Chetty v Queanbeyan-Palerang Regional Council

Status of the defendant

1. The parties also agreed that the defendant, it being a Council, is an emanation of the State of New South Wales. Their agreement about that is consistent with the decision of Weber SC DCJ in Stanley v Lachlan Shire Council [2023] NSWDC 262.
2. It follows that the defendant is in effect the State of New South Wales for the purposes of s.75 of the Commonwealth Constitution.

The legal context ~ the purpose and operation of s.26

1. The purpose and operation of s.26 and Division 3.2 of the Personal Injury Commission Act 2020 was explained by the Court of Appeal in Searle v McGregor [2022] NSWCA 213 (Kirk JA; Bell CJ and Ward P agreeing) ("Searle"). Some particular points I would emphasise, in most instances by quoting Kirk JA directly, are: 1. Section 26 represents the legislative response of the New South Wales Parliament to the decision of the High Court in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. (at [3]-[4]) 2. 'The principle established in that case was subsequently summarised by six members of the High Court in Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 in the following terms (at [1], citations omitted): "Burns v Corbett held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution. To ensure validity, a State law conferring State jurisdiction on a State tribunal must therefore be construed in accordance with applicable State interpretation legislation to exclude jurisdiction with respect to all such matters."' (at [12]) 1. 'State tribunals are not forbidden by the principle from taking steps or resolving issues which do not involve the exercise of judicial power, even if the dispute might otherwise be seen to fall within the scope of what would have been federal jurisdiction (that is, if judicial power were to be exercised).' (at 14]) 2. 'Since Burns v Corbett there has been a number of decisions of intermediate courts of appeal relating to whether particular issues could be determined by tribunals. Those decisions have turned on two key issues: whether or not the tribunals would be exercising judicial power in resolving the disputes in question; if so, whether the tribunals could be characterised as "courts" for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act.' (at [15]). 3. 'What PIC is precluded from doing is taking steps which involve the exercise of judicial power in matters which would fall within federal jurisdiction. It is not precluded from exercising powers which are not judicial in relation to issues arising in the course of dealing with such disputes, even if any ultimate resolution of (say) a claim for damages would involve the exercise of judicial power needing to be determined by a court.' (at [19]). 4. 'A dispute will be within federal jurisdiction when resolution of the claim or issue in question would involve the exercise of judicial power such that there is a justiciable controversy (see Citta Hobart at [2]), and the dispute is of a kind that falls within the nine types of dispute comprehended by ss 75-76 of the Constitution.' (at [22]) 5. Section 26 of the Personal Injury Commission Act 2020 'must be understood within the broader legislative tapestry of which it forms part' (at [25]). That tapestry includes the Personal Injury Commission Act 2020 itself, referred to by his Honour at [27]-[28]; the Motor Accident Injuries Act 2017 (the MAI Act), discussed at [29]-[38]; and the workers compensation scheme, discussed at [39]-[44]. 6. 'Sections 26 and 27 contemplate a two-step process. First, the claimant must seek the leave of the Court to make an application to the Court instead of to the President or Commission (but in circumstances where the application in question has already been made to the President or Commission). Section 26(3) grants the Court a discretion to grant that application for leave, subject to the Court being satisfied as to the three criteria set out in that provision. Secondly, if leave is granted, the Court will move to determine the application which is the subject of the leave in accordance with the terms of s 27.' (at [63]) 7. 'The second criterion for granting leave, in s 26(3)(b), provides that the District Court may only grant leave for a compensation matter application to be determined by it if satisfied that "the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction". As explained above, the issue will only involve an exercise of federal jurisdiction if resolution of the issue in question would involve an exercise of judicial power. It is possible that many (and conceivably all or nearly all) of the myriad decision-making roles played by decision-makers within PIC do not involve such an exercise. The second reading speech of the Minister, …. , made clear that the purpose of Div 3.2 was only to enable the District Court to determine applications that PIC cannot determine because they involve the exercise of federal jurisdiction.' (at [64]) 8. 'Neither under the MAI Act nor under the workers compensation scheme is there one simple application made to PIC to initiate a process to determine all issues arising from the injury founding the claim. There is no equivalent to the originating process filed in a court. Rather, PIC determines issues if needed as and when they arise between the parties. The parties may not need the assistance of PIC; they may need it only for a confined issue; or it may be that every step is disputatious, in which case there will be repeated applications. The statutory schemes carefully provide for the myriad types of issue that arise between the parties and how they are to be determined. There are different types of decision-makers or facilitators depending upon the nature of the issue.' (at 66]) 9. 'In this statutory context, the reference in s 26(3)(a) to "an application" first being made to the President or Commission naturally refers to some application relating to a specific dispute or issue.' (at [67]) 10. 'Lest it be thought that significance should be attributed to the word "matter" where s 26(1) refers to "a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application)", it is necessary to note something more of the statutory context. The word "matter" of course has constitutional significance. However, the word "matter" is used in the MAI Act to identify particular issues for determination, which fall into the categories of "merit review matters", "medical assessment matters" and "miscellaneous claims assessment matters": MAI Act, Sch 2. The word is also regularly used in the workers compensation scheme to identify particular issues. For example, s 250(1) of the 1998 Act provides that the term "existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim", where "existing claim" is defined to mean "a claim for compensation that is made before the commencement of this section" or a related claim. Thus the definition envisages that various matters may arise in respect of any particular claim. The language of s 26(1) itself echoes this approach: it talks of a matter concerning a compensation claim. The section does not refer to the whole compensation claim.' (at [74]) 11. 'Construing s 26 of the PIC Act as relating to specific applications, rather than effecting a generic transfer, is consistent with the process of dealing with motor accident and workers compensation claims in an orderly manner and consistently with the procedures carefully set out in the statutory schemes. If and when some Burns v Corbett hurdle comes up in the course of that process as regards the determination of any particular issue, then an application may be made to the District Court for determination of that issue under s 26.' (at [98])
2. In light of his Honour's analysis, in my opinion it follows that in applying s.26 it is necessary to identify the particular issue that has arisen for determination in the workers compensation application made to the Commission, and then to consider whether determining that issue would involve an exercise of judicial power with respect to any matter of a description in s.75 or s.76 of the Commonwealth Constitution.
3. In the present case, the plaintiff's application to the Commission is potentially with respect to a matter of a description in s.75 of s.76 of the Constitution because it is potentially a matter between a State (New South Wales) and the resident of another State (South Australia): s.75(iv).
4. That leads to the questions: 1. What is the particular issue that has arisen for determination in the plaintiff's workers compensation application? 2. Would determining that issue involve an exercise of judicial power?

