State of New South Wales (Hunter New England Local Health District) v Sternbeck
[2024] NSWPICPD 38
•25 June 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (Hunter New England Local Health District) v Sternbeck [2024] NSWPICPD 38 |
APPELLANT: | State of New South Wales (Hunter New England Local Health District) |
RESPONDENT: | Michael David Sternbeck |
INSURER: | QBE TMF |
FILE NUMBER: | A1-W1171/23 |
PRESIDENTIAL MEMBER: | Acting President Michael Snell |
DATE OF APPEAL DECISION: | 25 June 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 1 May 2023 is rescinded. 2. The matter is remitted to the Division Head, Workers Compensation Division, to determine the respondent’s pre-injury average weekly earnings (PIAWE) consistent with these reasons. |
CATCHWORDS: | WORKERS COMPENSATION – quantification of ‘pre-injury average weekly earnings’ where a worker has been in receipt of payments of weekly compensation in respect of an earlier injury, during the ‘relevant earning period’: application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Stockley and Ms S Warren, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr C Tanner, counsel | |
| McNally Jones Staff | |
DECISION UNDER APPEAL: | Sternbeck v State of New South Wales (Hunter New England Local Health District) [2023] NSWPIC 192 |
MEMBER: | Ms K Garner |
DATE OF MEMBER’S DECISION: | 1 May 2023 |
INTRODUCTION AND BACKGROUND
Michael Sternbeck (the worker/respondent) was employed as a health and security assistant by the Hunter New England Local Health District (correctly sued as the State of New South Wales) (the employer) from about 2006. His duties involved those of a wardsperson (assisting with patient care and moving patients) and security duties (keeping an eye on mental health patients and protecting doctors and nurses). He suffered two work injuries, which are not disputed. In May 2021 he was moving a large patient from a ward bed onto a scanning table when he injured his right shoulder. He underwent a shoulder reconstruction and resumed on full duties from about 26 November 2021. His weekly entitlement while off work was calculated on the basis of pre-injury average weekly earnings (PIAWE) of $1,560.[1]
[1] Worker’s statement 28/11/22, Application to Resolve a Dispute (ARD), pp 1–4, [3]–[12].
The worker suffered a further injury on 4 April 2022 while moving a heavy patient, on a ward bed, to a CT scan room. The worker grabbed the bed to stop it hitting an open door and strained his left wrist and hand. He underwent surgery on 9 and 30 June 2022, involving a carpal tunnel release, a trigger finger procedure and the reattachment of torn ligaments to his thumb. He resumed work on graduated light duties from 20 September 2022. The worker’s weekly entitlements during this second period of incapacity were calculated on the basis of PIAWE of $807.59 per week. This contrasts with the worker’s statement that his average weekly earnings from 26 November 2021 to 4 April 2022 (the period from his resumption following the first injury to the date of the second injury) were $1,748.86.[2] The reason behind this difference is revealed in a letter from QBE Insurance to the worker’s solicitors dated 12 September 2022.[3] Payments of workers compensation in respect of the first of the injuries were not included in the calculation of PIAWE for the purposes of calculating the compensation entitlements resulting from the second injury. The PIAWE was calculated as if the worker received no income during the period during which he received workers compensation in respect of the first injury.
[2] Worker’s statement, [23]–[24].
[3] ARD, pp 5–6.
The matter was listed before Member Garner, who conducted a preliminary conference on 22 March 2023. Mr Hill, solicitor, appeared for the worker and Mr Stockley, counsel, appeared for the employer. The parties agreed to the determination of the dispute on the basis of written submissions, without holding a hearing. The employer’s submissions were prepared by Mr Stockley and were dated 3 April 2023. The worker’s submissions were prepared by Mr Tanner of counsel and were dated 19 April 2023. The Commission issued a Certificate of Determination dated 1 May 2023 accompanied by the Member’s reasons.[4]
[4] Sternbeck v State of New South Wales (Hunter New England Local Health District) [2023] NSWPIC 192 (reasons), [12]–[15].
