Ramsay v Southern NSW Local Health District; Manning v Sydney Trains; Honey v Robert Sheridan Family Trust; Duncan v Department of Education; Magnan v Upper Shire Council

Ramsay v Southern NSW Local Health District; Manning v Sydney Trains; Honey v Robert Sheridan Family Trust; Duncan v Department of Education; Magnan v Upper Shire Council - [2024] NSWDC 326 - NSWDC 2024 case summary — Zoe

[16]

Judgment

These reasons concern 5 separate applications brought under s.26 of the Personal Injury Commission Act 2020 ("the PIC Act") in 5 separate proceedings heard together on 4 April 2024.
There are 5 different plaintiffs and 5 different defendants. The 5 different sets of proceedings are: 2.1 Ramsay v State of NSW (Southern NSW Local Health District) trading as Cooma Hospital ("Ramsay"). 2.2 Manning v Sydney Trains ("Manning"). 2.3 Honey v RB & H Sheridan ATF Robert Sheridan Family Trust ("Honey"). 2.4 Duncan v Secretary, Department of Education ("Duncan"). 2.5 Magnan v Upper Hunter Shire Council ("Magnan").
These reasons proceed under the following headings: Judgment A. THE ESSENTIAL ISSUE IN EACH CASE Two critical questions B. THE INTERVENTION OF THE ATTORNEY GENERAL AND THE ATTITUDE OF THE PARTIES C. HOW TO DETERMINE WHETHER JUDICIAL POWER WOULD BE EXERCISED? SOME LEGAL PRINCIPLES D. RAMSAY The factual context Status of the parties What are the particular issues that have arisen in Mr Ramsay's application to the Commission? Would determining one or more of those particular issues involve exercising judicial power? Conclusion E. MANNING The factual context Status of the parties What are the particular issues that have arisen in the application to the Commission? Would determining one or more of those particular issues involve exercising judicial power? Conclusion F. HONEY The factual context Status of the parties What are the particular issues that have arisen in Mr Honey's application to the Commission? Would determining one or more of those particular issues involve exercising judicial power? Conclusion G. DUNCAN The factual context Status of the parties What are the particular issues that have arisen in Ms Duncan's application to the Commission? Would determining one or more of those particular issues involve exercising judicial power? Conclusion H. MAGNAN The factual context Status of the parties What are the particular issues that have arisen in Ms Magnan's application to the Commission? Would determining one or more of those particular issues involve exercising judicial power? Conclusion Leave has already been granted for Ms Magnan's workers compensation application to be made in this Court ~ should the court nevertheless remit the application to the Commission? I. SUMMARISING and RETURING TO S.26 OF THE PIC ACT J. COSTS K. ORDERS

[17]

A. THE ESSENTIAL ISSUE IN EACH CASE

The essential issue in each case is the same. In each case, the plaintiff has brought a workers compensation claim in the Personal Injury Commission which the Commission has declined to determine because it may involve an exercise of "federal jurisdiction". Federal jurisdiction is jurisdiction of the kind referred to in s.75 or 76 of the Constitution. Relevantly, for these 5 cases, the applications to the Commission potentially fall within s.75 of the Constitution as "matters - … (iv) … between residents of different States, or between a State and a resident of another State". On the assumption that the Commission is not a court, it would not have the power to exercise federal jurisdiction. However this Court, as a court of a State, is invested with federal jurisdiction by s.39 of the Judiciary Act 1903 (Cth).
The essential issue in each case is whether the Personal Injury Commission determining each application would involve an exercise of federal jurisdiction.
Under s.26 of the PIC Act, if I am satisfied that the determination of the plaintiff's workers compensation application in the Commission "would involve an exercise of federal jurisdiction", I may grant leave for the workers compensation application to proceed in this Court (s.26(3)). On the other hand, if I am satisfied that the usual decision-maker in the Commission "has jurisdiction to determine it", I may remit the application to the Commission (s.26(5)).
In one of the 5 cases (Magnan), the Court has already granted leave for the application to be made in this Court instead of the Commission. Notwithstanding that has occurred, the Court may remit the matter to the Commission if it is satisfied that the Commission has jurisdiction to determine it (s.26(5)).
The Court of Appeal explained the purpose and operation of section 26 of the PIC Act in Searle v McGregor [2022] NSWCA 213; (2022) 405 ALR 556, (2022) 102 MVR 321 (Kirk JA; Bell CJ and Ward P agreeing) ("Searle"). I discussed this decision in some detail in Chetty v Queanbeyan-Palerang Regional Council [2024] NSWDC 12 ("Chetty") at [17]-[18]. I will not repeat what I said there.
As explained in Searle, whether or not a determination by the Commission would involve an exercise of Federal jurisdiction gives rise to the question of whether in doing so it would be purporting to exercise judicial power.
As Kirk JA said in Searle (at [14]), "'State tribunals are not forbidden … 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).". And (at [19]), "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.".

