Hodgson JA said (at 307, [5]):
"[T]he close similarity between the wording of s 144(3) and that of s 145(4) strongly suggests that the Commission has a similar discretion under s 145(4). There is also a parallel between the Authority's power under s 143(2) to refuse a claim, and its power under s 145(2) to waive an employee's liability to reimburse it; and this also supports the view that in both cases the Commission is given a similar power. I think these considerations outweigh any suggestion to the contrary derived from s 140(3)."
25 Bryson JA accepted that s 145 did not confer a power on the Commission to waive the liability of an employer to reimburse the Fund for compensation payments made by the Authority. Hodgson JA was of a different view. All three judges, however, agreed that the Commission had a discretionary power under s 145(4) to refuse to order an employer to reimburse the Fund, even if the employer was otherwise liable under the Act to make reimbursement.
26 The application to the Acting Deputy President for reconsideration of his first decision was made on the ground that that decision was based on the premise that "the discretionary powers of the [Commission] were not sufficiently wide enough to make a determination to relieve the uninsured employer from liability". In the application for reconsideration the appellants implicitly requested the Acting Deputy President (in the light of Mackley) to exercise its broad discretionary power (according to Mackley) not to order them to reimburse the Fund. In so doing, they were, presumably, as Basten JA points out, seeking an order, in the exercise of the Commission's discretion, that their liability not be enforced.
27 The appellants' argument to this Court rested on [25], [27] and [28] of the Acting Deputy President's reasons. I shall quote these in full:
"[25] The matters upon which the Appellant relied in the original application may, I think, be summarised as follows:
· The business of the Appellant was situated in Victoria.
· The Appellant had appropriate workers compensation insurance under the laws of the State of Victoria.
· The Certificate of Survey in respect of the vessel concerned was obtained from the Marine Board of Victoria. The appellant believed that there was appropriate workers compensation insurance in place with respect to its employees.
· The Appellant would not reasonably regard itself as being a New South Wales employer.
…
[27] In relation to these matters there is no evidence that the amount sought is beyond the capacity of the employer to pay; the employer could not reasonably have been expected to regard itself as not being an employer at the relevant time; there is no evidence that the employer is bankrupt; and, there is no evidence that it would not be commercially feasible for the Authority to attempt to recover the amount. The connection of the employer with the state of Victoria and the workers compensation insurance in that state are, I think, irrelevant considerations.
[28] Having regard to all of these submissions as to why liability to reimburse the Respondent ought to be waived I am of opinion that such a determination ought not be made. I am mindful of the fact that the worker involved was a resident of New South Wales at the time of his injury, although there is no evidence as to where he entered into a contract of employment with the Appellant. The places of injury were in New South Wales. In my view the misunderstanding of the Appellant as to whether it was or was not a New South Wales employer is not sufficient to warrant making a determination pursuant to section 145(4) that the Appellant is not liable to reimburse any sum to the Respondent."
28 The appellants focused on the Acting Deputy President's statement that "[t]he connection of the employer with the State of Victoria and the workers compensation insurance in that State are, I think, irrelevant considerations". Mr Campbell SC, who appeared for the appellants, submitted that the connection of the appellants with the State of Victoria and their connection with the workers' compensation insurance in that State were relevant to whether the appellants could not reasonably have been expected to regard themselves as an employer in New South Wales under the 1987 Workers Compensation Act at the relevant time. He submitted that whether the appellants could not reasonably have been expected so to regard themselves was a relevant consideration in the exercise of the discretion that, according to Mackley, was conferred on the Commission. He submitted that the Acting Deputy President, by stating that the connection of the appellants with the State of Victoria and their connection with the workers' compensation insurance in that State were irrelevant considerations, erroneously excluded those matters from the exercise of that discretion.
29 The Acting Deputy President seems to have accepted that the business of the appellants was situated in Victoria, the appellants had appropriate workers' compensation insurance under the laws of Victoria, the certificate of survey in respect of the vessel concerned was obtained from the Marine Board of Victoria, and the appellants believed that there was appropriate workers' compensation insurance in place with respect to their employees. The arbitrator found that the appellants lived and ran their business in Victoria. On 9 March 2000, the appellants' Victorian insurers responded to Mr Crofton's claim for compensation and weekly payments were made by it to him. On these grounds, the appellants submitted that they reasonably did not regard themselves as being a "New South Wales employer".
30 In my opinion, the facts set out in [29] are relevant to whether the appellants "could not reasonably have been expected to regard [themselves] as an employer at the relevant time" (s 145(2)(b)). Those facts fall within the material that the Acting Deputy President regarded as irrelevant.
31 Mr G Parker, who appeared for the Authority, submitted that, despite the Acting Deputy President's use of the phrase "irrelevant considerations", he did take the facts set out in [29] into account. Mr Parker relied particularly on the Acting Deputy President's reference to the appellants' "misunderstanding" as to whether they were or were not a New South Wales employer.
32 In my opinion, the appellants' misunderstanding as to whether they were a New South Wales employer is not the same as the appellants' "connection" with the State of Victoria, the workers' compensation insurance they took out in that State, and the reach of that insurance. In my opinion, the language used by the Acting Deputy President indicates that he did not take the facts set out in [29] into account because he thought they were irrelevant.
33 On the basis that Mackley is correct as a matter of law, the matters in question were not irrelevant to whether the appellants could not reasonably have been expected to regard themselves as an employer at the relevant time.
34 Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 said (at 39):
"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision."
35 His Honour said further (at 45):
"It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made."
36 Mackley holds that, according to s 145, the matters listed in paragraphs (a) to (f) of s 145(2) are relevant considerations when exercising the s 145(4) discretion. It follows, in my opinion, that when evidence capable of establishing one or more of those matters is adduced and relied on, the decision-maker exercising a s 145(4) discretion is bound by the statute to take that evidence into account. On another view, a refusal to take such evidence into account is a constructive failure to exercise jurisdiction.
37 In my opinion, the material set out in [29] was relevant to the issue raised by s 145(2)(b) and had persuasive force. The appellants relied on it when submitting that the s 145(4) discretion should be exercised in their favour. Accordingly, applying the criteria set out in the passages quoted from Minister for Aboriginal Affairs v Peko-Wallsend Limited, the Acting Deputy President, by excluding the material set out in [29], committed an error of law. The legal error is either a failure to take into account relevant considerations or a constructive failure to exercise jurisdiction. In my opinion, the error justifies appellate intervention.
38 I would uphold the appeal. The appellants seek an order that the matter be remitted to the Commission for determination of their appeal from the decision of the Arbitrator. I propose that such an order be made, which requires that the decisions of the Acting Deputy President be set aside. I would order that the respondent pay the costs of the appeal and the costs of the application that the Acting Deputy President reconsider his first decision. The costs of the initial hearing before the Acting Deputy President should abide the outcome of the determination on remittal.
39 BASTEN JA: This appeal concerns a decision by the Workers Compensation Commission (NSW) ("the Commission") that the WorkCover Authority of New South Wales ("the Authority") was entitled to recover from the Appellants an amount paid by the Authority to Mr Michael Crofton, an employee of the Appellants, who suffered personal injury whilst working for the Appellants. (The Appellants traded as a business under the name "M & A Ballantyne", which will be referred to as "the employer".) The payments were made by the Authority under a scheme designed to protect a worker who suffered injury in circumstances where his or her employer was uninsured, or could not be identified. The appeal is limited to the identification and correction of error "in point of law": Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"), s 353(1).
Background
40 In December 1999-February 2000, Mr Crofton was employed as a deckhand on a fishing vessel "Episode" owned and operated by the Appellants. The Appellants may have then resided in South Pambula in New South Wales, but carried on their business from Lakes Entrance, in Victoria. For reasons of safety and convenience, the catch was frequently unloaded at a wharf at Eden, on the south coast of New South Wales. It was there that Mr Crofton suffered a disabling back injury, the first indications of which were identified in December 1999, after which there was a repetition on 6 February 2000, following which he ceased work.
41 The Appellants held workers compensation insurance in Victoria with MMI Workers' Compensation (Victoria) Ltd. On 9 March 2000 a claim was made and accepted by the insurer and weekly payments were made to Mr Crofton.
42 Despite having lodged a claim for compensation in Victoria, on 5 June 2001, Mr Crofton issued proceedings under ss 60, 66 and 67 of the Workers Compensation Act 1987 (NSW) for lump sum compensation, naming the Appellants and the Authority as respondents. On 9 April 2003 a consent award was made by Judge Armitage in the Compensation Court of New South Wales, together with orders requiring payment by "the respondent" of amounts totalling $35,000, together with costs. Further orders identified the Appellants as the "First Respondent" and the Authority as "the Second Respondent" and were in the following terms:
"1. That the First Respondent was not insured as required by Act at the time of the Applicant's injuries.
2. That the Second Respondent cause payment of the compensation and costs awarded against the first respondent to be made out of the WorkCover Authority Fund.
3. That the First Respondent re-imburse the WorkCover Authority such amount or amounts as may be paid out of such fund in respect of the compensation and costs awarded against the First Respondent in accordance with para 2 hereof and in respect of the costs of the WorkCover Authority.
4. That any application by the First Respondent for a waiver of the re-imbursement ordered in paragraph 3 hereof be made within a period of sixty (60) days from the date hereof."
43 The consent orders were signed on behalf of Mr Crofton, the Appellants and the Authority.
44 As explained by Arbitrator Wynyard in a subsequent determination dated 17 December 2003, the award of compensation by the Commission on 9 April 2003 led to the termination of payments by the Victorian insurer, pursuant to the Accident Compensation Act 1985 (Vic), s 85. This in turn led to a further application for weekly payments under the Workers Compensation Act in New South Wales, against both the Authority and Appellants. The Authority, but not the Appellants, took steps to resist the application, but on 4 March 2004 the Commission made a determination in favour of Mr Crofton and ordered the Authority to make weekly payments at a specified rate.
45 On 28 May 2003, within the period permitted by the consent orders of 9 April 2003, the Appellants did lodge with the Authority an application for waiver of their liability to reimburse the Authority. No response was received to that application. The power of the Authority to waive a liability is identified in the provision pursuant to which the Authority may serve on the employer a notice requiring reimbursement: see Workers Compensation Act, s 145(1) and (2). The initial liability having resulted from an order made by the Commission, pursuant to an application to which both the Appellants and the Authority were party, no such notice had then been issued. Whether such a notice were necessary was not a matter which arose in these proceedings, but some time later the Authority did serve a notice dated 26 August 2004, pursuant to s 145(1) requiring the Appellants to pay an amount of $88,523.25. It will be necessary to consider below the statutory scheme entitling the Appellants to challenge the liability asserted in the notice by seeking a determination from the Commission pursuant to s 145(3).
46 By application dated 21 October 2004, the Appellants sought such a determination from the Commission. The application identified its subject matter, by a cross in a relevant box, as an application for "Waiver of Reimbursement Ordered, Section 145 Dispute". The orders sought were identified as follows:
"1. A declaration that the employer was not insured as required by the Workers Compensation Act 1987 at the time of the applicant's [sic] injury.
2. Orders:
(1) That WorkCover NSW pay any compensation and costs awarded against the employer from the WorkCover Authority Fund (the Fund) established under s34 of the Workplace Injury Management and Workers Compensation Act 1998 .
(2) That the Second Respondent waive reimbursement of amounts paid and any amounts to be paid pursuant to matter no 57891/01 and related claims."
47 The matter came before an arbitrator, Ms Serventy, who handed down a determination of the Commission on 15 March 2005. Two issues were addressed by the arbitrator: the first related to an apparent failure of the Appellants to file their application within time; the second concerned the entitlement of the Appellants to rely upon s 145(3) and (4) to challenge the failure by the Authority to waive the liability to make reimbursement under s 145(2).
48 The issue of timing was resolved in favour of the Appellants and does not arise on this appeal. In relation to the question of waiver, the arbitrator was satisfied that decisions of both the Compensation Court and the Commission bound her to conclude that the discretion to waive liability was conferred on the Authority and could not be exercised afresh by the Commission pursuant to any attempt to invoke its powers under s 145(3) and (4). The application was therefore dismissed, the determination of the Commission being expressed as an "award for the respondent", without any order as to costs, presumably meaning that there was an enforceable determination in favour of the Authority permitting it to recover the amount stated in the notice.
49 The Appellants brought an appeal from that determination to the Commission constituted by Deputy President Candy, pursuant to s 352 of the 1998 Act. That appeal was determined by the Deputy President on 22 May 2006: Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94.
50 The principal issue before the Deputy President was whether the Commission had a power to review what was described as "a waiver application under s 145(2)" of the Workers Compensation Act. At that time, there was outstanding in this Court an appeal against a decision of Acting Deputy President Handley in the Commission, concluding that there was no such power: see Mackley v WorkCover Authority of New South Wales [2005] NSWWCCPD 32. The parties invited Deputy President Candy to stay the appeal before him, pending the decision of this Court in Mackley. He declined to do so and, on the basis of existing authority, held that the arbitrator had been correct in concluding that there was no power to review a refusal to waive a claim for reimbursement. Deputy President Candy also considered a submission that, even if there were no power to review the refusal or failure to grant a waiver application, nevertheless there was a "broad discretion" conferred on the Commission by s 145(4) which permitted the Commission to determine that the employer's liability of reimbursement was "nil". Deputy President Candy held at [37]:
"I do not consider that the Commission has any power to make a determination of liability which is other than that of the employers to the worker. In this case the employers on 9 April 2003 agreed to the worker's entitlement to lump sum compensation and also agreed to an order for reimbursement. The employers cannot now seek from the Commission a fresh determination of that liability."
51 In reaching that conclusion in his determination of 22 May 2006, the Deputy President relied in part on the decision of this Court in Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594 ("Raniere Nominees (No. 1)").
52 In his award of 22 May 2006, Deputy President Candy "confirmed" the decision of the arbitrator dated 15 March 2005. However, on 27 July 2006 this Court delivered judgment in WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305. In that case, the Commission had refused to make an order that the employer reimburse the Authority for payments made to an injured worker. An appeal by the Authority was unsuccessful, this Court concluding that the power conferred on the Commission under s 145(4) was wide enough to encompass such an order. This approach was inconsistent with that adopted by Deputy President Candy in his determination of 22 May 2006 and in consequence on 11 August 2006 the employer made an application to the Commission for reconsideration of its decision of 22 May 2006.
53 The matter was reconsidered by Deputy President Candy, a further decision being handed on 24 October 2006: Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94R. Having reconsidered the matter in the light of the decision of this Court in Mackley, he confirmed his earlier decision. It is from that decision of 24 October 2006 that the Appellants bring the present appeal.
Statutory scheme - uninsured employers
54 Before turning to the reasons for decision and the grounds upon which it is challenged, it is convenient to turn to the statutory provisions now contained in Part 4, Division 6 of the Workers Compensation Act, being ss 138-148A.
55 The operation of the provisions for reimbursement of the Authority under the Workers Compensation Act have been considered in three cases in this Court in recent years: see Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594 ("Raniere Nominees (No. 1)"); WorkCover Authority of New South Wales v Mackley (2006) 66 NSWLR 305 ("Mackley") and Raniere Nominees Pty Ltd v Daley [2006] NSWCA 235 ("Raniere Nominees (No. 2)"). It will be necessary to consider aspects of the judgments in these cases relevant to the present matter in due course. However, it is convenient to consider first the statutory scheme, in its terms.