THE MEMBER’S REASONS
The Member set out relevant provisions from the Workers Compensation Act 1987 (the 1987 Act) and the Workers Compensation Regulation 2016 (the Regulations). She summarised the parties’ positions from their submissions. She referred to previous decisions of other members, involving similar factual situations, in Sidhu v Secretary, Department of Communities and Justice,[5] Stewart v Secretary, Department of Communities and Justice[6] and Nitchell v Secretary, Department of Communities and Justice.[7] She stated that she adopted the approach taken by Member Wynyard in Nitchell.[8] This effectively meant that the period during which the worker was in receipt of weekly workers compensation benefits, following the earlier of the work injuries, was left out of the calculation of PIAWE for the purposes of the second injury. The Member determined that the appropriate figure for PIAWE was $1,748.86. She entered a weekly award on the following basis:
(a) $1,661.42 per week from 4 April 2022 to 3 July 2022 (s 36(1) of the 1987 Act), and
(b) $1,399.01 per week from 4 July 2022 to 7 March 2023 (s 37(1) of the 1987 Act).
[5] [2021] NSWPIC 522.
[6] [2022] NSWPIC 333 (Stewart).
[7] [2022] NSWPIC 625 (Nitchell).
[8] Reasons, [35]–[38].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The Member’s decision was not interlocutory.
THE GROUNDS OF APPEAL
The employer raises the following grounds of appeal:
(a) The Member erred in law in failing to give adequate reasons for her decision (Ground No. 1), and
(b) The Member erred in her interpretation of Schedule 3 of the 1987 Act in that the Member determined that the relevant earning period could be adjusted by deducting the period the worker was in receipt of workers compensation by applying the definition of earnings from Schedule 3(6)(2)(c). (Ground No. 2)
LEGISLATION
Schedule 3, clause 2 of the 1987 Act provides:
“2 Meaning of ‘pre-injury average weekly earnings’
(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Schedule 3, clause 6 of the 1987 Act provides:
“6 Meaning of ‘earnings’
(1) The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2) The income of a worker does not include—
(a)any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b)the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d)any payment made without obligation by the employer.
(3) However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4) The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.”
Clause 8B of the Regulations provides:
“8B Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.
(2) The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.”
Clause 8C of the Regulations provides:
“8C Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
Clause 8E of the Regulations provides:
“8E Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—
(a)no earnings in the employment were paid or payable to the worker, and
(b)the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.
(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”
THE DECISION OF THE COURT OF APPEAL IN SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE V STEWART[9]
[9] [2024] NSWCA 59 (Stewart appeal).
This decision was dated 20 March 2024. Mr Stewart suffered a work injury on 20 November 2020, and was totally incapacitated from 20 November 2020 to 1 February 2021. On 1 February 2021, Mr Stewart claimed compensation in respect of psychiatric injury resulting from the nature and conditions of his employment over a number of years (the later injury). The calculation of Mr Stewart’s PIAWE for the later injury was averaged over 52 weeks to 1 February 2021, although it did not include his compensation payments from 20 November 2020 to 1 February 2021 (consistent with cl 6(2)(c) of Sch 3 of the 1987 Act). The Member who decided the matter at first instance determined the PIAWE by averaging the earnings over a period that excluded the period during which compensation was paid for the earlier injury. On an appeal pursuant to s 352 of the 1998 Act, a Deputy President concluded that the period of incapacity related to the earlier injury should be effectively excluded from the calculation, as it was ‘unpaid leave’, within the meaning of reg 8E of the Workers Compensation Regulation 2016. This Presidential decision was the subject of appeal pursuant to s 353 of the 1998 Act to the Court of Appeal. The majority (Leeming JA and Griffiths AJA) upheld the employer’s appeal. Stern JA was in dissent.
Griffiths AJA said:
“126. … this case presents a constructional choice. Ultimately, however, the core issue is whether the Deputy President was correct to adopt what can appropriately be described as a strained interpretation of the expression ‘period of unpaid leave’ in reg 8E so as to avoid an outcome which the Deputy President viewed as ‘plainly unfair’.
127. Alternatively, applying well settled principles of interpretation, should that expression be given a different and narrower meaning? If that interpretation produces unfairness, power exists to make a regulation under cl 2(3) of Sch 3 of the Workers Compensation Act 1987(NSW), which authorises the making of an appropriate adjustment so as to address unfairness.”
