Raniere Nominees Pty Ltd v Daley

NEW SOUTH WALES COURT OF APPEAL

CITATION: RANIERE NOMINEES PTY LIMITED trading as Horizon Motor Lodge v DALEY and Another [2006] NSWCA 235

FILE NUMBER(S):
40437/05

HEARING DATE(S): 5 May 2006

DECISION DATE: 24/08/2006

PARTIES:
RANIERE NOMINEES PTY LIMITED trading as Horizon Motor Lodge (Appellant)
Helen DALEY (First Respondent)
WORKCOVER AUTHORITY OF NEW SOUTH WALES (Second Respondent)

JUDGMENT OF: Spigelman CJ Giles JA Santow JA

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): WCC 17218/03

LOWER COURT JUDICIAL OFFICER: Dr Gabriel Fleming, Deputy President

COUNSEL:
C D JACKSON (Appellant)
M J JOSEPH, SC/ D S STANTON (Second Respondent)

SOLICITORS:
Roach & Halligan (Appellant)
TurksLegal (Second Respondent)

CATCHWORDS:
WORKERS COMPENSATION – Commission’s jurisdiction to determine employer’s liability to pay – Indemnity Scheme under which WorkCover has discretion to pay or decline to pay compensation to employee whose employer is uninsured for its liability under the Act – Distinction between schemes under s144 and s145 of Workers Compensation Act – was it a jurisdictional requirement for Commission to hear an employer objection opposing indemnification of WorkCover where the notice required by s145(4) was not given.

LEGISLATION CITED:
Compensation Court Repeal (Transitional) Regulation 2003, cl 7
Workers Compensation Act 1987, Pt 4 Div 6, s143, s144, s145,
Workers Compensation Legislation Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1998 s353

DECISION:
Leave to appeal granted. Appeal dismissed with costs. See orders at [79].

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40437/05
WCC 17218/03
SPIGELMAN CJ
GILES JA
SANTOW JA
24 AUGUST 2006

