Felstead v WorkCover Corporation/Allianz Australia Workers Compensation

4

The issue that arises on the preliminary point argued before me, is whether an opinion formed by the Corporation pursuant to s 44(3)(b) that it is not fair that the spouse of the deceased worker who is not cohabitating with the deceased at the time of his death should receive a lump sum is subject to that scrutiny in the same way that other decisions made by a compensating authority concerning claims for compensation under the Act.

5

Christopher John Felstead ("the deceased") died in compensable circumstances for the purposes of the Act. His widow, Vicki Lavis ("the applicant") sought compensation pursuant to the Act on account of his death. In particular, she sought compensation pursuant to s 44(1)(b) which entitles a spouse to a substantial lump sum payment.

6

S 44(3) qualifies that entitlement by stipulating that a spouse is not entitled to that lump sum unless:-

(a) the spouse was cohabiting with the worker on the date of the worker's death; or

(b) although the spouse was not cohabiting with the worker on the date of the worker's death it is, in the opinion of the Corporation, fair that the spouse should receive a lump sum under that provision" (emphasis added).

7

The applicant contended that she was cohabiting with the deceased on the date of his death.

8

That claim went for trial and that contention was rejected. See Lavis and Pfeifer on behalf of Felstead (infant) v WorkCover/Allianz Australia (V & P De Visio Pty Ltd) [2001] SAWCT 120.

9

Thereafter, that applicant's solicitor corresponded with the Corporation's solicitor contending that the Corporation should form the opinion that it was fair that the applicant receive the lump sum that s 44(1)(b)(i) provides.

10

By letter dated 10 March 2005, the Corporation's agent advised the applicant that it did not form that opinion.

11

The applicant filed a notice of dispute seeking a review of the Corporation's decision.

12

The Corporation contends that its opinion is not a decision on a claim for compensation and would enliven the Tribunal's jurisdiction of review.

13

This is the preliminary point that is now before me.

14

Mr Hanus, counsel for the Corporation, put two alternative arguments in support of the Corporation's position.

15

The first was that the provision is focused towards the Corporation forming an opinion as opposed to making a decision. He said that the Corporation was not determining rights and liabilities - the applicant not having any rights, it having already been conclusively determined that she was not a cohabiting spouse at the time of the deceased's death. It followed from what he put, that the provision did no more than enable the Corporation to effectively make a gratuitous payment in circumstances where the applicant had no legal entitlements, if it was satisfied that it was fair to make that payment. Hence, it was said, that it was not a decision about a claim for compensation because the applicant had no right to compensation.

16

The second was that if it was a review of the decision, the scope of the review was not the decision at large, but rather, whether it was the decision that was open and the proper exercise of the discretion. It followed from what he put that the Tribunal's power to review was akin to those of an appellant court dealing with an appeal and the exercise of the discretion. That power is as declared by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499.

17

In the context of this case it would mean that it is not enough that the member of the Tribunal hearing the case would consider that, if he or she had been in the position of the Corporation a different outcome would have resulted. The Tribunal could only intervene if some error has been made in exercising the discretion.

18

Mr Hanus' submissions gain some support from the use of the expression "in the opinion of the Corporation".

19

It might be thought to be a curious expression that signifies some difference to the usual decision making process prescribed by s 53. Moreover, if the position is not one of the alternatives that Mr Hanus suggests it would mean that the expression has achieved no purpose because the provision would have had the same meaning if it read "although the spouse was not cohabiting with the worker on the date of the worker's death it is fair that the spouse should receive a lump sum under that provision".

20

But Parliament has used similar expressions elsewhere in the Act and these have not been found to render the decision immune from review or subject to a qualified review.

21

For example, in s 4 the term "spouse" is defined as including a person who has been cohabitating with the worker for a substantial portion of the prescribed period "and the Corporation considers that it is fair and reasonable that the person be regarded as the spouse of the worker..." (emphasis added). In Koehne v WorkCover/NRMA (Whyalla Airlines Pty Ltd) [2003] SAWCT 11 it was held that the Corporation's conclusion was a reviewable decision without qualification. See also Travers v Allianz Australia (KPMG Consulting Pty Ltd) [2005]SAWCT 65.

22

S 41 of the Act speaks of the Corporation forming an opinion that a worker's absence from Australia compromising the worker's rehabilitation as providing it with grounds to suspend or reduce a worker's weekly payments. On the reasoning underpinning the decision in Davidson there can be little doubt that such a decision is a reviewable decision without qualification.

23

There are compelling reasons why a compensating authority's decision to grant or refuse the relief that s 44(3)(b) enables it to make, would be independently reviewable. These reasons are collected and discussed in Davidson at pars 30-32. Had Parliament intended such a decision to be immune from review it is reasonable, in my opinion, to assume that it would have expressly said so.

24

Once it is accepted that that the decision is reviewable it must, in my opinion, follow that the decision is reviewable in the same way as any other reviewable decision under the Act. That is, the Tribunal determines for itself what decision should be made. This was expressly provided for by s 96 of the Act under the former dispute resolution regime (which was the dispute resolution regime when s 44(3)(b) first appeared in the Act). It has been held to be the case in respect of the present regime. See Hornhardt v WorkCover/HIH (NTP Pty Ltd) [2000] SAWCT 157 and WorkCover/Royal & Sun Alliance (AMS Engineering Pty Ltd) v Toohey [2001] SAWCT 53. Had Parliament intended for some other form of review to apply, it is again reasonable to assume that it would have expressly said so.

25

In my view the Corporation's preliminary point has not been made out. I would now like to hear from counsel as to the future conduct of this case.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.