LOWER COURT JUDICIAL OFFICER: Deputy President Bill Roche
LOWER COURT DATE OF DECISION: 23 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION: [<i>Lintipal Pty Ltd v Jeffery</i>] [2007] NSWWCCPD 118
COUNSEL: W Carney (Appellant) L King SC/P Rickard (Respondent)
SOLICITORS: Higgins & Higgins, Lithgow (Appellant) Goldbergs, Sydney (Respondent)
CATCHWORDS: ADMINISTRATIVE LAW – judicial review – error “in point of law” – non-interference with factual findings – [<i>Workplace Injury Management and Workers Compensation Act</i>] 1998 (NSW) s 353 COSTS – non-compliance with rules relating to preparation of appeal books WORDS & PHRASES – “in point of law” – “reasonable action” WORKERS’ COMPENSATION – entitlement to compensation – exclusions – transfer of employee – whether reasonable action taken by employer – objective assessment of reasonableness – belief in reasonableness of third party’s actions – whether direction to transfer was contractually binding – [<i>Workplace Injury Management and Workers Compensation Act</i>] 1998 (NSW) s 234 WORKERS’ COMPENSATION – transfer of employee – employer acting on direction of education authority – employer contractually obliged to act on direction – whether contracting out of workers’ compensation legislation –[<i>Workers Compensation Act</i>] 1987 (NSW) s 11A
LEGISLATION CITED: [<i>Anti-Discrimination Act</i>] 1977 (NSW), s 49I Uniform Civil Procedure Rules 2005 (NSW), Pt 51, Div 5, Subdiv 3 [<i>Workers Compensation Act</i>] 1987 (NSW), ss 11A, 40 [<i>Workplace Injury Management and Workers Compensation Act</i>] 1998 (NSW), ss 234, 352, 353
DECISION: (1) Allow the appeal and set aside the decision of Deputy President Roche made on 23 May 2007. (2) Remit the employer’s appeal against the decision of the Arbitrator of 11 January 2007 to the Workers Compensation Commission, constituted by a Presidential member, for further consideration according to law. (3) Order the respondent to pay the appellant’s costs of the proceedings in this Court. (4) Grant the respondent a certificate under the [<i>Suitors’ Fund Act</i>] 1951 (NSW), unless disqualified pursuant to s 6(7).
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40391/07 WCC 14994/06
HODGSON JA BASTEN JA REIN J
17 June 2008
Peter Lewis JEFFERY v LINTIPAL PTY…
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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AGLC
Jeffery v Lintipal Pty Ltd [2008] NSWCA 138
Case
[2008] NSWCA 138
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over workers' compensation entitlement, specifically regarding a psychological injury. The appellant, Jeffery, sought compensation from the respondent, Lintipal Pty Ltd, for a psychological injury allegedly caused by a transfer. The matter came before the Supreme Court of New South Wales, Court of Appeal, after a decision by Deputy President Roche of the Workers Compensation Commission.
The primary legal issue before the Court of Appeal was whether the Deputy President had erred in law in determining that no compensation was payable under section 11A of the *Workers Compensation Act 1987* (NSW). This section excludes compensation for psychological injury caused by "reasonable action taken or proposed to be taken by or on behalf of the employer". The appellant contended that the Deputy President had erred by considering the employer's contractual obligation to follow the direction of an education authority when assessing the reasonableness of the transfer, arguing that this amounted to contracting out of the employer's obligations under the *Workplace Injury Management and Workers Compensation Act 1998* (NSW).
The Court of Appeal found that the Deputy President had erred in law. While acknowledging that the test for reasonableness under section 11A is objective, the Court held that the Deputy President's reasoning had been unduly influenced by the employer's contractual obligations to a third party. The Court emphasised that section 234 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) prohibits contracting out of the Act's provisions, meaning an employer cannot rely on contractual duties to justify actions that would otherwise be unreasonable or lead to a breach of its workers' compensation obligations.
The Court of Appeal allowed the appeal, set aside the decision of Deputy President Roche, and remitted the employer's appeal to the Workers Compensation Commission for further consideration according to law. The respondent was ordered to pay the appellant's costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the decision of Deputy President Roche made on 23 May 2007. (2) Remit the employer's appeal against the decision of the Arbitrator of 11 January 2007 to the Workers Compensation Commission, constituted by a Presidential member, for further consideration according to law. (3) Order the respondent to pay the appellant's costs of the proceedings in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW), unless disqualified pursuant to s 6(7).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
This Court has remarked on more than one occasion that it may decline to order the recovery of costs of preparation of appeal books that fail to comply with the relevant Court rules. The Court may also direct that the costs of preparing the appeal books not be recoverable by solicitors from their client. No limitation of the usual costs’ order having been sought by the respondent, no limitation should be imposed. Nevertheless, the concern may be noted in the hope that continued statements by the Court will reduce the extent to which the relevant Court rules are honoured in the breach rather than the observance, particularly when combined with the risk that a defaulting solicitor may be deprived of his or her costs.Conclusions Accordingly, I propose the following orders:(1)Allow the appeal and set aside the decision of Deputy President Roche made on 23 May 2007.(2)Remit the employer’s appeal against the decision of the Arbitrator of 11 January 2007 to the Workers Compensation Commission, constituted by a Presidential member, for further consideration according to law.(3)Order the respondent to pay the appellant’s costs of the proceedings in this Court.(4)Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW), unless disqualified pursuant to s 6(7). REIN J: Section 11A of the Workers Compensation Act 1987 (“the Act”) is in the following terms:“No compensation for psychological injury caused by reasonable actions of employer(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.” This case throws up the question of how “reasonable action taken or proposed to be taken by or on behalf of the employer” is to be determined in circumstances where the employee in question is engaged in work exclusively at the premises of a client of the employer. As Basten JA has outlined, the Deputy President concluded that the employer’s conduct had been reasonable and hence by virtue of s 11A of the Act, that no compensation was payable. The grounds of appeal had included a contention that the psychological injury caused by the Appellant had not been caused by the transfer and hence that s 11A could not apply at all but this ground was abandoned at the commencement of the hearing of the appeal : see T1 (30 May 2008). The Appellant also accepted that the test of reasonableness was an objective test and that the Deputy President had correctly summarised the law on this aspect in [42]-[44] of his judgment, see Red Book pp 468-9. The Appellant asserted that the Deputy President had erred in law in his approach to the matter because he had acted on the basis that if the employer had not followed the direction given by the Department it would have been in breach of contract and that even if the employer was in breach of its contract with the Department, that ought not be determinative of reasonableness because an employer is not permitted to contract out of its obligations under the Act by virtue of s 234 of the Workplace Injury Management and Workers Compensation Act 1998, which provides:“No contracting out(cf 1926 s 45; 1987 s 272)This Act and the 1987 Act apply despite any contract to the contrary.” (See T5, 30 May 2008).