56 The statutory history of the relevant provisions of the Workers Compensation Act is convoluted, but no reference was made to that history in the course of argument in the appeal and nothing was said to turn upon it. Nevertheless, it should be noted that the scheme for compensation of workers injured while employed by an uninsured employer, which was originally contained in Part 4 of the Workers Compensation Act was removed to the 1998 Act: see Workers Compensation Legislation Amendment Act 1998 ("the 1998 Amendment Act"), Schedule 1 [63]. That provision was to commence on 1 August 1998. However, the equivalent provisions in the 1998 Act, to be found in Chapter 5, Part 9, were not to commence until 1 October 1999. To avoid a lacuna, the commencement of Schedule 1 [63] of the 1998 Amendment Act was delayed until 1 October 1999, when the equivalent provisions in the 1998 Act were to commence: see Statute Law (Miscellaneous Provisions) Act (No. 2) 1998 (NSW), Schedule 1 [1.47]. However, before that occurred, a further complication was introduced by the Workers Compensation Legislation Amendment Act 1999 (NSW) ("the 1999 Amendment Act") which commenced on 1 September 1999. That Act made a number of amendments to the existing legislation including a further delay in the commencement of Schedule 1 [63] of the 1998 Amendment Act until 1 October 2000: see Schedules 1 [1] and 3 of the 1999 Amendment Act, inserting a definition of "private insurance start time" into the 1998 Act which, as it would appear, was to be 4pm on 1 October 2000. The 1998 Act was itself amended so that the commencement of relevant provisions in that Act was also identified by reference to the "private insurance start time": see 1999 Amendment Act, Schedule 1 [3] and [4].
57 The temporal contortions by which this transfer of the Scheme from one Act to the other was achieved were reversed by the repeal of Chapter 5 of the 1998 Act and reinstatement of the Scheme in the Workers Compensation Act, by the Workers Compensation Legislation Further Amendment Act 2001 (NSW), as from 1 January 2002.
58 The result of this historical diversion was that both at the time of the accident, and at the time at which the worker made his first claim under New South Wales law, the liability of the Authority was ascertained by reference to Chapter 5, Part 9 of the 1998 Act. Whether the rights of the parties were properly to be assessed in accordance with those provisions, or the equivalent provisions in the Workers Compensation Act would depend upon the operation of the various savings and transitional provisions which accompanied the 1998 and 1999 Amendment Acts. However, because nothing is said to turn upon these matters, those provisions will be put to one side.
59 One further historical matter should be identified for the sake of clarity: on 1 January 2004 the Compensation Court, which heard the first claim made in New South Wales by the worker was abolished and its jurisdiction was conferred on the Commission: see Compensation Court Repeal Act 2002 (NSW) and Compensation Court Repeal (Transitional) Regulation 2003.
60 It should also be noted that the relevant provisions of the Workers Compensation Act have since been amended by the Workers Compensation Amendment (Insurance Reform) Act 2003 (NSW), the relevant provisions of which commenced on 1 July 2007. Those amendments established a "nominal insurer" and changed the name of the Division to one dealing with "uninsured liabilities". The amendments are of no consequence for present purposes and the terms of the statutory provisions will be considered, as in force at the date of the issue of the relevant notice and the decisions of the Commission.
61 Section 139 of the Workers Compensation Act created a scheme called the "Uninsured Liability and Indemnity Scheme" which was to be administered by the Authority. Section 140 then provided:
" 140 Persons eligible to make claims
(1) A claim under the Scheme may be made as provided by this section by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if:
(a) the employer is uninsured, or
(b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.
(2) An employer is considered to be uninsured if the employer:
(a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer's liability under this Act in respect of the injured worker at the relevant time … ."
62 No question arose in the present case otherwise than in relation to an "uninsured" employer: there was no issue that the Appellants were the relevant "employer" of Mr Crofton. It is also clear that to be an uninsured employer, a person must have a liability under the Workers Compensation Act in respect of an injured worker and not have had an insurance policy with a "licensed insurer" of a kind made compulsory by s 155 of the Act. Failure to maintain such a policy is, by that section, made an offence.
63 Pursuant to s 156, the Authority is entitled to recover from an employer who fails to obtain or maintain a relevant policy of insurance "a sum equal to twice the amount of the premium that would have been payable for the issue of a policy of insurance to the employer in respect of that period or such lesser amount as to the Authority may agree to accept in any particular case": s 156(1).
