Smith v State of New South Wales (NSW Police Force)
[2025] NSWPIC 321
•4 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Smith v State of New South Wales (NSW Police Force) & Ors [2025] NSWPIC 321 |
| APPLICANT: | James Frederick Isherwood Smith |
RESPONDENT: | State of New South Wales (NSW Police Force) |
| SECOND RESPONDENT: | Secretary, Department of Communities & Justice |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 4 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (WC Act); Workers Compensation Legislation Amendment Act 2012 (WC Amendment Act 2012); claim for psychological injuries; claim for weekly benefits compensation and medical expenses pursuant to section 60 of the WC Act; Certificate of Determination (COD) previously issued awarding applicant weekly benefits and apportioning liability to first respondent to degree of two-thirds; COD ordered second respondent to pay applicant’s award and first respondent to pay apportioned share to second respondent in accordance with section 22A of the WC Act; first respondent seeks reconsideration of COD on basis apportioned share should be calculated under WC Act without amendments that were made to the WC Act by the WC Amendment Act 2012; Demolon Pty Ltd v Parbury Building Products Ltd considered and applied; Samuel v Sebel Furniture Limited and Railcorp NSW v Registrar of the WCC of NSW considered; Held – Commission declines to reconsider COD; issue already determined by COD; first respondent’s separate liability under distinct statutory scheme not to be taken into account when determining contribution payable to second respondent as apportionment of liability for weekly benefits compensation. |
| DETERMINATIONS MADE: | 1. The Commission declines to reconsider its Certificate of Determination dated 14 April 2025. |
STATEMENT OF REASONS
BACKGROUND
James Frederick Isherwood Smith (the applicant) is 33-years-old. He worked for the NSW Police Force (the first respondent) from the date of his attestation on or around 8 August 2013 until he resigned around September 2014. He later worked for the NSW Department of Communities & Justice (the second respondent) from December 2019 until around March 2021.
By way of a Certificate of Determination (COD) dated 14 April 2025, I found (following an arbitration hearing on 18 February 2025 (the arbitration hearing)) that he sustained:
(a) a psychological injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), during the course of his employment with the first respondent – the deemed date of the injury in accordance with s 15(1)(a)(i) of the 1987 Act being 13 August 2015, and
(b) a psychological injury pursuant to s 4(b)(ii) of the 1987 Act, during the course of his employment with the second respondent – the deemed date of the injury in accordance with s 16(1)(a)(i) of the 1987 Act being 29 March 2021.
I also found that as a result of the two injuries, he was inter alia entitled to awards in relation to weekly benefits compensation as follows:
(a) pursuant to s 36(1) of the 1987 Act between 29 March 2021 and 27 June 2021;
(b) pursuant to s 37(1) of the 1987 Act between 28 June 2021 and 31 May 2022, as well as between 16 June 2022 and 24 September 2023, and
(c) pursuant to s 37(2) of the 1987 Act between 1 June 2022 and 15 June 2022.
In relation to the apportionment of these awards, I determined as follows:
“7. Pursuant to ss 22A(4) and 22A(5) of the 1987 Act, the second respondent is to pay the applicant’s awards.
8. Pursuant to s 22 of the 1987 Act, liability for the applicant’s awards is apportioned to the first respondent to the degree of two-thirds. It is to pay this apportioned share to the second respondent in accordance with s 22A(4) of the 1987 Act.”
By way of correspondence to the Personal Injury Commission (Commission) dated 12 May 2025 (sent by email on 13 May 2025), the first respondent requested that I reconsider the COD.
ISSUES FOR DETERMINATION
The issues which now require determination are as follows:
(a) should I exercise my discretion to reconsider the COD – in accordance with s 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act), and
(b) if so, what amounts should be paid by the first respondent in relation to its apportioned liability for the applicant’s weekly benefits compensation awards.
PROCEDURE BEFORE THE COMMISSION
The first respondent made relevant submissions by its correspondence dated 12 May 2025, which requested the reconsideration. The second respondent then provided submissions in reply by its correspondence to the Commission dated 2 June 2025. The applicant then wrote to the Commission on 3 June 2025 advising that he “adopts and relies upon” the second respondent’s submissions.
I do not intend to repeat the evidence consideration or the findings and reasons attached to the COD (the Statement of Reasons). I do not need to do so in order to determine the issues referred to at paragraph 6 above. Needless to say however, this determination needs to be read together with the Statement of Reasons.
EVIDENCE
Documentary evidence
No further evidence (either documentary or oral) was supplied by any party for consideration in relation to this reconsideration application.
First respondent’s submissions
In essence, the first respondent submits that it should not have to pay two-thirds of the applicant’s weekly benefits compensation entitlements, calculated in accordance with the 1987 Act (as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Act)), as when the 1987 Act was amended by the 2012 Act, the second respondent and its employees were exempted from those amendments, so that the 1987 Act applied to them as if not amended.
Section 37(1)(a) of the 1987 Act (as not amended by the 2012 Act) provided for a “maximum statutory rate” payable to injured workers after 26 weeks of incapacity. This rate varied from $536.90 per week to $563.40 per week during the period when I ordered weekly benefits compensation to be paid to the applicant. However, the awards that I made by the COD (see paragraph 4 above) required the first respondent to pay more than this rate.
The first respondent submits:
“The two-third apportionment which the First Respondent has been ordered to pay the Second Respondent pursuant to section 22 of the 1987 Act (in Order 14) is more than the limits of compensation payable pursuant to section 37(1)(a)(i) of the 1987 Act before its amendment by the Workers Compensation Legislation Amendment Act 2012…The Order made for the First Respondent’s payment to the Second Respondent should reflect the maximum statutory entitlement as per the 1987 Act, accounting to the amendment made by the Workers Compensation Legislation Amendment Act 2012.”
It therefore submits that its reconsideration application should be granted in the interests of justice.
Second respondent’s submissions
The second respondent opposes the reconsideration application. It submits:
(a) it made submissions during the arbitration hearing (which are referred to at paragraph 120 of the Statement of Reasons) that the first respondent’s liability was not limited to make payments under its distinct statutory scheme;
(b) the first respondent did not respond to these submissions at the arbitration hearing;
(c) the Statement of Reasons has already dealt with and determined the arguments made by the first respondent in its reconsideration application – see paragraphs 183-184 and paragraphs 201-203 of the Statement of Reasons in this regard;
(d) there is authority in Demolon Pty Ltd v Parbury Building Products Ltd and Anor [1996] NSWCA 147 (Demolon) to support that determination that the first respondent’s contribution to liability pursuant to s 22 of the 1987 Act is not limited to make payments under its distinct statutory scheme, and
(e) the first respondent has not submitted as to why the principles in Demolon do not apply to it.
FINDINGS AND REASONS
Should I exercise my discretion to reconsider the COD – in accordance with s 57(1) of the 2020 Act
The power of the Commission to reconsider a Certificate of Determination is found in s 57(1) of the 2020 Act, which states as follows:
“The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
The Commission is certainly given a wide discretion in this regard, and it is to be exercised in accordance with the Commission’s duties under ss 42 and 43 of the 2020 Act. Section 42(1) states as follows:
“The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 43(3) then states as follows:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel), Roche ADP (as he then was) summarised (at [58]) how the then Workers Compensation Commission was to exercise the reconsideration discretion given to it by s 350(3) of the 1998 Act (which applied to the Workers Compensation Commission in almost identical terms to the terms which apply to the Commission pursuant to s 57(1) of the 2020 Act), as follows:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
The approach of Roche ADP in Samuel was referred to by Harrison AsJ in Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp), where (at [56]) it was stated:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
Applying the principles in Samuel and Railcorp, I have determined to decline the first respondent’s reconsideration application. I accept that there was no undue delay in the application being made following the COD, but:
(a) I consider that I have already determined the issue as to the extent of the first respondent’s liability which it seeks to agitate by the reconsideration application - in my opinion, if the first respondent disagreed with that determination, it should have lodged an appeal in accordance with s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) as a result, I place significant weight upon the principle that it is in “the public interest that litigation should not proceed indefinitely”;
(c) in my opinion, the first respondent’s failure to submit at the arbitration hearing regarding its liability being limited to make payments under its distinct statutory scheme was “a mistake or oversight by a legal advisor” – having reviewed the Statement of Reasons (where I detailed the first respondent’s submissions at paragraphs 105-111 and at paragraphs 121-127) I can find no record of any submissions made by it in this regard, despite it being aware of the second respondent’s submissions in this regard (see paragraph 120 of the Statement of Reasons);
(d) I am bound to act in accordance with the need “to do justice between the parties according to the substantial merits of the case” (in accordance with Samuel and s 43 of the 2020 Act) – having already determined the issue as to the extent of the first respondent’s liability which it seeks to agitate by the reconsideration application, I can see no merit in the application – and I can also therefore see no clear-cut injustice to the respondent in declining the application – indeed, in my opinion, there would be clear-cut injustice to the applicant and the second respondent in considering the application when I have already determined the issue sought to be agitated by it, and
(e) as a result, to allow the reconsideration application would be contrary to the requirement for the Commission (in accordance with s 42 of the 2020 Act) to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.
In this regard, I specifically refer to my consideration of Demolon at paragraph 201 of the Statement of Reasons, and my conclusion as to the effect of that decision referred to at paragraph 202 of the Statement of Reasons. I confirm that I have found there to be no basis for me to have regard to any separate liability of the first respondent’s when determining the contribution needed to be paid by it to the second respondent (who I ordered to make the awarded weekly benefits compensation payments to the applicant in accordance with ss 22A(4) and 22A(5) of the 1987 Act). In paragraph 202, I specifically referred to (and found not to be relevant) the different methods by which weekly benefits compensation entitlements were calculated in accordance with the 1987 Act (as amended by the 2012 Act) compared with the 1987 Act (without those amendments).
In my opinion, the Statement of Reasons therefore deals with the issue sought to be agitated by the first respondent in the reconsideration application, that it should only have to make weekly benefits compensation payments in respect of the applicant, according to its distinct statutory scheme. Any separate liability of its to the applicant according to its distinct statutory scheme is not to be taken into account when determining the contribution to be paid by it to the second respondent as its apportionment of liability in respect of the weekly benefits compensation payments awarded to the applicant. I again quote from Clarke JA in Demolon:
“…what the trial judge was required to do was to determine what contribution should be made by the first employer in respect of the liability found against the second employer. In these circumstances there is no basis upon which a judge could pay regard to some other liability such as that which would have arisen if the only injury had been the one which occurred prior to the coming into force of the Act [the 1987 Act]…I recognise that the result of this construction of the Act may be that the first employer may incur a greater pecuniary liability than if the compensation had been assessed under the 1926 Act. But that result seems to me to flow naturally from the wording and scheme of the Act.”
SUMMARY
I decline to reconsider the COD and I dismiss the first respondent’s application dated
12 May 2025 in this regard.
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