WORKCOVER AUTHORITY OF NSW v MACKLEY

Court of Appeal (NSW)|2006-07-27|Before: Hodgson JA, McColl JA, Bryson JA, Handley DP, Coll JA

CITATION: WORKCOVER AUTHORITY OF NSW v MACKLEY [2006] NSWCA 204

JUDGMENT OF: Hodgson JA at 1; McColl JA at 7; Bryson JA at 8

CATCHWORDS: WORKERS COMPENSATION - Uninsured Liability and Indemnity Scheme - recovery by WorkCover Authority from uninsured employer - extent of discretionary power of WCC under s.145 of WCAct - Worker recovered award against uninsured employer and WorkCover Authority - WorkCover paid compensation and served notice on employer under s.145(1) requiring reimbursement - employer applied under s.145(2) to WCC for determination as to liability and Presidential Member decided not to enforce the notice but to relieve employer from liability - consideration of whether power of WCC under s.145(4) ("... make such determination ... as the Commission thinks fit") is a discretion to formulate determination in whatever terms WCC thinks fit to give effect to rights of parties or a wider discretion to decide what the rights of the parties should be - consideration of - nature of entitlements conferred by Pt.4 Div.6 of WCAct - effect of earlier proceedings between same parties in Compensation Court - held that the discretion is a wide discretion and extends to power to relieve uninsured employer from liability - appeal dismissed.

Interpretation Act 1987 (NSW) s.9 Workers Compensation Act 1987 (NSW) Pt.4 Div.6; Pt.8; ss.60, 66, 67, 140, 141A, 142, 143, 144, 145, 145A, 148A LEGISLATION CITED: Workers Compensation Amendment (Insurance Reform) Act 2003 No. 81 Sch. 2 Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 No. 113 Sch. 3.2 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss.105, 287, 344, 353, 367(1)

Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 GRE Workers Compensation Insurance (NSW) Ltd v Nohil Pty Ltd & Others (1996) 13 NSWCCR 74 Hadchiti v Llandilo Staircases Pty Ltd & Anor (2002) 23 NSWCCR 170 CASES CITED: Israel v Foreshore Properties Pty Ltd (in liq.) (1980) 54 ALJR 421 Nohil Pty Ltd v GRE Workers' Compensation Insurance [1995] NSWCC 9; (1995) 11 NSWCCR 69 Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 Petersen v Tansiri (2001) 22 NSWCCR 602 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Raniere Holdings Pty Ltd v Daley & Anor [2005] NSWCA 121

PARTIES: Workcover Authority of NSW - Appellant Robert James Mackley - Respondent

COUNSEL: T.G. Parker SC - Appellant C.S. Leahy SC & R. Stanton - Respondent

SOLICITORS: Turks Legal - Appellant MacLean & Curtis by their Sydney Agent Paul Wells & Co. - Respondent

