Moore-McQuillan v WorkCover Corporation No. Scciv-03-149

[2003] SASC 73

MOORE-McQUILLAN V WORKCOVER CORPORATION
[2003] SASC 73

Full Court:  Perry, Nyland and Bleby JJ (Ex tempore)

1. PERRY J:             I agree with the reasons delivered by Bleby J.  In my opinion the Tribunal should proceed to determine the amount payable under the existing determinations and it has jurisdiction to do that but that the answer to the question raised in paragraph 8 of the case stated should be “No”.

2. NYLAND J:          I also agree that the answer to the question in the case stated should be “No” and I agree with the reasons delivered by Bleby J.

3. BLEBY J: This is a case stated by a Full Bench of the Workers Compensation Tribunal (“the Tribunal”) pursuant to s 86A of the Workers Rehabilitation and Compensation Act 1986 (“the Act”). The background presents a sorry history of in excess of five years’ litigation over a question that should have been capable of simple and straight-forward resolution.

4. The question of law for determination on the case stated arises in the course of the hearing of an appeal by Mr Moore-McQuillan (“the worker”) against a determination of a Deputy President of the Tribunal dismissing the worker’s notice of dispute.

5. The worker filed a notice of dispute sometime in 1997. In it he asserted that he was entitled to payment of weekly payments of compensation pursuant to the provisions of the Act because WorkCover Corporation (“the Corporation”) had underpaid him an amount of up to $10,000 for the period 1 January 1993 to 31 October 1995. As I understand it, he was not disputing determinations made by the Corporation as to his entitlement to weekly payments of compensation, but whether various amounts of compensation had been paid in accordance with those determinations.

6. On 19 January 1998 a Deputy President of the Tribunal dismissed the worker’s claim.  This was because the Deputy President was not satisfied as to one aspect of the claim.  The Corporation had claimed that there had been an overpayment.  The Deputy President was quite unable to determine whether there had been.  In the course of delivering his reasons the Deputy President was highly critical of the records kept and produced by the Corporation.

7. The worker successfully appealed to a Full Bench of the Tribunal.  On 5 August 1998 it allowed the appeal and remitted the matter back to another Deputy President of the Tribunal.  The Full Bench was also critical of the records produced by the Corporation, but held that the Deputy President had not used all the facilities available to him to determine whether and to what extent the worker’s claim was justified.

8. In accordance with the order of the Full Bench of the Tribunal, the matter resumed before a different Deputy President of the Tribunal.  There were  apparently numerous hearings relating to discovery of documents and other issues relating to the parties.  The question of the worker’s entitlement was never resolved because the Deputy President himself raised a question about the jurisdiction of the Tribunal to resolve the matter.  After hearing submissions on that question the Deputy President, on 23 March 2002, again dismissed the worker’s notice of dispute.  He took the view that the worker’s case was one for the enforcement of orders or determinations of the Tribunal, the former review panel or the Corporation in respect of the payment of money to the worker.  The Deputy President considered that the Tribunal had no power to enforce such determinations.  For that reason the application was dismissed.

9. The worker again appealed to a Full Bench of the Tribunal, and it is that Full Bench which has stated the case to this Court.

10. The formulation of the question by the Full Bench is “Whether on the proper construction of the Act the Tribunal possesses the power to enforce an order for the payment of money”.

11. The answer to that question is self evident. It does not. If the Tribunal itself makes an order for the payment of money, a certified copy of its order may be filed in the District Court, and the judgment or order may be enforced as a judgment or order of the District Court: s 87A of the Act. It is also apparent from Della Flora v Workers Rehabilitation and Compensation Corporation of South Australia (unreported, Doyle CJ, Millhouse and Nyland JJ, 26 May 1998, judgment number S6691) that the Act does not provide for the enforcement of determinations made by other bodies under the Act and that the obligation upon those bodies to make payment can be enforced by action brought at common law to recover the amount of the payment. The answer to the question posed by the Tribunal must therefore be “No”.

12. However, that answer does not resolve the real problem which the Full Bench of the Tribunal was seeking to address.  It seems to me that the real question which should have been asked is whether or not the Tribunal is in fact, on the circumstances of this case, being asked to enforce an order for the payment of money.  If that question were asked, the answer would again be “No”.

13. The Tribunal’s jurisdiction is invoked when a person with a direct interest in a “reviewable decision” lodges a notice of dispute with the Registrar: s 90(1) of the Act. A reviewable decision is defined in s 89A of the Act as follows:

    “(1)   The following decisions are reviewable –

    (a)    a decision on a claim for compensation including –

    (i)a decision redetermining a claim;  or

    (ii)a decision on a claim by the Tribunal, made in the exercise of the Tribunal’s special jurisdiction to expedite decisions on claims;

    (b)    a decision about the nature of rehabilitation services provided, or to be provided, for a worker;

    (c)     a decision to vary, suspend or discontinue weekly payments;

    (d)    a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;

    (e)     a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the change into conformity with a rate of charge prescribed by regulation).

    (2)However, a decision is not reviewable if declared not to be reviewable by or under this Act.”

14. For the purposes of the Act, compensation is defined in s 3 as including “any monetary benefit payable under (the) Act”. It is clear from the material submitted with the case stated that the worker has made a claim on the Corporation for what he considers to be compensation or monetary benefits not paid in accordance with the requirements of the Act. That claim is being disputed by the Corporation. It has decided by one means or another that the worker’s claim will not be met. The Corporation has therefore made a decision on the worker’s claim for compensation. That is a reviewable decision falling within the opening words of s 89A(1)(a) of the Act. It is a reviewable decision in which the worker obviously has a direct interest. The Tribunal therefore has jurisdiction to resolve the dispute the subject of the worker’s notice of dispute.

15. The Tribunal will resolve the dispute either by determining that there is compensation payable to the worker or there is not.  That is not enforcing an order for the payment of money.  If a decision is made in favour of the worker, the order of the Tribunal can be registered in the District Court, and the order then enforced as an order of that Court.

16. To the question posed in the case stated, namely whether on the proper construction of the Act the Tribunal possesses the power to enforce an order for the payment of money, I would give the answer “No”. However, for the reasons given, that does not prevent the Tribunal from resolving the dispute presently before it.