Thien Vu Huynh v Andison International Pty Ltd

[2005] NSWWCCPD 86

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Thien Vu Huynh v Andison International Pty Ltd [2005] NSWWCCPD 86

APPELLANT:  Thien Vu Huynh

RESPONDENT:  Andison International Pty Ltd

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC4397-04

DATE OF ARBITRATOR’S DECISION:          3 August 2004

DATE OF APPEAL DECISION:  12 August 2005

SUBJECT MATTER OF DECISION: Sections 151A and 151C of the Workers Compensation Act 1987; election to commence proceedings in the District Court; preclusion from commencing proceedings in the Workers Compensation Commission.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Carroll & O’Dea, Lawyers

Respondent: Rankin Nathan, Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

No order is made as to costs.

BACKGROUND TO THE APPEAL

1. On 31 August 2004, Thien Vu Huynh sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 3 August 2004.

1. The Respondent to the Appeal is Mr Huynh’s employer at the relevant time, Andison International Pty Ltd (‘Andison’).

1. Mr Huynh was born on 20 June 1966 and is aged 39. On 6 June 2001, he injured his left, non-dominant, hand while working as a process worker for Andison when he fell from the container he was unloading onto a concrete floor. He notified Andison of the injury on that day and, on 10 December 2003, lodged a claim for permanent impairment and pain and suffering amounting to $46,000 pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Andison not having made a decision on this claim within the required period, Mr Huynh lodged an ‘Application to Resolve a Dispute’ that the Commission registered on 15 March 2004. In its ‘Reply’, dated 5 April 2004, Andison’s principal contention was that Mr Huynh had no entitlement to such compensation, having previously made an election under section 151A of the 1987 Act, as applicable on 16 November 2001, when Mr Huynh lodged a Statement of Claim in the District Court of NSW claiming damages in respect of the injury.

1. On 22 June 2004, the Arbitrator conducted a teleconference with the parties at which the parties agreed that he should determine as a preliminary legal issue whether Mr Huynh was precluded by section 151A of the 1987 Act from pursuing his claim for compensation under sections 66 and 67 of the 1987 Act by reason of the District Court proceedings he commenced on 16 November 2001. The Arbitrator directed the parties to file and serve written submissions on this issue, on receipt of which he would determine the issue ‘on the papers’. On 12 August 2004, he made the determination set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 3 August 2004, records the Arbitrator’s orders as follows:

“1. The Application is struck out.
2. The Applicant is not liable for the payment of compensation under section 66 and/or section 67 of the 1987 Act.
3. No order as to costs.”

1. The Arbitrator noted that Mr Huynh’s Statement of Claim lodged in the District Court was struck out by Gibson DCJ for breach of section 151C(1). This states:

“(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.”

1. Relying on the decision of Deputy President Fleming in Mario Cardona v Penrith City Council [2003] NSW WCC PD 36 (‘Cardona’), the Arbitrator held that notwithstanding that Mr Huynh’s proceedings in the District Court were struck out and he was unable to recover damages, and would also be unable to recover permanent loss compensation, he had nevertheless commenced proceedings in that Court and was therefore precluded from commencing proceedings for permanent loss compensation by section 151A(3)(a) of the 1987 Act in effect at 16 November 2001. The Arbitrator said:

“the Commission is required to apply the clear unambiguous wording of the legislation made by Parliament, and the remedy to avoid such injustice may require legislative amendment.”

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is a legal issue: whether Mr Huynh is precluded from claiming compensation pursuant to sections 66 and 67 of the 1987 Act by reason of the former section 151A of the 1987 Act in effect at the time Mr Huynh’s claim for damages was filed in the District Court on 16 November 2001.

1. Section 151A stated relevantly:

“(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 liable to pay that compensation,

but is required to elect whether to claim that permanent loss compensation or those damages.

(3) The person makes that election (or is taken to have made 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  in respect of the injury); or
(b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).”

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

   “(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.”

2. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Mr Huynh’s solicitors submit that the matter should be listed for hearing for the purpose of making oral and/or written submissions. Andison objects to the matter being considered on the basis of oral argument given that the parties, at the teleconference on 22 June 2004, consented to the matter being determined on the basis of written submissions. Having considered these submissions, and the parties’ written submissions to the Arbitrator, 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.

3. Neither party sought to adduce fresh evidence.

LEAVE

1. 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 Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation at issue is $46,000 and comprises 100% of the amount sought by Mr Huynh, the application in respect of which was struck out by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS

1. Mr Huynh’s solicitors submit that Mr Huynh is not precluded from commencing and continuing these proceedings by reason of section 151A of the 1987 Act. They submit the Arbitrator erred in finding that the claim filed by Mr Huynh in the District Court constituted “proceedings commenced in a court” and an “election” within the meaning of section 151A. The Arbitrator also erred in finding that the claim filed in the District Court was not null and void and of no legal effect, and that section 151A is not a condition precedent but is merely a “procedural issue”.

1. In their submissions to the Arbitrator, Mr Huynh’s solicitors argued that the ex tempore decision of Neilson J in Deng v GMS Fulfilment Services Ltd (2003) 25 NSWCCR 446 (‘Deng’), on similar facts, was incorrect, and a careful analysis of a number of NSW Court of Appeal decisions establishes (submissions at paragraph 3.4):

“That a breach by a litigant of a condition precedent to the commencement of proceedings renders the proceedings null and void. As such the litigant has not commenced proceedings and has not made an election pursuant to section 151A.”

1. By letter dated 9 March 2005, Mr Huynh’s solicitors referred the Commission to the decision of an arbitrator in Jeffrey Humphreys v Mulco Tools & Engineering Pty Ltd (WCC 11341-04, 26 November 2004) where the Arbitrator held (at paragraph 42), on similar facts, “that because the condition precedent had not been satisfied, the District Court proceedings were not validly commenced and no election was made under section 151A”.

1. Andison submits that the decision in Deng was correct and that proceedings commenced in breach of section 151C are not a nullity. Moreover, in Cordona, Deputy President Fleming stated (at paragraph 27):

“The fact that the Appellant commenced proceedings that may have been incompetent under the Motor Accidents Act 1999, does not mean they were not commenced at all.”

1. By letter dated 14 March 2005, Andison referred the Commission to the decision of an arbitrator in Bartola Maiorana v Grubega Pty Ltd t/as All Seasons Fruit Market (WCC 14413-04, 11 January 2005), where the arbitrator held (at paragraph 58), again on similar facts, following Deng, that “the Applicant’s common law claim in November 2001 cannot be regarded as a nullity and there is no basis to find that those proceedings were not commenced in the District Court”. However, Andison also referred the Commission to the recent decision in Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27 (‘Gordon’), where the NSW Court of Appeal held that non-compliance with the requirements of section 151C(1) did not render the proceedings a nullity.

DISCUSSION

1. As stated above, the issue in dispute is a legal one and there are no evidentiary issues to be determined. There is no dispute that on 16 November 2001, Mr Huynh’s solicitors filed a Statement of Claim in the District Court of NSW claiming damages as a result of the injury suffered by Mr Huynh on 6 June 2001 in the course of his employment with Andison. This Statement of Claim was struck out by Gibson DCJ on 11 July 2003 because the proceedings were commenced before six months had elapsed since notice of the injury was given to the employer, Andison, contrary to section 151C(1) of the 1987 Act.

1. The parties’ submissions have, essentially, been overtaken by the decision of the NSW Court of Appeal in Gordon. In my view, this decision is directly on point and binding on the Commission, as Deputy President Byron recognised in his recent decisions in Sandarousi v L & A Pressure Welding Pty Ltd [2005] NSW WCC PD 59 (‘Sandarousi’), and Mariorani v Ranieri & Giubega Pty Ltd t/as All Seasons Fruit Market [2005] NSW WCC PD 85 (‘Mariorani’).

1. In Gordon, Mason P, with whom Sheller and Beazley JJA agreed, held (at paragraph 42) that section 151C(1) “is not a provision that spells incurable voidness upon non-compliant proceedings”. The subsection “does not erect a jurisdictional preclusion” (at paragraph 50). Rather, it is “a condition precedent of a procedural nature that must be satisfied prior to the commencement of proceedings” (paragraph 36). It is impossible to infer that Parliament would have intended that invalidity or nullity would be the consequence of non-compliance (paragraph 44).

1. Deputy President Byron has analysed the decision and other relevant case law in greater depth in Sandarousi and Mariorani, and there is no utility in my repeating such an analysis here.

1. Thus, the District Court proceedings commenced by Mr Huynh were not null and void and of no legal effect. By commencing those proceedings, Mr Huynh elected to seek damages in respect of the injury from the employer, and was consequently precluded by section 151A of the 1987 Act then in effect, from pursuing a claim for permanent loss compensation in the Workers Compensation Commission.

1. In conclusion, there was no error of law made by the Arbitrator, whose decision must therefore be confirmed.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. No order is made as to costs.

Robin Handley

Acting Deputy President  

12 August 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE