Schwartz v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Schwartz v Secretary, Department of Communities and Justice [2023] NSWPIC 373
APPLICANT:	Anthony Schwartz
RESPONDENT:	Secretary, Department of Communities and Justice
Member:	Gaius Whiffin
DATE OF DECISION:	26 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for lump sum compensation for permanent impairment pursuant to section 66; District Court has made orders under both section 26(3) and 26(5) of the Personal Injury Act 2020 (the 2020 Act); consideration of whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the 2020 Act) if it determined the dispute raised by the applicant in the Application to Resolve a Dispute; consideration of applicant’s statement, medical reports and other treatment records, factual evidence, and claim correspondence; Orellana-Fuentes v Standard Knitting Mills Pty Ltd, Mahal v State of New South Wales (No 5), Fletcher International Exports Pty Limited v Lee, Citta Hobart Pty Limited v Cawthorn, State of New South Wales v Kanajenahalli, and Ritson v State of New South Wales considered; Held – opinion given that the Commission is not able to determine the dispute which is the subject of these proceedings because it would be exercising federal jurisdiction in doing so, as described in section 75 of the Constitution and defined in section 25 of the 2020 Act; opinion reinforced by the orders made by the District Court pursuant to section 26(3) of the 2020 Act, which granted leave for the dispute to be made to the Court as its determination by the Commission would involve an exercise of federal jurisdiction; proceedings dismissed as a result pursuant to section 54 of the 2020 Act, as misconceived and lacking in substance.
determinations made:	The Commission orders: 1. These proceedings are dismissed pursuant to s 54 of the Personal Injury Commission Act 2020 (the Act). 2. Liberty is granted to the parties to approach the Commission regarding the first order should the District Court order a Medical Assessment of the applicant to be carried out by a Medical Assessor appointed by the President, in accordance with s 27(4)(a) of the Act.

STATEMENT OF REASONS

BACKGROUND

Anthony Schwartz (the applicant) is 59 years old. He was employed by the Secretary, Department of Communities and Justice (the respondent) as a client service officer with the Office of the NSW Trustee and Guardian from August 2008 until he last worked there on or around 1 September 2016.
He alleges that during the course of his employment with the respondent he sustained a psychological injury. The respondent initially paid him weekly benefits compensation and his expenses in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).
It is not completely clear as to when, but the applicant then made a formal claim for compensation pursuant to s 66 of the 1987 Act with respect to his permanent impairment as a result of the alleged psychological injury.
The respondent subsequently issued a notice dated 2 April 2019 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice:
(a) denied (on the basis of medical evidence that had by then become available) that the applicant had sustained an injury in accordance with s 4 of the 1987 Act;
(b) denied as a result that the applicant was entitled to ongoing weekly benefits compensation or his expenses in accordance with s 60 of the 1987 Act, and
(c) denied any entitlement of the applicant’s pursuant to s 66 of the 1987 Act.
The respondent issued further dispute notices denying liability for the applicant’s alleged psychological injury on 9 April 2019, 30 May 2019, 14 August 2019, and 5 September 2022.
As a result, by way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission), the applicant requests that the Commission determine the dispute as to whether the respondent is liable for his psychological injury. The Commission is then asked to assess the level of his whole person impairment as a result of the injury, in order to determine whether he is entitled to compensation pursuant to s 66 of the 1987 Act.
A preliminary issue has arisen regarding whether the Commission has jurisdiction with respect to the dispute raised by the applicant in the ARD. That preliminary issue needs to be dealt with before the dispute can proceed any further with the Commission.