His Honour said the phrase “period of unpaid leave” appeared in cl 2(3)(a) of Sch 3 of the 1987 Act and in reg 8E of the Regulations. There being no contrary intention, the term should have the same meaning in reg 8E as in cl 2(3)(a). The ordinary meaning in the context of cl 2(3)(a) did “not encompass a situation where a worker is unable to work because of incapacity and is receiving workers compensation. Such a worker is not on leave, nor is the person unpaid.”[10] His Honour accepted that in an employment or industrial context, the 1987 Act “uses ‘leave’ in its ordinary meaning as having the sense of an entitlement or authorisation which relieves a worker of performance of their duties conferred by or under an employment contract, statute or industrial agreement”.[11] His Honour described this as also being the meaning given to the term in Flinders Ports Pty Ltd v Woolford,[12] approved by the South Australian Court of Appeal in Knight v State of South Australia.[13] His Honour said that these decisions, although they dealt with differently worded legislation, provided “helpful guidance” and he was “not persuaded they are clearly wrong”.[14]
[10] Stewart appeal, [130].
[11] Stewart appeal, [131].
[12] [2015] SASCFC 6; 121 SASR 485.
[13] [2022] SASCA 14; 140 SASR 326.
[14] Stewart appeal, [129]–[134].
His Honour said “the term ‘leave’ should be given its ordinary meaning and should not be strained”. He described this as “[a]ll the more so where there is available a power to make a regulation to address any unacceptable unfairness in that interpretation.” He said, “in my respectful view, the term ‘leave’ does not cover the situation where a worker is absent from employment due to compensable injury in the ordinary sense of that term.”[15]
[15] Stewart appeal, [135]–[137].
His Honour said:
“… cl 2(3)(a) empowers the making of regulations to provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period) to ‘take into account any period of unpaid leave’ or ‘other change in earnings circumstances in the employment’ … a regulation could be made under cl 2(3)(a) requiring an adjustment to be made of the relevant earning period for a worker in employment so as to include in that relevant period part or all of the time during which an injured worker received such compensation.”[16]
And:
“Self-evidently, Parliament turned its mind to this matter in the context of defining what are ‘earnings’ in that provision. There is, however, no equivalent unequivocal provision regarding the relevance of receipt of workers compensation payments in calculating pre-injury average weekly earnings. It should be assumed that Parliament was content to leave it to the Executive to make an appropriate regulation on the subject if seen fit to do so.”[17]
And:
‘… although purpose is undoubtedly a relevant consideration in the task of construction, it has limited utility in a case such as this. That is because, although the legislation can accurately be described as ‘beneficial’, it also represents the outcome of a balancing of competing considerations in implementing that purpose. Moreover, it is important to appreciate that one part of the implementation of that purpose is the creation of the regulation-making power to address any anomalies or unfairness in the operation of the primary legislation.”[18]
[16] Stewart appeal, [138].
[17] Stewart appeal, [143].
[18] Stewart appeal, [147].
Leeming JA considered the words “unpaid leave” were “capable without undue strain of extending to the three months following Mr Stewart’s shoulder injury during which he was not at work and was receiving 95% weekly payments under the Act”. His Honour doubted the question was “greatly affected” by the South Australian decisions referred to above. His Honour said the constructional choice was “resolved by three main considerations”. The first was that the regulation-making power had not been fully exercised. Mr Stewart’s absence on workers compensation was not “unpaid leave’, it was a “change in earnings circumstances”. Regulation-making power to address that circumstance existed but was not exercised.[19]
[19] Stewart appeal, [11]–[13].
His Honour said that, secondly, the regulations “on no view accommodate a worker who suffers two injuries, the first of which is only partially incapacitating”, followed by a second injury. His Honour said this “tends to confirm the limits on a court’s ability by way of construction to address what are perceived to be gaps in its operation”.[20]
[20] Stewart appeal, [14].
His Honour said of the third consideration:
“… the critical provisions do not have the appearance of a comprehensive scheme. Instead, they are a series of ‘adjustments’, all of which are intended to deal heuristically with the miscellany of factors which may alter the calculation of a worker’s ‘pre-injury average weekly earnings’… None addresses the circumstance which gives rise to the present appeal, namely, where the worker suffers two incapacitating injuries at two different times. Although in general a construction which results in a coherent scheme should be preferred, it seems to me that the features of the regime outlined above tend to diminish the utility of notions of coherence, and disfavour straining the statutory language so as to accommodate circumstances which are not addressed explicitly.”[21]
[21] Stewart appeal, [15].
His Honour observed that the regulation “must in any event be remade in the near future”. He said: “There may also be merit in explicitly addressing any adjustment which is to be made in cases where a worker suffers two injuries.”[22]
[22] Stewart appeal, [16].
Leeming JA and Griffiths AJA agreed that the employer’s appeal should succeed. Stern JA, in dissent, would have dismissed the appeal.
APPELLANT’S SUBMISSIONS
The submissions dated 26 May 2023 accompanying the Appeal against Decision pursuant to s 352 of the 1998 Act
Ground No. 1 – The adequacy of the reasons
The appellant refers to the statutory obligation to give reasons, and quotes s 294 of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021 (the Rules). The appellant quotes from my reasons in City of Ryde v Clarke.[23] The passage quoted is a short summary from the reasons of Meagher JA in Beale v Government Insurance Office (NSW).[24] The appellant submits the Member failed to give reasons at all, she simply (in the reasons at [38]) adopted the reasons of the Member in Nitchell without discussion of why. She did not deal with whether any clauses of the Regulations had application. The appellant submits the failure to provide reasons warrants the decision being set aside.[25]
[23] [2023] NSWPICPD 22, [34]–[37].
[24] (1997) 48 NSWLR 430.
[25] Appellant’s submissions, [14]–[23].
Ground No. 2 – Error in interpreting Sch 3 of the 1987 Act
The appellant submits the only dispute went to calculation of the relevant PIAWE. It is submitted the Member correctly noted the issue was “whether the ‘relevant earning period’ should be adjusted to exclude the period during which the [worker] was in receipt of weekly benefits”. The Member adopted the reasons of Member Wynyard in Nitchell, in which Member Wynyard read words into cl 2 of Sch 3. Member Wynyard read “immediately before the date of injury” to read “immediately before the date of injury, or as adjusted where a worker received income as defined by cl 6(2(c) hereof”.[26]
[26] Appellant’s submissions, [24]–[29].
The appellant submits it was erroneous to adopt this approach. The 1987 Act provided no discretion to alter the relevant earning period other than by the means in the Regulations. It submits the “five methods” to achieve this are set out in cl 8A of the Regulations. It submits Member Wynyard erred in his approach and Member Garner erred in adopting it. The appellant refers to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[27] It submits “[t]he legislation is not entirely beneficial in nature.”[28] It refers to ADCO Constructions Pty Ltd v Goudappel where the amendment at issue was described by the plurality as “patently not beneficial”.[29]
[27] [2009] HCA 41; 239 CLR 27.
[28] Appellant’s submissions, [41].
[29] [2014] HCA 18; 254 CLR 1, [29].
The appellant refers to Sch 3 of the 1987 Act, which provides for the making of regulations for adjustment of the relevant earning period. It submits that no such provision has been included in the Regulations to remove the period during which a worker receives weekly compensation. It submits the application of Sch 3 is “clear and unambiguous”. The relevant earning period is 52 weeks preceding an injury. This can only be adjusted by the mechanisms set out in the regulation. Clause 6 of Sch 3 specifically provides that payment of workers compensation during the period is excluded from the calculation. The appellant submits PIAWE should have been calculated on this basis.[30]
[30] Appellant’s submissions, [42]–[44].
The appellant submits the Member erred in adopting the approach of Member Wynyard in Nitchell. This approach was inconsistent with the 1987 Act and the Regulations, which provide for a period of 52 weeks. This can only be adjusted by reference to clauses 8A to 8EA of the Regulations; there was no other discretion to reduce the ‘relevant earning period’ to less than 52 weeks. The appellant refers to Australian Education Union v Department of Education and Children’s Services,[31] which it submits emphasises “the primacy of the statutory text”.[32]
[31] [2012] HCA 3; 248 CLR 1.
[32] Appellant’s submissions, [45]–[53].
The appellant’s submissions dated 27 March 2024 pursuant to the Direction dated 22 March 2024
These submissions (appellant’s supplementary submissions) were made in response to the Direction issued following the decision of the Court of Appeal in Stewart. The parties were given the opportunity to make submissions in relation to the decision in the Stewart appeal and the decision of Member Wynyard in Nitchell.
The appellant notes that the Member adopted the reasoning of Member Wynyard in Nitchell. It says Member Wynyard’s decision in Nitchell was “the subject of appeal and correction” in a Presidential appeal, Secretary, Department of Communities and Justice v Nitchell.[33] Deputy President Wood found that the Member in Nitchell had “impermissibly read words” into cl 2 of Sch 3 of the 1987 Act. The appellant refers to the decision of the Court of Appeal in Stewart. It submits that a Notice of Contention in that case, arguing that there was a general discretion to alter the period during which pre-injury wages were calculated, was rejected.[34] The appellant submits the decision of Member Garner cannot stand; it should be set aside and re-determined as set out in its submissions at [58] of its appeal submissions.[35] The appellant’s submissions at [58] said the Certificate of Determination ought to be:
“i. The relevant earning period for the calculation of pre-injury average weekly earnings should not be adjusted to exclude any period.
ii. The relevant earning period for the calculation of pre-injury average earnings should be from 4 April 2023 [sic, 4 April 2021] to 4 April 2022.”
[33] [2023] NSWPICPD 36 (per Wood DP), [78].
[34] Per Leeming JA at [17], Stern JA at [38] and Griffith AJA at [125].
[35] Appellant’s supplementary submissions, [1]–[5].
The appellant’s supplementary submissions then referred to the decision of Wood DP in Nitchell, which was re-determined by reference to Reg 8C of the Regulations. It was said that Wood DP took a similar approach in Secretary, Department of Communities and Justice v Pell[36] and that she relied on the reasons in Pell when determining Nitchell. The supplementary submissions described the submissions that follow below as being “in anticipation” of an argument that the ‘relevant earnings period’ can be adjusted by application of cl 8C of the Regulations.
[36] [2023] NSWPICPD 19 (Pell Presidential appeal).
The appellant submits:
(a) there were no earnings during the period of incapacity as the worker was not performing work;
(b) workers compensation payments are excluded from the definition of ‘income’: cl 6(2)(c) of Sch. 3;
(c) clause 2(3) permits regulations for adjustment of the relevant earning period (inter alia) to take into account …change in earning circumstances in the employment;
(d) regulation 8C provided for adjustment of the period on satisfaction of two conditions:
(i)change of an ongoing nature to the employment arrangement. The appellant submits this condition was not satisfied, the worker remained in the same full-time job with no change to his designation, duties or pay rates. His return to work on 26 November 2021 following the earlier injury did not constitute a change, he simply resumed work under the same arrangement that had applied since 2009, and
(ii)if there was a change, contrary to the above, it was necessary that there be a material change to the earnings of the worker. There was not, the worker simply resumed his normal duties. The conditions in reg 8C are not satisfied.
(e) regulation 8E is not available – the majority in the Court of Appeal in Stewart made it clear that absence from work while receiving workers compensation does not constitute ‘unpaid leave’ as contemplated by that clause. It is submitted that to characterise a return to work following a period of incapacity, with no change in the employment relationship with the employer, would unduly extend or strain the meaning of the clause. This would be contrary to the reasons of the majority in Stewart.
The appellant submits the PIAWE should be calculated without adjustment to the ‘relevant earnings period’.
RESPONDENT’S SUBMISSIONS
The submissions dated 7 July 2023 accompanying the Notice of Opposition to Appeal
The respondent refers to the Presidential decisions in Pell and Nitchell. It refers to these as confirming that reg 8C is relevant to adjustment of the ‘relevant earning period’. The period from May 2021 to 25 November 2021, when the worker was not working and receiving compensation for the earlier injury, should not be included. The worker submits the Member’s determination of PIAWE was correct. There was no appealable error.[37]
[37] Respondent’s submissions, [8]–[14].