RANIERE NOMINEES PTY LIMITED trading as Horizon Motor Lodge v DALEY and Another

Judgment

SPIGELMAN CJ: I agree with Giles JA and Santow JA.
GILES JA: Raniere Nominees Pty Ltd (“the employer”) was the employer of Ms Helen Daley (“the worker”). It was not insured for its workers compensation liabilities. The WorkCover Authority made payments to the worker under the Uninsured Liability and Indemnity Scheme constituted and regulated in Pt 4 Div 6 of the Workers Compensation Act 1987 (“the Act”), and served on the employer pursuant to s 145(1) of the Act a notice requiring reimbursement of the amount of the payments (“the notice”).
Section 145 of the Act relevantly provided -
“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)…
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)          …
(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)          ...
(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.”
The notice was dated 14 August 2003, and specified a period of “28 Days from date of service”. The employer did not apply to the Workers Compensation Commission (“the Commission”) for a determination as to its liability pursuant to s 145(3) within the 28 days, or for some time thereafter; it applied in October or November 2003.
An Arbitrator held that the employer’s application was out of time and could not be entertained. Deputy President Fleming confirmed the Arbitrator’s decision. This was an application by the employer for leave to appeal from the decision of the Deputy President, heard on full submissions as if an appeal.
Appeal lay only from a decision in point of law (Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”), s 353). The application was opposed by the WorkCover Authority; the worker did not appear. As later described, the evidence before the Arbitrator and the Deputy President was supplemented.
The employer first submitted that the notice did not specify a period within which application was to be made, and that the application could therefore be made within a reasonable time. Implicit but unstated was that the application could be entertained because it had been made within a reasonable time; however, there was no such finding of fact. The submission falls down for other reasons.
The employer’s first argument was that the period was uncertain, because it was not made clear whether the 28 days commenced from the date of the notice or from the date on which the notice was served. That can not be accepted: the notice provided in terms for 28 days from the date of service. It argued in the alternative that the period was specified as the period within which reimbursement was to be made, and there was no specification of the period within which application was to be made. That also can not be accepted. In s 145(3) “the period specified in the notice” is the period specified in the notice served in accordance with s 145(1). The person served with the notice must either make reimbursement or apply to the Commission within that period.
Even if one of these arguments were accepted, the employer would not be advantaged. There can not be substituted for “the period specified in the notice” in s 145(3) a time, reasonable or otherwise, not specified in the notice. The Commission’s power under s 145(3) would still not be enlivened, and the employer’s application could still not be entertained.
The employer then submitted that its application could be entertained because, for some time, including when the application was made, there had been on foot other proceedings in which its liability in respect of payments to the worker was in issue.
With regard also to the additional evidence, the course of the other proceedings was as follows. In March 2002 the worker applied to the Compensation Court, pursuant to s 144 of the Act as it then stood, for determination of her claim for compensation. She joined the employer and the WorkCover Authority. The employer put in issue its liability to the worker. In July 2003 the WorkCover Authority reached a settlement with the worker, under which it made payments of lump sum compensation under ss 66 and 67 of the Act. After a contested hearing, in December 2003 the WorkCover Authority obtained an order for reimbursement by the employer pursuant to s 144(5). In April 2005 the order was set aside on appeal (Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121). The question of reimbursement was remitted to the Commission, which relevantly replaced the Compensation Court upon its abolition on 1 January 2004, see Compensation Court Repeal (Transitional) Regulation 2003, cl 7(1) and s 353 of the WIM Act. The WorkCover Authority thereafter discontinued its application for an order for reimbursement.
The additional evidence, which was ultimately reflected in an agreed chronology, should be admitted. In the employer’s submission, putting in issue in the worker’s proceedings its liability to the worker, with its consequential resistance to reimbursing the WorkCover Authority, was in substance the making of an application within s 145(3), and meant that the Commission was “already seised of jurisdiction” and could entertain its application.
For a number of reasons, the submission can not be accepted. The payments in contest in the worker’s proceedings were not the payments in respect of which the WorkCover Authority required reimbursement by the notice. Even if they were, issue earlier joined in the worker’s proceedings in the Compensation Court could not take the place of making an application to the Commission in August/September 2003, as required by s 145(3), and could not invest the Commission with jurisdiction. Section 145(3) requires the making of an application within a particular period for a determination as to liability in respect of the particular payments made by the WorkCover Authority.