ISSUES FOR DETERMINATION

An opinion is required from the Commission therefore regarding the following preliminary issue:
(a) whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the Personal Injury Commission Act 2020 (the 2020 Act)) if it determined the dispute raised by the applicant in the ARD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute initially came before the Commission for a preliminary conference on
6 December 2022. The preliminary issue (see paragraph 8 above) was then raised with the parties and the applicant was directed to lodge prior to 6 January 2023 “an application to admit late documents containing evidence as to his residency state as at 8 November 2022”, that date being the date when the ARD was lodged with the Commission (see order 2 in the Commission’s 8 December 2022 direction). The dispute was otherwise listed for conciliation/arbitration before the Commission on 20 January 2023 (later changed to 16 January 2023).
At the conciliation/arbitration, the applicant conceded that he was unable to proceed towards an arbitration hearing as the dispute arguably involve the exercise of federal jurisdiction. The applicant advised that he would be lodging proceedings before the District Court, and after consideration, I determined to stay these proceedings before the Commission. I issued my reasons in this regard (through a certificate of determination dated 27 January 2023) as follows:
“The proceedings came before me for conciliation/arbitration on 16 January 2023. The applicant was represented by Mr McManamey of counsel, instructed by Mr Bryden. The applicant was also present at the Commission with a support person (Mr Harris). The respondent was represented by Mr Barnes of counsel, instructed by Mr Russell.
During conciliation, Mr McManamey conceded that he was unable to proceed towards an arbitration hearing as the proceedings arguably involved the exercise of federal jurisdiction. The applicant therefore intended to approach the District Court for leave to make his application there, in accordance with s 26 of the Personal Injury Commission Act 2020.
In my opinion, Mr McManamey was correct in his concession. The proceedings would involve an exercise of federal jurisdiction, in accordance with s 75(iv) of the Constitution, if they involved a matter between states, or between residents of different states, or between a state and a resident of another state. The High Court is given original jurisdiction in those matters. Section 77 of the Constitution then allows the federal Parliament to invest state courts with the High Court’s original jurisdiction under s 75(iv), and the federal Parliament invested that jurisdiction in state courts (such as the District Court) to determine matters between residents of different states or between a state and a resident of another state, when it enacted s 39(2) of the Judiciary Act 1903 (Cth).
In my opinion, the Commission is not a court of a state. Its characteristics (especially the absence of security of tenure for a member of the Commission) are similar to the characteristics of the Workers Compensation Commission, which was found not to be a court - see Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; Mahal v State of New South Wales (No 5) [2019] NSWWCCPD 42.
In Fletcher International Exports Pty Limited v Lee [2022] NSWPICPD 39 (Lee), Snell DP reviewed the High Court decision in Citta Hobart Pty Limited v Cawthorn [2022] HCA 16 (Cawthorn) regarding the factors that the Commission needed to consider before exercising jurisdiction where an argument had been raised that it would be exercising federal jurisdiction. He found:
‘76. The plurality in Cawthorn, dealt with whether it was necessary that an asserted constitutional defence meet ‘some threshold degree of arguability and, if so, what that threshold was’. Their Honours said:
’35. The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
36. That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction.’
77. The plurality said that ‘examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment’. Their Honours quoted from Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation in which the Full Court of the Federal Court said that ‘[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim’. The plurality said:
‘The respondent, with the support of the Attorney-General of the Commonwealth and some other intervenors, invites this Court to depart from that principled and longstanding approach. The invitation is to put in its place a requirement that, to operate to characterise a justiciable controversy as a matter described in s 76(i) or s 76(ii) of the Constitution, a claim or defence asserted in reliance on a Commonwealth law or in reliance on the Constitution must meet a threshold of arguability consistent with the raising of the claim or defence in a court not amounting to an abuse of the process of that court. The invitation is rejected.’
78. Their Honours continued:
‘Applied by a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii), it would inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution.’
79. The plurality referred to decisions of the Full Court of the Federal Court in which claims or defences were ‘found on analysis and after argument to be ‘foredoomed to fail’ or ‘so clearly untenable that it cannot possibly succeed’ yet the Federal Court was held ‘to retain jurisdiction simply by reason of the claim or defence having been genuinely asserted’.
80. In Cawthorn the plurality noted that there was an unchallenged finding that a constitutional defence had been found to be ‘not colourable’. Their Honours said there could be no suggestion that the constitutional defence was not genuinely raised or is so incoherent as to be insusceptible of judicial determination. The hearing and determination of the defence was ‘beyond the jurisdiction conferred on the Tribunal by the State Act’.’
In these proceedings, in my opinion, there is a non colourable, genuinely raised, and coherent argument that the Commission would be exercising federal jurisdiction. The respondent is a department of the New South Wales government, and the residency status of the applicant is not clear from the current evidence. According to Dr Canaris’ report dated 7 September 2022 as well as Dr Roberts’ report dated 8 August 2022, he was residing in Perth, Western Australia, when he consulted with those doctors. However, his application to resolve a dispute lists his address as Rozelle, New South Wales. As a result, there is an argument that his dispute with the respondent involves a matter between a state and a resident of another state, within s 75(iv) of the Constitution.
As the proceedings in the circumstances were unable to proceed further on 16 January 2023, a discussion ensued between the parties and myself regarding the appropriate order for the Commission to make. I initially considered that the proceedings should be dismissed especially as the applicant had failed to comply with a direction that I had made on 8 December 2022 for the applicant to lodge an application to admit late documents containing evidence as to his residency state as at 8 November 2022 (when the application to resolve a dispute was lodged). However, I now have the benefit of the decision of Wood DP in State of New South Wales v Kanajenahalli [2023] NSWPICPD 1 (Kanajenahalli), which was handed down on 18 January 2023. I therefore intend to stay the proceedings for 12 weeks (which was the order made in Kanajenahalli) but also list the proceedings before me for a preliminary conference after that period. The period will allow the applicant to make his relevant application to the District Court. A determination regarding whether the proceedings should be dismissed can then be considered again at the preliminary conference, depending upon the result of the District Court application.”
The next preliminary conference for the dispute was scheduled on 20 April 2023. Prior to that conference, the Commission received an email from the applicant’s solicitors on 18 April 2023, which attached a copy of District Court orders made by Judicial Registrar Howard on 17 April 2023. These were the orders made:

“· This matter is listed for Directions (Case Managed List) on 3 August 2023 9:30 AM at Sydney
· This matter is referred to the Inactive List
· Vacate Directions (Case Managed List) on 18/04/2023, 9:30 AM at Sydney [001 - Claim]
· (1) Noted that the parties agree that the plaintiff has complied with the requirements of Section 26(3)(a)-(c) of the Personal Injury Commission Act 2020 (NSW).
· (2) Under Section 26(3) of the Personal Injury Commission Act 2020 (NSW) is leave is granted to the plaintiff to bring this compensation matter application before the District Court.
· (3) Under Section 27(4) of the Personal Injury Commission Act 2020 (NSW) the Court orders that the lump sum compensation dispute and as to whether the Plaintiff’s injuries exceed the 15% WPI threshold for psychological injury (and any consequential review rights provided for in the Personal Injury Commission Act 2020 (NSW)) be carried out for the Court by a medical assessor, merit reviewer or panel as determined to be allocated by the Personal Injury Commission.
· (4) Both parties to participate in the WPI dispute in accordance with the usual rules and practices of the Personal Injury Commission.
· (5) A grant of leave to the parties, jointly or severally, to seek the relisting of this Summons on 3 days’ notice for the court to set directions for the adoption (whether with or without variation) or refusal to adopt the decision/determination/certificate of the Personal Injury Commission on the WPI dispute
· (6) Pursuant to Section 27(3) of the Personal Injury Commission Act 2020 (NSW), the District Court exercises the power of the Personal Injury Commission to dismiss the lump sum claim from assessment by the Commission, noting that this will have the effect that the plaintiff will be entitled to commence proceedings in the District Court as against the defendant
· (7) Costs in the cause
· (8) Parties to serve a copy of these orders on the Personal Injury Commission within 28 days.”

