Wilson v Ascott Sales Integration Pty Ltd - [2024] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPICPD 42
APPELLANT:	Sally Anne Wilson
RESPONDENT:	Ascott Sales Integration Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-W8364/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	2 August 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 20 March 2023 is rescinded. 2. The matter is remitted for redetermination by a different member, consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 – time in which to bring an appeal – State of New South Wales v Simms [2015] NSWWCCPD 62; Division 2 of Part 4 of the Workers Compensation Regulation 2016 – Regulations 8B, 8C and 8E; application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59, the duty to give reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Hanrahan, counsel
NEW Law Pty Ltd
Respondent:
Ms K Balendra, counsel
Turks Legal
DECISION UNDER APPEAL
MEMBER:	Mr M McGrowdie
DATE OF MEMBER’S DECISION:	20 March 2023

INTRODUCTION AND BACKGROUND

Sally Wilson (the worker/appellant) worked as a registered nurse from 1976. She worked for “YourHealth” (a company that provided medical services) as an RN infusion nurse and manager of a clinic, from October 2012. Her position was permanent part-time, 32 hours per week. On about 17 November 2017, she made a workers compensation claim on YourHealth in respect of her thumbs, which were “affected due to the nature and conditions of [her] work as a nurse”. The claim was accepted by GIO, the relevant insurer. From 29 October 2018 the worker worked casually with Ascott Sales Integration Pty Ltd (the respondent, sometimes referred to as IQVIA) as a registered nurse. This involved irregular casual shifts. On 10 October 2019, the worker started also working casually, one day per week, for Nature Care Health as a registered nurse in an infusion clinic. She did this job concurrently with the job at YourHealth. YourHealth closed on 15 December 2020 and the worker then increased her hours with Nature Care Health to 16 hours per week.[1]
[1] Worker’s statement, 17/11/22, Application to Resolve a Dispute (ARD), pp 2–3, [2]–[8].
The worker stated that she ceased working at Nature Care Health on 17 May 2021 due to hand pain. A “few weeks” later she also stopped taking shifts with Ascott. On 19 July 2021, the worker had surgery on her right thumb, which was paid for by GIO (the insurer of YourHealth) in addition to weekly compensation paid from July to November 2021. The weekly rate was $686.19, which increased to $694.40 in October 2021.[2]
[2] Worker’s statement, [9]–[10].
The worker stated she resumed work in late November 2021 with Ascott, where she had increased hours. She did not return to Nature Care Health. On 22 April 2022 she was working for Ascott, in her home, when she fell, injuring her tibia and fibula, together with her left ankle. Her claim for compensation was accepted. Her weekly compensation rate was to be determined by reference to her ‘Pre-injury Average Weekly Earnings’ (PIAWE) during ‘the relevant earning period’. This period was “a maximum of 52 weeks ending immediately before the date of the injury”.[3] icare, the insurer of Ascott, calculated such earnings by reference to a period from “pay period commencing 17/04/2021 to pay period ending 22/04/2022”.[4] The worker was informed that her PIAWE was assessed at $373.99. Following a review this rate was increased to $380.56.[5] The worker considers her “PIAWE should be in the vicinity of $549.69 per week”.[6]
[3] Workers Compensation Act 1987 (1987 Act), Sch 3, cl 2.
[4] ARD, p 7.
[5] Letter from icare dated 23/9/22, ARD, pp 5–9.
[6] Worker’s statement, [11]–[21].
The current proceedings were listed for hearing before Member McGrowdie on 3 March 2023. The Member made a Direction dated 7 February 2023, directing the lodgment of outlines of submissions by both parties. Submissions by the worker’s counsel were dated 14 February 2023, and those of Ascott’s counsel were dated 16 February 2023. At the hearing Mr Hanrahan appeared for the worker and Ms Balendra appeared for Ascott. Both counsel made oral submissions. On 3 March 2023, consistent with discussion at the hearing that day, the worker’s counsel lodged a supplementary submission, containing an extract from the second reading speech on the introduction of the Workers Compensation Legislation Amendment Bill into the Legislative Council, on 25 September 2018.

THE MEMBER’S REASONS

The Member said the worker had three concurrent casual jobs during the 12 months leading up to her accident on 22 April 2022, but that at the time of injury Ascott was her only employer. He noted the worker was paid compensation from 16 July 2021 to 29 October 2021 by another employer, in relation to an injury to the left upper limb. He noted that, during the 52 weeks prior to her injury with Ascott, the worker worked for two periods with Ascott, totalling 37 weeks. Her total earnings with Ascott were agreed to be $19,788.91. In calculating the PIAWE, the worker sought to divide her earnings with Ascott by 37 weeks, whereas Ascott contended the earnings should be divided by 52 weeks. The Member noted the worker’s submission that time off work as a result of the earlier injury, with a different employer, should be regarded as unpaid leave. There was no dispute the worker had suffered injury and continued to suffer an incapacity.[7]
[7] Transcript 8/3/23 (T), T 1.30–2.20, 3.26–4.4. (References are to the verified transcript.)
The Member referred to Pt 4 of the Workers Compensation Regulation 2016 (the 2016 Regulation), which applies to injuries received on or after 21 October 2019. He quoted from Regs 8B and 8C, which are set out below.
The Member said that an example of the application of cl 8C “might be a promotion and an increase in salary or a change from full-time to part-time, then the relevant period is to be calculated as set out in sub-clause (2)”. He said he did not consider cl 8C would apply in the current matter, as “the Regulation is directed to the actual employment of the worker with the employer who is the respondent and not with any other employer”.[8] The Member described the operation of Reg 8E in the following terms:
“Regulation 8E refers to adjustment for unpaid leave (Schedule 3, clause 2(3)(a) of the 1987 Act) whereby any period of unpaid leave is to be excluded for the number of weeks in the relevant period before the injury.”[9]
[8] T 5.26–33.
[9] T 6.1–6.
The Member dealt with the potential application of Reg 8E in the following way:
“I do not regard the period when the [appellant] was off on compensation for the injury with the other employer to have been a period of leave referred to in that clause. Leave is not defined in the legislation but the ordinary meaning of that word in an employment context requires an obligation to otherwise be at work. That is, it’s a permission from the employer to be absent from work at a time when, but for that permission, the worker would be obliged to attend for work. In the case of a casual worker this is not the case. A casual worker is employed for a specified period of employment when the employer offers employment and the worker is available and willing to work.”[10]
[10] T 6.10–23.
The Member concluded:
“For the purposes of calculating PIAWE in this matter, it is only the earnings of the worker from the employment with the named respondent which is relevant and that is so unless the [appellant] was at the time of the injury, also engaged in concurrent employment. In this matter the [appellant] had no concurrent employment at the time of her injury.”[11]
[11] T 6.25–31.
The Member rejected the worker’s submission that “all her employment income from whatever employer over a 52-week period should be taken into account and provide a PIAWE figure of $534.83”, saying this was not the correct approach. He referred to a submission by the worker that “because a casual worker is engaged in several and separate periods of employment as a casual, the PIAWE should be based on only the most recent period of employment at the time when the injury occurred”.[12] The Member rejected this submission:
“… all periods of employment with the respondent in the fifty-two-week period before the date of injury (Clause 2(2) of Schedule 3) and the aggregate earnings in the employ of the respondent in that period are [to] be included in … calculating PIAWE, as the regulations do not make provision for not doing so.”[13]
[12] T 7.7–10.
[13] T 7.12–17.
The Member made an award in favour of the employer, while noting that the respondent would pay weekly compensation to the worker pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) at the rate of $380.56 per week from 22 April 2022, with credit to the respondent for any payments already made.[14]
[14] T 7.21–26.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) have been met. The appeal is not of an interlocutory nature.
The Member’s reasons for decision were delivered orally on 8 March 2023, with both parties being represented by their solicitors. The Commission subsequently issued a ‘Certificate of Determination – Oral Decision’ which described the date of determination as 20 March 2023. That document incorrectly described the respondent’s identity as “Arnott’s Sales Integration Pty Limited” (no point is taken on this basis). The appellant’s submissions address, at some length, on the issue of whether the appeal was lodged in time.[15] The appellant ultimately submits time for lodging the appeal ran from 29 March 2023, when an unverified transcript of the Member’s reasons was provided to the appellant.[16]
[15] Appellant’s submissions, [2.1], pp 1–2.
[16] Appellant’s submissions, [2.1], p 2.
Section 294 of the 1998 Act provides:
“Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Personal Injury Commission Rules 2021 (the Rules) provides:
“Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
In State of New South Wales v Simms[17] Keating P dealt with a form of Certificate of Determination similar to that in the current matter. His Honour said the issue of such a Certificate of Determination was “consistent with the Commission’s usual practice”. It remains the usual practice in matters where reasons for decision are given orally. The Certificate of Determination issued in Simms contained the statement “A sound recording of the reasons given is available to the parties.” His Honour said the procedure adopted was “an approach which is encouraged to promote the timely disposal of cases and the entry of appropriate orders as soon as possible after the dispute is heard”. His Honour said a document in such a form satisfied the requirements of s 294(2) of the 1998 Act. His Honour rejected an argument that time for lodging an appeal did not commence to run until receipt of transcript of the reasons for decision.[18]
[17] [2015] NSWWCCPD 62 (Simms).
[18] Simms, [40]–[44].
The Certificate of Determination issued in the current matter set out the Member’s orders, described as the “Determination of the Commission”, and immediately below stated “A sound recording of the reasons given is available to the parties on request.” There is nothing that casts doubt on the proposition that, if requested, the sound recording was available from when the Certificate of Determination was issued on 20 March 2023. The date of 20 March 2023 was described as the “Date of Determination” in the certificate itself. There has not been a material change to this aspect of the procedure since the decision in Simms. Although there have been subsequent changes to the statutory framework, the reasons of Keating P on this issue remain persuasive and in my view are correct. My adoption of this approach is consistent with application of the objects in subcll (c) and (d) of s 3 of the 2020 Act. It is consistent with giving effect to the ‘guiding principle’ in s 42 of the 2020 Act.
The appeal pursuant to s 352 of the 1998 Act was registered on 17 April 2023. Section 352(4) of the 1998 Act provides:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
It follows from the above that the date of the decision was the date of the Certificate of Determination, 20 March 2023. Applying s 36 of the Interpretation Act 1987, time to appeal is calculated exclusive of that day. The appeal was registered on 17 April 2023, which was within 28 days after the Certificate of Determination was issued. It follows that an extension of time to bring the appeal is unnecessary.

LEGISLATION

Clause 2 of Sch 3 to the 1987 Act provides:
“2     Meaning of ‘pre-injury average weekly earnings’
(1)    Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2)     Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)     The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)     If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Clause 6 of Sch 3 to the 1987 Act provides:
“6     Meaning of ‘earnings’
(1)     The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)     The income of a worker does not include—
(a)any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b)the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d)any payment made without obligation by the employer.
(3)     However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4)     The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.”
Regulation 8AA of the 2016 Regulation defines the ‘relevant earning period’ as having “the same meaning as in clause 2(2) of Schedule 3 for the purpose of calculation of the worker’s pre-injury average weekly earnings”.
The relevant regulations in Division 2 of Part 4 of the 2016 Regulation provide:
“8A   Operation of Division
(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.
(2)     The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—
(a)Clause 8B (Adjustment for workers not continuously employed),
(b)Clause 8C (Adjustment for financially material change to earnings),
(c)Clause 8D (Alignment of relevant earning period with pay period),
(d)Clause 8E (Adjustment for unpaid leave),
(e)Clause 8EA (Adjustment for prescribed periods relating to COVID-19).
(3)     Accordingly, a reference in a provision of this Division—
(a)to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or
(b)to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.
8B     Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.
(2)     The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.
8C     Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2)     The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.
8D     Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act
(1)     The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(2)     The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.
8E     Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—
(a)no earnings in the employment were paid or payable to the worker, and
(b)the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.
(2)     The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[19] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[20](cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[21]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[22]
[19] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[20] (1966) 39 ALJR 505, 506.
[21] [1996] HCA 140; 140 ALR 227.
[22] Raulston, [19].
In Iqbal v Hotel Operation Solutions Pty Ltd the Court of Appeal described the nature of an appeal to a Presidential member, pursuant to s 352(5) of the 1998 Act, in the following terms:
“… s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision ‘was or was not affected by any error of fact, law or discretion’. The appeal ‘is not a review or new hearing’. As the Deputy President correctly noted, and as this Court has held, if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.”[23]
[23] [2022] NSWCA 138 (per Basten AJA, Brereton and Mitchelmore JJA agreeing), [11].
In Northern NSW Local Health Network v Heggie[24] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[24] [2013] NSWCA 255; 12 DDCR 95, [72].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal in her Appeal Against Decision of Member dated 17 April 2023 (underlining in original):
(a)    “The [M]ember made errors of fact, that cumulatively indicate a failure generally [to] properly recognise the matters required to be considered in his determination of the dispute.” (Ground No. 1)
(b)    “The [M]ember committed errors of law by misdirecting himself concerning those matters necessary to be properly taken into account when calculating the [a]ppellant’s pre-injury average weekly earnings (‘PIAWE’).” (Ground No. 2)
(c)    “The [M]ember failed to provide any proper or adequate reasons for his decision.” (Ground No. 3)
(d)    “The [M]ember fell into jurisdictional error by failing to make relevant findings or reach a concluded decision, concerning essential facts of the dispute.” (Ground No. 4)

APPELLANT’S SUBMISSIONS IN THE NOTICE TO APPEAL

Ground No. 1

The appellant submits: “The [M]ember made errors of fact, which when read cumulatively present an impression that … he has failed generally to properly recognise and consider matters of fact, relevant to the dispute.” This submission is repeated in different ways.[25] The appellant’s submissions give examples on which she relies. The worker’s surname was misdescribed at one point as “Walker” rather than “Wilson”.[26] The worker was described as working as a nurse in “‘youth health’ [possibly a reference to ‘Your Health’]”. The submission (which is continued in a footnote) goes on to say the previous employer was “IPN Medical Centre which traded as ‘Your Health’.”[27] The appellant’s submissions refer to a passage in the reasons that states:
“During the twelve months leading up to the accident she had three concurrent casual jobs, but at the time of the injury the respondent was her only employer.”
[25] Appellant’s submissions, [1]–[4].
[26] Appellant’s submissions, [5](a).
[27] Appellant’s submissions, [5](b).
The appellant submits “there were in fact only two entities that provided her with several casual working engagements during that period”.[28]
[28] Appellant’s submissions, [5](c).
The appellant refers to a passage in the reasons where the Member said:
“With one of the other employers, the [appellant] injured her left arm or thumb and required surgery. She was off work from that employment as a result of the injury and was paid workers compensation. I understand that the [appellant] was paid compensation from 16 July 2021 to 29 October 2021.”[29]
[29] T 2.4–9. Appellant’s submissions, [5](d)–(e).
This submission is continued in a footnote, that states: “Although may be regarded as factually correct the legal emphasis is misleading.” It continues, stating that the reason the appellant was off work at this time, which was during the 52 weeks prior to the injury with Ascott, was “because of her need to undergo surgery, as a result of the injury sustained in 2017 with IPN (Your Health)”.[30] Reference is made to the reasons accurately describing the appellant’s period off work for the left arm surgery. The appellant, in a footnote, submits that at another place the Member erroneously refers to the appellant’s second period of work with Ascott being “roughly from the 30th of October 2021 to 21 April”. The appellant submits this error was “immediately withdrawn” but not replaced with a more accurate reference.[31] The appellant submits:
“This is at least revealing of a degree of confusion infecting the [M]ember’s thinking as he approaches his consideration of legal issues associated with the Regulations.”[32]
“Despite making reference to ‘the Act’ for the purposes of calculating PIAWE the [M]ember fails to articulate the precise provisions of Schedule 3, Clauses 2 and 3 of the [1987 Act] concerning the definition of ‘the relevant earning period’ and the adjustment of the period ‘by extending or reducing’ it in order to take into account ‘any period of unpaid leave or other change in earning circumstances’.”[33] (emphasis in original)
“To the extent that any of the legal questions associated with his interpretation of the Act and Regulations as proposed in submissions, may have bee[n] affected by these erroneous factual assumptions, the [M]ember has fallen into error.”[34]
[30] Appellant’s submissions, footnote [9].
[31] Appellant’s submissions, footnote [11].
[32] Appellant’s submissions, footnote [11].
[33] Appellant’s submissions, [5](h).
[34] Appellant’s submissions, [5](i).

Ground No. 2

The appellant submits the Member erred in law in:
(a)    failing to consider the necessary legal descriptions contained in the relevant Regulations;
(b)    misunderstanding facts and misapplying them to the Regulation 8E, and
(c)    failing to deal at all with submissions made concerning Regulations 8B and 8C.[35]
[35] Appellant’s submissions, [6].
The appellant submits the regulations she proposed to be considered were in her Outline of Submissions.[36] She submits the Member failed to properly consider these and made errors with respect to them. She submits that in her supplementary submissions, concerning the intention of the amendments, she submitted that only earnings received when the worker was actually working should be taken into account when calculating PIAWE. She refers to the Minister’s second reading speech.[37]
[36] Appellant’s Outline of Submissions at first instance, 14/2/23.
[37] Appellant’s submissions, [7]–[8].
The appellant refers to Regulation 8B, concerning a worker who is ‘not engaged in the employment from the beginning of the unadjusted earning period’. The appellant states she submitted the beginning of the relevant earning period was 30 October 2021, when her casual employment commenced. The appellant submitted only earnings during the period from 30 October 2021 to the date of injury should be taken into account, being $18,504.77 over 25 weeks. The appellant submits the Member did not consider this argument, save for affirming the employer’s argument on this subject.[38]
[38] Appellant’s submissions, [9]–[12].
The appellant refers to Regulation 8C, concerning a ‘financially material change to the earnings’. The appellant states she submitted there was a ‘financially material change’ because her hours increased during the 25 weeks from 30 October 2021, after she recovered from surgery and returned to work. She submits there was a significant increase in the number of patients she managed and her earnings significantly increased. It was submitted that only the 25 weeks from 30 October 2021 should be taken into account. She submits the Member did not consider this argument.[39]
[39] Appellant’s submissions, [13]–[16].
The appellant refers to Regulation 8E concerning the meaning of ‘unpaid leave’. She submits the Member concluded this provision did not apply as the appellant “had no concurrent employment at the time of her injury”. The Member said that the phrase was not defined in the legislation, but in an employment context requires an obligation to otherwise be at work. He found that in the case of a casual worker, this is not the case. The appellant submits neither party offered an argument along these lines. The appellant submits that, had the argument been raised, it would have submitted a casual worker did not require permission to decline an offer of work, unlike a permanent or part-time worker. The appellant submits that, while she was off work by reason of the left thumb surgery, she was not paid, she was not at work, she was on unpaid leave. The appellant submits the Member did not favour the view that the 15 weeks of hospitalisation and recovery was ‘unpaid leave’ pursuant to Regulation 8E. He considered that only earnings with the named respondent were relevant, unless the worker was also engaged in concurrent employment.[40]
[40] Appellant’s submissions, [17]–[22].

Ground No. 3

This ground raises the adequacy of the Member’s reasons. The appellant refers to r 78 of the Rules and to numerous authorities dealing with the requirements of adequate reasons.[41] The appellant is critical of the adequacy of the Member’s reasons in the following paragraphs:
“In this case the [M]ember has made erroneous findings of fact, he has failed to determine significant disputes between the parties on important questions of fact. He has failed to reveal the principles relevant to his understanding of the application of the regulations argued before him. Apart from expressing a ‘favoured’ view, the [M]ember has not revealed any statutory or other basis from case law explaining his reasoning process or the legal matters that compelled him to the conclusion he drew.”[42]
And:
“Reasons properly provided must do justice to the issues posed by cases raised by the parties. Discharge of this obligation is necessary to enable the parties to identify and understand the basis of the decision and to recognise the extent to which their arguments have been understood and either accepted or rejected. The [M]ember has not afforded the parties in this case the ability to comprehend how he arrived at the outcome.”[43]
[41] Appellant’s submissions, [24], [26]–[33].
[42] Appellant’s submissions, [25].
[43] Appellant’s submissions, [33].

Ground No. 4

The appellant submits the Member has not adequately carried out the task required of him in that he failed to properly determine:
(a) whether and how adjustments may or may not be made to the ‘relevant earning period’, and
(b) the number of weeks that should properly be taken into account when calculating the appellant’s PIAWE in this case.
The appellant submits that the Member:
(a) took into account an irrelevant consideration by referring to a legal “obligation to otherwise be at work”, and
(b) failed to take into account a relevant concession made by the appellant, in stating that the appellant “of course, contended that all her employment income from whatever employer might (sic) be relevant in the [fifty-two] week period should apply”.

APPELLANT’S SUBMISSIONS DATED 15 MAY 2023 AND 24 MAY 2023

On 1 May 2023 the Commission issued the parties with a transcript of the hearing held on 3 March 2023, and a verified transcript of the Member’s oral reasons for decision. The accompanying procedural orders included an order that the appellant “file and serve any supplementary submissions it wishes to make in respect of the verified transcript” by 15 May 2023. The appellant lodged Amended Grounds of Appeal dated 15 May 2023. This document added an additional ground of appeal, “Ground 5”, in the following terms:
“5. The Member failed to provide procedural fairness to the worker by not giving notice to the parties of an issue that was decisive.” (underlining in original)
The accompanying submissions referred to a decision of a different member in a matter of Dalirea v Bulk Waste Transport.[44] The appellant’s submissions stated that counsel, who appeared for the respondent employer in the current matter, indicated at the hearing that she had previously appeared in the matter of Dalirea when she successfully argued: “the concept of ‘casual’ employment was confirmed in that case to exclude the possibility that ‘unpaid leave’ could be relevant and decisive in the present case”. The appellant submits the reasons in Dalirea were not available in the current case as those reasons were given orally. The appellant submits that, when the reasons given in Dalirea eventually became available, the language and reasons were “virtually identical” to those given in the current matter. The appellant submits that it “specifically requested” at the hearing that no reliance be placed on the reasons in Dalirea before the parties had an opportunity to address on any principles raised in that case.[45]
[44] Personal Injury Commission matter no. W6879/22, 27/2/23 (Dalirea).
[45] Appellant’s supplementary submissions, 15/5/23, [3]–[6].
The appellant submits she “clearly articulated” that any argument or reasons, “based on other decided cases should be provided to the parties openly”. She submits this was not done and she was denied an opportunity to address on the decision in Dalirea. The appellant referred to comments by the Member in the hearing of the current case, in which he said there was an oral decision in the week prior of “which the parties are aware where [a member] said ‘leave doesn’t apply to casuals’.”[46] The appellant’s counsel observed that “the respondent [employer] makes the same point, Member, in her submissions”.[47] The appellant submits the phrases ‘casual work’ and ‘unpaid leave’ were decided contrary to her submission that the Member “not rely on a case where no reasons were published and the parties had not fairly had an opportunity to address the issue”. The appellant submits the lay observer might think that the current case was “decided on the basis of the reasons given by [the other member]”. The appellant submits that she was “in effect denied the opportunity to fully address the meaning of ‘unpaid leave’”.
[46] Transcript 3/3/23, 5.15–18.
[47] Transcript 3/3/23, 5.22–23.
The appellant refers to procedural fairness and queries whether the Member’s “finding was open at all, in light of the pleadings and the way the case was conducted to include not only Regulation 8E but also other Regulations 8B and 8C”.[48] The appellant refers to Dranichnikov v Minister for Immigration and Multicultural Affairs,[49] and submits there was a “failure to address a substantial, clearly articulated argument and [this] amounted to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction”. The appellant also submits that no reasons were given for “rejecting the arguments based on Regulation 8B or Regulation 8C”.[50]
[48] Appellant’s supplementary submissions, 15/5/23, [8]–[14].
[49] [2003] HCA 26; 197 ALR 389; 77 ALJR 1088.
[50] Appellant’s supplementary submissions, [15]–[16].
The Commission issued a Direction dated 17 May 2023, noting the appellant’s further submissions raised a further ground of appeal. The appellant was given until 24 April 2023 to submit on why the additional ground could not have been raised within the timeframe for lodging the appeal, and why leave should be granted to raise it as a late ground.
The appellant wrote to the Commission on 25 May 2023. The letter stated that the appellant “had earlier lodged ‘further submissions’ on 15 May 2003 [sic] inadvertently and erroneously describing them to include an additional or fifth Ground of Appeal”. The letter stated:
“It was not the intention of the Appellant to raise any additional ground of appeal, but rather to supplement the matters already raised going to the existing Ground 4. That Ground did raise issues of jurisdictional error, procedural fairness and submitted that specific findings should be made concerning relevant arguments that were squarely put before the Commission in the proceedings for determination and that it was submitted were not properly addressed by the Member.
Accordingly, the Appellant respectfully requests that the previous document describe as ‘Amended Grounds of Appeal’ be disregarded and that the attached document now properly described as ‘Supplementary Submissions’ be lodged in substitution for them.” (emphasis in original)
The above correspondence attached a document headed “Supplementary SUBMISSIONS in further support of Ground 4 of the Appeal Submissions dated 17 April 2023”. This document included the two paragraphs, numbered [34] and [35], that are summarised at [41] to [42] above, and which were originally the sole submissions in support of Ground No 4. The document then, at paragraphs [36] to [44], repeats the submissions that were previously made in support of the additional Ground No. 5 (which is not now relied on) and are summarised at [44] to [46] above. The appellant then makes further submissions dealing with Ground No. 4.
The appellant submits she argued before the Member that, on a policy basis, and consistent with the Regulations, PIAWE should only have regard to the weeks when “a worker actually performed work and received income”. The appellant submits the case was decided on the basis of the interpretation of the meaning of ‘casual work’ and ‘unpaid leave’ and an argument involving Regulation 8E. It submits this was contrary to a request by the appellant’s counsel that a decision in another case not be relied on until those reasons were published and the parties had an opportunity to address the issue.[51]
[51] Appellant’s submissions, 24/5/23, [45]–[46].
The appellant accepts that the Member referred to the interpretation of Regulation 8E and said “there is no such thing as leave for a casual”. The appellant reiterates the submission that the “ultimate findings [were] based on the case decided by [the other member]”. The appellant submits she was “denied the opportunity to fully address the meaning of ‘unpaid leave’”.[52]
[52] Appellant’s submissions, 24/5/23, [48].
The appellant submits the Member failed to address the appellant’s reliance on Regulations 8B and 8C. She submits this involved a failure to address a substantial, clearly articulated argument, which constituted a failure to afford procedural fairness or a constructive failure to exercise jurisdiction. The appellant submits the Member was obliged to apply principles of procedural fairness.[53]

