Mahal v The State of New South Wales (No 3)
[2018] NSWWCCPD 30
•20 July 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30 | |
| APPELLANT: | Inderjit Mahal | |
| RESPONDENT: | The State of New South Wales | |
| INSURER: | Treasury Managed Fund – Employers Mutual Limited | |
| FILE NUMBER: | A2-6377/17 | |
| ARBITRATOR: | Mr W Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 8 March 2018 | |
| DATE OF APPEAL DECISION: | 20 July 2018 | |
| SUBJECT MATTER OF DECISION: | Schedule 6, Part 19H, clause 25 of the Workers Compensation Act 1987: exempt worker – ‘police officer’; procedural fairness: opportunity to make submissions; bias | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | SMK Lawyers Pty Ltd | |
| ORDERS MADE ON APPEAL: | 1. The respondent’s identity is amended to “The State of New South Wales”. 2. The Arbitrator’s determination dated 8 March 2018 is confirmed. | |
INTRODUCTION
The issue in this appeal is whether Inderjit Mahal (the appellant), who was employed by the New South Wales Police Force as a parking patrol officer, was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the Workers Compensation Act 1987 (the 1987 Act), so that she is not subject to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act). The correct legal identity of her employer for the purpose of these proceedings is “The State of New South Wales”,[1] and the pleadings are amended to reflect that. For convenience, I will refer to her employer as NSW Police/the respondent.
[1] State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1, [27]–[28].
BACKGROUND
The appellant worked with the respondent as a parking patrol officer from 13 January 1997 until 4 December 2001, when she states she was medically retired.[2] The appellant suffered injuries, described in her statement,[3] to her cervical spine, lumbar spine, and both upper and lower extremities. The ARD pleads a single date of injury, 1 December 2000, and describes the injury as being due to “prolonged walking, patrolling, bending and stretching as a parking patrol officer over a period of around five years between 1997 and 2003”.[4]
[2] Application to Resolve a Dispute (ARD), p 4.
[3] ARD, pp 1–16.
[4] ARD, Part 4.
In 2003 the appellant recovered lump sum compensation in respect of her injuries, for 15% permanent impairment of the back, 10% permanent impairment of the neck, 10% loss of use of the left leg at or above the knee, and 5% loss of use of the sexual organs.[5] These sums were on the basis of the Table of Disabilities. She also recovered a sum of $10,650 pursuant to s 67 of the 1987 Act in respect of pain and suffering. Confirmation of the registration of a s 66A agreement was issued by the Commission on 2 July 2003.
[5] ARD, p 44.
The appellant brought proceedings (no 2135/16) seeking lump sum compensation, weekly compensation and medical expenses. Ultimately, the only part of this application that was pursued was the claim for further lump sum compensation under the Table of Disabilities, and assessment of whole person impairment (WPI) for a threshold dispute. A Medical Assessment Certificate (MAC) of Dr Marsh (an Approved Medical Specialist (AMS)) dealing with these assessments was issued on 16 September 2016. WPI was assessed at 7%, with a deemed date of injury of 1 or 5 December 2000. A series of unsuccessful medical and Presidential appeals, and associated applications for reconsideration, by the appellant followed.[6] The assessment of WPI in the MAC is such that the appellant’s weekly entitlement is subject to s 39 of the 1987 Act, inserted by the 2012 Amending Act, if the amending Act has application to her.
[6] See Mahal v NSW Police Service (unreported, 30 November 2016, M1-2135/16), Mahal v NSW Police Force (unreported, 4 December 2017, M1-2135/16), Mahal v State of New South Wales [2017] NSWWCCPD 41 (Mahal), Mahal v State of New South Wales (No 2) [2017] NSWWCCPD 46 (Mahal No 2).
The appellant was in receipt of voluntary weekly payments in respect of her injuries. The respondent’s insurer, Employers Mutual Limited (the insurer), advised the appellant on 17 August 2017 that as her WPI was assessed by Dr Marsh as “under 21%, [she] will not be entitled to weekly payments beyond 260 weeks”. The appellant responded on 24 August 2017, asserting that the “legislative amendments of 2012 do not apply in my matter as I was a Police Officer”. On 13 September 2017, the insurer wrote to the appellant advising that her last date of entitlement to weekly payments would be 1 January 2018.[7] The proceedings before me contain an application for weekly compensation from 1 January 2018, on a continuing basis. This alleged entitlement is dependent on the appellant not being subject to the 2012 Amending Act.
[7] Reply, pp 123–4.
THE ARBITRAL PROCEEDINGS
On 19 December 2017, Arbitrator Dalley issued a Direction, providing for lodgment by the parties of written submissions, dealing with whether the appellant “was, at the relevant time, a police officer and so exempted from the operation of the [2012 Amending Act]”. That issue was then to be determined ‘on the papers’. The appellant was, at the time, legally represented. She put on submissions that were 23 pages long,[8] accompanied by 79 pages of material that was “referenced” in her submissions.[9] Short submissions prepared by her counsel, dated 19 January 2018, were also lodged. He submitted that the appellant’s submissions before the Arbitrator were “cogent and compelling”, that there was no requirement that she be ‘sworn’, and that the case law would not exclude her being classified as a police officer.[10]
[8] Appellant’s arbitral submissions.
[9] Appellant’s supporting material.
[10] Appellant’s counsel’s arbitral submissions.
The appellant’s submissions referred to State of New South Wales v Stockwell[11] and State of New South Wales v Chapman-Davis.[12] She submitted that she was “an exempt worker being a Police Officer”.[13] She referred to aspects of her employment that were submitted to be consistent with being a ‘police officer’.[14]
[11] [2017] NSWCA 30 (Stockwell).
[12] [2016] NSWCA 237 (Chapman-Davis).
[13] Appellant’s arbitral submissions, p 17.
[14] Appellant’s arbitral submissions, pp 14–20.
The respondent’s written submissions dated 2 February 2018 referred to various relevant statutory provisions. The respondent relied on the decisions in Muscat v Parramatta City Council[15] and D’Angelo v NSW Police Force.[16] The respondent noted that management of the appellant’s claim for compensation had been consistent with that of non-exempt workers. It submitted that the appellant was subject to the 2012 Amending Act.[17]
[15] [2014] NSWWCC 406 (Muscat).
[16] [2016] NSWWCC 54 (D’Angelo).
[17] Respondent’s arbitral submissions.
The appellant lodged submissions in reply. She submitted that ‘police officer’ was not defined in the 1987 Act, and only the dictionary meaning could be read into the 1987 Act. It described the application of the definition of ‘police officer’ in the Interpretation Act 1987, to that term in the 1987 Act, as “a figment by the respondent to avoid the ordinary dictionary meaning”, and the resultant argument as “far-fetched and preposterous”.[18] The appellant referred to unidentified dictionary definitions of “Police (noun) also called Police Force” and “Policing or Policed” (emphasis in original). She submitted “[t]he dictionary meaning of Officer includes all persons employed by the police service of New South Wales” (emphasis in original).[19] She referred to the name of the award pursuant to which she was employed, “the Crown employee Parking Patrol Officers, Police Service of New South Wales Award”, as being consistent with her argument. She submitted that s 44H of the 1987 Act imports the concept of a Fair Work Instrument into the 1987 Act, for the purpose of calculating pre-injury average weekly earnings. These industrial laws must be “read in tandem” with workers compensation legislation.[20]
[18] Appellant’s arbitral submissions in reply, [1]–[6].
[19] Appellant’s arbitral submissions in reply, [8]–[10].
[20] Appellant’s arbitral submissions in reply, [11]–[16].
