Wren v Charles Sturt University

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wren v Charles Sturt University [2024] NSWPIC 484
APPLICANT:	Alison Wren
RESPONDENT:	Charles Sturt University
MEMBER:	Michael Moore
DATE OF DECISION:	2 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); respondent denied liability for payment of compensation for reasons including that the applicant had recovered damages within the meaning of section 151A(1) of the 1987 Act when she settled a claim for adverse action in Fair Work proceedings; Gardiner v O’Rourke Constructions Pty Ltd considered; Adams v Fletcher International considered and distinguished; Held – the settlement of the Fair Work proceedings was compensation received under an independent statutory scheme; the applicant was not precluded from bringing her claim for workers compensation benefits; matter referred to further preliminary conference to deal with balance of claim.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant is not precluded from bringing her claim for workers’ compensation benefits because she has received damages within the meaning of s 151A (1) of the WorkersCompensation Act 1987 but rather had settled her rights under an independent statutory scheme when she entered into a deed of release to settle her claim under the Fair Work Act2009 (Cth) against the respondent and another. 2. The matter is to be re-listed for a further preliminary conference to deal with the balance of the claim.

STATEMENT OF REASONS

BACKGROUND

In this matter the applicant Alison Wren is seeking an award of weekly compensation under ss 36,37 and 38 of the Workers Compensation Act 1987 (the 1987 Act), lump sum compensation under s 66 of the 1987 Act and payment of medical, hospital and related expenses under s 60 of the 1987 Act.
The applicant was employed by the respondent as an Associate Lecturer in Policing Studies at the Police Academy at Goulburn New South Wales having commenced work for the respondent in approximately April 2014.
It appears that the applicant’s initial appointment was for a part-time position equating to 60% of a full-time position presumably in terms of hours worked and income earned.
The applicant apparently conducted her work as a lecturer online as all teaching courses at the Police Academy were taught in that fashion.
In late 2014 the applicant was involved in a family separation and associated Family Court proceedings that resulted in the applicant having custody of her then eight-year-old son.
It appears that at times the applicant was allowed to work from home to enable her to deal with her childcare responsibilities but that the respondent ultimately would not allow that situation to continue.
The applicant alleges that due to her parental responsibilities the respondent did not allow her career to develop but rather treated her as a “stop-gap” resource to fill in staffing needs.
The applicant further alleges that her work hours were often altered, on many occasions on short notice.
The applicant states that in 2019 she was told that she was to be moved sideways to another department and then one month later was told that the transfer was not to occur after all.
It appears that for the 2019 and 2020 calendar years the applicant had been working on a full-time basis which was an increase from the contracted 60% hours to 100% of a full-time position.
The applicant alleges that in the course of performing her duties she relayed complaints from students in relation to the quality of the course being provided by the respondent to those students but nothing was done to address the concerns that were raised.
The applicant further alleges that when asked to overhaul the subject content for the “Year 2 program” she discovered many problems with the content of the course but when she and her colleague attempted to raise concerns and formulate a system to improve and correct the situation she was moved away from the task.
On the applicant’s version of events on 26 October 2020 she received a telephone call from a Mr Robin Caulfield the acting Head of School and was advised that her hours (and the hours of a colleague Kim Willer) were to be reduced to the 60% figure to allow the respondent to advertise for full-time staff.
The applicant states that she was very distressed by this event and felt that she was being “dumped to the background for new people”.
The applicant perceived that the respondent had a culture of an “English Boys Club” and that she and other qualified Australian females were being kept in part time positions while English male colleagues were being given full-time positions and career advancement.
The applicant states that after being advised that her hours were to be reduced to .6 of a full-time position she found herself teary and anxious. She found it difficult to sleep properly and had difficulty concentrating and was quite lethargic.
On 27 October 2020 the applicant attended a zoom staff meeting but alleges that she was so distressed by then that she could not trust herself to speak so said nothing.
The applicant commenced treatment with Dr Chris Bauer of Northern Rivers Counselling Service on 27 October 2020 and has not worked for the respondent since 28 October 2020.
The applicant states that she had to sell her home in Bowral due to her financial concerns and has moved to Victoria.
It appears that in November 2021 the applicant made a claim in the Fair Work Commission bearing matter number C2021/7360 however the nature of the claim and the relief sought in those proceedings is unknown.
The applicant on 21 January 2021 brought a claim against the respondent and an employee of the respondent, a Ken Probert, in the Federal Circuit and Family Court of Australia bearing matter number SYG2174/2021 under the Fair Work Act (Cth) 2009 (Fair Work Act) alleging breaches of the Fair Work Act and the Anti-Discrimination Act (NSW) 1977(Anti-Discrimination Act) (the Fair Work proceedings).
In the Points of Claim in the Fair Work proceedings essentially alleged that the applicant had been discriminated against because of her marital or domestic status and her responsibilities as a carer and sought a range of orders as follows:
(a) a declaration that the respondent contravened s 351 of the FairWork Act by taking adverse action against the applicant for her marital status and, or her family and carer’s responsibilities;
(b) a declaration that Mr Probert contravened s 351 of the Fair Work Act by taking adverse action against the applicant for her marital status and, or her family and carer’s responsibilities;
(c) an order that the respondent and Mr Probert pay compensation to the applicant for loss of income pursuant to s 545(2)(b) of the Fair Work Act;
(d) an order that the respondent and Mr Probert pay compensation to the applicant for hurt, humiliation and other non-financial losses pursuant to s 545(2)(b) of the Fair Work Act;
(e) an order that the respondent and Mr Probert pay pecuniary penalties pursuant to s 546(1) of the Fair Work Act and that those penalties be paid to the applicant pursuant to s 546(3)(c) of the Fair Work Act;
(f)    interest up to the date of judgment;
(g)    costs, and
(h)    such further or other order or orders as the Court deems fit, or as the case may require.
By a deed of release dated 23 August 2023 (the deed of release) the applicant and the respondent entered into a deed of release whereby the respondent agreed to pay to the applicant the sum of $80,000 and her annual leave and long service leave entitlements.
The terms of the payments to the applicant in the deed of release were expressed as follows:
“University Obligations
The University must:
(a)Within 14 days of the later of the Resignation Date or receiving a properly executed deed and Notice of Judgment or Settlement, pay to, or on behalf of the Employee (less applicable tax):
(i)$80,000 as a general damages payment:
(A)For alleged conduct during the Employment for and in respect of the alleged Injury, which occurred before, and is in no way connected to, the termination of the Employment
(B)less 10% (i.e. $8,000) that the University must withhold as an advance payment under the Health and Other Services (Compensation) Act 1995 and remit to Medicare: and
(ii)the value of the Employee’s accrued but untaken annual leave and any accrued but untaken long service leave as at the Resignation Date to which the employee is entitled to be paid at law;
(b)provide the Employee with a Statement of Service recording the dates the Employee worked for the University and role held: and
(c)not permit the Beneficiaries (including the Individual Respondent) to make any adverse comment publicly or otherwise, about the Employee. The University is not liable to the Employee for a statement made by any Beneficiary without the University’s knowledge or authority.”
In return the applicant released the respondent and Mr Probert,
“from and indemnifies them against the Circumstances and agrees the Beneficiaries may plead this deed as a bar to any relevant Claims (Employee’s Release). The Employees Release has effect as a deed poll given by the Employee in favour of the Beneficiaries.”
A mutual release was also given by the respondent in favour of the applicant in the following terms:
“The University releases the Employee from the Circumstances, except for claims involving fraudulent, dishonest or unlawful conduct by the Employee, and agrees that the Employee may plead this deed as a bar to any relevant Claims (University’s Release).”
In the deed of release the “Circumstances” were defined as:
“Circumstances means all present and future Claims, whether known or unknown, and in any way relating to the matters recited, including the Employment, the terms of the Employment, the Contract, the Allegations, the Investigation, the Absence, the FWC claim, the Proceedings and the termination of the Employment except for any claims under workers’ compensation legislation from which the Employee cannot give a release under this deed.”
In the deed of release “Claims” were defined as:
“Claims includes any action, appeal, application, arbitration, cause of action, claim, complaint, cost, debt due, demand, determination, inquiry, judgment, suit or verdict:
(a) at law:
(b) in equity:
(c) in tort or arising as a result of a wrongful action or omission of any kind by the Employee or any of the Beneficiaries:
(d) under any statute, regulation or other legislative instrument including without limitation the Fair Work Act 2009(Cth.):
(e) under any award, certified agreement, enterprise agreement or other instrument made or approved under any law.”
Recital E of the deed of release provided as follows:
“The Employee has been absent from work since around 28 October 2020 on a period of personal leave (Absence) due to a work injury (Injury). The Employee’s workers compensation claim in relation to the Injury has been declined on appeal.”
For completeness I note that the references in the deed of release to Employee, University and Individual Respondent are to the applicant, the respondent and Mr Probert respectively.
From the material available to me it appears that following ceasing work on 28 October 2020 the applicant remained off work and was paid sick leave benefits until approximately
4 February 2021 when she was advised by the respondent that she had minimal sick leave remaining.
It is unclear to me exactly when notice of a claim for workers compensation benefits was made by the applicant however by 5 March 2021 she had been contacted by an investigator on behalf of the respondent and had provided a statement in relation to her claim for workers’ compensation.
By a notice under s 78 of the Workplace Injury Management and Workers CompensationAct 1998 (the 1998 Act) dated 29 June 2021 the respondent declined the applicant’s claim for benefits.
The s 78 notice dated 29 June 2021 declined liability for payment of workers’ compensation benefits on the following bases:
(a)    that the applicant had not sustained a psychological injury (s 11A(3) of the 1987 Act);
(b)    that the applicant’s employment was not a substantial contributing factor to her injury (s 9A of the 1987 Act);
(c)    that the applicant’s employment was not the main contributing factor to a disease injury (s 4(b) of the 1987 Act);
(d)    that the applicant did not have total or partial incapacity for work resulting from an injury (s 33 of the 1987 Act), and
(e)    that the medical and related treatment was not reasonably necessary as a result of an injury (ss 59 and 60 of the 1987 Act).
The respondent issued a further s 78 notice dated 22 July 2022 following receipt of a medical report from Dr Brian Potter qualified psychiatrist dated 20 July 2022.
The s 78 notice dated 22 July 2022 declined liability for payment of workers’ compensation benefits on the following bases:
(a)    that the alleged injury was not covered by workers compensation as required by s 4 of the 1987 Act;
(b)    that the psychological injury did not arise out of employment as required by s 4 of the 1987 Act;
(c)    that the psychological injury did not arise in the course of employment as required by s 4 of the 1987 Act;
(d)    that the applicant’s employment was not a substantial contributing factor to the applicant’s psychological injury as required by s 9A of the 1987 Act;
(e)    that the applicant’s employment was not the main contributing factor to the contraction of the applicant’s disease injury as required by s 4(b) of the 1987 Act;
(f)    that the applicant’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant’s disease as required by s 4(b) of the 1987 Act;
(g)    that in the alternative that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer and /or provision of employment benefits under s 11A of the 1987 Act;
(h)    that the applicant was not entitled to permanent impairment lump sum compensation because the injury upon which the assessment was based is disputed, and
(i) any issue raised in the s 78 notice dated 29 June 2021 was also relied upon.
The respondent issued a further s 78 notice dated 1 September 2022 which in addition to repeating the bases of the dispute raised in the s 78 notices dated 29 June 2021 and
22 July 2022 described at points 34 and 36 above also declined liability on the basis that the applicant had recovered from the effects of any psychological injury that the applicant may have suffered arising out of or in the course of her employment.
Yet another s 78 notice dated 2 August 2023 was issued by the respondent which in addition to raising the same issues noted in the notices dated 29 June 2021, 22 July 2022 and
1 September 2022 also stated:
“We do not agree that you are entitled to compensation pursuant to the Workers Compensation Act 1987 because you have received an award of damages in respect of the injury concerned within the meaning of section 151A of the Workers Compensation Act 1987.”
The applicant commenced proceedings in the Personal Injury Commission (Commission) filing an Application to Resolve a Dispute (the Application) on 24 May 2024.
The Application pleaded that the applicant had suffered a psychological injury with a date of injury of 28 October 2020.
At the preliminary conference held on 24 June 2024 it became apparent that the pleading of the “Injury Details” in the Application required amendment and orders were (relevantly) made in the following terms:
“2. The applicant is to file and serve on or before 5.00pm on 2 July 2024 an amended Application to Resolve a Dispute pleading an injury in the nature of a disease or aggravation, acceleration, exacerbation or deterioration of a disease nominating a deemed date of injury and identifying the events that are alleged to have caused the alleged injury. The pleading should also identify whether the applicant alleges an injury under section 4(b)(i) and/or 4(b)(ii) of the Workers Compensation Act 1987.
3. The respondent is to have liberty to apply to the Personal Injury Commission for further orders if the proposed amendments in the amended Application to Resolve a Dispute cause the respondent any embarrassment or prejudice that the respondent is unable to meet with such liberty to be exercised on or before 5.00pm on 9 July 2024.”
An amended Application dated 1 July 2024 (the amended Application) was filed by the applicant’s solicitors on 1 July 2024 in accordance with direction 2 noted in point 41 above.
No application was made by the respondent in response to the amended Application as provided by direction 3 referred to in point 41 above.
The amended Application pleaded the “Injury description” in the following terms:
“Psychological injury (Persistent Depressive Disorder)
The Applicant commenced employment with the Respondent in April 2014. Throughout the course of her employment the Applicant has been verbally abused and felt bullied and intimidated by senior staff Members. The Applicant was also discriminated against as a result of her gender and parental responsibilities and was not provided with flexible working arrangements when requested. In addition the Applicant was not given a career plan to work towards and was not given any career advancement opportunities. At times the Applicant also felt unsupported, unwanted and isolated by the Respondent.
On 26 October 2020 without warning the Applicant received a call to advise her that her hours of work were being significantly reduced and her role would be shared with another employee. As a result of being notified without warning that her hours were being reduced and the process which follow to try and resolve the dispute about the provision of ongoing work and alternative duties, in addition to the prior treatment including the discrimination and verbal abuse the Applicant’s mental health was impacted and resulted in the onset of a psychological injury.
The applicant’s first date of incapacity was 28 October 2020.”
The amended Application also pleaded the date of injury as being a deemed date of injury of 28 October 2020.
The matter was listed for a conciliation/arbitration hearing on 12 August 2024 and on that occasion the applicant was represented by Mr Paul Stockley of counsel instructed by Kimberley Becker from Taylor and Scott solicitors. The respondent was represented by David Baran of counsel instructed by Anthony Pryor from Gair Legal.
In the conciliation phase of the conciliation/arbitration I was advised by counsel that the matter was not capable of resolution at that time as the respondent wished to have the claimed defence under s 151A (raised in the s 78 notice dated 2 August 2023) decided.
Both counsel submitted that the preferrable course of action was that I decide the s 151A issue as a separate point and depending on the outcome of the decision further discussions may then occur.
Given the time constraints on the day and given that the matter would, in the event that the applicant succeeded on establishing that she suffered a compensable injury, have required referral to a Medical Assessor prior to the final determination of any entitlement to weekly compensation (Jaffarie)[1] I agreed to hear and determine the s 151A defence as a preliminary issue.
[1] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.

ISSUES FOR DETERMINATION

The parties agree that the issue for preliminary determination is whether the applicant is precluded from bringing the proceedings for workers compensation benefits because of the effect of s 151A of the 1987 Act because she has recovered damages in respect of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Amended Application;
(c)    respondent’s reply and attached documents (Reply);
(d)    respondent’s wages schedule dated 23 July 2024, and
(e)    respondent’s Application to Admit Late Documents and attached documents dated 7 August 2024 (AALD1).

Oral evidence

There was no oral evidence given.

FINDINGS AND REASONS

The respondent’s defence to the applicant’s claim relying on s 151A(1) of the 1987 Act essentially involves an assertion by the respondent that the payment made to the applicant by the respondent pursuant to the deed of release constituted a recovery of damages and accordingly the applicant had ceased to be entitled to compensation under the 1987 Act.
Mr Baran in his submissions firstly directed my attention to the details of the pleading of “injury description” in the amended Application and to the alleged similarities between that pleading and the points of claim in the Fair Work proceedings.
Mr Baran asserted, quite correctly in my view, that the matters outlined in the Points of Claim in the Fair Work proceedings under the headings “Respondents’ Historical Conduct” and “Respondents’ Conduct in 2020-2021” corresponded with much of the “Injury description” in the amended Application.
Mr Baran particularly noted that the applicant pleaded in the Fair Work proceedings that she went off work on 28 October 2020 being the pleaded date of injury in the amended Application.
Mr Baran also pointed out that the Orders sought by the applicant in the Fair Work proceedings included a claim for an order that the respondents pay compensation to the applicant for loss of income and pay compensation to the applicant for other non-financial losses.
Mr Baran then moved to the terms of the deed of release noting that in his submission the deed of release was clearly intended to resolve all controversies between the applicant and the respondent.
Reviewing the recitals to the deed of release Mr Baran noted that recital E provided that:
“The Employee has been absent from work since around 28 October 2020 on a period of personal leave (Absence) due to a work injury (Injury). The Employee’s workers compensation claim has been declined on appeal.”
Dealing with the terms of the releases given under the deed of release Mr Baran noted that the deed of release included a definition of “Circumstances” which provided:
“Circumstances means all present and future Claims, whether known or unknown, and in any way relating to the matters recited, including the Employment, the terms of the Employment, the Contract, the Allegations, the Investigation, the Absence, the FWC Claim, the Proceedings and the termination of the Employment except for any claims under the workers’ compensation legislation for which the Employee cannot give a release under this deed.”
In relation to the phrase “except for any claims under the workers compensation legislation for which the Employee cannot give a release under this deed” I understand Mr Baran to have in effect submitted that the phrase meant no more than a statement that the applicant could only give a release to the extent that it was permitted under the workers compensation legislation that specifically prevents contracting out of a worker’s rights.[2]
[2] See s 234 of the 1998 Act.
Mr Baran noted that the word “Claims” is defined in the deed of release to mean:
“Claims includes any action, appeal, application, arbitration, cause of action, claim, complaint, cost, debt due, demand, determination, inquiry, judgment, suit or verdict:
(a)    at law;
(b)    in equity;
(c)    in tort or arising as a result of a wrongful action or omission of any kind by the Employee and or any of the Beneficiaries;
(d)    under any statute, regulation or other legislative instrument including without limitation the Fair Work Act 2009 (Cth.); or
(e)    under any award, certified agreement, enterprise agreement or other instrument made or approved under any law.”
Mr Baran also pointed to the fact that the applicant was required by the terms of the deed of release to provide a completed a Notice of Judgment or Settlement under the Health and Other Services (Compensation) Act 1995 (Cth) following execution of the deed of release which he stated was of critical importance as the notice was only required if the payment being made pursuant to the terms of the deed of release was a payment with respect to an injury to a person.
Mr Baran stated that the terms of the deed of release requiring the completion of a Notice of Judgment or Settlement had the effect of incorporating into the deed that the applicant was being paid a sum of money which attracts the requirement of payment to the Commonwealth if the Commonwealth had made payment of monies in respect of the injury.
Mr Baran stated that the deed of release was not a commercial agreement on general protections because if it was a commercial agreement on general protections and Fair Work a Notice of Judgment or Settlement is not required.
Mr Baran noted the requirement under cl 4.1(a)(i) of the deed of release for the respondent to make a payment of $80,000 less any applicable tax to the applicant as a general damages payment “for and in respect of the alleged Injury” and this was not a case of the worker being paid a sum of money using general protections or other statutory mechanisms to clothe a wrongful dismissal. This was an independent payment for pain and suffering in respect of her experiences causing an injury but excluding the circumstances of her termination.
Mr Baran submitted that the payment was in respect of what is effectively the case the applicant is bringing before the Commission.
In Mr Baran’s submissions the reference to the word “Injury” in cl 4.1(a) of the deed of release is completely unambiguous and there is no reason to read down what it means – that is $80,000 is being paid for an injury arising out of work or occurring in the course of work.
Turning to cl 4.1(a)(ii) of the deed of release Mr Baran noted that there was a specific obligation for the respondent to pay in addition to the $80,000 under cl 4.1(a)(i) the applicant’s entitlements to accrued annual and long service leave which Mr Baran submitted created a clear bifurcation between general damages and employee entitlements in the terms of the deed of release.
Mr Baran submitted that on a proper reading of the terms of the deed of release and the obligations imposed thereunder there was clearly a receipt of damages for personal injury and s 151A of the 1987 Act was triggered.
Mr Baran noted that s 149 of the 1987 Act provided a definition of “damages” as being “any form of monetary compensation” with a number of exclusions then being noted none of which applied in this case.
Turning to s 151A(1) Mr Baran submitted that the applicant had recovered damages for personal injury in this case rather than a situation where she had received payment for statutory agreement, order or compensation that had nothing to do with injuries.
Discussing the decision of Member Peacock in the matter of Shabib v Green Formwork Pty Ltd[3] (Shabib) Mr Baran noted that while superficially similar to this case that case could be distinguished on the basis that the deed of release in that matter did not refer to a specific injury or damages and contained a specific carve out clause for a specific workers compensation claim.
[3] 2022 NSWPIC 151.
In Shabib Member Peacock had held that a settlement of proceedings under the Fair Work Act had involved a payment under a statutory scheme for adverse action based on sex and the applicant was not disentitled as a consequence of that settlement from claiming workers compensation benefits.
In Mr Baran’s submissions the applicant in the matter of Shabib had clearly received pure statutory benefits and the case was clearly distinguishable from the facts in this case.
Referring to the case of Gardiner v Laing O’Rourke Australia Construction Pty Ltd[4] (Gardiner) which was relied upon by Member Peacock in Shabib Mr Baran submitted that case dealt with a payment on statutory benefits which was not the situation in the current matter.
[4] 2020 NSWCA 151.
Mr Baran argued that the applicable authority which I should follow was the decision of the Court of Appeal in Adams v Fletcher International[5] (Adams) where there is a clear claim for personal injury and a clear payment of damages for the personal injury.
[5] (2008) NSWCA 238.
In Mr Baran’s submissions on a proper construction of the deed of release it is clear that the applicant had received damages for personal injury being the same injury and cause of injury pleaded in the present matter and accordingly the applicant was precluded from recovering workers compensation benefits.
Mr Stockley’s submissions commenced by noting that in Adams Handley JA had been at pains to note that it was not the execution of the deed that had the effect of extinguishing the appellant’s rights to workers compensation benefits but rather the receipt of damages had been the cause of the extinguishment of the right to bring a claim for workers compensation benefits.
The reason for that comment by Mr Justice Handley was of course the prohibition in s 234 of the 1998 Act against contracting out of the legislation.
Mr Stockley then moved to a consideration of the decision in Gardiner which he described as a more analytical approach to the legislation and the effect of s 151A of the 1987 Act.
Mr Stockley noted that Member Peacock had quoted much of the reasoning from Gardiner in coming to her decision in Shabib.
Embarking on a consideration of the reasoning of Basten JA in Gardiner Mr Stockley noted that Justice Basten had conducted a discursive examination of the legislation.
Mr Stockley noted that Justice Basten considered the meaning of “damages” in s 149 after noting that the application of s 151A(1) of the 1987 Act turned on the definition of damages.
Basten JA noted that “the respondent placed weight upon the breadth of the definition of damages as including “any form of monetary compensation” but then noted that there were “contrary indications within the legislative scheme”.
Justice Basten went on to note that the heading to Part 5 of the 1987 Act was limited to “Common Law Remedies” and that by inference “statutory remedies having no basis in common law would not be covered”.
Mr Stockley noted that Basten JA had held that a consideration of the legislative scheme with respect to the interrelationship between workers compensation and awards of damages lead to a proposition that the legislative purpose of s 151A is to ensure that a worker did not get workers compensation and damages with respect to the one injury – that it was intended to prevent recovery of double compensation.
Mr Stockley noted that Basten JA had conducted an analysis of the respective statutory schemes under the workers’ compensation legislation on the one hand and the Anti-Discrimination Act 1977 on the other and then noted that a purposive construction of the two separate and independent schemes of regulation:
“does not support the proposition that a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury within the meaning of the workers’ compensation legislation, should foreclose any claim for workers’ compensation or work injury damages.”[6]
[6] Per Basten JA – Gardiner v Laing O’Rourke Constructions Pty Ltd [2020] NSWCA 151 at paragraph 51.
As noted by Mr Stockley Justice Basten in his decision in Gardiner went on to note that in the case before him if the analysis of the respective pieces of legislation was correct then nothing turned on the terms of the deed in that case once it was possible to characterise the deed as involving the settlement of a complaint brought under the Anti-Discrimination Act.
Mr Stockley submitted that applying the same approach to the present matter the deed of release was clearly able to be characterised as a settlement of a complaint brought under the Fair Work Act and on the same basis as the reasoning in Gardiner the applicant was not precluded from seeking workers’ compensation benefits.
Further Mr Stockley essentially submitted that on a true construction of the deed of release it was a settlement of an allegation of adverse action under the Fair Work Act which was relief provided by a statutory scheme.
In terms of the definition of ‘Circumstances’ in the deed of release Mr Stockley submitted that the applicant in terms of subjective intention would not have considered that she was agreeing to give away her workers compensation rights where the definition itself created an exception to the matters covered by stating “except for any claims under workers’ compensation legislation from which the Employee cannot give a release under this deed.”
Mr Stockley submitted that applying the principle that:
“a releasee must not use the general words of a release as a means of escaping the fulfillment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor”
set out in Grant v John Grant and Sons Pty Ltd [7] and cited by Basten JA in Gardiner the purpose of the deed of release was to settle the applicant’s complaints of adverse action under the Fair Work Act not to settle a claim for work injury damages that she was not entitled to bring in any event.
[7] [1954] HCA 23.
Mr Stockley argued that Member Peacock’s decision in Shabib was on all fours with Gardiner and a similar approach was applicable in this matter.
Mr Baran in reply submitted that it was necessary to construe the deed of release on the basis of its objective terms and that the definition of “claims” in the deed made it clear that all controversies were being settled by the terms of the deed and it was clear that the applicant had been paid damages for personal injury and that the situation in the present case was similar to that in Adams and the present case could be distinguished from Gardiner and Shabib.

Findings and reasons

The respondent’s defence relies upon the provisions of s 151A of the 1987 Act which is in the following terms:
“151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case)--
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.
(2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944 , the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation--
(a) the amount of any weekly payments of compensation already paid in respect of the injury concerned,
(b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.
(3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death--
(a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker.
(4) If a person recovers motor accident damages (other than damages to which Part 4 of the Motor Accident Injuries Act 2017 applies) from the employer liable to pay compensation under this Act--
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.
(5) If a person recovers damages to which Part 4 of the Motor Accident Injuries Act 2017 applies from the employer liable to pay compensation under this Act--
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any of the following compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation--
(i) weekly payments of compensation,
(ii) permanent impairment compensation and pain and suffering compensation, but limited to the amount of any damages recovered for non-economic loss.”
Sub-sections (2),(3), (4) and (5) are not relevant to this matter and the submissions of the respondent were on the basis that the applicant could not recover workers’ compensation because she had received damages within the meaning of s 151A(1) of the 1987 Act.
“Damages” are defined in s 149 as follows:
“149
(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
(d) additional or alternative compensation to which Division 8 of Part 3 applies, or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996 , or
(f) a sum required or authorised to be paid under a State industrial instrument, or
(g) any sum payable under a superannuation scheme or any life or other insurance policy, or
(h) any amount paid in respect of costs incurred in connection with legal proceedings, or
(i) damages of a class which is excluded by the regulations from this definition.
(2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.”
Mr Baran’s submissions essentially argue that there is an identical allegation of the respondent’s conduct, the nature of the applicant’s injury and date of injury in both the Fair Work Act proceedings and the present claim and that as the applicant received monetary compensation in the Fair Work Act proceedings there has been a relevant recovery of damages within the definition of s 149 of the 1987 Act that as a consequence the applicant cannot recover workers compensation benefits because of the effect of s 151A(1) of the 1987 Act.
As has been noted in my summary of counsel’s submissions Member Peacock in the matter of Shabib (which is a similar case to the present one) held that the applicant in that case had in proceedings under the Fair Work Act recovered compensation under an independent statutory scheme and was not precluded from bringing a claim for workers’ compensation benefits. In coming to that conclusion Member Peacock had applied the reasoning of the Court of Appeal in Gardiner.

In Shabib the applicant Nadia Shabib had suffered a psychological injury as a consequence of being sexually harassed at work and prior to the hearing of her claim for workers compensation benefits had brought proceedings in the Federal Court under the Fair WorkAct alleging adverse action based on sex.
In her Fair Work Act proceedings Ms Shabib settled her dispute and entered into a deed of release whereby she was paid $125,000 which comprised various sums for personal leave, unpaid annual and long service leave, redundancy including an amount of $15,294.15 for general damages.
The deed of release signed by Ms Shabib provided a release to the employer, its related bodies corporate, its officers agents and employees and a Mr El Chami from all “Claims” arising from “the Proceedings, the Employment, the Termination, or the Complaints”.[8]
[8] Per Member Peacock in Shabib v Green Formwork Pty Ltd [2022] NSWPIC260 at paragraph 28.
The definition of “Claims” in the deed of release signed by Ms Shabib defined “Claims” to mean:
“any action, complaints, claims, demands, suits, proceedings and liability (whether at common law, in equity, or to the extent permitted under any statute) including (without limitation) claims for damages, personal injury, unpaid salary, unfair dismissal, workers compensation, superannuation, payments in lieu of leave, severance payments, bonus payments, allowances or expenses, claims under the Fair Work Act 2009 (CTH), Federal or state anti-discrimination legislation but excluding Shabib’s claim for workers compensation with claim number 1737600.”[9]
[9] Ibid at paragraph 28.
It appears that in her Fair Work Act proceedings Ms Shabib alleged that she had, inter alia, suffered a psychological injury as a consequence of sexual harassment in the course of her employment which was the same injury and mechanism of injury alleged in her workers’ compensation proceedings.
In Shabib counsel for the respondent employer argued that it was quite clear that Ms Shabib had received a payment that had been made in respect of Ms Shabib’s psychological injury pursuant to the terms of the deed of release signed by her and accordingly had recovered damages in respect of the injury. Accordingly as a consequence of that receipt of damages Ms Shabib was precluded from recovering workers compensation benefits.
Applying the reasoning of Basten JA in Gardiner Member Peacock held that the payment to Ms Shabib was a settlement of a claim for adverse action based on sex which was a statutory protection under a discrete and independent statutory scheme and was not a receipt of “damages” within the meaning of s 151A (1).
Mr Baran had sought to distinguish the facts in Shabib from the present case on a number of bases including that the terms of the deed of release executed by Ms Shabib differed from the deed of release signed by the applicant in that Ms Shabib’s deed did not refer to a specific injury or damages and contained a specific carve out clause for a specific workers’ compensation claim and further the terms of the deed of release signed by the applicant created a clear bifurcation between general damages for personal injury and employee entitlements.
With the greatest respect to Mr Baran I cannot agree with his submissions on those points.
The deed of release signed by Ms Shabib clearly recited that the alleged sexual harassment (which was the basis of her Fair Work Act adverse action allegations) had caused personal injury.[10]
[10] See Shabib at paragraph 25 referring to recitals B and D.
Further the terms of the deed of release signed by Ms Shabib clearly made provision for a separate component for general damages in the sum of $15,294.15.[11]
[11] See Shabib at paragraph 26.
It appears that other components of the settlement sum such as personal leave, unpaid annual leave, unpaid long service leave, and redundancy may have been separately enumerated in the deed of release signed by Ms Shabib given the rather precise nature of the amount allocated to general damages.
In the present case the deed of release basically provided payment of a lump sum for a general damages payment for “alleged conduct during the Employment for and in respect of the alleged Injury” and in addition to that payment required the respondent to pay the applicant’s statutory entitlements for annual and long service leave.[12]
[12] Reply pp12-13
The deed of release is arguably less precise in creating a bifurcation of the basis of the settlement than that in the matter of Shabib in that it seems to me that on a proper reading of the terms of the deed the $80,000 was being paid to resolve all aspects of the claim for compensation for adverse action under the Fair Work Act with the respondent simply then agreeing to meet its statutory obligations to make payment of the applicant’s accrued leave entitlements which are not defined in terms of any amount and accordingly do not appear to have been the subject of controversy.
In relation to the “carve out clause” in the deed of release signed by Ms Shabib I note that other than the reference to the one nominated matter the deed purported to provide a discharge and release against (inter alia) all other workers compensation claims[13] whereas the deed of release signed by the applicant appears on one interpretation to actually exclude from the operation of the deed any claim for workers compensation[14] on the basis that the applicant cannot give a relief from such liability because of the effect of s 234 of the 1998 Act.
[13] See Shabib at paragraph 28 and the definition of “Claims” which includes “workers compensation”.
[14] Reply p 11.
Mr Baran asserted that a critical part of the respondent’s case was the fact that the deed of release signed by the applicant had made provision for the completion of a Notice of Judgment or Settlement under the Health and Other Services (Compensation) Act 1995 which supports his submission that the applicant had pursuant to the terms of the deed received payment of damages for personal injury.
As I raised with counsel I do not see that particular submission as being persuasive.
My experience in practice acting for insurers, self-insurers and employers was that they would prefer to make a 10% deduction and pay same to Medicare with a completed Notice of Judgment or Settlement form rather than run the risk of failing to make a deduction and contravene the legislation.
As a practical matter the monies paid to Medicare would be refunded to the other party if the deduction was not appropriate once the appropriate forms were completed and returned.
Certainly the Notice of Judgment or Settlement completed in this matter was signed on behalf of the respondent and cannot be said to have been adopted or completed by the applicant.[15]
[15] Reply pp 17-21.
I do not attach any significance to the Notice of Judgment or Settlement in deciding whether the applicant has received a payment of damages in respect of her alleged injury.
In Gardiner the Court was dealing with a matter where a claimant for workers compensation benefits had lodged a complaint with the Anti-Discrimination Board complaining of discrimination on the grounds of disability and victimisation in the course of employment.
The complaint of discrimination was settled pursuant to the terms of a Deed of Release and Confidentiality with Mr Gardiner being paid $29,412 plus costs of $4,400.
Prior to the settlement of the discrimination complaint Mr Gardiner had commenced proceedings for workers compensation benefits.
Mr Gardiner’s claim for workers’ compensation benefits was resisted on the basis that he had recovered “damages” in respect of the same injury and the claim was thereby precluded by reason of the operation of s 151A (1) of the 1987 Act.
In Gardiner Basten JA held that the recovery of monies by Mr Gardiner in the Anti-Discrimination proceedings was not a recovery of “damages” within the meaning of s 151A of the 1987 Act but rather was an amount recovered in satisfaction of an independent or extraneous statutory scheme.
As noted by Basten JA:
“Although such discrimination may give rise to a personal injury, including a psychological injury, which would fall within the definition of “injury” in the Workers Compensation Act, such an injury is not an element of a contravention of s.49D (nor of other heads of discrimination under the Anti-Discrimination Act.) It is sufficient that the aggrieved person can establish less favourable treatment, or the imposition of a requirement which has a discriminatory effect.”[16]
[16] [2020] NSWCA 151 at paragraph 40.
Basten JA further noted that:
“While it may be conceded that the primary purpose of s.151A(1) of the Workers CompensationAct is to avoid double compensation, it is also apparent that its main area of operation is the interrelationship of workers’ compensation and what is now referred to as work injury damages. Prior to the Workplace Injury Act, it was the interrelationship between workers’ compensation and damages for personal injury arising out of or in the course of employment. That interrelationship long predated the existence of the statutory scheme creating unlawful discrimination and providing relief for contraventions. A purposive construction of the two separate and independent schemes of regulation does not support the proposition that a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury within the meaning of the workers’ compensation legislation, should foreclose any claim for workers’ compensation or work injury damages. (There is not even an arguable basis for the foreclosure of relief for discriminatory conduct if workers’ compensation were to be obtained first).
The only basis for such a suggestion is the broad definition of damages in the workers’ compensation legislation as including ‘monetary compensation’. However, whatever the potential breadth of the meaning of that term in ordinary usage, its meaning in the workers’ compensation legislation may be more confined. Read in the context of the legislation as described above, it should not be understood to cover payments by way of compensation under a statutory scheme which is self-contained and independent of the workers’ compensation legislation…”[17]
[17] [2020] NSWCA 151 at paragraphs 51-52.
There is no doubt in my mind that the proceedings brought by the applicant in the Federal Circuit and Family Court under the Fair Work Act were proceedings under an independent statutory scheme of the type referred to by Basten JA in Gardiner.
At paragraph 21 I set out the details of the orders sought in the applicant’s Fair Work Act proceedings and to succeed in those proceedings it was not necessary that the applicant establish that she had suffered injury as a consequence of negligence or other tort on the part of the respondent – rather she had to establish that she had been affected by adverse action on the part of the employer on the basis of her marital status and/or her family and carer’s responsibilities.
It is also in my view clear that the deed of release signed by the applicant was quite clearly one where you would characterise the deed as involving the settlement of the complaint brought under the Fair Work Act and once that is done nothing otherwise turns on the terms of the deed of release.[18]
[18] Per Basten JA in Gardiner at paragraph 54.
However I note that in any event it seems to me that the deed of release evinces a clear intention to exclude from the operation of the releases and indemnities given by the applicant any entitlements under the workers compensation legislation which reinforces in my view the conclusion that the payment of $80,000 made to the applicant pursuant to the terms of the deed was a settlement that only related to her independent rights under the Fair Work Act.
The factual matrix in this present case is very similar to that in both the matter of Gardiner and Shabib while the factual situation in Adams does differ in some significant areas from those two cases.
In Adams the deed of settlement between the parties clearly recorded that the applicant was settling his entitlement to work injury damages and the letter forwarding the settlement monies recorded that the cheque being forwarded to the worker was in respect of agreed work injury damages and the decision of Handley AJA specifically notes:
“The Court does not have, and presumably the Commission did not have, the benefit of the whole of the factual matrix known to the parties when they entered into the deed.”
Given the different factual background in the matter of Adams it is my view that the relevant authority that clearly binds me in this case is the decision in Gardiner and as noted above it is my view that the applicant in the Fair Work proceedings obtained a resolution of under an independent statutory scheme and did not obtain payment of damages within the meaning of s 151A(1) of the 1987 Act.
The respondent’s defence under s 151A of the 1987 Act does not succeed and the applicant is not precluded from bringing her claim for workers’ compensation benefits.

SUMMARY

The applicant is not precluded from bringing her claim for workers’ compensation benefits under the 1987 Act as she did not receive damages within the meaning of s 151A(1) of the 1987 Act when she settled her rights under an independent statutory scheme under the Fair Work Act.
The matter is to be relisted for a further preliminary conference to deal with the balance of the claim.

[2024] NSWPIC 484

2 September 2024