RESPONDENT’S SUBMISSIONS IN THE NOTICE OF OPPOSITION

[53] Appellant’s submissions, 24/5/23, [49]–[53].

Ground No. 1

The respondent refers to the examples of factual errors alleged in this ground. The respondent submits it is unclear whether some or all of these were errors of fact, as opposed to errors in transcription or simple accidental misstatements by the Member. None were asserted to have affected the determination in a material way. The respondent submits the appellant suggests the errors had the effect of “undermining the confidence the [a]ppellant is likely to have had in … the [Commission]”. The respondent states this is not appealable error.[54]
[54] Respondent’s submissions, [1]–[5].

Ground No. 2

The respondent refers to a submission by the appellant that it lodged a supplementary document on the day of hearing (3 March 2023) to the effect that only earnings received when the worker was actually working should be taken into account when determining PIAWE. The respondent submits the supplementary submission lodged by the appellant on that date contained only an extract from the Second Reading speech of the Workers Compensation Amendment Bill, which amended the Regulations to include Regulations 8B, C and D. It did not contain the submission to which the appellant refers.[55]
[55] Respondent’s submissions, [6]–[7].
The respondent refers to Regulation 8B. The respondent disputes the appellant’s submission that the Member “merely quoted the regulation without otherwise dealing with the appellant’s argument concerning it”. The respondent quotes the following from the Member’s reasons:
“The [appellant] also submitted that because a casual worker is engaged in several and separate periods of employment as a casual, the PIAWE should be based on only the most recent period of employment at the time when the injury occurred. I do not think this is correct because I regard all periods of employment with the respondent in the fifty-two-week period before the date of injury (clause 2(2) of Schedule 3) and the aggregate earnings in the employ of the respondent in that period are [to] be included in … calculating PIAWE, as the regulations do not make provision for not doing so.”[56]
[56] T 7.6–17.
The respondent submits the Member included what was effectively a summation of the appellant’s argument on Regulation 8B. The respondent submits “the Member considered the appellant’s submissions but rejected them”.[57]
[57] Respondent’s submissions, [9]–[10].
The respondent refers to the appellant’s argument regarding Regulation 8C. The appellant argued that there was a financially material change because of an increase in the number of hours that she worked during her second casual engagement, after she recovered from her surgery and returned to work until the date of her index injury. The respondent submits the appellant squarely raised the above in her submissions. The Member acknowledged the assistance from counsel with their submissions, including the written outline lodged prior to the hearing. The respondent submits the Member’s reasons “provided examples of what he did consider were financially material changes to the earnings of the worker, which are noted as changes to the employment relationship”:
“An example of this might be a promotion and an increase in salary or a change from full-time to part-time …”.[58]
[58] T 5.26–28.
The respondent submits the appellant was a casual worker whose hours increased due to an increase in demand. It submits the only change to the appellant’s employment was due to the number of hours she worked rather than to any change to the employment relationship.[59]
[59] Respondent’s submissions, [11]–[14].
The respondent refers to the following passage in the reasons:
“I do not consider that 8C would apply in the present case as I consider that the Regulation is directed to the actual employment of the worker with the employer who is the respondent and not with any other employer.”
The respondent acknowledges this involves factual error, as the only employment the appellant “suggests was affected by Regulation 8C was her work with the respondent and not any other employer”. The respondent submits this did not affect the determination regarding Regulation 8C.[60]
[60] Respondent’s submissions, [15].
Dealing with Regulation 8E, the respondent sets out the following passage from the Member’s reasons:
“I do not regard the period when the [appellant] was off on compensation for the injury with the other employer to have been a period of leave referred to in that clause. Leave is not defined in the legislation but the ordinary meaning of that word in an employment context requires an obligation to otherwise be at work. That is, it’s a permission from the employer to be absent from work at a time when, but for that permission, the worker would be obliged to attend for work. In the case of a casual worker this is not the case. A casual worker is employed for a specified period of employment when the employer offers employment and the worker is available and willing to work.”[61]
[61] T 6.10–23.
The respondent describes the appellant’s argument regarding Regulation 8E as “unclear”. The respondent refers to the appellant’s argument that neither party, in their outline of submissions, offered this argument. It refers to the appellant’s submission that, if the issue had been raised, the appellant would have submitted that a casual worker did not require permission of the type suggested. The appellant now submits the Member’s reasoning on this issue “only applies to contracts for employment whether they be for permanent or part time work for fixed hours or conditions”. The respondent submits that the appellant’s submission “appears to concede the definition of casual employment provided by the Member in his reasoning is in fact correct”.[62]
[62] Respondent’s submissions, [16]–[18].
The respondent refers to what it describes as a restatement of the appellant’s position at first instance: while off work for left thumb surgery the appellant “was not at work or on leave from work and it was not in dispute that she was not paid by the [r]respondent during that period”. The respondent “assumes” this submission is that this period should be considered ‘unpaid leave’. The respondent submits the appellant does not explain how the Member “erred in determining, as he did, that the period was not a period of leave”. The respondent submits the appellant has not identified error in the Member’s reasoning in relation to Regulation 8E.[63]
[63] Respondent’s submissions, [19]–[21].

Ground No. 3

The respondent submits the erroneous findings of fact to which the appellant refers could only be those raised in Ground No. 1. There were no significant factual disputes that required determination. The respondent refers to the appellant’s submission that the Member failed to reveal “any statutory or other basis from case law explaining his reasoning process or the legal matters that compelled him to the conclusion he drew”. The respondent says the Regulations were introduced in 2019. There was a paucity of relevant decisions. The appellant acknowledged a single decision on the issue, that in Dalirea. The respondent submits it is “unsurprising” the decision is not based on case law relating to the Regulations. The respondent noted the Member referred to the text of the Regulations.
The respondent refers to the decision of Pollard v RRR Corporation Pty Ltd (to which the appellant had referred) and from which the respondent quotes the following:
“While a judge is not obliged to spell out every detail of the process of reasoning to a finding … it is essential to expose the reasons for resolving a point critical to the contest between the parties …”.[64] (excluding references)
[64] [2009] NSWCA 110, [58].
The respondent submits the Member complied with the above requirements and sufficiently discharged his duty to provide reasons.[65]
[65] Respondent’s submissions, [22]–[25].