The appellant submitted that Muscat and D’Angelo could be distinguished, as the relevant injuries in those matters occurred after the commencement of the 2012 Amending Act.[21] She also submitted that various parts of her earlier submissions were not addressed by the respondent, and should be taken to be conceded.[22]
[21] Appellant’s arbitral submissions in reply, [39].
[22] Appellant’s arbitral submissions in reply, p 6 (which paragraphs are intended to fall within this heading is unclear).
On 16 February 2018, the respondent lodged further submissions, responding to those of the appellant that had been lodged in reply. On 18 February 2018, the Arbitrator issued a Direction, declining an application by the respondent to rely on the further written submissions. The submissions dated 16 February 2018 are attached to the Commission file, although there is no indication that the Arbitrator took them into account.
THE ARBITRATOR’S DECISION
The Commission issued a Certificate of Determination dated 8 March 2018, accompanied by five pages of reasons.[23] The Arbitrator noted that weekly payments ceased as at 31 December 2017, pursuant to s 39 of the 1987 Act. There was a preliminary issue regarding whether the appellant was a ‘police officer’ for the purposes of Sch 6, Pt 19H, cl 25 of the 1987 Act. The Arbitrator noted the submission by the appellant that there were indicia that she fell within the dictionary definition of a ‘police officer’. He noted her submission that “the activities that she performed and the method of performance” should govern determination of her status.[24]
[23] Mahal v State of New South Wales (NSW Police Force) [2018] NSWWCC 65 (Decision).
[24] Decision, [3], [9], [15]–[22].
After setting out the legislative provisions, the Arbitrator observed that the definition of ‘police officer’ in the Interpretation Act applied, in the absence of contrary intention in the Interpretation Act, or the Act or instrument concerned. He said it was not submitted that there was any contrary intention in the Interpretation Act. He then considered whether there was any contrary intention in the 1987 Act or the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as amended by the 2012 Amending Act. The Arbitrator said that he rejected the proposition that the beneficial nature of the legislation, or ss 3 and 354 of the 1998 Act, demonstrated a contrary intention, to displace the meaning established by the Interpretation Act. In so far as there was conflict between the beneficial nature of the 1987 and 1998 Acts, and the 2012 Amending Act, it was necessary to identify the leading and subordinate provisions (referring to Project Blue Sky v Australian Broadcasting Authority).[25] The more specific definition in the Interpretation Act must override a more general provision in other legislation: generalia specialibus non derogant, the general does not detract from the specific.[26]
[25] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, [70].
[26] Decision, [30]–[35].
The Arbitrator rejected the submission that the respondent had acquiesced to an allegation that the appellant was a ‘police officer’ in earlier claims; whether this was her status was not at issue in earlier claims. The Arbitrator distinguished Stockwell and Chapman-Davis, these decisions involved the term ‘paramedic’, which was not defined in either the workers compensation legislation or the Interpretation Act. The ‘paramedic’ cases were decided on different grounds. The Arbitrator accepted that the decision in Muscat applied. The appellant did not fall within the statutory definition, and was not an exempt worker. The Commission had no power to order the payment of weekly compensation beyond 1 January 2018.[27]
[27] Decision, [35]–[41].
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
GROUNDS OF APPEAL
The following grounds of appeal are raised. I have not followed the appellant’s numbering.
(a) The Arbitrator erred in applying the definition of ‘police officer’ in the Interpretation Act, rather than a meaning of that term that includes the appellant and flows from the terms of the 1998 Act itself to the Police Regulation (Superannuation) Act 1906. (Ground No 1)
(b) The respondent is estopped, by its failure to dispute the appellant’s status as a ‘police officer’ in the original proceedings in which the appellant was awarded benefits over a decade ago, from now asserting she is not a ‘police officer’ for the purposes of the 2012 Amending Act. (Ground No 2)
(c) The Arbitrator erred in not following “the essence of the arguments” in Stockwell and Chapman-Davis, cases decided by the President of the Commission, in relation to the exemption of ambulance officers. (Ground No 3)
(d) The Arbitrator erred in applying the reasoning in Muscat. Some of the arguments made in the current matter were not present in Muscat. The appellant was not given an opportunity to address the application of Muscat, including whether it was correctly decided. (Ground No 4)
(e) The decision of the Arbitrator is illogical based upon Minister for Immigration and Citizenship v Li[28] decision of the High Court, since the reasoning is adopted in a workers compensation matter by the Court of Appeal in a comment of Sackville AJA in Jaffarie v Quality Castings Pty Ltd[29] at [63]. (Ground No 5)
(f) The appellant was denied procedural fairness, in that the Arbitrator denied her the opportunity to be heard when such a request was made. (Ground No 6)
(g) The Arbitrator erred, in that he accepted the respondent’s arguments going to whether the appellant was an exempt worker in his decision on 20 February 2018, before his decision on 8 March 2018. (Ground No 7)
[28] [2013] HCA 18; 249 CLR 332 (Li).
[29] [2015] NSWCA 335 (Jaffarie).
LEGISLATION
Schedule 6, Part 19H, clause 25 of the 1987 Act provides:
“25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
Section 21 of the Interpretation Act relevantly provides:
“21 Meanings of commonly used words and expressions
(1)In any Act or instrument:
…
police officer means a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990.”
Section 3 of the Interpretation Act provides:
“3 Definitions
(1)In this Act:
instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument.
(2)In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty.”
Section 5 of the Interpretation Act provides:
“5 Application of Act
(1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act.
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.
(3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument.
(4) Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act.
(5) This section does not authorise a statutory rule to exclude or modify the operation of Part 6 (statutory rules and certain other instruments).
(6) The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that apply to a statutory rule also apply to an environmental planning instrument.”
The term ‘police officer’ is not defined in the 1987 or 1998 Acts. The definition in s 3 of the Police Act 1990 (the Police Act) provides:
“3 Definitions
(1)In this Act:
…
police officer means a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer.”
Section 12 of the Police Act provides:
“12 Ranks and grades of police officers
(1) The ranks of police officers within the NSW Police Force are (in descending order) as follows:
(a) Commissioner.
(b) NSW Police Force senior executive.
(c) Superintendent.
(d) Inspector.
(e) Sergeant.
(f) Constable.
(2) The Commissioner, with the approval of the Minister, may specify different ranks for police officers who are NSW Police Force senior executives.
(3) The regulations may specify grades within the ranks of superintendent, inspector, sergeant and constable.”
Section 13 of the Police Act provides:
“13 Oath to be taken by persons exercising police functions
(1) Before a person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations.
(2) A police officer is not required to take a further oath or make a further affirmation after a change in the officer’s position in the NSW Police Force, so long as the officer remains in the NSW Police Force.
(3) An oath or affirmation under this section is to be administered by or made before the Commissioner or any other person authorised to administer an official oath under the Oaths Act 1900.”
The definition of ‘worker’ in s 4 of the 1998 Act relevantly reads:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include:
(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906
...”
Section 39 of the 1987 Act (inserted by the 2012 Amending Act) provides:
“39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
An amendment made by the 2012 Amending Act extends to an injury received before the commencement of that Act, subject to Sch 6, Pt 19H of the 1987 Act and the Regulations. The application of the transitional provisions was explained by Roche DP in Kilic v Kmart Australia Ltd.[30] An argument that Kilic was wrongly decided was rejected by the Court of Appeal in Jaffarie v Quality Castings Pty Ltd.[31] The effect of the transitional provisions is that the appellant’s entitlement to weekly payments of compensation came to an end when her payments were ceased by the insurer, if her entitlement is subject to the 2012 amendments. The appellant only has an entitlement to further weekly payments if she is an exempt worker, within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act. The matter has been conducted on that basis.
[30] [2013] NSWWCCPD 37; 15 DDCR 1 (Kilic), [9].
[31] [2018] NSWCA 88, per Leeming JA (Macfarlan and White JJA agreeing), [31]–[39].
SUBMISSIONS
Practice Direction No 6 requires that submissions deal “clearly and succinctly with each ground of appeal”. The appellant’s submissions do not attempt to comply with this requirement. The appellant’s submissions are divided into “Submissions in Support” and “General Submissions”. There is repetition in the material included in these two parts of the submissions, and it is often unclear which submissions relate to which grounds. The written submissions made by the parties before the Arbitrator are attached to the Application to Appeal Against Decision of Arbitrator, as are various pieces of evidentiary material. I have sought to identify those submissions, made in respect of the appeal, which relate to the identified grounds.
The appellant and the respondent attached submissions to the Application to Appeal and the Notice of Opposition respectively. The timetable initially provided that the appellant was to lodge and serve any submissions in reply by 15 June 2018. The appellant sought, and was granted, an extension of the timetable, for submissions in reply, to 29 June 2018. The appellant did not lodge any submissions in reply in compliance with the amended timetable, nor further approach the Commission.
GROUND NO 1
The Arbitrator erred in applying the definition of ‘police officer’ in the Interpretation Act, rather than a meaning of that term that includes the appellant and flows from the terms of the 1998 Act itself to the Police Regulation (Superannuation) Act 1906.
GROUND NO 2
The respondent is estopped, by its failure to dispute the appellant’s status as a ‘police officer’ in the original proceedings in which the appellant was awarded benefits over a decade ago, from now asserting she is not a ‘police officer’ for the purposes of the 2012 Amending Act.
GROUND NO 3
The Arbitrator erred in not following “the essence of the arguments” in Stockwell and Chapman-Davis, cases decided by the President of the Commission, in relation to the exemption of ambulance officers.
There is some overlap in these grounds and it is convenient to deal with them together.
Appellant’s submissions
The appellant quotes ss 3 and 5 of the Interpretation Act. She refers to the Arbitrator’s decision at [31]. The appellant says that the Arbitrator wrongly stated that a “contrary intention” was not submitted by the appellant. She submits this is inconsistent with the Arbitrator’s reasons at [37], where he refers to the appellant’s submissions on Stockwell and Chapman-Davis.[32]
[32] Appellant’s submissions in support, [1]–[2].
The appellant submits that she “made submissions to the WCC on her exemption from 2012 amendments as a Police officer under Police Regulation Act 1906 on the basis that she was contributing to the Police Superannuation Fund under that Act which she now amplifies.” The appellant refers to Sch 1 of the 1998 Act (which deals with deemed employment of workers). She then quotes from part of the definition of ‘worker’ in s 4 of the 1998 Act, which exempts from the definition “a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906”. She submits that she made contributions to the Police Superannuation Fund. Only qualified people could do so. She submits she could only make contributions under the Superannuation Act if she was a ‘police officer’, therefore she “answers the statutory definition”.[33]
[33] Appellant’s submissions in support, [3](a)–(f).
The appellant argues that the 1998 Act employs a definition “derived from” the Police Regulation (Superannuation) Act, that includes the appellant. This indicates a “contrary intention” for the purposes of s 5 of the Interpretation Act. Additionally, where two interpretations are possible of the meaning of a ‘police officer’, that most beneficial to the appellant should be preferred, as the 1998 Act is “remedial and beneficial legislation” (there is reference to Chapman-Davis at [76]).[34]
[34] Appellant’s submissions in support, [3](g)–(h).
The appellant submits that the respondent, in making contributions to the Police Superannuation Fund, irrevocably treated the appellant as a ‘worker’ for the purposes of workers compensation legislation and Sch 1 of the 1998 Act. She submits the Arbitrator should have applied the “indicia” he referred to in his reasons at [20], which the appellant describes as “effectively the function test”, consistent with ss 3(2) and 5(2). It is submitted the “function test” was applied in Stockwell and Chapman-Davis. The Interpretation Act cannot be “imported for assistance if a categorical intention appears in the governing instrument”, the 1998 Act.[35] Reference is made to Merchant v Shoalhaven City Council.[36]
[35] Appellant’s submissions in support, [4].
[36] [2015] NSWWCCPD 13; 16 DDCR 200.
The Arbitrator’s reasons at [35] referred to a “submission that the respondent had previously acquiesced to an allegation that Mrs Mahal was [a] police officer”. He said this carried “no weight because that status was not in issue with respect to earlier claims”.[37] Ms Mahal submits the reasons at [35] are “mutually inconsistent and illogical”. Clause 25 was introduced in 2012, the “respondent’s acceptance” must carry some weight as “the status was in issue at least since 2012”.[38]
[37] Decision, [35].
[38] Appellant’s submissions in support, [9].
The appellant submits that, in the two Presidential appeals she has already pursued in this matter,[39] the respondent was “State of New South Wales”, and the respondent “never objected her status as a Police Officer”.[40]
[39] Mahal and Mahal No 2.
[40] Appellant’s general submissions, [20].
Respondent’s submissions
The respondent does not dispute that the appellant was, “at the time of her injury … a ministerial employee of the NSW Police Force”.[41]
[41] Respondent’s submissions, [57](h).
The respondent refers to the decision in D’Angelo. It submits that the legislature, in drafting the 2012 Amending Act, did not provide any alternative definition of ‘police officer’ to that in the Police Act and the Interpretation Act. The appellant’s submission, that her status as a ‘police officer’ was not disputed in earlier proceedings, is an irrelevance. Whether she was a ‘police officer’ was not in issue in earlier proceedings. The distinction was introduced by the 2012 Amending Act.[42] The respondent submits that benefits paid to the appellant in respect of her injury were paid under the 1987 Act, not pursuant to s 12D of the Police Regulation (Superannuation) Act.[43] It submits that payments of superannuation to the appellant were to the State Superannuation Fund, to which employees of the Crown, such as the appellant, have access, the Fund is not exclusive to police officers.[44]
[42] Respondent’s submissions, [15]–[20].
[43] Respondent’s submissions, [34].
[44] Respondent’s submissions, [37].
The respondent submits that Stockwell and Chapman-Davis are “clearly distinguishable”. Those decisions involved paramedics, a term which is not defined, and the workers were appointed as paramedics prior to their injuries. In the current matter, ‘police officer’ is the subject of definition, and the appellant was not appointed as a ‘police officer’, nor did she take the “required oath”.[45]
[45] Respondent’s submissions, [21]–[24].
In so far as the Police Superannuation Act is relied upon, the definition of ‘worker’ in s 4 of the 1998 Act specifically excludes, from the definition, a police officer who contributed under that Act. The appellant did not work for the respondent before 1 April 1988, and does not fall within the definition in s 1A of that Act, of those to whom the Act applies. The appellant’s compensation benefits have been under the 1987 Act, not under s 12D of the Superannuation Act. The appellant has failed to establish a “contrary intention” in the 1987 or 1998 Acts, to application of the definition of a ‘police officer’ in the Interpretation Act. It submits this argument fails.
Consideration
Schedule 1 of the 1998 Act contains provisions going to the deemed employment of certain workers, and is not relevant to the appellant’s argument or situation. The definition of ‘worker’ in s 4 of the 1998 Act is set out above. The definition of ‘worker’ in s 4 excludes “a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906”. Section 1A of the Police Regulation (Superannuation) Act provides that the Fund pursuant to that Act is, subject to certain exceptions which are not relevant, closed to members of the police force who became members on or after 1 April 1988. The appellant became a parking patrol officer from 13 January 1997. On any view of it, the Police Regulation (Superannuation) Act never had application to the appellant, and is not relevant to her situation. The appellant’s statement indicates that her superannuation payments, associated with her employment with the respondent, were made to the “First State Super Fund”.[46] The appellant’s submissions, in so far as they rely on the Police Regulation (Superannuation) Act, and an assertion that the appellant was a contributor pursuant to that Act (and therefore a ‘police officer’) cannot succeed.
[46] Appellant’s statement, [36], at ARD, p 10.
The definition of ‘worker’ in s 4 of the 1998 Act is not derived from the Police Regulation (Superannuation) Act 1906. Rather, the definition exempts, from the application of the 1987 and 1998 Acts, certain people whose rights to compensation are derived from the Police Regulation (Superannuation) Act, rather than from the workers compensation legislation which applies to most other workers. The very fact that the appellant is seeking to establish that she was a ‘police officer’, and therefore quarantined from the effect of the 2012 Amending Act, is illustrative of the fact that her rights are pursuant to the 1987 and 1998 Acts.
The appellant submits there was error in the Arbitrator’s failure to follow the decisions of the President of the Workers Compensation Commission in Chapman-Davis and Stockwell. The specific references to those cases, in her submissions, are to the decisions of the Court of Appeal in those matters. The decision in Chapman-Davis, which was appealed to the Court of Appeal, was decided by Walton P in the Industrial Relations Commission of NSW.[47] Chapman-Davis was not litigated in the Workers Compensation Commission. In Stockwell, McColl JA (Leeming and Simpson JJA agreeing) referred to the reasoning of Keating P in the Commission:
“… the President held, when dealing with a complaint the SNSW had made about the arbitrator’s analysis of some evidence that ‘[t]he issue before the Senior Arbitrator was not whether [the respondent] was able to perform ‘on-road’ duties at the time he was injured, but whether he satisfied the Award definition of ‘paramedic’.”[48]
[47] Chapman-Davis v State of New South Wales (No 2) [2015] NSWIC 13.
[48] Stockwell, [46].
The above is generally consistent with the analysis in the Court of Appeal. Both Stockwell and Chapman-Davis went to the Court of Appeal, and the decisions of Keating P and Walton P respectively were upheld; it is appropriate to have reference to the Court of Appeal decisions in those matters.
The Court of Appeal decisions in those cases do not assist the appellant. The appellant refers to a “function” or “functionality” test as being appropriate. She does this in the context of identifying alleged error on the Arbitrator’s part, in “not following the indicia he recorded in his paragraph 20”.[49] The appellant’s statement recorded aspects of her employment such as the uniform she was issued, badges, identification and a two-way radio. It referred to her training, and the practical duties she carried out on a day to day basis as a parking patrol officer.[50] Things of this nature were identified in the Arbitrator’s reasons at [20].
[49] Appellant’s submissions in support, [4](a)–(e).
[50] Appellant’s statement, [3]–[5], at ARD, pp 1–2.
Chapman-Davis and Stockwell do not support the proposition that whether a worker falls within one of the exempt categories of worker in Sch 6, Pt 19H, cl 25 depends on an analysis of the worker’s duties from time to time. Chapman-Davis involved a worker who was classified as a ‘paramedic’, but who was injured when working on a 12-month secondment as a health adviser. It was common ground that the duties of a health adviser were different to those of a paramedic.[51] Gleeson JA (McColl JA agreeing) said:
“If, as should be accepted, the language of the exemption is not to be construed as containing the adjectival limitation of ‘operational’, it may also be doubted that a functional limitation or qualification of the type suggested by the appellants was intended, there being no particular duties which the nominated classes of worker are required to perform to engage the exemption. The language used in the exemption, ‘... in respect of an injury received by a ... paramedic’, is broad and unqualified. The better view is that whether a worker answers the statutory description in the exemption is determined by their designation or holding the status as a ‘police officer, paramedic or firefighter’ at the time of receipt of an injury, not by reference to the duties they are required to perform.” (emphasis in original)[52]
[51] Chapman-Davis, [16]–[22].
[52] Chapman Davis, [74].
The effect of the Court of Appeal decision in Chapman-Davis was summarised by McColl JA in Stockwell:
“In brief, the court held that the focus of the cl 25 exemption was a particular designation or status of the worker, rather than certain characteristics or functional aspects of a person’s work at the time the relevant injury was suffered.”[53]
[53] Stockwell, [55].
Chapman Davis and Stockwell both involved the term ‘paramedic’ in cl 25. That term is not subject to any form of statutory definition. In Chapman-Davis it was said that the worker’s “conditions of employment … were expressed (as a matter of contract) to be those embodied in the 2010 Award”. Her status as a ‘paramedic’ pursuant to her contract of employment was not altered by her secondment to the different duties of a health adviser.[54]
[54] Chapman-Davis, [92].
In Stockwell McColl JA described the task at hand in considering the application of cl 25:
“The SNSW’s core contention turns on the construction of the 2006 Award. The term ‘paramedic’ had a particular meaning for the purposes of cl 25. That meaning was determined in Chapman-Davis as turning on whether a person employed by the Ambulance Service held the designation or status of ‘paramedic’ at the date of his or her injury. To resolve that issue in the present case, it was necessary for the arbitrator and, if appropriate within the confines of s 352 of the WIM Act, the President, to engage in a process of fact-finding concerning the respondent’s status within the Ambulance Service and, too, to construe the 2006 Award and cl 25.” (excluding citations) (emphasis added)
The evidence does not suggest that the appellant was ever classified as, or held the status of, a ‘police officer’. In her statement, the appellant says that she commenced working for “the NSW Police Department, as a Parking Patrol Officer”, on 13 January 1997. The appellant attaches, to her Application to Appeal, a copy of a document titled “Submissions for Exemption”. It was part of the submissions she relied on before the Arbitrator. A copy of the Crown Employees (Parking Patrol Officers, Police Service of New South Wales) Award is attached to those submissions. It provides that it “shall apply to Parking Patrol Officers employed by the Police Service of New South Wales as at 30 July 1997 or who are subsequently employed as Parking Patrol Officers”.[55] It provides for the remuneration of Parking Patrol Officers, including Senior Parking Patrol Officers, Co-ordinators of Parking Patrol Services, and Senior Co-ordinators of Parking Patrol Services.[56] The award does not make any provision for the working conditions or remuneration of police officers. Section 12 of the Police Act sets out the “ranks of police officers within the NSW Police Force” (see [24] above). The ranks do not include “Parking Patrol Officer”. A person, before carrying out any of the functions of a ‘police officer’ is required to take an oath or affirmation in compliance with s 13 of the Police Act. The evidence does not suggest that the appellant did so.
[55] Crown Employees (Parking Patrol Officers, Police Service of New South Wales) Award (Parking Officers Award), cl 32(i).
[56] Parking Officers Award, Sch A and B and Pt B.
The Arbitrator did not err in failing to consider the “indicia” identified by the appellant. He considered these matters, to the extent that he referred to them in his reasons. However, the indicia were not determinative of the issue of whether the appellant was a ‘police officer’ within the meaning of cl 25. That issue required consideration of the appellant’s status or classification, including by reference to the statutory provisions relevant to whether she was a ‘police officer’.
The definition of ‘police officer’ in s 21 of the Interpretation Act imports the definition in s 3 of the Police Act. This is subject to whether any contrary intention appears in the Interpretation Act or the Act concerned (the 1987 and 1998 Acts, which are to be read together: s 2A of the 1987 Act[57]): s 5 of the Interpretation Act. The appellant submits that there is a contrary intention in the “Act concerned”, referring to the Arbitrator’s reasons at [37].[58] The Arbitrator’s reasons at [37] simply state:
“The cases referred to by Mrs Mahal in her submissions, Stockwell and Chapman-Davis, are concerned with interpretation of the term ‘paramedic’. That term was not defined in the workers compensation legislation or in the Interpretation Act and the cases involving workers who sought exemption as ‘paramedics’ were accordingly decided on different grounds.”
