National Transport Insurance Limited v Chapman - [2019] NSWWCCPD 54

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	National Transport Insurance Limited vChapman [2019] NSWWCCPD 54
APPELLANT:	National Transport Insurance Limited
FIRST RESPONDENT:	Christopher Chapman
SECOND RESPONDENT:	Annette Patrick t/as White Heavy Haulage
SECOND RESPONDENT’S INSURER:	AAI Limited trading as GIO – as agent for icare
FILE NUMBER:	A1-5792/18
ARBITRATOR:	Mr A Scarcella
DATE OF ARBITRATOR’S DECISION:	15 March 2019
DATE OF APPEAL DECISION:	29 October 2019
SUBJECT MATTER OF DECISION:	Sections 4, 105, and 287–289 of the Workplace Injury Management and Workers Compensation Act 1998 – whether the Commission had jurisdiction to determine a dispute between a claimant and an insurer where the insurer was not a licensed insurer for the purposes of the 1998 Act – Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42, Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 considered and applied, Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76; Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd [2008] NSWWCCPD 88 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Counsel:
Mr A J Parker (Appellant)
Mr R Goodridge (First Respondent)
Mr F Doak (Second Respondent)
Solicitors:
McInnes Wilson Lawyers (Appellant)
Firths – The Compensation Lawyers (First Respondent)
HWL Ebsworth (Second Respondent)
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 15 March 2019 is revoked. 2. In accordance with s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998, the proceedings are dismissed.

INTRODUCTION AND BACKGROUND

Mr Christopher Chapman (the first respondent) suffered a significant crush injury to his left forearm on 1 September 2014, which was alleged to have also resulted in difficulties with his left wrist and hand, and psychological problems.
On 31 August 2017, the first respondent’s legal representatives commenced proceedings by way of Statement of Claim in the District Court under the Civil Liability Act 2002 (the Civil Liability Act) against Ms Annette Patrick (the second respondent) and Ms Patrick’s son, Justin Dickinson. The second respondent was the occupier of the premises upon which the first respondent was injured and operated a business trading under the name of White Heavy Haulage on those premises. Mr Dickinson worked in that business.
The Statement of Claim filed by the first respondent (the plaintiff) in the proceedings alleged that the first respondent was an employee of the second respondent and Mr Dickinson (the named defendants in those proceedings), and as such the second respondent owed him a duty of care.[1] The second respondent and Mr Dickinson, through National Transport Insurance Limited (the second respondent’s general liability insurer and the appellant in these proceedings), filed a Defence to the District Court proceedings in which it was alleged that the first respondent was a worker or deemed worker of the second respondent. The Defence further pleaded that the first respondent had not complied with the provisions of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), which required that certain pre-conditions be met before a claim for work injury damages could be brought. These included having to make a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) (s 280A of the 1998 Act), and having received a lump sum pursuant to s 66 of the 1987 Act (s 280B).[2] The first respondent had not made such a claim or received a lump sum.
[1] Application to Resolve a Dispute (ARD), pp 328–334.
[2] ARD, pp 336–343.
In his Reply to the Defence, which was dated 2 May 2018, the first respondent denied that he was a worker or a deemed worker within the meaning of the 1987 and 1998 Acts.[3]
[3] ARD, pp 344–346.
The first respondent subsequently made a claim for lump sum compensation pursuant to s 66 of the 1987 Act against the second respondent in respect of 33% whole person impairment (WPI) of the left upper extremity.
The second respondent, through her workers compensation licensed insurer, issued a notice pursuant to s 74 of the 1998 Act dated 6 September 2018, in which the claim pursuant to s 66 was disputed on the basis that the first respondent was neither a worker or a deemed worker within the meaning of the 1998 Act.
On 1 November 2018, the first respondent commenced proceedings in the Commission, claiming a lump sum pursuant to s 66 in respect of the claimed degree of WPI. The appointed Arbitrator held a telephone conference on 29 November 2018, in which the Arbitrator granted leave for the first respondent to join the appellant as an “interested party” pursuant to Part 11 of the Workers Compensation Rules 2011 (the 2011 Rules).
The matter proceeded to arbitration on 25 January 2019. The appellant submitted that the Commission had no jurisdiction to hear the matter, the appellant should not have been joined to the proceedings, and the proceedings should have been dismissed. The appellant also submitted that the first respondent was a worker within the meaning of the 1998 Act. Both the first and second respondents submitted that the first respondent was not a worker or a deemed worker.
The Arbitrator issued a Certificate of Determination dated 15 March 2019, in which he rejected the appellant’s submission that the proceedings should be dismissed, and found that the first respondent was not a worker or a deemed worker within the meaning of ss 4 and 5 and Schedule 1 of the 1998 Act.
The appellant appealed the determination.

