Kevin John Teeling and Janice Anne Teeling trading as Teeling's Recycling Centre v O'Driscoll
[2005] NSWWCCPD 162
•22 December 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kevin John Teeling & Janice Anne Teeling trading as Teeling’s Recycling Centre v O’Driscoll [2005] NSW WCC PD 162
APPELLANT: Kevin John Teeling & Janice Anne Teeling trading as Teeling’s Recycling Centre
RESPONDENT: Peter O’Driscoll
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC2873-05
DATE OF ARBITRATOR’S DECISION: 12 July 2005
DATE OF APPEAL DECISION: 22 December 2005
SUBJECT MATTER OF DECISION: Sections 151A and 151C of the Workers Compensation Act 1987; election to commence proceedings in the District Court of New South Wales; preclusion from commencing proceedings for permanent loss compensation in the Workers Compensation Commission.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Lander and Rogers
Respondent: Bourke McCartney Love Young
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 12 July 2005, is revoked and the following decision is made in its place:
“Mr Peter O’Driscoll is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001.”
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 August 2005 Kevin John Teeling and Janice Anne Teeling trading as Teeling’s Recycling Centre, the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 12 July 2005.
Peter O’Driscoll is the Respondent Worker in this appeal.
The Insurer is CGU Workers Compensation (NSW) Limited.
Mr O’Driscoll lodged an ‘Application to Resolve a Dispute’ in the Commission on 24 February 2005. He claimed that he suffered an injury to his back, neck, left leg, right leg and sexual organs on 7 September 2001 when he was standing beside a truck being loaded with compressed loads of plastic weighing over 100 kilograms each. Two of the loads fell and struck his right shoulder pushing him to the ground. He claims that workers compensation is payable because the injury arose out of, or in the course of, his employment as a truck driver with the Appellant.
Employment at all relevant times is not disputed.
It is not disputed that on 21 November 2001 Mr O’Driscoll filed a ‘Statement of Claim’ in the District Court of New South Wales, seeking damages for the injuries that he sustained. The Appellant defended the claim, relying on section 151C of the Workers Compensation Act 1987 (‘the 1987 Act’), which in essence provides that there must be a delay of 6 months before commencing proceedings for damages. Mr O’Driscoll discontinued the proceedings in the District Court.
Mr O’Driscoll lodged a claim on 4 November 2004 with the Insurer, for non-economic loss compensation. On 4 December 2004 the Insurer acknowledged receipt of Mr O’Driscoll’s claim however made no decision in respect of the claim.
On 25 February 2005 Mr O’Driscoll served an Application to Resolve a Dispute on the Appellant and the Appellant’s Insurer.
On 22 March 2005 solicitors for the Insurer served a Reply pleading that Mr O’Driscoll had no entitlement to compensation pursuant to sections 66 and 67 of the 1987 Act on the ground that Mr O’Driscoll made an irrevocable election pursuant to section 151A(3), as it then was, of the 1987 Act by commencing proceedings in the District Court to recover common law damages.
The Arbitrator stated the issue to be determined by him as:
“The issue in dispute before me is whether the Applicant, as a result of his commencing an application in the District Court is now barred from bringing this Application.”
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 12 July 2005 records the Arbitrator’s orders as follows:
“1.The Respondent’s defence that the Applicant is statute barred from claiming compensation is dismissed.
2.That the Respondent forthwith arrange for the Applicant to be medically examined and file any report on which it seeks to rely by 18 August 2005.
3.That the Application be adjourned to a further teleconference not before 31 August 2005.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is the threshold issue as to whether the Arbitrator erred in law in his application of section 151A of the 1987 Act, (as it then stood), and finding that Mr O’Driscoll could bring his claim in the Commission, there having been no valid election by him pursuant to that section that would preclude his claim from the Commission.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
The Appellant has made a submission that notwithstanding that the decision appealed against is not a final decision, the appeal is not able to be determined solely on the papers and that the Presidential Member would benefit from hearing oral submissions due to the complexity of the legal issues involved. The Respondent submits that the appeal may be determined on the papers. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent that the appeal can proceed to be determined on the basis of these documents, 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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount of compensation at issue on appeal exceeds $5,000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, 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).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The primary submissions made by the Appellant are as follows:
· the Arbitrator, at paragraph 11 in his Statement of Reasons for Decision dated 12 July 2005, erred in stating that at first instance the “Respondent in these proceedings argues that the proceedings were a nullity”. It is submitted that the proceedings were not a nullity for the purposes of this dispute, and in fact it is contended that Mr O’Driscoll validly elected in the District Court to pursue damages at common law pursuant to the operation of section 151A of the 1987 Act as it was at all relevant times prior to 27 November 2001;
· there was no evidence before the Arbitrator to make a finding that the proceedings commenced by or on behalf of the Plaintiff worker in the District Court was a nullity;
· the Arbitrator misinterpreted and/or ignored the reasoning of the New South Wales Court of Appeal in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’);
· the Arbitrator ignored, or at least misinterpreted the decisions of Brighton Und Refern Plaster Pty Ltd v Boardman [2005] NSWCA 167 (‘Boardman’) and Sandarousi v L&A Pressure Welding Pty Ltd [2004] NSW WCC PD 59 (‘Sandarousi’), and
· the Arbitrator’s decision to distinguish this matter from Gordon and others is erroneous in its reasoning and ignorant of the reasoning of the Court of Appeal therein.