Further, even if the jurisdiction of the Compensation Court in the worker’s proceedings became that of the Commission, and in some manner extended to the employer’s application made in October or November 2003, the WorkCover Authority later discontinued its application for an order pursuant to s 144(5). The basis for the continued extension of the jurisdiction was lost.
The employer finally submitted that the words “within the period specified in the notice” in s 145(3) were directory, not mandatory, and that the Commission could entertain an application made outside the period specified in the notice. It said that the Commission could exercise the jurisdiction conferred by s 105(1) of the WIM Act to hear and determine all matters arising under the Act, and relied on the rejection of insistence on formality in ss 350(2) and 354(3) of the WIM Act. It submitted that the period should not be regarded as mandatory when it was left to the WorkCover Authority to specify it; that “any” in “any such application” in s 145(4) of the Act meant any application for a determination whether or not made within the period specified in the notice; and that “may” in s 145(4) gave a discretion whether or not to hear an application made outside the period specified in the notice. It submitted that R v Lincolnshire Appeal Tribunal, ex parte Stubbins (1919) 1 KB 1 and Howard v Secretary of State for the Environment (1975) 1 QB 235 supported its position.
“Directory” and “mandatory” have been described as “classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is valid”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ. The preferable approach, now well established, is to ask whether it is the purpose of the legislation that an act done in breach of the provision should be invalid. Similarly, where the question is whether the existence of a fact is necessary in order that a tribunal have jurisdiction, the legislation must be “construed so as to determine the meaning of the words chosen by parliament having regard to the context of [the] statutory formulation and the purpose or object underlying the legislation”: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 35 at [39] per Spigelman CJ. In the present case, whether the Commission could entertain an application made outside the period specified in the notice is to be determined by construction of s 145(3) in its context and having regard to the purpose of the legislation.
So approached, the employer’s submission can not be accepted.
Commonly payments will be made by the WorkCover Authority to employees of uninsured employers without proceedings brought by the worker under s 144 or s 144A of the Act, and thus without any question of an order for reimbursement pursuant to s 144(5) or 144A(3). The primary mechanism for reimbursement of the WorkCover Authority is the notice procedure under s 145, which by s 145(6) gives the WorkCover Authority a right to recover in a court of competent jurisdiction an amount specified in a notice served under s 145(1) where an application has not been made under s 145(3). Service of a notice leading to a right of action is intended to provide for expeditious and certain recovery of payments, and application within the period specified in the notice is part of the expedition and certainty.
Section 145(3) is clear in its terms, entitling the person on whom the notice had been served to apply within the period specified in the notice and as a corollary denying any such entitlement outside the period specified in the notice. Section 145(4) then confines the application which the Commission may hear and determine to an application so made, by the clear words “any such application”: the employer’s submission takes no account of the word “such”. The Commission’s power to determine the person’s liability in respect of the payments is enlivened only by the making of an application within the period specified in the notice.
R v Lincolnshire Appeal Tribunal, ex parte Stubbins was a very different case, in which a regulation requiring the delivery of a notice of appeal within a stated time was construed by the majority as intended to make known that there was to be an appeal, so that failure to deliver the notice did not matter when the intention was thoroughly known. Howard v Secretary of State for the Environment is against the employer. It was there accepted that a provision whereby a person could appeal against an enforcement notice within the period specified in the notice at the end of which it was to take effect was imperative as to the specified period, see per Lord Denning MR at 242, Stamp LJ at 243 and Roskill LJ at 243-4. The reasons of Stamp LJ included that “[t]he machinery of the enforcement provisions and the appeal therefrom simply would not work unless there was some fixed time put in section 16(1) to limit the time in which an appeal is to be brought”. A similar observation may be made as to s 145(3) of the Act.
In my opinion, the Deputy President was correct in her decision. Leave to appeal should be granted, with a direction that the employer file its notice of appeal within seven days, but the appeal should be dismissed. The employer should pay the costs of the WorkCover Authority.
SANTOW JA:
INTRODUCTION
These proceedings for leave to appeal and a concurrent hearing are brought by Raniere Nominees Pty Ltd trading as Horizon Motor Lodge (“Raniere”). They are brought against the WorkCover Authority of New South Wales (“WorkCover”). They seek to challenge decisions below by an Arbitrator and by Deputy President Fleming of the Workers’ Compensation Commission (“the Commission”). They concern the statutory scheme under the Workers Compensation Act 1987 (“the Act”); in particular whether WorkCover may, under the default procedure in s145 of the Act, obtain reimbursement by notice served upon Raniere, an uninsured employer, for payment WorkCover had earlier made to that employer’s injured worker.
The issue arises because, by reason of Raniere’s tardy response to WorkCover’s statutory notice triggering that reimbursement procedure, the Commission determined that it was deprived of jurisdiction to determine the employer’s liability in respect of the payment concerned. That left the default procedure to operate to reimburse WorkCover. That deprivation of jurisdiction was held to arise by reason of the terms of s145(3) of the Act, quoted below. That section requires the employer (here Raniere) seeking a Commission determination of its liability to reimburse, to make application to the Commission within the period specified in WorkCover’s notice. This it failed to do. While there is an implication that such notice period must be reasonable, no issue of reasonableness arises here.
The statutory scheme is known by the acronym ULIS being the “Uninsured Liability and Indemnity Scheme”. That scheme deals with the situation where an employer fails to take out insurance for its liability under the Act. WorkCover may then in its discretion pay or decline to pay compensation from the WorkCover Authority Fund for work injury damage suffered by an employee whose employer was uninsured for its liability under the Act (s143). If WorkCover pays the injured worker it may then seek reimbursement from the employer for the amount paid, doing so under one or other of two statutory mechanisms for reimbursement (s144 or s145 of the Act), as applicable in the circumstances. They are essentially distinct, though there is a cross-reference in s144 to s145, as I explain. The employer may contest reimbursement in accordance with the requirements of the applicable provision (s144 or s145).
By a series of statutory amendments, proceedings under s144 or s145 are no longer brought in the repealed Compensation Court but in the Commission, as indeed were the later s145 proceedings here; Workers Compensation Legislation Amendment Act 2001 which came into force on 1 January 2002. There were transitional provisions made pursuant to the Compensation Court Repeal Act; in particular the Compensation Court Repeal (transitional) Regulation 2003. Regulation 7 relevantly provides for appeals:
“(1)For the purposes of an appeal, on or after 1 January 2004 against an award of the Compensation Court in respect of proceedings relating to a jurisdiction other than the residual jurisdiction of the District Court:
(a) in the case of an award of a Judge of the Compensation Court – the award is taken to be a decision referred to in section 353 of the 1998 Act (that is, a decision of a Presidential member of the WCC) …”
While Raniere seeks to resist reimbursement to WorkCover under s145, it seeks to rely also on what transpired in earlier s144 proceedings brought by the injured worker in the Compensation Court. Raniere seeks to demonstrate that in the s144 proceedings it had sufficiently indicated an intention to contest reimbursement so as to satisfy s145(3).
Under s144 proceedings an injured worker dissatisfied with a decision by WorkCover not to pay may contest that decision. WorkCover is able to join the employer concerned (here Raniere) so as to seek an order for that employer to reimburse WorkCover if adjudged liable.
The s144 proceedings in this case were brought by the worker against both WorkCover and Raniere (as first and second respondents). They included the worker seeking an order for the employer Raniere to reimburse WorkCover for such amounts as it may pay out of the statutory fund to the worker. Raniere by way of “answer” in these s144 proceedings put all issues in dispute insofar as they related to liability to the worker; WB, Tab 19.
Had those contentions been resolved in favour of the employer, it could be expected to have relied on that result to resist reimbursement to WorkCover even if brought under s145. However what actually occurred was that as between the injured worker and WorkCover consent orders making payment to the worker were made, but without any determination of the merits. WorkCover then made payment from the Fund to the injured worker in response to the worker’s ss66/67 lump sum claim. Orders subsequently made by the Compensation Court under s144 requiring Raniere to reimburse WorkCover were the subject of successful appeal to the Court of Appeal. On 22 May 2004 it set those orders aside, remitting the matter for further hearing. The worker subsequently discontinued those s144 proceedings in 2005. That left s145 proceedings as the only avenue for reimbursement.
Section 145 proceedings provide an alternative regime whereby WorkCover may require by notice to the employer reimbursement from the employer for money already paid to the injured worker so as to be recoverable as a debt in a court of competent jurisdiction. This regime is what I have called the default procedure. It is, as the Commission determined, directed to ensuring expedition and finality in processing a claim for reimbursement, subject to the employer’s rights under s145(3). Under s145(3) such reimbursement is contestable by the employer who complies with the procedures in s145(3) whereby the
“person on whom a notice [pursuant to s145(1)] has been served … in respect of an injured worker may, within the period specified in the notice, apply to the Commission [originally ‘the Compensation Court’] for a determination as to the person’s liability in respect of the payment concerned” [emphasis added].

In those s145 proceedings, by s145(6) WorkCover may recover the amount specified in “a notice in respect of which an application has not been made under subsection (3) as a debt of the person on whom the notice was served in a court of competent jurisdiction” [emphasis added].
The s145 proceedings which here followed the earlier s144 proceedings were initiated by WorkCover on 14 August 2003 by giving notice pursuant to s145(1) seeking reimbursement from Raniere. As I have explained, that notice, if not the subject of a valid application by Raniere under s145(3), leads automatically under s145 to a debt for the reimbursement amount recoverable in a court of competent jurisdiction; s145(6). Raniere, however, only made application some two months after the time specified in WorkCover’s s145(1) notice. It thus, according to the decisions sought to be challenged, failed to comply with s145(3) so giving rise to a statutory debt in favour of WorkCover and recoverable in a court of competent jurisdiction.
The central issue of this appeal is therefore whether, given non-compliance with s145(3) of the Act, the Commission did indeed lack jurisdiction (as concluded by the Arbitrator and Deputy President Fleming) to permit Raniere to seek a determination by the Commission as to its liability as employer in respect of WorkCover’s payment to the worker.
There are two related grounds now pressed by Raniere in seeking leave to appeal. First, was the Commission under the s145 proceedings already seised of jurisdiction as a result of the earlier s144 proceedings commenced in the Compensation Court? Second, had Raniere substantially complied with the statutory notice requirement under s145(3) of the Act by the steps it had taken in lodging a reply disputing liability to WorkCover’s earlier application to the Compensation Court in the earlier s144 proceedings? Both these grounds are pressed in an endeavour to preserve Raniere’s capacity to resist reimbursement of WorkCover (on the basis that it was not liable to the injured worker) notwithstanding any apparent non-compliance with s145(3).
There is a difficulty with these contentions. Essentially the difficulty is that the s144 proceedings represent a distinct regime for reimbursement associated with a worker-initiated action. That action, as was determined in an earlier Court of Appeal decision, engages only so much of s145 as is applicable in the circumstances; Raniere Holdings Pty Limited v Daley & Anor [2005] NSWCA 121 at [42], [47] and [48] per Tobias JA. Section 144 proceedings cannot provide the means for satisfying an essential statutory condition for resisting reimbursement under the distinct s145 regime. Under s145, reimbursement is initiated not by the injured worker but by WorkCover giving the s145(1) notice to the employer. It is predicated upon WorkCover having already paid out of the Fund money to the injured worker. The s144 proceedings in the present case could not be treated as themselves determining any reimbursement issue as no determination was ever made on the merits and the proceedings themselves were discontinued by the injured worker.
SALIENT FACTS
The essential facts are not at issue in this case.
The first opponent, Ms Daley, employee of the claimant Raniere, is not participating in the proceedings. She was the injured worker claiming to have suffered her injury at work on 26 September 2000.
The matter in dispute between the parties is the liability for payment of $94,120.69 in workers compensation to Ms Daley. Her employer, the complainant, disputes that liability. Because Raniere was uninsured, she made a claim for weekly benefits and medical expenses under the ULIS.
The ULIS is created by Div 6 of Pt 4 of the Workers Compensation Act 1987; ss138 to 148A. It provides for payment of workers compensation (and ex gratia) payments from the WorkCover Authority Fund. The second opponent, WorkCover, is the administrator of the scheme. There is provision for reimbursement of WorkCover by the employer, which is contestable by the employer in accordance with the provisions of s144 or s145, as applicable.
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.
Section 143 of the Act gives WorkCover a discretion, expressed in broad terms, as to whether to make the payment of compensation to a worker under the ULIS. WorkCover, following s144 proceedings initiated by the injured worker against WorkCover and Raniere as respondents in the Compensation Court commenced 26 March 2002, exercised that discretion in favour of the worker, so that Ms Daley’s claim was paid by WorkCover. This was by consent orders entered into between WorkCover and the injured worker, without determination of the merits, on 31 July 2003.
The original application dated 26 March 2003 by the worker for compensation from WorkCover included seeking an order that Raniere “reimburse the WorkCover Authority such amount … as may be paid out of such [WorkCover Authority] Fund in respect of compensation and costs awarded against [WorkCover] and in respect of the costs of [WorkCover]”; WB, Tab 18.
