WorkCover Authority of New South Wales v Mackley

The WorkCover Authority of New South Wales appealed to the Court of Appeal from a decision of the Workers Compensation Commission (WCC) concerning the recovery of compensation paid to a worker from an uninsured employer. The worker had obtained an award against both the uninsured employer and the WorkCover Authority. Following payment of compensation, the Authority served a notice on the employer under section 145(1) of the *Workers Compensation Act 1987* (NSW) requiring reimbursement. The employer subsequently applied to the WCC under section 145(2) for a determination regarding their liability, and a Presidential Member of the WCC decided to relieve the employer from liability, declining to enforce the reimbursement notice.

The central legal issue before the Court of Appeal was the scope of the discretionary power vested in the WCC under section 145(4) of the *Workers Compensation Act 1987* (NSW). Specifically, the court had to determine whether this discretion, which permitted the Commission to "make such determination ... as the Commission thinks fit," was limited to formulating a determination that gave effect to the existing rights of the parties, or if it extended to a broader discretion to decide what those rights should be, including the power to relieve an uninsured employer from liability. The court also considered the nature of the entitlements conferred by Part 4 Division 6 of the Act and the effect of prior proceedings between the same parties in the Compensation Court.

The Court of Appeal held that the discretion granted to the WCC under section 145(4) was a wide one, encompassing the power to relieve an uninsured employer from liability. The court reasoned that this broad discretion was intended to allow the Commission to achieve a just outcome in the circumstances, considering the overall scheme of the Act and the rights of the parties involved. The appeal was accordingly dismissed.

The appeal was dismissed with costs.