Ritson v State of New South Wales

[2022] NSWDC 133

District Court

New South Wales

Medium Neutral Citation:

Ritson v State of New South Wales [2022] NSWDC 133

Hearing dates:

28 April 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Leave is granted to the plaintiff for the compensation matter application to be made to the District Court pursuant to s 26 of the Personal Injury Commission Act 2020 (NSW).

(2)  The costs of the Summons filed on 1 December 2021 seeking leave are reserved.

Catchwords:

CONSTITUTIONAL LAW – Commonwealth Constitution s 75 – whether federal “matter” before the Personal Injury Commission – resident of Queensland making application against the State of New South Wales – timing and location of dispute in question

JURISDICTION – Personal Injury Commission – whether application would involve an exercise of federal jurisdiction – s 26(3) of the Personal Injury Commission Act 2020 (NSW)

Legislation Cited:

Commonwealth of Australia Constitution Act 1900

Personal Injury Commission Act 2020 (NSW)

Personal Injury Commission Rules 2021

Cases Cited:

Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304

Dahms v Brandsch [1911] HCA 55; (1911) 13 CLR 336

Foxe v Brown [1984] HCA 69; 59 ALJR 186

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Ritson v State of New South Wales [2021] NSWPIC 409

Watson v Marshall & Cade [1971] HCA 33; (1971) 124 CLR 621

Category:

Principal judgment

Parties:

Brendan Ritson
State of New South Wales

Representation:

Counsel:
In Person (Plaintiff)
T J Dixon and L Robison (Defendant)

Solicitors:
In Person (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2021/00341566

Publication restriction:

No

Judgment

1. Before the Court for determination is an application by way of Summons for leave by the plaintiff, Mr Brendan Ritson, to apply to the District Court in relation to a compensation matter under s 26 of the Personal Injury Commission Act 2020 (NSW) (“the Act”). The defendant in the proceedings is the State of New South Wales.

2. The application for leave is part of a wider dispute between the parties concerning any entitlement of Mr Ritson to claim further compensation benefits in relation to an injury which he received whilst acting as an officer in the New South Wales Police Force in January 2006.

3. It is not in dispute that Mr Ritson was a Police Officer in New South Wales from 2001 until 2011 when he was medically discharged.

4. In support of his application, Mr Ritson read part of an affidavit of his sworn 18 February 2022. That affidavit in paragraphs 1-4 established:

1. That Mr Ritson has been a resident of the State of Queensland for the last eight years;

2. On 27 September 2021, he lodged an Application for Expedited Assessment against the State of New South Wales in the Personal Injury Commission. A copy of the Application was attached to the Summons. The respondent named is the “State of New South Wales (NSW Police Force)”. The address of Mr Ritson in the Application is in Queensland.

5. There was a dispute in the Personal Injury Commission as to whether the Commission had jurisdiction to hear the application. In a determination dated 20 October 2021 by Principal Member Harris, the Commission expressed the opinion that the application was a matter between a State and a resident of another State within the meaning of s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth) (“Commonwealth Constitution”). The Application was dismissed under the Personal Injury Commission Rules 2021. It was ordered that the Application could be restored if the District Court remitted the Application to the Commission pursuant to s 26(5)(a) of the Act.

Relevant legislation

6. Section 25 of the Act defines “federal jurisdiction” for the purposes of the relevant Division in the Act as meaning “jurisdiction of a kind referred to in section 75 or section 76 of the Commonwealth Constitution”.

7. Section 75 of the Commonwealth Constitution provides as follows:

“75. Original jurisdiction of High Court.

In all matters—

(i.)  Arising under any treaty:

(ii.)  Affecting consuls or other representatives of other countries:

(iii.)  In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

(iv.)  Between States, or between residents of different States, or between a State and a resident of another State:

(v.)  In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.”

8. It is asserted by Mr Ritson in the present case that the Application before the Commission was a federal “matter” within s 75 of the Commonwealth Constitution as it was a matter in which a person who was a resident of another State was suing a State, here a resident of Queensland taking proceedings against the State of New South Wales.

9. Section 26 of the Act provides as follows:

“26   Applications involving federal jurisdiction may be made to District Court

(1)  A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission.

(2)  The regulations may make provision for or with respect to—

(a)  who has standing to make an application for leave, and

(b)  excluding or including applications as compensation matter applications.

(3)  The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that—

(a)  an application was first made to the President or Commission, and

(b)  the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and

(c)  the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application.

(4)  An application for leave must be—

(a)  filed with the District Court along with—

(i)  an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and

(ii)  if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation—a copy of the terms of settlement, and

(b)  accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid.

(5)  The District Court may—

(a)  remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and

(b)  do so instead of granting leave or after granting leave.

(6)  If the District Court remits a compensation matter application to be dealt with by the usual decision-maker, the Court may make such orders that it considers appropriate to facilitate the determination of the application by the decision-maker.

(7)  The usual decision-maker is to determine any compensation matter application that is remitted to the decision-maker in accordance with any orders made by the District Court.”

10. The application by the plaintiff to obtain leave from the District Court is made under s 26(3) of the Act. In order for the District Court to have the power to grant leave for a compensation matter application to be made to the District Court it must be satisfied that:

1. An application for compensation was first made to the President or the Personal Injury Commission; and

2. The determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction; and

3. The usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application.

11. The first requirement in s 26(3) of the Act is satisfied in the present case on the evidence. Mr Ritson made an application against the State concerning a compensation claim to the Personal Injury Commission. That application is annexed to the Summons filed on 1 December 2021. There was no issue between the parties that the Commission was the usual decision-maker in relation to such a compensation claim. Accordingly, the matter before this court was a “compensation matter application” within s 26(3) of the Act.

12. Apart from the jurisdictional issue, there was no question between the parties that the usual decision-maker at the Personal Injury Commission would otherwise have had jurisdiction enabling the decision-maker to determine the application.

13. No issue as to s 26(4) of the Act being complied with was raised by the parties.

14. The real question in dispute between the parties was whether the determination of the matter by the usual decision-maker would involved “an exercise of federal jurisdiction”. I have already indicated above that s 25 defines “federal jurisdiction” as jurisdiction of a kind referred to in s 75 or s 76 of the Commonwealth Constitution.

Submissions of the parties

Submissions of Mr Ritson

15. The plaintiff, Mr Ritson, was self-represented at the hearing of the Summons application. Despite this, he had filed detailed and sophisticated submissions in relation to this issue and other disputes between the parties. In substance, Mr Ritson’s submissions were as follows:

1. He has been a resident of the State of Queensland for the last eight years;

2. Principal Member Harris in the Personal Injury Commission expressed the opinion that the matter was between a State (the State of New South Wales) and a resident of another State (Mr Ritson who resides in Queensland) within the meaning of s 75(iv) of the Commonwealth Constitution and dismissed the plaintiff’s application to the Personal Injury Commission;

3. The plaintiff seeks leave for the compensation matter application to be made to the District Court pursuant to s 26(3) of the Act;

4. The defendant concedes the matter of leave required under s 26(3) in the District Court;

5. Leave should be granted for the plaintiff’s application to be made in the District Court.

16. In substance, Mr Ritson adopted the reasoning of Principal Member Harris in the Personal Injury Commission.

The State’s submissions

17. The State submitted as follows:

1. This Court may grant leave only if it is satisfied in respect of the matters in s 26(3) of the Act;

2. The plaintiff submitted that the determination of the application by the Personal Injury Commission would involve the exercise of federal jurisdiction because of his residence in the State of Queensland and the proceedings being against the State of New South Wales;

3. The defendant, State of New South Wales, formally submits that the matter does not involve an exercise of federal jurisdiction as defined. It is submitted that the plaintiff has necessarily commenced these proceedings in New South Wales as any cause of action could only accrue under New South Wales legislation. It is also submitted that the “matter” for the purposes of s 75(iv) of the Commonwealth Constitution is the “justiciable controversy” that arose in the course of the plaintiff’s residency in New South Wales as a result of the injury to his thumb sustained in the course of his employment with the New South Wales Police Force and the subsequent claim made by him;

4. The plaintiff has recovered “damages” in respect of the injury to his thumb as evidenced by the terms of a deed of release between the parties. The subject matter of that controversy is now being reagitated;

5. The defendant does not wish to be heard in respect of the matter required to be satisfied on the question of leave under s 26(3)(b) of the Act in the District Court;

6. The defendant accepts that there is at least authority by single Justices of the High Court to the effect that the time for determining when a person is to be considered a resident of the different State is at the time of the commencement of proceedings;

7. The defendant concedes the matter of leave required under s 26(3) in the District Court on that basis.

18. In the course of oral hearing, leading counsel for the defendant made clear that the defendant State of New South Wales formally submitted that the matter does not involve an exercise of federal jurisdiction as defined. This was in order to preserve its position if the matter went on appeal. In my view, therefore, it is necessary for the court formally to determine the matter.