As of 14 August 2003 (when WorkCover as described below initiated s145 proceedings against Raniere) the Compensation Court proceedings had not determined any award against Raniere for reimbursement. Though on 3 December 2003 (after the s145 proceedings had been initiated) Judge Hughes did order reimbursement in the s144 proceedings (WB, Tab 21) her decision was subsequently set aside by the Court of Appeal on 22 April 2005 and remitted to the Commission for further hearing (WB, 22). There was no further hearing and the worker discontinued her s144 proceedings in 2005.
On 14 August 2003 under the later s145 proceedings, WorkCover served the claimant with a notice, pursuant to s145(1) of the Act. This notice required Raniere to reimburse WorkCover for the monies it had earlier paid to the injured worker. The notice gave Raniere 28 days within which to apply to the Commission for a determination of its liability to reimburse WorkCover for the amount of the claim.
The claimant did not make an application to the Commission pursuant to s145(3) until 3 November 2003 (nearly two months out of time) or at the earliest 10 October 2003 (see affidavit in support of a Notice of Motion lodged on 10 October 2003 (WB, Tab 13)).
The Arbitrator on 28 January 2004 found that the Commission had no power to hear the application because it was out of time.
On 18 February 2004, the claimant lodged an appeal against the decision of the Arbitrator. Deputy President Fleming on appeal also found that the Commission had no power to hear the application as it was out of time.
The central issue for determination in the appeal (both before DP Fleming and in this Court) is whether the Arbitrator (and subsequently DP Fleming) erred in finding that there was no power to hear the application because it was out of time and there was no power on the part of the Commission to extend time. The determination of this issue requires careful examination of s145 of the Act, and in particular s145(3) thereof. There is also a related issue namely whether, in the events that happened:
(a)the Commission was already seised of jurisdiction as a result of concurrent proceedings commenced in the Compensation Court, or
(b)Raniere, being dissatisfied with WorkCover’s decision to make payment to the worker, had substantially complied with the statutory notice under s145 of the Act, by notice lodging a reply to WorkCover’s application, doing so under s144 of the Act in response to WorkCover’s application under s145(4), thereby (it is contended) putting Raniere’s liability on all material facts in issue.
The Relevant Legislation
The relevant provisions of the Act as in force post 1 January 2002 are as follows, noting that, before that date for “Commission” one should read “Compensation Court”:
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.
144        Appeal against Authority’s decision on claim for compensation
(1)A claimant under the Scheme who is dissatisfied with a decision of the Authority in respect of a claim for compensation may apply to the Commission for a determination of the claim.
(2)If such an application is made:
(a)      the applicant shall name the employer by whom the applicant alleges compensation is payable and the Authority as respondents to the proceedings, and
(b)      the Authority may, by service of a notice on any person who, in the opinion of the Authority, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings.
(3)The Commission may hear and determine any such application and may make such orders in relation to the application as the Commission thinks fit.
(4)Where an order under subsection (3) directs the doing of anything by the Authority or any other person, the Authority or that person, as the case may be, shall comply with that direction.
(5)An order under subsection (3) may provide for the reimbursement of the WorkCover Authority Fund under section 145.
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.
The Present Proceedings
The present proceedings are an application for leave to appeal with a concurrent hearing, the application being bought pursuant to s353 of the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”). Section 353 provides for an appeal in point of law as of right and for other appeals only with leave of the Court. Section 353 is in the following terms:
353        Appeal against decision of Commission constituted by Presidential member
(1)If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.
(2)The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.
(3)A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made.
(4)The following appeals under this section may be made only with leave of the Court of Appeal:
(a)      an appeal from an interlocutory decision,
(b)      an appeal from a decision as to costs only,
(c)      an appeal where the amount of compensation in dispute is less than $20,000 (or such other amount as may be prescribed by the regulations),
(d)      an appeal from a decision made with the consent of the parties.