The primary submissions made by Mr O’Driscoll are as follows:
· a step in a proceedings is a nullity if it is of no legal effect (Frior v Hanniford (1970) VR 772 at 778). Consequently the purported commencing of proceedings by a Plaintiff contrary to the condition precedent established in section 151C is a nullity and is of no legal effect;
· Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 is factually distinguishable from the current case. In Gordon the Court determined that a Defendant could waive non-compliance with section 151C. In the present case that has not occurred and Mr O’Driscoll’s non-compliance with section 151C (and the consequences that this rendered the proceedings a nullity) was pleaded in the Respondent Employer’s Notice of Grounds of Defence filed in the District Court and relied on by the Respondent Employer. The Respondent Employer’s Notice of Motion seeking dismissal of the proceedings was heard in Lismore on 13 May 2002 before His Honour Acting Judge Twigg, who gave ex tempore reasons allowing the motion and dismissing Mr O’Driscoll’s Statement of Claim;
· the Respondent Employer is estopped from pleading in the District Court that the filing of the Statement of Claim was a nullity and of no legal effect in order to obtain a dismissal of those proceedings, and now claiming that the filing of the Statement of Claim was not a nullity in order to obtain a dismissal in these proceedings, and
· the interpretation of s151A (as it then was) in accordance with the objectives in section 3 of the 1998 Act, as required by section 2A of the 1987 Act, and the preponderance of authority supports Mr O’Driscoll’s contention that he has not made an ‘election’ and is entitled to bring his claim for compensation pursuant to sections 66 and 67 of the 1987 Act before the Workers Compensation Commission.
Evidence and submissions that were before the Arbitrator are before me in this appeal, in addition to the written submissions made by the parties for the purposes of this appeal.
DISCUSSION AND FINDINGS
The submissions made by the parties are similar to those that have been made previously in the Commission at first instance and on appeal, in a number of cases involving this particular threshold issue (See paragraph 28 below). Arguments put and legal authority cited, for and against whether an election has been made have been substantially the same or at least quite similar, in each case to date. There is an exception in the instant case, to which I will return.
The 1987 Act was amended on and from 27 November 2001. Since that date there has been no requirement to make the election, the subject of the instant case.
However, when Mr O’Driscoll commenced his District Court proceedings on 21 November 2001, the six months time period from the date of giving notice had not expired. This fact is not disputed.
In Gordon the court of Appeal held that section 151C of the 1987 Act, as it then stood, was a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings. However, the Court further found that proceedings commenced in contravention, “at least in an inferior court”, are not a nullity or void. While stating that the authorities cited at [36] in support of this finding recognised that the purpose of provisions such as section 151C of the 1987 Act was to promote settlement before commencement of court proceedings, Mason P 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 said further, 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), which applies to proceedings in the District Court, was not a provision that “spells incurable voidness upon non-compliant proceedings.” He concluded at [49] that section 151C(1) “does not erect a jurisdictional preclusion”, and the Court of Appeal held accordingly, that the section was not found to reflect the requisite legislative intention that nullity be the consequence of non-compliance, as “per the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 358.” The judgment in Gordon v Berowra Holdings Pty Ltd [NO. 2] [2005] NSWCA 123 in which an application to have orders set aside was refused, has no adverse bearing on the relevant findings in the judgment in Gordon.
The Court of Appeal in Boardman referred to and agreed with the decision in Gordon, that non-compliance with section 151C did not render proceedings a nullity and that non-compliance could be waived.
These decisions of the Court of Appeal underpin an earlier view expressed on appeal in this Commission that notwithstanding that proceedings commenced may have been incompetent, it does not necessarily mean that they were not commenced at all (Cardona v Penrith City Council [2003] NSW WCC PD 36) (‘Cardona’).
