Workers Compensation Nominal Insurer v McIntyre
[2009] NSWWCCPD 36
•31 March 2009
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Workers Compensation Nominal Insurer v McIntyre and anor [2009] NSWWCCPD 36 | ||||||
| APPELLANT: | Workers Compensation Nominal Insurer | ||||||
| FIRST RESPONDENT: | Ian John McIntyre | ||||||
| SECOND RESPONDENT: | Valconti Pty Ltd | ||||||
| INSURER: | Uninsured | ||||||
| FILE NUMBER: | A1-004748/08 | ||||||
| DATE OF ARBITRATOR’S DECISION: | 24 September 2008 | ||||||
| DATE OF APPEAL DECISION: | 31 March 2009 | ||||||
| SUBJECT MATTER OF DECISION: | Section 13 Workers Compensation Act 1987 | ||||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | ||||||
| HEARING: | 24 February 2009 and 16 March 2009 | ||||||
| REPRESENTATION: | Appellant: | Mr Saul, instructed by DLA Phillips Fox | |||||
| First Respondent: | Mr Talintyre, instructed by Lee and Lyons | ||||||
| Second Respondent: No appearance | |||||||
| ORDERS MADE ON APPEAL: | 1. | Time to appeal is extended to 5 November 2008. | |||||
| 2. | Paragraph 1 of the Arbitrator’s Decision dated 24 September 2008 is revoked and the following determination is made: 1. The injuries received by the Applicant outside New South Wales on 23 June 1999 are ones to which section 13 (1) of the Workers Compensation Act 1987 applies, and compensation is payable accordingly. | ||||||
| 3. | Paragraph 3 of the Arbitrator’s Decision dated 24 September 2008 is revoked and, in accordance with section 13(2) of the Workers Compensation Act 1987, the following determination is made in its place: 3. Compensation is not payable to the Applicant to the extent to which he has received workers compensation under the laws of Victoria. | ||||||
| 4. | Paragraphs 2,4, 5, 6 and 7 of the Arbitrator’s Decision dated 24 September 2008 are confirmed. | ||||||
| 5. | The Appellant is to pay the Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 5 November 2008 Workers Compensation Nominal Insurer (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 September 2008.
The Respondents to the Appeal are Ian John McIntyre (‘the Worker’) and Valconti Pty Ltd (‘the Respondent Employer’).
The Worker, who is 56 years of age, arrived in Australia from New Zealand in 1978 since which time he has worked as a Fisherman. In late 1998 the Worker was employed by the Respondent Employer as a Deck Hand on its fishing vessel “Osprey IV” (known as “Osprey”). The facts surrounding the formation of the contract of service between the Worker and the Respondent Employer are the subject of dispute. It was not disputed that the Worker, in the course of his employment on 23 June 1999, suffered an injury to his neck and right arm.
During the course of this appeal it was common ground between the parties appearing that the injuries referred to above were sustained whilst the Worker was aboard Osprey in waters beyond the territorial limits of New South Wales.
By reason of incapacity and the need for medical treatment, the Worker made a claim for compensation benefits against his Employer and QBE Mercantile Mutual, the Respondent Employer’s Workers Compensation Insurer, whose policy had been issued in accordance with the Victorian Workers Compensation Scheme. That claim was accepted by the Insurer and the Worker was paid weekly benefits up until August 2001 and medical and treatment expenses up until August 2004. The Worker’s treatment included discectomy and a C6-7 neck fusion with hip graft. The Worker has also undergone right carpal tunnel decompression. The Worker has received the sum of $19,000.00 by way of lump sum compensation pursuant to the Victorian Scheme, such sum being in addition to the benefits earlier noted.
It appears that in late 2005 the Worker, through his Solicitors, made a claim against the Respondent Employer in respect of workers compensation benefits as prescribed by the Workers Compensation Act 1987 (‘the 1987 Act’). It is common ground that the Employer does not hold a policy of insurance in respect of liability under the 1987 Act. The Worker’s Solicitors subsequently gave notice of claim in respect of benefits under the 1987 Act to the Uninsured Liability and Indemnity Scheme, WorkCover NSW. Both the Employer and WorkCover Authority of NSW declined the Worker’s claim.
Given the existence of a dispute in relation to the Worker’s entitlement to benefits as claimed, an Application to Resolve a Dispute (‘ARD’) was filed on his behalf in the Commission on 23 June 2008. That ARD alleged receipt of an injury on 23 June 1999. Such injury was described at Part 4 as being “injury to back, neck, right arm, left arm”. The Respondents to the ARD were, following orders made by the Commission, Valconti Pty Limited (First Respondent) and Workers Compensation Nominal Insurer (Second Respondent).
Orders were sought in the Worker’s ARD in respect of weekly compensation and lump sums pursuant to section 66 and section 67 of the 1987 Act.
The Worker’s claim came before an Arbitrator for conciliation/arbitration on 28 August 2008. At the hearing before the Arbitrator the primary issue argued on behalf of the parties was the question as to whether the Employer and Nominal Insurer were liable to the Worker in respect of compensation as claimed. That issue was argued in the context of section 9AA of the 1987 Act. This matter is addressed more particularly below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 September 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1. That the Commission has jurisdiction in respect of the claim as the Applicant’s employment is connected to New South Wales pursuant to the operation of section 9AA(3)(b) of the Workers Compensation Act 1987.
2. That the Applicant did not suffer injuries to his back and left arm on 23 June 1999 which arose out of or in the course of his employment with the First Respondent.
3. That the Applicant is not disentitled to compensation in New South Wales pursuant to section 9AC of the Workers Compensation Act 1987 to the extent that he has any entitlements for which he has not received compensation elsewhere.
4. That the matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment of the Applicant’s neck and loss of efficient use of the right arm at or above the elbow in respect of the claimed injury on 23 June 1999.
5. That the Commission declares that First Respondent was not insured as required by the Workers Compensation Act 1987 at the time of the Applicant’s injury.
6. That the Second Respondent, the Workers Compensation Nominal Insurer pay any compensation and costs awarded against the First Respondent from the Workers Compensation Insurance Fund (the fund).
7. That the First Respondent reimburse the Workers Compensation Nominal Insurer for
(1)amounts paid out of the fund in respect of compensation and costs awarded against the First Respondent, and
(2)the costs of the Workers Compensation Nominal Insurer.
Certification of Complexity
No order as to costs is made at this time, however, the matter is certified complex pursuant to Schedule 6 of the Workers Compensation Regulation 2003 such as to warrant a 20% increase of costs otherwise payable, in respect of both parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
CONDUCT OF HEARING BEFORE ARBITRATOR
There is available before the Commission a transcript of the proceedings conducted before the Arbitrator on 28 August 2008 (‘transcript’). There was no appearance before the Arbitrator on behalf of the Respondent Employer. It is convenient to note, at this point, that there has been no appearance on behalf of the Respondent Employer on this appeal.
It is recorded in the transcript those matters which were the subject of agreement between the parties as well as those submissions put on their behalf by Counsel then appearing. It is of particular significance on this appeal to note that the claim as presented in argument before the Arbitrator was said to be concerned with the proper construction and application of section 9AA of the 1987 Act. As noted below, the parties have, in the course of this appeal, agreed that the Arbitrator’s determination concerning matters arising under section 9AA were misconceived. It was further agreed between the parties that, having regard to all relevant facts, the apposite provision concerning entitlement or otherwise was the former section 13 of the 1987 Act.
The transcript records the Arbitrator noting that the provisions of section 9AC of the 1987 Act had been raised at the hearing by the then Second Respondent as being relevant to entitlement. The parties, again, have since agreed that attention was erroneously given to that provision in the course of hearing and during the early steps taken on behalf of the parties in the course of this appeal.
The transcript further records the Arbitrator as stating:
“The parties have agreed that in respect of the determination today the claims for medical expenses and weekly payments will not be dealt with but will be dealt with following any referral I might make to an Approved Medical Specialist in terms of lump sum compensation.”
It is to be noted that neither party appearing on this appeal has put any argument forward that the Arbitrator’s determination constitutes a ruling of an interlocutory nature within the meaning of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). As expressed in the course of hearing this appeal, it is my view that that subsection has no relevance to the present proceedings having regard to the Arbitrator’s determination concerning the Respondent Employer’s liability to reimburse the Appellant in respect of “any compensation and costs awarded”. Whilst the only challenge to the Arbitrator’s determination raised on this appeal relates to the determination contained in paragraphs 1 and 3 of the Certificate of Determination as noted above, it is clear that a final determination as to the Appellant’s liability and that of the Respondent Employer’s liability has been made and that such “decision” is one which may, with leave of the Commission, be the subject of an appeal.
Following the registration of the Appellant’s Application concerning this appeal and the registration of the Worker’s Notice of Opposition, the Commission issued a Direction to the parties dated 30 January 2009. That Direction was issued having regard to the apparent error concerning relevant legislation which was made during the course of the hearing before the Arbitrator and as addressed in the Submissions filed on this Appeal on behalf of each of the parties. The Direction fixed a date for hearing of the appeal being 24 February 2009 and the Direction included the following:
“The parties’ representatives are required to attend the hearing and should be prepared to make submissions on the following issues:
Relevant Legislation
1. The correctness, or otherwise, of the Arbitrator’s rulings with respect to the relevance and application of the provisions of sections 9AA and 9AC of the Workers Compensation Act 1987 (‘the 1987 Act’) given that the Respondent worker received injury on 23 June 1999. The attention of the parties is drawn to the date of commencement of those provisions being 1 January 2006 and the transitional provisions of the 1987 Act (in particular Schedule 6.2.11).
2. The relevance, if any, of the provisions of the now repealed section 13 of the 1987 Act to the present facts.
Application of the 1987 Act
3. The relevance or otherwise of the principle of statutory construction as explained in Mynott v Barnard (1939) 62 CLR 68 concerning relevant connection between employment and, in the present context, the State of NSW, necessary to attract liability to pay compensation under the 1987 Act.
Having regard to the state of the evidence concerning the place at which injury was received by the Respondent Worker, the parties are invited to make any application for leave to adduce fresh evidence on this appeal as each may be advised.”
At the hearing conducted on 24 February 2009 it was agreed by the parties that the subject injury was received by the Worker at a place outside New South Wales. It was also agreed by the parties appearing that, having regard to the date of injury, namely 23 June 1999, the question as to liability for compensation is to be determined having regard to the provisions of the former section 13 of the 1987 Act.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether, having regard to the error made concerning application of the relevant provision of the 1987 Act, the Arbitrator’s decision should be revoked and the matter remitted back to the Arbitrator, or another Arbitrator, for determination in accordance with the decision or directions made on this appeal.
(ii)Whether, notwithstanding the error concerning the relevant provision, the decision of the Arbitrator should be either confirmed or, alternatively, revoked and a new decision made in its place.
(iii)Whether, in the event a new decision is to be made in place of that of the Arbitrator, the Appellant and the Respondent Employer are liable for compensation having regard to the proper application of section 13 of the 1987 Act to facts as proven.
The issues numerated above represent, in summary form, argument put on behalf of each of the parties at the hearing of this appeal. It was the Appellant’s primary submission that, having regard to the erroneous application of section 9AA of the 1987 Act, the Arbitrator’s decision should be revoked and the matter remitted for redetermination by an arbitrator.
It was the Worker’s submission at the hearing that, notwithstanding the erroneous application of section 9AA, the decision of the Arbitrator should be confirmed. It was argued, in the alternative, that the proper application of the former section 13 to facts as proven would lead to revocation of the Arbitrator’s decision and a new decision made in its place confirming the Respondents’ liability to pay compensation. The Appellant submitted at the hearing that proper application of section 13 to the facts proven would lead to the conclusion that neither it nor the Respondent employer has liability for compensation.
HEARING
As noted above at [16], the hearing of the appeal commenced on 24 February 2009. On that day submissions were put on behalf of the parties and rulings were made with respect to applications by each party to adduce additional evidence on appeal. Detail of that additional evidence is addressed below. The Appellant sought and was granted an adjournment, on terms. Leave was granted to the parties to issue Summonses and other directions were made concerning a timetable relevant to the presentation of any further evidence upon which either party may seek to rely. The matter was stood over for further hearing on 16 March 2009.
On 13 March 2009 at 2.00pm a teleconference was conducted at the request of the Appellant. During the course of that conference the Appellant sought a further adjournment of the hearing which had been set down for 16 March 2009. That application was opposed and, following argument, was refused.
The hearing of the appeal resumed on 16 March 2009 at which time each party appearing was granted leave to adduce further evidence on the appeal. Detail of that further evidence is addressed below. Submissions were put by Counsel following which determination of the appeal was reserved.
There are available before the Commission transcripts of the appeal proceedings (‘hearing transcripts’) and of those matters recorded during the course of the teleconference above mentioned.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s appeal application was filed with the Registry of the Commission on 5 November 2008. The decision appealed against was made, in terms of section 352(4) of the 1998 Act, on 24 September 2008. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed after expiration of the period fixed by the 1998 Act and the Rules (Part 16.2(1)).
In Written Submissions accompanying the Appellant’s Application an order is sought extending the time for making the appeal. The Worker in his Written Submissions accompanying his Opposition to the Appellant’s Application opposes the granting of such extension.
The thrust of the Worker’s submissions concerning extension of time is that the Appellant has failed to establish that there exist exceptional circumstances concerning non-compliance with time requirements. Such argument has considerable force however it must be remembered, as stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The granting of the discretion to extend time is intended, fundamentally, to ensure that justice is done between the parties. In the present circumstances the misapplication of section 9AA of the 1987 Act has caused a miscarriage and in my view justice requires that there be allowed an extension of time to bring this appeal.
Having regard to all the circumstances, and notwithstanding the Workers’s arguments as to prejudice which would be occasioned by delay, I am satisfied that in the interests of justice the Commission’s discretion granted pursuant to Rule 16 sub-clause (2) should be exercised in favour of the Appellant and I order that time for making the appeal be extended to 5 November 2008.
ADDITIONAL EVIDENCE
On 24 February 2009 both parties were granted leave to adduce evidence in addition to the evidence received before the Arbitrator. The reasons for granting leave pursuant to section 352(6) of the 1998 Act to adduce that evidence were stated during the course of hearing and are recorded in the hearing transcript.
The additional evidence adduced on behalf of the Appellant on that day was a Statutory Declaration sworn by Ms Julie Fourter on 19 February 2009, which was marked with the letter “A”.
The additional evidence adduced on behalf of the Worker on that day was a further Statement by Mr Ian McIntyre which was undated and marked with the letter “B”.
On the second day of hearing, 16 March 2009, each party was, again, granted leave to adduce additional evidence on the appeal. Reasons for granting such leave were stated during the course of the hearing and are recorded in the hearing transcript.
The additional evidence adduced on behalf of the Appellant included a Statutory Declaration sworn by Peter Mark Mayall on 13 March 2009. Leave was also granted to the Appellant to adduce the following further evidence:
(i) Further Statutory Declaration by Julie Karen Fourter sworn 13 March 2009,
(ii) Statutory Declaration by Roger Michael Fourter sworn 13 March 2009, and
(iii) A Statement by Michael Miriklis made 12 March 2009.
The above mentioned Statutory Declarations and Statement are before the Commission under cover of letter from the Appellant’s Solicitors addressed to the Commission dated 13 March 2009 and is marked with the letter “C”.
The Worker on that day was granted leave to adduce further evidence being his own sworn evidence addressing matters raised in the additional evidence adduced on behalf of the Appellant. The Appellant was granted leave to cross-examine the Worker subject to the restrictions as recorded in the hearing transcript.
EVIDENCE AND SUBMISSIONS
The Arbitrator at [11] of her Statement of Reasons (‘Reasons’) summarised the evidence that was before her as follows:
“11. The following documents were in evidence before the Commission and taken into account in making this determination:
·Application to Resolve a Dispute and attached documents
·Reply and attached documents
·Respondent’s Application to Admit Late Documents dated 27 August 2008 and all attachments
·Letters from Lee & Lyons, solicitors, dated 24 June 2008 to Ms P. Fourter and Valconti Pty Ltd, ASIC company extract and registration certificate in respect of the Osprey IV dated 20 October 2005 admitted for the Nominal Insurer by agreement at the arbitration hearing.”
In addition to the evidence above mentioned is that evidence each of the parties were granted leave to adduce on the hearing of the appeal and identified above at [34]–[39].
There is before the Commission a very large volume of documentary material and it is not intended to attempt a summary of the evidence other than that which is relevant to determination of the issues raised on this appeal, and in particular those evidentiary matters relied upon by Counsel in the course of submissions as recorded in the hearing transcript. Having regard to the procedure adopted in conduct of this review, I propose to address submissions put firstly by the Respondent Worker following which attention is to be given to the Appellant’s arguments.
There is before the Commission a Statement by the Respondent Worker made on 16 April 2007. It was stated at paragraph 5 thereof:
“5. Towards the end of 1998 Roger Fourter of Valconti Pty Ltd offered me a job. I had known Roger and his wife for over 20 years. No written contract of employment was prepared. I was employed pursuant to a verbal agreement entered between Roger and myself at Eden Wharf, Eden, New South Wales in late 1998. I recall that we initially agreed that my income would be 8% of the catch and this was later increased to 9%.”
Attached to the Reply filed on behalf of the Appellant in the arbitral proceedings, was a transcript of proceedings conducted before the Tasmanian Industrial Commission being, an application by the Worker concerning a dispute with the Respondent Employer. In submissions on this appeal as to “consistency”, Counsel for the Worker sought to rely upon the content of submissions put on his behalf at the hearing of that dispute in particular where it was stated by his representative (transcript of Tasmanian Industrial Commission page 1):
“… Our case is that Mr McIntyre has been employed by Valconti Pty Ltd as a Deck Hand since late 1998. The evidence will show that the contract was made – it was a verbal contract and it was made between Mr McIntyre and Mr Roger Fourter of Valconti in about early November 1998.”
Reliance was placed upon further portions of the transcript concerning the Tasmanian proceedings and these are recorded in the transcript of hearing. It was argued on behalf of the Worker that what was put on his behalf before the Tasmanian Industrial Commission in 2001 is consistent with his present evidence concerning the making of the contract of employment with the Respondent Employer.
Reliance was placed by the Worker upon the following extract from the transcript before the Tasmanian Industrial Commission being a submission put in those proceedings on behalf of the Respondent Employer by its representative (recorded at page 5 of that transcript):
“… The next part of the defence is, that the employment occurred at Eden, New South Wales, the home port and the business operations of the respondent were and are Eden, that the claim for workers’ compensation was made at Eden. The domicile of the vessel at law and in fact is Eden, that unloadings at Hobart or any other part (sic-port) in Tasmania don’t – I’m not now going to the protest or jurisdictional aspect, but simply don’t entitle Mr McIntyre to remain in Tasmania and say, I will be re-employed in Tasmania. I want to distinguish between the jurisdictional argument and what I’m arguing effectually, that is, that he commenced work there. He was injured, probably in Victorian waters or Commonwealth waters off Victoria.”
Further reliance was placed upon that excerpt from the transcript of the Tasmanian proceedings in support of the Worker’s argument that Eden, NSW was “a place of employment” within the meaning of section 13 of the 1987 Act in particular upon the statement by the Respondent Employer’s representative that:
“… The employment occurred at Eden, New South Wales, the home port and the business operations of the respondent were and are Eden, …”
The Worker further relies upon the content of a company search which was in evidence before the Arbitrator which contains entries stating that the principal place of business of Valconti Pty Ltd from 1992 to a date beyond the date of the subject injury were, at different times, two identified addresses in Eden, NSW. It was argued that a place of employment in terms of section 13 of the 1987 Act is a place “where somebody works”. It was argued that the Respondent Employer had a place of employment in Hobart as well as in Eden.
The Worker placed reliance upon the content of an annexure to the Statutory Declaration of Ms Fourter sworn 13 March 2009 marked “J4”. That document, it was argued, is evidence that between 20 April 1999 and 29 July 1999 the Osprey worked out of Eden, NSW and on each trip during that period returned to dock at Eden. The argument was developed that the activities of the Osprey support an inference that Eden was a place of business of the Respondent Employer as well as a place of employment.
Submissions, as recorded in the transcript, were put on behalf of the Worker concerning the question as to what weight should be given to the evidence of each of the witnesses before the Commission in particular where there were factual conflicts between the Respondent Worker and Ms Fourter.
The Worker through his Counsel made reference to the annexure to his further Statement (undated) which was marked with the letter “B” and admitted into evidence on the first day of hearing of this appeal. That annexure is a copy of correspondence dated 6 December 2000 from the Respondent Employer to the Worker. It is signed by “R Fourter” and the first paragraph of that correspondence states:
“As you know, the home port for Osprey is Eden. You’re engaged at Eden and most of your trips as a member of the crew of Osprey were to and from Eden.”
The hearing transcript records those submissions put on behalf of the Appellant. Reliance was placed by Counsel in the course of those submissions upon the evidence of Mr Mayall. That evidence, it was put, establishes that the Respondent Employer had “only one business venture” and that was the operation of the fishing vessel Osprey. It was further argued that Mr Mayall’s evidence establishes that the Respondent Employer was a company “… incorporated in Victoria, remained registered in Victoria and carried out its fishing business from (Mr Mayall’s) office … in Victoria”. Mr Mayall’s evidence further establishes, it was argued, that the Victorian address displayed a sign indicating that it was the place of business of the Respondent Employer.
The Appellant further submitted that the evidence of Mr McIntyre given orally in the course of conduct of the appeal concerning the activities at the Cocora Street, Eden residence of the Senior Fourters (parents of Mr Roger Fourter) being the storage of nets, ropes, floats, chains and other equipment used for fishing operations was in stark contrast to the evidence given by Ms Fourter that that address did “not constitute and never has constituted either a place of business or a place of employment for any fishing boat, including Osprey …”.
Given the conflict between the evidence of the Respondent Worker and the evidence of the witnesses relied upon by the Appellant it was put in argument:
“… if you accept the evidence of the two Fourters, that’s Roger Fourter, who agrees with Julie Fourter’s evidence, and the accountant, then clearly the place of employment must be Victoria, the Osprey being registered there and all the administration work and all the other work that the Fourters tell you occurred in Victoria. The fact that maintenance occurred on the vessel in Eden or Hobart or South Australia or Victoria is irrelevant …”
The Appellant’s Counsel in the course of submissions made reference to the transcript of proceedings before the Tasmanian Industrial Commission. It is convenient to note here that Written Submissions which accompanied the appeal sought to emphasise a portion of that transcript which appears at page 1 where it is recorded that the Respondent Worker’s representative stated:
“…our case will be that in fact for the majority of the time that Mr McIntyre worked on that vessel he worked out of Hobart.”
Reliance was placed upon the evidence of Mr Miriklis, the purchaser of fish caught by the crew of Osprey. It was noted in this submission that Mr Miriklis was located at the Melbourne Fish Markets, Victoria.
The Appellant further argued that the evidence establishes that Mr and Mrs Roger Fourter were “in control of a fishing boat” and that they were “itinerant” and “followed the fishing boat where it went, that is when it was in Eden they had a place to live up there and when it was in Victoria, in South Australia [sic] and when it was in Tasmania”.
The Appellant in the course of submissions made reference to the evidence of Julie Fourter concerning the employment of the Respondent Worker in November 1998. It was stated by Ms Fourter in her Statutory Declaration dated 19 February 2009:
“19. Ian McIntyre approached my later father-in-law, Michael Edwin Fourter, for a position of crew member on “Osprey”. My husband and I had a conversation with Ian McIntyre on 2 November 1998, on the telephone whilst I was in Melbourne, during which he told me “I will be living in Tasmania.” I sent him a taxation declaration form to complete, I already having completed the employer section of them. I have checked the duplicate copy of the taxation document. The duplicate is almost illegible, but it shows the address at Werribee, Victoria. I told McIntyre “our company operates in Victoria where it has its registered office, but we will be operating the boat out of Tasmania for some time. You will be paid 9% of the catch on a trip basis with deductions taken off for ice, unloading fees, quota management fees and any personal gear that you book up to the boat account. Our records are managed through our accountant in Victoria and you will be an employee of our Victorian company. Do you understand that?” He said “that is fine. Will you be operating out of Hobart:” I said “we might move around a bit.” My husband said “report to the skipper; you will go on the next Trip.” The first trip to the boat account. [sic] Our records are managed through our accountant in Victoria and you will be an employee of our Victorian company. Do you understand that:” He said “that is fine. Will you be operating out of Hobart?” I said “we might move around a bit.” My husband said “report to the skipper; you will go on the next trip.” [sic] The first trip with McIntyre on board as a crew member was from Eden to Hobart. I still have all of the statutory records of the fishing trips of Osprey for the relevant times.”
In the course of submissions the Appellant drew attention to the correction made by Ms Fourter as to her whereabouts at the time the telephone conversation referred to above took place. That correction is contained in Ms Fourter’s supplementary Statutory Declaration dated 13 March 2009. Ms Fourter states at paragraph 14 of that Declaration that upon reliance of “memory, reference to statutory records and my diary” the conversation took place when she and her husband were present in Portland, Victoria.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
As has been noted above the Arbitrator’s determination of the dispute has miscarried having regard to erroneous application of the provisions of section 9AA of the 1987 Act to the facts as found. The Respondent Worker’s injury was received in June of 1999. The provisions of section 9AA came into force on 1 January 2006. Such provision does not have retrospective operation (see Schedule 6.2.11 to the 1987 Act). In the circumstances, the nature of the dispute, given the agreement that the subject injury was received outside New South Wales, required consideration of the proper construction and application of the former section 13 of the 1987 Act to the facts as found.
The provisions of the former section 13 are in very different form to those contained in section 9AA. The matters of fact required to be established for the purposes of the two separate provisions are very different. Given the erroneous application of section 9AA it is necessary that the Arbitrator’s determination be revoked.
Having regard to the nature of “review” as stated by the Court of Appeal in the decisions cited in [61] and [62] above and having regard to all the circumstances of this case I consider that it is appropriate that the dispute between the parties be redetermined on this appeal. I reach this view, in part, upon the basis that the parties have had an opportunity to adduce all evidence upon which they seek to rely by way of “further evidence” admitted by leave in the course of conduct of the appeal. I have also reached this view given my acceptance of the submissions put by Counsel on behalf of the Worker concerning the appropriate course to be adopted as recorded at pages 69 and 70 of the hearing transcript. Counsel’s argument was that:
“… no Arbitrator on remittor (sic) could be in a better position than you now are to make a determination in this matter …”
It was further put, and I accept, that a redetermination on this appeal would be “just, quick and cheap” and that such was consistent with the objects of Parliament in establishing the Commission in its present legislative framework.
The documents filed with the Commission in support of the appeal do not contain a precisely stated ground of appeal. It is however clear that the only challenge to the Arbitrator’s determination concerns the findings stated in paragraphs 1 and 3 of the Certificate of Determination as set forth in [10] above. Whilst the Arbitrator characterised the issue as one of “jurisdiction”, the true question was whether, having regard to relevant factual findings the Respondent Employer (and by reason of non-insurance, the Appellant) is liable for compensation as claimed in the ARD.
Given that the subject injury was received outside New South Wales the question of the Appellant’s liability is to be determined by application of the former section 13 which is in the following form:
“13 Injuries received outside New South Wales
(cf former s 7 (1A), (1B))
(1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly.
(2) Compensation is not payable under this section to the extent to which in respect of any such injury the worker has (and in the case of the death of the worker, his or her dependants have):
(a) received workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth, or
(b) obtained judgment against the worker’s employer independently of this Act.
(3) If the worker receives compensation under this section in respect of any such injury and subsequently in respect of the injury receives workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth or obtains judgment against the worker’s employer independently of this Act, the employer is entitled to recover from the worker an amount equal to the lesser of the following amounts:
(a) the amount of compensation paid by the employer under this section,
(b) the amount of workers compensation received by the worker or of the judgment obtained by the worker otherwise than under this Act.”