64 Since 1 January 2006, the Act has contained provisions, which are noted below, which seek to define the relevant connection between employment and the State necessary to attract liability to pay compensation under the Workers Compensation Act. However, prior to that date, and thus relevantly for the purposes of the present proceedings, the principle of statutory construction as explained in Mynott v Barnard (1939) 62 CLR 68 applied. In that case, almost every possible connection bar the place of accident was with Victoria. Nevertheless, the Court unanimously applied the principle established in 1909 in Tomalin v S. Pearson & Son Ltd [1909] 2 KB 61, that the Act imposed liability upon the employer to pay compensation in respect of any injury suffered within the jurisdiction or "law area" of the statute in question. In Mynott even the fact that the worker died in Victoria did not engage the operation of the Victorian Act, the accident having occurred in New South Wales. As explained by Latham CJ at pp 73-74:
"As Fetcher Moulton LJ said in Tomalin v S. Pearson & Son Ltd , speaking of the corresponding provision in the English Act, 'it clearly cannot apply universally all over the world'. It would be unreasonable to read the section as applying to all employers, all workers and all accidents everywhere. Some territorial limitation must be introduced in a construction of the section. The court has been offered an embarrassing choice of possible limitations. Each of the following elements (or some combination of them) has been suggested as possibly relevant - the Victorian domicile or residence of one or both parties: the fact that the contract of employment was made in Victoria: the fact that the work under the contract was to be done in Victoria, in whole or in part: the fact that the accident happened in Victoria: the fact that the governing law of the contract of employment was the law of Victoria: and, on the basis of a number of American decisions, the fact that the 'status' of the parties as employer and worker arose under Victorian law, or that the relationship of employment in a particular case has a real and substantial connection with Victoria, or a more real and substantial connection with Victoria than with any other country, or the fact of the localisation in Victoria of the employer's enterprise."
65 Each of these possible factors, other than the place where the accident occurred, was dismissed as inappropriate or irrelevant, whether alone or in combination with others. From that time, until 1 January 2006, the workers compensation legislation in this State made no express provision which was inconsistent with that principle. Accordingly, the basic premise upon which the Workers Compensation Act operated (until 1 January 2006) was that it might apply to any person employing a worker who might undertake work in New South Wales or who might, in the course of his or her employment, including no doubt the journey to and from the workplace, pass through New South Wales or part thereof, in the event of an accident there.
66 It is common ground that the Appellants did not hold an insurance policy with a "licensed insurer" for the purposes of s 155(1). Accordingly, to the extent that the Appellants were employers with liabilities arising under the Workers Compensation Act, they were "uninsured" as defined in s 140(2).
67 By way of contrast, in 2006 the Workers Compensation Legislation Amendment Act 2002 (NSW) introduced a new concept of connection with the State. Pursuant to that Act there is now a defence provided by s 155(3A) which reads as follows:
"(3A) It is a defence to a prosecution for an offence under this section concerning an employer's liability in respect of a worker if the court is satisfied that at the time of the alleged offence:
(a) the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker's employment was not connected with this State, and
(b) the employer had workers compensation cover in respect of the worker's employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker's employment was connected under section 9AA."
68 Liability to pay compensation is now relevantly defined, as s 155 envisages, by s 9AA which relevantly reads as follows:
" 9AA Liability for compensation
(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) A worker's employment is connected with:
(a) the State in which the worker usually works in that employment, or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.
(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if:
(a) the worker is in this State when the injury happens, and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
…
(8) In this section:
ship means any kind of vessel used in navigation by water, however propelled or moved … ."
69 These provisions may, however, be put aside for present purposes. It was common ground that the relevant date at which to determine the operation of the Workers Compensation Act was the date of Mr Crofton's injury, which may conveniently be identified for present purposes as 6 February 2000. (Nothing turns on the prior injury in December 1999.)
70 The operative provisions of Part 4, Div 6 of the Workers Compensation Act commenced with s 140 which provided for a person to make a claim under the Scheme. Section 141 then provided for the making of claims under the Scheme. Section 143 dealt with their determination:
" 143 Determination of claim by Authority
(1) From the WorkCover Authority Fund the Authority may, in respect of a claim under the Scheme:
(a) pay compensation in accordance with this Act or work injury damages, with or without admission of liability, or
(b) make ex gratia payments.