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.”
All parties indicated that they were content for the appeal to be determined ‘on the papers’.
In its submissions at the arbitration and on appeal, the appellant raised an issue that there was no dispute between the first and second respondents, so that the Commission did not have jurisdiction to determine the matter. The respondents did not adequately address that issue in their submissions. An attempt to list the matter for an oral hearing was made, but due to unavailability of counsel, a date could not be agreed.
I therefore issued a direction for the filing of further written submissions on this point. The parties were directed to the relevant sections of the 1998 Act that provide for and place restrictions on when a matter can be referred to the Commission for determination. I have discussed those provisions below
The parties have had the opportunity to provide submissions addressing those sections and the issues on appeal.
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.
As part of this appeal, the appellant complains that it should not have been joined to the proceedings. In the exercise of his discretion, on 29 November 2018, the Arbitrator granted leave for the first respondent to be joined as a party. The Arbitrator’s decision in that regard is interlocutory in nature. There is no appeal from an interlocutory decision without the leave of the Commission (s 352A of the 1998 Act).
The determination was, however, “a step in the procedure”[4] leading up to final judgment. It follows that the appellant, if it establishes a relevant appealable error in the interlocutory decision, can seek to have it corrected on appeal from the final orders made in the matter. Leave to appeal the determination after final judgment in these circumstances is not required.
[4] Crowley v Glissan [1905] HCA 13; 2 CLR 402.

THE ISSUE AS TO JURISDICTION

It is appropriate to deal with the jurisdictional point raised by the appellant at arbitration and on appeal, and the Arbitrator’s rejection of those submissions, before turning, if necessary, to a consideration of the remaining issues.

THE ARBITRATOR’S REASONS FOR REFUSING TO DISMISS THE PROCEEDINGS

The Arbitrator set out the background of the matter, including details of the District Court proceedings, and the parties’ assertions and denials in relation to the issue of “worker”/ “deemed worker”. The Arbitrator noted that the issues for determination were:
(a) whether the proceedings should be dismissed on the basis that the proceedings were an abuse of process and/or otherwise misconceived (the “jurisdictional issue”), and
(b) whether the first respondent was a worker or deemed worker.
The Arbitrator summarised the evidence, including the first respondent’s oral evidence given during cross-examination in the arbitration. The first respondent denied that he was working for the second respondent at the time of the accident. Relevantly, the Arbitrator also noted the second respondent’s evidence, in which she adamantly denied that:
(a)    the first respondent was ever asked to perform any work for her business;
(b)    the first respondent was ever an employee or contractor, and
(c)    there was ever a working relationship of any kind between them.
The Arbitrator noted the appellant’s submissions, in particular that the appellant contended that the Commission did not have jurisdiction to determine the matter because both the first respondent and the second respondent denied that the first respondent was a worker, so that there was no dispute. In the appellant’s words, the first respondent was seeking to prosecute a claim he did not want to win, which was fundamentally contrary to the adversarial system. On that basis, the matter ought to be dismissed. The Arbitrator also noted that the appellant submitted that the 1987 and 1998 Acts only apply to workers and employers, and the appellant had no standing, and was not amenable to an order of the Commission.
The Arbitrator recorded the first respondent’s submissions that his rights rested upon a determination of whether he was a worker or a deemed worker, and the outcome would determine which of the two insurers would be responsible for the injury. The joinder was enabled by Part 11 of the 2011 Rules, which gave the Commission a broad jurisdiction to join an interested party. It was for this reason that the Arbitrator concluded that the appellant was properly joined to the proceedings.
The Arbitrator noted that the second respondent adopted the first respondent’s submissions, including the submissions in respect of the worker issue.
In dealing with the jurisdictional issue, the Arbitrator turned to Part 11 of the 2011 Rules and the circumstances in respect of which he had the power to grant leave for an interested party to be joined to the proceedings.
The Arbitrator referred to the appellant’s submission that the proceedings were an abuse of process or otherwise misconceived, and ought to be dismissed pursuant to s 354(7A) of the 1998 Act. The Arbitrator recorded the contents of s 354(7A), which provided for the circumstances in which he could dismiss the proceedings. He further referred to s 105 of the 1998 Act, which gave the Commission exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts.
The Arbitrator observed that the Commission is a specialist jurisdiction. He identified that the principal issue before him was the issue of worker and deemed worker, which the Commission has power to determine by operation of s 105. The Arbitrator noted that this issue had yet to be decided by the District Court, and that the first respondent was “protecting his position” by making a lump sum claim pursuant to s 66. The Arbitrator reasoned:
“The [second] respondent puts the issue of worker or deemed worker in dispute in these proceedings. [The first respondent] submits that he was not a worker or deemed worker. [The appellant], the joined interested party, submits that [the first respondent] was a worker or deemed worker. So, despite the unusual circumstances, there is a dispute for me to resolve as between [the appellant] on the one side and [the first and second respondents] on the other. This does not make these proceedings in the Commission an abuse of process and/or otherwise misconceived.”[5]
[5] Chapman v Annette Patrick t/as White Heavy Haulage [2019] NSWWCC 106 (Reasons), [148].
The Arbitrator referred to the appellant’s submissions that it ought not to have been joined to the proceedings. The Arbitrator concluded that the joinder was valid, and it afforded the appellant the opportunity to argue its case in relation to the principal issue.
The Arbitrator noted that the first respondent sought a determination as to whether he was a worker or a deemed worker, and remarked that it was unusual that the first respondent’s submissions were adopted by the second respondent. Nonetheless, the Arbitrator rejected the appellant’s submissions that the proceedings ought to be dismissed because they were an abuse of process and/or otherwise misconceived.
The Arbitrator proceeded to consider the issue of worker/deemed worker.
The Certificate of Determination issued on 15 March 2019 records:
“The Commission determines:
1. The applicant was not a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998.
2. The applicant was not a deemed worker within the meaning of section 5 and Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
The Commission orders:
3. Award for the respondent.”

GROUNDS OF APPEAL

Ground two of the appeal alleges that the Arbitrator erred in failing to dismiss the proceedings.
The balance of the grounds of appeal allege error on the part of the Arbitrator in respect of the joinder, and the Arbitrator’s determination that the first respondent was neither a worker or deemed worker within the meaning of the 1998 Act.
As I indicated above, it is appropriate to determine the jurisdictional point, before turning to a consideration of the remaining grounds of appeal.

RELEVANT LEGISLATION

Section 105(1) of the 1998 Act provides as follows:
“105 Jurisdiction of Commission and Compensation Court
(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Part 4 of the 1998 Act deals with the determination of compensation disputes. Sections 287, 288 and 289, which are within Division 1 of Part 4 of the 1998 Act, are relevant to the jurisdictional issue raised by the appellant.
Section 287(1) provides:
“287 Disputes to which Part applies
(1) This Part applies to a dispute in connection with a claim for compensation between:
(a) the person who makes the claim and a person on whom the claim is made, or
(b) the employer on whom the claim is made and the insurer on whom the claim is made.”
Sections 288 and 289 of the 1998 Act make provision for when a claim can or cannot be referred to the Commission. The sections relevantly provide as follows:
“288 Referral of disputes to Commission
(1)    Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.
…
(2)     The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.
289 Restrictions as to when dispute can be referred to Commission
…
(3)     A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
…
(5)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.
Section 4 of the 1998 Act defines a “claim” as “a claim for compensation or work injury damages that a person has made or is entitled to make.”