Ground No. 4

The respondent, in its submissions attached to its Notice of Opposition, dealt with the two paragraphs that addressed Ground No. 4 in the appellant’s original submissions that were set out in the Appeal Against Decision of Member. The respondent identified two arguments in this ground. The first was that the Member failed “to properly determine whether and how adjustments may or may not be made to the relevant earning period”. The second was that the Member failed to determine the number of weeks that should be taken into account.
The respondent submits the Member utilised (and thereby confirmed) the calculation method used by the respondent in determining PIAWE, and accordingly entered an award for the respondent. Thus, the Member adequately “carried out the task required of him”. The respondent submitted the Member considered a number of propositions put forward by the appellant in relation to the Regulations, all of which he discarded.[66] In this regard the respondent referred to the Member’s reasons where it was said:
“The [appellant] had contended that all her employment income from whatever employer over a 52-week period should be taken into account and provide a PIAWE figure of $534.83, however, I do not consider that to be the correct approach. The [appellant] also submitted that because a casual worker is engaged in several and separate periods of employment as a casual, the PIAWE should be based on only the most recent period of employment at the time when the injury occurred. I do not think this is correct because I regard all periods of employment with the respondent in the fifty-two-week period before the date of injury (Clause 2(2) of Schedule 3) and the aggregate earnings in the employ of the respondent in that period are [to] be included in calculating PIAWE, as the regulations do not make provision for not doing so.”[67]
[66] Respondent’s submissions, [26]–[30].
[67] T 7.2–17.
The respondent has included undated supplementary submissions, responding to supplementary submissions lodged by the appellant. These submissions from the respondent are attached to (and therefore do not postdate) the Notice of Opposition which was lodged on 5 June 2023. They do not refer to the addition by the appellant, later withdrawn, of a further ground (No. 5). They appear to respond to the appellant’s submissions dated 24 May 2023. They refer to the decision of Dalirea. The respondent states it takes no issue with the late filing of the appellant’s submissions dealing with Dalirea, as transcript of the decision in Dalirea was unavailable at the time the appellant’s submissions were filed.[68]
[68] Respondent’s supplementary submissions, [1]–[2].
The respondent states the appellant “has gone on to infer that the Member decided the present case on the basis of the reasons given by [the other member] in Dalirea”. The respondent refers to the appellant’s submission that “the language used and the reasons given by the [other member] were virtually identical to those used by Member McGrowdie in the present case”. The appellant refers to “a reference to the Macquarie definition of leave of absence in both determinations”. The respondent refers to the citing of definitions from the Macquarie Dictionary as “unremarkable”. The respondent submits the workers’ arguments in the two cases were “substantially different”. Any similarity in the reasoning is explicable as the two cases involved “the same factual scenario, that is the application of the Regulations regarding the calculation of PIAWE for casual workers”. The respondent submits Dalirea only dealt with Regulation 8E, whereas the present case dealt with the application of Regulations 8B, 8C and 8E.[69]
[69] Respondent’s supplementary submissions, [3]–[7].
The respondent submits there can be no suggestion that the appellant was not afforded procedural fairness.

APPELLANT’S SUBMISSIONS IN REPLY

Ground No. 1

The appellant refers to a submission by the respondent that a prior injury to the appellant’s left thumb, outside the “unadjusted 52 week earning period”, the circumstances of which were not explained by the Member, was “not a matter in dispute” and “no actual error was identified”. The appellant submits this injury was relevant as the appellant was absent from her employment to have surgery on the injured thumb. The appellant’s submissions state she was not paid by the respondent during this absence. The appellant submits her decision to take time off to have the surgery enhanced her ability to use her hands while working with the respondent.[70]
[70] Appellant’s submissions in reply, [1]–[6].
The appellant’s submissions in reply repeat her point that her faith in the legal system was undermined by factual misstatements. It refers to Abigroup Contractors Pty Limited v Sydney Catchment Authority (No. 3) where Beazley JA (as her Excellency then was) said:
“Not every factual error will undermine a determination nor necessarily be relevant to an argument based upon the adequacy of reasons. However, it may do so where the accuracy of the evidence is relevant, or even critical.”[71]
[71] [2006] NSWCA 282 (Abigroup Contractors), [142].
The appellant submits the meaning of the words ‘unpaid leave’ was relevant to Regulation 8E and critical to the Member’s decision, on a factual basis and as a matter of statutory construction.[72]
[72] Appellant’s submissions in reply, [7]–[8].

Ground No. 2

The heading given to these submissions is “That the Member committed Errors of Fact”. This appears to be in error and I infer it should refer to “Errors of Law”. The appellant submits it presented specific arguments on each of Regulations 8B, 8C and 8D [sic, 8E]. The appellant submits the Member did not furnish “any proper reasoning to justify his response to each of them”. The appellant refers to the phrase ‘actually working’, which she states was referred to in “the first review provided by the Legislative Council’s Standing Committee on Law and Justice”, that report having been referred to in the appellant’s written Outline of Submissions before the Member. She submits the respondent took a negative approach towards the submission without going to the substance of the legal question. She submits the Member (like the respondent) failed to offer a “proper interpretation” of the phrase “work performed in employment” in each regulation and the enabling provisions in Sch 3, cl 6(1) of the 1987 Act.[73]
[73] Appellant’s submissions in reply, [9]–[12].
Dealing with Regulation 8B, the appellant submits there is no explanation of ‘separate periods’ where the Regulation speaks of not being ‘continuously employed’. It states the most recent period of continuous employment was during the last 25 weeks before the appellant’s injury. The appellant submits there was no explanation of why ‘all periods of employment’ and ‘aggregate earnings’ in that period were crucial even though the appellant was not continuously employed during that period.[74]
[74] Appellant’s submissions in reply, [13]–[15].
The appellant deals with Regulation 8C. The appellant submits the clause refers to change in the ‘employment arrangement’, yet the Member referred to a change in the employment relationship. She submits there was a material change in her working arrangements, material to her earnings, during the 25 weeks before her injury. Her workload, hours and actual earnings increased. There was “a financially material change to her earnings”. Any other conclusion would be “glaringly improbable”. The appellant notes the respondent accepted the Member was wrong to refer to “any other employer” but the respondent submits the error was “immaterial”.[75]
[75] Appellant’s submissions in reply, [16]–[19].
The appellant deals with Regulation 8E. The appellant states she does not concede the correctness of the Member’s definition of casual employment. She states “the word ‘casual’ is not referred to in the amended PIAWE provisions at all”.[76] The appellant submits:
“The meaning of the [word] leave is a matter of common sense, it is the opposite of the stay or remain at work. There can be no dispute with regard to casual employment that it is not necessary for the worker to seek ‘permission’ to leave work. She need not to stay at work and whether she leaves or not is a matter in around discretion. This ought not interfere with her entitlement to compensation in the present circumstances.
What does matter in the present circumstances is that [the] appellant was not paid by the respondent for the period she was off work having her operation. Accordingly that period should be deducted from the 52 week period when calculating PIAWE.”[77]
[76] Appellant’s submissions in reply, [20]–[21].
[77] Appellant’s submissions in reply, [22]–[23].

Ground No. 3

The appellant refers to the description of ‘leave’ [I infer in Dalirea], involving permission being granted by the employer, as “so curiously similar to the reasons provided by the present [M]ember that the appellant may doubt that he can be seen to have brought an independent mind to the decision”.[78]
[78] Appellant’s submissions in reply, [25].

Ground No. 4

The appellant submits the Member combined “all of the appellant’s grounds of submission in one short paragraph and dismissed them all”.[79] She submits the Member’s “definition of ‘leave’” was in such similar terms to the matter of Dalirea”. The appellant submits the Member did not discuss the meaning of ‘unpaid’ in circumstances where the parties agreed compensation payments were not to be regarded as earnings. The appellant submits the Member “has not fulfilled the task allocated to him”.[80]
[79] The appellant refers to T 7.5–17.
[80] Appellant’s submissions in reply, [26]–[29].

THE DECISION IN SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE V STEWART

The decision of the Court of Appeal in Secretary, Department of Communities and Justice v Stewart[81] was delivered on 20 March 2024. It is relevant to the issues in the current case. I have previously summarised the decision of Stewart in my decision of State of New South Wales (Hunter New England Local Health District) v Sternbeck.[82] For ease of reference I repeat that summary immediately below:
[81] [2024] NSWCA 59 (Stewart).
[82] [2024] NSWPICPD 38.
“14. This decision was dated 20 March 2024. Mr Stewart suffered a work injury on 20 November 2020, and was totally incapacitated from 20 November 2020 to 1 February 2021. On 1 February 2021, Mr Stewart claimed compensation in respect of psychiatric injury resulting from the nature and conditions of his employment over a number of years (the later injury). The calculation of Mr Stewart’s PIAWE for the later injury was averaged over 52 weeks to 1 February 2021, although it did not include his compensation payments from 20 November 2020 to 1 February 2021 (consistent with cl 6(2)(c) of Sch 3 of the 1987 Act). The Member who decided the matter at first instance determined the PIAWE by averaging the earnings over a period that excluded the period during which compensation was paid for the earlier injury. On an appeal pursuant to s 352 of the 1998 Act, a Deputy President concluded that the period of incapacity related to the earlier injury should be effectively excluded from the calculation, as it was ‘unpaid leave’, within the meaning of reg 8E of the Workers Compensation Regulation 2016. This Presidential decision was the subject of appeal pursuant to s 353 of the 1998 Act to the Court of Appeal. The majority (Leeming JA and Griffiths AJA) upheld the employer’s appeal. Stern JA was in dissent.
15.    Griffiths AJA said:
‘126.… this case presents a constructional choice. Ultimately, however, the core issue is whether the Deputy President was correct to adopt what can appropriately be described as a strained interpretation of the expression ‘period of unpaid leave’ in reg 8E so as to avoid an outcome which the Deputy President viewed as ‘plainly unfair’.
127.Alternatively, applying well settled principles of interpretation, should that expression be given a different and narrower meaning? If that interpretation produces unfairness, power exists to make a regulation under cl 2(3) of Sch 3 of the Workers Compensation Act 1987(NSW), which authorises the making of an appropriate adjustment so as to address unfairness.’
16. His Honour said the phrase ‘period of unpaid leave’ appeared in cl 2(3)(a) of Sch 3 of the 1987 Act and in reg 8E of the Regulations. There being no contrary intention, the term should have the same meaning in reg 8E as in cl 2(3)(a). The ordinary meaning in the context of cl 2(3)(a) did ‘not encompass a situation where a worker is unable to work because of incapacity and is receiving workers compensation. Such a worker is not on leave, nor is the person unpaid.’[83] His Honour accepted that in an employment or industrial context, the 1987 Act ‘uses ‘leave’ in its ordinary meaning as having the sense of an entitlement or authorisation which relieves a worker of performance of their duties conferred by or under an employment contract, statute or industrial agreement’.[84] His Honour described this as also being the meaning given to the term in Flinders Ports Pty Ltd v Woolford,[85] approved by the South Australian Court of Appeal in Knight v State of South Australia.[86] His Honour said that these decisions, although they dealt with differently worded legislation, provided ‘helpful guidance’ and he was ‘not persuaded they are clearly wrong’.[87]
[83] Stewart, [130].
[84] Stewart, [131].
[85] [2015] SASCFC 6; 121 SASR 485.
[86] [2022] SASCA 14; 140 SASR 326.
[87] Stewart, [129]–[134].
17.    His Honour said ‘the term ‘leave’ should be given its ordinary meaning and should not be strained’. He described this as ‘[a]ll the more so where there is available a power to make a regulation to address any unacceptable unfairness in that interpretation.’ He said, ‘in my respectful view, the term ‘leave’ does not cover the situation where a worker is absent from employment due to compensable injury in the ordinary sense of that term.’[88]
[88] Stewart, [135]–[137].
18.    His Honour said:
‘… cl 2(3)(a) empowers the making of regulations to provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period) to ‘take into account any period of unpaid leave’ or ‘other change in earnings circumstances in the employment’ … a regulation could be made under cl 2(3)(a) requiring an adjustment to be made of the relevant earning period for a worker in employment so as to include in that relevant period part or all of the time during which an injured worker received such compensation.’[89]
[89] Stewart, [138].
And:
‘Self-evidently, Parliament turned its mind to this matter in the context of defining what are ‘earnings’ in that provision. There is, however, no equivalent unequivocal provision regarding the relevance of receipt of workers compensation payments in calculating pre-injury average weekly earnings. It should be assumed that Parliament was content to leave it to the Executive to make an appropriate regulation on the subject if seen fit to do so.’[90]
[90] Stewart, [143].
And:
‘… although purpose is undoubtedly a relevant consideration in the task of construction, it has limited utility in a case such as this. That is because, although the legislation can accurately be described as ‘beneficial’, it also represents the outcome of a balancing of competing considerations in implementing that purpose. Moreover, it is important to appreciate that one part of the implementation of that purpose is the creation of the regulation-making power to address any anomalies or unfairness in the operation of the primary legislation.’[91]
19.    Leeming JA considered the words ‘unpaid leave’ were ‘capable without undue strain of extending to the three months following Mr Stewart’s shoulder injury during which he was not at work and was receiving 95% weekly payments under the Act’. His Honour doubted the question was ‘greatly affected’ by the South Australian decisions referred to above. His Honour said the constructional choice was ‘resolved by three main considerations’. The first was that the regulation-making power had not been fully exercised. Mr Stewart’s absence on workers compensation was not ‘unpaid leave’, it was a ‘change in earnings circumstances’. Regulation-making power to address that circumstance existed but was not exercised.’[92]
20.    His Honour said that, secondly, the regulations ‘on no view accommodate a worker who suffers two injuries, the first of which is only partially incapacitating’, followed by a second injury. His Honour said this ‘tends to confirm the limits on a court’s ability by way of construction to address what are perceived to be gaps in its operation’.[93]
21.    His Honour said of the third consideration:
‘… the critical provisions do not have the appearance of a comprehensive scheme. Instead, they are a series of ‘adjustments’, all of which are intended to deal heuristically with the miscellany of factors which may alter the calculation of a worker’s ‘pre-injury average weekly earnings’… None addresses the circumstance which gives rise to the present appeal, namely, where the worker suffers two incapacitating injuries at two different times. Although in general a construction which results in a coherent scheme should be preferred, it seems to me that the features of the regime outlined above tend to diminish the utility of notions of coherence, and disfavour straining the statutory language so as to accommodate circumstances which are not addressed explicitly.’[94]
22.    His Honour observed that the regulation ‘must in any event be remade in the near future’. He said: ‘There may also be merit in explicitly addressing any adjustment which is to be made in cases where a worker suffers two injuries.’[95]
23.    Leeming JA and Griffiths AJA agreed that the employer’s appeal should succeed. Stern JA, in dissent, would have dismissed the appeal.”
[91] Stewart, [147].
[92] Stewart, [11]–[13].
[93] Stewart, [14].
[94] Stewart, [15].
[95] Stewart, [16].

The Commission, on 22 March 2024, issued a Direction that the parties lodge and serve any additional submissions they wished to make dealing with the decision of the Court of Appeal in Stewart, together with a Presidential decision of Secretary, Department of Communities and Justice v Nitchell,[96] by 28 March 2024 (the appellant) and 4 April 2024 (the respondent).
[96] [2023] NSWPICPD 36 (Nitchell).

Appellant’s further submissions pursuant to the Direction

The appellant quotes from the headnote in Stewart. The appellant makes submissions going to why the reasons of the dissentient are to be preferred to those of the majority. The appellant acknowledges that “the authority of the Court of Appeal is binding on this Tribunal for the limited purpose only of the interpretation of regulation 8E”. The appellant submits the decision of the Court of Appeal in Stewart is “both distinguishable and its ratio is limited to the interpretation of Regulation 8E only”.[97]
[97] Appellant’s further submissions pursuant to Direction, [1]–[10].
The appellant submits it continues to rely on its submissions that were made at first instance in relation to Regulations 8B and 8C. It submits its earlier submissions are “open, without straining the language”, to the following interpretations:
(a) that the appellant was ‘not continuously employed’ during the 52 weeks of the normal earnings period, and
(b) it may be considered there was a significant ‘financially material change’ to her earnings during the overall period of her engagement with the respondent.
The appellant submits, for the purposes of Regulations 8B and 8C, the number of weeks taken into account when making the PIAWE calculation should be consistent with her original Outline of Submissions at first instance.[98]
[98] Appellant’s further submissions pursuant to Direction, [11]–[12].
The appellant refers to Nitchell and submits there are various cases decided in the Commission dealing with adjustment of the ‘relevant earnings period where there was a material change in circumstances. It submits that, on a fair reading of Regulations 8B and 8C “the number of weeks taken into account should be reduced to the number that were actually worked in those financially material changed circumstances”. The appellant refers to the Presidential decision of Secretary, Department of Communities and Justice v Pell.[99] She submits “the only weeks that are to be taken into account are those when the worker was actually receiving earnings from work that she was actually performing for the respondent employer in the relevant period”.[100]
[99] [2023] NSWPICPD 19.
[100] Appellant’s further submissions pursuant to Direction, [13]–[16].

Respondent’s further submissions pursuant to the Direction

The respondent states that Stewart dealt with whether a period, in which a worker was incapacitated and paid workers compensation, constituted a period of ‘unpaid leave’ for the purposes of Regulation 8E and cl 2(3)(a) of Sch 3 to the 1987 Act. The majority determined that it did not, a decision that is binding on the Commission. Regulation 8E therefore has no application to the appellant’s circumstances.[101]
[101] Respondent’s further submissions pursuant to Direction, [1]–[3].
The respondent quotes from the reasons of Leeming JA in Stewart at [13] to [15] of that decision. It submits these reasons provide a broader context through which Regulations 8B and 8C could be viewed. Both are confined in the same manner as Regulation 8E. Regulation 8B excludes periods before a worker was “first engaged” in the employment. Regulation 8C allows adjustment where there is a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker. Neither is a “full exercise of the regulation-making power”.[102]
[102] Respondent’s further submissions pursuant to Direction, [4]–[5].
The respondent submits neither Regulation 8B nor 8C make adjustments that expressly accommodate a worker in the appellant’s circumstances who has suffered two injuries. It submits Regulations 8B and 8C, like Regulation 8E, do not have the appearance of a comprehensive scheme. The respondent refers to the appellant’s submissions, which argue Regulations 8B and 8C can be applied to her circumstances “without straining the language”. The respondent refers to the reasons of Leeming JA in Stewart at [15], where his Honour says that features of the Regulations “disfavour straining the statutory language so as to accommodate circumstances which are not addressed explicitly”. The respondent submits the suggested application of the Regulations in the appellant’s circumstances does strain the statutory language. It repeats its reliance on the Member’s decision regarding Regulation 8B at [10] of its primary submissions.[103]
[103] Respondent’s further submissions pursuant to Direction, [6]–[7].
The respondent notes the appellant, in a footnote, referred to a Member’s decision in Field v Secretary, Department of Education.[104] The respondent states that decision was the subject of a Presidential appeal in which Wood DP reversed the Member’s decision.[105] It submits that decision is consistent with the respondent’s position in relation to the application of the Regulations to casual workers. The respondent relies on that Presidential decision at [87] to [90] and submits it should be followed.[106]
[104] [2023] NSWPIC 214.
[105] Secretary, Department of Education v Field [2024] NSWPICPD 23.
[106] Respondent’s further submissions pursuant to Direction, [9]–[10].

CONSIDERATION – GROUND NO. 1

In Todorovic v Moussa Beazley JA (as her Excellency then was) said: “It is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons.”[107] Her Honour dealt at length with the delivery of ex tempore reasons and with the correction of such reasons. Her Honour quoted with apparent approval from Gleeson CJ, writing extracurially, where his Honour said:
“A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.”[108]
[107] [2001] NSWCA 419, 53 NSWLR 463, [41].
[108] ‘Revising Transcripts of Summing-Up’ (1997) 9 Judicial Officers Bulletin at 25.
Her Honour also quoted from Bar-Mordecai v Rotman in which the Court of Appeal stated:
“It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.”[109]
[109] [2000] NSWCA 123, [193].
In Bell v Veigel Mason P said:
“It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge’s own motion, in a proper case.”[110]
[110] [2008] NSWCA 36, [220].
The appellant’s submissions indicate an unverified transcript of the reasons was provided to the parties on 29 March 2023 (see [15] above). This was followed by the verified transcript which was issued on 1 May 2023 (see the Direction issued by the Commission on 17 May 2023). It is appropriate to regard the transcription or recording which is reduced to writing as “a draft judgment” and the version that is revised by the decision maker as that which is revised “for final publication”.[111]
[111] See Spencer v Bamber [2012] NSWCA 274, [137].
There is a misstatement of the appellant’s surname in the unverified transcript of the reasons at 1.31. This is clearly in the nature of a slip, the Member had referred to the appellant’s surname correctly at 1.23 of the unverified transcript of the reasons. The appellant’s submissions rely on this slip (see [31] above), which was not repeated in the verified transcript, as an example of the Member’s factual errors. The appellant refers to the Member erroneously referring to a period of work with Ascott and submits this error was immediately withdrawn, but not replaced with an accurate reference. The appellant submits the alleged factual errors are “at least revealing of a degree of confusion infecting the [M]ember’s thinking as he approached his consideration of legal issues”. The appellant submits:
“To the extent that any of the legal questions associated with his interpretation of the Act and Regulations as proposed in submissions, may have bee[n] affected by these erroneous factual assumptions, the [M]ember has fallen into error.”[112] (emphasis added)
[112] Appellant’s submissions, [5](i).
The appellant does not specifically identify how the alleged factual errors could have affected the result. In Gerlach v Clifton Bricks Pty Ltd the plurality said:
“6. The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis in original).
7. It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.”[113] (excluding references)
[113] [2002] HCA 22; 209 CLR 478, [6]–[7]. See also Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, [110].
The appellant’s submissions in reply repeat the assertion that factual errors undermined the appellant’s faith in the legal system. This submission does not identify error within the meaning of s 352(5) of the 1998 Act. The appellant quotes the following passage from the decision of the Court of Appeal in Abigroup Contractors:
“Not every factual error will undermine a determination nor necessarily be relevant to an argument based upon the adequacy of reasons. However, it may do so where the accuracy of the evidence is relevant, or even critical.” (see [73] above)
The appellant submits the meaning of the words ‘unpaid leave’ was “relevant on a factual basis and as a matter of statutory construction” (see [74] above). The factual errors on which the appellant relies are of such a nature that they do not undermine the Member’s determination. Various of the asserted factual errors were simply slips that appeared in the unverified transcript and were appropriately edited out of the settled version of the reasons. When the verified reasons are read as a whole,[114] I cannot see a basis on which this ground is made out.
[114] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
There was little relevant factual dispute in the case. Rather, it turned on the interpretation of the statutory framework, in particular the legislation and regulations set out at [22] to [25] above. The appellant does not explain how the factual errors it nominates impacted on any material factual findings or on any issue of statutory construction. The factual errors the appellant identifies are essentially of a minor kind, errors in the course of delivering an ex tempore decision, which were rectified in the process of legitimate correction. The appellant does not argue the Member went beyond accepted principles in correcting the reasons, consistent with the authorities referred to above.
Ground No. 1 fails.

CONSIDERATION – GROUND NO. 2

Regulation 8E

Ground No. 2 is framed in very broad terms. The appellant’s submissions specifically identify Regulations 8B, 8C and 8E of the 2016 Regulation as the subject of “detailed submissions” in respect of which the Member allegedly “made legal errors.”[115] It is convenient to commence with Reg 8E, which was the subject of detailed consideration by the Court of Appeal in Stewart.
[115] Appellant’s submissions, [9].
The appellant refers to the Member’s reasoning that, in an employment context, ‘unpaid leave’ requires “an obligation to otherwise be at work”. The appellant submits if this had been raised she would have submitted that a casual worker does not require permission to decline an offer of work. The appellant submits that while off work for the left thumb surgery she was not paid and not at work, she was on ‘unpaid leave’. The appellant restates the same point in her submissions in reply (see [78] above).
The respondent submits the Commission is bound by the decision in Stewart. Regulation 8E can have no application to the appellant’s circumstances.
Leeming JA and Griffiths AJA both considered that the phrase ‘unpaid leave’ in Reg 8E must bear the same meaning as it does in Sch 3 cl 2(3) of the 1987 Act.[116] Griffiths AJA considered that the ordinary meaning, in context, did not extend to a worker who was unable to work due to incapacity and receiving workers compensation. Such a person was not on leave nor was the person unpaid. His Honour considered the ordinary meaning of ‘leave’ should not be strained. His Honour said there was internal consistency in adopting the meaning which he did, having regard to the use of the term ‘leave’ in ss 49 and 50 of the 1987 Act, which dealt with other types of leave. He accepted that the 1987 Act used the term ‘leave’, in this “employment or industrial context”, in its “ordinary meaning as having the sense of an entitlement or authorisation which relieves a worker of performance of their duties conferred by or under an employment contract, statute or industrial agreement”. His Honour concluded that “the term ‘leave’ does not cover the situation where a worker is absent from employment due to compensable injury in the ordinary sense of that term”.[117]
[116] Stewart, [13], [129].
[117] Stewart, [130]–[131], [136]–[137].
Leeming JA reached the same conclusion. His Honour considered the language of the Regulation was capable of extending to the worker’s situation in Stewart but he did not accept that such a construction should be accepted.[118] His Honour described three circumstances that led to that result. Firstly, his Honour concluded that the period during which the appellant received workers compensation for the earlier injury with a different employer was not ‘unpaid leave’. Secondly, his Honour said the various regulations which make adjustments on no view accommodate a worker who suffers two injuries. He said this “tends to confirm the limits on a court’s ability by way of construction to address what are perceived to be gaps in its operation”. His Honour also observed that “the critical provisions do not have the appearance of a comprehensive scheme, rather they are “a series of ‘adjustments’”. None of the provisions addressed the circumstance in Stewart, “two incapacitating injuries at two different times”.[119]
[118] Stewart, [8].
[119] Stewart, [13]–[15].
The majority of the Court of Appeal in Stewart concluded that Reg 8E, in circumstances very similar to those in the current matter, did not apply. I am bound by the decision in Stewart. The appellant submits the decision of the Court of Appeal in Stewart “is both distinguishable and its ratio is limited to the interpretation of Regulation 8E only”. The appellant has not identified a basis on which the current matter can be distinguished from that in Stewart, on the application of Reg 8E. The appellant’s argument based on Reg 8E fails.

Regulation 8B

Regulation 8B provides:
“8B   Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.
(2)     The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.”
The appellant’s outline of submissions dated 14 February 2023, on which she relied at first instance, described it as “arguable” that the word “continuously” should be read into the Regulation, “between the words ‘not engaged’ and the words ‘in the employment’”. The appellant submits she was not engaged in any period of casual employment when she underwent right arm surgery, during the 15 week period from 16 July 2021 to 14 November 2021. The need for this absence resulted from injury with a different employer and the worker was paid compensation while off work “on or before 15 December 2020”. It is submitted the worker first engaged in the final period of her casual employment with the respondent from 30 October 2021 to 21 April 2021 [sic, 2022].
On appeal, the appellant submits the Member quoted the Regulation but did not otherwise deal with the appellant’s argument.[120] In her submissions dated 11 April 2024 the appellant also placed reliance on the 2017 Review of the Compensation Scheme conducted by Standing Committee on Law and Justice of the Legislative Council.[121] There is no reference to what use should be made of this document as an aid to construction of the regulations at issue.
[120] Appellant’s submissions, [10]–[12].
[121] Appellant’s further supplementary submissions, 11/4/24, [12].
The respondent submits “the Member did in fact consider the appellant’s submissions in relation to the relevant earning period”. It refers to the Member’s summation of the appellant’s submission, that “because a casual worker is engaged in several and separate periods of employment as a casual, the PIAWE should be based only on the most recent period of employment at the time when the injury occurred”. It submits the Member rejected this proposition, saying all periods of employment within the 52 week period before the date of injury should be included, “as the regulations do not make provision for not doing so”. The respondent submits this constituted consideration and rejection of the appellant’s submissions on Reg 8B.[122]
[122] Respondent’s submissions, [8]–[10].
The respondent refers to the decision of Stewart, submitting Leeming JA said that Regs 8B and 8C are confined in the same way as Reg 8E. Reg 8B excludes periods before the worker was “first engaged” in the employment. Regulations 8B and 8C do not make adjustments for a worker who suffers two injuries.[123]
[123] Respondent’s further supplementary submissions, [5]–[6].
The appellant makes a specific argument based on subcl (1) of Reg 8B(1), that the Regulation should be interpreted as if the word ‘continuously’ were read into it, so that it provides:
“The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged continuously in the employment from the beginning of the unadjusted earning period.”
The Member’s reasons on Reg 8B were short. The Member referred to the appellant’s argument that, where a worker is a ‘casual’, the “PIAWE should be based on only the most recent period of employment at the time when the injury occurred”. He rejected the correctness of this, on the basis that cl 2 of Sch 3 to the 1987 Act provided otherwise. He additionally said that the regulations did not provide for such an approach.[124] The Member’s reasons on this issue were succinct, but they did deal with the appellant’s argument going to Reg 8B. The appellant’s submission, on reading words into Reg 8B, did not proffer a reason for this beyond that involving the text of Reg 8B. To this extent, that argument was dealt with.
[124] T 7.6–17.

Regulation 8C

Regulation 8C provides:
“8C   Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2)     The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
The appellant’s Outline of Submissions dated 14 February 2023, on which she relied at first instance, argued that there was a ‘change’ within the meaning of the Reg 8C on 30 October 2021, when she commenced her second discrete period of casual employment with the respondent. The appellant accepted that her status throughout remained that of a casual. She submitted that for the 25 weeks, from 30 October 2021, she worked increased hours, with an increased number of patients, and with “a significant increase in her weekly earnings”. She submitted her average weekly earnings from 21 April 2021 to 15 July 2021 were $93.35, whereas during the 25 weeks from 30 October 2021 to 21 April 2022 her average weekly earnings were $740.19. She submitted this represented “a financially material change” which was “of an ongoing nature”.[125]
[125] Appellant’s outline of submissions at first instance, [22]–[30].
The respondent’s submissions accept that the Member’s reasons did not specifically address the appellant’s argument based on Reg 8C.
The respondent raises the following passage from the Member’s reasons, where after quoting Reg 8C, the Member said:
“An example of this might be a promotion and an increase in salary or a change from full-time to part-time, then the relevant period is to be calculated as set out in sub-clause (2). I do not consider that 8C would apply in the present case as I consider that the Regulation is directed to the actual employment of the worker with the employer who is the respondent and not with any other employer.”[126]
[126] T 5.26–33.
The respondent submits these examples were matters that changed the employment relationship (promotion, salary increase, a change from full-time to part-time), consistent with its submissions at first instance. It submits the only change relied on by the appellant was to the hours she worked due to an increase in demand.[127] The respondent acknowledges factual error in this passage, as the only employment affected by Reg 8C was with the respondent, there was no other relevant employer. The respondent submits this error did not affect the Member’s determination on the application of Reg 8C.[128]
[127] Respondent’s submissions, [13]–[14].
[128] Respondent’s submissions, [15].
The passage from the reasons quoted above involves a factual error, which is appropriately acknowledged by the respondent. It proceeds on the misapprehension that there was employment with another employer during the relevant period, and it relies on that misapprehension in rejecting the possibility that Reg 8C could have application. The analysis does not go on to explain why a change in salary, a change in status between full and part-time, or a promotion, would constitute a financially material change to a worker’s earnings, but a sustained increase in the work undertaken (and associated earnings) would not. The respondent’s submissions seek to offer an explanation, but this does not remedy the difficulty in how Reg 8C was dealt with. It cannot be said that this error did not affect the outcome, in circumstances where the Member relied on the error in his reasoning, in rejecting the application of Reg 8C.
It follows that there is appealable error identified in Ground No. 2.

CONSIDERATION – GROUND NO. 3

I will deal relatively briefly with this ground, given the conclusion I have reached on Ground No. 2. The obligation of a member of the Personal Injury Commission to give reasons was considered recently in Fisher v Nonconformist Pty Ltd.[129] Kirk JA (Meagher JA and Simpson AJA agreeing) referred to the statutory duty in s 294 of the 1998 Act, which provides:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
[129] [2024] NSWCA 32 (Fisher).
His Honour referred also to r 78 of the Rules, which is set out at [17] above.
His Honour said that there was “no general common law duty on executive decision-makers to give reasons for their decisions”,[130] citing Wingfoot Australia Partners Pty Ltd v Kocak, where the High Court said that “there is in Australia no free-standing common law duty to give reasons for making a statutory decision”.[131]
[130] Fisher, [136].
[131] [2013] HCA 43; 252 CLR 480, [43].
His Honour said that, if it were assumed that the adequacy of appropriate reasons for a member of the Commission was the same as that applying to a judge, the nature of that standard was summarised in Ming v Director of Public Prosecutions:
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[132]
[132] [2022] NSWCA 209; 109 NSWLR 604 (Ming), [43].
The applicable obligation to give reasons in the current matter at least extended to the construction and associated factual findings relevant to the statutory and regulatory provisions set out at [22] to [25] above. The appellant relied particularly on Regs 8B, 8C and 8E of the 2016 Regulation.
Insofar as Reg 8B is concerned, the appellant sought to argue that a word (‘continuously’) should, as a matter of statutory construction, be read into the text of the clause. Such an argument would have been a difficult one on which to succeed, from the appellant’s point of view.[133] The Member dealt with an argument relating to Reg 8B, which he described as a submission that, where there are several periods of casual employment, “the PIAWE should be based on only the most recent period of employment at the time when the injury occurred”. He rejected this on the basis it was inconsistent with the provisions of the Regulations. He did not deal with the specific statutory interpretation argument, based on reading a word into the text of Reg 8B.
[133] See D.C. Pearce, Statutory Interpretation in Australia, 10^th ed., [2.60], at p 80.
The appellant’s argument based on Reg 8C is discussed above at [115] to [119]. It is common ground that the reasons failed to address the appellant’s argument on this point. There is a failure to comply with the requirements of subcl (2) of r 78 of the Rules. This constitutes appealable error.

CONCLUSION

The appeal pursuant to s 352 of the 1998 Act succeeds. It is unnecessary to deal with Ground No. 4. It is appropriate that the Certificate of Determination be set aside and that the matter be remitted for redetermination by a different member, consistent with these reasons.

DECISION

The Certificate of Determination dated 20 March 2023 is rescinded.
The matter is remitted for redetermination by a different member, consistent with these reasons.

Michael Snell

DEPUTY PRESIDENT

2 August 2024