect of the injury, recover any damages for nonpecuniary loss except—
(i)in accordance with the Transport Accident Act 1986 and subsections (25)(b), (26) and (36)(b) of this section; or
(ii)in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of this section; or (iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and
(b)shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—
(i)in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or
(ii)if subparagraph (i) does not apply, as permitted by and in accordance with this section.
Where injury to the worker to which sub-s (1) applies is a result of a transport accident the worker may, pursuant to sub-s (1)(a)(i) and (b)(i),[11] recover damages in proceedings in respect of the injury in accordance with the TAA. Other matters raised by sub-s (1) which will, depending on the facts of the case, require consideration include:
[11]Read together with s 13AB(a)(i).
(a) Is the person seeking to recover damages a ‘worker’?
(b) Has the worker suffered injury?
(c) Did the worker’s injury arise out of, or in the course of, or due to the nature of employment?
(d) Did the worker’s injury arise out of, or in the course of, or due to the nature of employment on or after 20 October 1999?
(e) Whether the worker is or may be entitled to compensation in respect of the injury.
Mr Gievski argues that each of these matters are ‘jurisdictional facts’ to determination by the Authority of a serious injury application made by a worker. The Authority submits they are matters to which the Authority may have regard when deciding whether or not it will consent pursuant to sub-s (16)(a), to the worker bringing proceedings for recovery of damages in respect of an injury.
Subsection (2) of s 134AB provides:
A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.
When s 134AB was first introduced a determination of the degree of impairment of the worker under s 104B was required prior to a worker making a s 134AB(4) application. In 2004 s 134AB(3) and (4) were amended to allow a worker to elect to make an application to bring proceedings for the recovery of damages without having first obtained an impairment assessment in accordance with s 104B.
Pursuant to sub-s (5) an application by a worker under sub-s (4) must be in an approved form, accompanied by an authority authorising release of medical information to the Authority, and accompanied by medical reports and affidavit material on which the worker intends to rely in proceedings in accordance with s 134AB. Pursuant to sub-s (5)AA, the authority to release information given by the worker cannot be revoked until proceedings brought in accordance with s 134AB are completed or compromised, or the application is withdrawn. A copy of the sub-s (4) application must be served on each person against whom the worker claims to have a cause of action.[12] Pursuant to sub-s (6) the period for the Authority to respond to the worker’s application is extended by the worker refusing to comply with, or hindering, a medical examination requested by the Authority.
[12]ACA s 134AB(5)A.
The obligation on the Authority to respond to a sub-s (4) application is imposed by sub-s 7 which provides:
The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of writing—
(a) that the worker is deemed to have a serious injury; or
(b)if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a).
Pursuant to sub-s (15) a worker is deemed to have a serious injury if the result of assessment under s 104B is a degree of impairment of the worker of 30 per cent or more. Because Mr Gievski elected to make his sub-s (4) application before applying for an impairment benefit this gateway was not available to him.
Pursuant to sub-s (8) the Authority is required, where serious injury is deemed under sub-s (7)(a), to accompany its advice with various relevant materials.
Subsection 134AB(9) reads:
If the Authority or self-insurer fails to advise the worker in writing within the period referred to in subsection (7) as required by subsection (7), the worker is deemed to have suffered a serious injury.
In this case the Authority advised Mr Gievski in response to his sub-s (4) application within the time provided by sub-s (7). Accordingly, this deeming gateway does not apply to Mr Gievski.
The worker has an opportunity within 28 days of receiving advice from the Authority to provide material rebutting material accompanying the advice.[13] In certain circumstances material not exchanged by the Authority with the sub-s (7) advice or by the worker before the expiration of the rebuttal period is inadmissible in subsequent proceedings under s 134AB.[14]
[13]ACA s 134AB(10).
[14]ACA s 134AB(11).
A framework for pre-litigation steps and for commencement of proceedings by a worker to recover damages is provided by sub-s (12). Those pre-litigation steps involve the making of a statutory offer by the Authority and a statutory counteroffer by the worker. Subsections (13) and (14) are deeming provisions which apply when those offers are not made within the timeframe provided.
Two further gateways for a worker to bring proceedings for recovery of damages in respect of an injury are contained in s 134AB(16), which reads:
If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(a) the Authority or self-insurer—
(i) is satisfied that the injury is a serious injury; and
(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b)a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.
Mr Gievski applied for serious injury on the basis of suffering a permanent serious impairment or loss of a body function,[15] relying on consequences in respect to both pain and suffering and loss of earning capacity. There are additional requirements imposed by s 134AB(38)(e) that must be met to satisfy the test for serious loss of earning capacity consequences. Relevantly in that regard sub-s (17) provides:
For the purposes of paragraphs (a) and (b) of subsection (16), a worker who satisfies subparagraph (i) of subsection (38)(b) but not subparagraph (ii) of that subsection, is entitled to bring proceedings in accordance with subsection (16)(b) for the recovery of damages for pain and suffering only.
[15]ACA s 134AB(37) (definition of ‘serious injury’).
Pursuant to sub-s (18) a worker must serve a copy of an application under sub-s (16)(b) on the Authority and on each person against whom the worker claims to have a cause of action. A sub-s (16)(b) application must be determined by a court in accordance with sub-s (19).
Analysis
Was there illegality in the exercise by the Authority of the power under s 134AB(7) and (16)(a) responding to the application by Mr Gievski made pursuant to sub- (4)?
This question is to be answered by construction of the ACA. That task involves analysis of the text of s 134AB, in particular sub-s (7) and s (16)(a), considered in the context of s 134AB as a whole, the ACA and associated legislation.[16]
[16] Commissioner of Taxation in Consolidated Media Holdings Ltd (212) 250 CLR 503, 549 [39].
The obligation imposed on the Authority in response to receiving a s 134AB(4) application is to advise the worker in writing in accordance with sub-s (7). The Authority is empowered to respond to a sub-s (4) application by providing a sub-s (7) advice stating whether or not it will issue a certificate under sub-s (16)(a). Pursuant to sub-s (16)(a)(i) a necessary condition to the Authority issuing a certificate is that the Authority is satisfied that the injury is a serious injury. To satisfy is:
To fulfil the desires, expectations, needs, or demands of, or content (a person, the mind, et cetera.); supply fully the needs of (a person et cetera.)[17]
Subsection 16(a)(i) does not impose on the Authority the obligation to determine whether the injury satisfies the definition of serious injury. Rather sub-s (16)(a)(i) directs attention to whether the expectations, needs or demands of the Authority ‘that the injury is a serious injury’ are fulfilled or fully met. If the Authority reaches that level of satisfaction it is empowered by sub-s (16)(a)(ii) to consider whether it will issue a certificate consenting to the worker bringing proceedings. To consent is:
To give assent; agree; comply or yield.[18]
Mr Gievski’s injury was not stable, and the future, especially in relation to loss of earning capacity consequences, was uncertain. I have concluded, for reasons which I express at [53] to [55], that there was sufficient basis for the Authority not to be satisfied that the injury was a serious injury, and for the Authority not to issue a certificate consenting to Mr Gievski bringing proceedings.
[17]Macquarie Dictionary (6th ed, 2013).
[18]Ibid.
The case for Mr Gievski is based on the function of the Authority being to ‘determine’ a sub-s (4) application by a worker, or to ‘determine’ serious injury. In paragraph [6] of the statement of claim Mr Gievski treats the Authority as having a ‘… jurisdiction to determine an application made to it under section 134AB(4)’, in the exercise of which ‘the Authority was bound to give genuine consideration to whether the alleged injury was a “serious injury”’. In paragraph [9] of the statement of claim Mr Gievski pleaded that on or about 13 June 2013 ‘the Authority purported to determine the Serious Injury Application …, and by its Purported Decision did not issue [Mr] Gievski a certificate under section 134AB(16)(a) …’. Mr Gievski’s submissions and pleadings do not reflect the text of s 134AB(a)(7) and 16(a). To determine is:
To settle or decide, by an authoritative decision.
To put an end to, or terminate.[19]
That is not the language used in s 134AB(7) and (16)(a). There is nothing in s 134AB which placed the Authority in the position of a decision-maker with jurisdiction to determine Mr Gievski’s serious injury application.
[19]Ibid.
The separate sub paragraphs (i) and (ii) in sub-s 16(a), joined by the conjunctive “and”, indicate a legislative intention that the Authority being satisfied the injury is a serious injury is a necessary but not sufficient condition to the Authority issuing a certificate consenting to the worker brining proceedings for the recovery of damages. There is nothing in the text of sub-ss (7) or (16)(a) which limits the matters the Authority can consider, when deciding whether or not to consent to a worker bringing proceedings, only to matters going to satisfaction by the worker of the test for serious injury in sub-ss (37) and (38). The context provided by s 134AB leads to the conclusion that matters, other than those relevant to the question of whether the injury is a serious injury, can properly be taken into account by the Authority in considering whether to consent to the worker bringing proceedings, including the matters raised in sub-s (1) to which I referred in paragraph [28]. As stated, there is nothing in sub-ss (7) or (16)(a) which precludes consideration of these matters by the Authority after receipt of the sub-s (4) application from a worker.
The Authority may not reach a conclusion about whether the injury is a serious injury, or in respect of one or more of the other matters to which I refer in paragraph [28], within 120 days of receiving an application. The Authority may wish to test aspects of the worker’s application in proceedings commenced pursuant to sub-s (16)(b). There is nothing in sub-ss (7) or (16)(a) which precludes the Authority from not issuing a certificate consenting to the bringing of proceedings either on the basis that it has not reached a level of satisfaction in relation to serious injury or in respect of one or more of the other matters to which it might have regard, or because of a desire to test the worker’s case. If the Authority does not issue a certificate consenting to the worker bringing proceedings for recovery of damages, the avenue available to the worker is to make application to a court pursuant to sub-s (16)(b). A court determining an application made pursuant to sub-s (16)(b) will consider whether injury to the worker satisfies the test for serious injury and, in addition, any of the sub-s (1) matters to which I have referred and which are put in issue by the circumstances of the case. Mr Gievski accepts that had he brought an application within time pursuant to sub-s 16(b), the court hearing the application would have been required to determine, if it remained an issue, whether his injury was a result of a transport accident. Determination by a court of a worker’s application made pursuant to sub-s (16)(b) does not involve review by the court of the decision of the Authority not to consent to the worker’s application. Exercise by the Authority of the sub‑s (16)(a) power does not involve a final determination of the worker’s rights.
A common law claim by a worker to recover damages in respect of an injury is not a claim for compensation under the Act. The function of the Authority in response to a claim for compensation is to assess the claim and to pay compensation to persons entitled under the Act. The right of a worker to damages in respect of an injury is a common law right which is outside the Act. A function of the Authority is to defend common law claims against employers.[20] The Authority is liable to indemnify an employer in relation to a claim for damages for injury by a worker,[21] and is entitled to defend common law proceedings on behalf of an employer to the exclusion of the employer and other insurers.[22] Exercise by the Authority of the power to decide whether or not it consents to a worker bringing proceedings is a step taken as part of the s 134AB scheme dealing with the common law rights of workers in respect of workplace injuries. It is a precursor either to proceedings in which the worker seeks leave pursuant to sub-s (16)(b), or to proceedings by the worker for recovery of damages issued pursuant to sub-s (12). In each case the contemplated proceedings are adversarial in nature and will invariably involve the Authority as defendant to the worker’s sub-s (16)(b) application, and likely involve the Authority as insurer of the employer defendant in damages proceedings. Upon the worker gaining the right to recover damages for injury, the Authority has the power pursuant to sub-s (12), to confer with the worker, to make a statutory offer to settle or compromise the worker’s claim, and to consider a statutory counteroffer made by the worker. Each power conferred on the Authority by s 134AB, including the power to decide whether or not to consent to the worker bringing proceedings for the recovery of damages, is also conferred on a self-insurer. The power being exercised by the Authority in response to a sub-s (4) application by a worker should be understood in this context. It is not a power to ‘determine’ the sub-s (4) application, but a power to decide whether it will consent to the worker bringing common law proceedings for recovery of damages in respect of an injury. Use of the words “advise”, “satisfied” and “consenting” to describe the function of the Authority reflects the role of the Authority as a party to potential proceedings with interests adverse to those of the worker, rather than as being an administrative decision maker with the function of determining the rights of the worker. I agree with the submission of the Authority that it had a free discretion to decide whether it would issue a certificate consenting to Mr Gievski bringing proceedings for recovery of damages.
[20]ACA s 20(1)(g).
[21]Accident Compensation (WorkCover Insurance) Act 1993 s 92.
[22]ACA s 129R.