What is the particular issue that has arisen in the plaintiff's workers compensation application?

1. As I have mentioned, it is common ground that the only dispute between the parties that requires a determination in the plaintiff's workers compensation application to the Commission is whether the plaintiff's employment was the main contributing factor to her psychological injury.
2. The parties agree that this dispute arises out of the definition of "injury" in s.4(b) of the Workers Compensation Act, 1987.
3. The definition of "injury" is important because under s.9: "A worker who has received an injury … shall receive compensation from the worker's employer in accordance with this Act".
4. "Injury" is defined in s.4 It provides: 4 Definition of "injury" (cf former s 6 (1)) In this Act - injury - (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. (The bold emphasis is in the original.)
5. The parties agree that the psychological injury alleged by the plaintiff would fall within s.4(b)(i) of this definition if at all, such that it will be an injury for the purposes of the Act "only if the employment was the main contributing factor to contracting" it.
6. At the hearing before me, the parties agreed that whilst s.4(b)(i) raised a question of causation, it was a question of fact.
7. This is undoubtedly correct in light of the decision of the Court of Appeal in Secretary, Department of Education v Dawking [2024] NSWCA 4 ("Dawking"), given the very next day. In that case the Court specifically addressed the nature of the question under s.4(b)(i). Gleeson JA (Mitchelmore and Kirk JJA agreeing) said at [42]-[44]: [42] Causation of injury is in general a question of fact. With respect to the function of the Compensation Court at a time when an appeal to this Court lay on disputed issues of fact, as well as of law, it was said in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463G (Kirby P, Sheller and Powell JJA agreeing) that "… each case where causation is in issue in a workers' compensation claim, must be determined on its own facts". [43] Addressing the requirement in s 9A of the 1987 Act that the employment concerned be "a substantial contributing factor to the injury", Allsop P, Beazley and McColl JJA said in Badawi v Nexon Asia Pacific Pty Ltd (t/as Commander Australia Pty Ltd) (2009) 75 NSWLR 503; [2009] NSWCA 324 that the strength of the linkage between the employment and the injury is an evaluative matter involving questions of impression and degree, and "a finding as to relative contributing factors is a finding of fact": at [48(4), (5) and (6)]. [44] The requirement in s 4(b)(i) of the 1987 Act that applies to "disease" injuries was introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW). A finding that the employment is "the main contributing factor to the injury" involves a more stringent connection with the employment than the requirement that the employment concerned be "a substantial contributing factor", that applied to "disease" injuries prior to the 2012 amendments to the 1987 Act. However, like the requirement in s 9A of the 1987 Act, the requirement in s 4(b)(i) is an evaluative matter involving questions of impression and degree, and it is also a finding of fact.

