Yandell v SAE Institute Pty Ltd - [2025] NSWPICPD 38

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Yandell v SAE Institute Pty Ltd [2025] NSWPICPD 38
APPELLANT:	Samantha Yandell
RESPONDENT:	SAE Institute Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W2875/24
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	2 May 2025
ORDERS MADE ON APPEAL:	1. The name of the respondent to the appeal is amended wherever necessary to read “SAE Institute Pty Ltd”. 2. The Member’s Certificate of Determination dated 23 July 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Division 9 of Part 3 of the Workers Compensation Act 1987 – commutation of compensation – whether commutation of “full liability” included liability for past gratuitous domestic assistance
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Coutts Lawyers and Conveyancers
Respondent:
Mr A Combe, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Yandell v SAE Institute Pty Limited [2024] NSWPIC 392
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	23 July 2024

INTRODUCTION AND BACKGROUND

Ms Samantha Yandell (the appellant) suffered a psychological injury in the course of or arising out of her employment with SAE Institute Pty Ltd (the respondent). The respondent accepted liability for the injury and paid the appellant weekly payments, treatment expenses and a lump sum in respect of her whole person impairment in accordance with the Workers Compensation Act 1987 (the 1987 Act). The respondent also paid compensation for gratuitous domestic assistance provided to the appellant pursuant to s 60AA of the 1987 Act from 16 November 2020.
The appellant subsequently made a claim for past gratuitous domestic assistance provided to her between 31 May 2018 to 15 November 2020. The respondent disputed liability for that claim on the basis that insufficient evidence had been provided to support the claim that the provider of the assistance had forgone employment (s 60AA(3) of the 1987 Act). Liability was further denied because the respondent was not satisfied that the threshold requirement for domestic assistance of 15% whole person impairment set out in s 60AA(1)(c) of the 1987 Act would have been met prior to the assessment made by Dr Thomas Wilmot, consultant psychiatrist on 16 November 2020.
On 13 February 2024, the appellant entered into a signed commutation agreement with the respondent whereby she accepted a lump sum amount of $750,000 as a commutation of the respondent’s liability to pay compensation for her injury. The commutation agreement was registered with the Personal Injury Commission (the Commission) on 26 March 2024 and the lump sum was paid to the appellant on 10 April 2024. Just two days prior to receiving the lump sum, the appellant commenced proceedings in the Commission, seeking payment of the domestic assistance provided between 31 May 2018 and 15 November 2020. The respondent disputed the claim because of the issues already raised but further disputed it on the basis that its liability to pay compensation had been fully commuted pursuant to ss 87D to 87K of the 1987 Act.
The dispute proceeded to arbitration. After hearing oral submissions from the parties, the Member proceeded to a determination of the issue as to whether the respondent had any liability to pay for the past domestic assistance claimed pursuant to s 60AA of the 1987 Act, given the commutation agreement put in place. The Member determined that any liability the respondent had to the pay the compensation claimed for the period 31 May 2018 to 15 November 2020 had been commuted in the lump sum which had been paid to the appellant on 10 April 2024. She considered that, as a result of that finding, it was unnecessary for her to determine the remaining issues.
The appellant appeals the Member’s decision that the respondent’s liability for the compensation claimed was commuted by the commutation agreement. In the appeal, the appellant nominated the respondent as “SAE Creative Media Institute Pty Ltd.” There is no such entity and the proceedings before the Member below proceeded on the basis that the correct identity of the respondent was “SAE Institute Pty Ltd.” According to the Australian Tertiary Education website, SAE Institute Pty Ltd is a private limited company with various operating business names, including “SAE Creative Media Institute”. That business name is listed in the Australian Business Register with an Australian Business Number but is not described as a private or public company. The respondent was asked to confirm the correct entity but did not comply with the request. The correct name of the respondent is therefore “SAE Institute Pty Ltd.”

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that it is appropriate that the appeal be determined on the basis of the submissions made and the documents in evidence.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents and their submissions. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The Application to Register a Commutation Agreement

The Application to Register a Commutation Agreement (the agreement) dated 13 February 2024 was in evidence.[1] The particulars of the agreement at Part 3 of the document indicated that the parties had agreed that the amount to be paid to the appellant was $750,000 to commute “the [respondent’s] full liability for compensation (including weekly benefits, medical expenses and lump sum compensation) under the [1987 Act] in relation to the injury referred to in Part 2” of the form. The parties indicated that this was the case by ticking the box next to that statement.
[1] Reply to Application to Resolve a Dispute (reply), pp 11–17.
There was an additional alternate box indicating that the commutation was of “the employer’s partial liability for compensation (including weekly benefits, medical expenses and lump sum compensation) under the [1987 Act] in relation to the injury referred to in Part 2 of this form.” That box was not ticked. A space in the form allowing for particulars of the partial liability commuted was available but was not completed. A notation on the form indicated that if the liability in respect of compensation was partially commuted, the balance of the compensation entitlements continued to be payable.
The agreement was registered on 26 March 2024.

