He v L & J Precision Joinery & Kitchen
[2005] NSWWCCPD 100
•29 August 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:He v L & J Precision Joinery & Kitchen [2005] NSWWCCPD 100
APPELLANT: Xiao Bin He
RESPONDENT: Chuan Min Xu & Yong Liang Bao as trustees for Xu & Bao Family Trust trading as L & J Precision Joinery & Kitchen
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC14740-04
DATE OF ARBITRATOR’S DECISION: 30 March 2005
DATE OF APPEAL DECISION: 29 August 2005
SUBJECT MATTER OF DECISION: Sections 151A, 151C and 151D of the Workers Compensation Act 1987; election to commence proceedings in the District Court, and preclusion from commencing proceedings in the Workers Compensation Commission.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Keddies Litigation Lawyers
Respondent: Rankin Nathan Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 April 2005 Xiao Bin He, the Appellant sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 29 March 2005 (but see paragraphs 11 and 12, below).
The Respondent to the Appeal is Chuan Min Xu & Yong Liang Bao as Trustees for Xu & Bao Family Trust trading as L & J Precision Joinery and Kitchen. The Respondent is described in a number of ways in the various documents in the file. However, after reading the documents, it would appear that the legal arrangements of the Respondent are correctly reflected in the way the Respondent is now described in this appeal.
The Insurer is GIO Workers Compensation (NSW) Limited.
Mr He claims that on 17 August 2001 he suffered an injury to his right hand and right index finger when he was cleaning a machine, arising out of or in the course of his employment with L & J Precision Joinery and Kitchen. Mr He notified L & J Precision Joinery and Kitchen of the injury on 17 August 2001 and made a claim for workers compensation on 1 September 2001.
On 26 November 2001 Mr He filed a Statement of Claim in the District Court seeking common law damages for the injuries stated above. L & J Precision Joinery and Kitchen was the Defendant in those proceedings, and argued that the proceedings had been commenced in breach of section 151C of the Workers Compensation Act 1987 (‘the 1987 Act’) in that they had commenced within 6 months of the date of the injury. On 5 April 2004 the District Court proceedings were dismissed with the consent of the parties. On 17 June 2004 Mr He lodged a claim with L & J Precision Joinery and Kitchen and the Insurer for permanent loss compensation in the sum of $17,500 under section 66 of the 1987 Act and $25,000 under section 67 of that Act. The Insurer denied liability.
On 20 September 2004 Mr He lodged an ‘Application to Resolve a Dispute’ in the Commission in respect of the same claim.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 29 March 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. The Applicant is precluded by the operation of section 151A of the 1987 Act as it was immediately in force prior to 27 November 2001 from bringing these proceedings in the Commission for permanent loss compensation pursuant to sections 66 and 67 of the 1987 Act.
2. The application by the Applicant for relief in terms of section 66 and 67 of the Act is therefore dismissed.
3. No order as to costs.”
THE ISSUE IN DISPUTE
The issue in dispute in this appeal is the threshold issue as to whether the Arbitrator erred in finding that Mr He is not entitled to bring an application for lump sum compensation for permanent impairment and pain and suffering, in the Commission, by reason that he made an irrevocable election under section 151A of the 1987 Act, as provided at the relevant time, to commence proceedings in the District Court.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)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 without holding any conference or formal hearing.”
Mr He seeks leave to make oral submissions in addition to the written submissions made on appeal. L & J Precision Joinery & Kitchen submits that the appeal can be determined on the basis of written submissions made, without the need for oral submissions. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and taking into account the written submissions made by the parties, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
According to the date stamp on the document, ‘Appeal Against Decision of Arbitrator’, the appeal was lodged in the Commission on 27 April 2005. The Certificate of Determination in relation to the Arbitrator’s decision is dated 29 March 2005. On the face of it, the appeal was not lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However, according to a note on the file, Mr He’s solicitor was informed by a Commission officer that the dates on the Certificate of Determination and its covering letter from the Registrar are inconsistent, and for the purposes of lodging the appeal, the date of the decision should be taken as 30 March 2005, being the date recorded on the covering letter. Whether the date noted on the Certificate of Determination is an ‘obvious error’ or not, is not stated, but it is reasonable to draw the inference that it is incorrect, having regard to the advice provided, and formally noted in the file. In any event, Mr He’s solicitor apparently acted in good faith, relying upon the advice given by the Commission officer.
It would be manifestly unfair to refuse leave to appeal the decision, in these circumstances. For the purposes of section 352(4) of the 1998 Act, I regard 30 March 2005 as the date of the Arbitrator’s decision. Accordingly, I find that the appeal was lodged within 28 days of that decision.
The amount of compensation at issue on appeal exceeds $5,000, but no amount of compensation was awarded by the Arbitrator. Section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application: (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
I have carefully perused the submissions of both parties, the documents and submissions that were before the Arbitrator and the Arbitrator’s Statement of Reasons for Decision. The issue in dispute in this appeal is the same issue that has arisen in the Commission on previous occasions, supported substantially by the same lines of legal argument and authority. I consider in the circumstances, that there is no need to restate the written submissions made and the contents of the other documents that are before me.
DISCUSSION AND FINDINGS
The precise issue in this appeal has been determined in the New South Wales Court of Appeal in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’). That case was in turn, considered and discussed on appeal in the Commission in Wide Hanson Bros Pty Ltd v Zhen Xiu Cai [2005] NSW WCC PD 93; Sydney Water Corporation v Singh [2005] NSW WCC PD 92; Thien Vu Huynh v Andison International Pty Ltd [2005] NSW WCC PD 86; Maiorana v Ranieri & Giubega Pty Ltd t/as All Seasons Fruit Market [2005] NSW WCC PD 85; Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59).
In Gordon the Court of Appeal held that section 151C of the 1987 Act, as it then was, is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings. However, the Court found that proceedings commenced in contravention, “at least in an inferior court”, are not a nullity or void. Mason P cited a number of relevant authorities at [36] in support of this finding, stating that they all recognised that the purpose of provisions such as section 151C of the 1987 Act was to promote settlement before commencement of court proceedings. He went on to say at [40], “It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity.”
Mason P further stated that inquiry should be made to discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. He observed at [42], (Sheller and Beazley JJA agreeing), that section 151C(1) “does not erect a jurisdictional preclusion”. The Court of Appeal held accordingly, that the section was not found to reflect the requisite legislative intention that nullity is the consequence of non-compliance, as “per the principles stated in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 358.”
I find therefore, that the proceedings commenced by Mr He in the District Court was not a nullity.
This issue was dealt with on appeal in the Commission in slightly different circumstances in Cardona v Penrith City Council [2003] NSW WCC PD 36, where the Deputy President observed that, notwithstanding that the proceedings commenced may have been incompetent, it does not mean that they were not commenced at all.
In relation to the position with regard to section 151D of the 1987 Act, I agree with the finding of the Arbitrator at paragraph 31 of her Statement of Reasons for Decision, for the reason stated.
The relevant section of the 1987 Act has been amended subsequent to the election having been made by Mr He. The Arbitrator has set out the earlier, relevant provisions, as they apply in this matter, in her Statement of Reasons for Decision.
In the circumstances, I find that the Arbitrator did not err in finding that Mr He is not entitled to bring an application for lump sum compensation for permanent impairment and pain and suffering in the Commission by reason that he made an irrevocable election under section 151A of the 1987 Act, as provided at the relevant time, to commence proceedings in the District Court.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of the appeal.
Gary Byron
Deputy President
29 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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