The letter of 13 June 2003 from Lander & Rogers to Mr Gievski’s solicitors met the obligation of the Authority to advise Mr Gievski under s 134AB(7). I conclude that Mr Gievski has failed to establish illegality by the Authority in exercise of the power under sub-s 16(a). The Authority advised that it was not satisfied the injury to Mr Gievski was a serious injury, and that it would not issue a certificate under sub-s (16)(a). Given the medical evidence available in June 2013, the advice of the Authority was unsurprising. Even if it is the case that in performing its function under sub-ss (7) and (16)(a) the Authority took into account its view that the injury arose out of a transport accident, no illegality results. On the basis of this conclusion, Mr Gievski is not entitled to the declaratory relief sought, and the proceedings should be dismissed.
It is unnecessary for me to take the further step of deciding whether exercise by the Authority of the power under s 134AB(16)(a) is subject to the supervisory jurisdiction of the Court. However, for the following reasons I doubt declaratory the relief which Mr Gievski seeks is available in respect of such an exercise of power. First, s 134AB is concerned not with the rights of a worker to compensation under the ACA, but with the common right to damages, which is a right outside the Act. Secondly, the role of the Authority in respect of a claim for damages by a worker is insurer and party with a pecuniary interest in the proceedings. Thirdly, in performing that role the Authority is entitled to act in its self-interest when defending an application for leave to proceed under sub-s 16(b), when taking the pre-litigation steps under sub-s (12), and when defending common law proceedings. It seems likely that entitlement to act in self-interest extends to exercise by the Authority of the sub-s (16)(a) power. It is difficult to understand how the obligation which Mr Gievski seeks to impose on the Authority in relation to the exercise of the sub-s (16)(a) power can sit with the entitlement of the Authority to act in its own private interest. Fourthly, it is not the function of the Authority under s 134AB to determine the common law rights of a worker. When a determination of rights is called for, that function is performed by a court on application for leave to proceed under sub-s 16(b), or in respect of damages proceedings issued pursuant to sub-s (12).
It is not necessary for me to proceed further to determine other issues raised by Mr Gievski’s proceeding. However, given that these issues were the subject of comprehensive submissions by the parties, I will proceed to consider each issue.
Is the occurrence of a workplace injury to a worker other than as a result of a transport accident within the meaning and for the purposes of the TAA a jurisdictional fact?
In Saville v Hallmarc Construction Pty Ltd,[23] discussing the characteristics of jurisdictional fact by reference to a number of relevant authorities, the Court of Appeal stated:
[23][2015] 47 VR 177, [55]–[62].
55A jurisdictional fact is an event, fact, or circumstance which, as Dixon J observed in Parisienne Basket Shoes Pty Ltd v Whyte, is ‘made a condition upon the occurrence or exercise of which the jurisdiction of a court shall depend.’
56In City of Enfield v Development Assessment Commission, the High Court described a ‘jurisdictional fact’ as the criterion that must be satisfied before a statutory power is enlivened:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.
57This understanding was further reflected in Gedeon v Commissioner of the New South Wales Commission:
The expression ‘jurisdictional fact’ ... is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
58In Gedeon, the Court illustrated the meaning of ‘jurisdictional fact’ by reference to an observation by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd in which an industrial body could not begin to deal with the issue of rates of remuneration unless it first determined that the rates were anomalous:
The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd:
‘The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act — it is a condition of jurisdiction.’[24]
[24]Citations omitted.
In relation to the issue of jurisdictional fact, Dixon J observed in Parisienne Basket Shoes Pty Ltd v Whyte:[25]
It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court, were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.
[25]59 CLR 369, 391.
For the following reasons I conclude that the occurrence of injury to Mr Gievski arising out of or in the course of employment with Highrise other than as a result of a transport accident within the meaning and for the purposes of the TAA was not a jurisdictional fact relevant to the exercise of ‘jurisdiction’ by the Authority as a ‘decision-maker’ in respect of Mr Gievski’s s 134AB(4) application. First, the function of the Authority was to receive the application and to advise within a specified period whether or not it would issue a certificate under sub-s (16)(a) consenting to Mr Gievski bringing proceedings to recover damages for the injury. Secondly, for reasons which I have already expressed, the Authority had free discretion to decide whether or not it would consent. Thirdly, if as occurred in response to his application, the Authority did not issue a certificate consenting to Mr Gievski bringing proceedings, all issues relevant to the application, including the issue of whether the injury was a result of a transport accident, fell to be determined by a court under sub‑s (16)(b). The fact that there was a readily available avenue for Mr Gievski to challenge whether the injury was a result of a transport accident renders it less likely that issue is a jurisdictional fact. Fourthly, there is no clearly expressed intention in the Act that the occurrence of a workplace injury arising other than as a result of a transport accident is a jurisdictional fact to exercise by the Authority of the power in sub-s (7) and s 16(a). Nor is there anything in the Act which necessarily leads to that implication. Fifthly, as I have already concluded, one matter the Authority could properly take into account in exercising the power under sub-s (16)(a)(ii) was whether the injury to Mr Gievski was a result of the transport accident. This conclusion alone is sufficient to dispose of Mr Gievski’s jurisdictional fact argument.
