Secretary, Ministry of Health v Dawson - [2019] NSWWCCPD 30

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30
APPELLANT:	Secretary, Ministry of Health
RESPONDENT:	Karen Dawson
INSURER:	QBE Insurance (Australia) Ltd as agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-5300/18
ARBITRATOR:	Mr P Young
DATE OF ARBITRATOR’S DECISION:	20 December 2018 and 9 January 2019
DATE OF APPEAL DECISION:	2 July 2019
SUBJECT MATTER OF DECISION:	Deemed worker – Clause 16 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	Bale Boshev Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s identity is amended to Secretary, Ministry of Health. 2. The Arbitrator’s decisions dated 20 December 2018 and 9 January 2019 are revoked. 3. The matter is remitted for re-determination pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998, by a different Arbitrator, consistent with these reasons.

INTRODUCTION AND FACTUAL BACKGROUND

Following lodgment of the appeal in this matter, the Commission queried the identity of the appellant, pleaded as the “Health Administration Corporation” (HAC). The parties sought, by consent, to amend the appellant’s identity to “Secretary, Ministry of Health” (the appellant).[1] The appellant’s identity is amended accordingly.
[1] See Government Sector Employment Act 2013, s 26(1) and Pt 1 of Sch 1, Health Administration Act 1982, s 9, Health Services Act 1997, s 116, Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102, 13 DDCR 111, [11].
The factual background is largely uncontroversial. Karen Dawson (Ms Dawson/the respondent) was an enrolled nurse employed at John Hunter Hospital. Additionally, she was a member of St John Ambulance Australia (NSW) (St John). The Hamilton Division of St John (of which Ms Dawson was a member) was to provide first aid services to the Newcastle Jockey Club (the Jockey Club), for Cup Day and Ladies Day over 18 to 19 September 2015, at the Broadmeadow Racecourse. On 18 September 2015, Ms Dawson arrived at the racecourse, and in concert with Grahame Stoddart (a divisional superintendent from St John) unloaded some equipment from her car and parked. She and Mr Stoddart commenced putting up a marquee, from which the first aid post was to be conducted. Two employees of the Jockey Club assisted them. Whilst doing this, wind caught the marquee, which wrapped itself around Ms Dawson’s legs and she fell, suffering a fracture dislocation of the right ankle.[2] It is common ground that Ms Dawson was not paid for her relevant activities with St John.
[2] Ms Dawson’s statement dated 16 December 2016, Application to Resolve a Dispute (ARD), pp 278–279.
Ms Dawson was transported by ambulance to John Hunter Hospital. She underwent open reduction with internal fixation of the fracture,[3] and was an inpatient for five nights. She underwent further surgery on about 29 October 2015 to remove a post-fracture loose body from the right ankle.[4] Ms Dawson was off work until 9 March 2016, when she resumed her employment as an enrolled nurse.[5] On 9 May 2016, Ms Dawson’s solicitors forwarded a claim form to QBE, the workers compensation insurer (the insurer) of the appellant.[6] The insurer advised that the claim was “reasonably excused”, as Ms Dawson was performing “volunteer services” and was “not a paid employee of St John Hospital” (sic).[7] The insurer issued a s 74 notice dated 30 August 2016, declining liability.[8] It denied that Ms Dawson was a ‘worker’ within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and denied that voluntary ambulance workers with St John were covered by Sch 1 of the 1998 Act.
[3] Dr Dunkley’s report dated 19 September 2015, ARD, p 80.
[4] Dr Nicholson’s report dated 29 October 2015, ARD, p 72.
[5] Ms Dawson’s statement, [17], ARD, p 279.
[6] ARD, pp 239–240.
[7] ARD, pp 241–243.
[8] ARD, pp 252–258.
Ms Dawson was assessed at her solicitors’ request by Dr Best, orthopaedic surgeon, who reported on 25 July 2017.[9] He assessed that Ms Dawson suffered 13 per cent whole person impairment as a result of the injury. A claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made on this basis on 21 September 2017.[10] The insurer issued a s 74 notice declining liability dated 4 October 2017.[11] It denied that Ms Dawson was a ‘worker’, and denied that she was employed by St John. It stated that she was a “volunteer”.
[9] ARD, pp 1–7.
[10] ARD, p 285.
[11] ARD, pp 286–290.