LOWER COURT JURISDICTION: Workers Compensation Commission

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40460/2005

HODGSON JA McCOLL JA BRYSON JA

27 JULY 2006 WORKCOVER AUTHORITY OF NSW v ROBERT JAMES MACKLEY Judgment 1 HODGSON JA: I agree with the orders proposed by Bryson JA and with his reasons. I would make the following additional comments. 2 In my opinion, the reference in s.140(3) of the Workers Compensation Act 1987 (WCA) to subsection (2) is falsa demonstratio for subsection (1), and the reference is to paragraph (b) of that subsection; and s.140(3) only applies where the worker's claim is pursuant to s.140(1)(b). 3 However, it could be contended that s.140(3) manifests an intention that, at least in the case where the employer is identified only after payment has been made by the Authority, the Authority is entitled to reimbursement; so that it would be surprising if the Authority were not entitled to reimbursement in cases arising under s.140(1)(a) as well. There is force in that argument; and the question is whether it is strong enough to prevail having regard to other considerations relating to "the manner provided by this Division" referred to in s.140(3). 4 In my opinion, s144(3) of WCA gives the Commission a discretion whether or not to grant a claim by a worker to be paid compensation by the Authority: s.143 indicates that the Authority may refuse to satisfy a claim, even if the worker proves entitlement as against the employer and satisfaction of the requirements of s.140(1), so it would seem clear that the Commission may do likewise. The Authority agreed that this was so. This power to refuse might be exercised, for example, if an uninsured employer has ample means to pay compensation to the worker. 5 That being so, the close similarity between the wording of s.144(3) and that of s.145(4) strongly suggests that the Commission has a similar discretion under s.145(4). There is also a parallel between the Authority's power under s.143(2) to refuse a claim, and its power under s.145(2) to waive an employee's liability to reimburse it; and this also supports the view that in both cases the Commission is given a similar power. I think these considerations outweigh any suggestion to the contrary derived from s.140(3). 6 In the present case, there were considerations supporting an exercise of discretion in favour of the respondent. He had agreed to pay a friend $15 per hour for help for a matter of hours on one day, and Judge Geraghty held, with justification, that he could not reasonably have been expected to regard himself as an employer who was bound to have workers compensation insurance. It was reasonable for the Presidential Member to come to a similar conclusion. 7 McCOLL JA: I agree with Bryson JA. 8 BRYSON JA: Robert James Mackley, an uninsured employer, received a notice under s.145(1) of the Workers Compensation Act 1987 (NSW) ("WCA") requiring reimbursement of compensation which WorkCover Authority paid to a worker to whom the employer was liable: the employer applied to the Workers Compensation Commission (the Commission) under s.145(3): the Arbitrator decided to enforce the notice and on review the Presidential Member decided not to. Now WorkCover appeals under s.353 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIMWCA"), and the appeal is as of right having regard to the amount in dispute. In order to succeed WorkCover Authority must show that it is aggrieved by the decision under appeal in point of law; see s.353(1). 9 This appeal relates principally to the powers conferred on the Commission by s.145(4) of WCA to determine an application by a person on whom WorkCover Authority has served notice requiring payment under s.145(1) after WorkCover Authority has made a payment to an injured worker under the Uninsured Liability and Indemnity Scheme. The issue, stated broadly, is whether the discretion which the authorisation in s.145(4) to make determinations, awards or orders "as the Commission thinks fit" gives to the Commission is a discretion to formulate a determination, award or order in whatever terms the Commission thinks fit to give effect to the rights of the parties, or whether the discretion is much wider and also authorises the Commission to decide what the rights of the parties should be or to alter what their rights would otherwise be. 10 The respondent Mr Mackley lives in Manilla, New South Wales, and carries on business as a carpenter: a jobbing carpenter with a one-man operation. It was Mr Mackley's position that he did not ever employ anyone in his business; and consistently with that, he was not insured against liability for workers compensation. On 14 June 2001 Mr Mackley was doing carpentry work on a house in River Street, Manilla, including fitting a wood-burning heater which was too heavy for him to move on his own. He went to the residence of Mr Michael Alexander McLeod, who lived four or five blocks away from the worksite, and asked Mr McLeod to help him move the heater. Mr McLeod agreed, and went to the premises with Mr Mackley where they moved the heater. Mr McLeod then went home. That afternoon Mr Mackley again went to Mr McLeod's residence and asked Mr McLeod to help him by passing some tools up to him while he worked in the roof space. Mr McLeod agreed, they went to the premises together and Mr Mackley's work continued with Mr McLeod's assistance. After a short time Mr McLeod met with an accident; he was standing on a ladder, his foot slipped, the ladder collapsed and he fell. Mr McLeod sustained serious injuries to his right arm and back, principally comminuted fracture of the lower end of the right radius and fracture of the body of the second lumbar vertebra. Mr McLeod claimed workers compensation from Mr Mackley, who disputed that there was a relationship of employment. From time to time the two men helped each other out with assistance in work projects by way of favours, and while Mr Mackley maintained that this was the basis on which Mr McLeod was working, Mr McLeod gave evidence that he was offered and accepted $15 per hour to work as a builders' labourer for Mr Mackley. 11 Mr McLeod followed procedures prescribed by Pt.4 Div.6 of WCA and brought his claim in the Compensation Court of New South Wales against Mr Mackley as first respondent and WorkCover Authority as second respondent. Mr McLeod's claim was heard by Judge Geraghty; the learned Judge found that there was an employment relationship and made an award on 5 September 2003 which (after a later amendment corrected a misnomer) ordered and awarded that Mr Mackley pay Mr McLeod $15,000 as lump sum compensation under s.66 of the WCA in respect of loss of use of Mr McLeod's right arm below the elbow and $9,000 in respect of permanent impairment of Mr McLeod's back; $17,500 as lump sum compensation in respect of pain and suffering under s.67 of the WCA; and also s.60 expenses (which were not quantified in the award). There was also an order for costs. There was not an award for weekly payments. Then in a further order on 3 October 2003 Judge Geraghty ordered and awarded that WorkCover Authority cause payment of the compensation earlier awarded on 5 September 2003 against Mr Mackley to be made out of the WorkCover Authority Fund under the Uninsured Liability and Indemnity Scheme. 12 WorkCover Authority gave Mr Mackley a notice under s.145(1), but only after the award of 5 September 2003 had been made. After a further hearing in the same proceedings of an application by WorkCover Authority for an order that Mr Mackley reimburse WorkCover Authority for the lump sums awarded to Mr McLeod, Judge Geraghty in a judgment given on 2 December 2003 declined to make an order for reimbursement. Judge Geraghty made a declaration that at all material times Mr Mackley was uninsured. The application for an order of reimbursement was said to be made pursuant to s.144 of WCA, and was treated by Judge Geraghty as authorised by s.144. Section 144(5) refers to an order for reimbursement and speaks of "reimbursement … under section 145" yet Mr Mackley had not made an application of the kind referred to in s.145(3) and the procedural course indicated by s.145 had not been followed. Judge Geraghty's reasons show clearly that his Honour was of the view that he had acted only under s.144, that his Honour did not intend to exercise the power in s.145(4) and that in his Honour's view it was still open to the WorkCover Authority to proceed under s.145 and to Mr Mackley to make an application under s.145(3). Judge Geraghty said (Supplementary Orange 24-26) after reviewing Mr Mackley's financial position:- Normally, in these circumstances, an order would and should be made in accordance with s 144(3)-(5). This is because, in normal circumstances, an uninsured person should shoulder the liability of the injury sustained by one of his workers, and the community should not bear this burden. The WorkCover Authority Fund is there as a safety net for the worker so that he may be reimbursed immediately and without problem, and the WorkCover Authority should then be able to seek reimbursement.

There is no doubt that s 144 provides a discretion to the Court, and s 145 provides a general discretion to the Court as well as guidance in the exercise of discretion by WorkCover Authority. In s 145 the Authority is invited to determine whether reimbursement should be sought: firstly, whether the amount is beyond the capacity of the uninsured employer to pay; secondly, whether the uninsured employer in the circumstances could not reasonably have expected to regard himself as an employer at the relevant time; and, inter alia, whether it is commercially feasible for the Authority to attempt to recover the amount.

It seems to me that some of those considerations should also be brought to bear on the question as to whether the Court exercises its discretion both to make an order in s 144 or in s 145. It is commercially feasible for the Authority to attempt to recover the amount in the sense that Mackley does have some assets from which the amount could be paid and an income from which some amount could be deducted on a regular basis. However, I need to ask whether the circumstances take this particular case outside the ambit of the ordinary situation.

Mr Kops submitted that I would need to have truly outstanding grounds to exercise any discretion in favour of the first respondent. He said that they must be grounds which were really exceptional . I do not consider that the test is as high as all that, but it is true that in order not to make a order for reimbursement, the circumstances need to be abnormal.