I would conclude, if it were necessary, that the occurrence of a workplace injury to a worker other than as a result of a transport accident is not a jurisdictional fact to the exercise of the power by the Authority to decide s 134AB (16)(a) whether or not it will issue a certificate consenting to the worker bringing proceedings for recovery of damages in respect of an injury.
Was there jurisdictional error by the Authority in the exercise of power under s 134AB(16)(a) of the ACA in response to Mr Gievski’s application under sub‑s (4)?
Mr Gievski submitted that the Authority’s ‘purported decision’ is vitiated by jurisdictional error because the Authority:
(a) identified or asked the sole question of whether the injury was caused by a ‘transport accident’, and did not identify or ask the other relevant question, namely whether it was a ‘serious injury’;
(b) ignored relevant material, being the evidence of ‘serious injury’;
(c) relied (in a determinative way) on irrelevant material, that is evidence of a ‘transport accident’; and
(d) reached a conclusion as to ‘serious injury’ that was not open to it on the available evidence or which no reasonable decision-maker could have reached in the circumstances.
Mr Gievski has not established any failure by the Authority to consider whether it was satisfied that the injury was a serious injury. The letter of advice from Lander & Rogers of 13 June 2013 clearly stated that the Authority was not satisfied that Mr Gievski suffered a serious injury within the meaning of s 134AB, and advised that the Authority would not issue a certificate to Mr Gievski under sub-s (16)(a). Mr Gievski submitted that despite the content of the letter of advice, I should infer that the Authority gave no genuine consideration to the issue of serious injury because:
(a) The letter of advice was a standard form response which included reference to a s 104B assessment of impairment when such an assessment had not in fact been undertaken. The Court should infer that the reference to consideration of serious injury in the letter was also part of a standard form response.
(b) The comments of Ms Rizkalla in conversation with Mr Pagic on 3 June 2013 were consistent with the reason for refusal being the Authority’s view that the injury was a result of a transport accident, and inconsistent with the Authority having given genuine consideration to the issue of serious injury.
(c) In an email sent on 18 June 2014 to the arbitrator charged with resolving the dispute between the Authority and TAC, Mr Hill, senior legal counsel of the Authority, spoke prospectively about the responsibility of the Authority to consider ‘the serious injury question’, which is evidence that the issue of serious injury had not yet been considered by the Authority.
(d) The Authority reached a conclusion as to serious injury that was not open to it on the available evidence or which no reasonable decision maker could reach. The Authority, as a model litigant, led no evidence to establish genuine consideration of the issue. Had the Authority given genuine consideration to serious injury, the Court could expect that evidence to be led.
I do not accept these submissions. The evidence of Mr Pagic as to what was said by Ms Rizkalla in the conversation of 3 June 2013 is as follows:
The conversation concluded by Ms Rizkalla telling me that it’s a shame, as it’s a, um, good case that I have. ‘It’s a good one’, she said, using those particular words.
