WorkCover Authority of NSW v Rohde
[2006] NSWWCCPD 289
•31 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:WorkCover Authority of NSW v Rohde [2006] NSWWCCPD 289
APPELLANT: WorkCover Authority of NSW
RESPONDENT: Colin Rohde
FILE NUMBER: WCC15832-05
DATE OF ARBITRATOR’S DECISION: 22 February 2006
DATE OF APPEAL DECISION: 31 October 2006
SUBJECT MATTER OF DECISION: The powers of the Commission under section 145 of the Workers Compensation Act 1987; reimbursement of the WorkCover Authority; relevance of principles of ‘procedural fairness’ and ‘natural justice’ to a section 145 Notice.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: TurksLegal
Respondent: Hunt & Hunt
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 22
February 2006 is revoked and the following decision is made in its place:
(a) The Application to Resolve a Dispute filed by Colin Rohde on 16 September 2005 is dismissed, since the Commission had no jurisdiction to determine that Application.
(b) No order as to costs of proceedings before the Arbitrator.
2.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 22 March 2006, the Appellant, the WorkCover Authority of New South Wales (‘WorkCover’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission in respect of a decision of a Commission Arbitrator dated 22 February 2006.
The Respondent to the appeal is Colin Rohde (‘Mr Rohde’).
Mr Rhode, a resident of the Northern Territory, operated a farming enterprise at a property known as ‘Sailor Jack Station’ located in the Tenterfield area of northern New South Wales. On 23 April 2003 Glen Robert Joyce (‘the Worker’) commenced employment with Mr Rohde as a farm hand at Sailor Jack Station under the New Apprenticeship Scheme attached to the NSW Department of Education and Training. In a statement dated 24 October 2003, the Worker claimed that the ‘traineeship’ arrangement involved him working at Sailor Jack Station for approximately four weeks in every five, and then attending the Inverell TAFE for one week.
In the last week of May 2003, the Worker attended the Inverell TAFE, which was to be the first week of his traineeship. After completing the week’s course on the Friday, the worker arranged to stay the weekend at his mother’s home in Glen Innes. On Sunday 1 June 2003, the Worker telephoned his manager at Sailor Jack Station and sought permission to return to the station mid morning on Monday 2 June 2003. That permission was apparently granted.
On the morning of 2 June 2003, the Worker drove from the premises at Glen Innes to Sailor Jack Station along the Bruxner Highway where his vehicle left the road and struck a tree, as a consequence of which the Worker sustained serious injuries.
As Mr Rohde was uninsured, the Worker made a claim for weekly benefits and medical expenses on the Uninsured Liability and Indemnity Scheme (‘ULIS’). The claim was paid and the Appellant then sought to recover those payments from Mr Rohde.
On 3 August 2005, the Appellant served Mr Rohde with a notice requiring it to reimburse the Appellant for monies paid to the Worker pursuant to the provisions of section 145(1) of the Workers Compensation Act 1987 (‘the 1987 Act’). The notice gave Mr Rohde 28 days within which to apply to the Commission for a determination as to his liability, if any, to reimburse the Appellant the amount of the claim.
In a letter dated 28 August 2005, Mr Rohde wrote to the Appellant stating that:
“I deny that any monies are owing to you with respect to Mr Joyce. It is vexatious and ludicrous that you infer that I am responsible for medical costs to a motor vehicle accident when I was not involved and not even in New South Wales at the time. There is no other basis for your claim.”
It was Mr Rhode’s view that the Worker was not in the course of his employment at the time of the accident and that on that basis, “we deny any liability.”
On 16 September 2005 Mr Rohde filed an ‘Application to Resolve a Dispute’ in the Commission disputing the validity of the section 145 Notice served by the Appellant.
The matter was listed for a conciliation/arbitration hearing on 7 February 2006. The parties agreed that substantive issues raised by Mr Rohde, regarding, inter alia, whether the Worker was injured during a journey pursuant to section 10 of the 1987 Act should be delayed pending resolution of interlocutory issues described by the Arbitrator as follows:
· “Does the Commission have jurisdiction to determine the claim
when the Applicant [Mr Rohde] applied to the Commission under section 145(3) outside the time specified in the section 145(1) Notice?
·Is the section 145(1) notice void or voidable due to the failure of the
Respondent to accord to the Applicant natural justice or procedural fairness?”
The substance of the dispute between the parties was the liability for payment of $63,035.10 of benefits paid to the Worker by the Appellant.
On 22 February 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued.
The Arbitrator’s summary of the “issues in dispute” set out in paragraph 37 of his ‘Statement of Reasons’ was as follows:
“37.1The Respondent was under a duty to provide procedural fairness to the Applicant by providing the Applicant with all information it has in its possession relating to the acceptance of liability and the payment of compensation and reimbursement of medical expenses under ULIS in respect of the Applicant’s work, and to permit the Applicant to be heard, prior to its decision to issue a Notice under section 145(1);
37.2The Respondent’s failure to do so rendered the section 145(1) Notice void or voidable;
37.3As the defects in the S145 Notice can be cured by Directions, it is held to be voidable; and
37.4The Commission has jurisdiction under section 145(3) as the time specified in the S145 Notice has yet to run.”
The formal order on the ‘Certificate of Determination’ dated 22 February 2006 was as follows:
“That the Respondent pay the Applicant’s costs of the hearing as agreed or assessed.”
The Arbitrator proceeded to issue a number of directions contained in the ‘Certificate of Determination’ for the further conduct of the matter.
On 22 March 2006, the Appellant filed an ‘Appeal Against Decision of Arbitrator’ principally upon the grounds that the Commission had no jurisdiction to hear the Application as Mr Rohde failed to file the Application within the time specified within the section 145 Notice, and that the Arbitrator erred in his application of principles of procedural fairness to the matters the subject of the Application.
On 26 April 2006, Mr Rohde filed a ‘Notice of Opposition to Appeal’. Briefly, Mr Rohde effectively repeats his submissions before the Arbitrator on the issue of ‘procedural fairness’, and maintains that the Arbitrator’s decision is correct and ought be affirmed. Mr Rohde also submits that the appeal does not satisfy the monetary threshold required pursuant to section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
LEAVE TO APPEAL
Mr Rohde submits that the issue to be determined at the Arbitration hearing on 7 February 2006 involved a “preliminary point” as to whether the Commission had jurisdiction to hear the proceedings. The substantive proceedings were stood over for further arbitration and, in Mr Rohde’s submission, “it would only be on the finalisation of that hearing that a determination would be made which would involve at least $5,000.00 as required pursuant to section 352(2)(a) of the [1998 Act]”. Mr Rohde further submits that:
“It is premature for the Appellant to seek leave to appeal … at this stage. Upon a determination of the whole of the proceedings, it may become evident that the Respondent [Mr Rohde] is liable to the WorkCover Authority in any event. Thus, consideration of this preliminary matter should not occur until the matter is completely determined, otherwise, the appeal may be a waste of time.”
It is Mr Rohde’s submission that the Arbitrator’s determination is “purely procedural” and therefore does not pass the threshold test and relies upon the decision of Tagg v International Flavours and Fragrances (Australia) Limited [2003] NSWWCCPD 5 (‘Tagg’)
Section 352(2) of the 1998 Act provides as follows:
“(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) At least $5000.00 (or such other amount as may be prescribed by the Regulations), and
(b) At least 20% of the amount awarded in the decision appealed against.”
There have been a number of decisions of the Commission as to the circumstances in which the “threshold” provisions apply. In Tagg, the Commission determined that a decision to adjourn a Teleconference was purely procedural and did not pass the threshold test. The decision must have a real capacity to put the award of compensation in issue in the appeal. (See Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7).
In addition, section 352(8) provides that: “In this section, decision includes an award, interim award, order, determination, ruling and direction.”
