State of New South Wales v Kanajenahalli

[2023] NSWPICPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

State of New South Wales v Kanajenahalli [2023] NSWPICPD 1

APPELLANT:

State of New South Wales

RESPONDENT:

Mohan Kanajenahalli

INSURER:

QBE TMF

FILE NUMBER:

A1-W4275/21

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

18 January 2023

ORDERS MADE ON APPEAL:

1.     In the opinion of the Commission, the Member’s Certificate of Determination dated 10 January 2022 was determined without jurisdiction.

2.     These proceedings are stayed until 12 April 2023.

3.     The parties have liberty to apply in respect of the Order staying the proceedings.

CATCHWORDS:

WORKERS COMPENSATION – Applications involving federal jurisdiction; Division 3.2 of the Personal Injury Commission Act 2020; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, Love v Attorney General (NSW) [1990] HCA 4; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10 considered and applied

HEARING:

15 December 2022

REPRESENTATION:

Appellant:

Mr P Perry, counsel

Hicksons Lawyers

Respondent:

Mr D Baran, counsel

Stacks Law Firm

DECISION UNDER APPEAL

MEMBER:

Mr C Burge

DATE OF Member’s DECISION:

10 January 2022

INTRODUCTION AND BACKGROUND

1. Dr Mohan Kanajenahalli (the respondent) was employed by the State of New South Wales (the appellant) at Dubbo Base Hospital from 29 April 2019 as an Unaccredited Trainee in Paediatrics and Child Health, under a contract for 12 months arranged through the Australian Health Practitioner Regulation Agency (AHPRA).

2. The respondent ceased work on 11 June 2019 and resigned from his employment on 12 June 2019. He notified the appellant that he had suffered a psychological injury, described in the Injury Notification form as “burnout” and “depression.”[1] The claim was denied by the appellant.

   [1] Application to Resolve a Dispute (ARD), p 26.

3. The respondent commenced proceedings in the Personal Injury Commission (the Commission) for weekly payments of compensation, treatment expenses and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The injury was described as an aggravation, acceleration, exacerbation or deterioration of a psychological disease and the injury was said to have occurred on the deemed date of 11 June 2019.

4. The matter proceeded to arbitration before a Member of the Commission. The appellant cited a number of reasons for denying liability in its notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). However, when the matter came to arbitration the only issue in dispute was whether the respondent’s injury was caused by reasonable action taken by the employer in respect of performance appraisal or discipline, in accordance with s 11A of the 1987 Act.

5. The Member issued a Certificate of Determination on 10 January 2022, in which he determined that the respondent’s injury was not caused by reasonable action taken by the appellant in respect of performance appraisal or discipline.

6. The Certificate of Determination issued by the Member records:

   “The findings in [sic] orders are as follows:

   1.     The [respondent] suffered a psychological injury in the course of his employment with the [appellant], with a deemed date of injury of 11 June 2019.

   2. At the date of injury, the [respondent’s] pre-injury average weekly earnings exceeded the statutory maximum amount pursuant to section 34 of the Workers Compensation Act 1987.

   3.     The injury referred to [at] (1) above was not caused by the reasonable conduct of the [appellant] with respect to performance appraisal and/or discipline.

   4.     As a result of the injury referred to [at] (1) above, the [respondent] was totally incapacitated for employment from 25 July 2019 to 6 September 2021.

   5. The [appellant] is to pay the [respondent] weekly compensation at the maximum weekly entitlement pursuant to section 34 of the Workers Compensation Act 1987 as follows:

   (a)25 July 2019 to 30 September 2019 at $2,177.40 per week;

   (b)from 1 October 2019 to 31 March 2020 at the rate of $2,195.70 per week;

   (c)from 1 April 2020 to 30 September 2020 at the rate of $2,224 per week;

   (d)from 1 October 2020 to 31 March 2021 at the rate of $2,242.40 per week, and

   (e)from 1 April 2021 to 6 September 2021 at the rate of $2,282.90 per week.

   6. The [appellant] has to pay the [respondent’s] reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

   7.     The claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following:

   Date of injury: 11 June 2019 (deemed)

   Body systems referred: Psychological/psychiatric injury

   Method of assessment: Whole Person Impairment

   8.     The documents to be referred to the Medical Assessor to assist with their determination to include the following:

   (a)this Certificate of Determination and Statement of Reasons;

   (b)Application to Resolve a Dispute and attachments;

   (c)Reply and attachments;

   (d)[Respondent’s] Application to Admit Late Documents dated 28 October 2021 and attached documents, and

   (e)[Respondent’s] Application to Admit Late Documents dated 18 November 2021 and attach[ed] documents; [appellant’s] Application to Admit Late Documents dated 23 November 2021.”

7. The appellant appeals the decision.

8. There is no dispute between the parties that the threshold requirements relevant to an appeal from a decision of a member as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

PRELIMINARY ISSUE

1. At the time the proceedings commenced in the Commission, the respondent resided in Queensland. Section 75(4) of the Commonwealth of Australia Constitution Act (the Constitution) vests original jurisdiction in all matters between “States, or between residents of different States, or between a State and a resident of another State.” Section 77 of the Constitution provides that Parliament has the power to invest any court of a State with federal jurisdiction. Section 39 of the Judiciary Act 1903 (Cth) (the Judiciary Act) vests Federal jurisdiction in a court of the State in matters between a State and a resident of another State. As a result, in order for the Commission to have jurisdiction to determine the dispute between the parties, it must be shown that the Commission is a court of the State and thus invested with the relevant federal jurisdiction, or that it was exercising administrative, rather than judicial, power in determining the dispute.

2. This issue was not raised in the proceedings before the Member or in the appeal. In order to ensure that the parties were afforded procedural fairness, the matter was listed for oral submissions on this point. The parties were asked to address the question of whether the dispute was between the State and a resident of another State, whether the Commission is considered to be a court, and whether the power exercised by the Member was administrative or judicial in nature. The hearing took place by way of the Microsoft Teams audio-visual conferencing platform on 15 December 2022.

SUBMISSIONS

1. In submissions made at the hearing, both parties agreed that, at the relevant time, the dispute involved a resident of Queensland (the respondent) and the State of New South Wales, and that the Commission was not a court of the State of New South Wales and thus not invested with the power to judicially determine the dispute between the parties. The parties asserted, however, that the Member was exercising administrative, rather than judicial power by determining the dispute. The parties also submitted that a determination of the appeal would involve the exercise by the Presidential Member of administrative, rather than judicial, power and thus the Commission had jurisdiction to determine the dispute and has jurisdiction to determine the appeal.

The respondent’s submissions

1. The respondent concedes that the dispute is one between the State and a resident of another State. The respondent asserts that the Commission could not be considered a court of the State. The respondent describes the operation of the Workers Compensation Division of the Commission as “dispute resolution”, rather than “an adjudication by … a judge”,[2] whereby the Member is called upon to conciliate, which is a process without boundaries. The respondent says that the intention is to resolve the matter, the Member is actively involved in the conciliation phase, and it is only when the matter cannot be resolved that the dispute proceeds to arbitration.

   [2] Transcript of appeal proceedings (T), T 3.34–35.

2. The respondent contends that the jurisdiction of the Commission is not one which is exercised on the basis of existing rights, liabilities and obligations, but is wholly dependent upon a person making a claim and the issuing of a dispute notice pursuant to s 78 of the 1998 Act. The respondent says that those events occur outside of the jurisdiction of the Commission. The respondent adds that there are restrictions upon what disputes may be brought to the Commission, which is different to the operation of a court that deals with matters at large, and leave is required to raise issues that are outside the notified dispute. The respondent points out that there are no strict pleadings in the Commission and cross-examination is only allowed by leave and in limited circumstances. Additionally, the rules of evidence do not apply in the Commission, expert witnesses are not called to give evidence and the Commission frequently is only called upon to refer a matter to a medical assessor to make an assessment. The respondent contends that the fact that the orders of the Commission cannot be enforced by the Commission and can only be enforced by the District Court also points to the Commission not constituting a court.

3. The respondent refers to several authorities which he says indicate that the Commission is not a court and submits that all of these aspects of the Commission indicate that the Commission is not a court.