SOME RELEVANT STATUTORY PROVISIONS

There is no suggestion that Ms Dawson was a ‘worker’ in the employ of either St John or the appellant. The case turns on whether she was a deemed worker pursuant to cl 16 of Sch 1 of the 1998 Act, which provides:
“16    Voluntary ambulance workers
(cf former Sch 1 cl 16)
(1)    A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.
(2)    For the purposes of assessing the compensation payable to a person to whom this clause applies, the ‘average weekly earnings’ of the person are:
(a)if the person was working under a contract of service immediately before engaging in the ambulance work—to be computed according to the earnings of the person under that contract of employment, or
(b)if the person was not working under a contract of service immediately before engaging in the ambulance work—to be such amount as the Commission considers to be reasonable in the circumstances.
(3)    In this clause, ambulance work means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.”
Section 3 of the Health Services Act 1997 (Health Services Act) provides:
“Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of the Act have the meanings set out in the Dictionary.”
The term ‘ambulance services’ is defined in the Dictionary as follows:
“ambulance services means services relating to the work of rendering first aid to, and the transport of, sick and injured persons.”
Section 67B of the Health Services Act provides:
“67B Provision etc of ambulance services
(1)    The Health Secretary has, on behalf of the Crown, the following functions:
(a)to provide, conduct, operate and maintain ambulance services,
(b)to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services,
(c)in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured,
(d)to adopt and implement all necessary measures (including systems of planning, management and quality control) as will best ensure the efficient and economic operation and use of resources in the provision of ambulance services,
(e)to consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services,
(f)to co-ordinate and plan the future development of ambulance services, and towards that end, to support, encourage and facilitate the organisation of community involvement in the planning of those services,
(g)to set objectives and determine priorities in relation to the provision of ambulance services and to monitor whether those objectives are achieved,
(h)to achieve and maintain adequate standards of ambulance services,
(i)to make available to the public reports, information and advice concerning the operation of ambulance services,
(j)to provide assistance to, or co-operate with, any person or organisation in connection with the depiction of ambulance services in the news or entertainment media,
(k)to exercise such other functions in relation to ambulance services as may be conferred or imposed on the Health Secretary by the regulations.
(2)     The exercise of functions under this section in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989.
(3)     The Health Secretary may delegate the exercise of any function of the Health Secretary under this section (other than this power of delegation) to an appointed body.”
Section 67E of the Health Services Act provides:
“67E Unauthorised provision of ambulance transport
(1)    A person must not:
(a)directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or
(b)conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,
without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.
Maximum penalty: 50 penalty units.
(2)    The Health Secretary may revoke any consent given, or revoke or vary any condition imposed, under this section.
(3)    This section does not apply to:
(a)the St John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this section commences, or
(b)the Royal Flying Doctor Service of Australia (NSW Section), or
(c)the mines rescue company, within the meaning of the Coal Industry Act 2001, (or a member, director or employee of that company) in the exercise of mines rescue functions under Division 3 of Part 3, or Part 4, of that Act, or
(d)a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, or
(e)any person (or class of persons) prescribed by the regulations.”

THE ARBITRAL PROCEEDINGS AND DECISION

These proceedings involved a lump sum claim pursuant to s 66 of the 1987 Act based on Dr Best’s assessment, and medical expenses pursuant to s 60 of the 1987 Act. A claim for weekly payments was ultimately discontinued without objection. The matter was listed for arbitration hearing on 6 December 2018. Mr Hart appeared for Ms Dawson and Mr Doak appeared for the appellant. There were no applications to call oral evidence or to cross-examine. Mr Hart relied on his written submissions dated 4 December 2018. Mr Doak made oral submissions, and Mr Hart made submissions in reply. The Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 20 December 2018, and an Amended Certificate of Determination dated 9 January 2019.[12] The second of these included an additional formal order (which was not controversial) discontinuing the claim for weekly payments. The Certificates were accompanied by five pages of reasons.
[12] Dawson v Health Administration Corporation [2019] NSWWCC 18 (reasons).
The Arbitrator dealt initially with the definition of ‘ambulance work’ in subcl (3) of cl 16. He said that although Ms Dawson was not rendering first aid when she suffered injury, erection of the marquee was a necessary preparation for the provision of first aid, and fell within the meaning of being “in connection” with the rendering of first aid. Ms Dawson was involved in ‘ambulance work’ at the time she suffered injury.[13]
[13] Reasons, [17]–[19].
The Arbitrator then asked whether Ms Dawson was engaged in such work “voluntarily and without obligation”. The Arbitrator said that without doubt Ms Dawson “was a volunteer and performed the work voluntarily”. As she was not paid, there was no legal obligation to perform the work. It was a matter separate from her paid employment as a nurse. He concluded Ms Dawson was under no legal obligation to perform the ‘ambulance work’. It was performed “voluntarily and without obligation”.[14]
[14] Reasons, [21].
This left the issue of whether Ms Dawson engaged in the “ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation”. The Arbitrator referred to a Government Gazette, submitted on by Ms Dawson’s counsel, which indicated that “St Johns was paid by the HAC for certain work and that this evidenced a relationship between St Johns and [the HAC]”. The Arbitrator said:
“I am comfortably satisfied, because of the Gazette entries, that there was a general financial relationship between St Johns and [the HAC] and that accordingly in general terms at least, the HAC consented to the presence and involvement of St Johns and its participation in providing first aid and other services to the general public. Were the situation otherwise, St Johns would be supplying first aid services to the general public without the consent of the HAC.”[15]
[15] Reasons, [22].
The Arbitrator continued, saying that on the balance of probabilities “co-operation existed between St Johns and the HAC and that [Ms Dawson’s] work fell within the umbrella of that general co-operation.” In this regard, the Arbitrator referred to evidence from the appellant that for each patient examined, a pro forma document was completed setting out complaints, treatment and advice, and “this document was provided to officers within the HAC and became part of the HAC’s records”. The Arbitrator described this as “powerful evidence of co-operation between St Johns and the HAC”. The Arbitrator described cl 16 as a “beneficial inclusion” in the legislation.[16] The Arbitrator concluded that cl 16 had application.
[16] Reasons, [23].