In the present case, no compensation was awarded by the Arbitrator such that section 352(2)(b) does not apply. (See Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5). Notwithstanding Mr Rohde’s submission, I do not consider the Arbitrator’s determination to be merely “procedural” within the context of the decisions to which I have referred. The amount at issue in the proceedings satisfies the requirements of section 352(2) of the 1998 Act.
The appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Mr Rohde submits that the appeal is suitable for determination ‘on the papers’.
The Appellant objects to the matter being decided on this basis for the following reasons:
“(a)The determination of this appeal and the matters which necessarily flow from it are important matters of principle for the WorkCover Authority as to its operations including in regard to s.145 Notices but also as to other notices including penalty notices.
(b)The possible consequential effect upon resource allocation by the WorkCover Authority as to its operation.
(c)The jurisdiction of the Commission to conduct judicial review of administrative action not only as to the operation of the WorkCover Authority but also as to other administrative bodies subject to the jurisdiction of the Commission.”
Section 354(6) of the 1998 Act provides as follows:
“(6)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 without holding any conference or formal hearing.”
The submissions by the Appellant do no more than cite its concerns as to the functions and operations of the WorkCover Authority. No reasons have been given as to why the Appellant considers that the issues raised on appeal could be further elucidated by oral argument.
The only issue in dispute is whether or not the Arbitrator erred in determining that the section 145(1) Notice was void. Both parties have made extensive submissions and provided a detailed list of authorities upon which they rely. Having read those submissions, and all the evidence and documents that are before me, including the transcript, I am satisfied that I have sufficient information to proceed ‘on the papers’ within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Direction No 1, and that this is the appropriate course in the circumstances.
THE ISSUES IN DIPSUTE
The issues in dispute in the appeal are:
1.Whether the Commission had jurisdiction to hear Mr Rohde’s application as it was filed outside the 28 day period specified in the section 145 Notice.
2.Whether the Arbitrator erred in law by failing to properly apply the provisions of section 143 of the 1987 Act to the circumstances of this particular matter in line with the decision of the Court of Appeal in Raniere Nominees Pty Limited t/as Horizon Motor Lodge v Daley & Anor [2006] NSWCA 235 on 24 August 2006.
3.Whether the Arbitrator erred in his application of principles of procedural fairness to the matters the subject of the Application.
4.Whether the Arbitrator’s determination amounted to a process of judicial review of the administrative action of the WorkCover Authority in circumstances where, the Appellant claims, there was no jurisdiction in the Commission to do so.
5.Whether the Arbitrator erred by making a finding that the section 145 Notice was “void or voidable” and that time was yet to run in regard to section 145(3) of the 1987 Act.
THE STATUTORY SCHEME
By Division 6 of Part 4 of the 1987 Act, the Uninsured Liability and Indemnity Scheme was set up, to be administered by the WorkCover Authority.
When a claim is made by an injured worker on an uninsured Respondent, Section 143(1) of the 1987 Act enables the WorkCover Authority (‘the Authority’) to either pay the claim (subsection (1)(a)); make an ex gratia payment (subsection (1)(b)); or refuse to satisfy a claim (subsection (2)). Subsection (3) provides that the Worker is to be notified within 14 days of any decision not to satisfy the claim and to be provided with reasons therefore.
When the Authority receives such a claim, it may require an employer to furnish certain information to it specified by notice under section 141.
Section 143 confers an unfettered right upon the Authority to make a decision whether to accept or reject a claim, and is not required to either notify or consult with an uninsured employer as to its decision.
Section 144 of the 1987 Act provides a mechanism for a Worker who is dissatisfied with the decision of the Authority to apply to the Commission for determination of the claim. In those circumstances, the injured worker is required to join both the employer and the Authority to the action (s.144(2)(a)), and the Authority may also join anyone whom it thinks may be liable to pay compensation (s.144(2)(b)).
In other words, the Authority has an unfettered right to pay the claim if it is satisfied that liability exists. It is only if the Authority refuses to pay a claim that the matter becomes litigated as between all relevant parties, i.e, the injured worker, the uninsured employer and the Authority.
Section 145 of the 1987 Act makes provision for an employer or insurer to reimburse the Authority, at its discretion, for an amount limited to the payment the Authority has made pursuant to its decision.
The terms of that section are particularly relevant to the claim at hand, and provide as follows:
“145. (1) The Authority may serve on a person who, in the opinion of the Authority, was:
(a) in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,a notice requiring that person, within a period specified in the notice, to reimburse the WorkCover Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) The Authority may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the WorkCover Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that:
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Authority to attempt to recover the amount.
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4) The Commission may hear any such application and may:(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.
(5) In any proceedings under subsection (4), a certificate executed by the Authority and certifying that:
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate; and
(b) a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages, is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate”.
THE ARBITRATOR’S FINDINGS AND REASONS
In the present case, it was conceded by Mr Rohde (paragraph 10 of the ‘Statement of Reasons’) that no Application was lodged with the Commission within the period specified in the section 145 Notice. The notice was posted by the Appellant to Mr Rohde on 3 August 2005. Mr Rohde received the notice of 8 August 2005. The parties agreed that the 28 day period specified in the section 145 Notice expired on 5 September 2005, and the Application was registered in the Commission on 16 September 2005.
Further at paragraph 10 of the ‘Statement of Reasons’ the Arbitrator noted the Appellant’s submission that the Commission had no jurisdiction either to hear the application under section 145(3) of the 1987 Act nor to extend the time. He went on to make reference to the decision of Deputy President Fleming in Raniere Nominees Pty Limited t/as Horizon Motor Lodge v WorkCover Authority of NSW [2005] NSWWCCPD 28. That is a decision of considerable relevance to the present claim, and it is useful at this point to set out the various decisions between those parties for future ease of reference.
On 3 December 2003 Hughes J of the former Compensation Court ordered Raniere Nominees Pty Limited to reimburse the WorkCover Authority such amounts as it had paid to the Worker, Ms Daley. Raniere Nominees Pty Limited successfully appealed this decision, and on 22 April 2005 the Court of Appeal ordered that the orders made by Judge Hughes on 3 December 2003 be set aside, and that the matter be remitted to the Commission for further determination.
Meanwhile, on 28 January 2004 in proceedings for recovery before the Commission between Raniere Nominees Pty Limited and the WorkCover Authority, the Arbitrator determined that the Commission had no power to hear Raniere Nominees Pty Limited Application because it was out of time. On appeal, on 2 May 2005, Deputy President Fleming confirmed the Arbitrator’s decision. That decision was also the subject of appeal, to the Court of Appeal and on 24 August 2006, that Court determined that Deputy President Fleming was correct in her decision, and the appeal was dismissed.
I propose to refer to the Court of Appeal’s decision on 24 August 2006 as Raniere [2006] and to the decision of Deputy President Fleming as Raniere [2005] for ease of reference unless otherwise stated.
At paragraph 11 of the ‘Statement of Reasons’ the Arbitrator considered Mr Rohde’s submission to the effect that the Commission had jurisdiction because of the provisions of sections 105, 350 and 354 of the 1998 Act.
At paragraph 13, the Arbitrator stated as follows:
“Whilst it may seem unfair to the Applicant who is perhaps only two days late in making application under section 145(3), I agree with the Respondent’s Counsel that I am bound by the decision in Raniere (2005) [NSWWCCPD 28] or if not bound, that the decision of Fleming DP should be followed for reasons of judicial comity. This extends to any issue of whether or not the notice period was reasonable. I also agree with the Respondent’s Counsel that, apart from Raniere, the decision in Richardson v SAS Trustee Corporation (1998) 18 NSWCCR 423 would prevent an extension of time in the absence of legislative power.”