4. The respondent submits that the Member’s consideration essentially involved a decision as to whether the appellant’s actions with respect to discipline and performance appraisal were reasonable. The respondent further submits that the Member’s decision in respect of that controversy between the parties was not an exercise of judicial power but rather falls somewhere between the exercise of administrative power and the exercise of judicial power. The respondent refers to the judgment of Kirk JA in Searle v McGregor,[3] the decision of the High Court in Burns v Corbett[4] and the observations of Weber SC DCJ in Rafiqul Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria[5] as authority to say that the Commission is exercising either administrative power or, if not, something short of judicial power. The respondent contends that, for this reason, the Commission cannot be elevated to the status of a court and does not “convert what occurs before Members to a judicial determination or judicial controversy.”[6]

   [3] [2022] NSWCA 213 (Searle).

   [4] [2018] HCA 15.

   [5] [2022] NSWDC 582 (Islam).

   [6] T 8.29–33.

5. The respondent submits that the result must be that the Commission is not a court and as such, does not exercise judicial power. The respondent says that the Member’s determination could not be judicial in nature therefore it cannot offend s 75(4) of the Constitution because it was within his power.

6. The respondent contends that, for the same reasons, the Commission has the power to determine the appeal and the appeal should proceed.

The appellant’s submissions

1. The appellant refers to the respondent’s submission that the appeal should proceed to be determined by a Presidential member and says that this was the appellant’s intention in lodging the appeal. The appellant indicates that it is in agreement with the respondent that the matter involves a dispute between the State and a resident of another state, the Commission is not a court and that the power exercised by the Member was administrative in nature. The appellant adds that it is unsure of the distinction between the notion of the exercise of administrative power and that of a non-judicial power and asserts that the Member’s decision was clearly administrative. The appellant submits that:

   “if [the Commission] were not a court then by definition the power that the Member had, and I am not suggesting for a moment that he didn’t have power, but it was properly regarded as an administrative power.”[7]

   [7] T 16.27–30.

2. The appellant cites Fletcher International Exports Pty Ltd v Lee[8] as authority for that proposition.

   [8] [2022] NSWPICPD 39 (Lee).

3. The appellant submits that, if the Commission has the power to deal with the appeal, then the same reasons as to why that is so apply to the Member’s determination. The appellant says that, while it does not concede that the proceedings ought not to have been commenced in the Commission, if that is the case then the Commission lacks the power to deal with the appeal and the entire proceedings ought to have been dealt with by the District Court, which has the power to judicially determine the matter.

The respondent’s additional submission

1. The respondent again refers to Weber SC DCJ’s observations in Islam in relation to the distinction between administrative and judicial power and his Honour’s discussion of the principles enunciated in Rizeq v Western Australia,[9] Love v Attorney General (NSW),[10] Precision Data Holdings Ltd v Wills[11] and R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd.[12] The respondent submits that where there is a determination that the appellant’s actions were or were not reasonable:

   “the mere fact that it’s being elevated to something which may involve the finding of a fact or a conclusion about a section of an Act does not make it immediately judicial in character …”.[13]

   [9] [2017] HCA 23.

   [10] [1990] HCA 4 (Love).

   [11] [1991] HCA 58.

   [12] [1970] HCA 8 (Tasmanian Breweries).

   [13] T 18.28–33.

2. The respondent submits that Weber SC DCJ’s observations in Islam in relation to the distinction between judicial power on the one hand and the “grey areas” on the other are persuasive and should be considered in the light of the legislative background and constitution of the Commission. The respondent asserts that consideration should be given to what the Commission does, as opposed to what a court ordinarily does, and the result is that there is no doubt that the issue in relation to s 11A of the 1987 Act does not elevate the nature of the power to one which is judicial, and thus impermissible.

3. The respondent submits that, in the event that his submissions are not accepted, in accordance with the High Court’s observations in Citta Hobart Pty Ltd v Cawthorn,[14] I am limited to expressing an opinion that there has been an impermissible exercise of judicial power, which is of no legal effect. The respondent submits that, in that event, he would seek an order for a stay of proceedings so that he could immediately proceed to make application to either the Supreme Court or the District Court in accordance with the Personal Injury Commission Act 2020 (the 2020 Act). The respondent submits that it would otherwise be a grave injustice to him if the proceedings are dismissed, which has been the usual practice of the Commission. Further it may otherwise result in a significant waste of time and resources.

   [14] [2022] HCA 16 (Cawthorn).

The appellant’s additional submissions

1. The appellant submits that, if the respondent wishes to make an application for a stay of the proceedings, then the appellant has no objection to such an application being made and it would not object to the course recommended by the respondent. Rather at odds with that position, the appellant submits that it reserves its position in relation to how it wishes to respond to any such application.

LEGISLATION

1. Sections 75, 76 and 77 of the Constitution provide:

   “75    Original jurisdiction of High Court

   In all matters—

   (i) Arising under any treaty:

   (ii) Affecting consuls or other representatives of other countries:

   (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

   (iv) Between States, or between residents of different States, or between a State and a resident of another State:

   (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

   the High Court shall have original jurisdiction.

   76     Additional original jurisdiction

   The Parliament may make laws conferring original jurisdiction on the High court in any matter—

   (i) Arising under this Constitution, or involving its interpretation:

   (ii) Arising under any laws made by the Parliament:

   (iii) Of Admiralty and maritime jurisdiction:

   (iv) Relating to the same subject-matter claimed under the laws of different States.

   77     Power to define jurisdiction

   With respect to any of the matters mentioned in the last two sections the Parliament may make laws—

   (i) Defining the jurisdiction of any federal court other than the High Court:

   (ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

   (iii) Investing any court of a State with federal jurisdiction.”

2. Sections 38 and 39 of the Judiciary Act relevantly provide:

   “38    Matters in which jurisdiction of High Court exclusive

   Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

   (a) …

   (b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

   (c) …

   (d) …

   (e)…

   39     Federal jurisdiction of State Courts in other matters

   (1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.

   (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:

   (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

   Special leave to appeal from decisions of State Courts though State law prohibits appeal

   (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.”

3. Division 3.2 of the 2020 Act provides for the determination of proceedings by the District Court in circumstances where the dispute involves the exercise of federal judicial power. Sections 25 and 26 of Division 3.2 relevantly provide:

   “25    Definitions

   In this Division—

   compensation claim means—

   (a) …

   (b) …

   (c)…, or

   (d) a claim for compensation or work injury damages to which the Workplace Injury Management and Workers Compensation Act 1998 applies.

   compensation matter application—see section 26.

   federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution.

   relevant courts legislation means—

   (a) the District Court Act 1973 and the rules of court under that Act, and

   (b) the Civil Procedure Act 2005 and the regulations and uniform rules under that Act in their application to the District Court.

   substituted proceedings—see section 27.

   usual decision-maker, in relation to determining a matter concerning a compensation claim, means the person or body (whether or not the President or Commission) on which the function is conferred or imposed by this Act or enabling legislation.

   26     Applications involving federal jurisdiction may be made to District Court

   (1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission.

   (2) The regulations may make provision for or with respect to—

   (a) who has standing to make an application for leave, and

   (b) excluding or including applications as compensation matter applications.

   (3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that—

   (a) an application was first made to the President or Commission, and

   (b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and

   (c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application.

   (4) An application for leave must be—

   (a) filed with the District Court along with—

   (i) an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and

   (ii) if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation—a copy of the terms of settlement, and

   (b) accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid.”

1. Section 294 of the 1998 Act provides:

   “294  Certificate of Commission’s determination

   (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.

   (2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”

2. Section 105 of the 1998 Act relevantly provides:

   “105  Jurisdiction of Commission and Compensation Court

   (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”

3. Section 56 of the 2020 Act provides that:

   “56    Effect of decisions of Commission

   (1) Except as otherwise provided by this Act or enabling legislation, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

   (2) A decision of or proceeding before the Commission is not—

   (a) to be vitiated because of any informality or want of form, or

   (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.”

4. Section 59 of the 2020 Act deals with enforcement of the Commission’s orders for amounts to be paid. The section provides:

   “59    Recovery of amounts ordered to be paid

   (1) For the purposes of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a civil or other penalty), the amount is to be certified by the principal registrar.

   (2) A certificate given under this section must identify the person liable to pay the certified amount.

   (3) A certificate of the principal registrar under this section that is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment.”

1. Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 rules) provides:

   “78    Statement of reasons for decision

   (1) This rule applies only in relation to the following applicable proceedings—

   (a) Commission proceedings,

   (b) merit review proceedings.

   (2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—

   (a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,

   (b) the appropriate decision-maker’s understanding of the applicable law,

   (c) the reasoning processes that led the appropriate decision-maker to the conclusions made.

   (3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

2. Section 352 of the 1998 Act makes provision for an appeal against a decision of a non-presidential member. The section imposes various procedural and threshold requirements, but also relevantly provides:

   “352  Appeal against decision of Commission constituted by non-presidential member

   (1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a presidential member against a decision in respect of the dispute by the Commission constituted by a non-presidential member.

   …

   (3A)There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.

   …

   (5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.

   …

   (6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

   (7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).

   …

   (8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”

3. Section 353 of the 1998 Act relevantly provides:

   “353  Appeal against decision of Commission constituted by presidential member

   (1) If a party to any proceedings under the Workers Compensation Acts before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member in point of law, the party may appeal to the Court of Appeal.”

4. Section 11A of the 1987 Act relevantly provides:

   “11A No compensation for psychological injury caused by reasonable actions of employer

   (1)No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

   …”

CONSIDERATION

Is the dispute a matter between a State and a resident of another state?

1. The parties are in agreement that this matter involves a dispute between a resident of Queensland and the State of New South Wales, which is clearly correct.

Is the Commission a court?

1. Both parties submit that the Commission is not a court of the State and thus not vested with federal jurisdiction to determine the dispute.

2. The Workers Compensation Division of the Commission operates in much the same fashion as the former Workers Compensation Commission (WCC) and the members of the Division have similar roles, obligations and powers as the former arbitrators of the WCC. The status of the WCC was considered by the Court of Appeal in Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor.[15] Ipp JA (Spigelman CJ and Handley JA agreeing) took into account factors that pointed to the WCC being a court, including that the President of the WCC was required to be a judge of a court of record, and the Deputy Presidents had to be either a judicial or former judicial officer or a legal practitioner of at least five years’ standing. Additionally, the WCC could compel parties to appear; could require persons to take an oath or affirmation and the orders of the WCC were capable of enforcement. His Honour observed, however, that many of the provisions of the 1998 Act pointed to the WCC not being a court. Those factors included that the arbitrators were appointed by the President, the arbitrators did not have to be legally qualified, the functions of the Registrar could be delegated, and the arbitrators could mediate a dispute and then proceed to hear and determine the dispute. Further, members of the WCC did not have security of tenure and medical disputes as to permanent impairment were dealt with by Approved Medical Specialists, who issued a Medical Assessment Certificate which was conclusively presumed to be correct.

   [15] [2003] NSWCA 146 (Orellana-Fuentes).

3. Ipp JA observed that all of those matters were significantly inconsistent with the WCC being a court. Those functions and requirements are consistent with the operation of the Workers Compensation Division of the current Commission. I see no reason why those factors are not equally relevant to the operation of the Workers Compensation Division of the current Commission, and thus I am satisfied that the Commission is a not a court of the State. The Commission is therefore not invested with the judicial power to determine a dispute between the State and a resident of another State.

Is the determination of the dispute an exercise of judicial power?

1. Both parties assert that the power exercised by the Member in determining the dispute was administrative, rather than judicial, in nature. The appellant relies upon the decision of Snell DP in Lee as authority to say that the Member was exercising administrative power in the decision-making process. Lee is not authority for that proposition. The essence of that appeal centred around whether the argument that the dispute was between a State and a resident of another State was “colourable” or arguable, and whether the Member erred in awarding compensation on the basis that he was of the opinion that he had jurisdiction to do so.

2. The respondent submitted that because the Commission is not a court, the power exercised by the Member was administrative power. I reject that submission. In Orellana-Fuentes, Ipp JA (Spigelman CJ and Handley JA agreeing) said:

   “Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a court. There are many institutions that exercise judicial powers but are well recognised not to be courts.”[16]

   [16] Orellana-Fuentes, [39] per Ipp JA (Spigelman CJ and Handley JA agreeing).

3. As those observations disclose, the fact that the Commission is not a court does not necessarily lead to the conclusion that all the decisions of the Commission must be administrative in nature.

4. The respondent also submits that the inability of the Commission to enforce its own decisions is a factor leading to a determination that the Member’s decision was not an exercise of judicial power. The power to enforce an order has long been regarded as an essential element in the exercise of judicial power.[17]

   [17] R v Davison [1954] HCA 46.

5. Section 59 of the 2020 Act provides that an amount of compensation ordered to be paid can be recovered by having the amount certified by the principal registrar and that certificate operates as a judgment which is enforceable in a court with jurisdiction to order payment of the amount certified. The respondent relies upon Brandy v Human Rights & Equal Opportunity Commission,[18] which does not assist the respondent’s argument.

   [18] [1995] HCA 10 (Brandy).

1. In Brandy, Deane, Dawson, Gaudron and McHugh JJ said (citations omitted):

   “However, there is one aspect of judicial power which may serve to characterize a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd Barton J said:

   ‘It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.’

   …

   However, notwithstanding the reference by Griffith CJ to a tribunal ‘called upon to take action’, it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision. As Dixon CJ and McTiernan J observed in Reg. v. Davison, an order of a court of petty sessions for the payment of money is made in the exercise of judicial power, but the execution of such an order is by means of a warrant granted by a justice of the peace as an independent administrative act.”[19]

   [19] Brandy (per Deane, Dawson, Gaudron and McHugh JJ), [11]–[12].

2. Thus, the respondent’s submission that the enforcement of the Commission’s decisions requires application to a court with appropriate monetary jurisdiction is indicative of the Member’s determination being an exercise of administrative power is not persuasive.

3. The respondent further submits that there are restrictions upon what disputes may be brought to the Commission, which is different to the operation of a court that deals with matters at large, the rules of evidence do not apply, and leave is required to raise issues that are outside the notified dispute. The respondent points to no particular authority for the proposition that these matters are relevant to consider, although I note that the facts that the Commission is not bound by the rules of evidence, and its procedures are informal, can be an indication that the exercise of a function is administrative. Those matters are not, however, determinative. The Commission is still required to act in accordance with principles of procedural fairness.[20]

   [20] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4, [82].

4. The respondent submits that, in accordance with Cawthorn, if I consider that the Member’s determination may be an exercise of judicial power, I am limited to expressing an opinion and I cannot determine whether the decision is, or is not, an exercise in judicial power. In Cawthorn, the plurality said (citations omitted):

   “A court in which judicial power is invested therefore ‘has jurisdiction to determine – and to determine judicially – whether it has the jurisdiction to entertain a particular application or to make a particular order’. The court, in other words, has ‘jurisdiction to decide its own jurisdiction’ -  in the performance of which it exercises judicial power.

   A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority – in the exercise of non-judicial power – to ‘make up its mind’ or ‘‘decide’ in the sense of forming an opinion’ about the limits of its own jurisdiction ‘for the purpose of determining its own action’. The authority is not to ‘reach a conclusion having legal effect’ but to form an opinion for the purpose of ‘moulding its conduct to accord with the law’.”[21]

   [21] Cawthorn, [23]–[24].

5. It is thus necessary to consider the character of the power being exercised, in order to form an opinion as to whether it is an exercise of judicial power. In Love, the High Court observed that “[j]udicial power has proved to be insusceptible of comprehensive definition.”[22]

   [22] Love, [21].

6. However, as Kitto J described in Tasmanian Breweries:

   “Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.”[23]

   [23] Tasmanian Breweries, 374–374.

7. I note that the respondent relies on the Court of Appeal authority of Searle. That case involved a claim under the motor accidents legislation, dealt with in the Motor Accidents Division of the Commission. Kirk JA (with Bell CJ and Ward P agreeing) made the following observations in relation to the nature of the Commission’s determinations:

   “Mr McGregor also submitted that determination of claims for statutory benefits under the [Motor Accident Injuries Act 2017 (NSW)] would be subject to the Burns v Corbett limitation. That is a submission open to substantial doubt, for it is questionable whether the various determinations of such benefits involve the exercise of judicial power. In that regard it is notable that claims for statutory workers compensation benefits in the federal sphere have long been, in general, determined first by an administrative agency (Comcare), with review rights in the Administrative Appeals Tribunal … However, it is not necessary to address the issue of the nature of claims for statutory benefits here.”[24]

   [24] Searle, [21].

8. I do not consider that Searle assists the parties in respect of an assessment of whether the determination in this matter was an exercise of judicial power. The Court did not consider the nature of the power exercised in the Workers Compensation Division of the Commission, which resulted in enforceable orders awarding weekly compensation and treatment expenses under the workers compensation scheme and certainly did not consider the nature of the power to be exercised at the presidential level.

9. The judgment of Weber SC DCJ of the District Court in Islam, while not a decision on point in respect of the status of decisions in the Workers Compensation Division of the Commission, provides a useful summary of the indicia drawn from the various authorities dealing with the distinction between administrative and judicial powers. That is, that judicial power:

   (a)    is exercised independently of the person against whom the proceedings are brought;[25]

   (b)    is binding and authoritative, whether or not it is subject to appeal;[26]

   (c)    determines existing rights and obligations according to law, thus quelling the controversy between the parties,[27] and

   (d)    must be exercised judicially by way of an “open and public enquiry (unless the subject matter necessitates an exception)” and the “observance of the rules of procedural fairness.”[28]

   [25] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16, [31].

   [26] Huddart, Parker & Co Limited v Moorehead [1909] HCA 36.

   [27] Tasmanian Breweries.

   [28] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 per French CJ and Gageler J, [27].

10. In this case, the decision by the Member involved a consideration of the relevant legislation (s 11A of the 1987 Act) and the applicable authorities, an assessment of the available evidence and an independent evaluation of each parties’ case. Section 56 of the 2020 Act provides that the decision is final and binding, and an appeal pursuant to s 352 is limited to the question of whether the determination is or is not affected by error of fact, law or discretion. It operates to quell the controversy between the parties in respect of whether the appellant’s conduct was reasonable and whether the respondent is accordingly entitled to compensation.

11. An Anshun estoppel, in some circumstances, can apply to such determinations of the Commission.[29] A member of the Commission is required to provide written reasons for the decision[30] and decisions of the Commission are published, thus are open to public scrutiny. Importantly, the Member’s order that the appellant pay the respondent compensation is enforceable in accordance with s 59 of the 2020 Act.

    [29] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190.

    [30] Rule 78 of the 2021 rules.

12. While each of these matters would not, of themselves, be sufficient to show that the Member was exercising judicial power, considering them cumulatively leads me to be of the opinion that the Member was impermissibly exercising judicial power in determining the dispute between the parties. In Orellana-Fuentes Ipp JA (with Spigelman CJ and Handley JA agreeing) considered that “[u]ndoubtedly, the Commission does exercise judicial powers.”[31]

    [31] Orellana-Fuentes, [39].

1. A fortiori, I am of the opinion that a determination of the appeal would also involve an impermissible exercise of judicial power. The same indicia pointing to the exercise of judicial power that is relevant to a decision of a non-presidential member is equally applicable to a decision of a Presidential member. In addition, a Presidential member is required to be or have been a judicial officer or be an Australian lawyer of at least seven years’ standing, a decision of a Presidential member is authoritative, and an appeal from such a decision is only available in point of law.[32]

   [32] Section 353(1) of the 1998 Act.

2. The respondent indicates that, if I am of the opinion that the Member’s determination of the dispute and/or a determination of the appeal is an exercise of judicial power contrary to s 75 of the Constitution, then these proceedings should be stayed in order for him to pursue appropriate proceedings in another jurisdiction, either in the Supreme Court, or in the District Court in accordance with Division 3.2 of the 2020 Act. The appellant indicates that it would not object to such a course but submits that it reserves its position in relation to how it wishes to respond to any such application.

3. Having formed the opinion that the Member was exercising judicial power in determining the matter, I am of the view that it is appropriate to stay these proceedings for a period of 12 weeks from the date of issue of this opinion in order for the parties to take necessary steps to progress the matter in a different forum. It is also appropriate to provide each party with liberty to apply in the event that they are aggrieved by the order that the proceedings are stayed, including the period for which the stay will operate.

DECISION

1. In the opinion of the Commission, the Member’s Certificate of Determination dated 10 January 2022 was issued without jurisdiction.

2. These proceedings are stayed until 12 April 2023.

3. The parties have liberty to apply in respect of the Order staying the proceedings.

Elizabeth Wood
Deputy President

18 January 2023