Ritson v State of New South Wales
[2021] NSWPIC 409
•20 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ritson v State of New South Wales [2021] NSWPIC 409 |
| APPLICANT: | Brendan Paul Ritson |
| RESPONDENT: | State of New South Wales |
| MEMBER: | John Harris |
| DATE OF DECISION: | 20 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant was an attested police officer and suffered a number of compensable injuries including a right thumb injury in 2006; in 2011 the applicant and the NSW Police Force executed a deed where substantial damages were paid; the right thumb injury was referred to in the deed; the applicant incurred medical expenses in 2021 totalling $825 for laser treatment to the right thumb; the respondent denied liability pursuant to section 151A of the Workers Compensation Act 1987; a preliminary issue arose as to whether the Commission had jurisdiction to determine the matter as the applicant had been a resident in Queensland for the past eight years and the matter required to be heard by a court pursuant to section 75 (iv) of the Commonwealth of Australia Constitution (the Constitution); Held - the characterisation of the “matter” involved the interpretation of the deed in the context of the disputed medical expenses; Abebe v Commonwealth of Australia applied; the relevant time for determining residency was when the application was filed in the Commission; Momcilovic v The Queen and Watson v Marshall & Cade applied; substitution of NSW Self Insurance Corporation for the respondent would have no utility as the Insurer was a State for the purposes of the Constitution; Deputy Federal Commissioner of Taxation v State Bank of New South Wales applied; opinion given that the matter was between a State and a resident of another State within the meaning of section 75(iv) of the Constitution; application dismissed for lack of jurisdiction. |
OPINION MADE: | 1. This is a matter between a State and a resident of another State within the meaning of s 75(iv) of the Commonwealth of Australia Constitution Act 1900. |
| ORDERS MADE: | 2. The application is dismissed pursuant to Rule 77(b)(iv) of the Personal Injury Commission Rules 2021. 3. The application can be restored if the District Court remits the application pursuant to s 26(5)(a) of the Personal Injury Commission Act 2020. |
STATEMENT OF REASONS
BACKGROUND
Mr Brendan Ritson was attested as a police officer with the New South Wales Police Force from 21 December 2001 until 10 March 2011 when he was medically discharged. During that period, Mr Ritson suffered a number of compensable injuries including an injury to the right thumb on 22 January 2006.
The present claim is in the amount of $825 for the cost of fractional ablative laser treatment rendered by the Skin Centre to the applicant in August and September 2021.
Mr Ritson made a claim on the respondent for the payment of ablative laser treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The respondent has issued notices under ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability as it is alleged that the applicant has received damages in respect of this injury and is prevented from recovering further compensation by reason of s 151A of the 1987 Act. These notices were issued in August and September 2021.
The defence under s 151A is said to arise from the payment of damages pursuant to a Deed dated 22 November 2011 signed by the applicant with the New South Wales Police Force (the Deed). The Deed refers to the payment of substantial damages which are said to be in “full and final settlement” of various proceedings, complaints, requests and any claims and entitlements. The right thumb injury on 22 January 2006 is referred to in the Deed.[1]
[1] See Background, clause L.
The preliminary issue is whether this is a matter between a resident of Queensland and the State of New South Wales, which is required, pursuant to s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (the Constitution), to be determined by a court of a State.
ARBITRATION HEARING
The matter was listed for arbitration hearing on 14 October 2021. The applicant appeared in person and Mr Robison of counsel appeared for the respondent.
Given that Mr Ritson appeared unrepresented, leave was granted, pursuant to s 48 of the Personal Injury Commission Act 2020 (the PIC Act), for the respondent to be legally represented. The extent of that leave was limited to the issue of whether the matter could be heard by the Personal Injury Commission (the Commission) and submissions were not made on the respondent’s substantive defence under s 151A of the 1987 Act save as to how that affected the characterisation of the issue of “matter” under s 75(iv) of the Constitution.
It was common ground that Mr Ritson has been a resident of the State of Queensland for the last eight years.
LEGISLATIVE BACKGROUND AND JUDICIAL AUTHORITY
Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in the High Court, such other federal courts created by Parliament and in such other courts invested with federal jurisdiction.