At paragraphs 14 to 17, of the ‘Statement of Reasons’ the Arbitrator considered the issue of the validity of the section 145 Notice, noting that [paragraph 14] “It was the prime submission of the Applicant’s Counsel that the S145 Notice was not properly issued and hence time had not commenced under section 145(3).” The Arbitrator then noted that Mr Rohde:
“… has raised before this Commission the issue of the validity of the S145(1) Notice in the context of procedural fairness … [and] until the Commission reaches the decision on this threshold issue and whether the time for application under section 145(3) had commenced, it is unable to dispose of the Applicant’s application before it. If the s.145 Notice is found to be valid, then Raniere will apply to dispose of the matter. If it is found procedural fairness needed to be followed and was not, then I will need to determine whether the s.145 Notice is void or voidable. In the former case the proceedings will be a nullity because there is no valid notice to ground jurisdiction. If found to be voidable, then it may be found that the notice period has yet to commence for the purposes of section 145(3)”.
At paragraphs 18 – 32, the Arbitrator embarked on a detailed consideration of the principles of natural justice and procedural fairness by reference to a number of authorities and the circumstances of this particular case. At paragraph 31, the Arbitrator concluded:
“The totality of the information provided both before and as part of the s.145 Notice is hardly sufficient for the Applicant to assess the ‘broad questions’ of liability apart from the monetary amount of the debt … in order to determine whether to apply under section 145(3) for a determination of liability. Some of this necessary information was not provided to the Applicant until the Reply was served:
·Investigation Report including Investigation Log and attached statements of the worker and the Applicant’s Property Manager;
· ULIS claim form, journey accident claim form and statutory declarations
(2) signed by the worker.
Such information was essential for determination whether there were grounds to question the travel claim under section 10. It was needed by the Applicant prior to the expiry of the time for application under Section 145(3).”
As a result of this finding, the Arbitrator concluded at paragraph 33 that the information referred to in paragraph 31 of the his ‘Statement of Reasons’ was:
“… Essential if the Applicant were ‘to know the case sought to be made against him’ (per Mason J in Kioa Ibid) [Kioa v West (1985) 159 CLR 550] to enable him to ‘within the period specified in the … notice, apply to the Commission for a determination as to the persons liability in respect of the payment concerned’ under Section 145(3). Following such provision, the Applicant should have been given the opportunity to make submissions to the Respondent as to liability and, if applicable, the matters in sub-section (2). This did not happen. The decision was simply taken by the Respondent to issue the s.145 Notice despite the letter dated 16/1/04 saying the Respondent would be in ‘contact … in order to arrange reimbursement”’.
At paragraph 34, the Arbitrator concluded that “I am therefore satisfied that the Applicant has not been accorded procedural fairness”, as a consequence of which the Arbitrator concluded that the section 145 Notice was voidable.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
In Raniere [2006] Giles JA, with whom Spiegelman CJ and Santow JA agreed, considered various submissions made by the Appellant as to the proper construction of the words “within the period specified in the Notice” contained in section 145(3). One argument put forward by the Appellant was that those words were directory, not mandatory, such that the Commission could entertain an application made outside the period specified in the Notice. Giles JA noted (paragraph 16):
“The preferable approach, now well established, is to ask whether it is the purpose of the legislation that an act done in breach of the provisions should be invalid … In the present case, whether the Commission could entertain an application made outside the period specified in the Notice, is to be determined by construction of s.145(3) in its context and having regard to the purpose of the legislation.”
Giles JA went on at paragraph 19 as follows:
“Section 145(3) is clear in its terms, entitling the person on whom the Notice had been served to apply within the period specified in the Notice and as a corollary denying any such entitlement outside the period specified in the Notice … The Commission’s power to determine the persons liability in respect of the payments is enlivened only by the making of an application within the period specified in the Notice. “
In other words, as the Appellant submits, “the jurisdiction of the Commission in regard to the s.145 Notice is prescribed and confined by the contents of s.145 and specifically in regard to time is precise …” The Appellant also points out that section 145 is silent as to any power to extend the time as specified by the WorkCover Authority.