(5)In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
The Judgment at First Instance
I shall here summarise the key conclusions reached by the Deputy President.
The first question is whether the Commission could hear an application under s145 of the Act that was “out of time” in the sense that it was after the time specified in the statutory notice, pursuant to s145(3).
The claimant advanced two arguments, repeated in this appeal though with some variations. First, it was said that “any such implication” in s145(4) means “an application made to the Commission, whether or not it is within the time specified by WorkCover”. That is to say, the Commission’s power was said to extend to any application whether or not it was brought within the time specified in the notice.
Second, it was argued 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 an application was “out of time” in terms of the notice would be a relevant fact in this consideration.
The Deputy President rejected these arguments. The Deputy President noted the apparent discretionary matters in s145(4) which provides that the “Commission may hear any such application and may” make a range of orders; Judgment [18].
The Deputy President concluded that this apparently conferred a discretion on the Commission as to whether to hear an application, and was not satisfied that this permitted the Commission to consider an application made outside of the time specified in the WorkCover notice under s145 of the Act.
The Deputy President concluded that the requirement that the application to the Commission be made “within the period specified in the notice” under s145(3) of the Act was directed at ensuring expedition and finality in the processing of the claim for compensation, and in determining the liability of the employer and WorkCover in relation to payment of that claim. To that end the tardiness of the application was critical; Judgment [19].
The Deputy President accepted WorkCover’s submission that to entertain an application, regardless of whether it had been made “within the period specified in the notice”, would be to deprive those words of any effective meaning; Judgment [19].
Where a notice was issued in terms that required compliance within an unreasonable time period, the recipient may argue that it was denied procedural fairness. However, the Deputy President concluded that that was an issue that went to the validity of the notice, not to the jurisdiction of the Commission to hear the application and was a matter curable by judicial review; Judgment [20].
The Deputy President thus concluded that the application to the Commission purportedly pursuant to s145 of the Act was out of time. The Arbitrator had earlier determined that he therefore had no jurisdiction to hear it. The Deputy President concluded that the Arbitrator did not err in making that decision and that it should be confirmed; Judgment [21]. The related issues to which I have referred above were not dealt with in the judgment.
Grounds of Appeal
The intended grounds of appeal are as follows:
Ground 1: The Commission erred in holding that it had no jurisdiction to hear an application under s145(4) unless the application were made within the time period stipulated by WorkCover in their s145 Notice.
Ground 2: In the alternative, the Commission erred in considering that it had no discretion to extend time under s145, or otherwise.
Ground 3: The Commission erred in holding that it did not have jurisdiction to hear the application, because it was already seised of jurisdiction as a result of concurrent proceedings commenced in the Compensation Court.
Ground 4: The Commission erred in not holding that it had jurisdiction to hear the application, because the claimant had substantially complied with the Notice by way of the claimant’s lodging of a reply to WorkCover’s application under s144 of the Act, putting the claimant’s liability on all material facts in issue.
DISPOSITION
I shall deal first with grounds 1 and 2. They go to whether the Commission erred in holding that it had no jurisdiction to hear an application under s145(4) unless made within the time period stipulated by WorkCover in its s145(1) notice. That ground is related to whether the Commission erred in considering that it had no discretion to extend time under s145 or otherwise. The underlying issue is precisely the same, namely whether the requirement to apply to the Commission under s145(3) “within the period specified in the notice” must be taken to be a jurisdictional fact or an essential pre-condition for an application to be made, thus grounding the Commission’s jurisdiction to deal with it.
As Spigelman CJ explained in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 35 at 64, the issue of jurisdictional fact turns, and turns only, on the proper construction of the statute, “The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ('essentiality') …”.
At [39] the Chief Justice observed that “[A]ny statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation.”

In the present case we are here dealing with a pre-condition to the making of an application which instigates a decision-making process. That process, whether exercised by the Compensation Court or the Commission requires the relevant decision-maker to act judicially; cf R v Commissioner of Patents; ex parte Weiss (1939) 61 CLR 240 at 249 per Latham CJ.
Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority (2000) 201 CLR 226 at [24ff]. It has no statutory power expressly permitting it to extend the time for the employer to make application under s145(3). I do not consider that use of the word “may” in s145(3) does so impliedly; the section is an enabling one so that “may” in effect means “must”.
The statutory formulation in s145(3) here contains a factual reference to an objective fact. It is the making of an application to the Commission by the employer within the period specified in WorkCover’s s145(1) notice. Whether that has occurred is to be determined at the outset and not in course of a judicial decision-making process; compare Timbarra (supra) at [50]. It is only an application so made which enables the Commission to determine the employer’s liability in respect of the relevant payment.
I do not consider that the absence of any express statement of the minimum notice period in the statute, with the necessary implication that the period must be “reasonable” for the notice to be valid, renders the determination of that matter so subjective as to undermine the indicia of objectivity which marks out a jurisdictional fact.
It is true, as Raniere contends, that the discretionary power of WorkCover to issue the notice with a time to respond, if not exercised reasonably in the Wednesbury sense (Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229), could be successfully challenged. This is so given that it is an administrative decision affecting rights or interests (Kiao & Ors v West & Anor (1985) 159 CLR 550 at 584). That calls for procedural fairness in its exercise, there being no indications in the statute to the contrary. Thus if an impossibly short period of time had been nominated, rendering compliance impossible or unreasonable, then the notice may be set aside; cf Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 354. There is, however, no suggestion of that here. The 28 days is readily enough understood, and reasonable in itself.
I accept that the question of whether reasonable notice has been given, though not arising in the present case involves some element of a value judgment where reasonable minds may differ. That can suggest that it is less likely to be intended by Parliament that the s145(3) requirement is a jurisdictional fact with its requirement for objectivity. However, that consideration is not necessarily determinative as was pointed out, for example, in Timbarra. Here I consider the proper construction of the statute is that Parliament intended compliance with a notice period to be an essential pre-requisite to making an application grounding the Commission’s power to determine that person’s liability in respect of the relevant payment. That follows clearly enough from the language of s145(3) and the evident purpose of s145 of providing an expeditious default mechanism to reimburse WorkCover for monies it paid out of the statutory fund when payment was required from the uninsured employer.
To endeavour to vary the legislative scheme by seeking to find by implication a power in the Commission to determine a purported application made outside the period specified in the valid notice is to do that which Barwick CJ determined in Twist v Randwick City Council (1976) 136 CLR 106 at 110 was not permissible:
“But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme.”
The present statutory regime is analogous to that dealing with the setting aside of statutory demands. There the legislature made it clear that compliance with a time prescribed by statute was a condition precedent to, or an essential integer of, entitlement to the relevant relief; cf David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265.
I would adopt for the present case what was said by Sheller JA in Re J & E Holdings Pty Ltd (1995) 17 ACSR 319 concerning what was required to resist a statutory demand under Corporations Law and the absence of any power in the court to extend time under its mandatory procedure. It was quoted with approval by Gummow J at 279 in David Grant & Co Pty Limited v Westpac Banking Corporation (supra):
“The position is quite simply that unless the court has a power to extend the time within which the application to set aside the statutory demand can be made, the plaintiff has no right to make it.”
That the statutory regime may thereby operate with some harshness must be judged against the evident purpose of s145 and its reimbursement regime. WorkCover, in dealing with uninsured employers, is given an expeditious default power to obtain reimbursement which, if subject to delay on the part of the uninsured employer, would be frustrated. There is no warrant for that in the legislation.
Grounds 3 and 4 can be readily disposed of. As I have earlier explained proceedings under s144 and s145 are essentially distinct proceedings. This is not altered by the fact that s144(5) originally empowered the Compensation Court and now the Commission to “provide for the reimbursement of the WorkCover Authority Fund under s145”. As Tobias JA observed in the earlier proceedings in Raniere Holdings Pty Limited v Daley & Anor (supra) at [42] [1] :
“42… Accordingly it must follow that an order made by the Compensation Court under s144(3) may only provide for reimbursement of the Fund in circumstances where such reimbursement may be mandated under s145. Thus s145 becomes the governing provision as to the making of a provision for reimbursement in an order made under s144(3).”
Tobias JA explains this further at [47]-[48]:
“[47]Returning to the power of the Compensation Court to provide for reimbursement under s 144(5), I have already expressed the opinion (at [42] above) that such a provision can only be made by the Court where the employer is otherwise required to reimburse the Fund under s 145. Although the appellant submits that the power under s 144(5) cannot be exercised by the Compensation Court unless s 145 is engaged by the service of a notice under subs (1), I do not think that such a construction is correct. It seems to me that the purpose of s 144(5), given the context of the application before the Compensation Court to which it relates, is to engage so much of s 145 as is applicable in the circumstances.
[48]Clearly s 144 proceeds upon the basis that there has been no payment by the Authority to the injured worker from the Fund and, in fact, that a claim for such a payment has been refused under s 143(2). No payment has been made to satisfy the injured worker's claim: hence the making of an application under s 144(1). But what is engaged, in my view, is the implicit requirement of s 145(3) and (4) that the employer, either by agreement or by court determination, be liable to pay the injured worker compensation under the Act in an amount not exceeding that payable by the Authority to the worker pursuant to an order made against the Authority under s 144(3).”
There could be no suggestion that steps taken in s144 proceedings to oppose reimbursement constitute satisfaction of the mandatory jurisdictional requirement in s145(3) for the purpose of s145 proceedings. Section 144, grounding the Commission’s jurisdiction, is not predicated upon an application by the employer equivalent to that required under s145(3). It could not therefore be said to have already occurred. It is only the s145 proceedings which have remained on foot in the present case, as demonstrated by the history of the two sets of proceedings earlier set out.
Accordingly, neither of grounds 3 or 4 are made out.
OVERALL CONCLUSION
I would grant leave to appeal and direct the filing of the Notice of Appeal within seven days but dismiss the appeal with costs. Accordingly, I propose orders as follows:
(1)Leave to appeal granted and Notice of Appeal to be filed within seven days.
(2)Appeal dismissed.
(3)Appellant to pay the Respondent’s costs.
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END NOTE

[1] The judgment when delivered I believe inadvertently quotes the current version of s144 of the Act though the Act as applicable to the s144 proceedings in the case was that version pre-dating the amendments of 1 January 2002. Those amendments substituted the Commission for the Compensation Court. However, nothing hangs on that as the judgment clearly and correctly refers to the actual s144 proceedings as taking place in the Compensation Court.

LAST UPDATED: 28/08/2006

[2006] NSWCA 235

24 August 2006