(2) The Authority may refuse to satisfy a claim under the Scheme.
(3) If the Authority does not, wholly or in part, satisfy a claim under the Scheme, it shall, within 14 days of making the relevant decision, advise the claimant of its decision and the reasons for its decision."
71 Where, as occurred in the present case, the Authority refused initially to satisfy the claim, the claimant (in this case Mr Crofton) was entitled to "apply to the Commission for a determination of the claim": s 144(1). That section continued:
"(3) The Commission may hear and determine any such application and may make such orders in relation to the application as the Commission thinks fit."
72 An order of the Commission may specify an amount to be paid by the Authority and may also provide, pursuant to sub-s (5), "for the reimbursement of the WorkCover Authority Fund under section 145." Of critical concern in the present case, are the provisions relating to a claim by the Authority for reimbursement from the employer. Thus, s 145 of the Workers Compensation Act provides:
" 145 Employer or insurer to reimburse Authority
(1) The Authority may serve on a person who, in the opinion of the Authority, was:
(a) in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the WorkCover Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) The Authority may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the WorkCover Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that:
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Authority to attempt to recover the amount.
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned.
(4) The Commission may hear any such application and may:
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(5) In any proceedings under subsection (4) a certificate executed by the Authority and certifying that:
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matter stated in the certificate.
(6) The Authority may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act."
73 Subsection (7) was not inserted into s 145 until 1 January 2002, when s 362 was inserted in the 1998 Act: see Workers Compensation Legislation Amendment Act 2001 (NSW), Schedule 6.1 [73] and Schedule 4.2 [17]. Nevertheless, the provision was in place at the time that each of the orders of the Commission was made in the present proceedings.
74 Where the Authority refuses to satisfy a claim and the claimant makes an application for a determination by the Commission, pursuant to s 144, the claimant worker is required, in such an application, to "name the employer by whom the applicant alleges compensation is payable" as well as the Authority, as a respondent to the proceedings: s 144(2)(a). Where the claim is made under the Scheme because the employer cannot be identified, that requirement may be difficult to comply with; however, that difficulty does not arise where the employer is known but uninsured, as in the present case. Where the Commission makes orders in relation to the application under s 144, it may "provide for the reimbursement of the WorkCover Authority Fund under section 145": s 144(5). As explained above, when the first application was determined by the Commission on 9 April 2003, the Authority was required to pay Mr Crofton an amount of $35,000 and the employer was required to reimburse the Authority: at [42] above. The effect of the reimbursement order was impliedly stayed for a period to allow, pursuant to order 4, an application by the Appellants for waiver of the reimbursement liability.
75 The provisions of s 145 give rise to a number of questions, three of which are significant in the present case. The first concerns the scope of the entitlement conferred on the employers under sub-s 145(3) to make an application for a determination of their liability in respect of the payment made under the Scheme by the Authority, where the liability of the employer and the amount of compensation payable with respect to that liability have already been determined by the Commission pursuant to awards made under s 144, in relation to applications to which the employer was a party.
76 The second question is whether an application under sub-s (3) can include a review of a refusal or failure of the Authority to waive the liability of an employer under sub-s (2). As will be seen, there is authority in this Court for the proposition that no such review is available in the Commission, a conclusion which was accepted by the parties in the present proceedings. Thus, any relief available against a failure or refusal of the Authority to waive the liability of an employer could only be challenged in this Court, for example by seeking relief under s 69 of the Supreme Court Act 1970 (NSW).
77 The third question concerns the factors which may be taken into account by the Commission in making a determination in relation to the application and an award or order as to payment of compensation under the Act, pursuant to sub-s (4). The primary issue in the present appeal was whether Deputy Commissioner Candy had erred in point of law in applying the principles established by this Court in Mackley in relation to that discretionary decision.
78 Uninstructed by authority, one might derive the following propositions in relation to these questions, from the language, structure and context of s 145.