Tsimpinos v Allianz (Aust) Workers' Compensation (SA) P/L No. Scciv-02-1766

[2004] SASC 124

PETER TSIMPINOS
 v
ALLIANZ (AUSTRALIA) WORKERS’ COMPENSATION (SA) PTY LTD (AS AGENT FOR WORKCOVER CORPORATION) & WORKERS’ COMPENSATION TRIBUNAL
[2004] SASC 124

Full Court:  Mullighan, Debelle and Gray JJ

1. MULLIGHAN J.                I agree that the application should be dismissed for the reasons given by Debelle J.

2. DEBELLE J.        This application for judicial review was referred to the Full Court by order of Perry J made on 23 June 2003.  The applicant seeks orders in the nature of certiorari quashing decisions of the Workers’ Compensation Tribunal and the Full Bench of that Tribunal made on 6 March 2002 and on 20 June 2002 respectively.  The applicant contends that both the Tribunal and the Full Bench of the Tribunal have erred in determining his average weekly earnings when assessing a claim for compensation.

3. The jurisdiction of this Court to hear an application for judicial review from the Workers’ Compensation Tribunal has been limited by s 88I of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) to occasions where the Tribunal has acted with an excess or want of jurisdiction. Section 88I is in these terms:

   “       88I.   No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except—

   (a)     as provided in this Act; or

   (b)    in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”

   It is common ground that para (a) of s 88I has no application in this case. The applicant, therefore, can prosecute this application only if it is founded on an alleged excess or want of jurisdiction. If the court finds that there is no excess or want of jurisdiction, the applicant contends, in the alternative, that s 88I is inconsistent with Chapter III of the Commonwealth Constitution.

4. Notice of the constitutional question was given to the Attorneys-General of the Commonwealth and of the States and Territories pursuant to s 78B of the Judiciary Act 1903 (Cth). Only the Attorney-General of the State of South Australia applied to intervene.

   Two Successive Injuries

5. The issues in this application arise out of the fact that the applicant suffered injury in the course of his employment on two separate occasions, the first in 1990 and the second in 2000.  The second injury resulted in total disability.  A dispute arose between the applicant and WorkCover Corporation (“the Corporation”) when determining his notional weekly earnings as part of his compensation for the second injury.  That was in consequence of the fact that the applicant and the agent for the Corporation had executed a redemption agreement in respect of the compensation for the first injury.  I will set out the circumstances leading to those difficulties.

6. The dealings concerning the applicant’s claims for compensation were conducted by the agent for the time being of the Corporation.  No issue turns on the authority of the agent.  I will therefore describe the dealings on the footing that they occurred between the applicant and the Corporation.

   The First Injury

7. The applicant…