Sydney Water Corporation v Singh
[2005] NSWWCCPD 92
•22 August 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sydney Water Corporation v Singh [2005] NSW WCC PD 92
APPELLANT: Sydney Water Corporation
RESPONDENT: Harcharan Singh
INSURER:Self Insured
FILE NUMBER: WCC11491-04
DATE OF ARBITRATOR’S DECISION: 8 March 2005
DATE OF APPEAL DECISION: 22 August 2005
SUBJECT MATTER OF DECISION: Sections 151A & 151C Workers Compensation Act 1987; election to commence proceedings in the District Court, and preclusion from commencing proceedings in the Workers Compensation Commission.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Astridge & Murray Solicitors
Respondent: Ticli Blaxland Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 8 March 2005, is revoked and the following decision is made in its place:
The Applicant is precluded from bringing his claim in the Workers Compensation Commission, having made an election under section 151A of the Workers Compensation Act 1987 to commence proceedings in the District Court.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 March 2005 Sydney Water Corporation (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 March 2005.
The Respondent to the Appeal is Harcharan Singh (‘the Respondent/ Mr Singh’).
The Appellant is self-insured.
The basis of Mr Singh’s claim is that he fell from some scaffolding on 18 August 2001 in the course of his employment with the Appellant and received injuries as a result. Mr Singh claimed compensation for non-economic loss and made a threshold claim for work injury damages. On 26 November 2001 Mr Singh commenced proceedings against the Appellant for damages in the District Court at Parramatta, in respect of the same injury. Notice of injury was given on 20 August 2001 and a compensation claim was made on the same day. The Appellant filed a reply on 17 August 2004 submitting that Mr Singh had made an election to proceed in the District Court and therefore, he had no entitlement for an award of compensation in the Commission.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 8 March 2005 records the Arbitrator’s orders as follows:
“For the reasons set out in this statement, the decision in this matter is:
1. That the Application be referred to an Approved Medical Specialist or Specialists for the issue of a Medical Assessment Certificate.”
In arriving at his decision the Arbitrator stated, inter alia, at paragraphs 21 - 22:
“21.Section 151C prohibits the bringing of a claim prior to the expiration of six months except in defined circumstances that do not apply in this case. Consequently, I prefer the conclusion of Sheehan [sic] J in McQueeney v Raybreak Pty Ltd as referred to in submissions on behalf of the Applicant to the effect that the passing of six months is a condition precedent to bringing a claim and consequently the Claim by the Applicant in the District Court at Parramatta was a nullity.
22.It follows that the Applicant has not made an election under Section 151A and consequently he may bring the current Application to the Commission.”
ISSUE IN DISPUTE
The issue in dispute in this appeal is the threshold issue as to whether the Arbitrator erred in finding that Mr Singh is entitled to bring an application for lump sum compensation for permanent impairment and pain and suffering, to the Commission by reason that he had not made an irrevocable election under section 151A of the 1987 Act, as it then provided, to commence proceedings in the District Court.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)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 without holding any conference or formal hearing.”
Both parties have requested an oral hearing. However, having regard to Practice Directions Numbers 1 and 6, the written submissions of the parties, and all of the other documents that are before me, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000, being the original amount claimed before the Arbitrator, but no amount of compensation was awarded by the Arbitrator. Section 352(2)(a) of the 1998 Act is satisfied but section 352(2)(b) has no application. (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
I have carefully perused the submissions of both parties, the documents and submissions that were before the Arbitrator and the Arbitrator’s Statement of Reasons for Decision. The issue in dispute in this appeal is the same issue that has arisen in the Commission on previous occasions, supported substantially, by the same lines of legal argument and authority. I consider that there is no need to restate the written submissions made and the contents of the documents that are before me.
DISCUSSION AND FINDINGS
The precise issue in this appeal has been determined in the New South Wales Court of Appeal in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’). That case was in turn, considered and discussed by me in Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59 and Maiorana v Ranieri & Giubega Pty Ltd t/as All Seasons Fruit Market [2005] NSW WCC PD 85.
In Gordon the Court of Appeal held that section 151C of the 1987 Act is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings, as found by the Arbitrator in the instant case. However, the Court of Appeal found that proceedings commenced in contravention, “at least in an inferior court”, are not a nullity or void. Mason P cited a number of relevant authorities at [36] in support of this finding, stating that they all recognized that the purpose of provisions such as section 151C of the 1987 Act was to promote settlement before commencement of court proceedings. He went on to say, “It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity.”
Mason P stated further that inquiry should be made to discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. He observed at [42], (Sheller and Beazley JJA agreeing), that section 151C(1), which applies to proceedings in the District Court, was not a provision that “spells incurable voidness upon non-compliant proceedings.” He concluded at [49] that section 151C(1) “does not erect a jurisdictional preclusion”. The Court of Appeal held accordingly, that the section was not found to reflect the requisite legislative intention that nullity is the consequence of non-compliance, as “per the principles stated in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 358.”
This issue was dealt with on appeal in slightly different circumstances in Cardona v Penrith City Council [2003] NSW WCC PD 36, an earlier decision of the Commission, where the Deputy President observed that, notwithstanding that the proceedings commenced may have been incompetent, it does not mean that they were not commenced at all, this being consistent with the decision in Gordon.
At the relevant time, section 151A(2) of the 1987 Act provided:
“(2)A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:
(a)permanent loss compensation in respect of the injury; and
(b)damages in respect of the injury from the employer to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages.”
Section 151A(3) provided, in part:
“(3)The person makes that election:
(a)By commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injuries).”
These are the applicable provisions in the instant case, notwithstanding subsequent amendment of the section.
Having regard to the decision in Gordon, it follows that the election was made by Mr Singh to bring the proceedings in the District Court and, contrary to the finding of the Arbitrator, those proceedings are not a nullity or void. As a consequence, Mr Singh is not entitled to bring his claim for determination in the Commission. Gordon was not considered by the Arbitrator. Had Gordon been applied it is clear that the Arbitrator would have arrived at a different conclusion.
In the circumstances, I find that the Arbitrator erred in determining that the claim brought by Mr Singh in the District Court at Parramatta is a nullity. Consequently, the decision of the Arbitrator should be revoked.
DECISION
The appeal is upheld, the decision of the Arbitrator dated 8 March 2005 is revoked, and the following decision is made in its place:
The Applicant is precluded from bringing his claim in the Workers Compensation Commission, having made an election under section 151A of the Workers Compensation Act 1987 to commence proceedings in the District Court.
COSTS
No order is made as to costs of the appeal.
Gary Byron
Deputy President
22 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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