Kanajenahalli v State of New South Wales (Western New South Wales Local Health District)

[2023] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202

Hearing dates:

On the papers

Decision date:

30 August 2023

Before:

Leeming JA; Adamson JA; Basten AJA

Decision:

1. To the extent necessary, grant leave to appeal.

2. Appeal allowed.

3. Set aside the opinion, being a decision pursuant to s 353(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), of Deputy President Wood delivered on 18th January 2023 and in lieu thereof declare that neither the decision of Member Burge nor the appeal to the Personal Injury Commission involves or has involved the exercise of judicial power within Ch III of the Constitution (Cth).

4. Remit the matter to the President of the Personal Injury Commission to be determined according to law.

5. No order as to the costs in this Court.

Catchwords:

CONSTITUTIONAL LAW – federal jurisdiction – whether Personal Injury Commission exercised judicial power when determining claim brought by resident of Queensland against employer State of New South Wales – common ground that Commission exercised administrative power in this case – appeal allowed by consent – short reasons given

Legislation Cited:

Judiciary Act 1903 (Cth), s 78B

Personal Injury Commission Act 2020 (NSW), ss 56, 57, 59

Workers Compensation Act 1958 (Vic)

Workers Compensation Act 1987 (NSW), s 11A

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353

Cases Cited:

Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476

Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146

Searle v McGregor [2022] NSWCA 213; 405 ALR 556

Category:

Principal judgment

Parties:

Mohan Kanajenahalli (Appellant)
State of New South Wales (Respondent)
Attorney General for New South Wales (Intervener)

Representation:

Counsel:
D Baran and J Beran (Appellant)
P Perry (Respondent)
J Taylor (Intervenor)

Solicitors:
Stacks Law Firm (Appellant)
Hicksons (Respondent)
Crown Solicitor’s Office (Intervenor)

File Number(s):

2023/00030668

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Citation:

[2023] NSWPICPD 1

Date of Decision:

18 January 2023

Before:

Deputy President Elizabeth Wood

File Number(s):

A1-W4275/21

Judgment

1. THE COURT: The appellant, Mr Mohan Kanajenahalli, formerly worked at Dubbo Base Hospital as an unaccredited trainee in Paediatrics and Child Health. He notified his employer (the State of New South Wales) that he had suffered a psychological injury in the course of his employment. His claim was rejected. He commenced proceedings in the Personal Injury Commission for weekly payments of compensation, treatment expenses and a lump sum pursuant to the Workers Compensation Act 1987 (NSW). A certificate of determination was issued by the Commissioner constituted by a Member Burge. The State appealed.

2. Deputy President Wood listed the appeal for directions so that the parties might be heard on a preliminary point raised by neither of them, namely, whether the Commission could determine the dispute, because (as was common ground) Mr Kanajenahalli resided in Queensland at the time proceedings were commenced. Both sides submitted that the Commission was not a court of a State and, because it was exercising administrative power, it had jurisdiction to hear and determine the claim and the appeal. However, the Deputy President considered that the Member had exercised judicial power in issuing the certificate, and the appeal likewise would amount to an exercise of judicial power, neither of which was permissible: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476. She noted the statements in Searle v McGregor [2022] NSWCA 213; 405 ALR 556 at [21] that it was questionable whether the determination of statutory benefits for workers compensation involved the exercise of judicial power, and that statutory workers compensation benefits in the federal sphere have long been determined by an administrative agency (Comcare) with review rights to the Administrative Appeals Tribunal. In particular, Kirk JA (with whom Bell CJ and Ward P agreed) stated:

19   It was suggested to this Court by senior counsel for Mr McGregor that PIC has taken the view that it is incapable of exercising any decision-making authority whatsoever in relation to claims which, if and when any aspect of the dispute was to be litigated, would fall within federal jurisdiction. If PIC has taken that view it is mistaken. What PIC is precluded from doing is taking steps which involve the exercise of judicial power in matters which would fall within federal jurisdiction. It is not precluded from exercising powers which are not judicial in relation to issues arising in the course of dealing with such disputes, even if any ultimate resolution of (say) a claim for damages would involve the exercise of judicial power needing to be determined by a court.

3. However, the Deputy President relied on Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 at [39], where Ipp JA (Spigelman CJ and Handley JA agreeing) said of the Workers Compensation Commission (NSW) that “[u]ndoubtedly the Commission does exercise judicial powers”. On the basis of that authority the Deputy President concluded that in this case the Personal Injury Commission was unable to determine the appeal and that the Certificate of Determination had been issued without jurisdiction. She stayed the appeal for three months, with the intention that the proceedings would be remitted to a court.

4. It should be noted that the statement in Orellana-Fuentes was made as an initial step in a determination that the Commission was, nevertheless, not a court. A powerful consideration in reaching that conclusion was the role of medical specialists, of which it was said at [51] that “medical specialists are given far-reaching decision-making powers of a fundamentally judicial nature.” This statement suggests that a broad view of the nature of “judicial powers” was applied; otherwise, there was little to reveal the basis of the finding as to the function of the Commission expressed in global terms (and as to “powers”, rather than “power”). The context was an argument that there was a general law right to legal representation in the Commission, which was effectively precluded by the promulgation of an unduly low fee scale, an argument which did not appear to apply to medical examinations.

5. Mr Kanajenahalli has appealed pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). His appeal is said to be as of right. That may be doubted, because it is, to say the least, far from clear that the temporary stay issued by the Commission is not an interlocutory order within the meaning of s 353(4)(a). However, the appeal gives rise to a question of principle, and is a clear case for the grant of leave if leave be necessary.

6. The appeal was set down for hearing on 23 August 2023. That date was appointed in April 2023, with directions for the filing and service of submissions thereafter. Mr Kanajenahalli’s written submissions maintained that neither the Member nor the Deputy President was exercising judicial power. The respondent agreed. Following the issue of notices pursuant to s 78B of the Judiciary Act 1903 (Cth), the Attorney General for New South Wales intervened, and filed submissions dated 21 June 2023 to the effect that, on balance, the Commission exercised administrative power in this case.

7. Shortly before the hearing, this Court notified the parties that they appeared to be in agreement as to the orders to be made resolving the appeal, and that a hearing might not be necessary. The Court also indicated it would make the orders to which all parties agreed, accompanied by short reasons.

8. We share the parties’ view that the Commission, in this case, was exercising administrative power. Although originally the State disputed that Mr Kanajenahalli had suffered any injury, the only contested issue before the Member when the proceeding was heard was whether his injury was caused by the reasonable conduct of the State with regard to performance appraisal and/or discipline. (There was also, potentially, an issue as to the whole person impairment of Mr Kanajenahalli, which would be determined by a medical assessor in the event that the State was liable.) The sole issue before the Commission arose because s 11A(1) of the Workers Compensation Act provided that:

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.

9. That is to say, the only issue was whether a statutory prohibition, framed on whether reasonable action taken by the employer was the whole or predominant cause of the injury prevented Mr Kanajenahalli’s entitlement to statutory benefits. There is no close analogy to any issue arising at general law. The closest analogy would be a claim for negligence. But in order to obtain the statutory benefits he seeks, Mr Kanajenahalli does not have to prove duty, or breach, or causation, and not only does he not have to prove loss, but the statutory benefits he claims do not necessarily have a close relationship with any loss he has suffered. This is considerably removed from traditional aspects of judicial power; cf Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [125]-[126].

10. In Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19, the High Court considered whether, on a question of statutory construction, a long-established decision of the Workers’ Compensation Board of Victoria should not lightly be overruled by a superior court. Mason J stated (at 12) that “[a]lthough the doctrine of stare decisis is often said to apply to curial decisions, this statement in reality reflects the broad proposition that the doctrine applies to decisions of tribunals which exercise judicial power”. He concluded that the Board did exercise judicial power because its “decision is a final and binding determination of the rights and liabilities of the parties with respect to workers’ compensation”. Brennan and Deane JJ (at 32) adopted a more constrained holding that:

When a tribunal which has exclusive jurisdiction to determine claims between parties for the enforcement of a statutory right construes the statute in order to determine a claim, the construction placed on the statute is not a mere administrative opinion; it is a judicial determination.

(Wilson and Dawson JJ did not address the issue in these terms.)

11. No question involving an invalid investment of Commonwealth judicial power arose in Babaniaris, the characterisation of the Board’s functions being undertaken for the purpose of applying a general law principle in relation to statutory construction.

12. What is determinative of this appeal is the nature of the particular dispute between the parties. More general considerations do not all point in the same direction. Thus (and without being exhaustive), although its decisions are final and binding, the Commission is empowered to “reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division” and “rescind, alter or amend any decision previously made or given by the Commission in that Division”: Personal Injury Commission Act 2020 (NSW), ss 56 and 57. It is also true that the certificate of the Commission may be filed in a court and will thereafter operate as a judgment: Personal Injury Commission Act, s 59.

13. There is no occasion in determining the present appeal (which lacks any contradictor) to resolve any more general question as to the nature of the powers exercised by the Commission, or to seek to reconcile the statements in Orellana-Fuentes and Searle mentioned above (although it may be noted that the statement in Orellana-Fuentes was expressed in general terms, without regard to the particular powers being exercised in any particular case). It is sufficient to observe that in the case of the particular dispute involving these parties, where the only issue was that arising under s 11A, the Commission was exercising administrative power. The limitation in Burns v Corbett was not infringed.

14. Accordingly, we make the following orders, all save the first of which are in the form agreed to by the parties:

1. To the extent necessary, grant leave to appeal.

2. Appeal allowed.

3. Set aside the opinion, being a decision pursuant to s 353(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) of Deputy President Wood delivered on 18th January 2023 and in lieu thereof declare that neither the decision of Member Burge nor the appeal to the Personal Injury Commission involves or has involved the exercise of judicial power within Ch III of the Constitution (Cth).

4. Remit the matter to the President of the Personal Injury Commission to be determined according to law.

5. No order as to the costs in this Court.

**********

Decision last updated: 30 August 2023