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

GROUNDS OF APPEAL

The findings summarised at [11] to [12] above are in my view correct, and are not challenged on this appeal. It follows that the application of cl 16 depends on Ms Dawson satisfying at least one of three propositions:
(a)    that she engaged in the work with the consent of the HAC;
(b)    that she engaged in the work under the authority and supervision of the HAC, or
(c)    that she engaged in the work in co-operation with the HAC.
The Arbitrator found in Ms Dawson’s favour on the propositions described at (a) and (c) of the preceding paragraph. The appeal challenges those findings, referred to at [13] to [14] above. The grounds raised are:
(a)    The Arbitrator erred, in his reasons at [22], in relying on the Gazette entries as evidencing a “relationship” between St John and HAC. The Gazette entries were not relevant to the issue. (Ground No. 1)
(b)    The Arbitrator erred, in his reasons at [23], in failing to consider what was required to establish ‘co-operation’ between Ms Dawson and the HAC, which went to the jurisdiction of the Commission to make an award. (Ground No. 2)
(c)    The Arbitrator erred, in his reasons at [23], in finding that the pro forma document was evidence sufficient to establish ‘co-operation’, where the appellant’s unchallenged evidence was that it did not require the document, and in any event the form did not establish ‘co-operation’. (Ground No. 3)

GROUND NO. 1

Appellant’s Submissions

The reference to the Gazette is to NSW Government Gazette of 12 June 2015[17] (the Gazette). That document contains the Workers Compensation (Ambulance Service Fees) Order 2015 (Ambulance Order), the Workers Compensation (Private Hospital Rates) Order 2015 and the Workers Compensation (Public Hospital Rates) Order 2015. The appellant submits that the Ambulance Order provides for fees payable for ambulance services to various nominated bodies, one of which is St John. The explanatory note provides that the rates are “applicable for Ambulance Services to an injured worker for which an employer is liable”. The Order provides for the payment of prescribed fees by an employer to various bodies including St John. The appellant submits it does not relate to payments by HAC, but rather to payments by employers to, inter alia, St John. It does not relate to first aid treatment, but to conveyance of an injured worker to or from a medical practitioner or a hospital (based on the definition of ‘Ambulance Services’ in the Order, which is different to that in the clause). The appellant submits the Gazette does not provide evidence of a relationship between St John and the HAC of a general financial nature.[18] It does not support a conclusion that the “HAC consented to the presence and involvement of St Johns and its participation in providing first aid and other services to the general public”.[19]
[17] ARD, pp 451–462.
[18] Appellant’s submissions, [17]–[23].
[19] Appellant’s submissions, [24].
The appellant refers to s 67E of the Health Services Act, on which Ms Dawson relied at first instance. It submits s 67E deals with the provision of transport, which was not the type of service supplied by St John in the current matter. It submits the Arbitrator erred in using the Gazette to in any way support a finding, that the activities of Ms Dawson were performed with the consent, under the authority and supervision of, or in co-operation with, the HAC.[20]
[20] Appellant’s submissions, [25]–[29].

Ms Dawson’s submissions

Ms Dawson submits the appellant’s submission that the Gazette “did not provide corroborative evidence of ‘co-operation’ between the worker and the Health Administration Corporation” is “not maintainable”. This submission is not further expanded on. She submits that the appellant’s submission, that there was “no evidence of consent from the Health Secretary,[21] is “simply wrong”. She refers to s 67E of the Health Services Act and the Gazette, which were reproduced in the ARD. She submits that this ground “must fail”.[22]
[21] Appellant’s submissions, [27].
[22] Ms Dawson’s submissions, [3]–[5].

Appellant’s submissions in reply

The appellant submits Ms Dawson made no attempt to argue against Ground No. 1, and this should be taken as tacit acceptance that the Arbitrator was wrong. The appellant submits s 67E of the Health Services Act and the Gazette do not constitute evidence of consent by the Health Secretary.[23]
[23] Appellant’s submissions in reply, [1]–[2].

Consideration

The proposition to which this ground relates is the Arbitrator’s finding that Ms Dawson engaged in the work with the consent of the HAC (see the reasons at [22]). The reasoning is briefly summarised at [13] above. The Gazette contains three Orders made pursuant to the 1987 Act. Only the first of these, the Ambulance Order, has any specific reference or relevance to St John. St John is one of a number of entities set out in cl 5 of the Order, to which payment of ambulance fees set out in Sch A of the Order may be payable.

The initial step in the Arbitrator’s reasoning was that the Gazette evidenced a financial relationship in which St John “was paid by the HAC for certain work”. He reasoned that, “because of the Gazette entries”, there was a “general financial relationship” between St John and the HAC. He reasoned from this that “in general terms at least, the HAC consented to the presence and involvement of St Johns and its participation in providing first aid and other services to the general public”.
The initial step in this reasoning process was flawed. The appellant refers to the Explanatory Note to the Order, which provides:
“Explanatory Note
Provision of Ambulance Services in New South Wales is restricted to the Ambulance Service of NSW and the entities listed under section 67E(3) of the Health Services Act 1997. This order prescribes the rates applicable for Ambulance Services to an injured worker for which an employer is liable being the fees prescribed under section 67D of the Health Services Act 1997 applicable from 1 July 2015.” (bold emphasis added)
Clause 8 of the Order provides that the Explanatory Note “does not form part of the Order”. However, it is clear from cl 4 of the Order that it controls fees payable by employers pursuant to the 1987 Act:
“4 Fees for ambulance services
The fee amounts for which an employer is liable under the Act for provision of ambulance or paramedic services to an injured worker are listed in Schedule A, being the fees prescribed under section 67D of the Health Services Act 1997.” (emphasis added)
The Gazette does not provide for payment by HAC to St John for certain work. It does not evidence a financial relationship between St John and HAC. The reasoning that led the Arbitrator to his finding, that Ms Dawson engaged in any ambulance work with the consent of the HAC, was based on a false premise and was erroneous.
The appellant additionally relies on the fact that the definition of ‘Ambulance Services’ in cl 17 of the Order is restricted to “the conveyance of an injured worker to or from a medical practitioner or hospital”. It differs from the definition of ‘ambulance work’ in cl 16 (and also in the Dictionary to the Health Services Act) in that it does not extend to the rendering of first aid. The appellant submits that “the Gazette could only go” to the conveyance.[24] It is unnecessary to decide this specific point, as the Arbitrator’s finding on consent has been found to be in error in any event, for reasons given above.
[24] Appellant’s submissions, [23]–[28].
Ground No. 1 is upheld.

GROUNDS NOS. 2 AND 3

These grounds challenge the Arbitrator’s finding that Ms Dawson engaged in the relevant work “in co-operation” with the HAC. The attack is two pronged. The appellant submits the Arbitrator erred in failing to address the meaning of ‘co-operation’ in clause 16. Secondly, it submits the evidence on which the Arbitrator relied to make a finding of ‘co-operation’ did not support the finding. It is convenient to deal with the grounds together.

The appellant’s submissions

Dealing with the construction point, the appellant submits the term ‘co-operation’ is not defined in the workers compensation legislation or in the Interpretation Act 1987. The appellant states it could not identify any case in point. It submits the Arbitrator did not refer to other decisions dealing with the meaning of the word,[25] or the “usual and ordinary meaning of the word”. The term was not read in the context of the Workers Compensation Acts, in compliance with the principles in Project Blue Sky v Australian Broadcasting Authority.[26] The appellant described this as a constructive failure to exercise jurisdiction, referring to Tudor Capital Australia Pty Limited v Christensen.[27]
[25] Reference is made to Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam case) and Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 (Barker).
[26] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (Project Blue Sky).
[27] [2017] NSWCA 260 (Christensen).
Dealing with the merits of the Arbitrator’s finding on this issue, the appellant refers to the Arbitrator’s reliance on the evidence of a pro forma document, that was filled out by St John volunteers when a patient was treated, and was then provided to HAC and became part of the HAC records.[28] The appellant refers to Ms Dawson’s statements dated 15 June 2018 and 26 September 2018,[29] and to the statement of Ms Murphy dated 31 October 2018,[30] on which the appellant relies.
[28] Reasons, [23].
[29] ARD, p 376 and pp 399–400 respectively.
[30] Reply, pp 1–5.
The appellant submits that Ms Murphy’s evidence was unchallenged. Ms Murphy’s evidence was that the document was part of the internal procedures of St John, and was not something that NSW Health required.[31] The appellant submits there was “simply no requirement, let alone legal requirement, imposed by the NSW Ambulance Service or the HAC on the St John ambulance member to provide the form”. It submits “the form was not cooperation in any relevant legal sense i.e. mutual and enforceable obligations”.[32] The appellant then submits that, even if the form was required by HAC, this would not constitute ‘co-operation’ within the ordinary meaning of the word. If there was such a requirement, then the St John member either complied with it, or did not and breached it. Either way this would not ground a finding that co-operation exists.[33]
[31] Appellant’s submissions, [42]–[48].
[32] Appellant’s submissions, [48]–[49].
[33] Appellant’s submissions, [50].
The appellant submits there was either no evidentiary basis for the finding of co-operation, or if there was any evidence, it was insufficient to ground the finding.[34]
[34] Appellant’s submissions, [51].

Ms Dawson’s submissions

Ms Dawson submits that ‘co-operation’ was a “critical matter”, and that the Arbitrator grappled with “construction of the legislation, its intent and meaning” in the reasons, at [16] to [21]. A finding against Ms Dawson “would have been repugnant to the clear intent of the legislature”. She submits the submissions at [31] to [39] “cannot be sustained”. She submits the two decisions relied on by the appellant (Tasmanian Dam case and Barker, see footnote [25]) were not brought to the Arbitrator’s attention, and are irrelevant to the appeal.[35]
[35] Ms Dawson’s submissions, [6]–[8].
Ms Dawson submits there was “clear and unambiguous evidence (unchallenged) by the worker, which included a documentary trail to evidence of ‘co-operation’”. Ms Dawson concedes the Arbitrator did not specifically refer to Ms Murphy’s evidence in the reasons at [16] to [23]. She submits that Ms Murphy was “Manager – Insurance Risk” for the appellant. She did not have knowledge of the work of St John personnel. Her evidence had no relevant weight and would not have assisted. The Arbitrator did not err in failing to refer specifically to it.[36]
[36] Ms Dawson’s submissions, [9], [11]–[12].
Ms Dawson submits the appellant’s submissions at [43] raise jurisdiction, which was not raised in the proceedings. Ms Dawson attaches, to her submissions on this appeal, a copy of the submissions on which she relied before the Arbitrator. This is consistent with her ongoing reliance on the submissions which she made at first instance.

