Ultimate Disability Services Pty Ltd v Employers Mutual NSW Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ultimate Disability Services Pty Ltd v Employers Mutual NSW Ltd & Anor [2025] NSWPIC 63
APPLICANT:	Ultimate Disability Services Pty Ltd
FIRST RESPONDENT:	Employers Mutual NSW Limited
SECOND RESPONDENT:	Mohammed Ismail
MEMBER:	Catherine McDonald
DATE OF DECISION:	25 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker in receipt of compensation for a physical and psychological injury; miscellaneous application by employer seeking that insurer stop paying compensation to worker on the basis of serious and wilful misconduct; Held – Commission has jurisdiction to resolve disputes between employer and insurers; section 287(1)(b); Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited considered; the remedy sought is not within the Commission’s power; proceedings dismissed.
DETERMINATIONS MADE:	The Commission determines: 1. The proceedings are dismissed. A statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ultimate Disability Services Pty Limited (UDS) employed Mohammed Ismail as a disability support worker. Mr Ismail claimed compensation in respect of injuries suffered in the course of his employment on 24 February 2024. UDS’s insurer, Employers Mutual NSW Limited (EML), accepted liability for the claim on 19 April 2024 and has paid compensation to Mr Ismail.
UDS filed a Miscellaneous Application on 18 September 2024. The relief sought in that document was that weekly payments be stopped and that EML reverse its decision to accept liability. UDS sought to argue that the injury was suffered as a result of Mr Ismail’s serious and wilful misconduct within the meaning of s 14(2) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Mr Ismail was not named as a respondent in the application.
The application was listed for a preliminary conference on 23 October 2024 when Mr Saleh of counsel appeared for UDS and Mr Michael appeared for EML. Mr Michael said that he was instructed to maintain a neutral position and that the decision EML made had been reviewed by iCare. Mr Saleh said that UDS relied on s 287(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to argue that the Personal Injury Commission (Commission) has jurisdiction to determine a dispute between an employer and its insurer. I directed that Mr Ismail be joined to the proceedings.
A second conference took place on 18 November 2024 when Mr Ismail’s representatives did not appear because of technical issues. The matter was listed for conciliation conference and arbitration hearing.
At the conciliation conference and arbitration hearing on 24 January 2025, Mr Saleh appeared for UDS, Mr Stockley of counsel appeared for EML and Mr Goodridge of counsel appeared for Mr Ismail.
Mr Goodridge sought to argue that UDS did not have standing to make this application and that the Commission did not have jurisdiction to determine the dispute. During conciliation I asked the parties to consider whether there was any remedy that the Commission can order. It was agreed that those issues would be argued first and that the question of serious and wilful misconduct would be argued if UDS was successful on the preliminary arguments.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence:
(a)    Miscellaneous Application and attached documents (the Application);
(b)    EML’s Reply, and
(c)    Mr Ismail’s Applications to Lodge Additional Documents (ALADs) dated 20 December 2024 and 15 January 2025.
Another Application to Lodge Additional Documents as filed on behalf of Mr Ismail without submissions supporting its admission. It attached the same documents as that dated 15 January.
There was no oral evidence.
UDS’s claim was supported by a statement from its general manager, Hala Sbat, dated 27 June 2024. She said that an incident occurred in and outside a house owned by UDS on 27 February 2024. UDS owns two houses next door to each other which I will refer to as number 25 and number 27. Mr Ismail was a support worker and regularly worked with three clients, two of whom were Christina and Archie. He was required to be familiar with the behaviour support plan for each client. Archie lives in a granny flat behind number 25 and Christina attended number 27 on the relevant day.
Ms Sbat summarised her observations from CCTV footage, which was provided to the Commission. She said that she saw Mr Ismail and Christina enter number 25 which she is prohibited from doing. About an hour and a half later, Ms Sbat said that the CCTV footage showed Christina opening a gate then Mr Ismail encouraging her to provoke Archie. Archie became agitated while Mr Ismail watched from a safe zone, which he left when he became concerned that Archie would attack his car. He engaged in a physical altercation with Archie then restrained him, causing Archie to fall and hit his head.
Ms Sbat said that Mr Ismail breached several of UDS’s policies and procedures – that he took Christina to number 25, that he encouraged her to provoke Archie and that he left the safe zone to physically engage with Archie. She said that those breaches meant that Mr Ismail was no longer acting in the course of his employment.
As a result of the events, Ms Sbat made reports to the NDIS Commission and the Office of the Children’s Guardian. Mr Ismail’s employment was terminated.
Ms Sbat said that Mr Ismail completed an incident report which contained information which was untrue.
EML accepted Mr Ismail’s claim for compensation after a factual investigation. Though she has not seen the statements relied on, Ms Sbat said that the summaries in the correspondence from EML showed that Mr Ismail had repeated the same untrue account in his statement and that it was supported by other support workers who were present. She said those statements are not consistent with the CCTV footage. She said that Mr Ismail deviated from his duties and that rules were broken and protocols violated so that he should not receive compensation.
On 19 April 2024, EML informed UDS that it had accepted Mr Ismail’s claim. The letter included:
“If you have further information you have not previously provided to us, or do not agree with the decision, you can request a review. You can do this by completing and sending the attached Request for Review form by email to [email protected] or mail to EML, Locked Bag 2099 North Ryde BC NSW 1670. You can also call 133 365. This review will be conducted by someone independent of the original decision and you will be notified of the decision on the review within 14 days of receiving the form.”
On 3 May 2024, UDS’s solicitors wrote to iCare and to EML requesting a review of the decision to accept liability and saying that UDS relied on s 14(2) of the 1987 Act which provides:
“If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”
The letter described the CCTV footage and provided a link to it. It set out the details of Christina’s Behaviour Management Plan. It said that Mr Ismail was “not a reliable witness” and that UDS had asked Mr Ismail for a new incident report. The letter said that Mr Ismail breached the National Disability Insurance Scheme Act 2023 by causing an immediate danger to the health, safety or wellbeing of two persons with a disability. The letter said that Mr Isamil was not doing anything he was reasonably required, expected or authorised to do in order to carry out his duties and said that he was doing something that UDS had warned him against doing and of which, to his knowledge, UDS seriously disapproved.
On 17 May 2024 iCare issued a review decision on 17 May 2024. It read:
“We acknowledge your submission that you rely on section 14(2) of the 1987 Act and you believe the worker engaged in serous and wilful misconduct. However, please note icare’s Dispute Resolution Team are not investigative in function as such we cannot address this concern. For assistance with your concern that the worker's injury is attributable to the serious and wilful misconduct, please liaise with your claims management specialist, or utilise the complaint pathway noted at the end of this document.
In conducting our review, we confirm consideration has been given to your application as well as the evidence available to the insurer.”
The letter summarised the statements in the factual investigation obtained by EML. It summarised evidence from Mr Ismail’s physiotherapist with respect to a right shoulder injury and from his psychologist. It noted that Mr Ismail had undergone an independent medical examination with a psychiatrist who diagnosed adjustment disorder with mixed anxiety and depression and said:
“The development of adjustment disorder is conceivable following the assault the worker suffered. He also lost his employment and had complaints made against him in close proximity to the assault, these events could both contribute to the development of an adjustment disorder. It is not possible to say how much one event or another contributed to the worker's current distress.”
The letter summarised the certificates of capacity issued by Mr Ismail’s general practitioner and said:
“While we acknowledge your concerns regarding the worker’s injury raised in your application, we note the ambit of the available medical evidence (the worker's NTD and the IME) indicates the worker had sustained an injury in the course of their employment with Ultimate Disability Services Pty Ltd on 27/02/2024. Whilst we acknowledge your concerns, it is worth noting that currently there is no contemporaneous medical evidence to dispute that an injury did not occur as a result of the worker’s employment.
While we acknowledge the information you have provided, we note the factual evidence indicates that altercation between Archie and the worker at the worker's car up the road did occur. We note your concerns that there are factual discrepancies, however icare's Dispute Resolution Team are unable to raise liability disputes or conduct investigations.
Therefore, in relation to your concerns about section 14 of the 1987 Act and whether this applies in this claim, we reiterate please liaise with your case management specialist as EML may be conducting their ongoing investigations within the claim and may determine if there is scope to dispute under section 14 of the 1987 Act.
Therefore, based on the information presently available, we are satisfied the evidence meets the legislative criteria that the worker’s employment was a substantial or main contributing factor to the worker’s injury.
Accordingly, we maintain the insurer’s decision to accept liability for the worker’s claim on 19/04/2024.
For an abundance of clarity, whilst liability has been accepted for the worker’s compensation claim— please note the worker’s compensation jurisdiction is a ‘no fault jurisdiction’. In view of this, any acceptance of liability is not an admission of fault and/or negligence on the employer’s behalf.”
On 28 May 2024 a case manager from EML sent an email to UDS and said;
“Thank you for your email. Icare also contacted me to review any section 14 concerns. I have passed this on the legal team and have confirmed that section 14 would not be applicable in this instance, therefore liability will remain as is. However you are welcome to put through the below mentioned. …”
The email in the Application was a copy and “the below mentioned” is not explained in the file.
Mr Ismail’s ALADs attached some medical evidence from his psychologist and a psychiatrist. In October 2024, his psychologist, Ms Bari, diagnosed, among other things, severe depression with suicidal risks.

SUBMISSIONS

Ultimate

Ultimate filed written submissions with the Application. Mr Saleh said that he continued to rely on them. They remain on the file. In those submissions, Ultimate said that a dispute between an employer and an insurer is justiciable in the Commission pursuant to s 287(1) of the 1998 Act, which provides:
“(1) This Part applies to a dispute in connection with a claim for compensation between—
(a)the person who makes the claim and a person on whom the claim is made, or
(b)the employer on whom the claim is made and the insurer on whom the claim is made.”
Ultimate said that the dispute arose in connection with a claim for compensation and was set out in the correspondence. The dispute was in relation to Ultimate’s contention that Mr Ismail engaged in serious and wilful misconduct and Ultimate said that a decision by the insurer which was adverse to it was likely to have an impact on its premium.
Ultimate quoted s 14 of the 1987 Act and set out relevant case law and set out the facts on which it relied, saying that Mr Ismail instigated the situation that led to an assault on him by one of Ultimate’s clients, causing the injury. It relied on a series of videos from cameras at the premises at which the incident occurred and said that they showed that Mr Ismail had encouraged one of Ultimate’s clients to antagonise the client who assaulted him and then left the premises and engaged in a confrontation with that client, contrary to the client’s behaviour support plan. On the basis of those submissions, Ultimate sought that the Commission make an order that Mr Ismail is not entitled to compensation.
In his oral submissions, Mr Saleh said that I was bound by Principal Member Harris’s decision in Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited[1] (Transport Contract Services) and that the Principal Member addressed the question of the Commission’s jurisdiction at [28]-[39]. Mr Saleh said that the decision was the subject of an appeal in Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited[2] (the appeal decision) and that Snell DP noted that no party took issue with the conclusion that the Commission had jurisdiction to deal with the dispute as to the calculation of pre-injury average weekly earnings (PIAWE) which arose out of correspondence between the employer and the insurer. Mr Saleh said that Snell DP clearly turned his mind to the jurisdictional issue and at [8] to [12] summarised Principal Member Harris’s decision which he did not “quarrel with…in any way.”
[1] [2022] NSWPIC 81.
[2] [2022] NSWPICPD 47.
Mr Saleh said that the dispute in Transport Contract Services arose from the exchange of correspondence between the parties and that was also the case here. Ultimate wrote to its insurer on 3 May 2024, providing the video footage which it did not have when it accepted liability. He said that the CCTV footage was inconsistent with the material provided by Mr Ismail on which EML had relied.
Mr Saleh said that I was bound by the decision of Principal Member Harris because it was affirmed by Snell DP on appeal.
Mr Stockley did not seek to make submissions on behalf of EML.

Mr Ismail

Mr Goodridge said that the Commission does not have any inherent jurisdiction but has only the powers necessary to exercise its statutory functions, referring to Orellana-Fuentes v Standard Knitting Mill Pty Ltd[3] (Orellana-Fuentes). He said that there were sections in the legislation which permitted an employer to bring proceedings in its own right such as s 22(5) and s 22B of the 1987 Act. He said that those sections were an exception to the subrogation clause in the statutory policy of insurance in sch 3 of the Workers Compensation Regulation 2016.
[3] [2003] NSWCA 146.
Mr Goodridge said that Ultimate’s submissions were based on a misconception that s 105 of the 1998 Act was “all encompassing” and said that it was important not to overlook the introductory words of sub-s (1):
“(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, here, and determine all matters arising under this Act and the 1987 Act.”
Referring to Speirs v Industrial Relations Commission of New South Wales,[4] (Speirs) Mr Goodridge said that the Commission only has the power given to it by the legislation and that other bodies have power to deal with matters which arise under the 1987 and 1998 Acts. In Speirs the Court of Appeal held that the Industrial Relations Commission had the power to make an order to reinstate a worker, notwithstanding that it arose under the 1998 Act and that s 105(4) conferred exclusive jurisdiction on the District Court to hear and determine coal miner matters.
[4] [2011] NSWCA 206.
Mr Goodridge provided a list of provisions in the legislation which were not litigated in the Commission but in the Industrial Relations Commission or the Local Court. Under the 1987 Act, there is a series of provisions which impose a penalty being s 155, s 161(3), s 163, s 163A, s 192 and s 192A. There are also penalty provisions in the 1998 Act in s 69(1), s 85, s 94, s 231(3), s 256, s 264 and s 287A(3). He said that the Commission does not have jurisdiction in respect of those parts of the Act.
Noting that Ultimate stressed the operation of s 287 of the 1998 Act, Mr Goodridge said that it was necessary to observe that it is the first section in Division 1 of Part 4. It is one of a number of provisions which confines its operation to the Part of the Act in which it appears. He said that s 287 applied in connection to a claim for compensation, the latter being a defined term. Mr Goodridge said that one would have to give “connection” an attenuated meaning to suggest that Ultimate’s application was a dispute about a claim. He said that s 287(1) cannot be read to allow the Commission to deal with any dispute between and an employer and the insurer. He noted that Division 2 deals with reviews by the insurer and Division 3 deals with determination of disputes by the Commission. He said that none of the disputes referred to were “even close” to a premium dispute.
Returning to Speirs, Mr Goodridge said that the Court of Appeal’s statement at [92] supported his argument in a more succinct way. The Court said:
“Where s 105(1) speaks of ‘matters arising under this Act’, a claim to a reinstatement order must be outside the exclusive jurisdiction of the Workers Compensation Commission notwithstanding that it is a matter arising under the WC Act - the harmonious construction of the WC Act and the WIM Act so requires. That ‘matter’ is not caught by s 105(1). Determination of injury entitling a worker to receive compensation, as part of that ‘matter’, is also outside the exclusive jurisdiction of the Workers Compensation Commission. The whole includes its parts.”
The compensation referred to in that paragraph is that connected with an order for reinstatement.
Mr Goodridge said that I could not read the reference to exclusive jurisdiction in s 105 to give myself jurisdiction.
Mr Goodridge then turned to Ultimate’s standing to bring proceedings and observed that there were two parties suggesting that they represented the interests of Ultimate. He said that the subrogation clause in the statutory policy would not permit Ultimate to represent itself.
Mr Goodridge noted that Ultimate’s interest in the claim was the potential impact on its premium. He said that s 168 of the 1987 Act provided that the State Insurance Regulatory Authority (SIRA) had the power to issue the Workers Compensation Market Premium and Practice Guidelines which required the insurer to observe proper standards of market conduct and that the matters covered by those Guidelines were not properly litigated in the Commission.

Mr Goodridge said that there was no remedy that I could grant. I directed the parties’ attention to my request that they address on what power I had to grant a remedy, particularly by reference to Transport Contract Services. Mr Goodridge said that in the appeal decision, Snell DP observed that no challenge was made to the Commission’s jurisdiction and that the statements made in that decision were obiter dicta and not binding on me.

Ultimate in reply

Mr Saleh said that if Snell DP did not agree with the Member’s decision in Transport Contract Services it would have been addressed, whether or not it was a live issue between the parties. As he did not, the Presidential decision is binding on me. I directed Mr Saleh to the final paragraphs of Principal Member Harris’s decision and asked what order would have been appropriate if he had determined that the insurer’s calculation of PIAWE was wrong.
Mr Saleh noted that declaratory relief should not be granted when there was no foreseeable consequence for either party. In this case he said that EML should be ordered to conduct a review pursuant to s 287B(c) of the 1998 Act. He said that s 289A(1) of the 1998 Act was satisfied so that the dispute can be referred to the Commission. The order sought was that the insurer conduct a proper review of its decision in respect of which the dispute was referred for determination by the Commission.
I asked Mr Saleh if Ultimate abandoned the relief sought in the Miscellaneous Application and he said that there was nothing which would preclude me from making an order that payments be terminated. He said that I had jurisdiction to make that order but did not further develop that submission. In the alternative, he sought a further review by the insurer. He said that the insurer was in breach of a s 192A of the 1987 Act in failing to comply with SIRA’s Claims Administration Manual. He said that the reason for the application was not only with respect to premium but to ensure that the right decision was made.

Further submissions

Mr Goodridge sought to be heard briefly to highlight that s 287B merely said that regulations can be made with respect to reviews by the insurer.
I asked Mr Stockley to confirm EML’s position and he said that he was not instructed to put any position but sought to observe that the evidence showed that the CCTV footage had been provided to the insurer for review. He said that it was perplexing that the question of jurisdiction did not receive any attention in Transport Contract Services but that Ultimate’s submission went too far in saying that it was a binding decision on the availability of jurisdiction.

FINDINGS AND REASONS

In Transport Contract Services, Principal Member Harris dismissed proceedings brought by an employer seeking to challenge the insurer’s challenge to the calculation of PIAWE. He set out the evidence on which the employer and insurer relied. He then summarised the submissions. The passage at [28]-[39] to which Mr Saleh referred is the Principal Member’s summary of the parties’ submissions, not his own conclusions.
The Principal Member’s reasons commence at [40]. After referring to High Court authorities with respect to the construction of legislation, the Principal Member agreed with the employer’s submission that the words of s 287(1) are clear and describe two kinds of disputes. He accepted that there was a dispute between the employer and the insurer, which arose from the correspondence exchanged and concerned the calculation of PIAWE.[5]
[5] At [43]-[46].
The Principal Member found that the dispute was in connection with a claim for compensation and noted that s 288 provides that any party to a dispute can refer the dispute to the Commission. He observed that s 298 which sets out restrictions about when a claim can be referred to the Commission probably applied only to disputes between a worker and the person on whom the claim is made. The Principal Member said:[6]
“Section 105 of the WIM Act provides that ‘the Commission has exclusive jurisdiction to examine, hear and determine all matters arising’ under the WC Act and the WIM Act. In Sabanayagam v St George Bank Ltd Sackville AJA stated:
‘Pursuant to s 105(1) of the WIM Act, in order for the Commission to have jurisdiction over ‘matters’, they must ‘arise under’ the WC Act or the WIM Act. The general principle is that a matter arises under a law of Parliament if the right or duty in question owes its existence to the law or depends on the law for its enforcement.’
I accept that the right of an employer to contest an insurer’s decision has a proper basis within the statutory scheme. An adverse decision by an insurer will likely have an impact on the employer’s premium. In that sense there is nothing inconsistent with the scheme that the employer should not be able to contest an insurer’s decision.”
[6] At [53]-[54], footnotes omitted.
The Principal Member said: [7]
“I do not accept there is a proper basis to reads words into the section to limit the operation of the provision to the circumstances articulated by the insurer, such that the general right to raise a dispute is limited to the specific situations specified elsewhere in the WC Act and/or WIM Act. It would be incorrect to read s 287(1)(b) down and restricted to those situations where the WC Act expressly provided a right by an employer to contest an insurer’s decision.”
[7] At [71].
Principal Member Harris concluded that the employer was entitled to litigate the dispute as to PIAWE. He said:[8]
“Employers will be impacted by the statutory insurer’s decision because it can affect the employer’s premium. That this will result in litigation is neither an absurd result as it allows the employer to dispute the decision in accordance with the ordinary meaning of the section. If anything, the provision provides a proper and suitable pathway for an employer to dispute what can otherwise be a serious financial impost on the employer.”
[8] At [75].
After considering the submissions with respect to PIAWE and determining that the insurer had assessed it correctly, the Principal Member said:
“In its oral submissions the employer only sought a finding as to the correct PIAWE. It conceded that no recovery had been sought from the worker and one was probably unavailable in the Commission.
The insurer noted that the grant of declaratory relief ‘must be directed to the determination of legal controversies’ and should not be granted where this would ‘produce no foreseeable consequences for the parties’: Ainsworth v Criminal Justice Commission. Given the findings on PIAWE, it is unnecessary to consider the appropriate relief as the proceedings must be dismissed.”
In the appeal decision, Snell DP summarised Principal Member Harris’s decision before turning to the issues necessary to determine the appeal. At [63], he said that no party took issue with the Principal Member’s conclusion that the Commission had jurisdiction to deal with the current dispute. Snell DP found that the monetary threshold to bring the appeal was not satisfied so that there was no right of appeal. Even if it had, Snell DP determined that the appeal with respect to the calculation of PIAWE would have failed. The question of jurisdiction was not part of the appeal and Snell DP did not consider it. The submission that the reasoning was approved and that I am therefore bound by it is not supported by the decision.
I agree with Principal Member Harris’s reasoning that s 287(1)(b) permits the Commission to determine a dispute between an employer on whom a claim is made and the relevant insurer. The words are clear and there is no reason to limit them to the sections of the legislation which permit an employer to seek certain relief such as s 22 of the 1987 Act to which Mr Goodridge referred and s 145, to which he did not refer.
The section is “subject to this Part” meaning Part 4 of Chapter 7 of the 1998 Act which deals with Compensation dispute determination. The parties did not refer me to any section in the part which may give rise to a dispute between the employer and the insurer.
One possible area of dispute is in respect of workplace injury management. Section 292, which appears in Part 4, provides that disputes which fall within Part 5 of Chapter 7 can be dealt with as an expedited assessment. Section 295 (1) provides:
“295 Disputes to which Part applies
(1) This Part applies to a dispute referred to the Commission that concerns—
(a)weekly payments of compensation or medical expenses compensation, or
(b)failure by an insurer, employer or worker to comply with a requirement imposed by or under Chapter 3 (Workplace injury management).”
Chapter 3 of the 1998 Act imposes obligations on an employer to cooperate in the establishment of an injury management plan and obligations to comply once a plan has been established. A dispute could arise, for example, as to whether work was suitable for an injured worker or whether the employer was able to provide it.
I am satisfied as a matter of principle that an employer has standing to bring proceedings in a dispute against an insurer and that the Commission has jurisdiction to determine such a dispute.

Remedy

While I have not accepted Mr Ismail’s submissions with respect to the Commission’s jurisdiction and UDS’s standing to bring proceedings, it does not necessarily follow that UDS is entitled to relief. Whether the Commission has the power to order a remedy is an additional question which UDS’s submissions did not adequately address. Mr Saleh said that the remedy sought was as set out in the Miscellaneous Application – that weekly compensation be stopped and EML reverse its decision to accept liability. He did not explain the source of any power to make that order.
At the hearing, UDS sought that EML further review its decision. Section 287A does not require an insurer to undertake a review at the request of an employer and I was not taken to any regulation made under the power in s 287B requiring such a review.
In any event, the insurer’s decision was reviewed by iCare after the CCTV footage was provided, the matter was referred back to EML which undertook a further review and, as set out in the email dated 28 May 2024. Based on all of the information it had, EML determined that the claim should be accepted. While those payments continue, I do not consider that the Commission has the power to make any determination about them.
The parties did not address on the Commission’s power to order declaratory relief. It has been held that the Commission does not have that power.[9]
[9] Akhter v MHS (Concord) Pty Ltd [2006] NSWWCCPD 29; Widdup v Hamilton [2006] NSWWCCPD 258.
As noted above, s 105 of the 1998 Act provides that “the Commission has exclusive jurisdiction to examine, hear and determine all matters arising” under the 1987 Act and the 1998 Act.
Any right that arises under the policy between UDS and EML is not a matter that arises under the legislation and is not a right over which the Commission has jurisdiction.[10]
[10] Corporate Management Services (Australia) Pty Ltd v Country Energy and Ors [2010] NSWWCCPD 5.

Section 14

The parties agreed that any determination of the substantial dispute should be deferred until the issues about the Commission’s jurisdiction and power and UDS’s standing were resolved. Though I have resolved that there is no remedy that I can order, it is appropriate to comment briefly on s 14 because UDS’s submissions did not consider the section as a whole. The section reads:
“14    Conduct of worker etc
(1)    Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received—
(a)acting in contravention of any statutory or other regulation applicable to the worker's employment, or of any orders given by or on behalf of the employer, or
(b)acting without instructions from the worker's employer, if the act was done by the worker for the purposes of and in connection with the employer's trade or business.
(2)    If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.
(3)    Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.”
Three comments are relevant. First, the application of the section cannot be resolved in the absence of evidence. It was open to UDS to seek to obtain the information on which EML relied and to consider it before commencing these proceedings. The only evidence UDS relied on was Ms Sbat’s statement and the CCTV footage. The footage was not explained by statements which identified the people involved in a way that was logical and probative. EML obtained statements from those concerned and made a decision based on the information it held.
Second, UDS has focused on s 14(2). It is not yet known if s14(1) will be relevant to Mr Ismail.
Third, s 14(2) applies only if the injury is “solely attributable to” serious and wilful misconduct, a standard which is arguably higher than “the main contributing factor” test. So far as I can tell from the evidence I have read, the factual matrix suggests there are a number of causes that contributed to Mr Ismail’s injury and which would require examination, having regard to appropriate evidence.

Conclusion

For the reasons set out above, the proceedings are dismissed.

[2025] NSWPIC 63

25 February 2025