Pettigrew v State of New South Wales (Hunter New England Local Health District)

[2021] NSWPIC 456

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Pettigrew v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC

APPLICANT:

Tracey Pettigrew

RESPONDENT:

State of New South Wales (Hunter New England Local Health District)

MEMBER:

John Harris

DATE OF DECISION:

15 November 2021

CATCHWORDS:

WORKERS COMPENSATION - The applicant was an enrolled nurse employed by the Hunter New England Local Health District; in 2018 the applicant suffered psychological injury following aggressive and violent behaviour by a patient; the respondent served a work capacity notice contending that the applicant had capacity to earn her pre-injury earnings; a preliminary issue arose as to whether the Commission had jurisdiction to determine the matter as the applicant had been and was a resident in Queensland and the matter was required to be heard by a court pursuant to section 75 (iv) of the Commonwealth of Australia Constitution (Constitution); Held -the Commission formed an opinion consistent with the parties’ joint submission that the matter was federally impacted, and the proceedings were required to be filed in the District Court; consistent with the limitations on Tribunals discussed in Attorney-General of NSW v Gatsby, the dismissal of an application must be made to give effect to the opinion; observations that a consequence of dismissal in federally impacted matters is that a worker will lose the benefit of a stay if the application is dismissed: section 289B(3) of the Workplace Injury Management and Workers Compensation Act 1998; opinion given that the matter was between a State and a resident of another State within the meaning of section 75(iv) of the Constitution; application dismissed for lack of jurisdiction.

OPINION MADE:

1.     This is a matter between a State and a resident of another State within the meaning of
s 75(iv) of the Commonwealth of Australia Constitution Act 1900.

ORDERS MADE: 

2. The application is dismissed pursuant to Rule 77(b)(iv) of the Personal Injury Commission Rules 2021.

3.     The application can be restored if the District Court remits the application pursuant to
s 26(5)(a) of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

1. Ms Tracey Pettigrew was employed as an enrolled nurse with the Hunter New England Local Health District. On 31 August 2018 Ms Pettigrew was working at the John Hunter Hospital in the Nexus unit when a patient became verbally aggressive and violent towards staff.

2. The medical evidence establishes that Ms Pettigrew suffered a psychological injury by reason of that event.

3. The claim for weekly compensation arises because the insurer issued a notice dated 19 July 2021 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice asserted that Ms Pettigrew had capacity to work 32 hours per week and provided that it would take effect on 28 October 2021 and payments of weekly compensation would cease at that time.

4. On 27 October 2021 Ms Pettigrew filed an application for expedited assessment with the Personal Injury Commission (the Commission) seeking payments of weekly compensation from 27 October 2021 to date and continuing.

1. The preliminary issue is whether this is a matter between a resident of Queensland and the State of New South Wales, which is required, pursuant to s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (the Constitution), to be determined by a court of a State.

ARBITRATION HEARING

1. The matter was listed before me on 12 November 2021. Mr Jones appeared for Ms Pettigrew and Ms Ebbeck appeared for the State of New South Wales.

1. It was common ground that Ms Pettigrew has been and is a resident of the State of Queensland. The employer is named as the State of New South Wales because it is the appropriate legal entity for employees working in and under a local area health service: see Crown Proceedings Act 1988 and State of New South Wales v Bishop.[1]

   [1] [2014] NSWCA 354 at [26]-[28].

REASONS

1. Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in the High Court, such other federal courts created by Parliament and in such other courts invested with federal jurisdiction.

2. Section 75 of the Constitution is headed “Original Jurisdiction of the High Court” and relevantly provides:

   “In all matters:

   ….

   (iv)  between States, or between residents of different States, or between a State and

   a resident of another State;

   ….

the High Court shall have original jurisdiction.”

1. Section 77 of the Constitution provides:

   “With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

   (i)defining the jurisdiction of any federal court other than the High Court;

   (ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

   (iii)investing any court of a State with federal jurisdiction.”

1. Section 39(2) of the Judiciary Act 1903 (the Judiciary Act) provides that courts of a State are invested with federal jurisdiction in some matters in which the High Court has exclusive jurisdiction. The matters in which the High Court retains exclusive jurisdiction is not relevant to the facts of this case. By reason of s 39(2) of the Judiciary Act, courts of a State may determine matters between a State and a resident of another State.

1. The Commission, like the Workers Compensation Commission is not a court: Orellana-Fuentes v Standard Knitting Mills Pty Ltd[2]; Mahal v State of New South Wales (No 5)[3].

   [2] [2003] NSWCA 146.

   [3] [2019] NSWWCCPD 42.

1. It is necessary to emphasise that, as a member of a Tribunal, I cannot decide issues of interpretation of the Constitution nor “pronounce authoritatively on the limits of its own jurisdiction” and I am limited to forming and expressing an opinion on the issue: Attorney General for New South Wales v Gatsby.[4]

   [4] [2018] NSWCA 254 (Gatsby) at [281] per Leeming JA, Beazley P agreeing at [197].

1. The parties agreed that the present application is brought by a resident of the State of Queensland against the State of New South Wales. It was accepted, consistent with the discussion of the principles set out in Ritson v State of New South Wales,[5] that the matter be dismissed, and Ms Pettigrew is required to file in the District Court.

   [5] [2021] NSWPIC 409.

1. Whilst I am limited to forming an opinion which is not binding on any Court, action cannot be taken by the Commission unless an opinion is reached, and the matter is either dismissed or the Commission continue to hear the matter. Consistent with the limitations on Tribunals discussed in Gatsby, the dismissal of an application must be made to give effect to the opinion. A dismissal is not a final determination of the matter. If proceedings are subsequently filed in the District Court, and an order is made that the matter is not federally impacted, then the District Court can remit the matter to be heard by the Commission.

Observations and Orders

1. Mr Jones raised an anomaly with what will occur in this and like cases involving disputed work capacity decisions following a dismissal of the proceedings.

2. Pursuant to s 289B of the 1998 Act a referral of a disputed work capacity decision to the Commission operates to stay the decision if the dispute is referred for determination by the Commission before the period of the required notice.

3. The stay operates until the dispute is determined, discontinued or dismissed.[6]

   [6] Section 289B(3) of the 1998 Act.

4. Mr Jones noted that Ms Pettigrew will lose the benefit of the stay procedure because the dismissal will mean that any further proceedings are commenced after the expiry of the relevant notice.

5. This matter is mentioned because the submission was made although I am in no position to adjudicate on the stay. It is a further consequence of federally impacted matters where a worker will lose the benefit of the stay if proceedings are not commenced in the correct forum prior to the expiry of the period specified in a work capacity notice.

6. The terms of the Personal Injury Commission Act 2020 require federally impacted matters to be heard by the District Court. I agree with the joint submission of the parties and form an opinion that this is a matter between a State and a resident of another State within the meaning of s 75(iv) of the Constitution.

1. My opinion and orders are set out in the Certificate of Determination.