19. As indicated, Mr Ritson submits that Principal Member Harris has determined the matter correctly.

20. In paragraphs 31-43 of his decision, Principal Member Harris rejected the argument that Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 “harmonised” the concept of “matter” and “material time” by determining that the federal “matter” was a “concrete controversy existing independently of the forum in which that controversy might come to be adjudicated”: see Ritson v State of New South Wales [2021] NSWPIC 409 and Burns v Corbett, above, at [70] per Gageler J. Principal Member Harris was of the view that the meaning ascribed by the High Court to a federal “matter” in s 75 of the Constitution has remained constant in single judge decisions of the High Court which have consistently determined that the issue of residency for the purposes of s 75 of the Constitution is to be determined at the date of the institution of proceedings which in the present case was in September 2021 when Mr Ritson was a resident of Queensland.

21. The High Court decisions referred to by Principal Member Harris and by the State in its submissions are Foxe v Brown [1984] HCA 69; 59 ALJR 186 at [14] per Mason J; Watson v Marshall & Cade [1971] HCA 33; 124 CLR 621 at [2] per Walsh J and Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [134] per Gummow J.

22. As indicated, Foxe v Brown, above, was a single judge decision of the High Court of Mason J. In the case, the plaintiff commenced an action for damages for negligence against the defendant by Writ of Summons and Statement of Claim issued out of the Sydney Registry of the High Court on 10 February 1983. It related to an accident which occurred on 18 February 1977. In paragraph 14 of his decision, Mason J noted that the plaintiff’s residence in New South Wales at the date of issue of the Writ, 10 February 1983, was not disputed. His Honour stated that in order to bring the action within s 75(iv) of the Commonwealth Constitution, the plaintiff must prove at the time the Writ was issued that the parties were residents of different States. This decision clearly favours the plaintiff’s argument in the present case.

23. In Watson, above, Walsh J heard the matter as a single judge of the High Court. His Honour indicated in paragraph 2 of his decision that it was necessary to refer to the question of the jurisdiction of the High Court to entertain the action. Walsh J made clear that the Writ in that case was issued on 28 September 1967 and “it is at that time that it must be considered whether the plaintiff was a resident of Victoria or of New South Wales”. Therefore, his Honour was not of the view that the relevant time when the dispute initially arose for compensation was when jurisdiction had to be considered. Walsh J noted that the plaintiff was required to establish the facts which gave the High Court jurisdiction: Dahms v Brandsch [1911] HCA 55; (1911) 13 CLR 336.

24. The decision in Momcilovic, above, was a decision of seven judges of the High Court of Australia. Gummow J considered the question of federal jurisdiction and s 75(iv) of the Commonwealth Constitution in paragraphs 134-139. The matter involved a criminal charge and his Honour focussed at the time of the prosecution of the appellant. He held in paragraph 139 that because the prosecution of the appellant was a “matter” which was between a State and a resident of another State, the County Court of Victoria was invested with federal jurisdiction. His Honour did not look at the place of residence of the appellant at the time of the offence but at the time of the litigated dispute in the Victorian court. Therefore, this decision also favours the plaintiff in the present case.

25. In Burns v Corbett, above, Gageler J in paragraph 70 described a “matter” as encompassing “a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated”. His Honour did not discuss the three single High Court decisions which I have referred to above. In any case, it would appear that the “concrete controversy” between the parties in the present case only arose when the plaintiff sought further compensation in 2021. At that time, he had been resident in Queensland for some time.

26. It is also argued by the defendant that the plaintiff had to commence the proceedings in New South Wales as any cause of action could only accrue under New South Wales legislation. It is unclear on the authorities referred to that this is a factor which would negate the matter being a federal “matter” under s 75(iv) of the Constitution. There is nothing to suggest that the obligation to commence proceedings in a jurisdiction is the deciding factor as opposed to the place of residence of the individual suing another State.

27. For the above reasons, in my view the analysis by Principal Member Harris of the authorities in paragraphs 36 to 43 of the decision is correct. Independently of that, I regard myself as bound by the single judge decisions in Foxe v Brown, Watson v Marshall and Momcilovic.

28. Accordingly, the determination of the matter by the Personal Injury Commission by the usual decision-maker would involve an exercise of federal jurisdiction as defined in s 25 of the Personal Injury Commission Act being jurisdiction under s 75(iv) of the Commonwealth Constitution.

29. Having determined this matter, the requirements under s 26(3) of the Act have been satisfied. It is therefore appropriate to grant Mr Ritson the leave which he seeks.

30. In relation to costs, the parties agreed that the Court should reserve the question of costs pending the determination of the substantive matter or the Notice of Motion filed by the defendant on 2 February 2022 seeking a summary dismissal.

Determination

31. For the above reasons, the court makes the following orders:

1. Leave is granted to the plaintiff for the compensation matter application to be made to the District Court pursuant to s 26 of the Personal Injury Commission Act 2020 (NSW).

2. The costs of the Summons filed on 1 December 2021 seeking leave are reserved.

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Decision last updated: 29 April 2022