Qantas Airways Ltd v Bishop
[2025] NSWPICPD 53
•21 July 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Qantas Airways Ltd v Bishop [2025] NSWPICPD 53 |
APPELLANT: | Qantas Airways Ltd |
RESPONDENT: | Bradley Bishop |
INSURER: | Self-insured |
FILE NUMBER: | A1-W24236/24 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 21 July 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 16 December 2024 is revoked. 2. In lieu thereof there is an award for the respondent employer. |
CATCHWORDS: | WORKERS COMPENSATION – Section 62 of the Workers Compensation Act 1987; whether section 62(6A) of the 1987 Act confers a discretion to increase an employer’s liability pursuant to s 62(1A) in respect of ‘any particular hospital treatment’; application of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Pelama Pty Ltd v Blake [1988] NSWCC 6; 4 NSWCCR 264; Workers Compensation (Private Hospital Maximum Rates) Order 2024 – whether the Order is ultra vires; application of Day v Harness Racing New South Wales [2014] NSWCA 423; 88 NSWLR 594; McEldowney v Forde [1971] AC 632; Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne [1933] HCA 56; 49 CLR 142; Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Ainsworth, solicitor | |
| Hall & Wilcox | |
| Respondent: | |
| Mr L Robison, counsel | |
| Santone Lawyers | |
DECISION UNDER APPEAL: | Bishop v Qantas Airways Ltd [2024] NSWPIC 703 |
SENIOR MEMBER: | Ms K Haddock |
DATE OF SENIOR MEMBER’S DECISION: | 16 December 2024 |
INTRODUCTION AND BACKGROUND
Bradley Bishop (the worker/respondent) was employed by Qantas Airways Ltd (Qantas/the appellant) as a baggage handler. He injured his left shoulder and neck on 15 October 2020 while connecting a tow bar to a motor vehicle. Qantas accepted liability under the workers compensation legislation in respect of the injuries. The worker came to a cervical fusion at C4/5 on about 15 August 2023. On 14 November 2023 Dr Harper, an orthopaedic surgeon, performed left shoulder surgery involving synovectomy and left biceps tenodesis. This improved movement but the worker had ongoing left shoulder pain.[1] Dr Harper recommended left shoulder surgery involving “pyrocarbon hemi-arthroplasty”. Dr Harper described the proposed procedure as involving an implant, being a “pyrocarbon humeral head”.
[1] Worker’s statement, 22/7/24, Application to Resolve a Dispute (ARD) pp 1–7, [18]–[22].
Dr Harper reported on 15 June 2024, in response to questions asked of him by Qantas. He said, “There is no other implant that I would use to resolve his arthritis”. He also said:
“Bradley is in extreme pain requiring regular opiates. I hope you can understand that the pyrocarbon hemiarthroplasty is his best chance of restoring pain relief and long-term function.”[2]
[2] ARD, p 13.
The appellant denied liability for this procedure in a dispute notice dated 17 June 2024. The notice stated:
“… the requested prosthesis is not on the Department of Health Prostheses List. As a result, we are unable to determine that the requested Anatomic/Hemi Shoulder Replacement is reasonably necessary as required by section 60 of the 1987 Act. Should an alternative prosthesis be listed for the requested surgery in the future Qantas will assess the request at that time.”[3]
[3] ARD, pp 9–12.
The claim framed in the Application to Resolve a Dispute describes the amount sought as $9,830 in respect of future treatment, care or related expenses needed, in respect of “Left shoulder pyrocarbon hemi-arthroplasty as recommended by Dr Wade Harper, plus all costs incidental to surgery”. The Senior Member’s reasons[4] recorded the agreement of the parties that the issue in dispute was “whether the proposed surgery is reasonably necessary medical treatment”.[5]
[4] Bishop v Qantas Airways Ltd [2024] NSWPIC 703 (the reasons).
[5] Reasons, [11].
The matter was listed for hearing on 17 September 2024. Mr Robison appeared for the worker and Mr Doak appeared for Qantas. The debate regarding the proposed treatment turned in large part on the Workers Compensation (Private Hospital Maximum Rates) Order 2024 (the Order) and s 62 of the Workers Compensation Act 1987 (the 1987 Act), which provided for ‘Rates applicable for hospital treatment’. Mr Robison advised he would argue that the Order was ultra vires the 1987 Act. The appellant was not in a position to meet this argument. In the circumstances, a timetable was set for written submissions with agreement that the matter be decided on the papers.[6]
[6] Reasons, [12]–[14].
Following the provision of written submissions by both parties, the Commission issued a Certificate of Determination dated 16 December 2024, accompanied by the reasons. The Senior Member noted Qantas did not argue the proposed treatment (involving the specific prosthesis) was not an appropriate form of treatment. She said the issue was whether cl 8 of the Order limited the liability of Qantas for the cost of the surgery. The Senior Member concluded that the Commission had power pursuant to subss (6) and (6A) of the 1987 Act to direct that Qantas be liable for an amount additional to that fixed by the Order, and that it was appropriate that she do so. She determined that Qantas be liable for “the cost of left shoulder pyrocarbon hemi-arthroplasty, as recommended by Dr Wade Harper, and costs incidental to the surgery”.[7]
[7] Reasons, [134]–[138].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both 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.
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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE LEGISLATIVE PROVISIONS
Section 60 of the 1987 Act provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note.
Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are—
(a)the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b)if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if—
(a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b)the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c)the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d)the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following—
(a)establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b)limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c)limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d)establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e)specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
Section 62 of the 1987 Act provides:
“62 Rates applicable for hospital treatment (cf former s 10 (2A), (3))
(1) The amount for which an employer is liable in respect of hospital treatment of a worker at a hospital is the cost to the hospital of the hospital treatment.
(1A) The maximum amount for which an employer is liable for any particular hospital treatment is not to exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.
(2)–(4) (Repealed)
(5) The maximum amount for which an employer is liable for hospital treatment given to a worker in respect of the same injury (whether the treatment is afforded at different stages of the injury or not) is—
(a)$50,000, or
(b)where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.
(6) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5).
(6A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
(7) A hospital, or a duly authorised officer of the hospital, may recover from the employer any amount for which the employer is liable under this Division in respect of hospital treatment given by that hospital.
(8) (Repealed)
(9) If the maximum amount referred to in subsection (5) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the hospital treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.”
Section 105(1) of the 1998 Act provides:
“(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.”
Section 23 of the State Insurance and Care Governance Act 2015 (the SIRA Act) provides:
“23 Principal objectives of SIRA
The principal objectives of SIRA in exercising its functions are as follows—
(a) to promote the efficiency and viability of the insurance and compensation schemes established under the workers compensation and motor accidents legislation and the Home Building Act 1989 and the other Acts under which SIRA exercises functions,
(b) to minimise the cost to the community of workplace injuries and injuries arising from motor accidents and to minimise the risks associated with such injuries,
(c) to promote workplace injury prevention, effective injury management and return to work measures and programs,
(d) to ensure that persons injured in the workplace or in motor accidents have access to treatment that will assist with their recovery,
(e) to provide for the effective supervision of claims handling and disputes under the workers compensation and motor accidents legislation and the Home Building Act 1989,
(f) to promote compliance with the workers compensation and motor accidents legislation and the Home Building Act 1989.”
Clause 3 of the Order provides:
“3. Application of Order
This Order applies to the hospital treatment of a worker at a private hospital, being treatment of type referred to in clause 5 and provided on or after the date of commencement of this Order, whether the treatment relates to an injury that is received before, on, or after that date. This Order sets the maximum fees for which an employer is liable under the Workers Compensation Act 1987 for any treatment provided by a Private Hospital with respect to an injured worker.
For clarity, this Order applies to treatment provided to exempt workers and to injured workers and to injured workers receiving treatment under the Act outside of NSW.”
Clause 8 of the Order provides:
“8. Fees for Surgically Implanted Prostheses and Handling
(1) Surgical prostheses are to be selected from the Department of Health Prostheses List (in accordance with the Private Health Insurance (Prostheses) Rules (Cth) rate current at the time of service) at the minimum benefit rate.
(2) A 5% handling fee may be applied to each item up to a maximum of $189.00 per item.”
THE SENIOR MEMBER’S REASONS
The Senior Member noted the worker’s position, which was that he hoped the proposed surgery would reduce his pain. The alternative, a cobalt prosthetic, would further damage his shoulder and not last as long as the pyrocarbon prosthesis. This was important as the worker was only 56 years of age. If there was a reduction in the worker’s constant pain this would assist his mental health. The Senior Member referred to the evidence from Dr Harper. The doctor had inserted over 70 such implants in the last 10 years with excellent results. The doctor said the device did not have TGA approval “largely as an economic decision by the companies that owned the device”. It was one of the best performing implants in Australia and was approved for use in the United States of America and in Europe. Dr Harper considered the pyrocarbon humeral head was the worker’s best chance of pain relief and restoring long-term function.[8]
[8] Reasons, [27]–[38].
The Senior Member summarised the worker’s submissions. The merits of the claim were not in issue; the only issue was the correctness of Qantas’ interpretation of the Order. The worker submitted s 62(1A) of the 1987 Act created a mechanism for the State Insurance Regulatory Authority (SIRA/the Authority) to cap the costs of treatment, it did not restrict the types of treatment that may be compensable. The worker submitted cl 8(1) of the Order went to “the type of prostheses that would be considered compensable” (emphasis in original) as opposed to the capping of the costs of such treatment. The worker submitted the Order was ultra vires. The merits of claims for the costs of treatment were a matter for the Commission, not SIRA. The worker submitted Qantas’ argument involved the proposition “that to cap an expense is the same thing as to say which types of treatment are available … ‘an excursion into the absurd’”. The worker submitted that the freedom to choose medical treatment would not be infringed without clear words of statutory intent (in the 1987 Act as opposed to something published by SIRA). [9] The Senior Member referred to the worker’s submission based on Melbourne v Barry[10] – a power to regulate does not include a power to prohibit. SIRA had impermissibly sought to prohibit treatments not on its list. Its power to regulate was simply to limit quantum.
[9] Reasons, [40]–[55]. Reference was made to Shire of Swan Hill v Bradbury [1937] HCA 15; 56 CLR 746 and McEldowney v Forde [1971] AC 632 (McEldowney).
[10] [1922] HCA 56; 31 CLR 174.