Appellant’s submissions in reply

The appellant submits that Ms Dawson’s submissions dealing with Ground No. 2 are a series of assertions unaccompanied by reasoning. The appellant refers to Ms Dawson’s reference to the High Court authorities cited as “difficult to follow”. They were examples of authorities where the meaning of ‘co-operation’ was considered. That they (or any other authorities) were not dealt with by the Arbitrator “is the appellant’s point”. Although they were not brought to the attention of the Arbitrator, if an error was made, it requires intervention. The appellant submits that the Arbitrator considered jurisdiction, although this was “not expressly stated or, with respect, properly considered”.[37]
[37] Appellant’s submissions in reply, [3]–[10].
The appellant submits that the import of Ms Murphy’s evidence was that there was “no co-operation” (emphasis in original). This was critical to the issue, and needed to be accepted, or if rejected reasons needed to be given. This was not done.[38]
[38] Appellant’s submissions in reply, [11]–[12].

Consideration

The appellant’s initial challenge is to an alleged failure by the Arbitrator to determine “what is required to establish ‘co-operation’ between the appellant and the respondent for the purpose of clause 16”.
What was required of the Arbitrator, in construing the clause, depended on the circumstances of the case and the issues raised. He was not under an obligation to construe the provision in some way remote from the issues and the factual context. He was not necessarily bound by the submissions of the parties.[39]
[39] Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166, [243].
The parties have not relied on any authority dealing with cl 16 of Sch 1. The appellant’s submissions on this appeal state that it has not been able to identify any case in point. I similarly have been unable to locate any decision dealing with cl 16, or the equivalent earlier provisions found at cl 16 of Sch 1 of the 1987 Act, or before that s 6(14)(d) of the Workers Compensation Act 1926. The appellant submits, correctly, that the term ‘co-operation’ is not defined in the 1998 Act or in the Interpretation Act.[40]
[40] Appellant’s submissions, [35] to [38].
The written submissions before the Arbitrator, on Ms Dawson’s behalf, dealt briefly with construction of cl 16. Her counsel described the clause as an “inclusive, not exclusive, provision. It does not proscribe or limit entitlements.” He submitted that the function and purpose need to be read in context (referring to s 6 of the Interpretation Act). He referred to the “definitions” in s 3 of the 1998 Act, and said a purpose of the legislation was to “compensate, subject to judicial satisfaction of the entitling evidentiary facts”.
At the arbitration hearing the appellant acknowledged, in my view correctly, that cl 16 was a beneficial provision, although said that this did not permit it to be interpreted “in a light which tortures the wording”.[41] The appellant did not, before the Arbitrator, direct submissions to any specific construction issue surrounding the term ‘co-operation’.
[41] T10.33–11.1.
The basis on which the Arbitrator dealt with the issue of ‘co-operation’ was essentially found at [23] of his reasons. The Arbitrator said that “co-operation existed between St Johns and the HAC and [Ms Dawson’s] work fell within the umbrella of that general cooperation”. The evidence on which the Arbitrator apparently relied in making this finding was that of Ms Dawson, that a pro forma document, setting out a patient’s complaints, treatment and advice was completed by St John volunteers such as Ms Dawson, and “this document was provided to officers within the HAC and became part of the HAC’s records”. The Arbitrator said “[t]hat arrangement in my view is powerful evidence of co-operation between St Johns and the HAC”.

Ms Dawson’s case on ‘co-operation’