Section 75 of the Constitution is headed “Original Jurisdiction of the High Court” and relevantly provides:
“In all matters:
….
(iv) between States, or between residents of different States, or between a State and
a resident of another State;
….
the High Court shall have original jurisdiction.”
Section 77 of the Constitution provides:
“With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i)defining the jurisdiction of any federal court other than the High Court;
(ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii)investing any court of a State with federal jurisdiction.”
Section 39(2) of the Judiciary Act 1903 (the Judiciary Act) provides that courts of a State are invested with federal jurisdiction in some matters in which the High Court has exclusive jurisdiction. The matters in which the High Court retains exclusive jurisdiction is not relevant to the facts of this case. By reason of s 39(2) of the Judiciary Act, courts of a State may determine matters between a State and a resident of another State.
The Workers Compensation Commission is not a court: Orellana-Fuentes v Standard Knitting Mills Pty Ltd[2]; Mahal v State of New South Wales (No 5)[3].
[2] [2003] NSWCA 146.
[3] [2019] NSWWCCPD 42.
It was properly accepted that the Commission is not a court of a State. Despite the substantive changes introduced by the PIC Act, the nature of the appointment of members of the Commission is a substantial reason why no other conclusion is reasonably open.
As was accepted by the Chief Justice in Attorney General for New South Wales vGatsby[4] when referring to the observations of Kenny J in Commonwealth of Australia v Anti-Discrimination Tribunal (Tas)[5], the “absence of security of tenure” was an important matter in the characterisation of whether a member was a judge and whether the relevant tribunal was properly characterised as a Court. Whilst members of the Commission exercise an independent decision-making function, they have limited tenure in accordance with their appointment by the Minister.[6]
[4] [2018] NSWCA 254 (Gatsby) at [180].
[5] (2008) 169 FCR 85.
[6] Section 9 of the PIC Act.
Whilst further reasons are unnecessary, s 26 of the PIC Act shows a clear intention by Parliament that matters of federal jurisdiction should be heard by the District Court. The obvious reason for that section is that the District Court has the power to hear matters arising under s 75(iv) of the Constitution, whereas the Commission does not.
In these circumstances it is necessary to emphasise that, as a member of a Tribunal,
I cannot decide issues of interpretation of the Constitution nor “pronounce authoritatively on the limits of its own jurisdiction” and I am limited to forming and expressing an opinion on the issue.[7][7] Gatsby at [281] per Leeming JA, Beazley P agreeing at [197].
In those circumstances the respondent’s brief reference to the requirement that there be a provision of notices to the various Attorney-Generals under s 78B of the Judiciary Act does not arise because the cause is not before a court of a State.[8]
[8] The respondent accepted that the requirement to give notices did not arise but referred to s 78B of the Judiciary Act “for completeness”.
SUBMISSIONS
The respondent’s detailed submissions have been recorded. I refer to them, where necessary, in the Reasons set out below.
REASONS
Characterisation and scope of the “matter”
The respondent noted that there was no liability issue under s 60 of the 1987 Act and its defence was limited to the issue raised under s 151A. It referred to the applicant’s written submissions on this issue to emphasise that this was a dispute about the interpretation of the Deed.
It submitted that there was no denial about the reasonableness of the medical expenses and the dispute was that it had no liability following the execution of the Deed. Accordingly, the timing of the treatment was irrelevant to the determination of the scope of the matter.
The respondent referred to the extensive analysis by Basten JA in Gatsby on the meaning of the word “matter” in s 75 of the Constitution discussed by various High Court decisions. His Honour in the detailed analysis referenced the decision of the High Court In Re Judiciary and Navigations Acts[9] where it held that “matter” does not mean the legal proceeding but the subject matter for determination.
[9] [1921] HCA 20.
