Workers Compensation Nominal Insurer v Kula Systems Pty Ltd
[2019] NSWWCCPD 67
•20 December 2019
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Workers Compensation Nominal Insurer v Kula Systems Pty Ltd [2019] NSWWCCPD 67
APPELLANT:
Workers Compensation Nominal Insurer
RESPONDENT:
Kula Systems Pty Ltd
INSURER:
Uninsured
FILE NUMBER:
A2-6271/16
ARBITRATOR:
Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:
5 April 2019
DATE OF APPEAL DECISION:
20 December 2019
SUBJECT MATTER OF DECISION:
Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; application of Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42, at [44]–[46], Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71
PRESIDENTIAL MEMBER:
Deputy President Elizabeth Wood
HEARING:
On the papers
REPRESENTATION:
Appellant:
Mr P Morris SC, Counsel
Sparke Helmore Lawyers
Respondent:
Mr J Hallion, Counsel
Novakovic Lawyers
ORDERS MADE ON APPEAL:
The appeal cannot be brought as the issue in dispute is not “in connection with a claim for compensation” as required by s 352 of the Workplace Injury Management and Workers Compensation Act 1998.
There is no right of appeal.
The order for costs is declined.
INTRODUCTION AND BACKGROUND
1. Mr Aleksandar Ognjenovic (the worker) made a claim for compensation in respect of an injury received on 17 January 2011 in his employment with Kula Systems Pty Ltd (the employer). The worker alleged he suffered an electric shock, causing injury to his neck, low back and right shoulder. The employer did not have a workers compensation insurance policy in place at the time of the injury. The employer was contracted to a head contractor, Buildco Projects Pty Ltd, who was an insured principal within the meaning of s 20 of the Workers Compensation Act 1987 (the 1987 Act) (the s 20 principal).
2. The worker claimed lump sum entitlements pursuant to s 66 of the 1987 Act against the s 20 principal. A Medical Assessment Certificate (MAC) was issued, certifying the worker suffered from 18% whole person impairment (WPI). The Commission issued a Certificate of Determination (COD) dated 27 March 2015, nominating the worker as the applicant and the s 20 principal as the respondent and ordered the s 20 principal to pay the lump sum entitlements.
3. In 2016, the worker filed a pre-filing statement pursuant to s 315(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), claiming work injury damages in respect of the injury. The first defendant was nominated as S.L.J.C. Gyprock (a business operated by the employer) and the second respondent was the Workers Compensation Nominal Insurer (the Nominal Insurer).
4. The parties resolved the matter by entering into an agreement to pay the worker $225,000.00 in damages. A deed of release (the deed), was signed by all three parties. The deed recorded the name of the employer as “Kula Systems Pty Ltd t/as S.L.J.C. Gyprock.”
5. The Nominal Insurer subsequently issued a Notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement from the employer of the payment made by the Nominal Insurer to the worker pursuant to the deed. In response, the employer filed a Miscellaneous Application (application) in the Commission, seeking orders that:
(a) the employer is not liable to pay the compensation amount;
(b) the employer is not ordered to reimburse the appellant in the amount sought in the notice or at all;
(c) the Commission waive any liability the employer had to reimburse the Nominal Insurer, or
(d) the Commission refuse to make an any order to reimburse the Nominal Insurer.
6. The employer also disputed that the worker was injured as alleged and sought an order for costs against the Nominal Insurer. The worker was not included as a party to the proceedings as the issues in dispute were limited to issues between the employer and the Nominal Insurer.
7. The employer subsequently also asserted that it was an “exempt employer” pursuant to s 155AA of the 1987 Act, and as such was not required to obtain a workers compensation policy of insurance.
8. Following a protracted history of numerous telephone conferences, the appointed Arbitrator listed the matter for an arbitration to hear and determine whether the employer was an “exempt employer”. On 10 November 2017, the Arbitrator, Mr T Wardell, issued a Certificate of Determination in favour of the Nominal Insurer. He found that the employer was not an “exempt employer” within the meaning of s 155AA of the 1987 Act as at 17 January 2011, when the worker suffered the injury.
