Maiorana v Ranieri & Giubega Pty Ltd t/as All Seasons Fruit Market

[2005] NSWWCCPD 85

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Maiorana v Ranieri & Giubega Pty Ltd t/as All Seasons Fruit Market

[2005] NSWWCCPD 85

APPELLANT:  Bartolo Maiorana

RESPONDENT:  Ranieri & Guibega Pty Ltd t/as All Seasons Fruit Market

INSURER:Vero Workers Compensation (NSW) Limited

FILE NUMBER:  WCC14413-04

DATE OF ARBITRATOR’S DECISION:          11 January 2005

DATE OF APPEAL DECISION:  12 August 2005

SUBJECT MATTER OF DECISION: Section 151C(1) of the Workers Compensation Act 1987; election to commence proceedings in the District Court, and preclusion from commencing proceedings in the Workers Compensation Commission.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:    L J Sharpe & Co

Respondent: Hunt & Hunt

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

No order is made as to costs.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 7 February 2005 Bartolo Maiorana, the Appellant, sought leave to appeal to the Workers Compensation Commission constituted by a Presidential Member, against a decision of an Arbitrator, dated 11 January 2005.

1. The Respondent to the appeal is Raniere & Giubega Pty Ltd t/as All Seasons Fruit Market.

1. The Insurer is Vero Workers Compensation.

1. Mr Maiorana was the Applicant in the proceedings before the Arbitrator.

1. The determination by the Arbitrator turns upon a threshold issue.  Consequently, it is unnecessary to set out the background details of the substantive dispute between the parties, except to state that Mr Maiorana was employed by All Seasons Fruit Market at all material times, and that this fact is not in dispute.

1. Notice of the injury was given to All Seasons Fruit Market on 27 June 2001. Mr Maiorana filed a claim for common law damages in the District Court on 23 November 2001, within six months of the claim being made. Mr Maiorana claimed that because he was not entitled to commence those proceedings until the expiry of six months stipulated by section 151C(1) of the Workers Compensation Act 1987 (‘the 1987 Act’), the claim so filed is a nullity. He argued therefore, that he had not made an election for the purposes of section 151A(3)(a) of the 1987 Act and should be at liberty to proceed with the application for permanent impairment compensation that was before the Arbitrator. On the other hand, All Seasons Fruit Market submitted before the Arbitrator that Mr Maiorana had made an irrevocable election by filing the claim in the District Court, and was therefore, precluded from proceeding in the Commission.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 11 January 2005 records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:

1.The Application by the Applicant for relief in terms of sections 66 and 67 of the 1987 Act is dismissed.

2.There is no order as to costs.”

1. In arriving at his decision, the Arbitrator found at paragraph 58:

“The Applicant, having elected to proceed with a common law claim in November 2001, subject to the consequences posed by s 152C [of the 1987 Act], ceased thereby to be entitled to permanent loss compensation. The present Application for lump-sum compensation was therefore instituted in breach of the irrevocable election which the Applicant is deemed by s 151C to have made in November 2001.”

ISSUES IN DISPUTE

1. The fundamental issue in dispute in the appeal is whether the Arbitrator erred in deciding that All Seasons Fruit Market is not liable for payment to Mr Maiorana of compensation pursuant to sections 66 and 67 of the 1987 Act, by reason of Mr Maiorana making an irrevocable election pursuant to section 151A(3)(a) of the 1987 Act (as it was on 23 November 2001), to commence proceedings in the District Court.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and there being no objections by the parties against the appeal proceeding to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. The threshold requirements of section 352(2)(a) and (b) of the 1998 Act are satisfied and the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. Leave to appeal is granted.

EVIDENCE AND SUBMISSIONS

1. Both parties rely upon all submissions made by them in the proceedings before the Arbitrator.  I have those submissions before me.  In addition, I have before me a copy of the transcript of the proceedings before the Arbitrator, of 3 December 2004.  The further, brief submissions made on appeal, by the parties, are set out below. 

Submissions made by Mr Maiorana on appeal

1. Mr Maiorana submits substantively on appeal:

“1.…

2.The decision of the Arbitrator leads to an injustice in that the worker, having been precluded from pursuing his rights at common law by operation of statute, is also precluded from pursuing his rights to a claim pursuant to s66 of the Workers Compensation Act, 1987.

3.The Arbitrator fell into error in finding he was bound by decisions of the   Compensation Court when such decisions are clearly contrary to higher authority as set out in the judgment of the President of the Workers Compensation Commission in Robert McQueeney v. Raybreak Pty Ltd t/as Prospect Meats (unreported but attached).  It is inappropriate to apply the strict legal principles followed by the Compensation Court judgments by which the Arbitrator felt compelled to come to his decision, to the Compensation Commission as presently constituted when there is contrary higher authority.

4.     …”.

Submissions made by All Seasons Fruit Market on appeal

1. All Seasons Fruit Market submits on appeal:

“1.The Respondent relies upon the findings of [the Arbitrator] in his decision of 11 January 2005 and all previous submissions made by the Respondent.

2.Any injustice suffered by the worker is based on his decision to commence common law proceedings.  If such proceedings were not commenced, the worker would indeed have a valid entitlement to lump sum compensation.

3.The Arbitrator has not fallen into error by relying upon decisions of the Compensation Court.  Regardless of whether or not the decision of a Compensation Court Judge is of higher or lower authority than the President of the Workers Compensation Commission, the Arbitrator has relied upon sound Legal precedent, involving case law that is on point with the current matter.

4.The Respondent relies upon the recent Court of Appeal Case of Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (attached) which has found that any District Court Statement of Claim which has been filed in breach of S 151C Workers Compensation Act 1987, is not a nullity.

5.The Respondent submits that pursuant to Gordon, the worker’s original Common Law proceedings were not null and void and constituted an election for the purposes of the Act.  The workers claim for compensation must therefore fail pursuant to S 151A.”

1. I note that in its ‘Reply to Application to Resolve a Dispute’, All Seasons Fruit Market disputed that Mr Maiorana suffered any injury “as alleged or at all”, and submitted inter alia that he had not suffered any “permanent impairment or loss”.  All Seasons Fruit Market now concedes, “If such proceedings [the District Court proceedings] were not commenced, the worker would indeed have a valid entitlement to lump sum compensation.”  However, having regard to the role and function of a Presidential Member on appeal, my power to revoke the Arbitrator’s decision only arises where it is demonstrated that the decision made by the Arbitrator is affected by some legal, factual or discretionary error (see discussion in John Robinson t/as Robinson’s Pharmacy v King [2005] NSW WCC PD 39 at paragraph 72). The decision under review in the instant matter, and in relation to which error is alleged, is based upon the findings of the Arbitrator, set out in paragraph 7 above, and not upon a determination on the merits of the substantive issues that were in dispute before him. The issue upon which the Arbitrator’s decision was made and that is under review on appeal is whether Mr Maiorana is precluded from proceeding in the Commission.

DISCUSSION AND FINDINGS

1. A substantial amount of legal argument was put by both parties to the Arbitrator on the issue that was determined by the Arbitrator and that led to this appeal.  This is contained in the written submissions made to the Arbitrator and the transcript of the arbitral proceedings, all of which is before me.

   Does the Arbitrator’s decision lead to an injustice to Mr Maiorana?

2. In the context of this appeal, it is submitted that the Arbitrator’s decision leads to an injustice in that Mr Maiorana, having been precluded from pursuing his rights at common law by operation of statute, is also precluded from pursuing his rights to a claim pursuant to section 66 of the 1987 Act. All Seasons Fruit Market points out that the situation in which Mr Maiorana apparently finds himself follows upon his own decision to commence proceedings in the District Court. This is so, but the result for Mr Maiorana rests upon the lawful application of the relevant statutory provisions, not simply upon his view of the outcome. This ground, which is not elaborated by submissions, does not disclose an error by the Arbitrator, and is therefore, not made out.

