Mulco Tools & Engineering Pty Limited v Humphreys

[2005] NSWWCCPD 146

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision set aside on Appeal: Humphreys v Mulco Tools & Engineering Pty Ltd [2006] NSWCA 355; (2007) 4 DDCR 389
CITATION:		Mulco Tools & Engineering Pty Limited v Humphreys [2005] NSWWCCPD 146
APPELLANT:		Mulco Tools & Engineering Pty Limited
RESPONDENT:		Jeffrey Humphreys
INSURER:		GIO Workers Compensation (NSW) Limited
FILE NUMBER:		WCC11341-04
DATE OF ARBITRATOR’S DECISION:		26 November 2004
DATE OF APPEAL DECISION:		5 December 2005
SUBJECT MATTER OF DECISION:		Sections 151A and 151C of the Workers Compensation Act 1987; election to commence proceedings in the District Court of New South Wales; preclusion from commencing proceedings for permanent loss compensation in the Workers Compensation Commission.
PRESIDENTIAL MEMBER:		Deputy President Gary Byron
HEARING:		Determined on the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Gerard Malouf & Partners
ORDERS MADE ON APPEAL:		The decision of the Arbitrator, dated 26 November 2004, is revoked and the following decision is made in its place:
Mr Jeffrey Humphreys is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001.
No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 23 December 2004 Mulco Tools & Engineering Pty Limited, the Appellant sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision of an Arbitrator, dated 26 November 2004.

1. Jeffrey Humphreys is the Respondent Worker in this appeal.

1. The Insurer is GIO Workers Compensation (NSW) Limited.

1. Mr Humphreys lodged an ‘Application to Resolve a Dispute’ in the Commission on 26 July 2004.  He claimed that he suffered an injury to his back and legs on 4 June 2001 when he was pulling a trolley jack in order to move some pallets of pumps that weighed approximately 200 kilograms.  He claims that workers compensation is payable because the injury arose out of, or in the course of, his employment as a welding supervisor with the Appellant.

1. Employment at all relevant times is not disputed.

1. Again, it is not disputed that on 21 November 2001 Mr Humphreys filed a ‘Statement of Claim’ in the District Court of New South Wales, seeking damages for the injuries that he had sustained. The Appellant defended the claim, relying on section 151C of the Workers Compensation Act 1987 (‘the 1987 Act’), which in essence provides that there must be a delay of 6 months before commencing proceedings for damages. Mr Humphreys discontinued the proceedings in the District Court.

1. Mr Humphreys lodged a claim on 31 March 2004 with the Insurer, for medical expenses and non-economic loss compensation. On 21 May 2004 the Insurer informed Mr Humphreys that liability was denied on the basis that he had made an election under section 151A of the 1987 Act (as it then stood) when he commenced proceedings in the District Court in November 2001.

1. On 18 December 2003 the Insurer denied that there was a dispute in relation to medical and related expenses, indicating that all such expenses had been paid.  The claim for these expenses was withdrawn during the teleconference before the Arbitrator.

1. The Arbitrator stated the issue to be determined by her as:    

“The submission before me related to whether the commencement of proceedings in the District Court constituted a valid election under s151A, which would preclude this claim in the Commission.”

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 26 November 2004 records the Arbitrator’s orders as follows:

   “1.The Applicant may bring his claim for compensation under s66 & s67 of the 1987 Act before the Workers compensation [sic] Commission.

   2.Respondent to pay the Applicant’s costs as agreed or assessed.”

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is the threshold issue as to whether the Arbitrator erred in law in her application of section 151A (as it then stood), and finding that Mr Humphreys could bring his claim in the Commission, there having been no valid election by him pursuant to that section “that would preclude his claim in the Commission.”

ON THE PAPERS REVIEW

1. 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.”

1. Both parties agree that the appeal may be determined on the papers.  Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the 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. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The amount of compensation at issue on appeal exceeds $5000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).