SUBMISSIONS

The appellant’s submissions

The appellant relies on its submissions made at the arbitration, as well as submissions made on appeal.
The appellant contends that the 1987 and 1998 Acts only apply to workers and employers (as defined) that fall within the provisions of those Acts, relying on Sexton v Graincorp Operations Ltd[6] as authority for that proposition.
[6] [2007] NSWWCCPD 218; 5 DDCR 299.
The appellant asserts that it has no “standing,” because it is not a licensed insurer, cannot be joined as a party, and is not amenable to an order made by the Commission. The appellant further asserts that s 155 of the 1998 Act precludes an employer being represented by more than one licensed insurer, and in the circumstances of this case, there are two insurers who are in conflict, one of whom is a licensed insurer.
The appellant submits that there is no dispute between “the purported worker” and, through its licensed insurer, the “employer.” The appellant points to the second respondent having “adopted” the first respondent’s submissions during the arbitration, which is evidence that there was no dispute between them. The appellant points out that both parties were in agreement that the first respondent was not a worker. The appellant asserts that the Commission only has jurisdiction to determine a dispute, so there can be no jurisdiction if the parties agree.
The appellant says that the proceedings are inappropriate, given that if the Arbitrator had determined that the first respondent was a worker, or a deemed worker, the first respondent would no doubt support an appeal by the second respondent from that decision.
The appellant maintains that the proceedings are misconceived, as it is contrary to the Commission’s adversarial system for a litigant to seek disentitlement.
The appellant contends that the proceedings are an abuse of process. The first respondent is seeking to prosecute a claim in which he does not wish to succeed. The appellant asserts that the first respondent is seeking an advantage by having his claim determined by the Commission, rather than the District Court, and the decision would create an estoppel in the jurisdiction in which the matter commenced. The appellant submits that the issue is commonly considered by the District Court in this type of case, and refers to Star Pty Ltd v Mitchison[7] and Tran v Vo.[8]
[7] [2017] NSWCA 149.
[8] [2017] NSWCA 134.
The appellant maintains that the Arbitrator erred in failing to dismiss the proceedings, which was a causal error. The appellant says an obvious example of the error was that the Arbitrator reversed the onus of proof by expecting the appellant to have obtained the documents (such as invoices and diaries) that went to the issue of “worker.”
The appellant submits that the error was of the kind referred to in Micallef v ICI Australia Operations Pty Ltd.[9] Applying Micallef, the appellant submits that the Arbitrator:
(a)    erred in law by finding there was a triable issue;
(b)    failed to take into account that the first respondent’s position at the arbitration altered the fundamental adversarial system of the Commission with respect to legal and evidentiary onuses, which placed the appellant at a procedural disadvantage, and
(c)    arrived at a result that was so unjust or unreasonable that an error of the kind referred to in Micallef occurred.
[9] [2001] NSWCA 274 (Micallef).