At the preliminary conference on 20 April 2023, I continued the stay in these proceedings before the Commission. In this regard, the respondent had confirmed that it had still not conceded liability for the applicant’s psychological injury. In those circumstances, I was unable at that stage to comply with the District Court’s third order on 17 April 2023 due to the effect of Procedural Direction PIC6, made by the President of the Commission pursuant to
s 21 of the 2020 Act. Clause 29 of the Procedural Direction states:
“A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission, before the degree of permanent impairment is assessed”.
Following the preliminary conference on 20 April 2023, I made the following notation in the Commission’s direction of same date:
“The Commission notes that the respondent has not conceded liability for the applicant’s injury. In those circumstances, the Commission is unable to remit the matter for medical assessment. The District Court has made orders under s 26(3) of the Personal Injury Commission Act 2020 (including that the determination of the matter would involve an exercise of federal jurisdiction). The Commission therefore does not have jurisdiction to determine the liability dispute.”
The next preliminary conference for the dispute was scheduled on 22 June 2023. Prior to that conference, the Commission received an email from the applicant’s solicitors on 15 June 2023, which attached a copy of District Court orders made by Judicial Registrar Howard on that date. These were the orders made:
“· (1) Pursuant to S26(5) of the Personal Injuries Commission Act 2020 remit the proceedings to the President of the Personal Injuries Commission to be determined by a Member of the Personal Injury Commission and for the President to make such Orders as he or she considers appropriate to facilitate the determination of the application.”
At the preliminary conference on 22 June 2023, the applicant was represented by Mr Andrew Campbell of counsel, instructed by Mr Bryden. The Commission was advised that the applicant was unable to attend in person due to medical reasons. The respondent was represented by Mr Russell, solicitor.
The parties were advised that considering the second order made by the District Court on
17 April 2023, the opinion of the Commission was that the Court must have been satisfied then that the Commission would be exercising federal jurisdiction if it was to determine the dispute. For the Court to subsequently make the 15 June 2023 orders seemed inconsistent, as to make those orders, the Court would have needed to be satisfied that the Commission did have jurisdiction to determine the dispute. The Commission was informed that the 15 June 2023 orders were made by the parties submitting consent orders (through the Court’s Online Court portal/platform) and without reasons being given.
The parties were then advised that the Commission’s opinion was still in accordance with the notation made in the Commission’s 20 April 2023 direction (see paragraph 14 above), as the respondent had still not conceded liability for the applicant’s psychological injury. The parties were advised that the Commission’s preliminary view was that it should now dismiss the proceedings. The dismissal would be the determination of the remittance constituted by the District Court orders on 15 June 2023.

The Commission granted leave for the parties to lodge written submissions addressing whether the Commission had jurisdiction to determine the dispute before it. The parties were advised that upon receipt of those submissions, the Commission would issue a determination.
The applicant lodged written submissions dated 30 June 2023, and the respondent lodged written submissions dated 6 July 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before me and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the email (and attached District Court orders) sent by the applicant’s solicitors on 18 April 2023, and
(d)    the email (and attached District Court orders) sent by the applicant’s solicitors on 15 June 2023.

Oral evidence

There was no oral evidence before the Commission.

Evidence consideration

Considering the discrete issue which I need to consider (see paragraph 8 above), I do not need to and I do not intend to review the evidence relied upon by each party in detail. I have considered all the evidence before me, but in these reasons, I only intend to review the evidence that I consider to be relevant in order for me to provide an opinion regarding that discrete issue.
I have of course already referred to the District Court orders made on 17 April 2023 (see paragraph 12 above) and 15 June 2023 (see paragraph 15 above).
The other evidence that I find to be relevant relates to the residency status of the applicant.
The ARD alleges the applicant to have been resident in Rozelle, New South Wales, when it was filed. However, there is no actual evidence before me to establish this.
Instead:
(a)    the applicant’s 7 February 2020 signed statement (at page 3 of the ARD) refers to him residing in Rydalmere, New South Wales;
(b)    the respondent’s dispute notices (see paragraphs 4-5 above) do not contain the applicant’s address as they were addressed to his solicitors;
(c)    Dr Canaris’ 7 September 2022 report (at page 25 of the ARD) refers to the doctor interviewing the applicant “by Zoom at his home in Perth”;
(d)    there is a referral from Dr Cai dated 29 November 2021 (at page 40 of the ARD) of the applicant to Adam Ates (psychologist) - the referral notes the addresses for the doctor, the psychologist, and the applicant, as being in Morley, Western Australia;
(e)    there is a referral from Dr Cai dated 16 January 2022 (at page 41 of the ARD) of the applicant to Dr Riaz (a psychiatrist practising in Leederville, Western Australia) – the referral continues to note the address for the applicant as being in Morley, Western Australia;
(f)    there is a report from Dr Singh (the applicant’s treating general practitioner at the time, in Parramatta, New South Wales) dated 29 June 2020 (at page 115 of the ARD) which advises that the applicant “has made a decision to move with family in Perth due his deteriorating mental health” - it seems the report was prepared to allow the applicant to travel to Perth despite the border restrictions that were in place at the time due to the COVID-19 pandemic, and
(g)    Dr Roberts’ 8 August 2022 report (at page 70 of the Reply) advises that the applicant explained to the doctor that he and his partner had moved to Perth to be close to his partner’s family and to “try to get better”.