The worker submitted the Order should be read as a whole. Clause 3 said the Order “sets the maximum fees for treatment”. A proper construction of cl 8 may be read down by reference to “the overarching concept in cl 3”. This construction would render the Order intra vires, but it would not prohibit an award for the medical treatment claimed in the current matter.[11] The appellant submitted SIRA could set an upper limit for the recovery of the cost of the pyrocarbon humeral head device, but could not restrict a worker to only seeking compensation for the polyethylene humeral head because it was cheaper. The Senior Member said the worker’s “primary case was that the Order is ultra vires the 1987 Act and of no effect”. The Senior Member said that, for the Order to limit the available compensation to a list of appropriate treatments, is to concede the Order restricts the types of treatment a worker may seek compensation for. The worker submits this is the vice that is ultra vires.[12]
[11] Reasons, [57]–[60]. Reference was made to Attorney-General (NSW) ex rel Tooth & Co Ltd v Brewery Employees Union of NSW [1908] HCA 94; 6 CLR 469.
[12] Reasons, [64]–[69].
The Senior Member referred to s 62(6) of the 1987 Act. The Commission in any event had the power to direct that the worker was entitled to an award for an amount additional to the sum fixed by s 62(5) and the Order. The worker submitted there was no controversy about the medical merits of the proposed treatment and the appellant did not submit some cheaper treatment was “preferred or more expedient”. It submitted a direction should be made under s 62(6). The Commission had the power to direct both Qantas and SIRA that the claim is compensable.[13]
[13] Reasons, [72]–[76].
The Senior Member summarised the submissions of Qantas. Qantas submitted the Order was made pursuant to s 62 of the 1987 Act. It submitted “the Private Health Insurance (Prostheses) Rules (Cth) are an instrument under the Private Health Insurance Act 2007 (Cth) 2007 for the purposes of regulating the cost of benefits payable for the provision of prosthetic devices” (underlining in original). Qantas referred to the discussion by Leeming JA in Day v Harness Racing New South Wales[14] dealing with whether a delegated instrument was ultra vires. Qantas submitted cl 8(1) of the Order did not seek to prohibit access to treatment, but to limit the cost by specifying the types of prosthetic devices that are used. This was consistent with the purpose of the Private Health Insurance (Prostheses) Rules, which is to set the monetary benefit for types of prostheses used in treatment. The purpose of the clause was to limit the cost of treatment by providing a list of authorised prostheses.[15]
[14] [2014] NSWCA 423; 88 NSWLR 594 (Day).
[15] Reasons, [79]–[86].
Qantas referred to Dr Harper’s view that he recommended the pyrocarbon humeral head because the alternative polyethylene humeral head would be “susceptible to early fatigue” (emphasis in original). The proposed operation could be performed using the polyethylene humeral head, although Dr Harper did not recommend that course. The treatment was still available; it was the cost of the pyrocarbon humeral head that was restricted by cl 8 of the Order. Qantas submitted that cl 8 of the Order was not ultra vires.[16]
[16] Reasons, [87]–[89].
Qantas submitted that, contrary to the worker’s submissions, Watson v Marshall[17] had nothing to do with the provision of medical treatment and was of no relevance. Qantas submitted cl 8 limited its liability for the cost of the proposed surgery and there should be an award in its favour.[18]
[17] [1971] HCA 33; 124 CLR 621.
[18] Reasons, [93]–[95].
The Senior Member referred to Qantas’ submissions in response to her request for further submissions. Qantas submitted subss (6) and (6A) of s 62 were not relevant to the maximum prescribed for “any particular hospital treatment” within s 62 of the 1987 Act. It submitted those subsections relate only to the maximum liability for all hospital treatment as a result of an injury, an “amount additional” to that fixed in s 62(5) of the 1987 Act. Qantas submitted that if the legislature had intended that the maximum in s 62(1A) could be increased by direction, then s 62(6) would have specifically referred to s 62(1A) and not just s 62(5). It submitted that subss (6) and (6A) are irrelevant to the dispute.[19]
[19] Reasons, [96]–[102].
The Senior Member said it was common ground that the prosthesis Dr Harper considered appropriate was not on the ‘Prostheses List’.[20] She rejected the proposition that the Order was ultra vires the enabling provision, s 62(1A). She quoted from the reasons of Leeming JA in Day at [62] where his Honour said “the starting point in any such challenge must be ‘the true nature and purpose of the power’”. The Senior Member accepted Qantas’ submission that:
“… the purpose of the power conferred by s 62(1A) of the 1987 Act is to limit the costs of treatment for an injury by specifying that the cost of particular hospital treatment is not to exceed such sum as may be fixed by SIRA. The manner in which SIRA has fixed the amounts referable to the provision of prostheses is by reference to the Prostheses List.”[21] (emphasis in original).
[20] Reasons, [109].
[21] Reasons, [113].
The Senior Member stated that she applied the test from the speech of Lord Diplock in McEldowney. His Lordship in that case said:
“Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the court has a threefold task: first to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description.”[22]
[22] McEldowney, 658. See also Stuart v O’Connor as Acting Deputy Secretary of the Department of Justice and State of New South Wales [2016] NSWSC 1179, [95] where it was applied by N Adams J.
The Senior Member rejected the worker’s submission that application of the Order would limit the worker’s freedom to choose medical treatment based on medical advice. The Senior Member said the Order did not seek to limit the worker’s choice of treatment, but rather the amount the employer would pay for the cost. The Senior Member said this was consistent with the wording of the Order. She noted the prosthesis at issue fell within the definition of ‘hospital treatment’ in s 59 of the 1987 Act, which includes provision or supply by the hospital, at the hospital, of ‘medical or surgical supplies, or other curative apparatus’. She quoted s 23 of the SIRA Act.[23]
[23] Reasons, [115]–[120].
