J C Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor

Workers Compensation Act 1987 (NSW) LEGISLATION CITED : Workers Compensation Rules 2003 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Supreme Court Act 1970 (NSW)

J C Equipment Hire Pty Limited PARTIES : Registrar of the Workers Compensation Commission of New South Wales Roy Lovett

COUNSEL : Mr P. Neil SC with Mr T Wardell (Pl) Mr P. R. Stockley (2nd Def)

SOLICITORS : Edwards Michael Moroney Lawyers (Pl) Paul A Curtis & Co (2nd Def)

LOWER COURT JURISDICTION : Workers Compensation Commission

• 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30129/06 J C Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: The second defendant was an employee of the plaintiff. On or about 23 November 2003, he suffered injury to his lumbar spine (the injury). He made a claim for compensation for permanent impairment pursuant to s66 of the Workers Compensation Act 1987 (NSW) (the 1987 Act). On 9 March 2006, his claim was resolved by consent orders (inter alia, there being agreement (the agreement) for sixteen percent whole person impairment in respect of the injury). An assessment to that effect had been made by Dr Searle. The agreement was registered pursuant to s66A of the 1987 Act. 2 By letter dated 14 March 2006, he gave notice to the plaintiff of his intention to seek work injury damages. The plaintiff then required him to submit to a medical examination by Dr Machart on 4 May 2006. 3 The plaintiff submitted to the examination and was assessed as having a degree of permanent impairment at twelve percent. The plaintiff then advised the second defendant that it did not accept that the second defendant had a degree of permanent impairment of at least fifteen percent. 4 Issue was enjoined between the parties as to whether or not there had been agreement as to the degree of permanent impairment of sixteen percent. 5 On 9 August 2006, the second defendant served a Pre-Filing Statement on the plaintiff. 6 By letter dated 16 August 2006, the plaintiff advised the second defendant as follows:- "We are instructed to advise that the Pre-Filing Statement is considered defective, on the following basis:- 1. Your client's claim under Section 281 and Section 282 of the Workplace Injury Management Act was submitted on 14 March 2006. 2. There has been no acceptance within the meaning of Section 314(2)(a) of the Workplace Injury Management Act, in response to this claim, that your client's degree of permanent impairment is at least 15%. 3. There has been no Medical Assessment Certificate issued that the degree of permanent impairment of the injured worker is at least 15%. 4. The Pre-Filing Statement has therefore been served in breach of Section 313 of the Workplace Injury Management Act 1998."

The second defendant responded by letter dated 17 August 2006. It contained, inter alia, the following:- "Pursuant to Regulation 84(2) of the Workers' Compensation Commission Rules 2003 we provide notice that the claimant does not accept that the Pre-Filing Statement is defective. The claimant asserts that the issue of whether the claimant meets the 15% permanent impairment threshold has already been determined between the parties by consent. Pursuant to Regulation 84(3) of the Rules, we have referred this dispute to the Registrar for determination pursuant to Section 317(2) of the Workplace Injury Management Act 1998. We enclose unsealed copy of Application to Cure a Defective Pre-Filing Statement dated 17 August 2006." 7 The enclosure provided the following documents for inclusion in the Pre-Filing Statement:- "1. WCC Outcome of Application for Dispute Resolution dated 9 March 2006, enclosing certificate of Determination-Consent Orders. 2. Registration of Section 66A Lump Sum Agreement." 8 On 30 August 2006, the Workers Compensation Commission (the Commission), under the hand of a delegate of the Registrar, issued a direction (the direction) as follows:- "The Registrar determines that: 1. The Pre-Filing Statement served on the Respondent on 10 August 2006 is not defective. Statement of Reasons: 1. The parties registered a Section 66A lump sum agreement with the Commission on 27 March 2006 agreeing to 16% whole person impairment of the Applicant. 2. Section 314(2)(a) of the WIM Act is satisfied by the filing of the Section 66A agreement." 9 On 25 September 2006, the plaintiff filed a Summons in this Court. In substance, the Summons brings a challenge to the direction. The challenge is brought on two bases. It is said either that the Registrar made jurisdictional error or lacked jurisdiction. 10 The proceedings were heard on 12 April 2007. Junior Counsel for the plaintiff has prepared lengthy and detailed written submissions. Written submissions were also provided by the second defendant. The written material was supplemented by oral argument (in the case of the plaintiff by Senior Counsel). 11 The jurisdiction to give the direction is said to have been conferred by s317 of the Workplace Injury Management and Workers Compensation Act (1998) (NSW) (the 1998 Act). The relevant provisions thereof are as follows:- "317 Defective pre-filing statement (1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant. (2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination." 12 The intent of this provision is to restrict any challenge on the ground that the Statement is defective to those alleged defects notified within the prescribed time. The Registrar is then given jurisdiction to determine any dispute concerning the alleged defects. 13 The relevant procedural provisions for the dealing with a defective Pre-Filing Statement may be found in Rule 84 of the Workers Compensation Rules 2003 (NSW) (the Rules). 14 The starting point for present purposes is that section 151H of the 1987 Act prohibits the awarding of damages unless the injury results in, inter alia, a degree of permanent impairment that is at least fifteen percent (the fifteen percent threshold). 15 Broadly speaking, the 1987 Act contains provisions relating to a worker's entitlement to compensation, the benefits payable and common law remedies. The purpose of the 1998 Act is expressed to be to establish a workplace injury management and workers compensation system having the objectives set forth therein. The 1987 Act is to be construed as if it formed part of the 1998 Act. 16 The submissions drew the attention of the Court to various other statutory provisions (including ss280A, 281, 313 and 314(1) of the 1998 Act). 17 Section 280A is as follows:- "s280A Claim for lump sum compensation a pre-condition to damages claim A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages." 18 Section 281 is headed "Liability to be accepted and settlement offer made". It has application to both claims for lump compensation and work injury damages. It contains, inter alia, the following:- "(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages." 19 Section 313 is as follows:- "s313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7." 20 Section 314(1) is as follows:- "s314 What constitutes threshold dispute (1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or (b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable. Note. Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable." 21 Before proceeding further, I should mention one other matter. It is common ground that the assessment process provided by Part 7 of Chapter 7 of the 1998 Act is applicable both to any assessment required in respect of a s66 claim and that which is contemplated by ss313 and 314.

22 The primary question raised by the parties was whether or not there was a dispute as to the fifteen percent threshold requirement so as to prohibit the service of a Pre-Filing statement and the commencement of proceedings (in this case, the second defendant wants to commence proceedings in the District Court) (see s313 of the Act). The effect of the statutory provisions is that there is considered to be a dispute as to whether that threshold has been met if the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least fifteen percent (see, inter alia, s314). 23 The second defendant says that there is no dispute by reason of the agreement made in respect of the s66 claim and the registration of that agreement. 24 In substance, the plaintiff says that the operation of the agreement was limited to the claim that was made pursuant to s66 and had no application to a claim for work injury damages. It further says that the only way in which an acceptance can be made in respect of a claim for work injury damages is by express notification of such acceptance pursuant to s281(2B). A number of matters are relied on to support this submission (these include the lack of status had by a s66A agreement, the clear distinction drawn in the legislation between compensation and work injury damages, the limited jurisdiction had by the Commission in respect of work injury damages and the language of ss313 and 314).

25 On this aspect of the matter, I accept the submissions made on behalf of the second defendant. In my view, by reason of the agreement, there is no dispute as to the fifteen percent threshold in the sense contemplated by s313 and s314 of the 1998 Act. 26 The provisions of s281 have application to both the claim that was made for lump sum compensation pursuant to s66 and the claim for work injury damages. It seems to me that s281(2B) is a mandatory provision that requires a response to be made by the person on whom a claim has been made. Where there is dispute, the same assessment process has application to both claims for lump sum compensation and work injury damages. 27 I consider that the provisions of ss313 and 314 look to the actual state of affairs that exists between the parties. The question of whether or not there is a threshold dispute requires the drawing of a conclusion of fact. 28 This decision resolves the essence of the dispute between the parties (which was whether or not the defendant was entitled to serve a Pre-Filing Statement and so be enabled to commence proceedings in the District Court). This being the case, it seems to me to be unnecessary to go on and consider the other many arguments that have been raised during the hearing. However, in deference to the arguments that have been put, I will make certain brief observations concerning some of them. 29 Broadly speaking, the written submissions made on behalf of the plaintiff dealt with two matters. One was described as "jurisdictional error". The other was described as "was the Registrar's determination beyond power/ultra vires". 30 The submissions made in respect of "jurisdictional error" had two components. One concerned what has already been discussed (the alleged error on the part of the Registrar in determining that the Pre-Filing Statement was not defective by reason of the agreement). The other component concerned alleged error by the taking into account of irrelevant matter (being the matter identified in paragraph 1 of the Statement of Reasons). 31 The decision already made also disposes of the second component of alleged "jurisdictional error" (that being one of alleged error of law by taking into account irrelevant matter). It follows from what has been earlier said that the agreement was a relevant matter to be taken into account in making the direction. 32 I should add that the focus of what was said in oral argument was directed to the matter of "Was the Registrar's determination beyond power/ultra vires". The thrust of this aspect of the submission was that the jurisdiction had by the Registrar in dealing with a dispute as to whether a Pre-Filing Statement served by the claimant was defective was restricted to what might be described as formal defects (as opposed to questions of entitlement to serve a Pre-Filing Statement).

33 A resolution of this submission would require detailed consideration of the question of the proper construction to be given to s317. It would require regard being had to the context in which the section appears and to the objects of the legislation. 34 The question of the proper construction to be given to s317 was not the subject of full argument. It appears that it has not been the subject of previous judicial consideration. 35 There was no real sufficient analysis of the statutory language and/or the objects of the legislation. The Court was not taken to any Parliamentary Reading Speeches. It was not taken to dictionary meanings. 36 In the circumstances, I do no more than raise certain matters for consideration. 37 The service of the Pre-Filing Statement is a step that must be taken before proceedings can be commenced. It may have been intended by the legislation that the Commission have exclusive jurisdiction in respect of the Pre-Filing Statement process (see, inter alia, subss (1) and (2) of s105 of the 1998 Act).

38 As earlier mentioned, the jurisdiction that is conferred upon the Registrar by s317 is a dispute as to whether a Pre-Filing Statement is defective (arising out of the notified alleged defects). Sub-section 1 provides assistance as to what "defective" may mean (by reason of incompleteness or otherwise). What appears in sub-section 1 accords with dictionary meanings given to "defective" (including "incomplete, imperfect, faulty"). 39 Whatever was the legislative intention, I should draw attention to the change of position adopted by the plaintiff since the direction. It now adopts a stance that was the opposite to that taken before the Registrar. 40 It was the plaintiff that raised the contention that the Pre-Filing Statement was defective (see letter dated 16 August 2006). The alleged defects all went to the nature of entitlement to serve it (as opposed to defects of a formal nature). The plaintiff was content to allow these questions to go before the Registrar for determination. It took no objection to jurisdiction. Jurisdictional complaints have only emerged from it since the adverse decision was given. 41 As the real matter in issue between the parties has now been determined, and the decision of the Court accords with the determination made by the Registrar on those same issues, it seems to me that there is no utility in looking at whether or not the direction should be disturbed for other reasons. 42 The plaintiff is seeking relief pursuant to s69 of the Supreme Court Act 1970 (NSW). It is well established that the relief that may be granted thereunder is discretionary in nature. In the circumstances of this case, I am not satisfied that the discretion should be exercised in favour of the plaintiff (even if it be the case, that the Registrar exceeded jurisdiction). 43 In the circumstances, it seems to me that further consideration of questions touching upon the width of the jurisdiction conferred by s317(2) of the 1998 Act are better left for another day. 44 I should also make express reference to one of the other arguments advanced on behalf of the plaintiff. It was said that the Pre-Filing was defective in that it failed to comply with the requirements of Rule 81 (in that the agreement was not served with the Pre-Filing Statement). This was not an alleged defect notified either to the defendant or the Registrar. It was not an alleged defect that the Registrar was required to take into account in the making of the direction. It was not a defect that the plaintiff can now rely on (see s317(1)). 45 In the circumstances, I do not consider that the plaintiff should be allowed to agitate this fresh matter in these proceedings. In any event, the relevant material was forwarded, by way of supplementation, prior to the making of the direction. 46 Finally, I should also mention that the plaintiff served a Pre-Filing defence subsequent to the direction (on 20 September 2006). I mention this matter because of the provisions of Rule 84(9) (in particular (b) thereof). It may be that in the circumstances of this case Rule 84(9) has application and is material to the position of the plaintiff. l take this matter no further as it has not been argued before me. 47 The onus of demonstrating an entitlement to relief rest with the plaintiff. In my view, that onus has not been discharged. 48 The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. **********

05/11/2007 - repetition of words - Paragraph(s) 24

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