1. 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. The submissions of both parties canvass the Arbitrator’s decision, the application of the law to the facts of the dispute before the Arbitrator, and the state of the law as it purported to be at that point in time.  Both parties also rely upon the relevant written and oral submissions that were put before the Arbitrator.  For reasons that are apparent below, I will not set out the detail of the submissions of the parties here, but confirm that I have read and considered them closely, along with all other relevant material, and have taken all of this into account.

DISCUSSION AND FINDINGS

1. The submissions made are similar to those that have been made previously in the Commission, in a number of cases involving this particular threshold issue.  (See paragraph 26 below).  Arguments put, and legal authority cited, for and against whether an election has been made (and that have been put in the instant case), have been substantially the same in each case, to date.

1. The 1987 Act was amended, and from 27 November 2002 there has been no requirement to make the election, the subject of the instant case.

1. However, as the Arbitrator has correctly stated at paragraph 31 of her ‘Statement of Reasons for Decision’ (‘Reasons’), at the time that Mr Humphreys commenced his District Court proceedings, the six months from the date of giving notice of injury had not expired. She found therefore, that his claim in the District Court did not satisfy section 151C(1) of the 1987 Act.

1. In Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’) the Court of Appeal held that section 151C of the 1987 Act, as it then was, is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings. However, the Court further found that proceedings commenced in contravention, “at least in an inferior court”, are not a nullity or void. While stating that the authorities cited at [36] in support of this finding recognised that the purpose of provisions such as section 151C of the 1987 Act was to promote settlement before commencement of court proceedings, Mason P went on to say at [40], “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 said 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 in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 358.” The judgment in Gordon v Berowra Holdings Pty Ltd [NO 2] [2005] NSWCA 123 in which an application to have orders set aside was refused, has no bearing on the relevant findings in the judgment in Gordon.

1. Again in Brighton Und Redfern Plaster Pty Ltd v Boardman [2005] NSWCA 167, (‘Boardman’) the Court noted at [3]:

“… this Court decided in Gordon v Berowra Holdings Pty Limited (2005) NSWCA 27 that non-compliance with s 151C did not render proceedings a nullity and that non-compliance could be waived.”

1. This underpins an earlier view expressed on appeal in this Commission that notwithstanding that proceedings commenced may have been incompetent, it does not necessarily mean that they were not commenced at all (Cardona v Penrith City Council [2003] NSW WCC PD 36). Both Gordon and Boardman have been applied in similar decisions on appeal, in the Commission (see paragraph 26 below).

1. Neither the Arbitrator nor the parties had the advantage of Gordon or Boardman at the time that the decision of the Arbitrator was made.  However, by reason of the operation of the then applicable statutory provisions, as held in Gordon and in Boardman, I must find that the proceedings commenced in the District Court of New South Wales by Mr Humphreys, were not a nullity and that the election to commence those proceedings was a valid election under section 151A(2) of the 1987 Act. (See also Hellenic Tourism Organisation v Tzoumacas [2005] NSW WCC PD 105; He v L & J Precision Joinery & Kitchen [2005] NSW WCC PD 100; Wide Hanson Bros Pty Ltd v Zhen Xiu Cai [2005] NSW WCC PD 93; Sydney Water Corporation v Singh [2005] NSW WCC PD 92;  Thien Vu Huynh v Andison International Pty Ltd [2005] NSW WCC PD 86; Maiorana v Ranieri & Guibega Pty Ltd t/as All Seasons Fruit Market [2005] NSW WCC PD 85, and Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59).

1. I find that the Arbitrator erred in finding that the proceedings commenced by Mr Humphreys in the District Court of New South Wales were not validly commenced and that no election was made under section 151A of the 1987 Act that would preclude Mr Humphreys claim from the Commission. Accordingly, the appeal is successful.

DECISION

1. The decision of the Arbitrator dated 26 November 2004 is revoked and the following order is made in its place:

Mr Jeffrey Humphreys is precluded from commencing proceedings for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 by reason of his election to commence proceedings to recover damages in the District Court of New South Wales on 21 November 2001.

COSTS

1. No order is made as to the costs of this appeal

Gary Byron

Deputy President  

5 December 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