The Senior Member said it was necessary to consider the interaction of subss (1A), (6) and (6A) of s 62 with s 60 of the 1987 Act. She quoted from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[24] and Project Blue Sky Inc v Australian Broadcasting Authority.[25] She rejected the submission of Qantas that subss (6) and (6A) of s 62 “relate only to the maximum liability for all hospital treatment but are not relevant to the maximum prescribed ‘for any particular hospital treatment’” (emphasis in original).[26]
[24] [2009] HCA 41; 239 CLR 27 (Alcan).
[25] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[26] Reasons, [124]–[128].
The Senior Member said:
“130. In my view, the purpose and language of the provisions is to allow in appropriate cases for an employer to be liable for an amount or amounts in excess of the amounts in respect of hospital treatment for which s 62 of the 1987 Act provides. The ‘mischief it is seeking to remedy’ is that which may occur if an injured worker is unable to access reasonably necessary hospital treatment because the cost of such treatment to an employer is capped at an amount that does not allow for it.
131. It would not best give effect to the purpose and language of the provisions if the [employer] could be liable for hospital treatment that exceeded the amounts for which s 62 of the 1987 Act provides, but not for the cost of a prosthetic device that formed an integral part of that treatment.”
The Senior Member quoted the following from the decision of Burke J in Pelama Pty Ltd v Blake:
“Again, while the Act imposes PRIMA FACIE limits on the total cost of medical or hospital treatment, there is a discretion to extend those limits which has been repeatedly exercised over a long period of time. I do not believe that such PRIMA FACIE limits suggest that very expensive forms of treatment cannot or should not be found to be reasonably necessary.”[27] (Capitalisation in original; emphasis added by the Senior Member.)
[27] [1988] NSWCC 6; 4 NSWCCR 264 (Blake).
The Senior Member did not accept that it was the intention of the legislature to prevent the exercise of a discretion to extend the limits of the cost of hospital treatment. Qantas did not submit the proposed treatment was other than appropriate. The Senior Member concluded the Commission had the power to direct that the employer was liable for an amount additional to that fixed by the Order, and that it was appropriate to do so.
GROUND OF APPEAL
The appellant raises the following ground of appeal:
The Senior Member made an error of law in finding that subsections 62(6) and 62(6A) confer power on the Personal Injury Commission to direct the appellant to pay an amount in excess of that fixed by the Authority for ‘any particular hospital treatment’ per s 62(1A) of the 1987 Act.
NATURE OF THE APPEAL
The appeal is brought pursuant to s 352 of the 1998 Act. I note the recent decision of the Court of Appeal in State of New South Wales v Culhana.[28]
APPELLANT’S APPEAL
[28] [2025] NSWCA 157.
Appellant’s submissions
The appellant states that it repeats its submissions made before the Senior Member, in Annexure 2 to its submissions on this appeal, “summarised fairly” at [96] to [102] of the reasons. My summary of those paragraphs is set out at [20] to [23] above.
The appellant refers to the potential interaction between ss 62(1A), 62(6) and 62(6A) of the 1987 Act: Section 62(6) expressly references the maximum amount in s 62(5) and does not refer to the maximum amount in s 62(1A).
The appellant submits s 62(5) limits compensation for all hospital treatment received by a worker ‘at different stages of the injury’ in a total sum of $50,000. This is regardless of the number of admissions or the amount of treatment, the total amount cannot exceed $50,000. The appellant submits s 62(6) (and therefore s 62(6A)) permit a worker to access hospital treatment after that sum of $50,000 has been spent, at the direction of the Authority or the Commission. It submits the intent of s 62(6) is to ameliorate the limitation in s 62(5), where a worker requires repeated treatment.[29]
[29] Appellant’s submissions, [1]–[6].
The appellant submits s 62(1A) is unlike s 62(5). Section 62(1A) provides for a limitation on how much an employer may be liable for in relation to ‘particular hospital treatment’. It limits specific expenses. The appellant “speculates” the control of “medical inflation and/or [prevention of] unnecessary treatment” may be the legislative purpose. It submits s 62(1A) is directed at ‘particular hospital treatment’ (“limiting individual costs”) and s 62(5) is directed at a maximum ‘given to a worker’ (“limiting total entitlements”). The appellant submits it does not follow that, because the cap on total hospital treatment may be increased by direction, the cap on particular hospital treatments may also be increased by direction.[30]
[30] Appellant’s submissions, [7]–[10].
The appellant submits the Senior Member’s reliance on Blake was erroneous; s 62(1A) commenced in 2016, 28 years after Blake was decided.
The appellant submits there are different legislative intentions in respect of ss 62(1A) and 62(5). They are not interdependent nor do they have a single legislative goal. The appellant submits that a direction, in respect of the maximum amount in respect in s 62(5), does not incorporate a power to direct that an employer can be liable for a sum in excess of the maximum provided in s 62(1A).[31]
[31] Appellant’s submissions, [11]–[12].