Liability to pay compensation will be established only upon proof that the employer has a place of employment in New South Wales or is for the time being present in New South Wales, and the employer “there employs a worker”. As was stated by Gleeson CJ (as he then was) in Starr v Douglas and Ors (1994) 10 NSWCCR 457 (at 458) (‘Starr’):
“It is settled law that the reference in section 13(1) of the Workers Compensation Act 1987 to employing a worker in New South Wales is a reference to the place where the worker is engaged, not to the place where the work is performed (Helmers v Coppins (1961) 106 CLR 156).”
There is plain conflict between the evidence of the Worker and that of Mr and Ms Fourter as to the circumstances of his employment. I have concluded that more weight should be ascribed to the evidence of the Worker concerning the making of the employment contract. I accept the submissions put on his behalf that there has been consistency through the relevant history as to the agreement concerning employment being reached in Eden, NSW following discussion between the Worker and Mr Roger Fourter. I so conclude notwithstanding the submissions recorded before the Tasmanian Industrial Commission put on his behalf as recorded in the transcript of those proceedings.
The weight to be ascribed to the evidence of Julie Fourter and Roger Fourter concerning the making of the contract of employment needs to be assessed having regard to the matters put in submissions on behalf of the Respondent Employer in the Tasmanian proceedings. I do not treat such submissions as constituting an admission however I conclude that it may reasonably be inferred that those submissions were put on instructions from either or both of the Fourters on behalf of the Respondent Employer. It is to be noted that the supplementary Statutory Declaration sworn by Julie Fourter contains a very large number of annexures, however such annexures do not include a copy of any diary entry concerning the alleged conversation per telephone whilst Ms Fourter was in Portland, Victoria. The existence of such document may be inferred from the content of paragraph 14 of her Statutory Declaration. The unexplained absence of such document is a matter which I have taken into account in assessing the weight of the evidence of Ms Fourter.
At the time the subject contract of employment was made Mr Roger Fourter was a Director of the Respondent Employer. It may reasonably be inferred that his engagement of the Worker to work as a Deck Hand on the Osprey was done on behalf of the Respondent Employer and I so find. I find that the Employer, at the relevant time, was present in New South Wales by its agent Roger Fourter.
Having made the findings above summarised, I determine that the injuries received by the Worker outside New South Wales on 23 June 1999 are ones to which the 1987 Act applies and compensation is payable accordingly.
Notwithstanding the Appellant’s arguments advanced with respect to the question as to whether the Respondent Employer “has a place of employment in New South Wales” as prescribed by section 13(1)(a) I conclude that at the time the Worker was employed, the Respondent Employer did have such a place of employment in New South Wales. I reach this conclusion having regard to the fact that the Osprey was berthed at Eden; that Mr Fourter was present in that town; the Osprey had worked out of the port of Eden over a considerable period as demonstrated in the records annexed to Ms Fourter’s Statutory Declaration and that the Osprey returned consistently to the port of Eden during the months identified in those records with its catch. It may be seen that I am satisfied that the Worker has established each of the alternative pre-conditions which appear in the relevant subsection of section 13 which are required to be proven at the time of employment there.
For the reasons I have attempted to summarise I conclude that the determination made in paragraphs 1 and 3 of the Certificate of Determination should be revoked. In all the circumstances I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal be corrected without the need to remit the matter for further consideration by an arbitrator.
DECISION
Time to appeal is extended to 5 November 2008.
Paragraph 1 of the Arbitrator’s Decision dated 24 September 2008 is revoked and the following determination is made:
1. The injury received by the Applicant outside New South Wales on 23 June 1999 was one to which section 13(1) of the Workers Compensation Act 1987 applies, and compensation is payable accordingly.
Paragraph 3 of the Arbitrator’s Decision dated 24 September 2008 is revoked and, in accordance with section 13(2) of the Workers compensation Act 1987, the following determination is made in its place:
3. Compensation is not payable to the Applicant to the extent to which he has received workers compensation under the laws of Victoria.
Paragraphs 2, 4, 5, 6 and 7 of the Arbitrator’s Decision dated 24 September 2008 are confirmed.
COSTS
The Appellant is to pay the Worker’s costs of this appeal. I note that the question of costs of the hearing before the Arbitrator was dealt with by consent before the Arbitrator on 16 February 2009.
Kevin O’Grady
Acting Deputy President
31 March 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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