In her statement dated 15 June 2018,[42] Ms Dawson said inter alia:
“2. In my volunteer work, I am working in co-operation with the health agencies in my area, such as NSW Ambulance, hospitals and other emergency workers employed in the public health sector (HAC).
3. If there is any injury, or incident, we complete a Confidential Patient Record (CPR), the second copy of which (pink) is given to the attending responding officers of the Health network, to take with the patient to emergency department. I attach a copy.”
[42] ARD, p 376.
A copy of the Confidential Patient Record, in blank, is attached to Ms Dawson’s statement dated 15 June 2018.[43] It contains spaces to insert details of a patient’s attendance on St John. These include, inter alia, the patient’s details, history, past medical history, various observations (for example breathing, pulse, consciousness level, pain score and blood pressure), and treatment. There is a space to record the patient’s discharge, with references to “How?”, followed by boxes marked “Hospital”, “GP”, “Home” and “Return to event”. At the top of the form a direction reads “Top copy to State/Territory Office Pink copy to Patient”.
[43] ARD, p 377.
There is a further blank copy of the Confidential Patient Record under cover of a letter from Ms Dawson’s solicitors to the appellant’s solicitors dated 20 September 2018.[44] This version is marked “Version 3/2016” (that is, after Ms Dawson’s accident). Although slightly obscured by the copying process, that document again appears to provide for provision of the Top Copy to “S/T Office” and the Pink copy to the “patient”. It is in substantially the same terms as the version referred to in the preceding paragraph, except the options relating to discharge have added, as an option, “Ambulance”. This copy of the document includes the “Guidelines for completing the Patient Record”. These include advice such as:
“Head Injury Advice
All patients with a history of loss of consciousness or altered conscious state must be referred to a health professional or hospital.”
[44] ARD, pp 395–398.
The document includes advice on “Recognising a deteriorating patient”, followed by:
“Members who recognise a deteriorating patient in their care should:
·        initiate clinical care in accordance with their clinical accreditation
·        escalate care of the patient immediately to appropriate health professionals (usually the State/Territory ambulance service) unless a St John Health Professional, Health Emergency Response Team (HERT) or Medical Assistance Team (MAT) is onsite and available to assist
·        repeat observations at regular intervals until help arrives or the patient’s condition improves
Patients with ‘at risk’ criteria should not return to the event or be discharged home without clinical review. If onsite clinical review is unavailable then refer the patient to appropriate care by the most appropriate means available.”
This blank copy of the Confidential Patient Record also includes a privacy statement. It provides inter alia:
“We may disclose information about you:
·        to liaise with medical and other health professionals involved in your care or treatment
·        in an emergency where your life is at risk and you cannot consent
·        for St John administrative requirements and for providing statistical information to event organisers (de-identified) to address health and safety matters
·        for purposes permitted or required by law.”
Ms Dawson, in her statement dated 26 September 2018,[45] said that she used the CPR form “as directed by St John as part of [her] usual volunteer work”. She said she co-operated with ambulance services, “the pink copy of the Patient Record being provided to those services on transfer of the patient”.[46] Ms Dawson stated that a volunteer such as herself would stay with a patient until the patient was transferred away. She said directions were received from HAC, HNELHD [Hunter New England Local Health District] and NSW Ambulance employees during transfer.
[45] ARD, pp 399–400.
[46] Ms Dawson statement dated 26 September 2018, [5]–[6], ARD 399–400.
There are aspects of Ms Dawson’s statement dated 26 September 2018 that more resemble a submission than a conventional statement by a lay witness. It periodically uses the words “co-operate” and “co-operation”, and makes reference to the “statutory functions of the Minister in operating the HAC”. In discussion about the weight to be given to passages of Ms Dawson’s statements, at the arbitration hearing, the Arbitrator specifically recognised that there was an issue regarding “what’s meant by the word ‘co-operation’”.[47] Objection was taken to aspects of Ms Dawson’s statements that contained conclusions about the existence of co-operation. The Arbitrator indicated he would not give any weight to expressions by Ms Dawson in her statements that she worked in ‘co-operation’.[48]
[47] Transcript of evidence 6 December 2018 (T), T 4.28–34.
[48] T 3.15–6.31.
Before the Arbitrator, Ms Dawson’s submissions dealt with the “relationship between the Health Administration Corp (‘HAC’) and the servants of the Hunter New England Local Health District (HNELHD) and NSW Ambulance”. She referred to multiple sections of the Health Services Act which were attached to the ARD. A written submission on her behalf was made in the following terms:
“The legal facts are clear: the operation of the provisions set up the relationship of co-operation by the Health Services Act 1982 (‘HAS’), creating the HAC, the local health districts and defines ‘health service’. This was continued in the Health Services Act 1997, but significantly, expanding the objects (ARD 420) to include reference to affiliated and non-government organisations (4(c)).
Section 115 of the HSA 1997 (ARD 425), does not limit the operation of the [1998 Act].
The link to NSW Ambulance, as part of the HAC is through the provisions of Gazetted payments for St John’s Ambulance transport services to the HAC (ARD 424; 451).”
Ms Dawson’s counsel, in his submissions in reply before the Arbitrator, submitted that ‘ambulance work’ means work in or in connection with the rendering of first aid, referring to subcl (3) of cl 16 of Sch 1 of the 1998 Act.[49]
[49] T 15.16–20.

The appellant’s case on ‘co-operation’

The appellant relied on a statement of Michelle Murphy dated 31 October 2018.[50] Her role with the NSW Ministry of Health was Manager – Insurance and Risk. She said the HAC, to her knowledge, had no relationship, formal or informal, with St John. St John’s workers and volunteers were not included in the HAC’s workers compensation policy. St John was not identified in the HAC Annual Report as a NSW Health Organisation or part of NSW Ambulance. It did not receive financial support or grants from NSW Health. The HAC did not exercise control over it. She was unaware of any affiliation between St John and NSW Ambulance. The HAC did not provide indemnity or approval for St John to attend events. If Ms Dawson worked as a volunteer with St John, this was at the direction of St John, not with the consent, supervision or authority of the HAC.[51]
[50] Reply, pp 1–5.
[51] Ms Murphy’s statement, [8]–[17].
Ms Murphy said the provision of a pink copy of the Confidential Patient Record, on transferring a patient, was an internal procedure of St John, and was not required by NSW Health. NSW Ambulance have their own paperwork and patient records, which are used when a patient is treated or transferred to hospital. She said the financial statements of NSW Health did not indicate reimbursement or payment to St John.[52]
[52] Ms Murphy’s statement, [18]–[20].

