Magnan v Upper Hunter Shire Council

[2022] NSWPIC 79

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Magnan v Upper Hunter Shire Council [2022] NSWPIC 79

APPLICANT:

Angela Magnan

RESPONDENT:

Upper Hunter Shire Council

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

24 February 2022

CATCHWORDS:

WORKERS COMPENSATION - Claim for weekly benefits, medical expenses and lump sum compensation; the applicant resided in Queensland the time of filing the claim against the Hunter Shire Council; issue relates to whether the Personal Injury Commission (the Commission) has jurisdiction to determine claim; Ritson v State of New South Wales applied; Held- opinion given that the Commission lacks jurisdiction to determine claim.

DETERMINATIONS MADE:

1. The Application to Resolve a Dispute (the Application) is dismissed pursuant to Rule 77(b)(iv) of the Personal Injury Commission Rules 2021.

2. The Application can be restored if the District Court of NSW remits the Application pursuant to s 26(v)(a) of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

1. The applicant commenced work with the respondent on 5 July 2017 as a work health safety adviser. The applicant claims whilst employed with the respondent she sustained a Q fever infection whilst attending the Scone Regional Livestock Selling Centre in the course of her employment. The applicant then makes a claim in respect of weekly benefits, medical expenses and lump sum compensation.

2. An Application to Resolve a Dispute (the Application) was filed in the Personal Injury Commission on 25 October 2021. That Application clearly identifies the applicant’s residential address as being in Queensland.

3. The respondent issued notices pursuant to s 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability.

4. The preliminary issue is whether this is a matter between a resident of Queensland and the State of New South Wales, which is required, pursuant to s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (the Constitution) to be determined by a Court of a State.

ISSUES FOR DETERMINATION

1. The parties agree that the following issue remains in dispute:

   (a)    does the Personal Injury Commission have jurisdiction to determine the dispute.

PROCEDURE BEFORE THE COMMISSION

1. The matter was listed for Arbitration hearing on 21 February 2021. The hearing proceeded by way of telephone conference. Mr Tanner of counsel appeared for the applicant and
   Ms Grotte of counsel appeared for the respondent.

2. It was common ground that the applicant had been a resident of the State of New South Wales at the time of filing the Application.

Opinion

1. A recent decision by Member Harris (as he then was) in Ritson v State of New South Wales [2021] NSWPIC 409 (Ritson) is relevant to the dispute before me. The decision outlines the legislative background and judicial authority pertaining to these types of claims.

2. I, as a Member of a Tribunal, cannot decide issues on interpretation of the Constitution and am limited to forming and expressing an opinion on this issue.

3. I indicated to the parties that I intended to form an opinion that the Personal Injury Commission had no jurisdiction to make a determination in accordance with the Ritson decision. The parties made no submissions in support of a finding that the Personal Injury Commission had jurisdiction to determine the claim.

4. I have formed the following opinion:

   (a) this is a matter between a State and a resident of another State within the meaning of s 75(iv) of the Constitution, and

   (b)    the Personal Injury Commission does not have jurisdiction to determine the dispute.

ORDERS MADE

1. The Application is dismissed pursuant to Rule 77(b)(iv) of the Personal Injury Commission Rules 2021.

2. The Application can be restored if the District Court remits the Application pursuant to
   s 26(v)(a) of the Personal Injury Commission Act 2020.