As a result, the Appellant submits:
“In circumstances where there was no contest as to the 28 day period of the Notice being unreasonable nor any issue that the s.145 Notice did not fulfil the express requirements of the statute on its face, it is submitted there was no jurisdiction to the Arbitrator to go behind the Notice given the clear words and intent of the legislative regime.”
The Appellant submits that in those circumstances, the only task of the Arbitrator was to dismiss the application recognising the limit of, and the proper exercise of the Commission’s jurisdiction.
Santow JA, in agreeing with Giles JA, considered a number of conclusions reached by Deputy President Fleming in her decision, (Raniere [2005]) citing with approval her comments as to the apparent discretionary matters in section 145(4) which provides that the “Commission may hear any such application and may” make a range of orders. Deputy President Fleming concluded that this apparently conferred a discretion on the Commission as to whether to hear an application, and was not satisfied that this permitted the Commission to consider an application made outside of the time specified in the WorkCover Notice under section 145 of the Act. Santow JA went on to note (paragraph 59): “
“Where a notice was issued in terms that required compliance within an unreasonable time period, the recipient may argue that it was denied procedural fairness. However, the Deputy President concluded that that was an issue that went to the validity of the notice, not to the jurisdiction of the Commission to hear the application and was a matter curable by judicial review.”
Santow JA quoted from Gummow J in David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 at 279:
“The position is quite simply that unless the Court has a power to extent the time within which the Application to set aside the statutory demand can be made, the Plaintiff has no right to make it”.
Santow JA concluded at paragraph 74:
“That the statutory regime may thereby operate with some harshness must be judged against the evident purpose of s.145 and its reimbursement regime. WorkCover, in dealing with uninsured employers, is given an expeditious default power to obtain reimbursement which, if subject to delay on the part of the uninsured employer, would be frustrated. There is no warrant for that in the legislation.”
Thus the Arbitrator’s conclusion at paragraph 13 of his ‘Statement of Reasons’ that “… I am bound by the decision in Raniere or if not bound, that the decision of Fleming DP should be followed for reasons of judicial comity” was in my view correct.
The real issue on appeal is whether the Arbitrator’s embarkation on a discussion of the principles of the rules of procedural fairness was correct in law, or outside his jurisdictional requirements.
Mr Rohde, in his submissions before the Arbitrator, had made reference to a number of relevant sections of the 1998 Act dealing with the Commission’s jurisdiction. He noted section 105(1) of the that Act which provides that: “Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Reference is also made to section 350(2) of the 1998 Act which provides that:
“A decision of or proceeding before the Commission is not:
(a)to be vitiated because of any informality or want of form, …”
Finally, Mr Rohde relied upon the provisions of section 354 of the 1998 Act dealing with procedure before the Commission with particular reference to sub-sections 1 to 3 which provide as follows:
“354(1) Proceedings in any matter before the Commission are to be
conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In considering the principles of natural justice and procedural fairness, the Arbitrator at paragraph 18 stated as follows:
“The law relating to natural justice (or procedural fairness as is generally used in relation to administrative decisions) is probably best summarised by the majority decision of Mason CJ, Dean J and McHugh J in Annets v McCann [1990] 170 CLR 596 at 598:
‘It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a persons rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment … The law in relation to administrative decisions has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interest and legitimate expectations, subject only to the clear manifestations of a contrary statutory intention …’”
The Arbitrator noted at paragraph 27:
“Unfortunately, the Legislature has not prescribed the process to be followed for the issue of a notice under s.145(1) as a precursor to any proceedings brought in the Commission under s.145(3). However, it is not an unreasonable assumption that Parliament, in adopting a legislative scheme for other proceedings commenced in the Commission, being a scheme designed by WorkCover, may have expected that WorkCover would follow such process without the need for legislative direction.”
The Arbitrator stated at paragraph 28:
“In my opinion, section 145(3) contains the inference that an Applicant is entitled ‘to know the case sought to be made against him’ (per Mason J in Kioa Ibid) before he initiates such proceedings: hence the time limitation.”
At paragraph 29, the Arbitrator considered the information that had been conveyed to Mr Rohde prior to the issue of the section 145(1) Notice. The Arbitrator noted that both the section 141 Notice (requiring information from an employer about a worker) and the section 161 Notice (requiring information concerning any policy of insurance) were forwarded to Mr Rohde on 30 September 2003 at Sailor Jack Station and were apparently forwarded on to Mr Rohde at his postal address in Darwin. Mr Rohde claimed to have not received those notices. The Arbitrator noted:
“Completion of such notices would have enabled the Applicant [Mr Rohde] to provide factual evidence on both his belief that he was insured and the worker was not entitled to a travel claim. However, I do not consider much turns on the failure to receive such notices as it appears the Applicant had knowledge of the facts of the accident provided either separately or subsequently. He could have made representations on that aspect at any time, in the same manner as he did in his letters of 28 August 2005.”
The Arbitrator also noted that Mr Rohde had been contacted by two private investigators who furnished a report to WorkCover in November 2003. It was also noted that the Appellant wrote to Mr Rohde on 16 January 2004 to his address in Darwin advising that “based on the information/documentation on hand, WorkCover has accepted liability for weekly expenses and/or related medical expenses”. The letter also stated that WorkCover “… will contact you in order to arrange reimbursement of the costs incurred in relation to this claim under the Un-Insured Liability and Indemnity Scheme.” As to this, the Arbitrator stated “This statement infers that further informal contact by the Authority would occur on this issue before formal action was taken. This does not appear to have happened.”
The Arbitrator noted that the next communication, some 19 months later, was apparently the section 145 Notice dated 3 August 2005. The Arbitrator concluded, at paragraph 31, that “the totality of the information provided … is hardly sufficient for the Applicant to assess the ‘broad questions’ of liability …” as a consequence of which the Arbitrator concluded that Mr Rohde had not been afforded procedural fairness because “… the legislative intent of section 145(3) is that an uninsured employer will have been accorded procedural fairness by the Authority prior to the formal decision to issue a section 145(1) Notice …”
Did the Arbitrator have jurisdiction to consider these matters in assessing the validity of the section 145 Notice? In light of the decisions to which I have referred, in my view he did not. The Arbitrator has purported to enlarge the jurisdiction of the Commission to one which is not conferred under the statute generally nor under the specific provisions of section 145. As the Appellant rightly points out in its submissions:
“The opportunity to be heard to dispute liability is afforded by s.145(3) or (5) which may be seen as Parliament enacting specific provisions to afford an alleged uninsured employer subject to the Uninsured Liability and Indemnity Scheme procedural fairness.”
The Arbitrator’s findings as to the appropriateness of ‘information’ provided to Mr Rohde by the Appellant in effect amounts to an administrative review of the decision making processes of the Appellant which exceeds the jurisdictional limits conferred by the Commission.
This issue was considered by Deputy President Handley in Mackley v WorkCover Authority of New South Wales [2005] NSWWCCPD 32, (‘Mackley’) whose decision was confirmed by the Court of Appeal on 27 July 2006.
At paragraph 25, Deputy President Handley stated:
“… The legislation and cases cited make it clear that the Commission’s power pursuant to sub-sections 145(3) and (4) does not extend to reviewing the exercise of WorkCover’s discretion pursuant to section 145(2) or to exercising the power of waiver thereunder … the Commission’s power is, nevertheless, a broad one whereby it may determine the liability of a person on whom a notice for reimbursement has been served pursuant to section 145(1), in respect of an amount of compensation paid by WorkCover”.
In that case, Deputy President Handley noted that: “The Arbitrator may have viewed ‘a determination as to the person’s liability’ (section 145(3)) narrowly as meaning the quantum of liability and not including broader questions as to whether a person should be liable to reimburse WorkCover.”
Deputy President Handley went on to note, with reference to the Court of Appeal decision in GRE Workers’ Insurance (NSW) Limited v Nohil Pty Limited (1996) 13 NSWCCR 74 (‘Nohil’) that the “section 145(4) ‘plenary power’ permits the Commission to make orders adjusting the rights of parties as to liability as it thinks fit.”
In other words, the Commission has broad powers to adjust the rights of the parties once a notice, in accordance with the provisions of section 145(1) of the Act, has been served. The powers of the Commission do not extend to a review of the practice and procedure of the WorkCover Authority.
The Arbitrator made reference to the decisions of Nohil and Mackley in paragraph 22 of his ‘Statement of Reasons’ in support of the proposition that section 145(4) gave wide powers to the Commission and that those two decisions conferred jurisdiction on the Commission to effectively carry out a review of the procedures of the WorkCover Authority however, as the Appellant submits, those decisions “… apply to matters of which the Commission is seized with jurisdiction and specifically as to procedure before the Commission”.
In any event, notwithstanding the Arbitrator’s views on the issue of ‘procedural fairness’ and the adequacy of material supplied to Mr Rohde, I am of the view that Mr Rohde was not in fact denied procedural fairness. He certainly received some correspondence from the Authority and had telephone discussions with the private investigator. Of particular relevance is the letter to Mr Rohde dated 16 January 2004 putting him on notice of matters raised previously and of the proposed reimbursement sought by the Appellant. As the Appellant points out, “relevantly, Mr Rohde was informed by WorkCover letter dated 30 September 2003 of the ULIS claim by the Worker and afforded the opportunity to be heard in regard to the matter.” In any event, as the Arbitrator noted at paragraph 29 of the ‘Statement of Reasons’, Mr Rohde had knowledge of the facts of the accident and “… he could have made representations on that aspect at any time, in the same manner as he did in his letters dated 28 August 2005.”
Mr Rohde’s submission that “there are no plain words in the 1987 or 1998 Acts which would exclude the need of the Appellant to comply with the rules of natural justice” and that “… there is a provision in section 145(3) which may lead to the section 145 Notice being contested does not relieve the Appellant of its obligation to afford the Respondent the principles of natural justice” is wrong in law in light of the authorities to which I have referred.
CONCLUSION
Mr Rohde’s application to the Commission pursuant to section 145 was ‘out of time’. As Giles JA said in Raneire [2006], “the Commission’s power to determine the person’s liability in respect of the payments is enlivened only by the making of an application within the period specified in the Notice.” The Commission had no jurisdiction to determine the Application.
The broad power of the Commission to make a determination or order “as the Commission thinks fit” does not apply to the proper statutory construction of the terms of section 145(1) of the 1987 Act. Consideration of issues involving principles of ‘procedural fairness’ or ‘natural justice’ in the context of the adequacy of information provided to Mr Rohde has no relevance to that statutory construction.
DECISION
The decision of the Arbitrator dated 22 February 2006 is revoked and the following decision is made in its place:
(a)The Application to Resolve a Dispute filed by Colin Rohde on 16 September 2005 is dismissed, since the Commission had no jurisdiction to determine that Application.
COSTS
Section 341 of the 1998 Act provides as follows:
“(1) Costs to which this division applies are in the discretion of the Commission.
(2)The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3)The Commission may not order the payment of costs by a Claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.”
In the present case, I am satisfied that the Application made by Mr Rohde did not fall within the class of claims identified in section 341(3) referred to above. In the circumstances, I make no order as to costs of the proceedings before the Arbitrator.
The Appellant has succeeded on appeal principally because I have determined that the Arbitrator erred in his construction of the provisions of section 145 of the 1987 Act. That is a matter of law. In the circumstances, and in the exercise at my discretion, I consider that the appropriate order ought be no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
31 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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