The Certification of Legal and Financial Advice

A Certification of Legal and Financial Advice dated 13 February 2024 that the legal practitioner had provided legal advice to the appellant was signed by the appellant’s legal adviser on 13 February 2024 and was included in the agreement at Part 4.[2]
[2] Reply, p 16.

The written legal advice

The written legal advice in respect of the commutation application was in evidence.[3] It advised that:
“A commutation is where you and the insurer agree to a single lump sum payment. This payment removes the insurer’s liability to you to pay future weekly payments and/or medical, hospital, and rehabilitation expenses for your injury. The insurer will not be liability [sic] for any further lump sum compensation or work injury damages.
Said another way, a commutation is an agreement between you and the insurer to commute or ‘buy-out’ any future liability for weekly compensation payments and medical, hospital, and rehabilitation costs, [through] the payment of a lump sum to you.
Once your commutation agreement is registered with the Personal Injury Commission, you will no longer be entitled to benefits under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.
We advised you that if you enter into a commutation agreement, it will be the full and final settlement of your workers compensation claim and that it will be the only claim you will ever be able to make in respect of your workplace injury on 31 May 2018 and no further claim of any type can be made, even if your condition deteriorates in the future.”
[3] Appellant’s Application to Admit Late Documents dated 7 May 2024, pp 3–4.

LEGISLATION

Section 60AA of the 1987 Act provides for the provision of domestic assistance in the following relevant circumstances:
“60AA Compensation for domestic assistance
(1)     If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if—
(a)a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b)the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c)the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d)the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.
(2)     Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements—
(a)it is provided for not more than 6 hours per week,
(b)it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c)it is provided pursuant to the requirements of the relevant injury management plan.
(3)     Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.
(4)     Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61(2) in respect of the assistance concerned.
(5)     The following requirements apply in respect of payments under this section—
(a)payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b)payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),
(c)payments for gratuitous domestic assistance are to be made to the provider of the assistance.
(6)     In this section—
gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”
Sections 87D to 87K of the 1987 Act provide for the commutation of an employer’s liability to pay compensation. Relevant to the issues raised in this appeal, the following sections provide:
“87D Definition
In this Division—
commutation agreement means an agreement to commute a liability to a lump sum, as provided by section 87F.”
“87E Compensation that may be commuted
(1)     A liability in respect of any of the following kinds of compensation under this Act or the former Act may be commuted to a lump sum as provided by this Division (and not otherwise)—
(a)weekly payments of compensation,
(b)compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act or section 10 of the former Act.
…”
“87EA Preconditions to commutation
(1)     A liability in respect of an injury may not be commuted to a lump sum under this Division unless the Authority is satisfied that, and certifies that it is satisfied that—
(a)the injury has resulted in a degree of permanent impairment of the injured worker that is at least 15% (assessed as provided by Part 7 of Chapter 7 of the 1998 Act), and
(b)permanent impairment compensation to which the injured worker is entitled in respect of the injury has been paid, and
(c)a period of at least 2 years has elapsed since the worker’s first claim for weekly payments of compensation in respect of the injury was made, and
(d)all opportunities for injury management and return to work for the injured worker have been fully exhausted, and
(e)the worker has received weekly payments of compensation in respect of the injury regularly and periodically throughout the preceding 6 months, and
(f)the worker has an existing and continuing entitlement to weekly payments of compensation in respect of the injury (whether the incapacity concerned is partial or total), and
(g)the injured worker has not had weekly payments of compensation terminated under section 48A of the 1998 Act.
…”
“87F Commutation by agreement
(1)     A liability may be commuted to a lump sum with the agreement of the worker.
(2)     A commutation agreement must not be entered into unless (before the agreement is entered into)—
(a)a legal practitioner instructed independently of the insurer and the employer has certified in writing that the legal practitioner has advised the worker—
(i)on the full legal implications of the agreement, including implications with respect to any entitlement of the worker to compensation under this Act or to benefits under any other law (including a law of the Commonwealth), and
(ii)on the desirability of the worker obtaining independent financial advice, before the worker enters into the agreement, as to the financial consequences of the agreement, and
(b)the worker has confirmed in writing that the worker has been given and understands the advice referred to in paragraph (a).
(3)     A commutation agreement (including an agreement purporting to be a commutation agreement) is not subject to review or challenge in proceedings before the Commission or a court.
(4)     The worker has 14 days after entering into a commutation agreement in which to withdraw from the agreement by giving notice in writing to the insurer. Withdrawal from the agreement by the worker makes the agreement a nullity.
(5)     A liability cannot be commuted under this section if the worker is legally incapacitated because of the worker’s age or mental capacity.
Note.
Section 87G provides for the commutation of a liability when the worker is legally incapacitated.
(6)     A commutation agreement is of no effect unless and until it is registered as provided by this Part. Registration of the agreement removes the liability to which the agreement relates.
(7)     The amount payable under an agreement is payable within 7 days after the agreement is registered or within such longer period as the agreement may provide. Interest calculated at the rate prescribed by the regulations is payable on any amount due and unpaid. The amount payable under a commutation agreement and any interest payable on that amount is recoverable as a debt in a court of competent jurisdiction.
(8) As part of a commutation agreement, a worker may agree that payment of a lump sum removes any liability to make a payment under Division 4 of Part 3 (or section 16 of the former Act) in respect of the injury concerned. This Division applies to the agreement for payment of that lump sum as if it were an agreement to commute the liability to pay that compensation to a lump sum. Payment of the lump sum removes any liability to which the agreement of the worker relates.”
“87H Registration of commutation agreements
(1)     A party to a commutation agreement may apply to the President for registration of the agreement by the President.
Note.
Section 87F(6) provides that a commutation agreement is of no effect unless and until it is registered.
…
(7)     This section has effect despite s 234 of the 1998 Act (no contracting out).
…”
“87I   Payment
(1)     If a liability in respect of compensation is only partially commuted under this Division, the balance of the compensation continues to be payable under and subject to this Act.
…”
“87K Commutation payment taken to be payment of compensation
Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this Division or section 51, or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act), is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.”

