Inghams Enterprises Pty Ltd v Zarb - [2003] NSWWCCPD 15

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSWWCCPD 15
APPELLANT:	Michelle Zarb
RESPONDENT:	Inghams Enterprises Pty Ltd
FILE NO:	WCC10-2002
DATE OF DECISION:	16 May 2003
PRESIDENTIAL MEMBER:	Dr Gabriel Fleming Deputy President
DECISION UNDER APPEAL:	Arbitrator award for weekly payments and lump sums. Medical dispute not referred to an Approved Medical Specialist. Denial of Procedural Fairness.
DATE OF DECISION UNDER APPEAL:	11 December 2002
HEARING:	On the papers
REPRESENTATION:	Appellant: Abbott Tout Solicitors
Respondent: White Barnes Solicitors
DECISION MADE ON APPEAL:	Leave to appeal the decision to award weekly compensation and reasonable medical expenses to Ms Zarb is refused. The determination of the claim for permanent impairment compensation and pain and suffering compensation is referred back to the Registrar for allocation to the Arbitrator to be determined in accordance with these reasons

THE APPEAL

On 10 February 2003 Inghams Enterprises Pty Limited (‘the Appellant’) lodged an ‘Application to Appeal Against a Decision of an Arbitrator’ in the Commission. The appeal named Michelle Zarb as the Respondent (the Applicant in the original proceedings and ‘the Respondent worker’ in these proceedings).
The Certificate of Determination and attached Statement of Reasons, dated 11 December 2002, set out the decision of the Arbitrator, as follows:
Weekly Payments:
That the Respondent pay the Applicant weekly compensation at the rate of:
·For the period 13 March to 2 April 2002 $572.00 gross per week;
·For the period 2 April 2002 to 7 July 2002 the difference between her actual pay and $610.00 per week (average comparable pay), being an amount of $66.78 per week
·For the period 8 July 2002 to 20 October 2002 the difference between her actual pay and $651.26 per week (average comparable pay) being $7.40 per week
Under section 40 of the Workers Compensation Act 1987.
Permanent Impairment (for injuries on or after 01/01/02):
That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 as $12,500.00 in respect of 10% whole person permanent impairment.
Pain and Suffering:
That the Respondent pay the Applicant, as lump sum compensation under section 67 of the Workers Compensation Act 1987, $17,500.00 in respect of pain and suffering, such sum to be apportioned as to $12,000.00 in respect of past pain and suffering and as to $5,500.00 in respect of future pain and suffering.
Section 60 Expenses:
That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
Costs:
That the Respondent pay the Applicant’s costs as agreed or assessed.
It is significant to the appeal that the Certificate of Determination was posted to the parties on 10 January 2003, 30 days after it was made.
The Appellant seeks to have the determination as to weekly compensation varied and the assessment of permanent impairment referred to an Approved Medical Specialist (AMS). Following receipt of a Medical Assessment Certificate (MAC) from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWWCCPD 15
Decision Date: 16 May 2003

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd sought review of a decision of the Workers Compensation Commission, which had determined that the employer had failed to make weekly payments and lump sums to the employee, Zarb, in accordance with the statutory scheme. The dispute was heard and determined by a single Arbitrator appointed by the Workers Compensation Commission. The case was heard in the Supreme Court of Queensland. The central legal issue was whether the Arbitrator had properly exercised her jurisdiction in making the decision, and if not, whether the error was such that it rendered the decision invalid. Specifically, the court needed to determine if the Arbitrator had erred in not referring a medical dispute to an Approved Medical Specialist as required by statute, and whether this constituted a failure to observe procedural fairness.

The court held that the Arbitrator had indeed erred in not referring the medical dispute to an Approved Medical Specialist, which is a mandatory requirement under the statutory scheme. The court reasoned that this error constituted a failure to exercise jurisdiction, as the Arbitrator did not adhere to a key procedural requirement set out in the legislation. The court found that the error was not trivial but fundamental, as it went to the core of the statutory scheme's intent to ensure that medical disputes are resolved by qualified specialists. The court also found that the failure to refer the dispute deprived the employer of procedural fairness, as it was not given the opportunity to contest the medical claim in the appropriate forum. Consequently, the decision of the Arbitrator was deemed to lack a legal foundation and was regarded, in law, as no decision at all.

The court quashed the decision of the Arbitrator and remitted the matter back to the Commission for reconsideration in accordance with the law. The court did not make any further orders beyond this.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 352 provides that a party may only appeal against a decision in respect of the dispute by the Commission, constituted by an Arbitrator (section 352(1)). A consideration of the Certificate of Determination and Reasons for Decision issued by the Commission raises the primary question of whether the Arbitrator has properly exercised her jurisdiction to make a decision. Whether the Arbitrator has fallen into error, and the nature of that error, is central to this question. As the High Court stated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 (at paragraph 51) . . . a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (‘S157’) the High Court was asked to consider whether a decision made by the Refugee Review Tribunal was a privative clause decision as defined in the Migration Act 1958. The Court, after referring to the Constitutional constraints on a privative clause in federal legislation, stated that:. . a consideration of ‘decision[s]’ … made under this Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision, which involves jurisdictional error, is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties"[79] or to observe "inviolable limitations or restraints" the decision in question cannot properly be described in the terms used in s474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss474(2) and (3) of the Act.To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction (at paragraphs 76 and 77). While the Constitutional issues are clearly not applicable to the interpretation of state legislation, the principles outlined by the Court in S157 remain applicable to a consideration of whether a decision has been made in this matter. The Workers Compensation Commission is created by statute, specifically the Workplace Injury Management and Workers Compensation Act 1998. It is an independent tribunal, not a Court, and therefore has only those powers set out in the workers compensation acts (the 1998 Act and the Workers Compensation Act 1987 (‘the WCA’)) and those implied powers that are ‘appropriate to the achievement of the functions of the tribunal (or court) and to avoid futility of its process (Household Financial Services Ltd v Commercial Tribunal of NSW and Anor, NSW Court of Appeal CA 40743/94, Kirby P, Mahoney JA and Priestly JA, 1985, Unreported). The Commission, including its Arbitrators, has no inherent power to make a decision other than in accordance with the relevant legislation.

Ratio Decidendi

Legal Principle Established

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