Dealing with the lay evidence

Neither party submitted, to the Arbitrator, that the other party’s lay case on ‘co-operation’ should be disbelieved. Neither party sought to cross-examine. Ms Dawson submitted to the Arbitrator that Ms Murphy had not been involved in the provision of first aid or ambulance transport, she was an administrator.[53] On appeal Ms Dawson made a similar submission, that Ms Murphy did not have knowledge of the work of St John personnel relevant to the issue of co-operation. On appeal, Ms Dawson submits Ms Murphy’s evidence was not relevant and could not assist the appellant.
[53] Ms Dawson’s arbitral submissions, p 1.
The dominant evidence which led the Arbitrator to accept there was co-operation for the purposes of the clause was that of Ms Dawson, to the effect that the pink copy of the Confidential Patient Record “was provided to officers within the HAC and became part of the HAC’s records”. He described this as “powerful evidence of cooperation”.[54]
[54] Reasons, [23].
In the passage of the reasons where he arrived at his view on ‘co-operation’ ([16]–[23]) the Arbitrator did not refer to Ms Murphy’s evidence, that the provision of the pink copy of the patient record was an internal procedure of St John, not required by NSW Health, which generated its own records that were transferred with the patient. Ms Murphy was employed by the NSW Ministry of Health from 2010, and her responsibilities included “overall leadership and strategic management of workers compensation”, and management of insurable risks other than workers compensation.[55] It is not improbable that she would have knowledge of the paperwork associated with patient transfers and the like. There was no specific evidentiary basis for concluding that she did not have such knowledge.
[55] Ms Murphy’s statement, [8], Reply, p 2.

Ms Murphy’s evidence on this topic was consistent with the notations on the Confidential Patient Record itself. The notation at the top of the pro forma document provides that the top copy is to go to “State/Territory Office”, and the pink copy to the patient. One can conceive that a patient may well take his/her copy if being transported to hospital. There may be circumstances (for example if a condition was life threatening, see [51] above) where the contents of the document may be disclosed to others for the purpose of treatment. The directions for dealing with the document (see [48] to [51] above) on their face appear to be directions emanating from St John, rather than requirements of the HAC. It does not indicate that the pink copy was provided to HAC and became part of their records. Not all patients treated at first aid would be expected to require ambulance transport. In circumstances where a patient was simply treated at first aid, the directions on the pro forma document indicate the pink copy would be given to the patient.
The Arbitrator did not reject Ms Murphy’s evidence, it was simply not referred to. The Arbitrator did not indicate that it failed to satisfy the requirements of r 15.2 of the Workers Compensation Commission Rules 2011[56] or otherwise give any reason for not considering it. In Mifsud v Campbell[57] Samuels JA said:
“Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge – as the defendant’s denial of having consumed alcohol – may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’ – to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634.”[58]
[56] See Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, [3].
[57] (1991) 21 NSWLR 725 (Mifsud).
[58] Mifsud, 728, see also Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [59]–[62].
The Arbitrator erred, in failing to deal with the evidence of Ms Murphy. It was an error of the type referred to in Waterways Authority v Fitzgibbon at [129] to [130].[59]
[59] [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, per Hayne J.
The issue of the use made of the pink copy of the Confidential Patient Record was potentially important in various ways. The Arbitrator attached significance to it; it appeared to be the dominant reason he reached the view he did on ‘co-operation’. The erroneous finding affected the result, and involved appealable error. Ground No. 3 is upheld. It is unnecessary to deal with Ground No. 2 separately. The construction of cl 16 of Sch 1 is dealt with below.