Respondent’s submissions
The respondent refers to cl 8(1) of the Order (see [15] above). It accepts that the treatment in question (the pyrocarbon prosthesis) is “not provided for in the Commonwealth rules”. The respondent quotes from Project Blue Sky. The respondent submits the Commission has exclusive jurisdiction over matters arising under the workers compensation legislation. The respondent submits s 62(5) creates a prima facie limitation (for the total cost of treatment) and s 62(6) creates a discretion to exceed it. The respondent submits s 62(1A) creates a power in SIRA to limit the cost of treatment. Section 62(6A) gives the Commission power to make a direction where proceedings are before it involving a claim for the cost of hospital treatment. The respondent submits s 62(1A) creates a power to limit the cost of treatments, but s 62(6A) contains a discretion to allow an award despite a regulatory step taken by SIRA to establish a prima facie cap on the cost of any given hospital treatment.[32]
[32] Respondent’s submissions, [9], [15]–[16], [20].
The respondent submits that the Senior Member correctly concluded, in the reasons at [137], that ss 62(6) and 62(6A) “had the effect that despite a limitation fixed by an order under the Act, there was a discretion to order otherwise”. The respondent submits the criteria for exercise of the discretion in s 62(6A) are (a) the existence of Commission proceedings, and (b) the proceedings pertain to hospital treatment.[33]
[33] Respondent’s submissions, [21]–[22].
The respondent quotes the passage from Blake which the Senior Member referred to in her reasons. The respondent submits the case involved the 1987 Act, and the legislation was amended between the time of that case and the decision in the current matter. The respondent submits “… the amendments were ultimately immaterial. Whatever Blake may or may not stand for – the broad operation of (6A) discretion is clear in its own terms.”[34]
[34] Respondent’s submissions, [24]–[25].
The respondent submits the form of s 62, applied in Blake, was that in the 1987 Act in its original form. Section 62(2) provided for the limitation on the amount payable for hospital treatment to be an amount “… as estimated by the Minister for Health and last notified in the Gazette by that Minister”. The respondent submits that otherwise there is “no material difference” as to the Commission’s (previously the Court’s) powers. The respondent submits that “whilst the role of the Minister for Health is now carried on by SIRA, the proposition that there may be a prima facie upper limit has not changed since the 1987 Act commenced”. It submits there was previously “no direct equivalent of the current s 62(6A)”. It is submitted the previous version of s 62 contained a discretion “arising between subsections (5) and (6) to direct a greater amount than the caps allowed for the total treatment” in subs (5). In Blake the Court regarded this as being a matter within the Court’s discretion. The respondent submits that implied discretion is now an express discretion found in subs (6A).[35]
[35] Respondent’s submissions, [27]–[28].
The respondent submits a “point in time comparison” indicates the discretion in subs (6A) was inserted on 29 April 2016, before subs (1A) which was inserted on 6 May 2016. The respondent submits it is “fair to assume that when Parliament created the limiting powers of SIRA as to the costs of hospital treatment, it was aware of (but did not repeal) the discretion which already existed” in subs (6A) and the case law previously decided.[36]
[36] Respondent’s submissions, [26].
Appellant’s submissions in reply
The appellant submits the respondent’s submissions fail to address the wording of subs (6A), which grants a discretion to “make such a direction”. It submits this can only be a direction referred to in subs (6) to allow an amount additional to that fixed by subs (5). It submits there is no similar reference to a “direction” in relation to “particular hospital treatment”, limited by subs (1A).
The appellant submits the following chronology, of the insertion of subs (1A) and (6A) into s 62, is contrary to the respondent’s submission:
(a) Section 62 of the 1987 Act is enacted. It includes subss (5) and (6), which provide a maximum amount in respect of an employer’s liability for hospital treatment in respect of the same injury. A direction may be given that an employer is liable for an amount additional to the maximum.
(b) Blake is decided in 1988. It expressly relates to subss (5) and (6) of the 1987 Act. In a passage cited by both the Senior Member and the respondent, Burke J in Blake referred to the limit on “the total cost of medical or hospital treatment”. (emphasis added in the appellant’s submissions)
(c) Section 62(6A) is enacted. Its purpose is to permit the Authority to make a direction per s 62(6) if there are no proceedings before the Commission.
The appellant states it agrees with the respondent’s submission that the Commission has a discretion, previously exercised by the Compensation Court of New South Wales, to make ‘such a direction’ where there are proceedings before it.
(d) Section 62(1A) is enacted. This limits the liability of an employer for ‘any particular hospital treatment’. The Legislature does not enact a provision analogous with subss 65(2)(b), 62(6) or 62(6A) in relation to ‘any particular hospital treatment’. It does not allow for a direction to be made in relation to s 62(1A).
The appellant submits the above demonstrates an intention to allow a discretion in respect of ‘hospital treatment given to a worker in respect of the same injury’ (s 62(5)), but not in respect of ‘particular hospital treatment’ (s 62(1A)).[37]
[37] Appellant’s submissions in reply, [4]–[7].
Consideration of the Notice of Appeal
There was no dispute that the surgical treatment which the respondent required was ‘reasonably necessary’ within the meaning of s 60 of the 1987 Act. There were no ‘liability’ issues involving matters such as ‘injury’ or causation. It is common ground that the treatment at issue, provision of the pyrocarbon prosthesis to be used by Dr Harper in the proposed surgery, fell within the definition of ‘hospital treatment’ in s 59 of the 1987 Act. Qantas, in its dispute notice, described the issue as follows:
“It is noted that the gazetted Workers Compensation (Private Hospital Maximum Rates) Order 2024 stipulates the following requirements.
8. Fees for Surgically Implanted Prostheses and Handling
(1) Surgical prostheses are to be selected from the Department of Health Prostheses List (in accordance with the Private Health Insurance (Prostheses) Rules (Cth) rate current at the time of service) at the minimum benefit rate.
In our review of this treatment request we reviewed the prosthesis requested, being an AEQUALIS™ PYROCARBON Humeral Head, against the Department of Health Prostheses List as required by the above mentioned gazetted fees order. Review of the Department of Health Prostheses List confirms Dr Harper’s comment and the AEQUALIS™ PYROCARBON Humeral Head is not listed.”[38]
[38] ARD, pp 10–11.
Clause 3 of the Order states that the Order “sets the maximum fees for which an employer is liable under the [1987 Act] for any treatment provided by a Private Hospital with respect to an injured worker”. Clause 8 of the Order provides for surgical prostheses to be selected from the Department of Health Prostheses List.[39] It was common ground that provision was not made in the Department of Health Prostheses List in respect of the relevant pyrocarbon humeral head. This was the fundamental basis on which the appellant declined the claim. The basis on which the claim succeeded before the Senior Member was her acceptance of the respondent’s argument, that s 62(6A) of the 1987 Act empowered the Commission to issue a direction relating to the provision of hospital treatment that was additional to that fixed by the Order (see the reasons at [137]).
[39] These are more fully set out at [14]–[15] above.
It is necessary, in considering the ground of appeal, to have regard to the interaction between subss (1A), (5), (6) and (6A) of s 62. The provisions are set out in full at [11] above. Put briefly:
(a) Subsection (1A) fixes a “maximum amount for which an employer is liable for any particular hospital treatment”.
(b) Subsection (5) fixes a “maximum amount for which an employer is liable for hospital treatment … in respect of the same injury (whether the treatment is afforded at different stages of the injury or not)”.
(c) Subsection (6) provides that, “[s]ubject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5)”.
(d) Subsection (6A) provides that, if Commission proceedings are on foot which relate to or include matters relating to hospital treatment, “such a direction may be given by the Commission”. (In each instance, the emphasis in the above quotations is added.)
The parties’ submissions, and the Senior Member’s reasons, touched on the decision of Burke J in Blake. That case involved a worker who sustained serious brain injury in compensable circumstances.[40] Section 62(5) of the 1987 Act, at that time, contained a monetary limit on the maximum sum for which an employer could be liable for hospital treatment in respect of the same injury (then $10,000 or a greater amount if prescribed by the regulations). Section 62 at that time did not include subsections (1A) or (6A). Blake was decided in a different statutory environment. The extension of the monetary limit made by his Honour related to the total cost of medical and hospital treatment (as opposed to ‘particular hospital treatment’) pursuant to s 62(6) of the 1987 Act. The decision in Blake does not, in my view, assist in resolution of the issues in the current matter.
[40] Blake, 267E.
The Senior Member rejected an argument, by the appellant, that subss (6) and (6A) related only to the maximum liability for all hospital treatment (fixed by subs (5)) but were not relevant to the maximum prescribed for ‘any particular hospital treatment’ (fixed by subs (1A).[41] The Senior Member reasoned that there was conflict between subss (1A), (6) and (6A). She considered the “purpose and language of the provisions is to allow in appropriate cases for an employer to be liable for an amount or amounts in excess of the amounts in respect of hospital treatment for which s 62 of the 1987 Act provides”. She considered the mischief this was to cure was that of an injured worker being unable to access reasonably necessary hospital treatment because of the cap on the costs of such treatment.
[41] Reasons, [128].
The appellant’s submissions on this ground are summarised at [33] to [38] and [44] to [46] above. Section 62(5) limits the compensation for total hospital treatment to $50,000. The appellant submits section 62(6) permits a worker to access hospital treatment after that sum has been spent, at the direction of the Authority or the Commission. The intent is to ameliorate the restriction in s 62(5) where a worker requires repeated treatment. Section 62(1A) is different, it limits the amount of specific expenses. The appellant submits it does not follow that because the cap in s 62(5) may be increased by direction, the same applies to s 62(1A). There are different legislative intentions in the two subsections, they do not have a single legislative goal.
The respondent submits s 62(6A) creates a discretionary power in the Commission, to allow an award of compensation in respect of ‘particular hospital treatment’, notwithstanding that it exceeds the ‘maximum amount’ fixed pursuant to subs (1A).
In Alcan the plurality, dealing with the principles governing statutory construction, said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[42] (excluding references)
[42] Alcan, [47].
In Project Blue Sky the plurality said:
“70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[43]
[43] Project Blue Sky, [70]–[71].
Subsection (6) of s 62 deals with the issue of ‘a direction’ that the employer be “liable for an amount additional to that fixed by subsection (5)”. This is clearly a reference to ‘hospital treatment in respect of the same injury’, which is the maximum fixed pursuant to subs (5). It does not relate to ‘particular hospital treatment’ which is the subject of subs (1A). Subsection (6A) provides:
“If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.” (emphasis added)
Subsection (6) is the only place, other than s 62(6A), where the term ‘direction’ appears in s 62. Subsection (6A) applies to the issue of ‘such a direction’, which (in general terms) is to be by the Commission (if proceedings relating to hospital treatment are before the Commission), otherwise by the Authority on application. I accept the appellant’s submission that the phrase ‘such a direction’ in subs (6A) refers to a direction pursuant to subs (6), which involves the power to make an employer “liable for an amount additional to that fixed by subsection (5)”. Subsection (6A) does not apply to the issue of a direction to increase an employer’s liability pursuant to s 62(1A) of the 1987 Act.
This construction gives meaning to the phrase ‘such a direction’, which the respondent’s suggested construction does not. This is consistent with the passage from Project Blue Sky at [71], which is quoted above. It is consistent with the “ordinary and grammatical sense of the statutory words”.[44] It reconciles any conflict between the provisions of s 62. It follows that the ground of appeal is upheld.
RESPONDENT’S NOTICE OF CONTENTION
[44] Alcan, per French CJ, [4].
Respondent’s submissions on notice of contention
The respondent states that he does not seek to vary or discharge any aspect of the Senior Member’s decision. He contends there was an alternative basis for submitting the award was correctly made for reasons other than for reasons as formulated by the Senior Member.[45]
[45] Respondent’s contention submissions, [6]–[8].
The respondent raises the following in a Notice of Contention:
The Senior Member erred in finding that (1) of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 was not ultra vires s 62(1A) of the Workers Compensation Act 1987.
The respondent submits:
(a) Section 62 is titled “Rates applicable for hospital treatment” and it goes to that issue, the rates which apply for treatment.
(b) Section 62(1A) allows SIRA to stipulate in the Gazette the ‘maximum amount’ for such treatment.
(c) Section 62(5) is a separate grant of power to SIRA to set cumulative maximums for treatment arising from the same injury.
The respondent contrasts this with cl 8(1) of the Order which states:
“Surgical prostheses are to be selected from the Department of Health Prostheses List (in accordance with the Private Health Insurance (Prostheses Rules (Cth) rate current at the time of service) at the minimum benefit rate.”[46]
[46] Respondent’s contention submissions, [12]–[13].
The respondent notes the list “necessarily includes some and excludes some other type of prostheses from being compensable under s 60”. The respondent refers to the reasons at [110] to [111]:
“110. I do not accept the [respondent’s] submission that the Order is ultra vires the enabling provision, that is, s 62(1A) of the 1987 Act.
111. As the [appellant] submitted, the Order does not prohibit the type of treatment to be provided to a worker. It seeks to give effect to the power, which is conferred by s 62(1A) of the 1987 Act, to limit the costs of treatment. It does so by reference to the types of prosthetic devices that are to be used in the treatment.”
The respondent submits the Senior Member at [111] of the reasons muddled the concepts of cost and type of treatment. The respondent submits the Order could not stipulate that only certain types of treatment are compensable. If a bus ticket cost $10 and a plane ticket cost $100, and a statute allowed a regulation to stipulate the cost of travel (but not the type of travel), the regulation could provide that travel costs are limited to $10 but it could not provide that travel must be taken by bus and not by plane.
The respondent submits the Senior Member ought to have found that cl 8(1) was ultra vires and had no legal effect. The respondent additionally states that it relies on its submissions at first instance in support of this ground.[47] The submissions of the respondent/worker at first instance on the issue of whether any part of the Order was ultra vires are summarised at [17] to [18] above.
[47] Respondent’s contention submissions, [15]–[16].
Appellant’s submissions on notice of contention
The appellant attaches the submissions made by Mr Doak of counsel on its behalf, at first instance. The submissions of the appellant at first instance on the ultra vires issue are summarised at [20] to [22] above.
The appellant refers to paragraph [13] of the respondent’s submissions on the notice of contention. The appellant submits that SIRA, in the Order, prescribes the maximum amount for which an employer can be liable for a particular treatment (a shoulder prosthesis in a shoulder replacement) on the basis it cannot exceed the minimum rates for the surgical prostheses identified in the Department of Health’s Prostheses List. The appellant describes this as a “a practical exercise of the power conferred; it does not go beyond that power”.[48]
[48] Appellant’s contention submissions, [6].
The appellant refers to paragraph [15] of the respondent’s submissions on the notice of contention. It submits:
“‘Particular hospital treatment’ is just that: particular. … In relation to prostheses alone, the Prostheses List currently incorporates 9,708 items. 195 shoulder prostheses are listed. The suggestion by the Respondent that the Authority ought simply to have set an upper dollar limit fails to consider the particularity of hospital treatments and is impractical”.
The appellant describes the respondent’s analogy at [15] of his submissions as “specious”. It submits the Authority’s exercise of its power “is more analogous with permitting travel by bus, taxi, ferry, train, plane, gondola or any other reasonable mode, but only at a rate offered by specified providers of those services; and not first class.”[49]
[49] Appellant’s contention submissions, [8]–[9].
The appellant submits the Senior Member’s finding that the Order was not relevantly ultra vires should be confirmed.
Consideration of the Notice of Contention
The further left shoulder surgery proposed by Dr Harper is described as “left shoulder pyrocarbon hemi-arthroplasty”.[50] It was common ground that the prosthesis selected by Dr Harper for use in this surgery, the pyrocarbon humeral head, was not on the list of prostheses. Dr Harper reported on 15 June 2024, apparently in response to questions asked of him by Qantas going to the request for authorisation of the surgical procedure. The doctor’s response included:
“There is no other implant that I would use to resolve his arthritis. A conventional total shoulder replacement with polyethylene bearing (anatomical or reverse) would be susceptible to early failure given his age and glenoid wear pattern. A hemiarthroplasty with chrome cobalt will cause excessive wear of his already abnormal glenoid socket requiring early revision made more complex by further bone wear.
Bradley is in extreme pain requiring regular opiates. I hope you can understand that the pyrocarbon hemiarthroplasty is his best chance of restoring pain relief and long-term function.”[51]
[50] Dr Harper, authority for surgical procedure, 6/6/24, ARD, p 8.
[51] ARD, p 13.
The dispute notice issued by Qantas, dated 17 June 2024, included the following:
“In consideration of Section 62(1A) of the 1987 Act and based on Dr Harper’s response and the Workers Compensation (Private Hospital Maximum Rates) Order 2024, Qantas are unable to consider the requested Anatomic/Hemi Shoulder Replacement (left shoulder) as the requested prosthesis is not on the Department of Health Prostheses List. As a result, we are unable to determine that the requested Anatomic/Hemi Shoulder Replacement is reasonably necessary as required by section 60 of the 1987 Act.” (emphasis added)
The dispute notice also stated: “Should an alternative prosthesis be listed for the requested surgery in the future Qantas will assess the request at that time.”[52]
[52] Qantas dispute notice dated 17/6/24, ARD, p 11.
The Senior Member’s reasons at [11] recorded the parties’ agreement that the issue for determination was “whether the proposed surgery is reasonably necessary medical treatment”. This is consistent with how Qantas framed the dispute in its notice dated 17 June 2024.
The respondent refers to cll (1A) and (5) of s 62 of the 1987 Act, which are set out at [11] above. The focus of the parties’ submissions, relevant to the Notice of Contention, is on s 62(1A). The Order describes itself as being made “pursuant to s 62(1A)” of the 1987 Act, which provides:
“(1A) The maximum amount for which an employer is liable for any particular hospital treatment is not to exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.”
The Senior Member’s reasons included reference to Day, in which Leeming JA (McColl and Macfarlan JJA agreeing) referenced the decision of the High Court in Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne[53] and said:
“… the starting point in any such challenge must be ‘the true nature and purpose of the power’”.[54]
[53] [1933] HCA 56; 49 CLR 142 (Williams).
[54] Day, [62].
In Williams Dixon J said:
“To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.”
And:
“The decision applied the doctrine ‘that a power to regulate implies the continued existence of the thing to be regulated, and that a power to regulate a subject does not authorize the donee of the power to prohibit the subject matter’. But this doctrine does not altogether exclude the prohibition of particular acts or things which may be contained within the subject matter. The nature, operation, and apparent purpose of the restraints imposed must be considered and, if they fairly answer the description of a regulation of the subject matter, the power will sustain them.”[55]
[55] Williams, 155–6.
The nature and purpose of the power conferred on SIRA by s 62(1A) was a limited one, to fix “[t]he maximum amount for which an employer is liable for any particular hospital treatment”. The Order contained a “Private Hospitals Fee Schedule – commencing 1 February 2024. Under section 62(1A) of the Workers Compensation Act 1987”. The column of the Schedule that set out “Maximum Fees for Service”, in respect of “Surgical Prostheses Fees”, read “As per Dept of Health listed minimum rate”. Clause 8 of the Order is set out below for convenience and reads:
“8. Fees for Surgically Implanted Prostheses and Handling
(1) Surgical prostheses are to be selected from the Department of Health Prostheses List (in accordance with the Private Health Insurance (Prostheses) Rules (Cth) rate current at the time of service) at the minimum benefit rate.
(2) A 5% handling fee may be applied to each item up to a maximum of $189.00 per item.”
The Department of Health Prostheses List was attached (by way of a link) to Qantas’ dispute notice dated 17 June 2024. The list is a lengthy document containing over nine thousand prosthetic devices, including many for use in orthopaedic treatment of the shoulder. The various entries in the list are each accompanied by a monetary sum described as a “Benefit”. I infer this figure became the amount “fixed by the Authority in respect of that treatment by order published in the Gazette” pursuant to s 62(1A). The matter was conducted on the basis it was common ground that the prosthesis which Dr Harper proposed using in the disputed surgery did not appear on the list. Dr Harper, reporting to Qantas on 15 June 2024, said:
“The pyrocarbon humeral head has not achieved TGA approval and [sic, in] Australia largely as an economic decision by the companies that have owned the device.”
In Minister for Resources v Dover Fisheries Pty Ltd Gummow J (Hill and Cooper JJ agreeing), in considering a challenge to the validity of delegated legislation on the basis it was ultra vires, referred to “deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power”.[56]
[56] (1993) 116 ALR 54, 67.
I accept that the adoption by SIRA of the Department of Health Prostheses List represented a reasonable and valid method of exercising the power conferred on it by s 62(1A) of the 1987 Act. The words ‘if any’ in s 62(1A) are consistent with the Authority not being obliged, in the exercise of its power, to fix a sum in respect of all possible ‘particular hospital treatments’. Such an obligation would likely represent an impossibility.
I do not accept the respondent’s argument that the Order relevantly is ultra vires.
The notice of contention fails.
DECISION
The appellant’s appeal has succeeded. The respondent’s notice of contention has failed. The outcome is that there will be an award for the employer.
The Certificate of Determination dated 16 December 2024 is revoked. In lieu thereof there is an award for the respondent employer.
Michael Snell
DEPUTY PRESIDENT
21 July 2025
0
11
0