Both Gordon and Boardman have been applied in similar decisions on appeal, in the Commission. (See Mulco Tools & Engineering Pty Limited v Humphreys [2005] NSW WCC PD 146; Hellenic Tourism Organisation v Tzoumacas [2005] NSW WCC PD 105; He v L & J Precision Joinery & Kitchen [2005] NSW WCC PD 100; 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 & Guibega Pty Ltd t/as All Seasons Fruit Market [2005] NSW WCC PD 85, and Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59).
In each of these cases, it was found that the proceedings commenced in the District Court of New South Wales were not a nullity, and that the election to commence those proceedings was a valid election under section 151A(2) of the 1987 Act, as it then stood.
However, in the instant case, the claim filed in the District Court by Mr O’Driscoll came before His Honour Acting Judge Twigg, in the Court sitting at Lismore on 13 May 2002. In the ‘Notice of Grounds of Defence’ filed by the Defendant Employer (the Appellant Employer in the instant case), the following ground of defence was included:
“6.By reason of s.151C of the Workers Compensation Act 1987, the plaintiff was not entitled to bring these proceedings within six months of injury, and hence the proceedings are a nullity.”
His Honour said, “There is an application before the Court, by way of Notice of Motion, dated 9 January 2002, in which the defendants seek an order:
‘1.That pursuant to section 151C of the Workers Compensation Act (1987) the proceedings be dismissed’.”
His Honour found that the exceptions set out in section 151C(2) did not apply. He said, “As I read the affidavits there are no facts from which I can reasonably or properly infer that there was a denial of liability or partial denial of liability at the relevant time.” His Honour then dismissed the proceedings.
In his ‘Statement of Reasons for Decision’ (‘Reasons’), the Arbitrator said at paragraph 11, “The Respondent [Appellant] in these proceedings argues that the proceedings were a nullity.” This is not borne out by the submissions made to the Arbitrator in the proceedings before him. The submissions to the Arbitrator argued in fact that the proceedings were not a nullity. The Arbitrator’s statement is incorrect.
I agree with the Appellant that His Honour Acting Judge Twigg made no finding that the proceedings in the District Court were a nullity, notwithstanding that this proposition was included in the original Grounds of Defence. His Honour did not address the substantive issues in the claim and Grounds of Defence, but on Notice of Motion found that there had been lack of compliance with section 151C of the 1987 Act. His Honour said:
“… I note that the suggestion made that there is a non compliance with s 151C comes about because of the urgency that the plaintiff had in bringing his application prior to the coming into force of the Workers Compensation Legislation Further Amendment Act (2001) (number 94 of 2001). By that Act the plaintiff’s rights at common law were restricted and it is submitted that the real motive behind the bringing in the non compliance with the six months provision is to avoid the consequences of losing common law rights. The intent of s 151C(2) in my view is that the employer have [sic] the necessary time for investigation of the complaint and make the necessary admissions at the appropriate time when inquiries have been made. I uphold the motion. I therefore direct that the proceedings be dismissed.”
It follows that the Arbitrator’s finding at paragraph 13 of his Reasons that the District Court proceedings “have been found to be a nullity” is incorrect.
While I have carefully considered Mr O’Driscoll’s submissions that were made to the Arbitrator and in this appeal, I agree with the observation made by the Deputy President in this Commission in Cardona, referred to at paragraph 28 above, that simply because the proceedings in the District Court were incompetent, it does not necessarily follow that the proceedings were not commenced at all. That being so, the issue in this appeal turns upon the election that was made, not the competency of the proceedings in the District Court following that election. The election to commence the proceedings is a preceding step and a different issue to the quality and merit of the proceedings in the Court after the election has been made and the proceedings instituted.
In any event, the decisions of the NSW Court of Appeal in Gordon and Boardman have crystallised the issue that is at the heart of this appeal and are binding on this Commission. Both authorities have been applied on appeal in the Commission on a number of occasions, as set out at paragraph 29 above. It is regrettable that the amendment that took effect from 27 November 2001 was of no assistance to Mr O’Driscoll and others who had earlier made the election within the six months of giving notice, in contravention of the section.
I find that the Arbitrator erred in finding that the proceedings commenced by Mr O’Driscoll in the District Court were not validly commenced and that no election was made under section 151A of the 1987 Act that would preclude him from bringing his claim in the Commission. Accordingly, the appeal is successful.
DECISION
The decision of the Arbitrator, dated 12 July 2005, is revoked and the following decision is made in its place:
“Mr Peter O’Driscoll is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001.”
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
22 December 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.
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