9. The employer appealed that decision. The appeal was allocated to the then President of the Commission, Keating J, who confirmed the Arbitrator’s decision and remitted the matter to the Arbitrator for determination of the remaining issues.
10. The matter was ultimately allocated to a different Arbitrator and listed for arbitration.
11. In a COD dated 5 April 2019, the Arbitrator made the following determinations:
1. “The actions of the [Nominal Insurer] taken pursuant to its power contained in s 142A(1) were without jurisdiction.
2. The demand made by the [Nominal Insurer] pursuant to s 145(1) is null and void as being ultra vires its power.
3. The certificate issued by the [Nominal Insurer] pursuant to s 145(5) is null and void as being ultra vires its power.
4. Accordingly the [employer] is not liable to reimburse the [Nominal Insurer] for the monies it has paid.”
12. The Nominal Insurer appeals the decision.
13. In a separate Application to Appeal Against Decision of Arbitrator, the employer appealed the Arbitrator’s decision not to award costs in its favour. That appeal (matter number A3-6271/16) is dealt with separately.
ON THE PAPERS
14. Section 354(6) of the 1998 Act provides:
“(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.”
15. Both parties have indicated that the appeal can be determined on the papers and that it is not necessary to conduct an oral hearing.
16. I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the 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
17. There is no dispute between the parties that the threshold requirement as to time to file the appeal pursuant to ss 352(4) of the 1998 Act has been met. Following lodgment of the appeal, a delegate of the Registrar issued a timetable within which the parties were to file and serve their submissions. The time by which the employer was to lodge its Notice of Opposition to Appeal Against Decision of Arbitrator (opposition) was 18 June 2019.The employer filed its opposition on 24 June 2019. The employer seeks an extension of the time in which it may lodge the opposition.
The threshold requirement pursuant to s 352(3) of the 1998 Act
18. Both parties indicated that the monetary threshold pursuant to s 352(3) was satisfied.
19. Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the compensation appealed against.”
20. The amount the Nominal Insurer is seeking to recover is $225,000 which it paid pursuant to the deed and in respect of damages. Section 352 refers to the “amount of compensation at issue on the appeal.”
21. Section 149 of the 1987 Act relevantly defines “damages” as:
“149 Definitions
(1) In this Part—
damages includes—
(a) any form of monetary compensation, and
(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),
but does not include—
(c) compensation under this Act, or …”.
22. In order to satisfy the threshold, the Nominal Insurer is therefore required to establish that the amount it paid in respect of “damages” falls within the parameters of an “amount of compensation.” Compensation is defined in s 4 of the 1998 Act as “compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts.” Neither party addressed this issue in their substantive submissions. I therefore issued a direction for each party to provide submissions on the threshold and directed their attention to the definition of “compensation” in s 4 of the 1998 Act and the definition of “damages” in s 149 of the 1987 Act. I also directed the parties’ attention to the Presidential appeal decision in Junsay v The Uncle Toby’s Company Ltd, in particular at [32]–[52].
The Nominal Insurer’s submissions
23. The Nominal Insurer filed its further submissions on 2 December 2019.
24. The Nominal Insurer seeks to distinguish the current matter from that of Junsay. It submits that in the decision in Junsay, the Commission had no jurisdiction to hear the primary application, whereas in this matter, the jurisdiction is vested in s 145 of the 1987 Act. Further, s 352(1) of the 1998 Act provides for a right to appeal a decision of an Arbitrator in circumstances where there is a dispute “in connection with a claim for compensation”. The Nominal Insurer submits that the words “in connection with” are words of wide import and should derive their meaning from a consideration of the context and the purpose of the statute in which they appear. The Nominal Insurer contends that the words do not require a causal relationship between the matters that are said to be “in connection,” and that on a proper reading of s 352(3), the monetary threshold is in relation to those matters that are the subject of the appeal which are directly concerned with claims for compensation. The Nominal Insurer says that a different interpretation would operate to exclude those matters which were within the Commission’s jurisdiction from appellate review.
25. The Nominal Insurer says that the claim before the Arbitrator was brought by the respondent pursuant to s 145(3) of the 1987 Act and was in response to a notice issued by the Nominal Insurer pursuant to s 145(1). The Nominal Insurer says that Division 6 of Part 4 of the 1987 Act concerns uninsured liabilities and both ss 140 and 145 fall within that Division. Section 140(1) of the 1987 Act allows for a claim to be made against the appellant for work injury damages in circumstances where the employer is uninsured. The Nominal Insurer says that s 142A of the 1987 Act provides that both the 1987 and 1998 Acts apply to the appellant as if it were an insurer and requires a claim for lump sum compensation to be made and determined before a claim for work injury damages can be brought. The Nominal Insurer points out that ss 145(1)(a), 142B(1) and 142B(2) of the 1987 Act empowers the Commission to make orders for reimbursement of payments made in respect of both workers compensation and work injury damages.
26. The Nominal Insurer submits that s 145(1) was relevantly amended and ss 142A and 142B were introduced into the legislation by the Workers Compensation Amendment (Insurance Reform) Act 2003 (the Reform Act), which was assented to on 27 November 2003. The Nominal Insurer says that s 352(3) of the 1998 Act predated those amendments and the acquisition by the Commission of the jurisdiction conferred by those sections.
27. The Nominal Insurer referred to the worker’s claim for compensation, including the claim for lump sum benefit pursuant to s 66 that flowed from the MAC assessment of 18% WPI. The Nominal Insurer says that the dispute before the Commission concerned the recovery by the Nominal Insurer of monies paid in settlement of a work injury damages claim prior to the commencement of proceedings by the worker to recover those damages.
28. The Nominal Insurer contends that there can be no issue that the appellant was a party to a dispute “in connection with a claim for compensation” because the compensation claim was a pre-condition to a work injury damages claim. The appellant cites a number of authorities that establish that the words “in connection with” are words of wide import and do not necessarily require a causal relationship between the matters said to be in connection.
29. The Nominal Insurer asserts that there is a danger in attempting to interpret a provision in isolation and quotes the passage from Campbell JA’s explanation in Thomas of the process of statutory construction as follows:
“… understanding of the parts is dependent upon understanding the larger whole, but the larger whole can only be understood on the basis of the parts, so that arriving at an understanding of any particular part involves movement to and fro between the parts and the whole. In the context of statutory interpretation, the ‘whole’that can influence understanding of one of the parts includes not only the entire text of the particular statute in question, but also matter such as the historical circumstances from which it sprang, and the purpose it is intended to achieve.”
30. Relying on that passage, the Nominal Insurer submits that in a consideration of the interpretation of a particular provision, the context of the Act as a whole must be taken into account. The Nominal Insurer observes that a failure to take into account the context of the Act as a whole can lead to error and contends that a proper approach to statutory construction no longer requires the initial identification of some ambiguity.
31. The Nominal Insurer refers to s 33 of the Interpretation Act 1987 (the Interpretation Act) which provides:
“33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
32. The Nominal Insurer submits that s 352(3) of the 1998 Act requires a threshold to be met of the “amount … at issue” in an appeal, and the word “compensation” was used prior to the Commission acquiring jurisdiction to resolve disputes between the Nominal Insurer and the uninsured employer in relation to a payment of work injury damages. The Nominal Insurer contends that the clear intention of the subsection is to exclude appeals where the amount at issue is insubstantial. The Nominal Insurer submits that to interpret the section without regard to the subject matter of the appeal is to exclude from appellate review matters of substance, which were properly within the jurisdiction of the Commission. The Nominal Insurer submits that such a construction would clearly not promote the purpose or object of the 1987 and 1998 Acts, and the purpose and object of subs 352(3) itself. Such an anomalous result, the Nominal Insurer says, can be avoided by analysing the subsection in accordance with the rules of statutory interpretation.
33. The Nominal Insurer contends that a preferred and available interpretation is that the limiting provision relates only to appeals which involve a claim for compensation as defined by the 1998 Act and that for such claims, the monetary threshold must be satisfied. The Nominal Insurer asserts that in circumstances where the issue does not involve an amount of compensation, but is otherwise within the jurisdiction of the Commission, then the subsection should have no application.
34. The Nominal Insurer submits that an equally available construction would be to read “the amount of compensation in issue” to mean the “amount in issue,” which is consistent with the intended purpose of the provision. Also, such a construction would not lead to the anomaly of the loss of ability to appeal matters properly before the Commission.
35. The Nominal Insurer seeks to distinguish Junsay on the basis that in that matter, the issue was whether the Commission had jurisdiction in matters that concerned proceedings for modified common law damages. The Nominal Insurer submits that the present matter does not involve proceedings for modified common law damages but rather concerns the liability of the respondent to reimburse the Nominal Insurer for monies paid, which is a dispute unarguably within the Commission’s jurisdiction.
36. The Nominal Insurer concedes that the Commission is a creature of statute, but submits that a proper approach to statutory interpretation mandates an approach to s 352(3) which does not exclude this appeal.
The employer’s submissions in reply
37. The employer relies on lengthy submissions that are largely not in response to my direction. I do not propose to summarise the irrelevant submissions, which repeat at length the employer’s arguments made about jurisdiction of the Commission before the Arbitrator and refer to the Commission’s jurisdiction pursuant to s 105 of the 1998 Act. The employer also makes submissions as to why it ought to be allowed an award in relation to its costs. The employer appealed the Arbitrator’s decision not to award costs in its favour. That appeal (matter number A3-6271/16) is dealt with separately. The employer did seek an order that the Nominal Insurer pay its costs of this appeal but made no submissions on that point in its opposition to this appeal.
38. It is not appropriate for the employer to make fresh submissions after the expiration of the timetable and I am not required to take them into account. I will deal with the application for costs below.
39. The employer’s submissions in response to my direction assert that the first duty of the Commission is to exercise its implied jurisdiction to determine whether it had jurisdiction to determine the dispute before it. It says that that determination did not involve the Commission’s statutory jurisdiction and could not therefore be amenable to an appeal (erroneously referring to s 354 of the 1998 Act).
40. The employer submits that s 352 of the 1998 Act imposes a jurisdictional pre-condition that must be satisfied before an appeal can be brought. That is, it must be in connection with a claim for compensation.
41. The employer contends that it is not precluded from challenging the jurisdiction of the Presidential member to deal with an appeal “by limiting itself to determining whether the precondition for the exercise of jurisdiction under s 352 [of the] 1998 [Act] has been satisfied.”
42. The employer contends that it is clear that the appeal does not arise from the exercise of the Commission’s exclusive statutory jurisdiction to determine a dispute in connection with a claim for compensation.
43. The employer asserts that in circumstances where there is no jurisdiction under s 352 to deal with an appeal, the Presidential member is limited to a consideration of whether there is jurisdiction to entertain the issue which is the subject of the appeal. The employer refers to s 352(1) and subs 352(3)(b) and contends that, because the Arbitrator’s determination did not involve a matter arising under the 1998 Act or the 1987 Act in accordance with the statutory jurisdiction conferred by s 105 of the 1998 Act, the preconditions contained in that section and that subsection have not been met.
44. The employer submits that the issues in Junsay do not arise in this matter because in Junsay, there was no requirement to consider whether there has been an ultra vires exercise of power.
45. The employer maintains that there is no amount of compensation in issue and that “the preconditions or jurisdictional facts to found a competent appeal are not satisfied, and the appeal must be dismissed.”