Would determining that issue involve exercising judicial power?

1. At a general level, as Bathurst CJ explained in Attorney General for New South Wales v Gatsby [2018] NSWCA 254, (2018) 99 NSWLR 1, in many cases the answer to this question will not be obvious.
2. His Honour said at [121]-[123], Beazley P, McColl and Leeming JJA agreeing: [121] In an oft-cited passage in the judgment of Griffith CJ in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; [1909] HCA 36, judicial power is described in the following terms: "Apart from these considerations, I am of opinion that the words 'judicial power' as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." [122] It is clear that, in many cases, it will not be obvious whether the power being exercised by a tribunal is in the nature of judicial or administrative power. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373; [1970] HCA 8, Kitto J explained that it was not possible to frame an exhaustive definition of judicial power. His Honour made the following comments: "The question is whether the powers which Pt VI thus purports to confer are within the concept of the judicial power of the Commonwealth. Questions of this general description are often difficult to decide, for it has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a 'borderland in which judicial and administrative functions overlap' … , so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court." [123] However, after explaining that it was correct to say that many administrative powers must be performed with "judicial fairness and detachment", his Honour described what was generally involved in the exercise of judicial power in the following terms at 374-375: "Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified."
3. In Rizek v The State of Western Australia (2017) 262 CLR 1, Bell, Gageler, Keane, Nettle and Gordon JJ said at [52], omitting the citation: The essential character of judicial power, as has repeatedly been emphasised, stems from the unique and essential function that judicial power performs by quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion (70).
4. At a more particular level, insofar as the answer to the question in relation to the Personal Injury Commission and workers compensation claims is concerned, the question was considered by the NSW Court of Appeal in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202 ("Kanajenahalli").
5. In Kanajenahalli the only contested issue before the Member in the Commission was whether the worker's injury was caused by the reasonable conduct of the State with regard to performance appraisal and/or discipline (at [8]). This sole issue before the Commission arose in the context of s.11A(1) of the Workers Compensation Act 1987 (at [8]).
6. Potentially there was also another issue as to the whole person impairment of the worker, which would be determined by a medical assessor in the event that the State was liable (at [8]).
7. Section 11A(1), which the Court set out at [8], provided, and still provides: No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
8. By the time the appeal came on for hearing, the worker, the employer and the Attorney General for New South Wales (who had intervened) all maintained that in determining the issue under s.11A(1) the Commission was exercising administrative power, not judicial power (at [6]). The Court of Appeal agreed (at [8]).
9. In the circumstances, the Court (Leeming JA, Adamson JA and Basten AJA) gave what they described as short reasons (at [7]) for making orders by consent granting leave to appeal, allowing the appeal and declaring that "neither the decision of Member Burge nor the appeal to the Personal Injury Commission involves or has involved the exercise of judicial power within Ch III of the Constitution (Cth)" (at [14]).
10. The critical parts of the Court's reasons are in paragraphs [9], [12] and [13]. Their Honours said: [9] That is to say, the only issue was whether a statutory prohibition, framed on whether reasonable action taken by the employer was the whole or predominant cause of the injury prevented Mr Kanajenahalli's entitlement to statutory benefits. There is no close analogy to any issue arising at general law. The closest analogy would be a claim for negligence. But in order to obtain the statutory benefits he seeks, Mr Kanajenahalli does not have to prove duty, or breach, or causation, and not only does he not have to prove loss, but the statutory benefits he claims do not necessarily have a close relationship with any loss he has suffered. This is considerably removed from traditional aspects of judicial power; cf Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [125]-[126]. [12] What is determinative of this appeal is the nature of the particular dispute between the parties. More general considerations do not all point in the same direction. Thus (and without being exhaustive), although its decisions are final and binding, the Commission is empowered to "reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division" and "rescind, alter or amend any decision previously made or given by the Commission in that Division": Personal Injury Commission Act 2020 (NSW), ss 56 and 57. It is also true that the certificate of the Commission may be filed in a court and will thereafter operate as a judgment: Personal Injury Commission Act, s 59. [13] There is no occasion in determining the present appeal (which lacks any contradictor) to resolve any more general question as to the nature of the powers exercised by the Commission, or to seek to reconcile the statements in Orellana-Fuentes and Searle mentioned above (although it may be noted that the statement in Orellana-Fuentes was expressed in general terms, without regard to the particular powers being exercised in any particular case). It is sufficient to observe that in the case of the particular dispute involving these parties, where the only issue was that arising under s 11A, the Commission was exercising administrative power. The limitation in Burns v Corbett was not infringed.
11. When comparing the issue to be determined in the Commission in Kanajenahalli arising under s.11A of the Workers Compensation Act 1987 with the issue to be determined in the present case under s.4(b)(i), it can be seen that they are very similar in nature. Under s.11A(1), the requirement is that "the injury was wholly or predominantly caused by reasonable action taken .. by … the employer"; whilst under s.4(b)(i), the requirement is that "the employment was the main contributing factor to contracting the disease". The apparent similarity is even more acute when one recognises that, whilst it does not use the word "caused" as does s.11A(1), s.4(b)(i) raises a question of causation of injury, as the Court of Appeal explained in Dawking (see paragraph [27] above), and it is a question of fact.
12. Mr Stone SC and Ms Magee who appeared for the plaintiff submitted that a dispute under s.4(b) is comparable to, analogous with and indistinguishable from the determination in Kanajenahalli about s.11A and there was no real difference from the standpoint of considering whether resolving a dispute over one or the other involved an exercise of judicial or administrative power. I tend to agree. It is very difficult to see that there is a material difference.
13. Mr Beran who appeared for the defendant submitted that there was a material difference between the two provisions because s.11A was what he termed an exclusionary clause which does not require the worker to prove anything, whilst a worker must prove an injury under s.4, because when it is read with s.9 if there is no injury, then there is no compensation and no common law rights if there is negligence. He submitted that this meant that a determination under s.4 determined the parties' rights; so that subject to rights of appeal or review, as per the Personal Injury Compensation Act 2020, those rights are set out forever more. As such, Mr Beran submitted, determining those rights was an exercise of judicial power in the sense described by French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramey Food Processing Pty Ltd [2015] HC 28, (2015) 256 CLR 507 at [20].
14. As to the first submission, in my opinion it does not matter how the issue was raised, who raised it or who (if anyone) carries an onus of proof. The relevant question is whether determining the issue that has been raised by the parties involves an exercise of judicial power. Secondly, as to the submission based on the passage in Tomlinson, the context was the commencement of a discussion by their Honours about the place of issue estoppel in Australian law. In my opinion, the passage in Tomlinson, and Mr Beran's submission, focuses more on the consequences of the decision, which is only one aspect of what needs to be considered - as to which see Gatsby (paragraph [28] above), Rizek (paragraph [29] above) and Kanajenahalli at [12] (paragraph [37] above).
15. In their written submissions, both parties referred to more general considerations of the type adverted to in Kanajenahalli at [12]. Neither party submitted that any single consideration was determinative. In my opinion, as the Court commented in Kanajenahalli at [9] (paragraph [37] above), they do not all point in the same direction.
16. In my opinion, insofar as they concern the question of whether or not they involve an exercise of judicial power, there is no material difference between determining the issue raised by the parties under s.4(b)(i) of the Workers Compensation Act 1987 in this case and determining the issue raised under s.11A(1) in Kanajenahalli.
17. An added consideration is the carefully considered view expressed by Kirk JA (Bell CJ and Ward P agreeing) in Searle that it is possible that many (and conceivably all or nearly all) of the myriad decision-making roles played by decision-makers within the Commission do not involve an exercise of judicial power (paragraph [17(i)] above).
18. For all of those reasons, in my opinion, in determining the issue raised by the parties under s.4(b)(i), the Commission would not be exercising judicial power, but instead administrative power.
19. For the same reasons, I am satisfied that the Commission has jurisdiction to determine it.

Returning to s.26 of the Personal Injury Commission Act 2020

1. An application was first made to the Commission. A copy of the application was Exhibit A before me. It bears the matter number W5842/23.
2. I am satisfied that the Commission has jurisdiction to determine that application.
3. I propose therefore to remit the application under s.26(5) for determination by the Commission. Both parties accepted that it was appropriate for me to take that course in light of the conclusion I have reached.

Section 78B notices

1. I should record that I am satisfied, based on the assurances given to me by Mr Stone, Senior Counsel for the plaintiff, that notice was given under s.78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth and of the States and a reasonable time has elapsed since the giving of notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

Costs

1. The parties fought the case before me on the basis that the only real issue and question for me to decide was whether the determination by the Commission of the s.4(b) dispute would be an exercise of judicial power.
2. The plaintiff contended that it would not be an exercise of judicial power, and the defendant contended that it would.
3. In the result, I have found for the plaintiff.
4. The defendant accepted that in the event I came to that conclusion and ordered the application to be remitted to the Commission, then it would be appropriate to order the defendant to pay the plaintiff's costs.

Orders

1. For those reasons, I make the following orders: 1. Remit the plaintiff's application, being Personal Injury Commission Matter No. W5842/23, for determination by the Commission. 2. Summons otherwise dismissed. 3. Defendant to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2024