I have taken the following matters into consideration. Firstly, in determining whether Michael Mcleod was an employee of Robert Mackley, or not, was a difficult exercise. There remained some doubt in my mind, since the oral evidence of both simply contradicted one another, and I determined the issue on the evidence which Mackley gave as to the completion of a form in hospital when Mcleod was being treated. I decided the issue on the balance of probability, always conscious that there was some doubt as to how the matter should have been decided. It was the forms that Mackley completed and his explanation as to how he went about those completions which swung the balance in favour of Mr Mcleod and grounded my finding that Mcleod was a worker. This matter, I think, needs to be weighed in the balance.

Secondly, the arrangement between the parties was very casual and lasted only at most a matter of hours, on one day; it was not a relationship which continued over a period of even a week, or a few days. Thirdly, it seems to me that Mackley, at that time, was not accustomed to employing other people, and even granted that he was asking Mcleod to work for him for some hours, and that he would be paid (given that I did not find that he was going to be paid $15 an hour as Mr Mcleod had alleged was said), it seems to me that there was sufficient vagueness about the arrangement which demanded someone of studied legal knowledge to apply the tests or indicia of employment in order to come to a finding. In other words, I am persuaded that Mackley could not reasonably have been expected in the circumstances to regard himself as an employee who was bound to have workers since the arrangement was between friends, on a casual basis, albeit that he was at the time the employer.

I also have regard to the fact that WorkCover exists to establish a safety net for the injured [worker] and some kind of lump sum fund to protect the injured worker, not to take the place of the irresponsible employer, but to cover the situation where some misunderstanding resulted in unemployment or non-insurance and therefore to apply the considerations set out in sub-clause (2) of s 145. It seems to me that the current financial position of Mackley, bearing in mind his debts and his assets, is precarious at the least, and that any extra liability placed on him is only going to push him further under.

The WorkCover Authority is able to proceed, in any event, under s 145. It can determine whether it wishes to proceed under that section, or whether it wishes to exercise its discretion as set out in the section, and if not, then the first respondent is able to seek the benefit of the discretion of the Commission as set out in the section. So, this is not necessarily the end of the matter. 13 The decision of the Court of Appeal in Raniere Holdings Pty Ltd v Daley & Anor [2005] NSWCA 121, given on 22 April 2005 and later than the decision of Judge Geraghty, shows that compliance with the procedures referred to in s.145 is not essential where a reimbursement order is sought in the course of proceedings under s.144. When an order is made under ss.144(3) and 144(5) it is not necessary to follow the procedural course of giving a notice referred to in s.145(1); and as a consequence it is not necessary to follow s.145(3) relating to an application to the Commission by the person upon whom the notice was served; see Tobias JA at [47]. I respectfully adopt his Honour's statement that "… the purpose of s 144(5), given the context of the application before the Compensation Court to which it relates, is to engage so much of s 145 as is applicable in the circumstances."; see too para [48]. In view of Raniere Holdings, Judge Geraghty's view that there was a relevant power to exercise under s.144, not being the power under s.145, can be seen to have been incorrect: but this does nothing to deprive his Honour's order of effect, or to attribute it to the power under s.145, which, as his Honour's reasons make plain he did not exercise. There has not been an appeal from any of Judge Geraghty's orders. 14 In Raniere Holdings the order under appeal was made under s.145(4), it would seem operating with s.144(5), without affording the employer an opportunity to dispute relevant matters. The establishment of liability with procedural regularity leading to Judge Geraghty's awards places the present facts in considerable contrast with the facts in Raniere Holdings. 15 An officer of WorkCover Authority gave Mr Mackley a written notice dated 22 September 2003 requiring him to reimburse $90,950.21 which WorkCover Authority had paid to Mr McLeod; the particulars in the notice are difficult to follow but they appear to include the lump sum and medical expenses which Judge Geraghty awarded on 5 September 2003, and also many weekly payments with which the award does not deal. By an application registered by the Commission on 7 January 2004 Mr Mackley applied under s.145(3) for a determination, and stated the grounds of his application in terms of s.145(2) paras (a), (b) and (f). The grounds stated did not dispute the entitlement of Mr McLeod to recover compensation from Mr Mackley, and did not challenge the references in the notice to the amount of compensation paid. By its reply (of 193 pages) registered on 16 January 2004 WorkCover Authority disputed these grounds in fact and also disputed Mr Mackley's entitlement to rely on matters in s.145(2). By the time of the hearing before the Arbitrator the claim by WorkCover Authority for payments made to Mr McLeod totalled $133,828.73, supported by a certificate under s.145(5). The application was heard and decided by Arbitrator Whitelaw on 10 June 2004. In reasons stated orally (Black 21-22) the Arbitrator referred to the contention by counsel for Mr Mackley that the power of determination in s.145(3) and (4) enabled the Commission to waive Mr Mackley's liability, and after referring to earlier decisions in the Compensation Court and the Commission ruled that the Commission had no power to excuse Mr Mackley from liability. The Arbitrator's determination was that Mr Mackley pay $133,828.73 to WorkCover Authority. 16 After hearing an appeal by way of review the Presidential Member (Acting Deputy President Handley) for reasons stated on 10 May 2005 revoked the decision of the Arbitrator and made a decision pursuant to s. 145(4) that Mr Mackley was relieved of liability to reimburse WorkCover Authority. The learned Presidential Member reviewed a number of decisions in the Compensation Court, and also the Court of Appeal's decision in GRE Workers Compensation Insurance (NSW) Ltd v Nohil Pty Ltd & Others (1996) 13 NSWCCR 74. The Presidential Member expressed the view (Red 253 [25]) that the Commission's power does not extend to review of the exercise of WorkCover's discretion pursuant to s.145(2) or to exercise by the Commission of the power of waiver thereunder: this is clearly correct. The Presidential Member then said (Red 254 [25]): 25. ... However, as the Court of Appeal recognised in Nohil , the Commission's power is, nevertheless, a broad one whereby it may determine the liability of a person on whom a notice for reimbursement has been served pursuant to section 145(1), in respect of an amount of compensation paid by WorkCover under the Uninsured Liability and Indemnity Scheme. The transcript suggests that the Arbitrator may have viewed "a determination as to the person's liability" (section 145(3)) narrowly as meaning the quantum of liability and not including broader questions as to whether a person should be liable to reimburse WorkCover. By so doing, the Arbitrator made an error of law: it is clear from Nohil that the section 145(4) "plenary power" permits the Commission to make orders adjusting the rights of parties as to liability as it thinks fit. 17 The Presidential Member then went on to consider whether the Commission should use these powers to adjust the rights of a party and referred at some length to the reasons given by Judge Geraghty in the application attributed to s.144(3). The Presidential Member referred to a draft of Judge Geraghty's judgment, but as a copy certified by his Honour is now available I have earlier set out passages from that source (Orange 25-26). The certified copy shows signs of revision when compared with the draft but I have not observed any change in substance. In disposing of this question the Presidential Member said (Red 255 [29]): 29. In the proceedings before the Commission, there has been no disagreement between the parties as to the facts and the parties have not sought to adduce any fresh evidence in this appeal. Geraghty CCJ heard evidence from both Mr McLeod and Mr Mackley about the events of 14 June 2003 when the accident in which Mr McLeod was injured took place. His findings are reflected in the passage above. There is no basis on which I might find otherwise and I therefore find in accordance with Geraghty CCJ's findings. Moreover, for the reasons he gave, quoted above, I have decided that I should exercise the broad powers with which the Commission is endowed by section 145(4) to relieve Mr Mackley of liability for reimbursing WorkCover. In so doing, I emphasise that I am not waiving Mr Mackley's liability - rather I am exercising the power of the Commission pursuant to subsections 145(3) and (4) to determine the "person's liability" (section 145(3)) to reimburse WorkCover for the amount specified in the Notice dated 11 December 2003. 18 The proceedings in the Compensation Court established several matters which cannot be and have not been disputed since. The fact that Mr McLeod was a worker employed by Mr Mackley, the liability of Mr Mackley to pay the compensation awarded to Mr McLeod and the fact that Mr Mackley is uninsured are res judicatae from which WorkCover Authority, Mr McLeod and Mr Mackley cannot depart in the present litigation, as all three were parties to the proceedings in the Compensation Court. There is not and cannot now be (if there ever could have been) an order under s.144 for reimbursement of WorkCover Authority by Mr Mackley in the proceedings which Mr McLeod initiated; but as the procedural course in s.145 was not followed it remained open to WorkCover Authority and to Mr Mackley to follow the procedures in s.145, and for the Compensation Court (and now the Commission) to exercise the powers in s.145(4). 19 Part 4 Div.6 of WCA relates to the Uninsured Liability and Indemnity Scheme. WorkCover Authority administers the Scheme, under which the WorkCover Authority Fund is available from which to pay workers compensation and work injury damages to a worker if the employer is not insured or cannot be identified. There are provisions relating to recovery from uninsured employers of compensation or damages paid to workers under the Scheme. Division 6 does not uniformly use language which clearly or directly confers entitlements to payments, and sometimes uses language which interposes discretionary decisions between facts which seem to make payment appropriate and actual recovery. Section 140(1) is: 140 Persons eligible to make claims (1) A claim under the Scheme may be made as provided by this section by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if: (a) the employer is uninsured, or (b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.

(3) If a payment is made by the Authority in respect of a claim under subsection (2) and the employer is subsequently identified, the Authority may recover the amount paid from the employer or the employer's insurer in the manner provided by this Division. 20 The reference to subs.(2) in subs.(3) is difficult to follow because subs.(2) does not refer to unidentified employers, but to uninsured employers; but the conferral on WorkCover Authority of a right to recover the amount paid where the employer is subsequently identified is relatively clear. That right is, however, a right to recover "in the manner provided by this Division" and no more. 21 After provisions dealing with making and processing claims s.143 provides: 143 Determination of claim by Authority (1) From the WorkCover Authority Fund the Authority may, in respect of a claim under the Scheme: (a) pay compensation in accordance with this Act or work injury damages, with or without admission of liability, or (b) make ex gratia payments. (2) The Authority may refuse to satisfy a claim under the Scheme. (3) If the Authority does not, wholly or in part, satisfy a claim under the Scheme, it shall, within 14 days of making the relevant decision, advise the claimant of its decision and the reasons for its decision. (4) (Repealed) 22 Division 6 does not confer a legal right on the person making a claim to have payment out of the WorkCover Authority Fund in any circumstances; there is discretion. 23 Sections 144 and 145 are in these terms: 144 Appeal against Authority's decision on claim for compensation (1) A claimant under the Scheme who is dissatisfied with a decision of the Authority in respect of a claim for compensation may apply to the Commission for a determination of the claim. (2) If such an application is made: (a) the applicant shall name the employer by whom the applicant alleges compensation is payable and the Authority as respondents to the proceedings, and (b) the Authority may, by service of a notice on any person who, in the opinion of the Authority, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings. (3) The Commission may hear and determine any such application and may make such orders in relation to the application as the Commission thinks fit. (4) Where an order under subsection (3) directs the doing of anything by the Authority or any other person, the Authority or that person, as the case may be, shall comply with that direction. (5) An order under subsection (3) may provide for the reimbursement of the WorkCover Authority Fund under section 145. 145 Employer or insurer to reimburse Authority (1) The Authority may serve on a person who, in the opinion of the Authority, was: (a) in respect of an injured worker to or in respect of whom a payment has been made under the Scheme, an employer at the relevant time, or (b) an insurer under this Act of such an employer, a notice requiring that person, within a period specified in the notice, to reimburse the WorkCover Authority Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice. (2) The Authority may, by instrument in writing, waive the liability of an employer under subs. (1) to reimburse the WorkCover Authority Fund an amount, if the Authority, in respect of the amount, is satisfied that: (a) the amount is beyond the capacity of the employer to pay, (b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time, (c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy, (d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up, (e) the employer, being a corporation, has been dissolved, or (f) it would not be commercially feasible for the Authority to attempt to recover the amount. (3) A person on whom a notice has been served under subs. (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned. (4) The Commission may hear any such application and may: (a) make such determination in relation to the application, and (b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit. (5) In any proceedings under subs. (4), a certificate executed by the Authority and certifying that: (a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and (b) a person named in the certificate was, in the opinion of the Authority, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages, is (without proof of its execution by the Authority) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate. (6) The Authority may recover an amount specified in a notice served under subs. (1) (being a notice in respect of which an application has not been made under subs. (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction. (7) An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act. 24 Amendments to ss.144 and 145 as first enacted have altered references to the Fund and to the predecessor of WorkCover Authority, and to the successive adjudicatory bodies, and have extended their provisions to work injury damages, but these and other minor amendments have not altered the terms in which the power in s.145(4) is conferred. 25 Far-reaching amendments to Div.6, including the repeal of ss.142 and 143 and amendments to s.145, are provided for by Workers Compensation Amendment (Insurance Reform) Act 2003 No. 81 Sch. 2 and Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 No. 113 Sch. 3.2, but these enactments have not yet commenced. 26 Sections 144 and 145 as first enacted conferred powers on commissioners under Pt. 8 of the WCA. The references to the commissioners were replaced for a time by references to the Compensation Court and later by references to the present Commission. That the power in s.145 was first conferred on administrative officers somewhat blunts the view (which I discuss later) that the discretion was limited to the formulation of an appropriate order: later conferral of the same power on a Court, and then later on an administrative body with judicial functions is unlikely to have been intended to alter the power. The Commission is an administrative body exercising judicial functions and (as is shown by Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282) is not a court. 27 The words "as the Commission thinks fit" found in s.145(4), and the earlier form which referred to the Compensation Court, speaking as they do of the exercise of power by a body on which judicial functions are conferred, are words which, according to context, would readily be taken to confer a discretion as to the appropriate form of orders to give effect to the legal rights of the parties as the Commission had determined them to be. Entitlements or expectations to which a notice under s.145(1) and an application referred to in s.145(4) relate are to be found only in Div.6, and there are no provisions there which in express or clear terms create a legal right for WorkCover Authority to obtain a payment from an employer (who must, in the context, be an uninsured employer) or from an insurer (which must in the context be an insurer of an employer who at an earlier point was unidentified). The language used opens up consideration of the breadth of the discretion conferred by subs. (4). The word "may" which is apt to confer a discretion is repeatedly used; in s.145(1) to enable the Authority to serve a notice, in s.145(2) to enable the Authority to waive liability, in s.145(3) to enable a person on whom the notice is served to apply to the Commission for determination as to the person's liability and in subs. (4) repeatedly as to the powers of the Commission. Except perhaps as to whether or not the Commission may hear the application there is nothing in the context to take these uses of the word "may" away from the meaning attributed to it by s.9 of the Interpretation Act 1987 (NSW): 9 Meaning of may and shall (1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. 28 Section 145(6) creates an obligation enforceable as a debt where a notice is given and no application has been made under subs. (3). The terms of s.145(6) can support an implication that in other circumstances the facts referred to in s.145 do not create a debt. 29 In Div. 6, s.145A also speaks in terms appropriate to the existence of enforceable liabilities to make payments which do not depend on any discretionary step; s.145A(1): 145A Recovery from directors of corporations liable to reimburse Authority (1) If a corporation is liable to reimburse the Authority an amount for a payment made under the Scheme and the amount is not recoverable from the corporation, the Authority is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time. 30 Section 148A also uses language which assumes the existence of liabilities to make payments. Section 141A - Special Provisions For Claims For Work Injury Damages - does not bear on the present issue. 31 Part 4 Div.6 speaks at some places in terms which create enforceable rights to payments, but at other places, significant for the issues now under consideration, the language used creates discretions and never reaches the point of creating an obligation to make a payment without interposing a discretion. The contrast enhances the ordinary reading in which obligations depending upon discretion are not absolute obligations. 32 These considerations to my mind support the view that the discretion conferred by s.145(4) is a wide one and is not simply confined to formulation of appropriate terms of a determination, award or order to give effect to some right which is the subject of the application. 33 The wide view of the discretion is supported by considering the terms of s.144 which confer power on the Commission when the claimant (that is, a worker or a person who claims to be a worker) is dissatisfied with a decision which WorkCover Authority has made under s.143; dissatisfaction could relate to the amount paid, or to a refusal to satisfy a claim. In such an application WorkCover Authority is to be a respondent, as is the employer, and the orders which the Commission may make include an order providing for reimbursement of the WorkCover Authority Fund "under section 145". The order for reimbursement of the WorkCover Authority Fund made under s.144 is to be made under the power conferred by s.144(3), in terms with a strong general similarity to s.145(4). The reference in s.144(5) to s.145 must plainly be read with some latitude. Anomalies are resolved by Raniere Holdings. The reference in s.144(5) to s.145 must on a reasonable reading be understood to be a reference to such of the provisions of s.145 as can be applicable in an application under s.144, and, whatever else it may extend to, must refer to s.145(4). 34 It was established by the decision of the Court of Appeal in GRE Workers' Compensation Insurance (NSW) Ltd v Nohil Pty Ltd & Ors (1996) 13 NSWCCR 74 that the power which s.145(4) then conferred on the Compensation Court was not conditioned upon the occurrence in fact of the events referred to in ss.145(1) and 145(3), essentially because the Court was empowered by s.145(4) to make orders which went well beyond the disposition of the issues which would arise between the Authority and the recipient of the notice who applied for determination, and the terms of s.145(4) themselves show that the powers extend to making orders in respect of the injured worker; see Cole JA at 80 to 82. Clarke and Handley JJA agreed with Cole JA's reasons and Handley JA's additional observations are confirmatory. See pp 77 to 78. Justice Cole said at 81: Subsection (3) permits determination as to "the person's liability". A person's liability includes not only any obligation to pay compensation, but also that person's right to any indemnity in respect of that compensation, for instance, from its insurer. Subs4 confers a power on the hearing of such an application to make "orders as to the payment of compensation ... in respect of the injured worker concerned". That is a plenary power permitting the court to make appropriate orders adjusting the rights of all persons or bodies who may have an existing or potential liability or entitlement to be relieved of liability because of insurance in respect of the compensation claimed by or awarded to the injured worker. 35 Justice Cole's observations relating to plenary power could be read as supporting the more ample view of the discretionary power in subs. (3), and it was contended that they do. However I do not read Cole JA's observations in that way because the issues in GRE Insurance v Nohil did not require consideration of any distinction between plenary power to enforce rights of the parties and plenary power to alter them. Justice Cole's observations and reference to "adjusting the rights of all persons … who may have an existing or potential liability or entitlement to be relieved of liability" can be readily read as referring to a plenary power to adjudicate on and make orders disposing of entitlements; at least as readily as referring to plenary power extending to altering entitlements. 36 At first instance in Nohil Pty Ltd v GRE Workers' Compensation Insurance [1995] NSWCC 9; (1995) 11 NSWCCR 69 Judge Manser heard an application by an employer under s.145(3) where the employer held insurance, the insurer disputed that the policy responded to the circumstances in which the injured worker was working and referred the claim to WorkCover Authority, and WorkCover Authority paid compensation to the worker and gave a notice under s.145(1) to the employer. Reading Judge Manser's judgment assists understanding of the appellate decision. Both contain observations which would be seen as supporting the respondent's position, but these are not authoritative as the decisions were not grounded on them. It was held, by Judge Manser and on appeal (though not for the same reasons) that the policy did respond: an altogether convincing reason for an order relieving the employer from the liability asserted in the notice, although Judge Manser's orders did not expressly do so, but achieved the same result by ordering the insurer to pay compensation; see page 108. In the course of his Honour's consideration Judge Manser said (at 87): In other words, once the jurisdiction of the Court has been invoked by "a person on whom a notice has been served under sub-section (1)", the Court is free to make such awards or orders in relation to the application as it thinks fit and is not confined to "a determination as to the person's liability under this Act". 37 Judge Manser said (at 89): In other words, if the Court came to the view that Nohil was liable to pay compensation to Kojta, that it had obtained and was maintaining in force a policy of insurance as required by the Act and was, therefore, not liable to make payment to the Authority as demanded in the notice, then the Court would be free to order GRE to make payment to or in respect of Kojta and to order that part of that compensation be paid to the Authority. The power to order that part of the payment of compensation be made to the Authority, is a plenary power under section 145(1) and (3) or incidental to the exercise of the Court's power under those subsections by subsections (3) and (4). 38 It was in this context that reference to power under s.145 as plenary power was introduced. Section 145(4) extended to power to order the insurer to pay compensation to and in respect of the worker, and in partial satisfaction to reimburse the Authority for payments which it had made; Judge Manser's orders (at 108) did so. As will later appear I regard Judge Manser's view (at 87) about the extent of the power as correct, but it was not essential to his Honour's decision because if insurance existed the power to compel the insurer to pay the amount of compensation, to the worker or to whomever else had paid the compensation, existed irrespective of s.145(4). Basic to Nohil is that there was insurance, and imposition of liability on the employer by a decision under s.145 was not necessary. The terms of s.145(4) themselves make it clear that the power extends widely so as, for example, to extend to determinations as to payment of compensation to the injured worker, who could not be a party to the notice procedure. 39 Counsel referred to other occasions on which the power in s.145(4) has been considered. In Petersen v Tansiri (2001) 22 NSWCCR 602 Judge Curtis decided an application by an uninsured employer to determine his liability after service of a notice pursuant to s.145(1): the employer relied on discretionary grounds relating to the default of a former partner and to economic hardship. Judge Curtis declined so to order and said (at 605[6]): 6. I have concluded that I have no jurisdiction to make the orders sought for two reasons. Firstly, because s 145(4) has work to do unrelated to the present claim, it does not seem necessary to expand the ambit of the section in order to accommodate the present claim for relief so as to exclude the possibility that the section was otiose. Secondly, the relief which is sought is relief akin to that contained within s 145(2) which power to relieve an innocent employer of liability has not been subjected to judicial review. It is most unfortunate that the draftsman has not made the legislative intention clear. 40 Petersen v Tansiri related to a small sum, counsel did not appear, judgment was given ex tempore and Judge Curtis did not refer to GRE Insurance v Nohil, either before Judge Manser or in the Court of Appeal, nor to any other authority. 41 In Hadchiti v Llandilo Staircases Pty Ltd & Anor (2002) 23 NSWCCR 170 Commissioner Wright was asked by an uninsured employer for an exercise of discretion under s.145 to order that there be no repayment of compensation by the employer to the Scheme administered by WorkCover Authority. Commissioner Wright referred to GRE Insurance v Nohil but said (in my view correctly) at 191 [85] that Nohil was decided on a different point to that before him. Commissioner Wright referred to the discretion to waive payment given to the Authority in s.145(2) and said (at 191-192 [86]) of s.145 "It does not give the Commission or the Court a power to waive the liability but rather to determine questions of liability that arise after compensation has been paid voluntarily by the WorkCover Authority." 42 These decisions were earlier than Raniere Holdings. 43 In Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94, on 20 May 2006 Acting Deputy President Candy considered the ambit of power under s.145 with care and in detail, and considered the decision of Acting Deputy President Handley in the present case and several unreported decisions. The learned Acting Deputy President concluded for the limited view of the power. Counsel referred the Court of Appeal to several other occasions on which s.145 has been considered or applied. 44 In the submission of counsel for WorkCover Authority s.145(2) provides machinery, and the only machinery for determination whether an employer is to reimburse the Authority, and the only justiciable issues left for consideration under s.145(4) are issues relating to whether or not the employer was liable to the Authority. It was submitted that in the present circumstances where the liability of Mr Mackley to pay lump sum payments and s.60 expenses has been established by the award of the Compensation Court, the only justiciable issue left which could be the subject of decision under s.145(4) is whether Mr McLeod had an entitlement to payments of weekly compensation. It was claimed that this submission was supported by Raniere Holdings but in my opinion there is no support in that decision for this view; in my reading the judgment of Tobias JA does not express a conclusion on or consider whether or not enforcement of the notice under s.145(1) is open to further debate if it has been established that the claimant was a worker, was entitled to compensation and that the employer was uninsured. Upon the facts in Raniere Holdings the employer had not been given a fair opportunity to debate any issue, and the judgment at first instance was set aside for that reason; that was not an appropriate occasion to state exhaustively what issues would have been open to debate in the hearing the opportunity for which had not been extended. Justice Tobias' consideration was not directed to the existence or nature of any residual discretion conferred by the terms of s.145(4). 