Ground No. 1 – The adequacy of the reasons
The respondent submits the outcome was inevitable and the only one dictated by the evidence, Sch 3 and reg 8C. The complaint about the reasons is academic.[38]
[38] Respondent’s submissions, [15]–[16].
Ground No. 2 – Error in interpreting Sch 3 of the 1987 Act
The respondent submits the appellant’s submissions are misconceived, given the Presidential decisions in Pell and Nitchell, and the related reasoning in Stewart.[39]
[39] Respondent’s submissions, [17].
The respondent’s submissions dated 12 April 2024 pursuant to the Direction dated 22 March 2024
The respondent, at the outset, “acknowledges that the decision of the Court of Appeal in Stewart, being the decision of the majority as constituted by Leeming JA and Griffiths AJA, supports Ground 2 of the appeal against the decision of Deputy President Wood”.[40] The respondent’s additional submissions take issue with the conclusion of the majority in the Stewart appeal. The respondent refers to the reasoning of Stern JA, submitting “the reasoning of her Honour is correct, and to be preferred to that of the majority”. The respondent “associates himself with her Honour’s reasoning and maintains that the appeal in the current matter should be dismissed”.[41]
[40] Respondent’s additional submissions, [2].
[41] Respondent’s additional submissions, [16]–[19].
The respondent refers to his understanding that “an application for special leave is to be made in order to challenge the decision of the majority”. The respondent proposes that the “current matter be held in abeyance pending the outcome of the special leave application, and any determination by the High Court should leave be granted”.[42]
[42] Respondent’s additional submissions, [20]–[21].
CONSIDERATION
The respondent appropriately concedes that the decision of the Court of Appeal in Stewart is consistent with the success of the second of the grounds of appeal. This is consistent with the Presidential appeal before me being upheld. The respondent submits that the Presidential appeal should be held in abeyance, pending a decision in an application for special leave to appeal to the High Court of Australia, brought by the worker in Stewart.
The objects of the 2020 Act are set out in s 3 of that Act. Subclauses (c) and (d) of s 3 provide for the following objects:
“(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,”.
Section 4(2) of the 2020 Act provides that, in exercising a discretion conferred by the Act, the Commission should do so “in the way that would best promote the objects of this Act or the provision concerned”.
Subsections (1) and (2) of section 42 of the 2020 Act provide:
“42 Guiding principle to be applied to practice and procedure
(1) 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.
(2) The Commission must seek to give effect to the guiding principle when it—
(a)exercises any power given to it by this Act or the Commission rules, or
(b)interprets any provision of this Act or the Commission rules.”
Section 57(1) of the 2020 Act provides:
“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.”
Rule 3 of the Rules provides:
“The object of these Rules is to give effect to the guiding principle for the [2020] Act and the Commission rules in their application to proceedings in the Commission.”
I am bound by the decision of the Court of Appeal in Stewart. It follows that Ground No. 2 of the appeal should succeed. If I were to accede to the respondent’s application to hold the matter before me in abeyance, pending determination of the worker’s special leave application (and if that application were successful, a hearing in the High Court) there would inevitably be associated delay. Effect is best given to the objects of the 2020 Act, and the application of the ‘guiding principle’, by dealing with the Presidential appeal rather than deferring it for an uncertain period. Should the ultimate outcome in Stewart be inconsistent with the approach of the majority of the Court of Appeal in that matter, the reconsideration power in s 57 of the 2020 Act is potentially available.
For the above reasons, I do not adopt the approach advocated by the respondent of holding this Presidential appeal in abeyance, pending further developments in the special leave application in Stewart. Consistent with the decision of the Court of Appeal in Stewart, Ground No. 2 of the appellant’s grounds succeeds. It is unnecessary to deal with Ground No. 1. The appeal succeeds.
I accept the appellant’s submission that the calculation of PIAWE should not be adjusted to exclude any part of the relevant earnings period. This is consistent with the decision of the Court of Appeal in Stewart. It is necessary that PIAWE be determined consistently with that decision.
DECISION
The Certificate of Determination dated 1 May 2023 is rescinded.
The matter is remitted to the Division Head, Workers Compensation Division, to determine the respondent’s PIAWE consistent with these reasons.
Michael Snell
ACTING PRESIDENT
25 June 2024
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