Discussion
46. Section 352(1) of the 1998 Act provides that a party to a dispute “in connection with a claim for compensation” may appeal a decision of an arbitrator to a Presidential member. Section 352(3) imposes a mandatory threshold which must be satisfied before an appeal can be brought against a decision of an arbitrator. The section specifically requires that the “amount of compensation” in dispute is at least $5,000.00 (the monetary threshold) and at least 20% of the award (the percentage threshold). The amount in issue in these proceedings well exceeds the monetary and percentage thresholds. However, for the purposes of determining whether this appeal can be brought, it is necessary to consider whether the dispute is “in connection with” a claim for compensation, and whether the amount in issue can be categorised as “compensation.”
47. Section 4 of the 1998 Act defines “compensation” as “compensation under the 1987 and 1998 Acts, and includes any monetary benefit under those Acts.”
48. In my view, the payment the Nominal Insurer was seeking to recover cannot be considered to be a “monetary benefit.” The only monetary benefits specified in the 1987 Act and 1998 Act are those pertaining to benefits to workers or their dependants as set out in Part 3 of the 1987 Act. Clearly the amount the Nominal Insurer is seeking to have reimbursed is not in connection with weekly payments, treatment expenses or lump sum compensation, which are the monetary benefits referred to in the 1987 Act.
49. The payment made by the Nominal Insurer, which it now seeks to recover, was a payment made to the worker as work injury damages.
50. The distinction between “damages” and “compensation” has been considered in a number of Presidential decisions. In Programmed Maintenance Services Limited v Barter, Deputy President Byron considered subss (1) and (2) of s 352 of the 1998 Act which were in force at that time. Subsection (2) was in equivalent terms to the current subs (3) of s 352. Byron DP said:
“It is clear that the ‘compensation at issue’ in section 352(2) of the 1998 Act, is not the same as, or a reference to, ‘damages’ at issue. Furthermore, section 352(1) does not apply to a dispute in connection with a claim for damages. It does apply to a dispute in connection with a claim for compensation. Consequently, section 352 does not enable a party to bring an appeal to the Commission, constituted by a Presidential Member, in relation to a claim for ‘damages’, nor does it empower the Commission, as so constituted, to deal with and determine such an appeal. As the Appellant Employer is not a party to a dispute in connection with a claim for compensation, I find that this appeal is not made in accordance with section 352(1) of the 1998 Act, and that I have no jurisdiction to proceed to determine the appeal, in accordance with section 352(1), (2) and (5) of the 1998 Act.
As stated at paragraph 35 above, the powers of the Commission, being a creature of statute, are limited to those powers expressly conferred upon it by the statute. Any attempted exercise of power beyond those conferred by the statute, would necessarily be of no legal effect (Commissioner of Police v Donlan, Commissioner of Police v Hanson, CA, 20 June 1995, unreported).
The consequence of my finding that the Commission lacks jurisdiction to determine this appeal, obviously, is that I have no power to proceed to deal with the substantive issues in dispute, in the appeal.”
51. In Junsay, Acting Deputy President Snell (as he then was) considered the Commission’s jurisdiction to hear and determine a matter in relation to a work injury damages threshold. He also considered the question of whether a claim in connection with work injury damages could satisfy s 352(1) in terms of the requirement that the issue on appeal was “in connection with a claim for compensation”. He concluded that:
“It is apparent from the above definitions that the meaning of ‘compensation’ in section 352 does not include work injury damages, or the possible value of a potential claim for work injury damages. The definition of ‘damages’ contained in section 149, which is imported into Chapter 7, specifically excludes ‘compensation under this Act’. The definition of ‘compensation’ in section 4 of the 1998 Act is compensation under the Workers Compensation Acts.”
52. A number of other Presidential authorities followed the same reasoning and arrived at the same conclusion.
53. The Nominal Insurer submits that Junsay can be distinguished because in that case, there was no jurisdiction for the Commission to hear and determine the matter at first instance.
54. In the usual course of events, an employer against whom a work injury damages claim is brought would not resolve the matter at the mediation stage if it chose to dispute liability and would defend the proceedings when they were commenced in a court of competent jurisdiction. In this case, the employer agreed to resolve the dispute at about the time of the mediation, and now seeks to resile from that settlement.
55. The Arbitrator took a curious approach to the matter by not first determining whether the employer’s ability to raise a liability issue was defeated by entering into the deed.
56. Division 6 of Part 4 of the 1987 Act provides for how claims are to be made and procedures are to be followed in respect of “Uninsured Liabilities.” Section 145 of the 1987 Act (which falls within Division 6) specifically empowers the Commission to determine a dispute about liability raised by a person on whom a notice for reimbursement has been issued by the Nominal Insurer. The relevant subsections of s 145 provide:
“145 Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)-(26))
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, 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 Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
...
(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 Nominal Insurer 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 Nominal Insurer, 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 Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
…
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in a determination concerned may be enforced under s 362 of the 1998 Act.”
57. The character of the payment for which the Nominal Insurer seeks reimbursement is not restricted by s 145 to “compensation” and nor is the power of the Commission to make a determination under s 145.
58. Curiously, the jurisdiction of the Commission conferred by s 145 is not expressed to be limited to determining liability for only those payments which were in relation to weekly payments, treatment expenses or lump sum entitlements. I note, however that s 105 of the 1998 Act confers exclusive jurisdiction on the Commission to hear and determine all matters arising under both the 1987 and the 1998 Acts, but, except for the operation of Part 6 of Chapter 7, the Commission does not have jurisdiction in respect of matters arising under Part 5 (common law remedies) of the 1987 Act. In addition, Part 6 of Chapter 7 is headed ‘Special Provisions for Work Injury Damages’. Section 312 provides:
“Proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction, subject to this Part.”
The Commission is not a court of competent jurisdiction.
59. Further, the power to make orders or awards pursuant s 145(4)(b) is limited to being with respect to “the payment of compensation”.
60. What appears on the face of subss (3) and (4)(a) of s 145 to be a broad power to determine liability in respect of any payment made by the Nominal Insurer is difficult to reconcile with the provisions of s 105 and s 312 of the 1998 Act, and indeed the limited powers to make orders and awards contained in s 145(4)(b).
61. However, the jurisdiction of the Commission in terms of hearing a dispute brought by an employer was not the subject of submissions before the Arbitrator, or the subject of the appeal. On the assumption that there was jurisdiction in the present case, that is not a basis upon which Junsay can be distinguished. In Junsay, Snell ADP decided that there was no right to appeal because the issue concerned liability in connection with work injury damages, and work injury damages as defined was not “compensation”, so that s 352 (the right to appeal) was not satisfied. The authority is squarely on point with the threshold issue in the present matter.
62. It is appropriate to interpret the references to “damages” and “compensation” in a manner consistent with the whole of the legislation. As was observed by French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross:
“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’”
63. The Nominal Insurer submits that to interpret the section without regard to the subject matter of the appeal is to exclude from appellate review matters of substance, which were properly within the jurisdiction of the Commission. The Nominal Insurer submits that such a construction would clearly not promote the purpose or object of the 1987 and 1998 Acts, and the purpose and object of subs 352(3) itself. Such an anomalous result, the Nominal Insurer says, can be avoided by analysing the subsection in accordance with the rules of statutory interpretation, commencing with s 33 of the Interpretation Act.
64. Section 33 requires a court or tribunal to have regard to the purpose or object of the Act in which the provision is found, and that a construction is to be preferred if it promotes the purpose or object of the Act. The relevant object of the 1998 Act is to provide a timely and efficient dispute resolution service, and the purpose of the monetary threshold in s 352 is to exclude those claims that are considered to be minor claims.