[20]

C. HOW TO DETERMINE WHETHER JUDICIAL POWER WOULD BE EXERCISED? SOME LEGAL PRINCIPLES

It is not necessarily a straightforward exercise to decide whether determining a particular issue involves exercising judicial power, as opposed to non-judicial or administrative power.
In Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202, the Court of Appeal (Leeming JA, Adamson JA & Basten AJA) (Kanajenahalli") held that a decision by the Commission under section 11A of the WC Act as to whether a psychological injury "was wholly or predominantly caused by reasonable action taken or proposed to be taken by on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal workers or provision of employment benefits to workers" would involve an exercise of administrative power, not judicial power, and therefore would not be an exercise of federal jurisdiction, or as the Court put it, would not involve the exercise of judicial power within Chapter III of the Constitution. I discussed Kanajenahalli in more detail in Chetty at [31]-[37].
In Chetty, I decided that in determining the issue raised by the parties in that case under s.4(b)(i) of the WC Act whether "the employment was the main contributing factor to contracting the disease", the Commission would not be exercising judicial power, but instead administrative power.
In Searle, at [64] Kirk JA expressed the view that "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" an exercise of judicial power.
As for general principles, Bathurst CJ explained in Attorney General for New South Wales v Gatsby [2018] NSWCA 254; (2018) 99 NSWLR 1 ("Gatsby") that in many cases the answer to the question as to whether the power being exercised by tribunal is in the nature of judicial or administrative power will not be obvious.
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."
In Gatsby, in circumstances where the proceedings were between residents of New South Wales and Queensland, the Court of Appeal held that the Appeal Panel of the Civil and Administrative Tribunal of New South Wales, in exercising powers under section 87 of the Retail Tenancies Act 2010, was exercising judicial power (at [128]). The essence of Bathurst CJ's reasoning to that conclusion was set out at [125] - [127]. The Court of Appeal also held that the Tribunal was not a "court of a State" for the purposes of Chapter III of the Constitution or section 39 of the Judiciary Act 1903 (at [192]).
A particularly decisive consideration for Bathurst CJ was that in determining the existence of the contract which constituted the residential tenancy agreement, whether that contract was breached, and whether that breach of contract was sufficient to justify termination, the Tribunal was exercising what has been traditionally thought to be judicial power (at [126]). It was also significant that the Tribunal could enforce its own orders and that the power to seek further orders did not seem to permit reopening of the decision of the Tribunal, but rather, provide a mechanism to seek further orders, presumably in aid of enforcement (at [127]).
In Kanajenahalli, the Court compared the issue to be decided under s.11A of the WC Act with what Bathurst CJ had said in Gatsby. In Kanajenahalli, the Court said (at [9]) about s.11A: "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]."
The Court went on to say (at [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.
In written submissions, counsel for the Attorney General sought to emphasise the Court's reference in Kanajenahalli to there being "no close analogy to any issue arising a general law". He submitted that this factor was "determinative". I do not read their Honours' reasons that way.
Whether or not an analogy may be drawn with the general law or other circumstances which have been held to involve the exercise of judicial power is one of the considerations identified in the passage from the Tasmanian Breweries Case quoted by Bathurst CJ in Gatsby (which I have set out above). And no doubt in Kanajenahalli when their Honours considered whether there was an analogy at general law they had in mind what Bathurst CJ had said about the residential tenancy agreement in that case (which I have also referred to above).
It is important to recognise that in Kanajenahalli their Honours were giving what they called "short reasons" (at [7]). I do not think their Honours were saying that whether or not there was an analogy was determinative. What they said was determinative was the nature of the sole issue the Commission was being asked to decide under section 11A of the WC Act, bearing in mind that more general considerations did not all point in the same direction. That sole issue was a question of fact, as was the sole question that had arisen in Chetty.
In the plaintiffs' joint written submissions, senior and junior counsel drew attention to general considerations of the type mentioned by the Court in Kanajenahalli which they submitted were indicia that the Commission exercises administrative power rather than judicial power. In addition to those mentioned in Kanajenahalli, these considerations are: 30.1 The Commission is not bound by the rules of evidence, and its procedures are informal: see s.43 of the PIC Act. As counsel pointed out, in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [82] French CJ said that this can be an indicator of an administrative rather than a judicial body, but it is not determinative. 30.1 Apart from the President, members of the Commission can be appointed without being legally qualified. This may occur if the person "has, in the opinion of the Minister, special knowledge, skill or expertise in relation to any class of matter in respect of which the Commission has jurisdiction (s.10(3)(b) and s.10(4)(b) of the PIC Act).
Another general consideration is that "The power and function of finally determining matters of fact and even of discretion are not solely indicative of judicial action. That is an attribute common to administrative bodies, to subordinate bodies that are adjuncts to legislation, and to judicial bodies.": per Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 176; referred to with approval by Kirk JA (Mitchelmore JA & Griffiths AJA agreeing) in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [77]. Or as it was put in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189, quoted by Kirk JA at [77]: "although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power".
With those principles in mind, I return to each of the 5 cases and the 2 critical questions which must be addressed under s.26 of the PIC Act.

