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Watts v BKFY Pty Ltd

Watts v BKFY Pty Ltd

Case [2022] NSWPIC 700 13 December 2022

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CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Watts v BKFY Pty Ltd [2022] NSWPIC 700
APPLICANT:	Marie Jenny Watts
RESPONDENT:	BKFY Pty Ltd
PRINCIPAL Member:	John Harris
DATE OF DECISION:	13 December 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant is a resident of Victoria and allegedly suffered injuries giving rise to a claim of permanent impairment; the respondent is a private company with insurance under the NSW compulsory workers compensation scheme; a Tribunal cannot decide whether the determination involves an exercise of federal jurisdiction and should express a view consistent with the test set out in Citta Hobart Pty Ltd v Cawthorn; there are three requirements in determining whether a claim is potentially federally impacted, they are: jurisdiction can only be exercised by a court of a State, the resolution of the dispute requires the exercise of judicial power (“judicial” as understood in the constitutional sense), and the matter is between residents of different States, or between a State and a resident of another State; observations made that the Personal Injury Commission is arguably not a court of a State: Orellana-Fuentes v Standard Knitting Mill Pty Ltd and Attorney-General for New South Wales v Gatsby referred to; observations made that, whilst unclear, the matter may involve the exercise of judicial power: Searle v McGregor and Tomlinson v Ramsay Food Processing Pty Ltd referred to; the respondent is a private company engaged in a cleaning business; the claim is brought against the employer pursuant to section 9 of the Workers Compensation Act 1987; whilst the insurer exercises a statutory right of subrogation, that does not alter the identity of the parties to the proceedings; accordingly, in the action between the applicant and the respondent, there is no arguable defence that the respondent is considered a State for the purposes of the Commonwealth of Australia Constitution Act; observations made about whether “self-insurers” are considered a State; Held – opinion expressed that the defence that the application is federally impacted is unarguable.
determinations made:	Opinion 1. The respondent’s defence that the determination of the application is federally impacted is rejected as being unarguable. Order 2. The date for the conciliation and arbitration hearing before Member Snell is confirmed.

STATEMENT OF REASONS

BACKGROUND

Ms Marie Watts (the applicant) was employed by BKFY Pty Ltd (the respondent) and suffered injury on 16 October 2015 whilst pushing a trolley containing cleaning equipment estimated to weigh 50 kilograms and carrying out other repetitive work as a cleaner. It is alleged that Ms Watts developed severe pain in the interscapular area radiating to the chest wall and right axillary region, pain in the spine and right upper extremity.
The applicant alleges that she developed complex regional pain syndrome as a consequence of the injury sustained on 16 October 2015.
The present application is for compensation pursuant to s 66 of the Workers Compensation Act, 1987 (the 1987 Act).
The respondent denies various matters including the extent of any injury sustained and the extent of any impairment.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watts v BKFY Pty Ltd

Details

AGLC: Watts v BKFY Pty Ltd [2022] NSWPIC 700
Case: [2022] NSWPIC 700
Decision Date: 13 December 2022

CaseChat Overview and Summary

The applicant, Watts, a resident of Victoria, has brought a claim for permanent impairment against BKFY Pty Ltd, a private company with insurance under the New South Wales compulsory workers compensation scheme. The case before the court was to determine whether the claim should be considered under federal jurisdiction or if it could be decided by the Tribunal.

The legal issue at hand was whether the dispute involved the exercise of federal jurisdiction, which would require the matter to be heard by a federal court rather than the Tribunal. The court had to assess the applicability of three requirements to determine if the claim was potentially federally impacted. These requirements were whether jurisdiction could only be exercised by a court of a State, whether the resolution of the dispute required the exercise of judicial power, and whether the matter involved residents of different States or a State and a resident of another State.

The court expressed that the Personal Injury Commission, which was adjudicating the matter, was arguably not a court of a State. It also observed that the matter may involve the exercise of judicial power, although this was not entirely clear. The court noted that BKFY Pty Ltd is a private company and not a State, even though it is engaged in a business that is insured under the New South Wales scheme. The insurer's exercise of a statutory right of subrogation did not alter the identity of the parties in the proceedings. Consequently, the court concluded that the respondent was not a State for the purposes of the Commonwealth of Australia Constitution Act, and thus the defence that the application was federally impacted was unarguable.

The court held that the application was not federally impacted and therefore could be decided by the Tribunal. No further orders were made by the court.

Orders