Lang v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lang v Secretary, Department of Education [2023] NSWPIC 596
APPLICANT:	Sandie Lang
RESPONDENT:	Secretary, Department of Education
MEMBER:	Rachel Homan
DATE OF DECISION:	9 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in respect of a psychological injury; applicant a resident of Queensland at the time of lodgement of the Application to Resolve a Dispute; whether matter federally impacted; where disputes notified pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 by reference to sections 4, 9A, 33 and 11A(1) of the 1987 Act; whether the disputes by reference to sections 4, 9A and 33 were colourable or arguable; whether the Commission would be exercising judicial power in determining the disputes; Kanajenahalli v State of New South Wales (Western New South Wales Local Health District), Chetty v Queanbeyan-Palerang Regional Council and Citta Hobart Pty Ltd v Cawthorn considered; Held – the respondent’s disputes by reference to sections 4, 9A and 33 were colourable or arguable; it is arguable that in determining the application the Commission would exercise judicial power; proceedings dismissed.
DETERMINATIONS MADE:	The Commission opines: 1. The respondent’s submission that determination of the application is federally impacted is arguable. The Commission orders: 2. The proceedings are dismissed pursuant to s 54 of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

Ms Sandie Lang (the applicant) was employed as a school teacher by the Secretary, Department of Education (the respondent).
The applicant claims to have sustained a psychological injury as a result of events arising out of or in the course of her employment between 27 August 2021 and 8 November 2021 related to the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021, which required certain education and care workers to be vaccinated against COVID-19.
Liability in respect of the alleged injury was disputed by the respondent’s insurer in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 March 2022 and 15 September 2022. The grounds on which liability was disputed included:
(a) the applicant had not sustained a psychological injury pursuant to s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);
(b)    the alleged injury did not arise out of or was not received in the course of employment as required by s 4 of the 1987 Act;
(c)    employment was not a substantial contributing factor to the alleged injury as required by s 9A of the 1987 Act;
(d) the alleged injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer, dismissal and/or provision of employment benefits to workers for the purposes of s 11A(1) of the 1987 Act;
(e)    the applicant did not have total or partial incapacity for work resulting from an injury pursuant to s 33 of the 1987 Act, and
(f)    medical or related treatment was not reasonably necessary as a result of an injury pursuant to ss 59 and 60 of the 1987 Act.
The decision to dispute liability was maintained following internal review on 30 June 2023.
The present proceedings were commenced in the Personal Injury Commission (Commission) by lodgement of an Application to Resolve a Dispute (ARD) on 9 August 2023. The applicant seeks weekly compensation and medical and related treatment expenses in respect of the disputed psychological injury.
It is common ground between the parties that, at the time the ARD was lodged, the applicant was a resident of the State of Queensland.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter proceeded to a preliminary conference on 8 September 2023. On that occasion, a question was raised as to whether determination of the application would potentially involve the exercise of federal jurisdiction.
The parties were referred to the decision in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202 (Kanajenahalli) which had been handed down by the Court of Appeal on 30 August 2023.
As the application of that decision to the facts of the present case remained in dispute, the matter was referred for conciliation conference and arbitration hearing.
Prior to the commencement of the conciliation conference and arbitration hearing, the Commission also referred the parties to the decision in Chetty v Queanbeyan-Palerang Regional Council [2023] NSWPIC 528 (Chetty) made by Principal Member Harris on
6 October 2023. The parties were advised that the Commission would seek submissions by reference to that decision in relation to the question of whether it was arguable that the proceedings involved federal jurisdiction.
The parties appeared for conciliation conference and arbitration hearing on
7 November 2023. The applicant was represented by Mr John Dodd of counsel, instructed by Mr David McCabe. The first respondent was represented by Mr Stuart Grant of counsel, instructed by Ms Eloise Cotchett.
The respondent confirmed that all of the matters raised in the s 78 notices remained in dispute. The parties agreed that the question of jurisdiction required an opinion and orders from the Commission.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 22 September 2023, and
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 31 October 2023.

Relevant law

Section 75(iv) of the Commonwealth of Australia Constitution Act (the Constitution) vests original jurisdiction in all matters between “States, or between residents of different States, or between a State and a resident of another State” in the High Court.
Section 77 of the Constitution provides that Parliament has the power to invest any court of a State with federal jurisdiction.
Section 39 of the Judiciary Act 1903 (Cth) vests federal jurisdiction in a court of the State in matters between a State and a resident of another State.
In Burns v Corbett,[1] the High Court held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and
[1] [2018] HCA 15.
s 77(iii) of the Constitution, judicial power with respect to any matter described in s 75 of the Constitution.
It is accepted by the parties in these proceedings that the Commission is not a court of a State. This is consistent with the decisions in Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146 and Attorney-General for New South Wales v Gatsby [2018] NSWCA 254.
In this context, Division 3.2 of the Personal Injury Commission Act 2020 deals with the determination of disputes involving federal jurisdiction. Section 26 of that Act relevantly provides:
“26 Applications involving federal jurisdiction may be made to District Court
(1)     A person with standing to apply to the President or the Commission for a matter
concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission.
…
(3)     The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that—
(a) an application was first made to the President or Commission, and
(b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and
(c)the usual decision-maker would otherwise have had jurisdiction enabling the
decision-maker to determine the application.
…
(5)     The District Court may—
(a) remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and
(b) do so instead of granting leave or after granting leave.”
The Courts have found that certain matters coming before the Commission do not involve an exercise of federal jurisdiction, notwithstanding that they are matters between residents of different States, or between a State and a resident of another State. In particular, it has been held that in some matters, the Commission exercises an administrative function, rather than a judicial function of the kind described in s 75 of the Constitution. For example, in Searle v McGregor [2022] NSWCA 213, it was found that medical disputes in the Workers Compensation and Motor Accident Divisions involved the exercise of administrative, not judicial, power and as such were not affected by federal jurisdiction.
In Kanajenahalli, the Court of Appeal found that where the only issue in dispute in proceedings in respect of a claim for compensation under the 1998 Act was the application of s 11A(1) of the 1987 Act, the Commission was also exercising administrative, rather than judicial power:
“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.
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].”
The Court in Kanajenahalli was at pains to note, however, that it was not, in that case, resolving the question of whether, in the exercise of its other powers, the Commission was exercising judicial power:
“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.”
There is no judicial authority to which I have been directed dealing specifically with the questions of whether, in determining a dispute as to “injury” pursuant to ss 4, 9A and 11A(3) of the 1987 Act or the extent of incapacity resulting from injury for the purposes of s 33 of the 1987 Act, the Commission exercises a judicial or administrative function.
In the arbitral decision in Chetty, Principal Member Harris, was called upon to consider whether proceedings involving a dispute as “injury” were potentially federally impacted. Submissions were made by the applicant that the principles in Kanajenahalli were of general application to Commission proceedings and that s 4 was analogous to s 11A(1).
Principal Member Harris found it was at least arguable that there are significant differences between findings under s 4 and s 11A(1), commenting:
“There are various factors which suggest that a determination under s 4 may be judicial or an exercise of administrative power. The applicant may be correct that the Commission is not exercising judicial power when considering a dispute under s 4(b) of the 1987 Act. However, that is not the relevant test for my consideration. The respondent’s defence that the matter is federally impacted is arguable, and the determination of the issue must be made by a court of a State.”
In expressing this opinion, Principal Member Harris applied Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16. In that case, a complaint was made to the Tasmanian Anti-Discrimination Tribunal that the appellants had discriminated on the ground of disability by providing a facility without adequate wheelchair access. In defence of the complaint, the appellants said that the Tasmanian Anti-Discrimination Act 1998 was in part inoperative because it was inconsistent with Commonwealth law. It was found that the complaint and the defence together formed parts of a single justiciable controversy in respect of which s 76 of the Constitution conferred federal jurisdiction. As a result, the tribunal dismissed the complaint for want of jurisdiction.
An issue arose before the High Court as to whether the constitutional defence asserted by the appellants needed to meet some threshold degree of arguability before the controversy would attract federal jurisdiction. The Court found:
“The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’, jurisdiction^[46].
Thus, the State jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution is not denied, just as the federal jurisdiction of this Court under s 76(i) or s 76 (ii) or of another court under s 77(i) or s 77(iii) of the Constitution is not engaged, by the assertion of a claim or defence that amounts to ‘constitutional nonsense’^[47] or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.”
The Court held that were the tribunal to determine the prospects of success of the constitutional defence. this would,
“…inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution.”
In Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39, the employer argued that the worker’s application to the Commission attracted federal jurisdiction in circumstances where the worker resided in Queensland and the employer was self-insurer. In dealing with the question of jurisdiction, the Member was found to have erred by addressing the merits of that argument:
“On a fair reading of the reasons, it is clear that the Member dealt with the defence based on federal jurisdiction on the basis that he was determining the substantive issue on its merits as opposed to considering its arguability. The reasons of the plurality in Cawthorn make it clear that this was “no part of the requisite assessment” (see [77] above). Such a course, like determining whether a claim or defence amounted to an abuse of process, would “inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution”(see [78] above).”

Applicant’s submissions

The applicant referred to the decision in Citta Hobart and submitted that the respondent’s submission that the proceedings involved federal jurisdiction was a legal nonsense or doomed to fail. This was said to be on the basis that, although disputes by reference to ss 4, 9A and 11A(3) of the 1987 Act had been notified, those disputes were not colourable or arguable. The only real issue in the case was the s 11A(1) defence, determination of which had been found in Kanajenahalli to be an exercise of administrative power.
The applicant referred to the evidence of the respondent’s own Independent Medical Examiner, psychiatrist Dr Clayton Smith, who diagnosed an adjustment disorder with an onset of symptoms after the introduction of the vaccine mandate and the loss of the applicant’s career. This opinion was said to be consistent with the Certificates of Capacity in evidence and evidence from the applicant’s treating psychiatrist, Dr Ian Siefken. The applicant submitted that from a medical point of view, the evidence established a clear nexus between employment and the psychological condition. Employment was the main, if not the whole, cause of the applicant’s condition.
The applicant submitted that the respondent’s reliance on a defence under s 11A(1) of the 1987 was itself inconsistent with a suggestion that the applicant was not injured.
Insofar as the respondent suggested that it was the State’s action in issuing the Public Health Order which was causative of the injury, the applicant noted that treatment for psychological symptoms was sought prior to the Order being made. The applicant’s symptoms arose in response to an email from her employer regarding the effect of the pending Order.
The applicant submitted that the respondent’s reliance on the Order as the cause of the injury was a legal nonsense and doomed to fail. Before the Order was put into effect the applicant was already exposed to a causative stressor in the course of or arising out of employment in the form of emails from her employer.
With regard to the dispute as to capacity, the applicant again referred to Dr Smith’s opinion that the applicant was incapacitated by the psychological injury. The applicant submitted that the defence by reference to s 33 of the 1987 Act was also a legal nonsense and doomed to fail.
The facts of the case were said to be akin to those in Secretary, Department of Education v Dawking [2023] NSWPICPD 23, in which the Member’s determination that there had been a compensable injury was upheld on appeal.
As in Kanajenahalli, the applicant submitted that the only contested dispute was the s 11A defence, determination of which involved an exercise of administrative power within the Commission’s jurisdiction.

The applicant further submitted that Chetty was wrongly decided insofar as it was suggested that the determination of a dispute under s 4 of the 1987 Act involved an exercise of judicial power.
In any event, in this case, it was not arguable that the proceedings involved federal jurisdiction. The applicant submitted that the Commission should proceed to determine the substantive issues in dispute.

Respondent’s submissions

Referring to the decision in Chetty, the respondent submitted that a tribunal cannot decide for itself whether a determination involves an exercise of federal jurisdiction. Rather, a view should be expressed, consistent with the test set out in Citta Hobart, if it is considered that the matter is potentially federally impacted. It is then for a court of a State to decide whether the determination does in fact involve an exercise of federal jurisdiction.
The respondent submitted that s 4 was relied on to dispute the claim for compensation for valid reasons. There was evidence in the applicant’s own written statements identifying the Public Health Order as the cause of her symptoms. The applicant said her symptoms arose as a result of the vaccination mandate and her decision to not be fully vaccinated. The applicant expressed the belief that the mandatory COVID-19 vaccination order could not be justified as it impinged on her liberties and rights. The applicant considered there had been insufficient investigation into the effectiveness of the vaccine. The applicant made no complaint about the particular conduct of anyone in the Department.
On the applicant’s evidence alone, there was ample room to argue for the purposes of s 4 that employment had nothing to do with the applicant’s psychological condition. That was an eminently arguable position to take and certainly not frivolous or vexatious.
The respondent submitted that its reliance upon a s 11A(1) defence in the alternative was quite proper and did not render the s 4 dispute a nonsense. The s 11A(1) defence only came into play if the s 4 issue was determined in the applicant’s favour.
The respondent said there was also a question arising on the evidence of Dr Smith as to the extent of the applicant’s incapacity for work. That dispute was properly raised and determination of that question was a matter for the District Court.
The respondent submitted that each case is fact sensitive and the approach taken in one would not necessarily apply in another. There may be facts and issues that stand the cases apart.
The respondent submitted that the matter between the parties was one which had to be conducted in the District Court pursuant to s 26 of the Personal Injury Commission Act 2020.