Construction of the clause

The appellant referred to two authorities dealing with the word ‘co-operation’, the Tasmanian Dam Case and Barker (see [32] above). In McNamara v Consumer Tribunal,[60] the plurality said:
“It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions.”[61] (excluding footnotes)
[60] [2005] HCA 55; 221 CLR 646; 221 ALR 285; 79 ALJR 1789 (McNamara).
[61] McNamara, [40], see also D.C. Pearce & R.S. Geddes, Statutory Interpretation in Australia, 8^th ed., pp 9–10.
The ‘Convention for the Protection of the World Cultural and National Heritage’ was the subject of discussion in the Tasmanian Dam Case, including reference to ‘co-operation’. The discussion, in that context, is of little obvious relevance to the interpretation of cl 16. The appellant’s submissions referring to that authority did not direct themselves to any particular passages or references. Barker dealt with whether there was a term of mutual trust and confidence which should be implied, based on English authority, in the context of an employment contract. Again, the appellant referred to no particular passages or references. The relevance to the construction of cl 16 is not obvious. The appellant refers to no specific assistance that these authorities provide, in the construction of the term ‘co-operation’, other than to submit that they were “other judicial decisions as to the meaning of” the term.[62]
[62] Appellant’s submissions, [40].
The appellant, in its submissions dealing with Ground No. 2, does not address what construction should be placed on the phrase “in co-operation with” in cl 16(1). The appellant’s submissions on Ground No. 3 are relevant to the construction it submits should be placed on the phrase. It submits, relying on Ms Murphy’s evidence, that there “is simply no requirement, let alone legal requirement, imposed by the NSW Ambulance Service or the HAC on the St John Ambulance member to provide the form [the pink copy]”. It submits that “[a]ccordingly, the form was not cooperation in any relevant legal sense i.e. mutual and enforceable obligations. It may have been good/sensible practice but it was not cooperation”.[63]
[63] Appellant’s submissions, [48]–[49].
In ADCO Constructions Pty Ltd v Goudappel,[64] the plurality said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”[65]
[64] [2014] HCA 18; 254 CLR 1 (Goudappel).
[65] Goudappel, [29].
Clause 16 of Sch 1 is a conferring provision with a beneficial purpose, it should be construed beneficially. That is, "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred".[66] No party has submitted to the contrary.
[66] Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328, per Fullagar J, [6], Bird v Commonwealth [1988] HCA 23; 165 CLR 1, per Deane and Gaudron JJ, [5].
In a well-known passage from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[67] the plurality said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[68]
[67] [2009] HCA 41; 239 CLR 27 (Alcan).
[68] Alcan, [47].
I do not accept the appellant’s submission that, for the requirement of co-operation to be satisfied, it is necessary that “mutual and enforceable obligations” be in place. The words of the clause do not suggest such a requirement. To the contrary, the situation with which the clause deals is one where a volunteer, without obligation, engages in any ambulance work. It is necessary that the putative deemed worker engage in such work without obligation. There are multiple clauses in Sch 1, dealing with deemed workers, which involve contractual arrangements (by way of example see cll 1, 1A, 2, 2A and 3 of Sch 1). These contrast with the words of cl 16, which do not require the existence of enforceable obligations, and indeed specify that the ambulance work is to be carried out voluntarily and without obligation.
The finding that the Arbitrator made was based on co-operation. The requirement is that the ambulance work be “in co-operation with” the HAC. This third scenario may be contrasted with the first two of the scenarios in subcl (1), satisfaction of which requires that the work be “with the consent of” the HAC, or “under the authority and supervision of” the HAC. The first two of the scenarios direct attention to the HAC; did it consent to the person engaging in any ambulance work, or did it exercise authority and supervision over such work. The third alternative directs attention to whether the putative deemed worker engaged in the work “in cooperation with” the HAC. It directs attention to the relationship between the alleged deemed worker and the HAC.
There have been many recent instances of appellate courts doubting the utility of dictionary definitions in the task of statutory interpretation. In State of New South Wales v Chapman-Davis[69] Gleeson JA (McColl JA agreeing) said:
“… there are limitations on the use of dictionary definitions in statutory construction. Dictionary definitions specify a range of meanings, rather than the particular meaning of the word in its context in a statute. The unhelpfulness of relying on dictionary definitions for statutory meaning has been reiterated recently in this Court: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 at [81] (Leeming JA); TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80] (Leeming JA, Beazley P and Emmett AJA agreeing).”[70]
[69] [2016] NSWCA 237 (Chapman-Davis).
[70] Chapman-Davis, [62].
The word ‘co-operate’ is defined in the Macquarie Dictionary Online in the following terms:
“co-operate
verb (i) (co-operated, co-operating)
1. to work or act together or jointly; unite in producing an effect.
2. to practise co-operation.”
The primary definition of ‘co-operation’ is there defined as “the act or fact of co-operating; joint operation or action”.
General words “should be understood in their primary and natural signification unless there are sufficient indications of some other meaning”.[71] I do not see any indication that the reference in the clause, to ‘co-operation’, should be given other than its primary and natural meaning. Without seeking to quibble with what was said by their Honours in Chapman-Davis, the first of the dictionary definitions referred to above, working or acting together or jointly, in my view describes the primary and natural meaning of ‘co-operation’.
[71] Cody v J H Nelson Pty Ltd [1947] HCA 17; 74 CLR 629, per Dixon J at 647.
Whether the evidence established that Ms Dawson engaged in the ambulance work in co‑operation with the HAC depended, at least in part, on the view that was taken of the lay evidence of Ms Dawson and Ms Murphy. The Arbitrator relied essentially on Ms Dawson’s evidence dealing with the pink copy of the Confidential Patient Record, that it was “provided to officers within the HAC and became part of the HAC’s records”. The evidence of Ms Murphy was that the HAC had its own paperwork that was used in patient transfers, and it had no need of the pink copy of the Confidential Patient Report generated by St John. If this were accepted, it is difficult to see that the other evidence about the pink copy could lead to a conclusion that the relevant work was “in co-operation with” the HAC. ‘Co-operation’, in the sense of working or acting together or jointly, would not be present.

CONCLUSION

For reasons given above, the Arbitrator’s findings regarding the ‘consent’ of the HAC, and co-operation with the HAC, involved error. The appeal succeeds.

DISPOSITION OF THE APPEAL

The appropriate course is that the matter be remitted for re-determination by a different Arbitrator, pursuant to s 352(7) of the 1998 Act. Whether Ms Dawson can establish that the ‘ambulance work’ was in co-operation with the HAC may depend on the approach that is taken, on re-determination, to the lay evidence, including that of Ms Murphy. I also note the provisions of s 67B of the Health Services Act (see [8] above), which may be relevant.

DECISION

The Arbitrator’s decisions dated 20 December 2018 and 9 January 2019 are revoked.
The matter is remitted for re-determination pursuant to s 352(7) of the 1998 Act, by a different Arbitrator, consistent with these reasons.

Michael Snell

DEPUTY PRESIDENT

2 July 2019