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Singh v TAJ (Sydney) Pty Limited

Singh v TAJ (Sydney) Pty Limited

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NEW SOUTH WALES COURT OF APPEAL

CITATION: Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330

FILE NUMBER(S):
40088/06

HEARING DATE(S): 31 August 2006

DECISION DATE: 27/11/2006

PARTIES:
Gurminder Singh (Appellant)
TAJ (Sydney) Pty Limited (Respondent)

JUDGMENT OF: Beazley JA Santow JA Tobias JA

LOWER COURT JURISDICTION: Workers Compensation Commission of New South Wales

LOWER COURT FILE NUMBER(S): WCC 6776-04

LOWER COURT JUDICIAL OFFICER: Acting Deputy President Moore

COUNSEL:
D Baran (Appellant)
G Watson SC; N Kabilafkis (Respondent)

SOLICITORS:
Buttar Caldwell & Co (Appellant)
Hicksons Lawyers (Respondent)

CATCHWORDS:
WORKERS COMPENSATION – work related injuries – visa change after injury disentitled appellant to work – compensation claim dismissed by arbitrator – whether presidential member of Workers Compensation Commission erred in confirming arbitrator’s dismissal – arbitrator erred in misconstruing Workers Compensation Act – determination of probable earnings but for injury in similar employment – visa status irrelevant for determining post-injury earning capacity

LEGISLATION CITED:
Migration Act 1958 (Cth) s 235
Workers Compensation Act 1926 (NSW) s 11(1)(a)
Workers Compensation Act 1987 (NSW) ss 24, 40, 43A, 66, 67
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 353(1), 353(4)(c)

DECISION:
1. Appeal allowed
2. Set aside the decision of Acting Deputy President Moore of the Workers Compensation Commission
3. Set aside the award for the respondent made by the Arbitrator
4. Order that the matter be remitted to the Workers Compensation Commission for redetermination according to law
5. Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitors’ Fund Act (NSW) 1951.

JUDGMENT:

- 24 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40088/06
BEAZLEY JA
SANTOW JA
TOBIAS JA
27 November 2006

GURMINDER SINGH v TAJ (SYDNEY) PTY LIMITED

Headnote

Facts

The appellant sustained an injury in the course of his employment with the respondent, and the respondent paid him weekly compensation under s 40 of the Workers Compensation Act 1987 (NSW) (the Workers Compensation Act). In addition consent orders for awards of compensation for permanent impairment and pain and suffering were made under ss 66 and 67 of the Workers Compensation Act. Subsequently the appellant’s visa status was changed from a bridging visa Class A, which entitled him to work and was current as at the date of injury and the consent order, to a bridging visa Class E, which disentitled him to work. Therefore the respondent ceased payments of weekly compensation. The appellant thus brought a claim for an award for the payment of weekly compensation for partial incapacity pursuant to s 40 of the Workers Compensation Act.

The claim was dismissed by an Arbitrator. On appeal from the Arbitrator’s dismissal, a Presidential Member of the Workers Compensation Commission dismissed the appeal and confirmed the decision of the Arbitrator.

The appellant sought, and was granted, leave to appeal by this Court from the decision of the Commission on the grounds that the Presidential Member erred in confirming the Arbitrator’s dismissal, as…

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.

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Details

Case: [2006] NSWCA 330
Decision Date: 27 November 2006

CaseChat Overview and Summary

The appeal concerned a worker, Mr Singh, who sustained a workplace injury and subsequently experienced a change in his visa status, which disentitled him from working. The primary dispute was whether the Arbitrator, and subsequently the Deputy President of the Workers Compensation Commission, erred in dismissing Mr Singh's claim for compensation on the basis of his visa status. The appeal was heard by Beazley JA, Santow JA, and Tobias JA.

The legal issues before the court were whether the Arbitrator misconstrued or misapplied section 40 of the *Workers Compensation Act* by considering the appellant's visa status when determining his entitlement to compensation, and whether the Deputy President erred in confirming this dismissal. Specifically, the court had to determine if the appellant's inability to legally work due to his visa status was a relevant factor in calculating his probable earnings but for the injury, as contemplated by section 40.

The Court of Appeal allowed the appeal, finding that both the Arbitrator and the Deputy President had erred in law. The court held that section 40 of the *Workers Compensation Act* requires the determination of probable earnings in similar employment but for the injury, and that a worker's subsequent inability to work due to immigration status, unrelated to the injury itself, is irrelevant to this calculation. The reasoning in *Viliami* was distinguished, as it concerned a situation where the worker was already unable to earn due to circumstances unassociated with the injury, whereas here, the injury occurred when the appellant was lawfully employed and his visa status changed later. The court emphasised that the focus of section 40 is on the worker's earning capacity in the labour market, not their legal entitlement to work.

Consequently, the Court of Appeal set aside the decision of the Acting Deputy President and the award made by the Arbitrator. The matter was remitted to the Workers Compensation Commission for redetermination according to law, and the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside the decision of Acting Deputy President Moore of the Workers Compensation Commission; 3. Set aside the award for the respondent made by the Arbitrator; 4. Order that the matter be remitted to the Workers Compensation Commission for redetermination according to law; 5. Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act (NSW) 1951.

Background

Background to the litigation

The issue on the appeal, as it emerged in argument, is whether the Arbitrator erred in his application of s 40 of the Workers Compensation Act and in particular, whether he erred in determining that the appellant’s visa status meant that the appellant was thereby disentitled to an award. If the Arbitrator erred in the application of s 40, then the Deputy President’s decision in confirming the Arbitrator’s dismissal of the application was also erroneous in point of law.Statutory Background The issues raised on the appeal involve, in the first instance, a reference to s 235 of the Migration Act 1958 (Cth) (the Migration Act) and a consideration of the correct application of ss 40 and 43A of the Workers Compensation Act. Section 235 of the Migration Act provides that a non-citizen who works in contravention of a condition restricting the work that the non-citizen may do in Australia commits an offence. The offence is one of strict liability, the maximum penalty for which is $10,000. In this case, the appellant, at the time of injury, was not working in contravention of any condition of his visa. Nor was it suggested that he had ever done so. Rather, his visa status changed at a time when he was not working, due, it seems, to a change in Departmental policy. It was common ground that the workplace injury played no part in the change to the appellant’s visa status. As will become apparent, the relevance of the change in the visa status arises in connection with the exercise of discretion that arises under s 40 of the Workers Compensation Act.Section 40 of the Workers Compensation Act A person’s entitlement to weekly payments of compensation for partial incapacity is governed by the provisions of s 40 of the Workers Compensation Act. Relevantly, it provides:“(1) Entitlement The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case. (2) Calculation of reduction in earnings of worker—generalThe reduction in the worker’s weekly earnings is (except as provided by this section) the difference between: (a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and(b)the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).…(3) Ability to earn in suitable employmentThe determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following: (a)the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Arbitrator considered that the appellant’s situation was analogous to cases where an applicant was prevented from working or was unable to engage in paid employment for some reason unassociated with the workplace injury. He then said:“I would decide this matter on that basis, that the [appellant], currently being prevented from legally engaging in employment, that I’m unable under section 40 to determine an amount that he would have been earning but for his injury. That amount, because of his immigration status, must be now zero.” (Emphasis added)The Arbitrator reiterated that he was required to determine the matter on the basis of s 40 as “interpreted” and having regard to the decision of Viliami. It followed on this reasoning that the appellant was not entitled to an award under s 40.Reasoning of the Acting Deputy President The Acting Deputy President identified the task of the Arbitrator as being to determine whether the circumstances of the appellant’s case "gave him a legal entitlement to weekly benefits". She considered that the decision in Viliami was very much on point. In particular, she endorsed Burke J’s statement that it was not the function of the Court to give “approbation to illegality” and added that it was similarly not the function of the Commission to:“… [e]ndorse, condone or simply ignore a breach of section 235 of the Migration Act 1958”. Acting Deputy President Moore then said that as the appellant was not in fact earning as at the date of the hearing of the application, the question whether he had a legal entitlement to weekly benefits had to be determined having regard to:"… [w]hat was he able to earn? Legally, he was not entitled to earn anything, and was precluded by statute under a criminal sanction [sic]". She then quoted the passage from Viliami set out above but quoted the passage in full. The additional portion not included in the Arbitrator's decision was as follows:"[H]e would probably be earning nothing; for the same reason he is able to earn nothing in any work that he can do in this country now; therefore, the difference of nothing from nothing is nothing." Acting Deputy President Moore also referred to the further comment of Burke J at 457-458 that:“The man really has not lost anything because he is precluded from earning anything in any event injured or uninjured. For those reasons, I do not consider that he is entitled to a weekly payment."and concluded:“Nothing in the Arbitrator’s statements referred to above suggest that he made any error in either his ‘construction’ or ‘application’ of section 40 of the [Workers Compensation] Act. His decision was consistent with the evidence. The Arbitrator adopted the reasoning of Judge Burke in Viliami, and the adoption of such reasoning discloses no error of law or principle.” Acting Deputy President Moore also referred to the decision of this Court in Nonferral (NSW) Pty Limited v Taufia (1998) 43 NSWLR 312; (1998) 16 NSWCCR 130 but distinguished it on the facts. Notwithstanding that the facts in Nonferral were different, in that the respondent in that case did not have the necessary permission to work in Australia at the time that he sustained his workplace injury, the principle stated in that case has some relevance to the issues in this case. However, for the reasons to which I will come, the Acting Deputy President’s failure to have regard to the relevance of that decision is not the central error in her reasoning. The central error was her finding that the Arbitrator had not erred in his construction or application of s 40 and that his adoption of the reasoning of the judgment in Viliami did not disclose error.