[57] Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704, [173].
[58] Appellant’s submissions in support, [2].
I do not see any logical way in which the Arbitrator’s reasons at [37] demonstrate that there was a submission, by the appellant before the Arbitrator, that the 1987 and 1998 Acts contain an intention contrary to the application of the definition of ‘police officer’ found in the Interpretation Act. The appellant’s “Submissions for Exemption”, relied on before the Arbitrator, and attached to the Application to Appeal, discuss the decisions in Chapman-Davis and Stockwell (under the heading “Two Recent Decisions of Supreme Court of NSW”). They do not include a submission that these decisions, in some way, are indicative of an intention contrary to the application of the Interpretation Act definition of ‘police officer’. The Arbitrator correctly observes that there is no statutory definition of ‘paramedic’.
In any event, the Court of Appeal decisions in Chapman-Davis and Stockwell direct attention to the classification or status of a worker. For reasons given above, those decisions do not assist the appellant.
The appellant also submits that a contrary intention can be found in the 1998 Act, and says that the “WIM Act employs a definition of ‘police officer’ derived from the Police Regulation Superannuation Act 1906 that includes the [appellant]”.[59] The basis of this submission is obscure. The 1998 Act does not include a definition of ‘police officer’. The appellant may be seeking to refer to the definition of ‘worker’ in s 4 of the 1998 Act, which excludes certain workers from its operation, whose compensation rights flow from the Police Regulation (Superannuation) Act. If this is what she seeks to refer to, it does not assist her. The definition of ‘worker’ in s 4 cannot be read as demonstrating a “contrary intention”, to the application of the meaning of ‘police officer’ provided in s 21 of the Interpretation Act.
[59] Appellant’s submissions in support, [3](g).
The appellant also submits that the “specific words in the Interpretation Act do not apply” to cl 25, because “it was enacted at a later point in time and hence the words ‘Police Officer’ must be given ordinary meanings”.[60] This submission is inconsistent with s 5(1) of the Interpretation Act, and must be rejected.
[60] Appellant’s submissions in support, [8](a).
The appellant’s status was not that of a ‘police officer’, by reference to the position that she held. A ‘police officer’ was required to hold one of the ranks specified in s 12 of the Police Act, the appellant did not. A police officer was required to take an oath or affirmation in compliance with s 13 of the Police Act, before exercising any of the functions of a police officer. The evidence does not indicate that the appellant did so. The appellant’s classification and status were inconsistent with her being a ‘police officer’ within the meaning of cl 25. This is consistent with application of the definition in the Interpretation Act. It also is consistent with the approach taken in the Court of Appeal decisions in Chapman-Davis and Stockwell.
The appellant’s submissions refer to the beneficial nature of workers compensation legislation. In Chapman-Davis Gleeson JA (McColl JA agreeing) said:
“While primacy must be given to the text, context and purpose of the WC Act and a court needs to be cautious about a priori assumptions based on its character or legislative history, the exemption attracts the principle stated by Deane J and Gaudron J (although in dissent on the facts) in Bird v The Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at 9 that workers compensation legislation is remedial in its character ‘and, like all such Acts, should be beneficially construed’. Their Honours continued (at 9):
The ‘established principle’ was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335: ‘where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred’. If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not construe the Act so as to exclude that person or case.”[61]
[61] Chapman-Davis, [76].
Application of this principle is dependent on the existence of two possible interpretations of the legislation being construed. The Arbitrator identified a single properly available interpretation, in his reasons, this being consistent with the decisions in Muscat and D’Angelo. It involved applying the definition of ‘police officer’ found in the Interpretation Act.[62] I agree with this approach. In these circumstances, the beneficial nature of the legislation does not assist the appellant.
[62] Decision, [33].
The estoppel the appellant asserts, in ground no 2, is one flowing from the “original proceedings” over a decade ago. This is apparently a reference to the Commission’s letter to the appellant dated 2 July 2003, advising of the registration of a s 66A lump sum agreement.[63] The letter identified the parties to the agreement, the respondent was identified as “NSW Police Service”. The details described the insurer, a claim number and a matter number. The document set out the various percentage losses and impairments, and monetary values, being compensated pursuant to the Table of Disabilities. The document was silent regarding the nature and classification of the appellant’s employment with the respondent. It does not suggest any agreement between the parties that the appellant was a ‘police officer’. The respondent does not dispute that the appellant was employed by the NSW Police Force (however described), it does dispute that she was a ‘police officer’. The evidence does not suggest any estoppel that would prevent the respondent from disputing whether the appellant was a ‘police officer’.
[63] An unnumbered attachment to the “Submissions for Exemption”, forming part of the Application to Appeal.
Although it is not specifically raised in the grounds, the appellant makes an associated submission that the respondent “treated the [appellant] as a Police Officer for over 20 years”, on “facts and in several applications before and after 2012”. She submits that this “must carry some weight”.[64] The Arbitrator dealt with this argument in his reasons at [35], where he said that the submission “carries no weight because that status was not in issue with respect to earlier claims”. The appellant’s submission does not refer to specific evidence as supporting this assertion. Even if such evidence could be identified, any instances prior to commencement of the 2012 Amending Act would be of little weight, in circumstances where the appellant’s alleged status as a ‘police officer’ was not in issue, and was not relevant to her entitlements.
[64] Appellant’s submissions in support, [9].
A document headed “Submissions for Exemption”, relied on before the Arbitrator, is attached to the appellant’s Application to Appeal. The document contains reference to management of the appellant’s claim, after the 2012 Amending Act commenced. It refers to multiple notices from the insurer, dating from 30 August 2013, dealing with work capacity assessments and work capacity decisions.[65] Copies of documents dated 30 August 2013 and 9 January 2015 are attached to those submissions. These documents, and the description of assessments, decisions, and related applications, are consistent with the insurer managing the appellant’s weekly entitlements on the basis that she was subject to the weekly payments amendments introduced by the 2012 Amending Act. The weekly payments amendments did not apply to exempt workers such as police officers. This is inconsistent with the appellant’s submission that the respondent treated her as a police officer after 2012.
[65] Submissions for Exemption, pp 4–7.
The appellant also submits that in two previous decisions in appeals she has brought, in proceedings seeking lump sum compensation, the respondent did not object to her status as a ‘police officer’. The first of these, Mahal, involved an attempted appeal by the appellant to a Presidential member, pursuant to s 352 of the 1998 Act. The subject matter involved decisions of a delegate of the Registrar, together with the Registrar, in dealing with a medical appeal pursuant to s 327(3) of the 1998 Act. Parker SC ADP concluded that the Presidential appeal was misconceived, and dismissed it pursuant to s 354(7A)(b) of the 1998 Act.[66] The second of these, Mahal No 2, involved an application by the appellant that Parker SC ADP reconsider his decision in Mahal. This, the Acting Deputy President declined to do.[67] Neither of these appeals raised, in any way, the issue of whether the appellant was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25. That the appellant was employed by the respondent was never in issue, her alleged status as a ‘police officer’, which is relevant to her entitlement to weekly payments, is in issue.
[66] Mahal, [64]–[65].
[67] Mahal No 2, [16]–[17].
For the above reasons, the Arbitrator’s conclusion that the definition of ‘police officer’ in the Interpretation Act applied to cl 25 was clearly correct, as was his conclusion that the appellant did not fall within that definition. Even if he was wrong on this point, and the issue fell to be determined on a basis akin to that applied in the Court of Appeal in Chapman-Davis and Stockwell, this would not affect the result. For reasons appearing above, the appellant’s status and classification were not consistent with her falling within the definition of a ‘police officer’. Ground No 1 is rejected.
For reasons appearing above, there was no estoppel flowing from the “original proceedings”, that prevented the respondent from disputing the issue of whether the appellant was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act. To the extent that the appellant seeks to rely on an alleged acceptance by the respondent of her status as a ‘police officer’, these submissions do not assist her. Ground No 2 is rejected.
For reasons appearing above, if the Court of Appeal decisions in Chapman-Davis and Stockwell were applied to the appellant’s situation, the result would be the same. Ground No 3 is rejected.
GROUND NO 4
The Arbitrator erred in applying the reasoning in Muscat. Some of the arguments made in the current matter were not present in Muscat. The appellant was not given an opportunity to address the application of Muscat, including whether it was correctly decided.
GROUND NO 6
The appellant was denied procedural fairness, in that the Arbitrator denied her the opportunity to be heard when such a request was made.
These grounds raise related issues, and it is convenient to deal with them together.
Appellant’s submissions
The appellant submits it was unfair that the matter was not set down for oral hearing by the Arbitrator. The Arbitrator should have invited the appellant to make further submissions, if he was not satisfied that the appellant’s argument relating to “contrary intention” should succeed. An oral hearing was requested at the telephone conference in the matter, and later in writing. (The appellant refers to her arbitral submissions in reply at [47]).[68]
[68] Appellants submissions in support, [5](b)–[6].
The appellant submits that Muscat can be distinguished, it involved a ranger employed by a council. The worker in Muscat was not employed by the NSW Police Force.[69] She submits that the Arbitrator did not inform her that he would make his decision applying Muscat.[70]
[69] Appellant’s submissions in support, [7], [5].
[70] Appellant’s submissions general submissions, [2].
Respondent’s submissions
The respondent submits that, at the telephone conference held on 18 December 2017, where the appellant was represented by Mr Carney instructed by Mr Buttar, the parties agreed that the matter could be decided on the papers. This is consistent with the Direction dated 19 December 2017, which provided for written submissions by the parties. The appellant subsequently advanced “no substantial argument to depart from the original agreement”. The appellant put on written submissions dated 19 January 2018 and 6 February 2018.[71]
[71] Respondent’s submissions, [25]–[26], [40]–[41].
Consideration
The respondent accepts that the appellant, for the duration of her employment, “was a ministerial employee, who held the rank of ‘Special Constable’ in her role as a Parking Patrol Officer for the [r]espondent”.[72]
[72] Respondent’s submissions re exempt status, [13].
The section 74 notice issued by the respondent’s insurer, dated 8 June 2016, squarely placed in issue whether the appellant was an exempt worker within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act. It specifically referred to the Police Act, and to the appellant’s failure to take an oath in compliance with s 13 of that Act. It stated that on that basis she “did not hold the status of a ‘police officer’”.[73]
[73] Reply, pp 44–48.
The argument was amplified in the submissions made by the respondent before the Arbitrator.[74] Those submissions specifically referred to s 21 of the Interpretation Act, and ss 3, 10, 11, 12 and 13 of the Police Act. They referred to the provision in the Police Regulation 2000 (the Regulation), which provided for the oath or affirmation to be sworn by a police officer pursuant to s 13, and the provision in the Regulation for grades within the ranks of police officers. The grades for constables were specified as “senior constable” and “constable”. There was not provision in the grading of police officers for special constables or parking patrol officers.[75] Those submissions specifically referred to the fact that ‘special constable’ was not a position referred to in s 12 of the Police Act, or in the Regulation. The submissions specifically referred to the decisions in Muscat and D’Angelo in support of the above argument, including giving the medium neutral citations.[76] The decisions in Muscat and D’Angelo, including the statutory provisions applied in those decisions, were clearly raised between the parties.
[74] Respondent’s submissions re exempt status, 2 February 2018.
[75] Respondent’s submissions re exempt status, [2]–[9].
[76] Respondent’s submissions re exempt status, [12]–[18].
The appellant lodged lengthy submissions in the arbitral proceedings, headed “Reply to Respondent’s Submissions on Exempt Status”.[77] These submissions argued, amongst other things, that dictionary meanings of “Police force” and “officer” (the source of which was not identified) should be applied, rather than the definition in the Police Act. The appellant’s submissions in reply, before the Arbitrator, did not specifically address, or refer to, the decisions in Muscat and D’Angelo. The application of Muscat, D’Angelo and relevant legislation was squarely raised in the respondent’s submissions. The appellant had an opportunity to address these matters.
[77] Undated, but lodged in the Commission on 7 February 2018.
This is not a case where a decision maker has gone outside the submissions of the parties (see Seltsam Pty Limited v Ghaleb[78]), or has decided a matter on a basis inconsistent with indications given to counsel during the running of the matter (see Stead v State Government Insurance Commission[79]). In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah Gleeson CJ and Hayne J said:
“At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure.”[80]
[78] [2005] NSWCA 208; 3 DDCR 1.
[79] [1986] HCA 54; 161 CLR 141.
[80] [2001] HCA 22; 206 CLR 57; 179 ALR 238; 75 ALJR 889 (Miah), [31].
In Allesch v Maunz Kirby J said:
“Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.”[81]
[81] [2000] HCA 40; 203 CLR 172, [38].
The argument that the appellant was not given an opportunity to address the application of Muscat is without merit and should be rejected. The submission that the Arbitrator should have invited the appellant to make further submissions, if he was not satisfied that the appellant’s argument relating to “contrary intention” should succeed, also is without merit. The appellant had an opportunity to address the provisions of s 5(2) of the Interpretation Act, and she did so. The Arbitrator was not under any duty to warn her that her submissions would not necessarily be accepted. The submission is contrary to the above passage in Miah. An Arbitrator, dealing with a matter on the basis of written submissions, is not under a duty to warn a party if its written submissions may not be accepted.
Muscat and D’Angelo were two previous decisions of mine, in my then capacity as a Senior Arbitrator. Each involved an argument by a worker, appointed as a special constable, going to whether he was entitled to rely on the exemption in Sch 6, Pt 19H, cl 25 of the 1987 Act. In each of these matters the worker was appointed as a special constable pursuant to the Police (Special Provisions) Act 1901 (the 1901 Act). In Muscat, the worker was employed by Parramatta City Council in the position of a ranger. He did not argue that he was a ‘police officer’, rather that he was entitled to the advantages of being a ‘police officer’, pursuant to s 103 of the 1901 Act.[82] In D’Angelo the worker, who was employed by the NSW Police Force in the security management control room at Governor Macquarie Tower, argued that he was a ‘police officer’.[83]
[82] Muscat, [54].
[83] D’Angelo, [37].
The reasoning in Muscat and D’Angelo was to some extent similar. I concluded that the definition of a ‘police officer’ in the Police Act had application, where that term is used in cl 25, due to s 21 of the Interpretation Act. In Muscat, as the worker was not a ‘police officer’, he could not bring himself within the definition. I concluded, as a matter of construction, that the 1901 Act did not modify the rights which the worker would otherwise have, to workers compensation benefits.
In D’Angelo, I observed that the worker carried the onus of bringing himself within the definition of a ‘police officer’, applying Commonwealth v Muratore[84] (he who asserts must prove), applied in the context of Sch 6, Pt 19H, cl 25 by Roche DP in State of New South Wales v Stockwell.[85] After referring to various legislative provisions, which have also been raised in the current matter, I said:
“73. The definition of a ‘police officer’ in section 3 of the Police Act is ‘a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer’ (emphasis added).
74. The applicant’s position of ‘special constable’ was not one of the ranks and grades of police officers specified in section 12 of the Police Act. It was not one of the grades of police constable described at clause 6 of the 2000 Regulation. The oath he swore was not that required pursuant to section 13 of the Police Act. His appointment as a ‘special constable’, at the relevant time, was pursuant to the 1901 Act, rather than the Police Act. In my view a clear distinction was drawn between special constables and police officers. This distinction has continued under the Police Act as amended by the [Police Legislation Amendment (Special Constables) Act 2013] (see, for example, section 203(1) quoted at [66] above).”[86]
[84] [1978] HCA 47; 141 CLR 296, [9].
[85] [2015] NSWWCCPD 9, [108].
[86] D’Angelo, [73]–[74].
The definition in the Police Act applies, “except in so far as the contrary intention appears in this Act or in the Act or instrument concerned” (emphasis added): s 5(2) of the Interpretation Act.
The appellant submits the Arbitrator “erred in ignoring the functional test laid down by section 3 of the Interpretation Act”. This appears to be a reference to s 3(2), although the submission is not further developed. It is unclear what aspect of the Interpretation Act the appellant seeks to apply s 3(2) to. I cannot see that the relevant definition in s 21 involves reference to a function or the exercise of a function. It involves reference to a noun, ‘police officer’. There is no coherent submission going to how s 3 assists the appellant’s case.
On appeal, the appellant argues that, by implication, a contrary intention can be gleaned from the decisions in Chapman-Davis and Stockwell. As discussed at [54] above, I do not see that the appellant ever made a clear submission to the Arbitrator, that Chapman-Davis and Stockwell somehow supported the proposition that there was “contrary intention” in the 1987 and 1998 Acts, such that the definition in s 21 of the Interpretation Act did not apply. The Arbitrator did not err in not dealing with something that was not put.[87]
[87] Miller v State of New South Wales [2018] NSWCA 152, [30], Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [29]–[30].
Chapman-Davis and Stockwell both concerned the meaning of ‘paramedic’ in cl 25. Unlike ‘police officer’, that term was not defined in the workers compensation legislation or the Interpretation Act. There is no developed submission dealing with whether, or how, those decisions in the Court of Appeal support an argument that there is an intention in the 1987 Act, contrary to the application of the definition set out in s 21 of the Interpretation Act. The Arbitrator said the following, with which I agree:
“I do not regard section 354 of the 1998 Act nor any other part or whole of the workers compensation legislation as having the effect of demonstrating a ‘contrary intention’ so as to displace the statutory meaning established by the Interpretation Act.”[88]
[88] Decision, [33].
Nothing is put by the appellant that leads me to doubt that Muscat and D’Angelo were correctly decided. Although it is Muscat that the Arbitrator quoted in his decision,[89] both decisions were squarely raised between the parties, and the appellant had the opportunity to make such submissions as she wished, regarding their application. The decisions make similar points, regarding the application of the meaning of ‘police officer’ in the definition in the Interpretation Act.
[89] Decision, [36].
Ground No 4 is rejected.
Ground No 6 alleges an “error of discretion” in denying the appellant an “opportunity of arbitration or oral hearing”.
The Arbitrator issued a Direction dated 19 December 2017, in which he made orders for lodgment of written submissions by the appellant and the respondent, by 19 January 2018 and 2 February 2018 respectively. There was provision for submissions by the appellant in reply, by 9 February 2018. The Arbitrator additionally gave leave to the respondent to apply, by 16 February 2018, for leave to lodge further submissions “should the justice of the case so require”. The Direction provided that, at the conclusion of time for submissions, the preliminary issue (whether the appellant was an ‘exempt’ worker) would be determined “on the papers”.[90] The Arbitrator’s decision recorded that the parties “agreed to the determination of the matter without a conference or formal hearing”.[91] The respondent’s submissions, on this appeal, state that at the telephone conference on 18 December 2017, when the appellant was represented by Mr Carney, barrister, instructed by Mr Buttar, her solicitor, it was agreed by the parties “that the matter could be decided on the papers”.[92] The appellant has not sought to lodge anything in reply on this appeal contradicting this submission.
[90] Direction, 19 December 2017 [2]–[6].
[91] Decision, [11].
[92] Respondent’s submissions, [25].
The appellant lodged 23 pages of written submissions, accompanied by multiple annexures. Copies of these are attached to the Application to Appeal. The respondent lodged 7 pages of written submissions. The relief claimed by both parties was the acceptance of the substantive arguments it made, neither party sought an oral hearing or arbitration, in these submissions. The appellant then lodged 18 pages of written submissions in reply. In one paragraph of these, the appellant requested that an arbitration be conducted, to allow her counsel to make oral submissions. The relief sought in those submissions included a “face to face hearing and arbitration”.[93] The respondent lodged further submissions dated 16 February 2018. Consistent with the Direction dated 19 December 2017, the respondent required leave to rely on these further submissions.
[93] Appellant’s submissions in reply, [47] and ‘C’ in “relief sought”.
The Arbitrator issued a Direction dated 20 February 2018. He refused the respondent’s application for leave to rely on its further submissions. He stated that the matter would be decided on the papers, having regard to the primary submissions of both parties, together with the appellant’s submissions in reply.
The appellant’s submissions on this appeal include an assertion that her counsel requested, at the telephone conference in the matter, that it be set down for arbitration. She says this was repeated “later in writing”. This is apparently a reference to paragraph [47] of her submissions in reply. It does not appear that the telephone conference was recorded, which is consistent with normal practice. There is no evidence of what was said by the appellant’s counsel, or in what context. It would be unsurprising if, for example, counsel indicated that a matter needed to be set down for hearing as it could not resolve, but there was then discussion leading to orders that were not opposed by any party, for resolution of the dispute on the basis of written submissions. There is no basis for not accepting the Arbitrator’s statement in his decision, that the parties agreed to determination of the matter without a conference or formal hearing.
The only basis given in the submissions in reply, for requesting an oral hearing, was “to allow my counsel an oral submission in support of the merits of my case”. The short written submission on the point then referred to the request being for “the sake of procedural fairness”. The submission did not give any indication of why procedural fairness required an oral hearing in the circumstances, or of what submissions could be made orally by counsel, that had not been made in writing. It should be noted that, as this request was made in the appellant’s submissions in reply, it was made at a time when the appellant’s opportunity to make further submissions in writing became exhausted in any event.
The appellant’s submissions, on this appeal, refer to the respondent’s further submissions dated 16 February 2018, apparently assuming (incorrectly) that these were taken into account, and that the respondent’s submission opposing an oral hearing was accepted.[94]
[94] Appellant’s submissions in support, [6].
Section 354(6) of the 1998 Act provides:
“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.”
In Aluminium Louvres & Ceilings Pty Limited v Zheng Bryson JA (Handley JA and Bell J agreeing) said:
“The practices of common law courts are not the only way in which fair procedures may lead to a just determination of facts which are in dispute. As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”[95]
[95] [2006] NSWCA 34; 4 DDCR 358, [20].
In Fletcher International Exports Pty Ltd v Lott one of the grounds of appeal involved challenge to a decision by a Presidential member to determine an appeal without holding an oral hearing, notwithstanding a request by the employer for an oral hearing. Giles JA (McColl and Basten JJA agreeing) said:
“The Acting President was subject to obligations of procedural fairness: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (an Arbitrator, but the Acting President was in a like position). It is well established, however, that the requirements of procedural fairness may be modified by statute, and in any event that what is required can vary according to the circumstances. Further, procedural fairness is generally satisfied by the opportunity to put evidence and submissions before the tribunal, and Fletcher had the opportunity.”[96]
[96] [2010] NSWCA 63 (Lott), [42].