[21]

The factual context

The parties have provided the Court with an agreed statement of facts, as well as a copy of Mr Ramsay's application to the Commission.
Mr Ramsay claims compensation in weekly benefits in the form of $1,100 per week and approximately $8,000 in medical expenses.
He alleges that he was injured on 11 February 2019 when cleaning a theatre room at Cooma Hospital.
Mr Ramsay asserts a mop he had been using became stuck under a trolley, and in the process of seeking to retrieve the mop he injured his left shoulder.
He claims as a consequence of the injury to the left shoulder he sustained an injury of the right shoulder due to overuse of the right shoulder.
Mr Ramsay claims secondary psychiatric injury as a result of the 11 February 2019 incident.
He also alleges that he was bullied and harassed during the course of his employment, sustaining a massive major depressive disorder.
The defendant has issued a number of declinature notices in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act") and by way of the notices of review of decisions in accordance with s.287A of the WIM Act.
In relation to the claim of the psychiatric injury, the defendant accepts that injury occurred in the course of employment for the purposes of s.4 of the Workers Compensation Act 1987 ("the WC Act"). However, the defendant says the psychiatric injury was caused by a reasonable action appraisal pursuant to s.11A of the WC Act.
In relation to the frank injury (left shoulder) the defendant does not dispute injury to the left shoulder occurring on 11 February 2019, but asserts that there is no consequential condition to the right shoulder arising out of the accepted injury.
The defendant relies upon the following defences in relation to the to ongoing weekly benefits (for the admitted shoulder injury): 1. At least first 130 weeks of benefits have been paid. 2. The plaintiff is not working 15 hours per week. 3. The plaintiff is not earning $202 dollars per week. 4. The plaintiff is not assessed as being indefinitely unable to obtain further work.

[23]

What are the particular issues that have arisen in Mr Ramsay's application to the Commission?

The parties agree that that as a result of various notices given by the defendant's workers compensation insurer it has raised issues under sections 4, 9A, 11A, 33, 38 and 60 of the WC Act.
As the agreed facts show, Mr Ramsay claims that he suffered: 48.1 A physical injury to his left shoulder on 11 February 2019. 48.2 An injury to his right shoulder due to overuse as a consequence of the injury to his left shoulder, which in his application is said to have led to a diagnosis of bursitis of the right shoulder. 48.3 A secondary psychological injury as a result of these physical injuries. 48.4 A separate psychological injury as a result of being bullied and harassed during the course of his employment, sustaining a massive major depressive disorder.
As I understand it, the issues under sections 4, 9A and 11A are as follows: 49.1 The issue under section 9A concerns the physical injury to his left shoulder and is whether Mr Ramsay's employment "was a substantial contributing factor to the injury". 49.2 An issue arises under section 4(b)(i) in relation to the alleged secondary psychological injury as to whether Mr Ramsay's employment "was the main contributing factor to the disease". 49.3 An issue arises under s.4(b)(ii) in relation to the injuries to both the left and right shoulder to the extent that they represent "the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease" as to whether the employment "was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease". 49.4 An issue arises under section 11A in relation to the allegation of a separate psychological injury as a result of being bullied and harassed as to whether the psychological 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".

[24]

Would determining one or more of those particular issues involve exercising judicial power?

I find that in determining the issue raised by the parties under section 4(b)(i), the Commission would not be exercising judicial power, but instead administrative power, for the reasons I gave in Chetty.
The reasoning I gave in Chetty would apply equally to the almost identical issue raised by the parties under s.4(b)(ii). On that basis, I find that in determining that issue the Commission would not be exercising judicial power, but instead administrative power.
The issue raised by the parties under section 11A is the issue that the Court of Appeal decided in the Kanajenahalli would involve an exercise of administrative power, not judicial power. On that basis, I find that in determining the issue raised by the parties under section 11A the Commission would not be exercising judicial power, but instead administrative power.
The issue raised by the parties under section 9A "is an evaluative matter involving questions of impression and degree, and 'a finding as to relative contributing factors is a finding of fact'": Secretary, Department of Education v Dawking [2024] NSWCA 4 per Gleeson JA (Mitchelmore and Kirk JJA agreeing) at [43], citing Badawi v Nexon Asia Pacific Pty Ltd (t/as Commander Australia Pty Ltd) (2009) 75 NSWLR 503; [2009] NSWCA 324. In other words it raises a question of fact for the determination of the Commission. The requirement under section 9A that the employment be a "substantial contributing factor" involves a less stringent connection with the employment than the requirement under s.4(b)(i) that "the employment was the main contributing factor": Dawking at [44]. Other than that difference, both sections raise closely related questions of fact which, for the reasons I gave in Chetty, would not involve the Commission exercising judicial power to determine.
I therefore find that in determining the issue raised by the parties under section 9A, the Commission would not be exercising judicial power, but instead administrative power.
The issues raised by the parties under sections 33 and 38 concern the calculation of weekly benefits payable, particularly under section 38 which deals with weekly payments after the second entitlement period (after week 130).
As counsel for the Attorney General explained in written submissions, sections 33 and 38 are in Division 2 of the WC Act. It provides for weekly compensation by way of income support. If total or partial incapacity for work results from an injury, the compensation payable includes a weekly payment during the incapacity (s 33). The weekly payment during the "first entitlement period" (first 13 weeks) and "second entitlement period" (weeks 14-130) is calculated based on a proportion of the worker's "pre-injury weekly earnings", a "maximum weekly compensation amount" and the "worker's current weekly earnings" depending on whether the worker has "current work capacity" (ss.36 and 37 read with the definitions of "first entitlement period" and "second entitlement period" in s.32A). A worker may be entitled to compensation after the second entitlement period where the insurer assesses that he or she is "likely to continue indefinitely" to have "no current work capacity" or be "incapable of undertaking further additional employment or work" beyond specified hours at a prescribed rate or where the injury has resulted prescribed degree of permanent impairment (s.38 read with the definition of "high needs" in s. 32A(1)).
Counsel for the Attorney General submitted that the calculation of weekly payments based on statutory formulae is not closely analogous to a function of a court under the general law. Counsel for the plaintiffs submitted that they were merely consequential calculations following determination of any s.4, s.9A and s.11A issues.
I accept those submissions. It follows that in determining the issues raised under sections 33 and 38, the Commission would not be exercising judicial power, but instead administrative power.
Counsel for the Attorney General submits that the issue under s.60 read with s.59 of the WC Act is whether the employer is liable to pay the cost of a "medical or related treatment", "hospital treatment", "ambulance service" or "workplace rehabilitation service" as defined which is reasonably necessary as a result of an injury received by the worker (see [38(c)] above). This liability, like the entitlement to compensation generally under s.9 of the WC Act, does not depend on any breach of a duty by the employer. And the liability is confined by the reference to specified and defined treatments and services. The issue as to this liability also has no close analogy with any issue at general law.
Counsel for the plaintiffs submit that s.59 defines "medical or related treatment', amongst others. Section 60 requires a consideration of a factual test, i.e. whether treatment is reasonably necessary. The principles involved in determination of whether treatment is reasonably necessary are well established (Diab v NRMA Ltd [2014] NSWWCCPD 72) and involve consideration of: 1. the appropriateness of the particular treatment; 2. availability of alternative treatment, and its potential effectiveness; 3. the costs of the treatment; 4. the actual or potential effectiveness of the treatment; 5. acceptance by medical experts of the treatment as being appropriate and likely to be effective.
They submit that the determination of whether treatment is reasonably necessary is a fact based finding.
I accept those submissions. It follows that in determining the issues raised by the parties under s.60, the Commission would not be exercising judicial power, but instead administrative power.

[26]

The factual context

The parties have provided the Court with an agreed statement of facts, as well as a copy of the application to the Commission.
At all material times, Mr Jeremy Manning was employed by Sydney Trains.
During the course of his employment with Sydney Trains, Mr Manning sustained a psychological injury.
The deemed date of injury for Mr Manning's psychological injury is 21 September 2016.
Mr Manning lodged a workers compensation claim with Sydney Trains in respect of his psychological injury.
Sydney Trains admitted liability for the workers compensation claim lodged by Mr Manning in respect of his psychological injury.
Mr Manning died in August 2018.
Mr Manning's death certificate indicates he died sometime between 5 August 2018 and 10 August 2018.
An autopsy report in respect of Mr Manning's death reported he died as a result of 'insulin overmedication'.
A claim for death benefits under the WC Act was lodged by the dependants of Mr Manning ("the Death Benefits Claim").
The Death Benefits Claim has been lodged against Sydney Trains.
In the Death Benefits Claim it has been alleged by Mr Manning's dependants that his death occurred in circumstances which give rise to a liability for compensation under sections 25 and 26 of the WC Act.
Liability for the Death Benefits Claim has been denied by Sydney Trains.
Sydney Trains has alleged that there is a defence to the Death Benefits Claim under s14(3) of the WC Act.
If it is found that Sydney Trains is liable for the Death Benefits Claim, there is a dispute about whether each of the respondents is a dependant as defined.
If it is found that Sydney Trains is liable for the Death Benefits Claim, there is a dispute about the apportionment of the compensation payable under s25 of the WC Act.
Two of the parties claiming to be dependants of Mr Manning resided in the Northern Territory when the relevant Application to Resolve a Dispute was lodged in the Commission.
The Commission has previously indicated to the parties that it was concerned that it did not have jurisdiction to determine the matter because it involved the exercise of a judicial power with reference to the decision of Chetty in the Commission; the District Court has since delivered its own judgment in the matter of Chetty which was contrary to the decision of that in the Commission. Because of the concern raised by the Commission, the plaintiff filed the summons in the District Court of New South Wales.

[28]

What are the particular issues that have arisen in the application to the Commission?

The "injury description/cause of injury and death" as described in the application to the Commission is: "Cause of injury is the applicant's workplace injury, PTSD and major depressive disorder with anxiety resulting in the claimant demonstrating behaviours of increased risk taking, alcohol and substance abuse resulting in his passing on 10 August 2018. On 21 September 2016 the deceased worker sustained severe psychological injury whilst exposed to violence by another employee during his employment with the respondent. As a result of this violence. the deceased worker developed PTSD and major depressive disorder with anxiety. Due to the severity of injury, the deceased worker suffered from substance abuse as a symptom of his workplace injury . The claimant's substance abuse resulting in his passing on 10 August 2018."
The parties agree that the issues they have identified, and referred to in the agreed statement of facts, arise under sections 4, 14(3), 25 and 26 of the WC Act.
The issue under section 4 arises, as it may well do in any application to the Commission, because section 4 contains the definition of "injury". Under section 9, "A worker who has received an injury (and, in the case of the death of the worker, his or her dependents) shall receive compensation from the worker's employer in accordance with this Act.".
The issue that arises under section 14(3) is whether or not the death of the worker was "caused by an intentional self-inflicted injury".
The issue that arises under s.25 is one of dependency. Under section 25(1)(a), the amount of compensation payable by the employer is "to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the workers legal personal representative". Under section 25(1)(b), weekly payments are to be paid to the "dependent child of the worker under the age of 16 years" and a "dependent child of the worker of being a student over the age of 16 years but under the age of 21 years". By section 25(5) "Child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent"; "dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker"; "student means a person receiving full-time education at a school, college or university". "Dependants of a worker" is defined further in section 4 of the WIM Act.
Neither party suggested that there is any issue about how the compensation payable under s.25(1) would be "apportioned" once any relevant dependants are identified.
A further issue, common to both section 25 and 26 is whether the death "results from an injury" (s.25) or there is a death "resulting from an injury" (s.26).

[29]

Would determining one or more of those particular issues involve exercising judicial power?

I have already explained why issues raised under section 4(b) about whether "the employment was the main contributing factor" to a psychological injury or aggravation, et cetera raise questions of fact and would not involve an exercise of federal jurisdiction. The same reasoning and conclusion would apply to the requirement under section 4(a) that there must be a "personal injury arising out of or in the course of employment".
As to the issue under s.14(3), the plaintiff submits that the determination of whether death was caused by a self-inflicted injury is a question of fact and is no different in character to the determination of whether s.4(b)(i) or s.11A applies.
The defendant submits that the enquiry to be undertaken is entirely fact based. It points out that the Commission is deciding this issue in circumstances where the parties have presented their entire case on the papers, there is no right to cross-examination, they are not bound by the rules of evidence and after the decision-maker acts as the facilitator in the conciliation process. The defendant submits this is all very much removed from the traditional aspects of the exercise of judicial power and compares Gatsby at [125] - [126], those paragraphs being part of the reasons of Bathurst CJ I referred to earlier. The defendant adds that in the context of an otherwise administrative decision-making process, it would be odd for a defence available on a factual point to be elevated to the exercise of a judicial power.
That the issue under s.14(3) is a question of fact is confirmed by the decision of the Court of Appeal in Holden Pty Ltd v Walsh [2000] NSWCA 87 ("Walsh"), cited by counsel for the Attorney General in his written submissions. See especially paragraph [42].
Counsel for the Attorney General also submitted that the question is not closely analogous to any issue arising a general law.
I accept those submissions.
I find that in determining the issue raised by the parties under section 14(3), the Commission would not be exercising judicial power, but instead administrative power.
The issue of dependency under section 25 is undoubtedly a question of fact. The High Court confirmed as much when considering similar provisions in the Workers Compensation Act, 1926 (NSW): Aafjes v Kearney (1976) 180 CLR 199. As Barwick CJ put it at 202, "the question of dependence or no dependence, whole or partial, is a question of fact". See too McTiernan J at 205 and Mason J at 210 (with whom Stephen J agreed).
As to the further issue under section 25, and section 26, that the death must "result from" the injury, the issue bears the same character as similar issues under other sections I have already addressed, including section 4, section 9A and section 11A. It raises a question of causation, which is a question of fact. This too was confirmed by the Court of Appeal in Walsh. At [13], Giles JA said that "the requirement that the worker's death 'results from' the injury… does not involve a notion of proximate cause, and it is sufficient if the injury… materially contributed to the worker's death".
For those reasons, I find that in determining the issues raised by the parties under sections 25 and 26, the Commission would not be exercising judicial power, but instead administrative power.

[34]

Would determining one or more of those particular issues involve exercising judicial power?

Section 4 of the WIM Act provides as follows: "worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include - (a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or (b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or (c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or (d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while - (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things."
As I have mentioned when considering Manning, under section 9 of the WC Act it is a "worker" or a "worker's" dependants who shall receive compensation from the worker's employer in accordance with the Act. The definition of "worker" obviously underpins the whole Act.
The parties and the Attorney General agree that the question of whether or not Mr Honey was a "worker" at the relevant time is a question of fact. He either falls within the definition of "worker" or not.
The plaintiff submitted that the determination of whether an injured person is a "worker" is no different to the determination of whether s.4(b)(i) or s.11A of the WC Act applies, and is removed from traditional aspects of judicial power.
Counsel for the Attorney General submitted that the issue under section 4 of the WIM Act is whether a person is a "worker" for the purposes of the WC Act and WIM Act as someone who "has entered into or works under a contract of service or a training contract with an employer" and does not fall within an exception. A "training contract" has the meaning it has in the Apprenticeship and Traineeship Act NSW 2001, which is "a contract entered into for the purpose of establishing an apprenticeship or traineeship (per the Dictionary in that Act).
Counsel for the Attorney General further submitted that whilst the notion of a "contract of service" is a concept well-known to the general law and can arise in many different areas of the common law, and perhaps allow for the drawing of analogies, it is important to recognise that the issue does not arise and is not directed to any right, duty, power or liability arising under the general law, but rather to the operation of the statutory regime, and more particularly whether a person is entitled to statutory compensation under the Act. This submission echoes the approach adopted by the Court of Appeal in Kanajenahalli at [8] - [9].
Both the plaintiff and Attorney General submit that for these reasons, the Commission would not be exercising judicial power in deciding whether or not Mr Honey was a "worker" for the purposes of his application for statutory compensation. I accept those submissions and agree.
The defendant also submitted that the Commission would not be exercising judicial power, but arrived at that conclusion by a different route. The defendant submitted that the definition of worker in section 4 of the WIM Act seeks to define the class of claimants to which statutory entitlement to compensation pursuant to section 9 of the WC Act applies. The submission continues that whether or not the claimant falls within the class of claimants is a question which also determines the jurisdictional limits of the Commission. If a claimant is not a worker to which the WIM Act and the WC Act applies, then, it is submitted, the Commission has no jurisdiction to determine the dispute raised by the claimant. Whether or not the claimant is a worker, it was submitted, therefore becomes an issue of the jurisdictional limits of the Commission. Based on the decision of the High Court in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, (2022) 400 ALR 1, (2022) 96 ALJR 476 the defendant submitted that the Commission would be exercising a non-judicial power in deciding the issue. Particular reliance was placed upon what Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ said at [20]-[24]. At [24] their Honours said (omitting citations), 'A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority - in the exercise of non-judicial power - to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action".'
Counsel for the Attorney General submitted that Citta Hobart did not deal with the situation where the issue of jurisdiction was bound up potentially with a substantive issue on the claim, and that may give rise to some differences as to the application of the principles discussed in that case.
In light of the conclusion I have already reached and the caution suggested by counsel for Attorney General, it is unnecessary for me to pursue the suggested different route any further and I base my decision on the submissions of the plaintiff and the Attorney General which I have already accepted.
For those reasons, I find that in determining the issue of "worker" raised by the parties under section 4 of the WIM Act, the Commission would not be exercising judicial power, but instead administrative power.
The other issues in relation to Mr Honey's application to the Commission raise issues under sections 33 and 60 of the WC Act. I have already addressed the issues raised by those sections when considering Mr Ramsay's application to the Commission.
For the reasons I gave there, I find that in determining those issues the Commission would not be exercising judicial power in relation to Mr Honey's application.

[39]

Would determining one or more of those particular issues involve exercising judicial power?

I have already given reasons as to why in my view determining issues under section 4 and 9 would not involve an exercise of judicial power.
Section 11 of the WC Act provides as follows: 11A No compensation for psychological injury caused by reasonable actions of employer (1) 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. (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system. (5) (Repealed) (6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment. This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury). (7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition". (8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement) - (a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and (b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.
The issue raised under section 11A(1) is the issue considered by the Court of Appeal in Kanajenahalli and which was also raised in Ramsay. It would not involve an exercise of judicial power to determine that issue.
Whether or not Ms Duncan's claimed injury falls within the definition of "psychological injury" in s.11A(3) raises a question of fact. Whilst the question it raises may be similar to the need to establish a recognisable psychiatric illness under common law principles in a negligence claim for damages for nervous shock, the analogy ends there; as it did in Kanajenahalli.
The issue raised by section 11A(7) would seem to me to be purely administrative.
For those reasons, I find that in determining the issues raised by the parties under s.11A, the Commission would not be exercising judicial power, but instead administrative power.
The issue raised under section 37 read with section 37A of the WC Act was explained by counsel for the Attorney General. The issue is the amount of the weekly payment during the "second entitlement period" (weeks 14-130) based on the worker's "work capacity", "pre-injury average weekly earnings" and "current weekly earnings" and the "maximum weekly compensation amount".
Counsel for the Attorney General submitted that the calculation of weekly payments based on statutory formulae is not closely analogous to a function of a court under the general law. Under these provisions, even where the worker has "no current work capacity", the weekly payment to which he or she is entitled is limited to a proportion (80%) of pre-injury average weekly earnings. This reinforces that statutory compensation under the WC Act is not a remedy in the nature of damages for the entire loss caused by breach of a duty. Another issue under s 38 of the WC Act is the amount of any payments after the second entitlement period, which resembles the issue under s.37 of the Act.
The issue under section 32A apparently ties in with section 38. As explained by counsel for the Attorney General, one issue under s.38 of the WC Act is whether the worker is entitled to payments after the second entitlement period because he or she is likely to continue having no or limited work capacity or because the injury resulted in a prescribed degree of permanent impairment. This turns on fixed criteria such as whether the worker has returned to work for "not less than 15 hours per week" and is receiving earnings of "at least $155 per week" (s.38(b)) and whether the degree of permanent impairment is "more than 20%" (s.38(3A) read with the definition of "worker with high needs" in s.32A(1)).
Counsel for the Attorney General submitted that the application of such criteria has no close analogy with any issue at general law.
I accept those submissions.
For those reasons, I find that in determining the issues raised by the parties under s.32A, 37 and 38 of the WC Act, the Commission would not be exercising judicial power, but instead administrative power.
For reasons I have already given, I take the same view about determining issues raised under sections 59 and 60 of the WC Act.

[41]

The factual context

The parties have provided the Court with an agreed statement of facts, as well as a copy of the application to the Commission.
Ms Magnan was employed by the Upper Hunter Shire Council as a Work Health Safety Advisor between 5 July 2017 and 4 July 2018.
She was at that time resident in New South Wales.
The work performed was undertaken in New South Wales.
Ms Magnan alleges by reason of her employment, she contracted Q fever (the alleged injury).
Q fever is a disease process.
On or about 22 August 2018 Ms Magnan made a claim for compensation upon the Council under the WC Act in respect of the alleged injury.
On 17 December 2019 the Council issued a notice pursuant to section 78 of the WIM Act denying the claim for compensation.
On 27 October 2021 Ms Magnan lodged an Application for Determination with the Commission seeking compensation for the alleged injury.
At the time the application was made, Ms Magnan was a resident of the State of Queensland.
On 17 November 2021 the Council filed a Reply in the Personal Injury Commission disputing the Plaintiff's entitlement to the relief sought.
On 24 February 2022 the Commission dismissed the application for compensation on the basis that determination of the issues in dispute between the parties involved the exercise of federal jurisdiction.
By Summons filed on 19 July 2022 Ms Magnan sought leave to commence proceedings in this Court pursuant to s26(3) of the PIC Act.
On 19 September 2022 the Judicial Registrar granted her leave pursuant to s26(3) of the PIC Act.
On 22 February 2024 Ms Magnan filed a motion seeking an order remitting the proceedings to be heard by the Commission pursuant to s26(5) of the PIC Act.
The parties agree the issues to be determined in these proceedings are: 1. Whether the contraction of Q fever was an injury within the meaning of s.4(b) of the WC Act; 2. If so: Was Ms Magnan incapacitated for employment as a result of a work injury and if so, to what extent (s.33, 36-38 of the WC Act)? What is her entitlement to medical and related expenses (s.60 of the WC Act)? Does she have an entitlement to permanent impairment compensation (s.66 of the WC Act)? 186.1 The parties agree that determining the above issues involve the exercise of administrative power and not the exercise of judicial power.

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