SUBMISSIONS

As indicated, both parties have provided submissions. As these submissions are in writing and form part of the Commission’s record, I do not intend to summarise them in detail.
I have considered the entirety of the written submissions provided, and thank the parties for their guidance in this regard.
In the applicant’s submissions, the “perceived inconsistency” (see paragraph 17 above) between the orders of the District Court on 17 April 2023 and 15 June 2023 is noted, and the applicant advises:
“In order to clarify the Court’s position the Applicant has approached the Court for the matter to be relisted in the District Court. It would be appropriate to extend the stay in the current proceedings until the issue of jurisdiction had been clarified by the District Court. It is anticipated that this is a matter that will be judicially determined by the Court and the matter will either return to the Commission or the dispute will be finally determined by the Court.”
The applicant submits that the Commission does not have the power to determine jurisdiction, and it would be inappropriate for these proceedings to be dismissed until “the District Court has clarified its position to any issues of jurisdiction”.
In the respondent’s submissions, it is submitted that the Commission does not have jurisdiction to determine the dispute, but it is also argued that it would be inappropriate for the Commission to dismiss the proceedings “until the District Court proceedings have been determined”.

FINDINGS AND REASONS

I posit an opinion that the Commission would be exercising federal jurisdiction if it was to determine the dispute in these proceedings. I therefore do not intend to determine the dispute.
The evidence (see paragraph 27 above) points to the applicant being a Western Australian resident from mid 2020. The ARD states his address to be in New South Wales, but no evidence has been led to support this assertion. This is despite the Commission affording to the applicant the opportunity to lead such evidence - see the second order in the Commission’s 8 December 2022 direction (see paragraph 10 above).
In my opinion, the dispute in these proceedings is therefore between a resident of Western Australia (the applicant) and a state (the respondent being the secretary of a New South Wales government department).
Section 25 of the 2020 Act defines “federal jurisdiction” as “jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution”. For the Commission to be exercising federal jurisdiction, in accordance with s 75 (iv) of the Constitution, the dispute would need to be considered to be a matter between states, or between residents of different states, or between a state and a resident of another state. The High Court is given original jurisdiction in those matters. Section 77 of the Constitution then allows the federal Parliament to invest state courts with the High Court’s original jurisdiction under s 75 (iv), and the federal Parliament invested that jurisdiction in state courts (such as the District Court) to determine matters between residents of different states or between a state and a resident of another state, when it enacted s 39(2) of the Judiciary Act 1903 (Cth).
However, in my opinion, the Commission is not a court of a state. I refer to and agree with the reasoning of Principal Member Harris in Ritson v State of New South Wales [2021] NSWPIC 409:
“13. The Workers Compensation Commission is not a court: Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; Mahal v State of New South Wales (No 5) [2019] NSWWCCPD 42.
14. 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.
15. As was accepted by the Chief Justice in Attorney General for New South Wales vGatsby [2018] NSWCA 254whenreferring to the observations of Kenny J in Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85, 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.
16. 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.”
Therefore, in my opinion, the Commission does not have jurisdiction to determine a dispute between a resident of Western Australia (the applicant) and the State of New South Wales (the respondent being the secretary of a New South Wales government department). It would be exercising federal jurisdiction as defined in s 25 of the 2020 Act.
Section 26 of the 2020 Act provides as follows:
“(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.”
In the reasons given (see paragraph 11 above) for the certificate of determination issued by the Commission in these proceedings on 27 January 2023, I decided not to then dismiss the proceedings in order to give the applicant the opportunity to approach the District Court with a “non-colourable, genuinely raised, and coherent argument” that he was a New South Wales resident when the ARD was lodged, in accordance with Lee and Cawthorn.
Since 27 January 2023, the applicant has approached the District Court and obtained orders from it pursuant to s 26(3) of the 2020 Act. He has also not led any further evidence regarding his residency status.
The District Court has therefore accepted that he has made out the three grounds referred to in s 26(3) of the 2020 Act, which inevitably involves acceptance by the Court that a determination of the dispute in the proceedings by the Commission would involve an exercise of federal jurisdiction.
In those circumstances, I do not see any reason for these proceedings to remain before the Commission. In my opinion, not only does the Commission lack jurisdiction in the proceedings but the District Court has accepted that jurisdiction and allowed the applicant’s dispute (his “compensation matter application”) to be made before it.
I reject the submissions of both parties in this regard as to it being inappropriate for me to dismiss these proceedings. Neither party provided sufficient reasons for their submissions in circumstances where it is unclear as to what potential further role the Commission could have in the proceedings, now that the District Court has accepted that the proceedings would involve an exercise of federal jurisdiction and allowed the proceedings to be made before it.
It may be that the District Court will eventually order a Medical Assessment pursuant to
s 27(4) of the 2020 Act. Such an assessment would be carried out for the Court by a Medical Assessor, who would be a Medical Assessor appointed by the President of the Commission in accordance with the 2020 Act. In such circumstances, I will grant leave for the parties to approach the Commission with regard to the dismissal order in these proceedings that I am about to make.
Section 54 of the 2020 Act reads as follows:
“The Commission may at any stage dismiss proceedings before it--
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
In my opinion, these proceedings are now misconceived and lacking in substance. The District Court has accepted that a determination of the dispute in the proceedings involves an exercise of federal jurisdiction, and therefore accepted jurisdiction itself. There is in my opinion no remedy available to the applicant from the Commission except potentially a Medical Assessment referral. It is in my opinion misconceived that the Commission has any further role in the applicant’s dispute (other than potentially that referral) which is the subject of these proceedings. There is in my opinion no substance to the Commission’s ability to deal with the dispute which is the subject of these proceedings.
It remains for me to deal with the remittance made by the District Court to the Commission in its 15 June 2023 orders. As previously noted and advised to the parties (see paragraph 17 above), those orders seem inconsistent with the initial orders made by the Court on
17 April 2023. In the initial orders, the Court granted leave (pursuant to s 26(3) of the 2020 Act) for the applicant to make his “compensation matter application” to the Court on the basis that inter alia the determination of the dispute by the Commission would involve the exercise of federal jurisdiction. However, in the 15 June 2023 orders, the Court remits the “compensation matter application” back to the Commission for determination in circumstances where s 26(5) of the 2020 Act only allows such a remittance if the Court is satisfied that the Commission has jurisdiction to determine the dispute, which the Court has already determined that the Commission does not have, when it determined that the Commission would be exercising federal jurisdiction if it determined the dispute.
I cannot explain this inconsistency. Perhaps it is due to the 15 June 2023 orders being made as consent orders proposed by the parties. In any case, my opinion is that I can only deal with the terms of the remittance to the Commission made by the District Court’s 15 June 2023 orders by dismissing these proceedings as a determination of the proceedings, without determining the dispute that is the subject of the proceedings.
I should note that the applicant’s dispute is significantly distinguishable from the dispute in Lee (where the District Court also made a remittance of those proceedings back to the Commission), as in Lee the Court determined that the dispute did not involve the exercise of federal jurisdiction and the Commission therefore had jurisdiction to determine it.

SUMMARY

In summary, my opinion is that the Commission is not able to determine the dispute which is the subject of these proceedings because it would be exercising federal jurisdiction in doing so, as described in s 75 of the Constitution.
My opinion in this regard is reinforced by the orders made by the District Court on 17 April 2023, which granted leave for the dispute to be made to the Court as its determination by the Commission would involve an exercise of federal jurisdiction.
As a result, I find these proceedings to be misconceived and lacking in substance, and I dismiss them pursuant to s 54 of the 2020 Act. So far as it is necessary, the dismissal should be considered to be the determination of the proceedings in accordance with the remittance made by the District Court’s 15 June 2023 orders.
Liberty will otherwise be granted to the parties to approach the Commission regarding the dismissal of the proceedings should the District Court order a Medical Assessment of the applicant to be carried out by a Medical Assessor appointed by the President, in accordance with s 27(4)(a) of the Act.

[2023] NSWPIC 373

26 July 2023