THE MEMBER’S REASONS

The Member identified the matters in dispute as:
(a)    whether liability to pay the compensation claimed has been commuted to a lump sum by operation of the commutation agreement;
(b)    whether the domestic assistance claimed was reasonably necessary as a result of injury pursuant to s 60AA(1) of the 1987 Act;
(c)    whether, at the relevant time, the injury resulted in a degree of permanent impairment of at least 15% pursuant to s 60AA(1)(c) of the 1987 Act, and
(d)    whether the person providing the assistance had lost income or forgone employment as a result of providing the assistance pursuant to s 60AA(3) of the 1987 Act.
The Member listed the evidentiary material before her and advised that she had considered those documents when making her determination. She noted that the parties had made submissions in relation to all of the issues but said that she proposed to firstly determine the issue of whether liability to pay the claimed compensation was commuted to a lump sum by operation of the commutation agreement. The Member summarised the submissions made by the parties in respect of that issue.
The Member reviewed various parts of the 1987 Act, noting that s 59 provided that “medical or related treatment” included domestic assistance services and that by operation of s 60AA, if it was reasonably necessary that domestic assistance be provided to an injured worker because of the worker’s injury, the employer was liable for those costs. The Member noted that Division 9 of Part 3 of the 1987 Act provided for the commutation of the liability to pay compensation in certain circumstances and depending upon certain pre-conditions being met (ss 87E and 87EA). The Member reproduced s 87F, which listed those circumstances and pre-conditions. She also reproduced s 87I, which allowed for the employer’s liability to be partially commuted and s 87K, which provided that where liability for weekly payments have been partly or wholly commuted, the payment of the lump sum is taken to be payment of the liability to pay the compensation concerned.
The Member set out the commutation scheme previously provided for in s 51 of the 1987 Act, which was repealed pursuant to the Workers Compensation Legislation Amendment Act 2001 No 61. She observed that s 51 required that there was to be a determination of the commutation agreement by the Compensation Court, which was removed from the legislation by the amending Act, but otherwise the language used in Division 9 of Part 3 of the 1987 Act was mainly derived from the previous s 51 and its predecessor, s 15 of the Workers’ Compensation Act 1926.

The Member quoted from the observations of Neilson CCJ in Bradshaw v Trazmet[4] in relation to the legislative history and the concept of the commutation of the employer’s liability. The Member observed that the previous legislation was primarily concerned with the commutation of liability for weekly payments of compensation but that the former s 51 of the 1987 Act (as amended) gave effect to “a practice that had arisen between parties of agreeing that commutation of a liability to pay weekly compensation to a lump sum also removed liability to pay other forms of compensation.”[5] She further observed that the present scheme expressly provided for a commutation of both the liability for weekly payments and the liability for compensation payments in respect of medical, hospital and rehabilitation expenses within Division 3 of Part 3 (ss 59 to 64A) of the 1987 Act.
[4] [2002] NSWCC 1 (Bradshaw), [6]–[8].
[5] Yandell v SAE Institute Pty Limited [2024] NSWPIC 392 (reasons), [64].
The Member referred to the submissions made which she considered essentially revolved around the meaning of s 87K, and whether the omission of any reference in that section to compensation payable under Division 3 meant that, despite there being a commutation in place, the entitlement to compensation pursuant to Division 3 remained. The Member considered that that submission failed to take into account the effect of the commutation of liability provided for in the legislative scheme. The Member said that where liability for compensation pursuant to Division 3 had been commuted to a lump sum, the liability had been removed.
The Member considered that the absence in s 87K of an explicit reference to compensation payable under Division 3 could be explained by the historical context. She expressed the view that s 87K:
“simply provides clarification in relation to the effect of a commutation or redemption of liability to pay weekly compensation under the current scheme or its predecessor. The absence of any equivalent ‘clarifying’ provision in respect of Division 3, does not render a commutation agreement entered into and registered in accordance with Division 9 ineffective.”[6]
[6] Reasons, [68].
The Member said that it was necessary, however, to consider this particular commutation agreement in order to determine what liability had been commuted in the agreement and remarked that, if any liability had not been commuted, then that liability would continue. She noted that the agreement was signed by the appellant, recorded a date of injury of 31 May 2018 and the lump sum commutation figure to be paid was $750,000. She observed that the agreement said that the amount would be paid to the appellant in order to commute:
“… the employer’s full liability for compensation (including weekly benefits, medical expenses and lump sum compensation) under the Workers Compensation Act 1987 in relation to the injury referred to in Part 2 of this form.”[7]
[7] The commutation agreement, Part 3, quoted by the Member at [70] of her reasons.
The Member referred to the agreement having specifically provided for the option to partially commute liability, in accordance with s 87I, but that box indicating that only partial liability was to be commuted was not ticked. The Member considered that it would have been open for the parties to stipulate that only future liability was to be commuted, or that any past entitlement to compensation pursuant to s 60AA was not included, but no such stipulation was made.
The Member said that it was relevant that the information in the form included that there was no dispute in relation to liability to pay compensation under the workers compensation legislation. The Member considered that that information suggested that the appellant had accepted the respondent’s determinations encompassed in the various dispute notices issued pursuant to s 78 of the 1998 Act.
The Member noted that the appellant’s argument was that, despite the express terms of the agreement, only the respondent’s future liability to pay compensation pursuant to s 60AA had been commuted. She further noted that the appellant relied upon the written advice provided by a legal practitioner to the appellant that the agreement removed the respondent’s liability to pay future entitlements to weekly compensation and medical, hospital and rehabilitation costs. The Member referred to the appellant’s reliance on the State Insurance Regulatory Authority (SIRA) Guidelines. She quoted the Guidelines as follows:
“A commutation is where you (the worker) and insurer agree to a single lump sum payment. This payment removes the insurer’s liability to pay future weekly payments and/or medical, hospital and rehabilitation expenses for the injury.
A commutation agreement must be registered with the Personal Injury Commission.
Once your commutation agreement is registered with the Personal Injury Commission, you will no longer be entitled to compensation for the benefit(s) referred to in the agreement.”[8]
[8] Reasons, [76].
The Member observed, however, that in her view:
“… the terms of the commutation agreement that was registered in this case are plain. The parties agreed that the respondent’s ‘full’ liability to pay compensation under the 1987 Act in respect of the psychological injury on 31 May 2018 should be commuted to a lump sum. This was permitted by the statutory regime. The preconditions to the commutation agreement appear from the materials before the Commission to have been satisfied. The agreement was registered by the Commission. The lump sum has been paid. It has not been suggested that there was any deficiency in the form or execution of the commutation agreement.”[9]
[9] Reasons, [77].
The Member determined that there was no ambiguity in the agreement. She considered that she did not require assistance from the written legal advice or the SIRA Guidelines in relation to interpreting the terms of the agreement or legislative provisions upon which it was based. She said that, in any event, she did not accept that either of those documents supported the view that only future entitlements could be commuted. She reasoned that the reference in those documents to “future liabilities” was a reflection of the fact that past liabilities would usually have been resolved prior to entering into such an agreement. She added that both documents clearly stated that when the commutation agreement was registered, there would no longer be any entitlement in respect of the benefits referred to in the agreement.
The Member observed that there was nothing in the agreement or in the statutory scheme that would suggest that only future liabilities could or would be commuted to a lump sum.
The Member noted the appellant’s submissions relevant to the Police Regulation (Superannuation) Act 1906 and the decision in State ofNew South Wales v Seedsman,[10] and the appellant’s submissions in relation to ss 151A and 151Z of the 1987 Act. She concluded that the current proceedings could be distinguished on the basis that they involve different circumstances. The Member added that she did not accept that her approach would leave ss 151A and 151Z of the 1987 Act with no work to do.
[10] [2000] NSWCA 119 (Seedsman).
The Member referred to the assertion made by the appellant that the appellant had a different understanding of the agreement. She considered that the appellant’s recourse in relation to the advice may potentially be a matter for a different forum.
The Member concluded that, for all of the above reasons, the respondent’s liability (if any) pursuant to s 60AA of the 1987 Act for the period from 31 May 2018 to 15 November 2020 was extinguished by the commutation of those entitlements into a lump sum, which had been paid on 10 April 2024. She observed that, in those circumstances, it was not necessary to determine the remaining issues. She entered an award in favour of the respondent.
The Certificate of Determination issued on 23 July 2024 records:
“The Commission determines:
1. Award for the respondent.”

GROUNDS OF APPEAL

The appellant brings two grounds of appeal as follows:
(a) Ground One: The Member erred in finding that the commutation extinguished the right to claim compensation for medical and related expenses, and
(b) Ground Two: The Member erred in finding that the commutation extinguished both past and future rights in relation to medical and related expenses, where on a proper construction, only future rights were extinguished.

SUBMISSIONS

As to Ground One

The appellant’s submissions

The appellant asserts that the 1987 Act is to be regarded as a beneficial statute which must be construed beneficially and that some aspects of the provisions relevant to commutations could be regarded as ambiguous. She submits that the common law concept of restitution and any notion of fairness do not apply to the workers compensation legislation and do not assist in interpreting the 1987 Act. The appellant says that the benefits that are appropriate for a worker to receive is a matter for Parliament. The appellant refers to the decision in Seedsman, which she says is an example of a statutory scheme in which the outcome exceeded “true restitution” (in relation to the Police Regulation (Superannuation) Act 1906).
The appellant refers to the commutation agreement which was the subject of an application for registration made on 14 February 2024, and which was registered on 26 March 2024. The appellant further refers to the respondent’s notice declining liability on the basis that the appellant’s entitlements had been commuted and on the basis that there was insufficient evidence to entitle the appellant to payments for gratuitous domestic assistance. The appellant submits that the only form of compensation sought in these proceedings was for domestic assistance for the period from 31 May 2018 to 11 November 2020, which pre-dated the registration of the commutation agreement and was therefore a claim solely for past entitlements.
The appellant points to the notations in the agreement that the pre-conditions set out in s 87AE were satisfied, including that the appellant had been given legal and financial advice.
The appellant refers to s 87K, which she describes as the “main commutation section”,[11] and reproduces the section with emphases under various parts of the section. The appellant says that the “lump sum” referred to must be the lump sum commutation payment, which the appellant submits:
“On the face of it, it is a conversion of an ongoing right to weekly compensation to a capital sum in lieu thereof, satisfying what would otherwise by [sic] the liability of an employer to pay weekly benefits. On its face it is limited to weekly benefits and there is no basis to depart from an ex facie construction of the section. The word ‘concerned’ is necessarily of narrower meaning than ‘compensation in general’ or ‘compensation under the Act’ with the effect that the compensation concerned here is weekly compensation only.”[12]
[11] Appellant’s submissions, [25].
[12] Appellant’s submissions, [26].
The appellant submits however that s 87EAA excludes compensation for domestic assistance from a commutation in catastrophic cases, so that it can be implied that workers in non-catastrophic cases can commute those entitlements. The appellant says that if it is accepted that entitlements to domestic assistance can be commuted in non-catastrophic cases, then “the question becomes what remains available for subsequent claims for medical benefits.”[13]
[13] Appellant’s submissions, [27].
The appellant points to s 87I, which she says allows for commutations of partial liability and for the balance of the excluded compensation to continue to be payable. The appellant submits that in accordance with s 87E it is certainly possible to commute both weekly payments and medical and related compensation, which would include domestic assistance. The appellant suggests that there may be a lacuna in the legislation in that s 87K allows for commutation of weekly payments but there is no equivalent provision for medical treatment or domestic assistance. The appellant submits that it is a matter for Parliament to remedy that situation, if a remedy is called for. The appellant submits that:
“there is a clear legal consequence for taking a lump sum for weekly benefits, namely that the lump sum replaces the liability of the respondent to pay those benefits, but the legislation does not expressly or by necessary implication provide that payment of a commutation for medical expenses has the same effect. If this be open to debate, then it means the legislation is ambiguous, which brings into play the beneficial legislation concept of legislative interpretation with the result the appellant must prevail. The other approach is simply to say the legislation is clear and has no provision which eliminates the rights in the event of commutation.”[14]
[14] Appellant’s submissions, [30].
The appellant asserts that Parliament is “alive” to “double dipping” and has introduced mechanisms into the 1987 Act to prevent such occurrence. The appellant gives as examples s 151A of the 1987 Act, in which economic loss payments may be recovered from the employer but the employer receives a credit for the weekly compensation benefits paid, and s 151Z of the 1987 Act, which requires that all compensation must be repaid if common law damages are recovered from a non-employer. The appellant submits that there is no equivalent provision in the 1987 Act that exists in respect of the commutation provisions, so that Parliament must not have considered the entitlement to claim ongoing compensation was impermissible “double dipping.”
The appellant asserts that, even if it was correct to conclude that a commutation of medical or domestic assistance could be merged with the entitlement to a right to a lump sum, then it is necessary to consider the construction of the agreement itself.
The appellant refers to the box in the agreement in Part 3 in which the box crossed indicated that the agreement was that the commutation was to be of “the employer’s full liability for compensation (including weekly benefits, medical expenses and lump sum compensation)” under the 1987 Act. The appellant submits that the meaning of the expression “full liability” is ambiguous. The appellant says that, although s 234 of the 1998 Act imposes a general prohibition on contracting out of the legislation, a commutation is an exception. The appellant submits that a statutory contract such as a commutation in relation to workers compensation benefits must be interpreted “contra proferentem” (against the draftsman). The appellant says that, therefore, “the ‘full liability’ must mean the residual liability post-commutation, having regard to the absence of an applicable double dipping provision in this instance.”