Applicant’s submissions in reply

The applicant submitted that her statement evidence revealed that she became aware of the Public Health Order through her employer. It was the employer’s implementation of the Order which was causative of injury. It was following receipt of an email from her employer on
27 August 2021 that the applicant sought medical treatment for her symptoms.
The applicant submitted that the application of s 33 of the 1987 Act was an administrative decision akin to that required by s 11A(1) of the 1987 Act. There was no correlation between the matters referred to in s 33 and any matter at common law. Rather, s 33 required consideration of pre-injury average weekly earnings, ability to earn in suitable employment, mathematical calculations as to percentages and the application of certain entitlement periods. Whilst this might at first glance seem similar to the concept of economic loss in a common law claim, determination of the entitlement to statutory benefits required the exercise of an administrative function.

FINDINGS AND REASONS

There is no dispute between the parties in these proceedings that the applicant was, at the time of lodgement of the ARD, a resident of the State of Queensland.
It was also agreed that the respondent was either a resident of the State of New South Wales or the State itself.
It is common ground that the proceedings would therefore invoke federal jurisdiction if determination of the proceedings involved the exercise of judicial power.
The parties agree for the purposes of these proceedings that the Commission is not a court of a State and cannot exercise federal jurisdiction. It was also agreed that the Commission cannot itself determine whether the proceedings involve federal jurisdiction. Consistently, with Citta Hobart, the Commission can only determine whether it is “arguable” or “colourable” that federal jurisdiction exists.
The applicant argues that the proposition that these proceedings involve federal jurisdiction is not arguable or colourable because the proceedings are essentially confined to a consideration of s 11A(1), which has been found by the Court in Kanajenahalli to involve the exercise of administrative rather than judicial power.
The respondent submits that the dispute between the parties extends beyond the application of s 11A(1) to a dispute as to causation for the purposes of ss 4 and 9A of the 1987 Act as well as a dispute as to the extent of incapacity resulting from injury for the purposes of s 33 of the 1987 Act.
It has not been suggested that Kanajenahalli determined the nature of the Commission’s power in dealing with a dispute for the purposes of ss 4,9A or 33 of the 1987 Act. Nor has any other decision of a court been identified in which that question has been determined.
The applicant’s submission is that it is not necessary for a court to determine that question in these proceedings because it cannot properly be argued that it arises.
As noted above, disputes for the purposes of ss 4 and 9A and s 33 of the 1987 Act were notified to the applicant in notices of dispute under s 78 of the 1998 Act after her claim for compensation was made. Pursuant to ss 289 and 289A of the 1998 Act, they are disputes the Commission would have jurisdiction to determine if they did not involve federal jurisdiction.
The respondent has not withdrawn its reliance on those disputes or otherwise conceded that the requirements of those provisions are satisfied.
The applicant’s submission can only succeed, therefore, if those disputes are incapable of legal argument or are legal ‘nonsense’.
I am not satisfied that the disputes can be so described.
The respondent has, both in its dispute notices and in its oral submissions in these proceedings identified evidence on which it relied to dispute whether the applicant’s psychological condition arose out of or in the course of employment; whether employment was a substantial or the main contributing factor to the condition; and the extent of any incapacity resulting from injury. Irrespective of the merits of those disputes, I am satisfied that the evidence to which the respondent has referred provided a justifiable basis for raising them.
In my view, the submissions made by the applicant with reference to the evidence of Dr Smith and the applicant’s treating practitioners impermissibly invite the Commission to determine the merits of the ss 4, 9A and 33 disputes. I do not accept that there is any illogicality in relying on those disputes in addition to a defence, in the alternative, pursuant to s 11A(1) of the 1987 Act. Nor do I accept that the disputes are doomed to fail simply because they were rejected in factually similar proceedings.
I am of the opinion that the disputes by reference to ss 4, 9A and 33 are at least arguable or colourable.
I am also of the opinion, for the reasons given by Principal Member Harris in Chetty, that it is arguable or colourable that determination of at least the s 4 dispute would involve the exercise of judicial power. The other matters raised by the application could not be determined without first resolving the s 4 dispute.
Although the applicant has submitted that Chetty was wrongly decided, no persuasive basis for that submission has been articulated. The applicant’s primary submission suggested that the decision could be distinguished on the basis that a dispute as to injury was not arguable or colourable in these proceedings. For the reasons given above, I do not accept that submission.
As a result, I have formed the view that it is arguable or colourable that the proceedings are federally impacted.
In those circumstances, the proper course is for the proceedings to be dismissed pursuant to s 54 of the Personal Injury Commission Act 2020.
Pursuant to s 26 of that Act, the applicant may seek leave to bring the proceedings before the District Court.

[2023] NSWPIC 596

9 November 2023