That evidence indicates Ms Rizkalla had considered the merits of the case, which would necessarily include consideration of whether Mr Gievski would satisfy the test for serious injury. However, there were good reasons, other than the issue of transport accident, for the Authority not to be satisfied that the injury to Mr Gievski was a serious injury. In his sub-s (4) application Mr Gievski relied on both pain and suffering and loss of earning capacity consequences. The medical evidence was that Mr Gievski was still undergoing surgical treatment, that his injury was not stable, and that assessment of loss of earning capacity consequences could not be made for some time. The lack of stability of the injury and uncertainty as to loss of earning capacity consequences was a sufficient basis for the Authority in June 2013 not to be satisfied that the injury to Mr Gievski was a serious injury. In submissions Mr Gievski now raises the novel argument that when responding to that application the Authority should have given its consent to Mr Gievski bringing proceedings for pain and suffering damages even if it decided not to consent in relation to loss of earning capacity. Mr Gievski agrees that this argument, if accepted, would result in parallel proceedings, the pain and suffering claim going through the sub-s (12) steps to the issuing of common law proceedings, and the loss of earning capacity claim lagging in a sub-s (16)(b) application and, if successful, going through the sub-s (12) steps to common law proceedings at a later date. I doubt this submission has substance. It runs directly counter to the s 134AB scheme for resolution of applications to bring proceedings for recovery of damages and of the damages claims. However, the simple answer to the submission of Mr Gievski is that in not giving its consent the Authority was responding to the application he made, that is an application to bring proceedings for both pain and suffering and loss of earning capacity. The advice of the Authority that it was not satisfied that Mr Gievski’s injury was a serious injury was unsurprising given the basis on which Mr Gievski made application and the state of the evidence as to serious injury in June 2013.
The email of 18 June 2014 in which Mr Hill spoke prospectively of the need to consider the issue of serious injury does not assist Mr Gievski. At that stage Mr Gievski had made application against the Authority, albeit out of time, seeking leave of a court to bring common law proceedings under sub-s (16)(b). Mr Gievski still had the opportunity to apply to the Authority under sub-s (20) to extend the time to issue that application. Had the sub-s (20) application been accepted, the issue of serious injury between Mr Gievski and the Authority would have remained alive. The sub-s (20) application was refused by the Authority on 18 March 2015. Had the dispute management arbitrator determined differently, the issue of serious injury would still have been alive under the provisions of the TAA. Looked at in that context the language used by Mr Hill is not inconsistent with the Authority having considered the issue of serious injury under sub-s (16)(a)(i) at the time it gave the advice to Mr Gievski on 13 June 2013.
Further, in deciding whether or not it would issue a certificate consenting to Mr Gievski bringing proceedings for recovery of damages in respect of the injury, the Authority was entitled to consider whether the injury was a result of a transport accident. The Authority formed the view that Mr Gievski’s injury was a result of a transport accident. That was a sufficient basis for the Authority to decide that it would not consent to the bringing of proceedings.
Mr Gievski has not established jurisdictional error in exercise by the Authority of the power under sub-s (16)(a) of the ACA.
Should the relief sought by Mr Gievski be refused because of lack of utility?
Mr Gievski’s challenge to the response of the Authority to his sub-s (4) application was not directed to the 13 June 2013 advice given by the Authority in accordance with sub-s (7), but to the anterior ‘Purported Decision’ which he submitted amounted to a failure by the Authority ‘to perform its duty to consider and determine the “serious injury application” according to law’. Mr Gievski submitted there was no reason why the Authority could not now discharge its duty to determine his ‘serious injury application’. The Authority was obliged to advise Mr Gievski of the outcome of that determination. It was submitted there was nothing in sub-s (7) which precluded the Authority from providing to Mr Gievski a further advice beyond the initial 120 day period.
I reject Mr Gievski’s submissions. Section 134AB provides a strict timeframe for the taking of steps which are preliminary to proceedings being issued by a worker for recovery of damages in respect of an injury. The steps in respect of which the Act imposes a strict timeframe include the time for the Authority to respond to a sub-s (4) application by providing the sub-s (7) advice, the time for a worker to make application pursuant to sub-s (16)(b) if serious injury is not deemed and the Authority does not consent, and the time for taking pre-litigation steps and for issuing proceedings to recover damages imposed by sub‑s (12). The legislation does not contemplate the Authority providing further advice under sub-s (7) beyond the period of 120 days after it received the sub-s (4) application. The only basis contemplated by the legislation for extension of the period for the worker to make application pursuant to sub-s (16)(b) is the limited circumstance contemplated by sub-s (20). Further, the Act does not contemplate the worker, in effect, having a second opportunity to seek the consent of the Authority to bring proceedings for recovery of damages for an injury. Subsection 21 provides that a worker having made an application under sub-s (4) in respect of an injury must not make a further application in respect of that injury.
There is no statutory basis for the Authority to give a further advice under sub-s(7). I conclude that even if the relief sought by Mr Gievski were available to him, I should decline to make the declaration sought because to do so would lack utility.
Conclusion
Mr Gievski has failed to establish a basis for the granting of declaratory relief which he seeks. The proceeding will be dismissed. I will hear from the parties as to any consequential orders.
0
2
0