The respondent’s submissions

The respondent says that while the 1987 Act was historically considered to be beneficial legislation there is appellate authority (ADCO Constructions Pty Ltd v Goudappel[15] and Cram Fluid Power Pty Ltd v Green[16]) to say that where the legislature removes entitlements, it is to be considered non-beneficial and not to be interpreted favourably to the worker. The respondent asserts that on a plain reading of ss 87E to 87K of the 1987 Act, unless the commutation agreement is a partial commutation, then all entitlements are included in the agreement, which is why there is a specific provision allowing commutation of the worker’s full rights.
[15] [2014] HCA 18 (Goudappel), [29].
[16] [2015] NSWCA 250 (Cram Fluid), [132].
The respondent submits that, as noted by the Member and conceded by the appellant, there is no authority to support the appellant’s argument so that the issue remains one of statutory interpretation. The respondent cites NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd[17] as authority to say that the principles of statutory interpretation are settled, and a court or tribunal must give effect to the legislation by commencing with the text itself.
[17] [2016] NSWWCCPD 54, [46]–[51].
The respondent contends that the submissions made by the appellant at paragraphs [13]–[16] in respect of the benefits conferred under the 1987 Act not being in the character of “restitution” and the example cited by the appellant in relation to the decision of Seedsman do not advance the appellant’s case. The respondent maintains that the issue for the Member to decide was whether the appellant’s entitlements, including medical expenses, were extinguished by the commutation agreement. The respondent asserts that, on a reading of the statute as a whole the Member was correct. The respondent says that the appellant is seeking to “pull apart a provision and select one meaning, divorced from the context and then reassemble the provision.”[18]
[18] Respondent’s submissions, [6].
The respondent refers to the commutation agreement, the legal advice provided to the appellant and the Member’s decision. The respondent says that the appellant was provided with legal advice that the commutation payment was a full and final settlement and the commutation agreement expressed that the agreement commuted the respondent’s full liability to pay compensation in respect of her injury. The respondent contends that those are factual matters that are not in dispute.
The respondent asserts that the appellant’s claim to now seek compensation for past s 60 expenses is in breach of the “full” commutation agreement. The respondent refers to the appellant’s submission that the agreement was a contract and submits that the appellant’s attempt to resile from the contract by denying that the past expenses were included in the purchase of her entitlements is a clear breach of the terms of the contract. The respondent contends that the appellant should not be allowed to simultaneously approbate and reprobate in circumstances where she agreed to a “full” commutation. The respondent asserts that there is no ambiguity in the commutation agreement and the word “full” is not ambiguous.
The respondent contends that there is no lacuna in the legislation. The respondent says that the Member was correct to pay regard to the former s 51 of the 1987 Act and to consider the observations made by Neilson CCJ in Bradshaw in circumstances where the legislative provisions dealing with commutations were similar. The respondent further asserts that the Member was correct to conclude that the commutation purchased the respondent’s liability to pay weekly payments and medical expenses pursuant to s 60, and was correct to conclude that:
“s 87K simply provides clarification in relation to the effect of a commutation or redemption of liability to pay weekly compensation under the current scheme or its predecessor.”[19]
[19] Reasons, [68].
The respondent asserts also that the Member was correct to query what it was that the parties agreed had been commuted. The respondent refers to the parties having entered into an agreement that provided for the respondent’s full liability to be commuted, including any treatment expenses, and points out that provision in the agreement was available to only partially redeem the appellant’s compensation, but that option was not adopted. The respondent maintains that there was no ambiguity in the agreement that the respondent’s full liability to pay compensation, including past s 60 expenses, was commuted.
The respondent refers to the Police Regulation (Superannuation) Act 1906 and describes it as a distinct scheme that provided both statutory and common law entitlements and thus could not assist in the interpretation of the commutation provisions contained in the 1987 Act. The respondent further refers to the appellant’s submissions in respect of ss 151A(1) and 151Z(1)(b) of the 1987 Act and submits that those sections involve concurrent statutory compensation and common law remedies, whereas the provisions relating to commutations only involve statutory benefits. The respondent asserts that the Member was correct to distinguish the Police Regulation (Superannuation) Act 1906 and ss 151A(1) and 151Z(1)(b) of the 1987 Act.

The respondent submits that the appellant has failed to provide submissions as to a proper basis to succeed under this ground of appeal and the appeal should be dismissed.

The appellant’s submissions in reply

The appellant concedes that, in accordance with Goudappel and Cram Fluid, there is no issue that not all sections of the 1987 Act are beneficial in nature in circumstances where Parliament has removed an entitlement to compensation. The appellant says, however, that the subject matter in this appeal is the conferral of a right and the sections of the 1987 Act relevant to that issue are patently more beneficial than many of the provisions of the 1987 Act, other than those considered in Goudappel and Cram Fluid.
The appellant contends there is no point of distinction between this case and the Police Regulation (Superannuation) Act 1906 or between ss 151A(1) and 151Z of the 1987 Act and this case, where this case involves an underlying statutory entitlement to compensation for medical expenses with an additional right to enter into a commutation agreement. The appellant submits that the underlying right identified in the Police Regulation (Superannuation) Act 1906 arises under common law and the additional overlying right is created by statute. The appellant submits that:
“when parliament created the additional right, it did not take away the previous right, with the effect that both persist.”[20]
[20] Appellant’s submissions in reply, [3].
The appellant asserts that, contrary to the respondent’s submission, she does not seek to divorce the provisions from their context and says that she considers the context to be important. The appellant submits that the context provides various examples of sections that create double entitlements and put in place a system whereby the initial entitlement is to be reimbursed, thereby avoiding double compensation.
The appellant refers to the respondent’s submission that there is no ambiguity in the meaning of “full” and submits that the word “full” must mean the full entitlement to commute and not the full entitlement to compensation generally.
The appellant disputes that the Member was correct in determining that s 87K simply has the function of “clarification.” The appellant contends that the section is not an “interpretation provision.” The appellant adds that whatever the parties intended cannot have resulted in impermissibly contracting out of the Act, even though the commutation is a permissible method of contracting out to the extent allowed. The appellant says that the extent to which the statute allows a contracting out of the legislation is the issue in this case.

As to Ground Two

The appellant’s submissions

The appellant advises that Ground Two is brought in the alternative to Ground One.
The appellant submits that SIRA’s interpretation of the legislation is not determinative but is an example of “learned commentary.” The appellant says that it has the effect of saying that only future rights can be given up by reasons of a commutation. The appellant reproduces an extract from the SIRA website which records:
“A commutation is where you (the worker) and insurer agree to a single lump sum payment. This payment removes the insurer’s liability to pay future weekly payments and/or medical, hospital and rehabilitation expenses for the injury.”[21]
[21] Appellant’s submissions, [36].
The appellant remarks that it is unfortunate that the respondent in this case, who is regulated by SIRA, has taken a different view.

The respondent’s submissions

The respondent asserts that no error of law is established, and this ground of appeal should be dismissed. The respondent submits that the commentary on SIRA’s website does not have the effect of subordinate or delegated legislation and that reliance on that commentary is misplaced. The respondent says that, in any event, it is plain that when ss 87E to 87K are considered as a whole, “there is a purchase in full of all entitlements to compensation including past and future rights to medical and related expenses.”[22]
[22] Respondent’s submissions, [15].
The respondent submits that this ground of appeal should be dismissed.

The appellant’s submissions in reply

The appellant submits that it is not relevant that the commentary on the SIRA website is not delegated legislation. She contends that the commentary is correct and is a “helpful reflection of that correct analysis.”[23]
[23] Appellant’s submissions in reply, [7].
The appellant concedes that the Act must be read as a whole, however asserts that if the correct approach to legislative interpretation is taken, the conclusion reached would be the opposite to that put forward by the respondent. The appellant asserts that there is no “double dipping” provision in respect of the commutation provisions so that the parliamentary intention must have been to produce a different result than in circumstances such as s 151A of the 1987 Act, which prevents “double dipping.”

THE RELIEF SOUGHT

The appellant submits that if either ground of appeal succeeds the matter should be remitted to a non-presidential member for determination because the remaining issues are yet to be determined. The appellant alternatively submits that if the matter is to be fully determined by a Presidential member, then she seeks to rely upon her submissions already made to the Member below, including her oral submissions in relation to “double dipping”.
The respondent makes no submissions as to the relief sought.

CONSIDERATION

Ground One: The Member erred in finding that the commutation extinguished the right to claim compensation for medical and related expenses

The appellant’s submissions in respect of the concept of restitution, “double dipping” and fairness do not assist her case. Nor do the submissions as to the operation of ss 151A and 151Z of the 1987 Act or the Police Regulation (Superannuation) Act 1906). None of those concepts or provisions have any relevance to the statutory provisions that apply to the resolution of this dispute. In this case, the statutory framework is that set out above, namely s 60AA and ss 87D to 87K of the 1987 Act. As the Member correctly observed, her task was to determine whether the respondent’s liability for the appellant’s compensation under s 60AA of the 1987 Act for past gratuitous domestic assistance had been commuted in the agreement reached between the parties.
The Member reviewed the history of the legislative provisions and the observations made by Neilson CCJ in Bradshaw in respect of the former s 51 of the 1987 Act, which provided that a commutation primarily removed liability for weekly payments but also made provision for the commutation by agreement of the liability for treatment expenses and lump sum compensation. In her reasons, the Member correctly identified that the current legislation specifically provided for the commutation of the liability for weekly payments and compensation for medical, hospital and rehabilitation expenses (s 87E of the 1987 Act, reproduced above).[24]
[24] Reasons, [65].
The appellant suggests that s 87K may create a lacuna in the legislation in that it allows for a commutation of weekly benefits but there is no similar provision in respect of medical treatment or domestic assistance. The submission is rejected. There is clearly provision in s 87E for medical and hospital treatment to be included in a commutation of liability. The Member explained the absence of reference in s 87K to compensation in the form of treatment expenses. She considered that it was a “clarifying” provision “in relation to the effect of a commutation or redemption of liability to pay weekly payments under the current scheme or its predecessor.”[25] The Member added that the absence of any such provision in relation to treatment expenses did not make a registered commutation agreement that includes treatment expenses ineffective. The Member’s conclusion in that regard was supported by the relevant provisions, when considered together and in context.
[25] Reasons, [68].
The appellant submits that there is ambiguity in the provisions relevant to the commutation of liability for a lump sum. The appellant asserts that “the lump sum replaces the liability of the respondent to pay [weekly payments], but the legislation does not expressly or by necessary implication provide that payment of a commutation for medical expenses has the same effect.”[26] The assertion cannot be accepted. Section 87E clearly provides that liability for both weekly payments and compensation for medical, hospital and rehabilitation expenses may be commuted to a lump sum. It follows that the appellant’s submission that there is a lacuna, or an ambiguity in the legislation cannot be accepted.
[26] Appellant’s submissions, [30].
I accept the respondent’s submission that the appellant is seeking to “pull apart a provision and select one meaning, divorced from the context and then reassemble the provision.”[27]
[27] Respondent’s submissions, [6].
The appellant submits that the expression ‘full liability’ referred to in Part 3 of the commutation agreement must mean the future liability and not liability that existed prior to the agreement. The Member concluded that the commutation agreement included full liability for all entitlements on the basis that:
(a) Part 3 of the commutation agreement expressly indicated that the appellant would receive $750,000 in order to commute “the employer’s full liability for compensation (including weekly benefits, medical expenses and lump sum compensation)” under the 1987 Act;
(b)    the box indicating that the agreement was only for partial liability to be commuted was not ticked;
(c)    the parties could have indicated that only future liability was to be commuted;
(d)    the parties could have indicated that the commutation agreement did not include past liability payable under s 60AA, and
(e)    because the application proceeded on the basis that there was no liability dispute between the parties, the appellant must have accepted the respondent’s determinations identified in the dispute notices issued pursuant to s 78 of the 1998 Act, which included the dispute about liability for gratuitous domestic assistance.
The appellant relied upon the written legal advice provided to the appellant that the agreement would buy out the appellant’s future entitlements, and the commentary in the SIRA Guidelines. Neither of those documents was probative evidence of what constituted the actual agreement between the parties in this case. The SIRA commentary was in broad, generalised form as was the legal advice. As the Member observed, if the appellant had misunderstood the legal advice, then perhaps that was a matter for another forum. Further, the Member was not required to adopt the SIRA commentary in circumstances where it did not constitute delegated legislation.
The appellant’s description of s 87K as the “main commutation section” has no foundation when considered in the context of the whole of the relevant statutory scheme, which expressly includes in s 87E a right to commute medical and related expenses. Nor is there a foundation for the assertion that, on its face, the commutation was limited to “a conversion of an ongoing right to weekly compensation to a capital sum”.[28] The commutation agreement expressly stated that the amount to be paid to the appellant was $750,000 to commute “the [respondent’s] full liability for compensation (including weekly benefits, medical expenses and lump sum compensation) under the [1987 Act]”.
[28] Appellant’s submissions, [26].
Nothing in the appellant’s submissions discloses error on the part of the Member in her rational and logical reasons (summarised by me at [73] above) or her conclusion reached that the commutation agreement included the provision of past gratuitous domestic assistance. The appellant has failed to establish error on the part of the Member either in law or in fact. This appeal ground fails.

Ground Two: The Member erred in finding that the commutation extinguished both past and future rights in relation to medical and related expenses, where on a proper construction, only future rights were extinguished

The sole submission made by the appellant in respect of this ground of appeal is reliant upon the commentary provided by SIRA on its website that a commutation agreement only removes the insurer’s liability to the extent of future entitlements.
The appellant concedes in submissions in reply that the commentary is not determinative of how the provisions relevant to commutations are to be construed.
The respondent submits that reliance on the SIRA website is misplaced, it is not delegated legislation and the commutation provisions make it clear that a commutation agreement is a full purchase of entitlements to past and future compensation.
The Member dealt with both the SIRA commentary, and the legal advice provided to the appellant as follows:
“I do not accept that either the legal advice or the SIRA Guidelines support the view that only future liabilities could be, or were in this case, commuted. The references to ‘future liabilities’ in both documents is, in my view, a reflection of the fact that usually any disputes as to past liabilities will have been resolved prior to a commutation agreement being entered into, or have not arisen at all. Both documents make clear that once a commutation agreement is registered there is no longer any entitlement to the benefits referred to in the agreement.
Nothing in either the plain terms of the commutation agreement registered in this case, or the statutory scheme suggests that only ‘future liabilities’ could be, or were in this case, commuted to a lump sum.”[29]
[29] Reasons, [79]–[80].
The appellant makes no material submission as to why that reasoning and the Member’s conclusion were erroneous. In the absence of any submissions pointing to error on the part of the Member, this ground of appeal fails.

CONCLUSION

In accordance with my reasons at [5] above, the name of the respondent in this appeal is amended wherever necessary to read “SAE Institute Pty Ltd.” The appellant has failed to identify error of law, or indeed of fact, in the Member’s determination. The appeal therefore fails and is dismissed.

DECISION

The name of the respondent to the appeal is amended wherever necessary to read “SAE Institute Pty Ltd.”
The Member’s Certificate of Determination dated 23 July 2024 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

2 May 2025