Herbert v Workers Compensation Commission

The application

1. The applicant lodged an External Appeal Form in this Tribunal on 8 July 2015.
2. The Grounds for Appeal were: 1. That the New South Wales Workers Compensation Commission has a statutory duty to adjudicate between the injured employee once the employee sustains an injury in the course of their employment in which compensation is payable under the statutory NSW Workers Compensation Acts of 1987 & 1998. 2. That the New South Wales Compensation Commission failed to give the correct weight to the injured employee's evidence without limitation to her submitted Neurologist Professor Paul Teychenne's Medico Legal Report, her treating doctor's report and "Precedent/Authorities Australian High Court Case Law". 3. That they misinterpreted and or used the wrong interpretation/words of the relevant NSW legislative Workers Compensation Acts and applied the wrong facts. 4. That the respondent did not give the Appellant an adequate opportunity to present her case.
3. The applicant claimed that the appeal was lodged within the time allowed under the relevant legislation. She indicated that she attached a copy of the decision she was appealing and that she was notified about the decision on 10 June 2015.
4. The "decision" attached to the application was an email to the applicant's representative from Kathryn Camp dated "jun 10". The email began: We refer to your correspondence below regarding the appeal sought to be filed in the Commission on 28 May 2015 against Senior Arbitrator Moore's determination dated 14 October 2014. On 4 June 2015 that appeal was rejected, due to non-compliance with the procedural requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 as set out in Practice Direction No 6.
5. The email explained the procedural requirements that had not been satisfied and noted that that initial appeal against Senior Arbitrator Moore's determination was filed in the Commission on 11 December 2014 and discontinued by consent on 25 March 2015. The applicant had preferred to proceed with a reconsideration application of Senior Arbitrator Moore's determination based on fresh or additional evidence which was discontinued on 30 April 2015.

The evidence

1. The evidence before the Tribunal was two bundles of documents filed by the respondent relating to the applicant's proceedings in the Workers Compensation Commission.

The submissions

1. The applicant and respondent filed written submissions. The applicant contended that pursuant to the Civil and Administrative Tribunal Act 2013 No. 2 (the NCAT Act) the Tribunal "has the authority to examine and determine fact; interpret and apply the law; make orders; and declare judgment".
2. The applicant contended that "the Delegate and Arbitrators of the NSW WCC" that have presided in her case thus far have: 1. Denied the Appellant procedural fairness; 2. misinterpreted the legislation; 3. applied the wrong provisions of the legislation; 4. did not give the correct weight to the appellant's medical evidence; 5. denied the appellant a "contested" hearing.
3. The applicant contended that the NSW Parliament established the Tribunal 'so as enable the broader community to "appeal" an "administrative" decision' of a NSW government body. The Tribunal has jurisdiction because a proportion of the applicant's income was paid to her insurer, QBE Workers Compensation, which passes a part of that payment to the Workcover Authority Fund, making the appellant a "consumer" pursuant to section 39 of the Act. She alleges that the respondent is in breach of sections 18(1) and 21(1) of the Australian Consumer Law (the ACL).
4. The applicant referred to 14 cases in support of her claims and attached copies of sections 3, 7, 28, 29, 30, 31, 34 and 38 of the NCAT Act, sections 4 and 9 of the Workers Compensation Act 1987, and section 39 of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act).
5. If the Tribunal did not consider that it had jurisdiction for the reasons claimed by the respondent, the applicant requested the Tribunal to refer the matter to the NSW Supreme Court pursuant to s 54 of the NCAT Act.

Consideration and findings

1. I do not consider that it is appropriate to refer a question of the law to the Supreme Court for its opinion as requested by the applicant. I proceed to determine the issue before me, that is, whether this Tribunal has jurisdiction to review the decisions of the respondent the applicant identified.
2. The applicant's primary claim that this Tribunal has jurisdiction is based on s 39 of the WIMWC Act. The provision regulates the contributions that insurers must pay to the WorkCover Authority Fund. The applicant claims that part of the applicant's income was paid to her insurer and part of that was passed on to the WorkCover Authority Fund such that she became a 'consumer pursuant to Chapter 2 Part 6 Division 2 section 39 attached as Annexure "B"'.
3. There is no reference to consumer in s 39 of the WIMWC Act. I understand that the applicant is referring to "consumer" within the meaning of the ACL.
4. Part 3 Division 2 ss. 26 to 32 of the Fair Trading Act 1987 (the FT Act) incorporates Schedule 2 to the Competition and Consumer Act 2010 (Cth) into New South Wales Law, the ACL. "Consumer" is defined in s 3 of Chapter 1 of the ACL and is adopted by the Fair Trading Act (s 4). The applicant claimed that the respondent was in breach of ss 18(1) and 21(1) of the ACL.
5. Section 18(1) of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. In summary, s 21(1) of the ACL provides that a person must not, in trade or commerce, engage in conduct that is, in all respects, unconscionable, in relation to the provision of goods and services.
6. The applicant also listed the Consumer Claims Act 1998 (the CC Act) as one of the statutes relied upon. That Act was repealed by the Fair Trading Legislation (Repeal and Amendment) Act 2015 No 12 with effect from 1 October 2015. That Act also amended the FT Act in relation to the jurisdiction of this Tribunal in respect of consumer claims (Part 6A). Section 3 of the FT defines "Tribunal" to mean this Tribunal.
7. Before its repeal, the CC Act conferred jurisdiction on this Tribunal in respect of consumer claims. That was the Act in force when the application was made to this Tribunal.
8. Section 7 of the CC Act provides: (1) GeneralThe Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South WalesThe Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (3) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.
9. Relevant definitions are set out in section 3 of the CC Act: business includes: (a) a business not carried on for profit, and (b) a trade or profession. consumer means: (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996, or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee), to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. . Director-General means the Director-General of the Department of Fair Trading holding office as such under Part 2 of the Public Sector Management Act 1988. firm has the same meaning as it has in the Partnership Act 1892. goods means any tangible thing that is or may be the subject of trade or commerce, but does not include money or an interest in land. services includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce and, without limiting the generality of the foregoing, includes: (a) the performance of work (including work of a professional nature), whether with or without the supply of goods, (b) the provision of gas or electricity or the provision of any other form of energy, (c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction, (d) the letting of premises for vacation or recreational purposes, (e) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (f) the provision of insurance cover (but not assurance cover in respect of a person's life), (g) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (h) the provision of credit, but does not include rights or benefits being the supply of goods or the performance of work under a contract of employment. supplier means a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services. supply: (a) in relation to goods, includes supply goods by way of a contract for the sale, exchange, lease, hire or hire-purchase of goods or an alleged contract for the sale, exchange, lease, hire or hire-purchase of goods, and (b) in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract. trade or commerce includes any business or professional activity. Tribunal means the Civil and Administrative Tribunal. (2) In this Act: (a) a reference to supply in relation to goods includes a reference to resupply, and (b) a reference to the supply of goods includes a reference to agreeing to supply goods, and (c) a reference to the supply of services includes a reference to agreeing to supply services, and (d) a reference to the supply of goods includes a reference to the supply of goods together with services, and (e) a reference to the supply of services includes a reference to the supply of services together with goods.
10. "Consumer claims" is defined in section 3A of the CC Act: (1) For the purposes of this Act, a consumer claim is: (a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services. (2) For the avoidance of doubt, a reference in this Act to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
11. "Business" is defined in the FT Act to include a business that is not carried out for profit, and a trade or profession (s 4). Relevantly, the ACL binds the Crown (in right of NSW) "so far as the Crown carries on a business, either directly or by an authority of the jurisdiction".
12. The objects of Part 6A of the FT Act "are to provide for remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services for consumers" (s. 79B). "Goods" "means any tangible thing that Is or may be the subject of trade or commerce, but does not include money or an interest in land" (s 79D).
13. Section 79E of the FT Act defines "consumer claim": (1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
14. Section 79F defines "services": (1) For the purposes of this Part, a reference to services is a reference to any of the following: (a) the performance of work (including work of a professional nature), whether with or without the supply of goods, (b) the provision of gas or electricity or the provision of any other form of energy, (c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction, (d) the letting of premises for vacation or recreational purposes, (e) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (f) the provision of insurance cover, (g) the rights or benefits provided, granted or conferred under a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (h) the provision of credit, (i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce. (2) However, a reference in this Part to services does not include a reference to any of the following: (a) the supply of goods or the performance of work under a contract of employment, (b) rights or benefits provided, granted or conferred under a service contract (within the meaning of the Retirement Villages Act 1999), (c) the provision of assurance cover in respect of a person's life.
15. Section 79G defines "supply": (1) For the purposes of this Part, a reference to the supply of goods includes a reference to any of the following: (a) supplying goods by way of sale, exchange, lease, hire or hire-purchase, (b) resupplying goods, (c) agreeing to supply goods, (d) supplying goods together with services. (2) For the purposes of this Part, a reference to the supply of services includes a reference to any of the following: (a) providing, granting or rendering services for valuable consideration, (b) agreeing to supply services, (c) supplying services together with goods.
16. Section 2A of the Workers Compensation Act 1987 provides that: (1) The Workplace Injury Management and Workers Compensation Act is referred to in this Act as the 1998 Act. (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.
17. I refer to those two Acts as WC Acts. I do not accept the applicant's contention that part of her income was paid to "her" insurer who passed part of that contribution to the WorkCover Authority Fund. Section 233 of the WIMWC Act explicitly prohibits an employer from taking or receiving any money from a worker in respect of any liability under the WC Acts. Doing so is a criminal offence.
18. I do not accept that even if she had contributed to her workers compensation insurance that that transaction would give rise to a consumer claim against the respondent under either the CC Act or the FT Act which this Tribunal has jurisdiction to review.
19. The Tribunal does not accept the applicant's primary contention that she was a consumer who falls within the jurisdiction of the Tribunal.
20. The WC Acts provide a comprehensive statutory regime for workplace injury management and workers compensation, including compensation dispute determination. There is no provision under the WC Acts or any other Act that confers jurisdiction on this Tribunal to review a decision made under the WC Acts.
21. This Tribunal does not have a general power to review what might be called administrative decisions generally. Its jurisdiction and the powers it may exercise in relation to that jurisdiction must be found in a statute (NCAT Act s 28). In this case no statute confers jurisdiction on this Tribunal to review the decisions the applicant had identified.
22. For those reasons, I find that the Tribunal does not have jurisdiction to review any of the decisions the applicant identified. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 12 February 2016