Raniere Nominees Pty Limited t/as Horizon Motor Lodge v WorkCover Authority of NSW

[2005] NSWWCCPD 28

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision confirmed on Appeal: Raniere Nominees v Daley & Anor [2006] NSWCA 235; (2006) 5 DDCR 61
CITATION:		Raniere Nominees Pty Limited t/as Horizon Motor Lodge v WorkCover Authority of NSW [2005] NSWWCCPD 28
APPELLANT:		Raniere Nominees Pty Limited t/as Horizon Motor Lodge
RESPONDENT:		Helen Louise Daley (as named in Application to Appeal)
INSURER:		WorkCover Authority of NSW
FILE NUMBER:		WCC17218-2003
DATE OF ARBITRATOR’S DECISION:		28 January 2004
DATE OF APPEAL HEARING:		15 April 2005
DATE OF APPEAL DECISION:		2 May 2005
SUBJECT MATTER OF DECISION:		Uninsured Liability and Indemnity Scheme; section 145 of the Workers Compensation Act 1987; application ‘out of time’.
PRESIDENTIAL MEMBER:		Dr Gabriel Fleming, Deputy President
REPRESENTATION:		Appellant:	Roach and Halligan Lawyers
1st Respondent:	No representation
2nd Respondent:	Turks Legal
ORDERS MADE ON APPEAL:		The decision of the Arbitrator is confirmed.  The Appellant is to pay the costs of the appeal.

Background to the Appeal

1. On 18 February 2004 Raniere Nominees Pty Limited t/as Horizon Motor Lodge (‘the Appellant’) lodged an appeal against the decision of a Commission Arbitrator.  There are two Respondents to the appeal namely: Helen Louise Daley, the worker who was employed by the Appellant, and the WorkCover Authority of NSW.  Only WorkCover participated in the appeal proceedings.

1. The matter in dispute between the parties is the liability for payment of $94,120.69 in workers compensation to Ms Daley.  As her employer was uninsured, she made a claim for weekly benefits and medical expenses on the Uninsured Liability and Indemnity Scheme (‘ULIS’).  This claim was paid and WorkCover seeks to recover the payments from the employer (the Appellant in this case).

1. On 16 August 2003 WorkCover served the Appellant with a notice requiring it to reimburse WorkCover for the monies paid to Ms Daley.  The notice gave the Appellant 28 days within which to apply to the Commission for a determination on its liability, if any, to reimburse WorkCover for the amount of the claim.  The Appellant did not make an application to the Commission until 3 November 2003.  The Arbitrator found that the Commission had no power to hear the application because it was out of time.

1. Leave to appeal is granted.

1. A hearing was held on 15 April 2005 at which the Appellant and WorkCover were legally represented.  Further submissions were filed on 18 April 2005.  No fresh evidence is submitted.

1. The issue for determination in this appeal is whether the Arbitrator erred in finding that he had no power to hear the application because it was out of time. The determination of this issue requires a careful examination of section 145 of the Workers Compensation Act 1987 (‘the 1987 Act’).

Can the Commission Hear an Application under Section 145 that is ‘Out of Time’? 

1. The ULIS is created by Division 6 of Part 4 of the 1987 Act.  It provides for payment of workers compensation and ex gratia payments from the WorkCover Authority Fund.  The Authority is the administrator of the scheme.

1. The ULIS makes payments for workers compensation claims by employees, against employers who are found to have been uninsured at the relevant time in relation to a claim. 

1. Section 143 of the 1987 Act gives the Authority a discretion as to the payment of compensation to a worker under the ULIS.  This discretion is expressed in broad terms as follows:

“143 Determination of claim by Authority

(1)     From the WorkCover Authority Fund the Authority may, in respect of a claim under the Scheme:

(a)   pay compensation in accordance with this Act or work injury damages, with or without admission of liability, or

(b)   make ex gratia payments.

(2)     The Authority may refuse to satisfy a claim under the Scheme.

(3)    If the Authority does not, wholly or in part, satisfy a claim under the Scheme, it shall, within 14 days of making the relevant decision, advise the claimant of its decision and the Reasons for its decision.”

1. Section 144(1) of the 1987 Act provides that if a worker is dissatisfied with a decision in relation to the claim on the ULIS, he or she may apply to the Commission for determination of the claim. 

1. Where the Authority has paid compensation in respect of a claim upon ULIS, it may serve on either the relevant employer, or insurer, a ‘Notice’ requiring reimbursement of all or part of the amount so paid (section 145(1) of the 1987 Act). 