In the same case, Basten JA, agreeing with Giles JA, added:
“Section 354 must be read as a whole to understand the scope of the procedural discretion conferred on the Commission. Subsection (1) does not alter the fact that a decision with respect to a formal hearing under sub-s (6) depends on the Commission’s satisfaction according to the stated criterion, which may obviously include the need for proper consideration of the appeal.”[97]
[97] Lott, [66].
Ground No 6 correctly identifies the ground as one which challenges an “error of discretion”. For the ground to succeed, it is necessary that the appellant establish error on the basis of House v The King.[98] In Micallef v ICI Australia Operations Pty Ltd Heydon JA (Sheller JA and Studdert AJA agreeing) described the nature of such an appeal:
“Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a) made an error of legal principle,
(b) made a material error of fact,
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[99]
[98] [1936] HCA 40; 55 CLR 499.
[99] [2001] NSWCA 274, [45].
The appellant raised two specific arguments, based on an alleged failure to afford her procedural fairness, relating to the opportunity to address the decision in Muscat, and whether she should have been informed that her submissions on s 5(2) of the Interpretation Act may not be accepted. These submissions are rejected for reasons given above. The appellant additionally raises a more general argument, that she was denied procedural fairness because, in her submissions in reply, she requested an oral hearing. Her submissions do not indicate what further submissions she sought to put, or why they were not put in her primary submissions to the Arbitrator, and her submissions in reply. I note that the appellant was legally represented at that time. Section 354(6) of the 1998 Act clearly entitled the Arbitrator, in the exercise of his discretion, to deal with the matter in the way that he did. He afforded the appellant the opportunity to make submissions. The appellant has not identified any basis on which the Arbitrator failed to afford her procedural fairness, in determining the issue before him without an oral hearing. She has not identified any basis on which the Arbitrator erred, applying the principles in House v The King. I note the Arbitrator’s reasons are not raised as an issue. Ground No 6 is rejected.
GROUND NO 5
The decision of the Arbitrator is illogical based upon Minister for Immigration and Citizenship v Li decision of the High Court, since the reasoning is adopted in a workers compensation matter by the Court of Appeal in a comment of Sackville AJA in Jaffarie v Quality Castings Pty Ltd at [63].
I am unable to identify any submissions that specifically go to this ground. The ground itself refers to Jaffarie at [63]. That paragraph of the judgment of Sackville AJA reads, in its entirety:
“There may be other ways to characterise the Deputy President’s error. For example, it is arguable that he failed to give adequate reasons for his conclusion or, perhaps, that the decision on the thoracic spine issue lacked ‘an evident and intelligible justification’ [footnote: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).]. As these matters were not argued it is not necessary to consider them further.”[100]
[100] Jaffarie, [63].
The footnote, in the passage quoted in the preceding paragraph, referred to Li at [76]. That paragraph of the reasons of the plurality reads, in its entirety (excluding the footnote to House v The King):
“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”[101]
[101] Li, [76].
There are no submissions that are directed to whether the Arbitrator’s decision is ‘unreasonable’ on the basis that it lacks “an evident and intelligible justification”. The appellant does submit that the Arbitrator’s reasons at [35] are illogical.[102] This passage of the Arbitrator’s reasons does not, on its face, appear illogical. I otherwise seek to address the matters raised in this paragraph of the appellant’s submissions, at [61]–[64] above, in the context of Ground No 2. Ground No 5 is not put or argued in any developed or comprehensible way. The appellant may not agree with the Arbitrator’s decision, but the decision is clearly one that has an evident and intelligible justification. Ground No 5 is rejected.
[102] Appellant’s submissions in support, [9].
GROUND NO 7
The Arbitrator erred, in that he accepted the respondent’s arguments going to whether the appellant was an exempt worker in his decision on 20 February 2018, before providing the reasons in his decision on 8 March 2018.
There are no submissions by either party dealing with this ground.
Consistent with the Direction he issued on 19 December 2017, the Arbitrator needed to deal with the issue of whether the respondent should have leave to rely on its further submissions dated 16 February 2018. He dealt with this issue in his Direction dated 20 February 2018, declining to grant that leave. He noted the appellant’s submission that she was entitled to status as a worker exempt from the 2012 Amending Act, as she was “employed as a ‘police officer’ at the time of her injury”. He noted the respondent’s submission that s 21 of the Interpretation Act applied the definition in the Police Act, and the appellant did not hold a position under the Police Act designated to be held by a ‘police officer’.
The Arbitrator then said that he agreed with the following passage of Muscat at [75]:
“Clause 25 of the transitional provisions exempts a ‘police officer’ from the operation of the Amending Act. The term ‘police officer’ is not defined in the 1987 or 1998 Acts. The definition in the Interpretation Act applies ‘except in so far as the contrary intention appears in this Act or in the Act or instrument concerned’. There is nothing in the Interpretation Act, or in the 1987 and 1998 Acts, which indicates any contrary intention. The relevant definition in the Interpretation Act imports the definition from the Police Act.”
Because the ground is not illuminated by submissions, identifying the challenge the appellant seeks to make is somewhat speculative. It appears to raise the issue of bias on the basis of prejudgment, whether actual bias or apprehended bias is not specified. At the least, the Arbitrator there expressed an a priori view, inconsistent with the appellant’s argument on the application of the relevant definition in the Interpretation Act.
In South Western Sydney Area Health Service v Edmonds McColl JA, dealing with an allegation of actual bias based on prejudgment, said:
“97 A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
98 In order to establish that the Arbitrator was guilty of prejudgment sufficient to disqualify him from hearing the case, the appellant had to establish that he was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng (at [72]) per Gleeson CJ and Gummow J (with whom Hayne J agreed (at [176])).”[103]
[103] [2007] NSWCA 16; 4 DDCR 421, [97]–[98].
In Michael Wilson & Partners Limited v Nicholls, dealing with apprehended bias, Gummow ACJ, Hayne, Crennan and Bell JJ stated:
“In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that ‘[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated’. So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.” (excluding footnotes)[104]
[104] [2011] HCA 48; 244 CLR 427, [63].
How the appellant would have sought to articulate the basis of any allegation of bias is unknown, as no application was made before the Arbitrator. The appellant has not made submissions on this appeal dealing with such matters, other than the bare stating of the ground. The appellant was legally represented during the proceedings before the Arbitrator. The Direction, containing the passage to which this ground refers, was dated 20 February 2018. The Arbitrator’s decision was issued on 8 March 2018, a little more than two weeks later. There is no suggestion that any application was made to the Arbitrator before his decision was issued, raising bias in either of its forms.
In Vakauta v Kelly Brennan, Deane and Gaudron JJ stated:
“Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.”[105]
[105] [1989] HCA 44; 167 CLR 568, [5].
The above passage was applied in Smits v Roach[106] and in the New South Wales Court of Appeal in Brown Brothers v Pittwater Council[107] Consistent with the approach taken in those cases, the appellant should be taken to have waived any right she may have had, to object to the Arbitrator determining the matter, on the basis of either actual or apprehended bias.[108]
[106] [2006] HCA 36; 227 CLR 423; 228 ALR 262; 80 ALJR 1309 (Smits), [43].
[107] [2015] NSWCA 215 (Brown Brothers), [143].
[108] Smits, [44]–[49], Brown Brothers, [143].
If I am wrong on this point, any ground based on actual or apprehended bias could not succeed in any event, due to the lack of articulation of the basis of any objection to the Arbitrator continuing to deal with the matter.
Ground No 7 is rejected.
CONCLUSION
The grounds of appeal raised by the appellant have all failed. The appeal does not succeed.
DECISION
The respondent’s identity is amended to “The State of New South Wales”.
The Arbitrator’s determination dated 8 March 2018 is confirmed.
Michael Snell
Acting President
20 July 2018
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