The first respondent’s submissions

In his substantive submissions, the first respondent submits that in the District Court proceedings, the appellant alleged that the first respondent was a worker, which was denied by both the first and second respondents, so that it became a justiciable issue between the parties. The first respondent says that that issue needed to be “effectually and completely determined.”[10]
[10] First respondent’s submissions, [1].
The first respondent refers to r 11.1 of the 2011 Rules, and says that it is the basis upon which the Commission may exercise its discretion to join a party to proceedings, and it was open to the Commission to exercise that broad discretion.
The first respondent submits that the Arbitrator correctly summarised the appellant’s submissions and refused the dismissal application.
The first respondent refers to r 1.4 of the 2011 Rules, which defines “party” to mean a party to the proceedings, and not limited to an applicant and an employer.
The first respondent concedes that the appellant is not an “insurer” for the purposes of the 1998 Act.
The first respondent provided further written submissions dated 7 September 2019 in response to my Direction.
The first respondent refers to s 287(1) of the 1998 Act (which is within Division 1 of Part 4 of the 1998 Act), which provides that Part 4 of the 1998 Act applies to “a dispute in connection with a claim for compensation.” The first respondent says that a dispute is therefore one in “connection with a claim”. The first respondent observes that a “dispute” is not defined in the legislation and should be given its ordinary meaning.
The first respondent refers to s 288 of the 1998 Act which provides that any party to a dispute may refer the dispute to the Registrar for determination by the Commission. The first respondent contends that the party must be a party to the dispute, but not necessarily the claim itself. The first respondent asserts that the appellant could have referred the dispute to the Registrar. The first respondent points out that the first respondent, the second respondent and the appellant were all parties to a dispute and their relevant positions were as follows:
(a)    the second respondent alleged it was not the employer of the first respondent, and therefore bore no liability to pay workers compensation to the first respondent;
(b)    the appellant alleged that the second respondent was the first respondent’s employer, so that liability rested with the second respondent’s workers compensation insurer, and
(c)    the first respondent alleged that he was entitled to make a claim against the appellant under the Civil Liability Act and/or the second respondent under the workers compensation legislation. The first respondent says that his first position was that he was not a ‘worker,’ but if he was found to be a worker, then he was entitled to compensation from the second respondent’s workers compensation insurer.
The first respondent submits that the three different positions of the parties constituted “a dispute about a claim” and described the dispute as a “classic [three] corner dispute”.[11] The first respondent submits that if the appellant’s position was found to be correct, the first respondent’s claim was for compensation which would have been subject to the limitations imposed by the workers compensation legislation. However, the first respondent submits, his claim against the second respondent failed.
[11] First respondent’s further submissions, [9].
The first respondent submits that the appellant’s position is inconsistent. He says that on the one hand, the appellant alleges that the first respondent was a worker, and seeks the advantage of a finding in its favour, but on the other hand is saying that the first respondent ought not to have the right to invoke the jurisdiction of the Commission to determine the first respondent’s claim. The first respondent contends that a party cannot simultaneously approbate and reprobate, and relies on the judgment of Sackar J in Sydney Attractions Group Pty Ltd v Frederick Schulman (No 2).[12]
[12] [2013] NSWSC 1153, [38]–[44] (Schulman).
The first respondent says that he did not understand the appellant’s submissions to go so far as to suggest that the Commission did not have jurisdiction to determine its jurisdiction, and contends that it is beyond doubt that a court has jurisdiction to do so. The first respondent refers to relevant authorities for that proposition. The first respondent contends that there is nothing inconsistent with the first respondent making a submission that he does not accept the legal arguments made by the appellant. He says he submitted himself to the jurisdiction of the Commission to determine the fact in issue as to whether he was a worker. The first respondent says that had the fact in issue been determined in the appellant’s favour, then the first respondent had accordingly claimed compensation.
The first respondent submits that his claim, like any other claim in which worker is an issue, was dependent upon the Commission finding that he was a worker as defined by the legislation. The first respondent says he repeats the submission that there was no contract of service or contract for services, and that this was a fact in issue and correctly determined by the Commission. The first respondent contends that it would be entirely artificial to suggest that the first respondent’s legal representative ought to have made submissions of law contrary to the first respondent’s honestly held belief. The first respondent maintains that it is not the role of the legal representative and “nor could the jurisdiction of the Commission depend upon such an arbitrary and capricious circumstance.”[13]
[13] First respondent’s further submissions, [16].

The second respondent’s submissions

The second respondent submits that the appellant was validly joined to the proceedings, and had the opportunity to take such forensic steps as it saw fit, so that there was no unfairness in terms of legal or evidentiary onus.
In her further written submissions dated 20 September 2019, the second respondent refers to the definition of “claim” within s 4 of the 1998 Act, which defines a claim as “a claim for compensation … that a person has made or is entitled to make.” The second respondent also refers to ss 287(1), 288 and 289 of Part 4 of the 1998 Act, and submits that although the word “dispute” is not defined for the purposes of Part 4, it should be attributed its ordinary meaning, that is, a disagreement or argument.
The second respondent submits that the first respondent made a claim on the second respondent, and it is not suggested that the first respondent was not entitled to make that claim. The second respondent disputed that it was liable to pay compensation under the workers compensation legislation.
The second respondent refers to the Arbitrator’s findings that the first respondent made a claim for compensation and the second respondent issued a notice pursuant to s 74 of the 1998 Act disputing the claim. The second respondent asserts that that there is no challenge in the appeal to those findings.

The appellant’s further submissions in reply

The appellant disputes the assertion that the Arbitrator’s findings have not been challenged on the appeal. The appellant maintains that there was no justiciable dispute and that the Commission therefore had no jurisdiction to determine the matters that were the subject of the Arbitrator’s orders.
The appellant reiterates its position that it should not have been joined to the proceedings, that both the first and second respondents made the same submission at the arbitration in respect of the first respondent not being a worker, and the second respondent not being an employer, and there was therefore no dispute between relevant parties.

DISCUSSION

The Commission’s jurisdiction is vested in s 105 of the 1998 Act. Thus, the Commission does not possess an inherent jurisdiction, but only those powers which are incidental and necessary to the exercise of its statutory jurisdiction.[14] Section 105 provides that the Commission has exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts, but the jurisdiction is subject to the provisions of the 1998 Act. That is, the “exclusive jurisdiction” is qualified by express prohibitions and restrictions within the Act.
[14] Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley [2006] NSWCA 235; 67 NSWLR 417; 5 DDCR 61, per Santow JA, [66].
In the exercise of its functions, the Commission is restricted to the authority and powers conferred upon it by the statute. As Byron DP observed in Programmed Maintenance Services Limited v Barter:[15]
“[T]he powers of the Commission, being a creature of statute, are limited to those powers expressly conferred upon it by the statute. Any attempted exercise of power beyond those conferred by the statute, would necessarily be of no legal effect.”[16]
[15] [2005] NSWWCCPD 42 (Barter).
[16] Barter, [45].
Section 287(1) of the 1998 Act applies to a dispute in connection with a claim for compensation, either between a person who makes a claim and the person upon whom the claim is made, or between an employer and an insurer on whom a claim was made.
The “insurer” referred to in s 287 is not defined for the purposes of Division 1 of Part 4, however, it is consistently defined in the 1998 and 1987 Acts as meaning a “licensed” insurer, that is, an insurer who is licensed to provide a workers compensation insurance policy to employers.[17] It is appropriate to interpret the reference to “insurer” in a manner consistent with the whole of the legislation. As was observed by French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross:[18]
“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’”[19]
[17] Sections 37 and 70, of the 1998 Act; s 193 of the 1987 Act.
[18] [2012] HCA 56; 248 CLR 378 (Cross).
[19] Cross, [24].
Section 288 of the 1998 Act provides that only the claimant can refer a dispute about a lump sum claim to the Commission.
Section 289 of the 1998 Act provides for certain restrictions on when a dispute, in this case about a lump sum claim, can be referred to the Commission for determination.
As all three sections in the 1998 Act are predicated by there being a “dispute” in relation to the claim, then the Commission’s jurisdiction to hear and determine a matter must be contingent upon there being a dispute in existence between the claimant and the person on whom the claim is made, or between the employer and the licensed insurer (s 287(1)).
The first respondent’s assertion that the appellant could have referred the dispute to the Commission fails to acknowledge the restriction in s 288(1) of the 1998 Act, which provides that if the dispute is about a lump sum claim, only the claimant can refer the dispute to the Commission.
The first respondent’s contention that the definition of a “party” contained in r 1.4 of the 2011 Rules does not contain the limitation that a party must be either an employer or a licensed insurer also does not assist.
The exclusive jurisdiction provided for in s 105 of the 1998 Act is expressed to be subject to the specific provisions of the 1998 Act, in this case ss 287–289 of the 1998 Act. The 2011 Rules must also be read subject to ss 287–289. The sections of the 1998 Act require that the claim (defined by s 4 of the 1998 Act as a claim for compensation) can only be referred to the Commission if there is a dispute between the claimant and the person upon whom the claim is made or the employer and the insurer.
As the appellant submits, there was no dispute between the claimant and the employer or its licensed insurer. The first respondent denied having been employed by the second respondent in his Reply filed in the District Court proceedings, and maintained that denial throughout the course of the Commission proceedings, including in his submissions at arbitration. The licensed insurer declined liability on the basis that in its view, the first respondent was not a worker. Ms Patrick stated that she never employed the first respondent in her business. The Reply filed by the second respondent in these proceedings alleged that the first respondent was not a worker or deemed worker. The second respondent adopted the first respondent’s submissions in the arbitration. It is patently obvious that there was no dispute of the kind required by ss 287–289 of the 1998 Act. The parties, namely the first respondent (the claimant) and the second respondent (the employer) were in agreement, as were the employer and the licensed insurer.
The second respondent submits that the first respondent was entitled to bring his claim for compensation. The question is not whether there was an entitlement to bring a claim. The correct question is whether a dispute existed between the relevant parties so that jurisdiction to determine the dispute was founded in the Commission.
In the absence of a “dispute” with either the second respondent or a dispute between the second respondent and its licensed insurer, the first respondent was not entitled to commence proceedings, and the Commission had no jurisdiction to hear and determine the matter. Despite the existence of a dispute between the appellant and the first respondent, which on one view may have been “in connection with a claim for compensation,” it was not a dispute between the requisite parties identified in s 287 of the 1998 Act.
The first respondent asserts that the appellant cannot “approbate” and “reprobate,” relying on Schulman as authority for that proposition. In that case, Sackar J discussed the concept, but did not apply it. In Agricultural and Rural Finance Pty Ltd v Gardiner,[20] a majority of the High Court (Gummow, Hayne and Kiefel JJ, Heydon J relevantly agreeing) warned that the principle was not one which operated at large, and was relevant only in very limited circumstances. Even if the principle did apply in the circumstances of this case (which l consider doubtful) it would be more applicable to the conduct of the first respondent, who brought proceedings asserting an entitlement in contradiction of his position in the District Court proceedings and contrary to the presentation of his case before the Arbitrator
[20] [2008] HCA 57; 238 CLR 570.
The subsequent joinder of the appellant, who was not an insurer within the meaning of the Act, could not operate to create jurisdiction, thus enabling the Commission to hear and determine the matter. Firstly, the appellant was not an “insurer” within the meaning of the 1998 Act. Secondly, the first respondent did not make a claim for compensation (as defined by s 4 of the 1998 Act) against the appellant. Subsection (5) of s 289 of the 1998 Act prohibits the Commission from hearing or otherwise dealing with a dispute if s 289 provides that a dispute cannot be referred to the Commission.
The Commission does have the power to determine its jurisdiction, but that power must be exercised in accordance with the 1987 and 1998 Acts. The Arbitrator clearly erred in determining that he had jurisdiction to hear and determine the matter on the basis that there was a dispute between the first respondent and the appellant.
The matter was not properly before the Commission as there was no dispute on foot between the parties (the first and second respondents in the appeal) at the time the application was lodged with the Commission.[21]
[21] Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76; Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd [2008] NSWWCCPD 88.
There was no basis upon which the Arbitrator had jurisdiction to determine the matter, which was fundamentally a dispute between the first and/or second respondent and a third party, the appellant.
It follows that the Arbitrator had no jurisdiction to hear the matter, or make the finding recorded in the Certificate of Determination dated 15 March 2019. In those circumstances, it is not necessary to consider the remaining grounds of appeal.
The Certificate of Determination is revoked and the proceedings are dismissed.

DECISION

The Certificate of Determination dated 15 March 2019 is revoked.
In accordance with s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998, the proceedings are dismissed.

Elizabeth Wood

DEPUTY PRESIDENT

29 October 2019