1. Section 145 of the 1987 Act provides as follows:

“145 Employer or insurer to reimburse Authority

(1)The Authority may serve on a person who, in the opinion of the Authority, was:

(a)  in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or

(b)   an insurer under this Act of such an employer,

a notice requiring that person, within a period specified in the notice, to reimburse the WorkCover Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.

(2)The Authority may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the WorkCover Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that:

(a)   the amount is beyond the capacity of the employer to pay,

(b)   the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,

(c)   the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,

(d)   the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,

(e)   the employer, being a corporation, has been dissolved, or

(f)   it would not be commercially feasible for the Authority to attempt to recover the amount.

(3)A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.

(4)The Commission may hear any such application and may:

(a)   make such determination in relation to the application, and

(b)   make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,

as the Commission thinks fit.

(5)In any proceedings under subsection (4), a certificate executed by the Authority and certifying that:

(a)   the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and

(b)   a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,

is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.

(6)The Authority may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.

(7)An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”

1. This provision confers jurisdiction on the Commission in exactly the same terms as, prior to amendment, it did on the Compensation Court.  It gives an Arbitrator, acting as the Commission, a broad power to “. . . make appropriate orders adjusting the rights of all persons or bodies who may have an existing or potential liability or entitlement to be relieved of liability because of insurance in respect of the compensation claimed by or awarded to the injured worker” (GRE Workers Compensation Insurance(NSW) v Nohil Pty Ltd (1996) 13 NSWCCR 74 at 81).

1. No Regulations have been made in relation to the extension of time periods under section 145.

1. The Appellant urges a construction of section 145 of the 1987 Act that would allow it to pursue its application to the Commission, despite the fact that it was filed nearly two months later than the date specified in the notice. The Appellant argues that the words “any such application” referred to in section 145(4) mean “an application made to the Commission, whether or not it is within the time specified by WorkCover” (Appellant’s submissions of 18 April 2005). The Commission’s power, argues the Appellant, extends to any application whether or not it is brought within time.

1. The Appellant also argues that the broad power to make a determination or order “as the Commission thinks fit” allows the Commission to hear an application on the merits, and ‘in the interests of justice’; the fact that the application is ‘out of time’ being a relevant factor to this consideration.

1. The determination of the issue in this appeal is purely a matter of statutory construction.  A number of factors guide this task including the plain words of the section, its statutory context, the objectives and intention of the legislation and the purpose that the relevant provision serves. 

1. I have considered the implications of the plain words of section 145(3) and (4) of the 1987 Act. In particular the apparent discretionary matters in section 145(4), which provides that the “Commission may hear any such application and may” make a range of orders. Although apparently conferring a discretion on the Commission as to whether to hear an application I am not satisfied that this permits the Commission to consider an application made outside of the time specified in the WorkCover notice. While the Commission ‘may’ hear the application if it is in fact made, there is no discretion not to hear the application if it is for determination of liability pursuant to a notice issued in accordance with the section (which includes if it is made within time). 

1. Section 145 forms part of the statutory provisions relating to the operation of the ULIS and is directed at allowing WorkCover to claim reimbursement for workers compensation payments made from the fund as a result of the employer’s failure to obtain mandatory workers compensation insurance. The decision in relation to liability for the claim pursuant to the Workers Compensation Acts has already been made, and may have been challenged and determined by the Commission pursuant to sections 143 and 144 of the 1987 Act. The requirement that the application to the Commission be made ‘within the period specified in the notice’, is directed at ensuring expedition and finality in the processing of the claim for compensation, and in the determination of the liability of the employer and WorkCover in relation to payment of that claim. To this end the timeliness of the application is critical. I accept the proposition, put by WorkCover, that to entertain an application, regardless of whether it has been made “within the period specified in the notice” is to deprive these words of any effective meaning.

1. Where a notice is issued in terms that require compliance within an unreasonable time period, the recipient may argue that it is denied procedural fairness.  This is an issue that goes to the validity of the notice, not to the jurisdiction of the Commission to hear the application.  It may be a matter that is curable by judicial review. 

1. In this matter the application to the Commission pursuant to section 145 was ‘out of time’. The Arbitrator determined that he, therefore, had no jurisdiction to hear it. He did not err in making this decision and it should be confirmed.

Decision

1. The decision of the Arbitrator is confirmed.

Costs

1. The Appellant is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

2 May 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE