State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 4)
[2023] NSWPICPD 52
•31 August 2023
| DECISION OF THE PRESIDENT OF THE PERSONAL INJURY COMMISSION | |
| CITATION: | State of New South Wales (Western NSW Local Health District) v Kanajenahalli (NO 4) [2023] NSWPICPD 52 |
| APPELLANT: | State of New South Wales (Western NSW Local Health District) |
| RESPONDENT: | Mohan Kanajenahalli |
| INSURER: | QBE TMF |
| FILE NUMBER: | A1-W4275/21 |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF DECISION ON REMITTER: | 31 August 2023 |
ORDERS MADE ON REMITTER: | 1. The Orders of the Commission dated 18 January 2023 in Kanajenahalli No 2 are revoked. 2. The hearing of the appeal from Kanajenahalli No 1 is remitted to Deputy President Wood to be heard and determined in accordance with the Court of Appeal decision in Kanajenahalli No 3. |
| CATCHWORDS: | WORKERS COMPENSATION – remittal from the Court of Appeal – s 353 of the Workplace Injury Management and Workers Compensation Act 1998 constitutional law – federal jurisdiction |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr D Baran, counsel | |
| Stacks Law Firm | |
DATE OF MEMBER’S DECISION: | 10 January 2022 |
| DATE OF PRESIDENTIAL MEMBER’S DECISION: | 18 January 2023 |
DATE OF COURT OF APPEAL DECISION: | 30 August 2023 |
INTRODUCTION
This matter comes before the Personal Injury Commission (the Commission) pursuant to an order for remitter made by the Court of Appeal in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District).[1]
[1] [2023] NSWCA 202, 30 August 2023 (Kanajenahalli No 3).
BACKGROUND
This claim was brought by Mohan Kanajenahalli against his employer, the State of New South Wales (Western New South Wales Local Health District), alleging that he suffered a psychological injury in the course of his employment at the Dubbo Base Hospital. The claim was for weekly compensation, permanent impairment compensation and the payment of medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act). The employer resisted the claim on the basis that any injury suffered was caused by the reasonable conduct of the employer in respect of performance appraisal or discipline. At first instance, the Member found in favour of Mr Kanajenahalli.[2]
[2] Kanajenahalli v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 8, 10 January 2022 (Kanajenahalli No 1).
The employer appealed to a Presidential Member who, in an opinion dated 18 January 2023, was of the view that the decision in Kanajenahalli No 1 involved a dispute between interstate residents and that the Commission had no jurisdiction to decide the matter, noting that such applications potentially involving federal jurisdiction may be made to the District Court pursuant s 26 of Div 3.2 of the Personal Injury Commission Act 2020. The appeal proper was otherwise not dealt with. The Certificate of Determination dated 10 January 2022 was set aside.[3]
[3] State of New South Wales v Kanajenahalli [2023] NSWPICPD 1 (18 January 2023) (Kanajenahalli No 2).
Mr Kanajenahalli appealed the opinion of the Presidential member to the Court of Appeal.
THE DECISION OF THE COURT OF APPEAL
The decision of the Court of Appeal is dated 30 August 2023. The judgment of the Court said, inter alia, the following:
“What is determinative of this appeal is the nature of the particular dispute between the parties. More general considerations do not all point in the same direction. Thus (and without being exhaustive), although its decisions are final and binding, the Commission is empowered to ‘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’: Personal Injury Commission Act 2020 (NSW), ss 56 and 57. lt is also true that the certificate of the Commission may be filed in a court and will thereafter operate as a judgment: Personal Injury Commission Act, s 59.
There is no occasion in determining the present appeal (which lacks any contradictor) to resolve any more general question as to the nature of the powers exercised by the Commission, or to seek to reconcile the statements in Orellana-Fuentes [v Standard Knitting Mill Pty Ltd [2003] NSWCA 146] and Searle [v McGregor [2022] NSWCA 213] mentioned above (although it may be noted that the statement in Orellana-Fuentes was expressed in general terms, without regard to the particular powers being exercised in any particular case). lt is sufficient to observe that in the case of the particular dispute involving these parties, where the only issue was that arising under s 11A, the Commission was exercising administrative power. The limitation in Burns v Corbett [[2018] HCA 15] was not infringed.”[4]
[4] Kanajenahalli No 3, [12]–[13].
The Court made the following orders:
“1. To the extent necessary, grant leave to appeal.
2. Appeal allowed.
3. Set aside the opinion, being a decision pursuant to s 353(5) of the Workplace Injury Management and Workers Compensation Act1998 (NSW), of Deputy President Wood delivered on 18 January 2023 and in lieu thereof declare that neither the decision of Member Burge nor the appeal to the Personal Injury Commission involves or has involved the exercise of judicial power within Ch III of the Constitution (Cth).
4. Remit the matter to the President of the Personal Injury Commission to be determined according to law.
5. No order as to the costs in this Court.”
ORDERS ON REMITTER
It is necessary that appropriate orders be made in compliance with the judgment and orders of the Court of Appeal, in substitution for those in the Presidential opinion dated 18 January 2023, which has been set aside.
DECISION
The Orders of the Commission dated 18 January 2023 in Kanajenahalli No 2 are revoked.
The hearing of the appeal from Kanajenahalli No 1 is remitted to Deputy President Wood to be heard and determined in accordance with the Court of Appeal decision in Kanajenahalli No 3.
Judge Phillips
PRESIDENT
31 August 2023
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