Sexton v Graincorp Operations - [2007] NSWWCCPD 218

WORKERS COMPENSATION COMMISSION

REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT

CITATION:Sexton v Graincorp Operations Ltd & anor [2007] NSWWCCPD 218
APPLICANT:  Christopher James Sexton
FIRST RESPONDENT:  Graincorp Operations Pty Ltd
SECOND RESPONDENT:  Pacific National (ACT) Pty Ltd
INSURERS:Self-insured
FILE NUMBER:  WCC16814-06

DATE OF DECISION: 30 October 2007

SUBJECT MATTER OF QUESTION:                 ‘Novel or complex’ question of law; jurisdiction of the Workers Compensation Commission where the employer is a ‘federal employer’, subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth).
PRESIDENTIAL MEMBER:  Acting President Gary Byron
HEARING:On the papers
REPRESENTATION:  Applicant: White Barnes
First Respondent: Goldbergs
Second Respondent: Edwards Michael Moroney

ORDERS MADE: The answer to the Question of Law posed in this matter is:

The Workers Compensation Commission does not have jurisdiction in a matter where one of the employers is a federal employer, in relation to such federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) and is not insured for the purposes of the Workers Compensation Act 1987 (NSW).
No order is made as to the costs of the referral of this Question of Law.

BACKGROUND

1. On 12 February 2007 the Applicant, Mr Sexton filed an Application for Leave to refer a Question of Law to the President (‘the Application’) in the Workers Compensation Commission (‘the Commission’).

2. The Application arises in proceedings commenced by Mr Sexton against two of his employers, the First Respondent, Graincorp Operations Pty Ltd (‘First Respondent/ Graincorp’) and the Second Respondent, Pacific National (ACT) Ltd (Second Respondent/ Pacific National), incorrectly named as Pacific National Ltd.

3. Mr Sexton alleges to have suffered injury to his right shoulder, arm and ankle when he stepped in a hole and fell on 10 January 2001 and a further injury as a result of his duties up to September 2005, climbing into and out of engines and working above shoulder height whilst employed by Graincorp. He claims weekly compensation benefits from September 2005 to date and continuing, and a general order under section 60 of the Workers Compensation Act 1987 (the 1987 Act). He brings the same claim against Pacific National, although it would appear that his employment with Pacific National did not commence until February 2001.

4. Graincorp, filed a Reply putting in issue notice, injury, incapacity, whether Mr Sexton suffered a disease, accelerated, exacerbated or aggravated by his employment with either Respondent and the apportionment of liability, if any, between the respondents.

5. On 17 November 2006, Pacific National sent a facsimile transmission to the Commission confirming that:

“…Mr Sexton is employed by Pacific National (ACT) Ltd which comes under Commonwealth legislation not under New South Wales legislation.
We request that we be withdrawn from these proceedings.”

6. Annexed to the above letter was a copy of a letter in similar form from Pacific National to Mr Sexton’s solicitors similarly requesting that proceedings as against Pacific National be discontinued.

7. Mr Sexton had taken no steps to discontinue the claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sexton v Graincorp Operations

Details

AGLC: Sexton v Graincorp Operations [2007] NSWWCCPD 218
Case: [2007] NSWWCCPD 218
Decision Date: 30 October 2007

CaseChat Overview and Summary

Sexton brought a claim for workers' compensation against Graincorp Operations, an entity that operates as a federal employer under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute centred on whether the Workers Compensation Commission, established under the Workers Compensation Act 1987 (NSW), had jurisdiction to hear claims against Graincorp Operations. The central legal issue was whether the Commission could exercise its jurisdiction when one of the employers was a federal employer that was subject to the federal Act but was not insured under the NSW Act.

The court considered the interplay between the federal and state workers' compensation regimes. It examined the specific provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provide an exclusive scheme for federal employers, and the Workers Compensation Act 1987 (NSW) which establishes the Commission's jurisdiction. The court held that the federal Act's provisions were intended to provide an exclusive scheme for federal employers, thereby excluding state jurisdiction in cases involving such employers unless they were insured under the state Act. Since Graincorp Operations was not insured under the NSW Act, the Commission did not have jurisdiction over the claim against this federal employer.

The court determined that the Workers Compensation Commission does not have jurisdiction to hear claims against a federal employer that is subject to the federal Act and is not insured under the state Act. The court's decision clarified the jurisdictional boundaries between federal and state workers' compensation regimes, emphasising the exclusive nature of the federal scheme for federal employers. Consequently, no order was made regarding the costs of the referral of this question of law.

Orders

Orders of the court

The answer to the Question of Law posed in this matter is:

The Workers Compensation Commission does not have jurisdiction in a matter where one of the employers is a federal employer, in relation to such federal employer, which is subject to the Safety, Rehabilitation and Compensation Act 1988 (Cth) and is not insured for the purposes of the Workers Compensation Act 1987 (NSW).

No order is made as to the costs of the referral of this Question of Law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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