Lee v Fletcher International Exports Pty Ltd

[2023] NSWPICPD 15

DECISION OF THE PRESIDENT OF THE PERSONAL INJURY COMMISSION

CITATION:

Lee v Fletcher International Exports Pty Ltd [2023] NSWPICPD 15

APPLICANT:

Eunsaem Lee

RESPONDENT:

Fletcher International Exports Pty Ltd

INSURER:

Self-insured

FILE NUMBER:

W321/22

DATE OF DISTRicT COURT DECISION:

24 March 2023

DATE OF DECISION ON REMITTER:

29 March 2023

PRESIDENTIAL MEMBER:

President Judge Phillips

CATCHWORDS:

WORKERS COMPENSATION – Federal Jurisdiction – workers compensation matter application remitted by District Court to usual decision maker – sections 26(5) and 26(6) of the Personal Injury Commission Act 2020 – matter determined not to be federally impacted – orders made on remittal

ORDERS MADE:

1.   Remit the matter to the Division Head of the Workers Compensation Division to allocate this matter to the usual decision-maker to be heard and determined in accordance with the Commission’s usual practice and procedure.

2.   The matter be allocated to a decision-maker other than the member who initially heard and decided this matter. 

INTRODUCTION

1. Pursuant to a decision of the District Court of New South Wales dated 24 March 2023 by Andronos SC DCJ in Lee v Fletcher International Exports Pty Ltd [2023] NSWDC 71, this matter has been remitted to me as President of the Personal Injury Commission (the Commission) to make such orders as are appropriate to facilitate the determination of the application, in accordance with s 26(6) of the Personal Injury Commission Act 2020 (2020 Act).[1]

   [1] Order 2.

BACKGROUND

1. Before turning to the orders that I will make, it is necessary to briefly recount the history of the proceedings.

2. In the decision of Andronos DCJ, the history of the matter in the Commission is accurately described in paragraphs [5]–[8] which I do not repeat.

3. Before the Commission, the respondent employer had contended that the matter was affected by the federal diversity jurisdiction, and as a result the Personal Injury Commission had no power to hear and determine the claim. The applicant worker resisted this assertion.

4. Member G Whiffin of the Workers Compensation Division ultimately agreed with the applicant worker, finding that the Commission was not exercising federal jurisdiction and thus heard the claim, making orders in the applicant’s favour.

5. That decision, as his Honour notes, was appealed to a Presidential member by the respondent employer.  The appeal was heard by Deputy President Snell in Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39 (matter A1-W321/22). Snell DP considered the Member’s decision to be made without jurisdiction, with the most efficacious way to conclude proceedings being to apply to the District Court pursuant to s 26 of the 2020 Act.

6. I would note that at paragraph [8] of the District Court judgment, his Honour records the result of the appeal heard by Snell DP which was to the effect that “the original Member’s decision was made without jurisdiction and had no legal force.”  

THE DECISION OF THE DISTRICT COURT

1. The applicant worker made application to the District Court under s 26(3) of the 2020 Act seeking leave to bring the compensation matter application. The Judge determined the application, finding that the matter did not raise any issue of federal jurisdiction and that the usual-decision maker (the Commission), has power to determine the matter.

2. In considering the orders to be made, at [36] his Honour found:

   “As the [Commission] does not itself have power to determine its own jurisdiction, it falls to this Court to do so and to make appropriate orders for the further conduct of these proceedings. I am satisfied that the present matter does not raise any issue of federal jurisdiction and the usual decision-maker, in this case the [Commission], has jurisdiction to determine the plaintiff's compensation matter.”

3. The orders of the District Court were: 

   (1)    Grant leave to commence proceedings in this Court pursuant to s 26(3) of the Personal Injuries Commission Act 2020 [sic] (NSW) insofar as is necessary to determine the current application.

   (2) Pursuant to s 26(5) of the Personal Injuries Commission Act 2020 [sic], remit the proceedings to the President of the Personal Injuries Commission [sic] to be determined by a Member of the Personal Injuries Commission [sic] and for the President to make such orders as he or she considers appropriate to facilitate the determination of the application.

   (3)    Costs be costs in the cause of the proceedings in the Personal Injuries Commission [sic].

   (4)    The parties have liberty to apply by 31 March 2023 if any variation to the costs order herein is sought.

ORDERS ON REMITTER

1. The matter is now remitted to me. I would note that the proceedings remained on foot pending the outcome of the District Court application.  I also note a previous order made by the Division Head of the Workers Compensation Division dismissing the proceedings from the Commission on 4 November 2022 has been revoked on reconsideration by the Division Head, in Directions dated 28 March 2023. This finally disposes of the appeal A2-W321/22.

2. The prior decision of Member G Whiffin of 7 June 2022 was made without jurisdictional power, and Snell DP found as such. Those orders made by Member G Whiffin are therefore of no force and effect.  

3. As a consequence, I make the following orders to enable the orderly and efficient  disposal of these proceedings in the Commission, consistent with the District Court’s orders that the matter be referred to a member for determination.

DECISION

1. I make the following orders:

   (1)    Remit the matter to the Division Head of the Workers Compensation Division to allocate this matter to the usual decision-maker to be heard and determined in accordance with the Commission’s usual practice and procedure.

   (2)    The matter be allocated to a decision-maker other than the member who initially heard and decided this matter. 

Judge Phillips

President, Personal Injury Commission