65. In Favetti Bricklaying Pty Limited v Benedek Justice Bellew provided a useful summary of the rules of statutory construction as follows (citations omitted):
“(i) the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority;
(ii) the task of statutory construction begins and ends with a consideration of the (statutory) text: Federal Commissioner of Taxation v Consolidated Media Holdings Limited;
(iii) the text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited;
(iv) accordingly, the meaning of the provision must be determined by reference to the language of the instrument when viewed as a whole: Project Blue Sky;
(v) a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of the provisions as a whole: Project Blue Sky;
(vi) legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself: Consolidated Media Holdings;
(vii) it is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones;
(viii) it is also preferable to adopt a construction that will avoid an absurd outcome or consequences.”
66. Section 250 of the 1998 Act provides that, for the purposes of Chapter 7 of the 1998 Act (New Claims Procedures) “damages” has the same meaning as in Part 5 (Common Law Remedies) of the 1987 Act and defines “work injury damages” as “damages recoverable from a worker’s employer …”. Part 5 of the 1987 Act relevantly, which is set out at [21] above, provides that “damages” does not include “compensation under this Act.”
67. For the purposes of Part 5 of the 1987 Act and Chapter 7 of the 1998 Act, therefore, “damages” does not include “compensation.” Section 352 falls within Part 9 of Chapter 7 so that the definition of damages, which excludes compensation, applies.
68. Section 140, which is in Division 6 of Part 4 of the 1987 Act, provides that a claim can be brought under the Division “for compensation under this Act or work injury damages.” This suggests that Division 6, which includes s 145, contemplates a distinction between damages and compensation, which is consistent with Part 5 of the 1987 Act and Chapter 7 of the 1998 Act.
69. The terms “compensation” and “damages” are used consistently throughout the legislation to refer to claims that are separate to and distinct from each other. While I have had regard to the object and purpose of the 1987 and 1998 Acts, the meaning of “damages” as it is used in Chapter 7 of the 1998 Act and throughout the legislation is clearly defined and does not include “compensation”. No ambiguity arises as to its interpretation or the meaning of “compensation”. While the result of excluding the right to appeal falls from that construction and is unfair, it is not up to courts or tribunals in construing a statute to consider what is or is not a desirable policy or to impute the favourable construction to the legislature in order to achieve the preferred outcome.
70. To construe “compensation” as it appears in s 352 to have a wider scope of meaning than it has in other sections of the Acts, including its exclusion from the definition of damages that appears in the same chapter (s 250), is inconsistent with the principles enunciated in Favetti by Bellew J above. To construe the term “compensation” in any other manner is to have disregard to the language of the instrument when viewed as a whole. While it is preferable to adopt a construction of the legislation that will avoid a consequence which appears irrational or unjust the text must not be read in isolation from the enactment of which it forms a part.
71. It follows that the amount the Nominal Insurer is seeking to be reimbursed is not “compensation,” and the Nominal Insurer has no right to appeal.
COSTS
72. The employer seeks a costs order against the Nominal Insurer in respect of this appeal. Section 341(2) of the 1998 Act was introduced to the 1998 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments). It provides that the Commission does not have the power to make an order for payment of costs or to determine by whom, to whom or to what extent costs are to be paid.
73. Clause 25 of Pt 19H of Sch 6 to the 1987 Act provides that the 2012 amendments do not apply to or in respect of an injury received by a police officer, paramedic or firefighter.
74. The worker was not either a police officer, a paramedic or firefighter, so that the employer cannot have the benefit of the exemption contained in cl 25 and I decline to make the costs order sought by the employer.
DECISION
75. The appeal cannot be brought as the issue in dispute is not in connection with a claim for compensation as required by s 352 of the Workplace Injury Management and Workers Compensation Act 1998.
76. There is no right of appeal.
77. The order as to costs is declined.
Elizabeth Wood
Deputy President
20 December 2019
0
2
0