NN v The State of Tasmania

....The proper rate of compensation payable to the worker, with particular reference to s 70(2)(ab)(i) of the Workers Rehabilitation and Compensation Act 1988. The worker contends that pursuant to his contract of employment overtime or excess hours was a requirement of his contract of employment and the worker otherwise qualifies pursuant to s 72(ab)(ii), (iii) and (iv) of the Act. The employer contends that the worker was not employed pursuant to a contract of employment.

3. In January 2024 the employer made its own referral to the Tribunal pursuant to s 88 of the Act seeking a determination that the weekly payments being made to the worker ought to be reduced, or terminated to zero dollars. In the alternative the employer sought a determination that the weekly payments be reduced to such other amount as the Tribunal considered to be appropriate.
4. A number of teleconferences took place as part of the preliminary stage of the Tribunal's conciliation process. Ultimately, the matter was listed for directions at the worker's application seeking an order that the worker's s 42 referral be heard separately to the employer's s 88 referral. The worker says the s 42 referral is a discrete issue and ready to proceed whereas the employer says both the matters should both be returned to conciliation.
5. The question I need to decide is whether, as requested by the worker, the s 42 referral ought to be heard separately from the employer's s 88 referral, or whether the s 42 referral and the s 88 referral ought to be heard together.

1. Section 85 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) provides:

Consolidating and splitting proceedings > > (1) The Tribunal may direct that 2 or more proceedings that concern the same or related facts or circumstances - > > (a) be consolidated into one proceeding; or > > (b) remain as separate proceedings but be heard and determined together. > > (2) If proceedings are consolidated, evidence given in the consolidated proceedings is admissible in relation to matters involved in either of the proceedings that were consolidated. > > (3) The Tribunal may direct - > > (a) that any aspect of any proceedings be heard and determined separately; or > > (b) that proceedings commenced by 2 or more persons jointly be split into separate proceedings.

2. In Idoport Pty Ltd & Anor v National Australia Bank Ltd [2000] NSWSC 1215, Einstein J set out at [7] principles to be considered where an application is made for an issue or question in proceedings to determined separately:
   • The power to order a separate trial is ultimately discretionary. Such discretion must be exercised judicially but cannot otherwise be fettered
   • The starting point is that all issues in contention between parties should be dealt with together
   • The party who wishes to have a question separately determined bears the onus of showing it is appropriate to do so
3. Einstein J went on to identify circumstances where it may or may not be appropriate for an issue to be separately determined. Circumstances where separate determination may be appropriate include:
   • where resolution of the issue may resolve all the proceedings between the parties, or at least narrow the issues
   • resolution of the issue makes it likely the matter will otherwise be resolved between the parties without further hearing
   • where there is a clear demarcation between the particular issue and other issues in the proceedings, including issues going to the credit of witnesses

Circumstances where separate determination of an issue is unlikely the be appropriate include:

• where there are intertwined questions of fact and law between the particular issue and other issues
• where there is commonality of witnesses and matters of credit between the particular issue and the other issues
• where it is possible that resolving the separate issue may only result in an appeal, rather than determining the proceedings, potentially crating a multiplicity of and fragmentation of the proceedings

1. In Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1, the following observations were made[1] about trials of separate issues at [168 - 170]:

The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.[2] > > The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. > > Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

1. As noted above, the worker's referral under s 42 of the Act has been made in relation to the question of the proper rate of weekly compensation payable to the worker, with reference to whether the rate had been correctly calculated at the outset of the claim.
2. In a covering letter, the employer's solicitor referred to advice received from the employer about the calculation of the worker's weekly rate:

The issue within State Service is that around 90% of workers do not have a contract of employment as defined by law. So, in effect this means that the Department cannot include overtime hours in the calculation when a claim is lodged even if one meets the other tests.

3. On the face of the referral, the worker contends that the calculation of his weekly compensation rate by the employer failed to properly take into account payments for overtime or "excess hours", and that the employer had incorrectly failed to take those things into account because it said there was no contract of employment between itself and the worker.
4. However, the basis upon which the worker says his weekly rate was not properly calculated has now apparently changed. The worker says the s 42 dispute about calculation of the worker's rate of weekly payments now arises because there is a dispute between the parties about the date from which calculation of the rate commences. The worker says that the factual matrix of the claim is that the worker suffered an injury in the course of his employment. He had one day off. He returned to work the following day. He was subsequently incapacitated about six months later. The worker says the rate of his weekly payments of compensation ought to be calculated from the later date, when the worker was subsequently incapacitated. He understands the employer's position is that the calculations should be based on the earlier date, when the worker had a day off after the injury.
5. The worker says he is ready to proceed with the s 42 referral, and he should not be kept out of his appropriate weekly entitlements because the employer is not yet ready to proceed with its own referral.
6. The employer says the worker's stance had shifted since the s 42 referral was made, where the focus was on s 70(2)(ab)(i) of the Act.[3] I infer from this that the employer has also shifted its position that no overtime could be included in the relevant calculation because there was said to be no contract of employment between the parties.
7. The employer agrees that the core issue is the date from which the worker's rate of weekly payments ought to be calculated. The employer says this is not just a question of law, but also a question of fact - in that the worker says there was no partial incapacity at that time of the subject incident, and not until the delivery of the initial workers compensation medical certificate some months later. It is submitted that from the employer's perspective, after the worker returned to work after the subject incident, the worker was experiencing symptoms and was vulnerable to further injury. However, the employer has not yet made a decision about its position as to whether a partial capacity existed between the date of injury and delivery of the initial workers compensation medical certificate.
8. In relation to the employer's referral under s 88 of the Act, the employer seeks a reduction in the rate of weekly payments payable to the worker on the basis that it says the worker has the capacity to return to his pre-injury 76 hours from 56 hours that he is presently working. The employer says evidence is still being sought in relation to the s 88 referral, and that it intends to obtain medical records from the worker's general practitioner. At the time this application was heard, an independent medical assessment report had been obtained, but no decision had been made about whether the employer intended to rely upon it.
9. The employer says that there is a risk that if the worker's s 42 referral is determined first, the employer will have to make a higher rate of weekly payments of compensation to the worker until the question of whether there ought to be a reduction of the weekly rate under the s 88 referral can be determined.
10. The employer also considers there is a good chance that the issues between the parties could be successfully conciliated, but I gather this would only be after both parties had finalised their evidence in relation to both referrals.
11. The worker says he would not be in a position to obtain his own medical evidence in relation to his more recent capacity for employment until the employer had delivered the evidence it intends to rely upon in support of the s 88 referral.

1. The principles outlined at [7 - 9] above have been referred to and applied in decisions of the former Workers Rehabilitation and Compensation Tribunal: S v Nick Scali Limited [2019] TASWRCT 19 (Nick Scali), and the Personal Compensation stream of this Tribunal: L v State of Tasmania (Department of Education) [2022] TASCAT 50 (L v State of Tasmania); M v The State of Tasmania (Department of Health) [2023] TASCAT 179[4] (M v State of Tasmania).
2. In Nick Scali, the application for a separate hearing was in relation to the question of whether a worker had given notice of injury as soon as practicable, and, if not, whether a failure to do so ought to be excused. In L v State of Tasmania, a separate hearing was sought in relation to the question of whether the worker's failure to make a claim for industrial deafness within the permitted period of time had been occasioned by mistake, absence from the State, or other reasonable excuse. In M v State of Tasmania the application was for the question of the employer's liability to pay compensation to the worker to be determined separately from the question of what rate of weekly payment to which the worker would be entitled, if he was able to establish the employer's liability.
3. In each of those matters, what the Tribunal was asked to determine separately was one aspect of a referral that was before the Tribunal.
4. The present case is different. It appears that what I am actually being asked to do is decide whether the separate referrals of the worker and the employer ought to be heard and determined separately, or together - which the Tribunal is empowered to determine under s 85(1)(b) of the TASCAT Act.
5. It is not unusual for two separate proceedings to be heard and determined together in the workers compensation jurisdiction of the Personal Compensation stream. In particular, a referral by an employer under s 88 where the employer then terminates payments of weekly compensation to a worker under s 86(1)(c) of the Act is usually heard at the same time as a s 86(4) referral by the worker who disputes the termination of their payments. Many of the principles relevant to whether a particular issue in a proceeding ought to be heard separately likely still have relevance to the question of whether separate proceedings ought to be heard together, although viewed from the opposite perspective.
6. Whilst the employer is correct in saying that both referrals before the Tribunal are seeking determination about the appropriate rate of weekly payments to the worker, it is it clear that they each involve decisions about different things.
7. The issues arising from the worker's s 42 referral are in relation to the date from which the weekly compensation rate ought to have been calculated, and the appropriate rate at which those compensation ought to be made. Determining those issues will likely require evidence about the extent to which the worker suffered any incapacity for work between the date of injury in April 2018, and the date he delivered his initial workers compensation later that same year.
8. The issues arising from the employer's s 88 referral are in relation to his more recent capacity for work, and the amount by which his weekly payments of compensation ought to be reduced, if at all.
9. It may well be that there will need to be cross examination of some of the same witnesses, and possibly findings about their credit, in the hearing of both referrals. That is something that can hardly be avoided in circumstances where there may potentially be several references to the Tribunal under the Act in respect of the same claim for compensation, but in relation to different issues arising in the life of the claim.
10. The question of the appropriate weekly rate would potentially be relevant to the employer's s 88 referral if the Tribunal decided to reduce the weekly payments of compensation, other than to zero. If the referrals were both ready to proceed to hearing, it may well be appropriate that they be heard and determined together, which would avoid the potential for conflicting findings as to credit of witnesses. However, they are not both ready to proceed.
11. The worker has filed a referral asking the Tribunal to make a determination in relation to the appropriate rate of weekly payments of compensation he ought to have been receiving. He is entitled to have that issue determined if he is ready to proceed to hearing. The hearing of the worker's s 42 referral ought not await the employer's s 88 referral being ready for hearing.

1. It is not necessary for there to be any orders at this stage.
2. I direct that the worker's s 42 referral and the employer's s 88 referral do not need to be heard and determined at the same time. The matters will be referred back to the Deputy Registrar or a Senior Case Officer.

[2] Citing Perre v Apand Pty Ltd [1999] HCA 36; (1999) CLR 180

[3] Section 70(2)(ab)(i) of the Act deals with the inclusion, or otherwise, of earnings attributed to overtime or excess hours in calculating a worker's normal weekly earnings.

[4] Upheld on appeal to the Supreme Court in State of Tasmania v Munting [2024] TASSC 36. The issue of separate determination of the preliminary issue was not an appeal ground.