As the authorities discussed by Basten JA show, the meaning of “matter” was repeated in High Court cases such as the State of South Australia v State of Victoria,[10] and more recently by the majority reasoning in Abebe v Commonwealth of Australia[11]. As Gleeson CJ and McHugh J noted in Abebe:[12]
“A ‘matter’ cannot exist in the abstract. If there is no legal remedy for a wrong, there can be no ‘matter’. A legally enforceable remedy is as essential to the existence of a ‘matter’ as the right, duty or liability which gives rise to the remedy.”
[10] [1911] HCA 17.
[11] [1999] HCA 14 (Abebe) at [31], referred to in Gatsby at [242].
[12] Abebe at [31].
Similar observations were made by the other members of the majority in Abebe.[13]
[13] See Gatsby at [243]-[244].
The respondent referred to the observations of Gageler J in Burns where his Honour stated that “matter … encompasses a concrete controversy about legal rights existing independently of the forum in what that controversy might come to be adjudicated”. Rather than linking the concepts of “matter” and “material time” as the respondent submitted, in my view his Honour identifies the distinction between what the matter is and the forum where it is instituted.
That the meaning of “matter” ascribed by the High Court In Re Judiciary did not change is otherwise shown by the reasoning in Crouch v The Commissioner for Railways (Queensland)[14]. The plurality described “matter” in similar terms when it stated:[15]
“When the word ‘matter’ is used in Chap III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceedings itself, it focuses attention upon the substance of the dispute.”
[14] [1985] HCA 69; (1985) 159 CLR 2 (Crouch).
[15] Crouch at [9].
I do not accept the respondent’s submission that the matter in the present dispute is limited to the construction of the Deed.
The applicant incurred the treatment in August and September 2021 and made a claim in accordance with the 1998 Act.
The respondent denied the claim in accordance with the procedures required under s 279 of the 1998 Act. The applicant was then entitled to refer the matter to the Commission for determination.[16]
[16] Section 289(2) of the 1998 Act.
The authorities have consistently held that the meaning of “matter” is the “subject matter for determination”. As the passage from Abebe discussed at [23] above emphasises, there is no matter unless there is a legal remedy for the wrong. In my opinion the matter involves the respondent’s reliance on the defence in s 151A in the context of denying the claimed medical expenses.
Relevant time of residency
The concept of “relevant time” was initially argued as a distinct issue. The respondent’s submissions developed during the course of the argument to treat this concept as synonymous with the concept of matter. It is for that reason that the submissions below are somewhat repetitive of what was set out under the previous issue. However, because I have reached a different opinion, I have treated the issues as distinct.
After the hearing the applicant referred the Commission to various authorities discussing the relevant time to assess residency for the purposes of s 75(iv) of the Constitution.
The applicant referred to Bertenshaw v Warner,[17] Parish v Transport Accident Commission[18] and McCardle v Victorian Legal Services Board[19], implicitly submitting that the relevant time under s 75 was the filing of the Application before the Commission.
[17] [2020] TASADT 4 at [36].
[18] [2020] VCAT 1182 at [4].
[19] [2021] VCAT 743 at [16] (McCardle).
The respondent filed submissions in reply. It noted that all three decisions were from Tribunals and cannot be an authoritative basis in determining a constitutional issue.[20] Whilst that is undoubtedly correct, the decisions are of assistance because they reference relevant High Court authority.
[20] See Gatsby referred to at [17] herein.
In McCardle the Tribunal referred to Momcilovic v The Queen[21] as authority for the proposition that “the relevant time to assess residency is at the time of the application to the Tribunal”.
[21] [2011] HCA 34 at [134] (Momcilovic).
In Momcilovic Gummow J stated that the relevant time for residency for the purposes of
s 75(iv) in a criminal prosecution was the time of the prosecution. His Honour cited R v Oregan; Ex parte Oregan[22] as authority.[22] [1957] HCA 18 (Ex parte Oregan).
Ex parte Oregan is a decision of a single Judge of the High Court exercising original jurisdiction in a dispute involving the custody of a child where the parents were residents of different States. In this case Webb J determined that the relevant time was the time when the application was made for a writ of habeas corpus.[23]
[23] Ex parte Oregan at [19].
In Parish the member cited Watson v Marshall & Cade[24] as authority for the proposition that the relevant time when a person is a resident is “the time in which the jurisdiction of the Tribunal is invoked”. The judgment in Watson was delivered by a single judge of the High Court[25] who stated that the relevant time of residency was when the writ was issued in Court.
[24] [1971] HCA 33 at [2] (Watson).
[25] Webb J.
The respondent otherwise conceded that the decision in Foxe v Brown[26] was to “the same effect”. In Foxe, Mason J, sitting in the original jurisdiction of the High Court in a claim for damages arising from a motor vehicle accident in Queensland by a plaintiff who resided in New South Wales stated:[27]
“In order to bring the action within s.75(iv), the plaintiff must prove that at the time the writ was issued the parties were residents of different States. See Dzikowski v. Mazgay (unreported judgment, 7 July 1965) and Cadet v. Stevens (unreported judgment, 21 June 1966) which are noted in 40 ALJ 361.”
[26] [1984] HCA 69 (Foxe).
[27] Foxe at [12].
The respondent submitted that these decisions “must no longer be regarded as good law”. It relevantly submitted:[28]
“12. All three cases cited by the applicant rely upon a construction of s.75 of the Constitution which, although traceable to High Court authority, such authority pre-dates the principles espoused in Burns v Corbett 265 CLR 304 (the effect of which is to restore the position per In re Judiciary and Navigation Acts (1921) 29 CLR 257) which clearly emphasises that which raises a point of federal jurisdiction. The point raising a federal jurisdiction issue is the “matter”, namely “a concrete controversy existing independently of the forum in which that controversy might come to be adjudicated”; Burns at [70]. Given the distinction between the controversy on the one hand, and the forum on the other, it must be the former which gives rise to consideration of the terms of s.75 of the Constitution.
13. For the reasons advanced by the respondent in its oral submissions in chief, Burns harmonises the concept of “matter” and “material time” on any reasonable reading of paras [6] and [7] of the judgment of the plurality in that matter. The High Court noted the consensus in the Court of Appeal proceedings per Leeming JA at [4] and [5] that the material time was the alleged conduct of those who were alleged to have breached the relevant discrimination legislation in that matter. The personal aggrieved by that discrimination, and the two persons who had allegedly vilified the applicant, were all resident in three different states when the vilification was said to have occurred and that was “the material time”. In this respect, the High Court’s judgment also accords with Leeming JA’s description of the facts and their materiality in a temporal sense to s.75 in paras [4] and [5] of his Honour’s judgment (Burns v Corbett; Gaynor v Burns [2017] NSWCA 3) referred to in footnote 1 of the judgment of the plurality of in the High Court. Both appellate proceedings in Burns thus link together, inseparably, the concepts of matter and material time.”
[28] Respondent’s submissions at [12]-[13].
I do not accept the respondent’s submission that Burns “harmonises the concept of ‘matter’ and ‘material time’”. The discussion in Burns referred to in the respondent’s submissions was a description of the background facts relevant to the concept of the meaning of matter.
I otherwise do not accept the submission that Burns restored the position in accordance with the reasoning in In re Judiciary. The meaning ascribed by the High Court to “matter” in s 75, has remained consistent. The discussion by Basten JA in Gatsby of the various authorities is consistent with this approach.
The single Judge decisions of the High Court referenced above have consistently determined the issue of residency to be the date of the institution of proceedings. On the facts of this case, this occurred in September 2021 when the applicant was a resident of a different State.
Joinder of insurer
The respondent submitted, consistent with what was done in Bilal v Haidar[29], that the insurer be joined as a party and that the relief could be directly sought against that entity pursuant to the provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017.
[29] [2019] NSWCC 319.
The respondent advised that the insurer was the NSW Self Insurance Corporation which is constituted pursuant to the provisions of the NSW Self Insurance Corporation Act 2004. It submitted that this was a corporation distinct from and not a State for the purposes of
s 75(iv).[30][30] See Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50 (Howe).
Section 4 of that Act provides that the NSW Self Insurance Corporation is a statutory body representing the Crown and subject to the control and direction of the relevant Minister.
In Bank of NSW v The Commonwealth[31] Dixon J (as his Honour then was) stated:[32]
“[F]rom beginning to end (the Constitution) treats the Commonwealth and States as organizations or institutions of government possessing distinct individualities. Formally they may not be juristic persons, but they are conceived as politically organized bodies having mutual legal relations and amenable to the jurisdiction of courts upon which the responsibility of enforcing the Constitution exists.”
[31] [1948] HCA 77; (1948) 76 CLR 1.
[32] (1948) 76 CLR 1 at 363.
These observations were cited with approval by Gibbs CJ in Crouch[33] and by a unanimous full bench in Deputy Federal Commissioner of Taxation v State Bank of New South Wales[34] which accepted that the reference in the Constitution to the Commonwealth or States must include “references [that] are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or the State as the case may be”.[35]
[33] (1985) 159 CLR 22 at 28-29.
[34] [1992] HCA 6 (State Bank) at [17].
[35] At [20].
The Court then stated:[36]
“The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government.”
[36] State Bank at [20].
Mr Robison submitted that the carrying on of business as an insurer does not mean that the NSW Self Insurance Corporation would be considered a State for the purposes of the section. This was contrasted with a bank which was “an essential arm of the government”. It was submitted that the decision to insure itself against workers compensation claims was not as “intermittently connected with the operation of the State” as the need to have a bank to ensure its financial viability.
The respondent also referred to Austin v The Commonwealth of Australia[37] and submitted that the Commonwealth cannot pass a law that prevents a State from functioning. It submitted that insurance was not part of the “essential operation” of the State, and this was relevant to whether a corporation exercising non-essential operations was a State for the purposes of s 75.
[37] [2003] HCA 3.
In my opinion, nothing in the reasons in Austin affects the meaning of “State” as it is defined in s 75 of the Constitution. I do not accept that the discussion in Austin on the extent of the integrity and autonomy of the States affects the meaning attributable to the meaning of States in s 75.
The meaning of “State” is clear from the authorities set out at [47]-[49] herein. Several States within the Commonwealth require compulsory insurance for workers compensation and motor vehicle injuries which are controlled by a corporation properly characterised as the Crown. Other States have private insurers. The practice by some States to manage a compulsory insurance scheme is clearly contrary to the position articulated by the respondent.
Furthermore, the relevant legislation establishes the NSW Self Insurance Corporation as a statutory body representing the Crown and favours a finding that this corporation is properly characterised as the State consistent with the above authorities.
For these brief reasons I am expressing an opinion that the characterisation of an insurance arm of the State reflects an activity commensurate with the functioning of the State.
I decline to join the NSW Self-Insurance Corporation as a party as it has no utility and
I believe that the action would remain a matter between respective parties as defined in
s 75(iv) of the Constitution.
Observations and Orders
The respondent referred to the previous practice in the Workers Compensation Commission purporting to exercise jurisdiction in interstate matters. Reference was made to indications in the workers compensation acts and subordinate legislation showing an intent that matters of an interstate nature would be heard.
The Commission is obliged to apply the law and to uphold the provisions of the Constitution even though a minor sum is in issue. That these matters may have previously been determined contrary to the provisions of the Constitution at a different time is irrelevant. That there are some indications to the contrary in aspects of the legislation[38] does not otherwise detract from the clear words of the Constitution.
[38] The respondent referred by way of example to the cost provisions.
Furthermore, as the High Court determined in Howe and reaffirmed in Crouch,[39] companies not considered to be a State are not affected by the terms of s 75(iv). The Commission will have jurisdiction to determine those matters despite the matter being of an interstate nature.
[39] See the discussion of the plurality in Crouch at [2].
The terms of the PIC Act require federally impacted matters to be heard by the District Court. There are clear policy reasons, where there is any uncertainty, that a matter involving federal jurisdiction should be remitted to the District Court so that an authoritative determination is made. If I have erred in my opinion, then the District Court can determine otherwise and remit the matter to be heard by the Commission.
In my opinion both at the date of the filing of the application and when the present matter arose, this was a dispute between the State of New South Wales and a resident of another State.
My opinion and orders are set out in the Certificate of Determination.
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