Did the Arbitrator fall into error in finding that he was bound by decisions of the Compensation Court when such decisions are contrary to higher authority?

1. I am unable to find in the Arbitrator’s Statement of Reasons for Decision any indication that he considered himself “bound” by decisions of the former Compensation Court, contrary to greater authority.  Mr Maiorana refers to the decision of the President of the Commission in McQueeney v Raybreak Pty Ltd trading as Prospect Meats, Matter Number: WCC2598-2002 (‘McQueeney’) 6 May 2003 (unreported), as the higher [contrary] authority.  This was not an appeal, but an application for leave to refer a Question of Law to the President in which the circumstances were similar to those in this appeal.  The Arbitrator referred to a number of Compensation Court decisions as well as other authorities, including decisions of the New South Wales Court of Appeal, and McQueeney, in considering the matter and in arriving at his decision. 

1. In McQueeney the President, in refusing leave to refer a Question of Law, found that the law on the issue in that matter, was “quite clear” at that time.  He said:

“Through the filing of a Notice of Discontinuance, the Applicant recognised that his claim did not satisfy the requirements of s 151C(1) that, with few exceptions, ‘A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.’

As 6 months clearly had not passed in this case between the date of the alleged injury … and the filing of the Statement of Claim … what was described as a ‘condition precedent’ in Sydney Ports (per Stein JA at [23] and Giles JA at [64] had not been satisfied.  With a condition precedent unfulfilled, the common law proceedings were not validly commenced.  In Budge v Kimmorley (Unreported, Supreme Court, 28 June 1991) Studdert J stated that he had ‘no alternative but to strike out this statement of claim’ where a similar time limit was imposed and had not been satisfied.

In Dandashli v Dandashli (Unreported, Court of Appeal, 15 December 1996), Handley JA (cited in Sydney Ports at [22]) stated:  ‘Where a statute imposes a condition precedent of a procedural nature which must be satisfied prior to the commencement of proceedings, it will be difficult for a court to treat the condition as a condition subsequent which can be satisfied after proceedings have been commenced as that will be contrary to the intention of Parliament as expressed in the statutory language.’

As the law on this fundamental point is, therefore, quite clear, the question posed in this matter cannot be regarded as ‘novel or complex’ …”

1. The Arbitrator referred to and considered the President’s decision in McQueeney.  His comments and findings at paragraphs 47 to 51 inclusive, are set out hereunder:

“47.In a decision handed down on 6 May 2004, Re: Robert William McQueeney v Raybreak Pty Ltd trading as Prospect Meats (Unreported: Matter Number WCC2598-2002), the President of the Commission, Justice Sheahan, considered an application for leave to refer a Question of Law to the President in terms of s 351 of the 1998 Act.  The question referred to His Honour involved ‘the issue of whether the Applicant’s right to claim lump sum compensation…was extinguished by the ‘election’ he made in commencing common law proceedings by the filing of an Ordinary Statement of Claim in the District Court on 21 November 2001.’

48.It emerges from His Honour’s decision that the employee’s solicitor filed submissions relying on the court of Appeal’s judgment in Sydney Ports, and that His Honour invited all parties including the WorkCover Authority to provide further submissions on the effect of that judgment.

49.The President proceeded, having regard to Sydney Ports and two cases cited therein (Budge v Kimmorley; and Dandashli), to state that the common law proceedings relevant to the matter referred to him ‘were not validly commenced.’  His Honour refused leave to refer the Question of Law, on the basis that the question posed cannot be regarded ‘novel and complex’.

50.It would seem, from a reading of the President’s decision that he was not referred to the judgments in Maricair and Deng, or other relevant authority including Quigley, Cook, North Broken Hill, and Lampson.  As discussed above, Sydney Ports concerned merely whether non-compliance with a condition precedent rendered an application liable to being struck out.  The separate issue of whether proceedings commenced in breach of a condition precedent could, by reason of such breach, be treated as not having been ‘commenced’ within the meaning of s 151A(3)(a) was neither before, nor decided by, the Court of Appeal.  That issue was the subject of specific attention in Maricair, Deng and Cook, and resulted in findings which drew a distinction between substantive (and thus inherent) invalidity, and procedural defect which, depending on the manner of challenge, might prove fatal.

51.In any event, the President’s decision in McQueeney, does not purport to constitute a definitive interpretation of sections 151A and 151C, or of their application to facts such as those in the present proceedings.  The decision is solely concerned with whether a question, as framed by the solicitor for the Respondent Insurer, qualified to receive attention as ‘novel or complex’ pursuant to s 351 of the 1998 Act.  The President’s refusal of leave to refer the question cannot be interpreted as either providing authority for the proposition of ‘nullity’ for which the Applicant in the present proceedings contends, or as calling into question the reasoning in Maricair and Deng – decisions which His Honour saw no reason to cite or distinguish.”

1. It is abundantly clear that the Arbitrator addressed the issues of law, and referred to appropriate authorities, including the President’s decision in McQueeney, in arriving at his decision.  I agree entirely with his reasoning as set out above, in relation to his treatment of that decision.  It requires no further elaboration.  It is clear that he took the President’s decision into account, as far as it was relevant to the proceedings before him.

1. I find no error on the part of the Arbitrator.  Consequently, this ground of appeal fails.

Was the Application made in the Commission for lump-sum compensation instituted in breach of an irrevocable election to file proceedings in the District Court?

1. This has been a somewhat vexed issue in various proceedings before Arbitrators in the Commission.  However, it has, as All Seasons Fruit Market suggests, been addressed in the reasonably recent Court of Appeal case of Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’).  That case was considered and discussed by me in Sandarousi v L & A Welding Pty Ltd [2005] NSW WCC PD 59 (‘Sandarousi’).

1. In Gordon the Court of Appeal held that section 151C of the 1987 Act is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings, but that proceedings commenced in contravention, “at least in an inferior court”, are not a nullity nor void. Mason P cited a number of relevant cases at [36] in support of this finding, stating that they all recognized that the purpose of provisions such as section 151C of the 1987 Act was to promote settlement before commencement of court proceedings. He went on to say, “It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity.”

1. Mason P stated further that inquiry should be made to discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. He observed at [42], (Sheller and Beazley JJA agreeing), that section 151C(1), which applies to proceedings in the District Court, was not a provision that “spells incurable voidness upon non-compliant proceedings.” He concluded at [49] that section 151C(1) “does not erect a jurisdictional preclusion”, and the Court of Appeal held accordingly, that the section was not found to reflect the requisite legislative intention that nullity be the consequence of non-compliance, as “per the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 358.”

1. This issue was dealt with on appeal in the Commission in slightly different circumstances n Cardona v Penrith City Council [2003] NSW WCC PD 36, an earlier decision of the Commission, where the Deputy President observed that, notwithstanding that the proceedings commenced may have been incompetent, it does not mean that they were not commenced at all, this being consistent with the decision in Gordon.

1. While the Arbitrator in the instant case did not have the benefit of the decision in Gordon, the Court of Appeal in its decision in that case, supports the findings of, and the conclusions reached, by him on the issue.

2. In the circumstances, I find that the Arbitrator is not in error in determining that Mr Maiorana’s application to the Commission for payment of lump-sum compensation was instituted in breach of an irrevocable election “which the Applicant is deemed by s 151C to have made in November 2001.”

1. The appeal fails and the decision of the Arbitrator should stand.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. No order is made as to costs.

Gary Byron

Deputy President  12 August 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE