Total Mine Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Total Mine Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 162
APPLICANT:	Total Mine Solutions Pty Limited
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare Workers Insurance)
second respondent:	Wayne Baker
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	14 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; the second respondent is a resident of Tasmania; consideration of whether the matter may be federally impacted; the Personal Injury Commission cannot decide whether the determination involves an exercise of federal jurisdiction, but should express a view; consideration of Fletcher International Exports Pty Ltd v Lee, State of New South Wales v Kanajenhalli and Citta Hobart Pty Ltd v Cawthorn; opinion expressed that the matters raised give rise to an issue capable of judicial determination; Held – the application is dismissed pursuant to section 54(b); the application may be restored if remitted by the District Court pursuant to section 26(5)(a).
determinations made:	1. The Application is dismissed pursuant to s 54(b) of the Personal Injury Commission Act 2020. 2. The Application may be restored if remitted by the District Court pursuant to s 26(5)(a) of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

The applicant, Total Mine Solutions Pty Limited (Total Mine), has filed a Miscellaneous Application (the Application) in the Personal Injury Commission (the Commission). The applicant disputes its liability to reimburse the first respondent, Workers Compensation Nominal Insurer (iCare Workers Insurance (iCare)), for payments of compensation made to or on behalf of the second respondent, Wayne Baker (Mr Baker/the worker), pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act).
Mr Baker was employed by the applicant as a geologist. He sustained injury to his lumbar spine on 13 January 2022. The injury occurred at a mine site in Broken Hill. Mr Baker resided in Tasmania and returned there after the injury.
The applicant did not hold a policy of insurance for workers compensation in New South Wales. It is registered in Queensland and held insurance in that state.
The second respondent completed an Initial Notification.
The applicant completed a Worker Claim Form (the claim form), which is undated and unsigned. The date of injury is stated to be 13 January 2022.
Mr Baker stated:
“I was compelled to rescue two colleagues that had become bogged. There was no rescue procedure in place or recovery gear available. Rod Hall and myself decided to take two vehicles to try and rescue the bogged vehicle, in case one of our vehicles also became bogged. Rod’s vehicle became bogged in an area with no phone reception. We decided to try and dig it out. I started digging the front right hand tyre out and felt a twinge in my back and some mild discomfort. I then asked Rod to take over the digging. The discomfort eased and I continued the rescue and finished the night shift. The following shift the discomfort worsened and we finished early. I went to bed and woke up with severe sciatic pain.”
The first respondent accepted liability for the claim and has made payments to, for and on behalf of Mr Baker.
On 16 August 2022, iCare issued the applicant with a notice pursuant to s 145(1) of the 1987 Act (the notice), seeking reimbursement of the sum of $82,628.90.
The applicant filed the Application on 12 September 2022. It sought an order that reimbursement of the compensation referred to in the notice is not required, or in the alternative, the amount be reduced.
The first respondent filed its Reply on 21 September 2022.
The second respondent filed his Reply on 7 November 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) Whether the Application is federally impacted.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for preliminary conference before me on 12 October 2022. Mr Macken appeared for the applicant; and Mr Dolan appeared for the first respondent. Mr Butcher of iCare also attended.
Directions were made to join Mr Baker as the second respondent, and for further conduct of the matter.
The matter was listed for further preliminary conference on 24 November 2022. Mr Macken appeared for the applicant; Mr Dolan appeared for the first respondent; and Mr Keen appeared for the second respondent. Mr Butcher again attended.
The applicant stated that the matters in dispute are employment, at the time of the injury, not generally; injury; causation; substantial contributing factor; main contributing factor; capacity; the reasonable necessity of medical treatment, and whether the Application is federally impacted.
The second respondent confirmed that he is based in Tasmania, worked in New South Wales, and returned to Tasmania after the injury.
The parties agreed that the issue of whether the Application is federally impacted should be determined before the matter was listed for conciliation/arbitration hearing.
A timetable was set for the parties to provide written submissions on the issue of whether the Application is federally impacted. Submissions have now been provided.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Miscellaneous Application and attached documents;
(b)    First respondent’s Reply and attached documents, and
(c)    Second respondent’s Reply and attached documents.
Both the applicant and the first respondent have filed Applications to Admit Late Documents, neither of which has yet been admitted into evidence. As the evidence is not relevant to the determination of whether the Application is federally impacted, I have not had regard to it in making this determination.

FINDINGS AND REASONS

I have had regard in making this determination only to the evidence relevant to the discrete issue of whether the Application is federally impacted.

Evidence of the second respondent, Wayne Baker

Mr Baker’s statement is dated 17 March 2022.
He started work with Total Mine in about October/November 2021. It is in Queensland. It is a labour hire company.
He was sent to an exploration site about 60km south of Broken Hill.
As soon as he could after the injury, he got a flight back to Hobart.

Evidence of Matthew Lawless, director of the applicant

Mr Lawless’s statement is dated 6 May 2022.
Total Mine has an office at Caven in Queensland. It provides technical support to the mining industry. It is a combination of labour hire, looking after projects, and contracts.
They placed Mr Baker with Hawson’s Iron at its site at Broken Hill.
After the injury, Mr Baker decided he wanted to go back to Tasmania, and they “got him back to Tasmania”.

SUBMISSIONS

The parties have provided written submissions, so I will summarise them only briefly.

Applicant’s submissions

The applicant submitted that the jurisdictional issue arises only as between the first respondent and the second respondent.
The applicant submitted that the only factual matter relevant to that jurisdictional issue is that the applicant [sic: second respondent] was (and is) a resident of Tasmania; and this was relevantly the case as at the date of filing the Application and the date of joining him at the request of the first respondent, by direction of the Commission. As to the relevance of that date, the applicant refers to Fletcher International Exports Pty Ltd v Lee.[1]
[1] [2022] NSWPICPD 39 at [69] (Lee).
As the second respondent is a resident of another state, the applicant submitted that the question as to whether the matter is federally impacted can only be determined by a court, and relevantly by application to the District Court. It submitted this is the same situation that was dealt with in Lee. As the jurisdictional question had not yet been referred to or dealt with in the District Court, Deputy President Snell revoked the Certificate of Determination and Senior Member [sic Division Head] Capel dismissed the Application.
In Lee, the consideration as to jurisdiction turned in part on the fact that the appellant was self-insured. In this matter, there is the question of whether the first respondent is an agency or instrumentality of government, and therefore part of the State of New South Wales, referring to Ritson v State of New South Wales;[2] and Deputy Federal Commissioner of Taxation v State Bank of New South Wales.[3]
[2] [2021] NSWPIC 409 (Ritson).
[3] [1992] HCA 6; (1992) 174 CLR 219 (State Bank).
The applicant finally submitted that if either the first or second respondents wished to have the second respondent as a party to the proceedings, the appropriate order is to revoke his joinder and for either he or the first respondent to make application to the District Court as to the jurisdictional question.
In reply to the respondents’ submissions, the applicant submitted that the first respondent has submitted that the second respondent is an “interested party” and that there is no issue to be determined between the respondents, and the submissions are inconsistent.
The applicant submitted that, if the determination of the Commission does not affect the second respondent’s entitlements, the basis for his joinder does not exist and should be revoked. He has no interest in the determination of the amount recoverable by the first respondent against the applicant.
On the other hand, if the second respondent’s entitlement to compensation benefits may be affected by the determination of the Commission, the applicant submitted that any such determination is clearly federally impacted, and the jurisdictional question remains to be determined by the District Court.
The applicant submitted that the first respondent seeks to suggest, or at least infer, that a determination of the Commission in this matter would not constitute the exercise of judicial power. However, this submission was considered and rejected by Deputy President Wood in State of New South Wales v Kanajenahalli.[4]
[4] [2023] NSWPICPD 1 (Kanajenahalli).

First respondent’s submissions

The first respondent submitted that there is no jurisdictional issue as between it and the second respondent.
The first respondent submitted that, at the teleconference [sic] on 12 October 2022, Mr Baker was joined to the proceedings pursuant to r 62 of the Personal Injury Commission Rules 2021 (the PIC Rules). The applicant raised some opposition to the worker being joined to the proceedings. However, no opposition [sic] was raised at that time that the Commission had no jurisdiction to join the worker based on federal jurisdiction. The applicant raised the issue of federal jurisdiction at a further teleconference on 24 November 2022.
The first respondent submitted that the applicant’s submissions are erroneous if the only issue is that the worker is a resident of Tasmania. In Lee and Ritson, the workers commenced proceedings for statutory benefits pursuant to part 3 Compensation – Benefits of the 1987 Act.
The present Generic Application filed on behalf of the applicant is brought pursuant to the provisions of part 4 of the Act – Uninsured Liabilities. The first respondent submitted that the claim commenced on behalf of the applicant is not a claim for statutory benefits, as referred to in the decisions of Lee and Ritson.
The first respondent submitted that s 3 of the Personal Injury Commission Act 2020 (the PIC Act) sets out the objectives of the Act. It provides for the establishment of the Commission to deal with certain matters under the Workers Compensation legislation and Motor Accidents legislation and provides a central registry for that purpose. The Commission has exclusive jurisdiction, pursuant to s 145(3) of the 1987 Act, to determine a s 145(1) notice.
The first respondent submitted that the worker was joined to the proceedings as an interested party.
The first respondent submitted that division 3.2 of the PIC Act deals with a determination of federal proceedings. Section 25 defines a compensation claim. The current claim is not a claim for compensation or work injury damages to which the 1987 Act applies. It is a claim for reimbursement of moneys paid to, for and on behalf of Mr Baker by the first respondent, from the applicant.
The first respondent referred to s 26(a) of the PIC Act. It submitted that the matter in dispute and the joinder of the worker is not a “compensation matter application”, but rather a claim for reimbursement from the applicant.
The first respondent submitted there is no issue to be determined by the Commission as between it and the worker, and no judicial determination required as between it and the worker.
The first respondent submitted that, although in accordance with ss 25 and 26 of the PIC Act, applications involving federal jurisdiction may be made to the District Court, this does not limit the Commission’s authority to hear and determine the claim, particularly noting it is not a claim for compensation or work injury damages, or a judicial determination between the Nominal Insurer [sic].
The first respondent referred to the decision of Principal Member Harris in Watts v BKFY Pty Limited ATF BKFY Trust;[5] and Searle v McGregor,[6] noting that Searle involved the application of the Commission’s jurisdiction with regard to the Motor Accident Injuries Act 2017 (NSW).
[5] [2022] NSWPIC 719.
[6] [2022] NSWCA 213 (Searle).
The first respondent again submitted that there is no dispute between it and the worker.
Mr Baker is not precluded from participating in the proceedings, noting any determination of the Commission may have some effect on his entitlements, pursuant to the 1987 Act. The dispute to be determined is between the applicant and the Nominal Insurer, with the worker an interested party.
The first respondent concluded that there is no dispute between the State and a resident of another State in the proceedings, and the issue relating to federal jurisdiction does not arise. If an issue does arise, then the issue between the State and the first respondent is not a claim for compensation commenced in the Commission seeking statutory benefits, as was the case in Lee and Ritson, but rather a claim pursuant to s 145(1) of the 1987 Act for recovery of monies paid to, for and on behalf of the worker from the applicant.

Second respondent’s submissions

The second respondent adopted the submissions of the first respondent, in particular that the claim before the Commission is not a claim for compensation or work injury damages, but a claim for reimbursement of monies paid to him, for him, or on his behalf from the applicant, in accordance with s 145(1) of the 1987 Act.
The second respondent concurred with the first respondent’s submissions.

SUMMARY

56. Section 71 of the Commonwealth of Australia Constitution Act (the Constitution) provides that the judicial power of the Commonwealth shall be vested in the High Court, such other federal courts created by Parliament and in such other courts invested with federal jurisdiction.

57. Section 75 of the Constitution is headed “Original Jurisdiction of the High Court” and relevantly provides:

“In all matters:
....
(iv) between States, or between residents of different States, or between a State and
a resident of another State;
....
the High Court shall have original jurisdiction.”

58. Section 77 of the Constitution provides:

“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.”

59. Section 39(2) of the Judiciary Act 1903 (the Judiciary Act) provides that courts of a State are invested with federal jurisdiction in some matters in which the High Court has exclusive jurisdiction. By operation of s 39(2) of the Judiciary Act, courts of a State may determine matters between a State and a resident of another State.

60. Section 3 of the PIC Act provides as follows:

“The objects of this Act are as follows--
(a) to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose,
(b) to ensure the Commission--
(i) is accessible, professional and responsive to the needs of all of its users, and
(ii) is open and transparent about its processes, and
(iii) encourages early dispute resolution,
(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,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f) to ensure that the Commission--
(i) publicises and disseminates information concerning its processes, and
(ii) establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g) to make appropriate use of the knowledge and experience of members and other decision-makers.”

Division 3.2 of the PIC 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.
(5) The District Court may –
(a) remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and
(b) do so instead of granting leave or after granting leave.
(6) If the District Court remits a compensation matter application to be dealt with by the usual decision-maker, the Court may make such orders that it considers appropriate to facilitate the determination of the application by the decision-maker.
(7) The usual decision-maker is to determine any compensation matter application that is remitted to the decision-maker in accordance with any orders made by the District Court.”

Section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) defines “claim” as “a claim for compensation or work injury damages that a person has made or is entitled to make”; and “compensation” as meaning “compensation under the Workers Compensation Acts and includes any monetary benefits under those Acts”.
Section 105 of the 1998 Act provides:
“(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.
(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.
…”
Section 145 of the 1987 Act provides as follows:
“(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was--
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that--
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned.
(4) The Commission may hear any such application and may--
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that--
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6) The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 59 of the Personal Injury Commission Act 2020.”
“Nominal Insurer” is defined in s 3 of the 1987 Act as meaning the Workers Compensation Nominal Insurer referred to in s 154A of the Act.
Section 154A of the 1987 Act provides as follows:
“(1) There is established by this Act a Workers Compensation Nominal Insurer.
(2) The Nominal Insurer--
(a) is a legal entity, and
(b) may take proceedings and be proceeded against in the name of the Workers Compensation Nominal Insurer, and
(c) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and
(d) may do and suffer all other things that persons may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions.
(3) The Nominal Insurer is not and does not represent the State or any authority of the State.
(4) For the avoidance of doubt, the Nominal Insurer is not a government agency for the purposes of Part 11 of the Public Works and Procurement Act 1912.”
Section 154B of the 1987 Act provides:
“(1) The Nominal Insurer is taken to be a licensed insurer as if it were the holder of a licence in force under Division 3 of Part 7 and as if that licence were not subject to any conditions.
(2) The Nominal Insurer has such functions as may be necessary or convenient for enabling the Nominal Insurer to function and operate to the fullest extent as a licensed insurer.
(3) Without limiting subsection (2), the Nominal Insurer may issue directions to any employer with respect to the insurance arrangements of the employer.
(4) The Nominal Insurer has such other functions as may be conferred or imposed on the Nominal Insurer by or under this or any other Act or law or by the regulations.
(5) The liabilities of the Nominal Insurer as insurer under a policy of insurance can only be satisfied from the Insurance Fund and are not liabilities of the State, ICNSW or any authority of the State.”
Section 154C of the 1987 Act provides:
“(1) ICNSW acts for the Nominal Insurer and anything done or omitted to be done by ICNSW on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer.
(2) In acting for the Nominal Insurer, ICNSW has and may exercise all the functions of ICNSW under this Act, the 1998 Act or any other Act or law.
(3) A liability incurred by ICNSW when acting for the Nominal Insurer is a liability of the Nominal Insurer and not a liability of ICNSW or the State.
(4) To remove doubt, it is declared that the provisions of Division 2A of Part 3 of the Government Sector Audit Act 1983 extend to authorise a performance audit by the Auditor-General under that Division in respect of any activities of ICNSW when acting for the Nominal Insurer.”
ICNSW is defined in s 3 of the 1987 Act as meaning Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015.
Section 4 of the State Insurance and Care Governance Act 2015 provides:
“(1) There is constituted by this Act a body corporate with the corporate name of Insurance and Care NSW.
(2) ICNSW is, for the purposes of any Act, a NSW Government agency.
Note: See section 13A of the Interpretation Act 1987.”
Section 13A of the Interpretation Act 1987 (the Interpretation Act) provides:
“(1) If an Act provides that a body is--
(a) a NSW Government agency, or
(b) a statutory body representing the Crown,
the body has the status, privileges and immunities of the Crown.
(2) If an Act provides that a body--
(a) is not or does not represent the Crown, or
(b) is not a NSW Government agency or a statutory body representing the Crown,
the body does not have the status, privileges and immunities of the Crown.
(3) This section extends (without limiting its operation)--
(a) to a provision that is expressed to be made for the purposes of any Act or more generally, and
(b) to privileges and immunities conferred by law expressly or as a matter of construction.
(4) In any Act or instrument--
(a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or
(b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency.
(5) In this section, the "Crown" includes the State and the Government of the State.”

73. The question of whether the Commission is a court was recently considered by Deputy President Wood in Kanajenahalli. Having considered the authorities, Wood DP determined that the Commission is not a court of the State.

74. Wood DP said at [38] – [39]:

“38. 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[7]. 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.
38. 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.”
[7] [2003] NSWCA 146.

The respondents have submitted that, as the claim commenced on behalf of the applicant is not a claim for statutory benefits, as referred to in Lee and Ritson, the matter in dispute is not a “compensation matter application”. They further submitted that there is no judicial determination required as between the first and second respondents.
Section 25 of the PIC Act defines a “compensation claim” as including a claim for compensation or work injury damages to which the 1998 Act applies.
The 1998 Act defines “compensation” as including any monetary benefit under the Act or the 1987 Act.
Pursuant to s 105 of the 1998 Act, the Commission has exclusive jurisdiction over all matters arising under the Act or the 1987 Act.
Section 145(4)(b) of the 1987 Act provides that the Commission may make such awards or orders as to the payment of compensation under the Act to or in respect of the injured worker concerned, as the Commission thinks fit.
As the applicant submitted, the respondents’ submissions that there is no issue to be determined between the first and second respondents, and no dispute between them, but that any determination of the Commission “may have some effect on Mr Baker’s entitlements” are inconsistent. They are also inconsistent with s 145(4)(b) of the 1987 Act.
It is at least arguable that the matter in dispute is a “compensation matter application” when regard is had to the definition of “compensation” in the 1998 Act, and ss 105 and 145(4)(b) of the 1987 Act.
The applicant submitted that there is a “further consideration” relevant to the determination, which would need to be made by the District Court, regarding whether the matter is federally impacted; and that is the question of whether the first respondent is part of the State of New South Wales, referring to Ritson and State Bank.
The submission was not developed, and the respondents have made no submissions on the point.
Section 154A(3) of the 1987 Act provides that the Nominal Insurer is not and does not represent the State or any authority of the State. However, s 154C of the 1987 Act provides that ICNSW acts for the Nominal Insurer; and s 4(2) of the State Insurance and Care Governance Act 2015 provides that ICNSW is, for the purposes of any Act, a New South Wales government agency.
Section 13A(1) of the Interpretation Act provides that, if an Act provides that a body is a New South Wales government agency (as ICNSW is), it has the status, privileges and immunities of the Crown. Section 13A(5) of the Act provides that “Crown” includes the State and the government of the State.
In my view, it is arguable that ICNSW is part of the State of New South Wales.
In Lee, Snell DP considered the decision of the High Court in Citta Hobart Pty Ltd v Cawthorn.[8]
[8] [2022] HCA 16; 96 ALJR 476; 400 ALR 1, (Cawthorn).
Snell DP said, at [76] – [77]:
“The plurality in Cawthorn, dealt with whether it was necessary that an asserted constitutional defence meet ‘some threshold degree of arguability and, if so, what that threshold was’. Their Honours said:
‘35. The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
36. That is what should be taken to have been meant by repeated acknowledgments that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction.’
The plurality said that ‘examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.’ Their Honours quoted from Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation in which the Full Court of the Federal Court said that ‘[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim’[9].”
[9] (1987) 18 FCR 212.
In considering the member’s determination in Lee, Snell DP said, at [87] – [88]:
“The appellant…argued that it relevantly constituted the State as a self-insurer under the New South Wales workers compensation legislation. It argued that it was a resident of the State of New South Wales. The appellant in tandem pursued a more nuanced argument, that in exercising its functions as a self-insurer, it acted as an agent of the State of New South Wales and should be considered to be the State in that regard. I accept Mr Jackson’s submission this was ‘an issue that could be determined by a court’. It was not a question of whether the Member accepted the correctness of the substantive argument. It was necessary that the Member consider the facts referred to in Cawthorn…Was the defence genuinely in controversy, did it give rise to an issue capable of judicial determination?
On a fair reading of the reasons, it is clear that the Member dealt with the defence based on federal jurisdiction on the basis that he was determining the substantive issue on its merits as opposed to considering its arguability. The reasons of the plurality in Cawthorn make it clear that this was ‘no part of the requisite assessment’. Such a course, like determining whether a claim or defence amounted to an abuse of process, would ‘inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution’.”
In this matter, I accept that the questions of whether the matter in dispute is a “compensation matter application”, and whether ICNSW is part of the state of New South Wales are “genuinely in controversy and…give rise to an issue capable of judicial determination” (Cawthorn); and I express that opinion. It is no part of my task to determine the issue on its merits, but merely to consider its arguability.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 162

14 April 2023