45 The Presidential Member's reasons in the decision now under appeal have at their heart the statement "There is no basis on which I might find otherwise …" (than as Judge Geraghty found). This was criticised on appeal as a failure to exercise discretion, but in my view what took place was that the Presidential Member adopted the reasons of Judge Geraghty and came to the same conclusion; and in my opinion this course was available and reasonable, and was clearly explained, and was not a failure or refusal to make the Presidential Member's own decision. Indeed there are advantages in uniformity of approach by different tribunals deciding related questions, although these advantages do not relieve any of responsibility for forming their own conclusions. In the circumstances there was in fact no basis on which he might find otherwise than as Judge Geraghty found. The Commission has a wide power to inform itself; that power extended to treating findings of Judge Geraghty as a source of information: see s.344 of WIMWCA. The findings that Mr Mackley could not reasonably have been expected in the circumstances to regard himself as an employer and that he was bound to have workers compensation insurance were findings of Judge Geraghty, who had heard the parties and considered the issue fully, in disposition of a closely similar discretion which, in Judge Geraghty's concept, existed under s.144, and I see no error in the Presidential Member's having found the results of this process overwhelmingly persuasive. Judge Geraghty did not act on an irrelevant consideration; nor did the Presidential Member. Consideration of Mr Mackley's capacity to pay was associated with consideration of his understanding of whether he was an employer, and this association was relevant and important. The relevance of these matters is illustrated by their availability for consideration by WorkCover Authority under s.145(2). There was no attempt to exercise review jurisdiction over WorkCover Authority's decision under s.145(2). Matters referred to in subparas (a) to (f) of s.145(2) are within the range of matters relevant to the exercise of discretion, while the weight to be accorded to them was a matter for his decision. 46 The Presidential Member used findings of Judge Geraghty as a source of information upon which the Commission could act under s.354 of the WIMWCA. This did not treat Judge Geraghty's findings as having established facts according to principles of issue estoppel. The Presidential Member did not use language which shows that he acted on any supposed estoppel or issue estoppel arising from Judge Geraghty's disposition. Contentions relying on estoppel were not pursued in the respondent's argument (see t.22). 47 Counsel for WorkCover Authority contended to the effect that, whether or not the discretionary power conferred by s.145(4) in its earlier form on the Compensation Court was a wide one, the power as conferred upon the Commission should be regarded as limited having regard to the terms generally in which powers are conferred upon the Commission by the WIMWCA. Counsel referred among other things to the objectives of the Commission in s.367(1), but principally relied upon the jurisdiction to resolve disputes conferred by s.105 and further dealt with by s.287. Counsel contended that the Commission's jurisdiction ought to be constrained by its constitution statute, which defined what it was to determine. 48 In my opinion the conferral of power by s.145(4) is not constrained by more general conferrals of power in the WIMWCA, but should be understood to be a separate conferral, continuing powers earlier conferred upon the Compensation Court; and there are no language or circumstances which suggest that when the power was reconferred on the Commission the legislature intended to confine or alter it. In any event I am not satisfied that any provisions of WIMWCA to which counsel referred have any operation restricting what might otherwise be powers conferred by s.145(4). 49 Of course the discretion under s.145(4) includes discretion to formulate an appropriate order to give effect to a determination; the matter under consideration is whether it extends much further. 50 The view that the discretion conferred by s.145(4) is a broad one is supported by some more general considerations relating to the purposes, so far as they can be discerned, of the conferral of discretion on the Commission; see Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [60]. The purposes of the legislation are very wide and the relevant considerations made available by having regard to those purposes are also very wide. It has long been recognised that Workers Compensation legislation is social legislation for the protection of the interests of injured workers, and provisions of the legislation relating to insurance, and to the WorkCover Authority Fund where employers are uninsured, can be readily recognised as serving this purpose. Persons may be or may be deemed to be employers, and uninsured employers, in many circumstances having regard to the wide range of extensions of the concept of employment for which the WCA provides, and also to the informal circumstances in which a relationship of employment can come into existence. There are indications in Div.6 that the purposes of that Division include, at least to some extent, protection of the interests of uninsured employers. The protections afforded are slight compared to the protection which Div.6 accords to the interest of workers and of contributors to the fund, but there are some indications. Section 145(2) empowers the Authority to waive "the liability of an employer under subs. (1)" (and that is a liability asserted in a notice, not an enforceable liability) if the Authority is satisfied of some one (or more) of the six matters (a) to (f) set out in subs. (1). Some of those matters relate to the utility of seeking reimbursement, but that is not the basis of all of them; subparas (a) and (b) recognise the personal position of the employer and the appropriateness, in terms less definite than the enforcement of legal rights, of compelling reimbursement; the personal position and the difficulties of the employer are open to consideration; and it can be understood that they are relevant to the purposes of Div.6. 51 If s.145(4) is rightly understood as conferring a broad discretion, that discretion is limited in a way which can only be stated in general terms, to the effect that it must be exercised in good faith for some sound ground or good reason relevant to the purposes of the legislation. In illustration of the approach which should be made to conferrals of discretionary powers of decision where the grounds of decision are not prescribed I refer to Re Coldham and Others: ex parte Brideson (1989) 166 CLR 338 at 347 (Wilson, Deane and Gaudron JJ): A legislative direction to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context (including the subject matter to be decided) so necessitates as, for example, where the context provides no positive indication of the considerations by reference to which a decision is to be made. See Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, per Dixon J at 504-5; R v Australian Broadcasting Tribunal ; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 and 50 ; 27 ALR 321; Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 at 12-14 and 24 ; 9 ALR 199.

In further illustration I refer to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204-205 [19] (Gleeson CJ, Gaudron and Hayne JJ): [19] "Discretion" is a notion that "signifies a number of different legal concepts". Norbis v Norbis (1986) 161 CLR 513 at 518 ; 65 ALR 12 at 14 ; 10 Fam LR 819 at 821 per Mason and Deane JJ.34 35. In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Jago v District Court (NSW) (1989) 168 CLR 23 at 76 ; 87 ALR 577 at 615 per Gaudron J. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. See Jago v District Court (NSW) (1989) 168 CLR 23 at 75-6 ; 87 ALR 577 at 615 per Gaudron J; Russo v Russo [1953] VLR 57 at 62 per Sholl J. See also Pattenden, Judicial Discretion and Criminal Litigation , 2nd ed, 1990, pp 5-6. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-5 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 ; 27 ALR 321 at 325.

See too in Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 consideration by McColl JA and citations of authorities bearing on discretionary and normative judgments at paras [64] to [70]. 52 Although s.145(2) confers the waiver power on the Authority and not on the Commission, the six subjects listed in s.145(2) are relevant considerations when exercising a discretion within the limits of a discretion which may be exercised for the purposes of s.145(4). It could not be said, for example, that consideration by the Commission of the capacity of the employer to pay and basing its order under subs. (4) on that consideration would take the Commission outside the purposes for which the power was conferred. Nor could it be said that consideration of whether the employer could reasonably have been expected to regard himself as an employer was outside the purposes of that power; nor could it be said that consideration whether it would or would not be commercially feasible for WorkCover Authority to attempt to recover the amount would be extraneous. The discretion of WorkCover Authority under s.145(2) is a discretion to waive the reimbursement. There is not a power to require payment in part, as on the broad view s.145(4) would allow. 53 It cannot be said that the language of s.145(4) read literally requires the adoption of one view or excludes the adoption of the other. The provision is ambiguous when approached literally, but in my view the ambiguity is resolved by consideration of the purposes of Div.6, so far as they are revealed by the terms of the Division. The process of interpretation I have followed is not overwhelmingly clear or convincing, but I regard it as producing the better view of what the legislature should be taken to have intended. In my view the correct reading is that by the language in s.145(4) the legislature intended that the Commission should exercise a broad discretionary power when deciding whether it thought fit to compel an uninsured employer to reimburse an amount which WorkCover Authority had paid out of the fund and for which it sought reimbursement. Involved in the view that s.145(4) confers a narrow power is the need to identify a source in Div.6 of the rights which the Commission is to enforce without some discretionary decision of its own about whether or not to enforce those rights. In relation to WorkCover Authority's claim against Mr Mackley I am unable to see a clear source, that is, a conferral on WorkCover Authority of a legal right to reimbursement. Section 145 does seem to convey in a formless way an understanding that reimbursement by an uninsured employer will be enforced unless there is a decision to do otherwise: but this falls short of conferral of a right to its enforcement. The discretion works both ways: it is discretion whether to order a reimbursement or not to do so. Section 145 does not create a prima facie outcome. 54 The provisions of Div.6 relating to recovery from uninsured employers suggest the possibility of analogies to the general law which confers on guarantors an entitlement to be indemnified by persons primarily liable for obligations which they have guaranteed; such entitlements follow the substance of the relationship among the parties and are not dominated by the forms in which the liabilities were created. The principles were referred to in Israel v Foreshore Properties Pty Ltd (in liq.) (1980) 54 ALJR 421 at 423-424 by Aickin J: … A person who acts on such a request to pay, or who accepts the role of surety in that manner and who pays the debt, is entitled to an indemnity from those who made the request to pay or to act as surety. This is trite law as appears from Rowlatt on Principal and Surety , 3rd ed, (1936) pp 182-8, especially at 184, and the cases there cited. As long ago as 1799 Lord Kenyon CJ said in Exall v Partridge (1799) 8 Term Rep 308 at 310 ; 101 ER 1405 at 1406: "I admit that where one person is surety for another, and compellable to pay the whole debt, and he is called upon to pay, it is money paid to the use of the principal debtor, and may be recovered in an action against him for money paid, even though the surety did not pay the debt by the desire of the principal …" The same general principle applies to a case of money paid by one party at the request and for the benefit of another. 55 However the relationship among a worker, WorkCover Authority and an uninsured employer in the workings of Div.6 is not in a useful way analogous to the law relating to the rights of guarantors because the entitlements with which Div.6 deals have discretionary elements; the worker is not entitled to compel WorkCover Authority pay compensation out of the Fund, but only has an entitlement if there is a favourable determination of the claim by WorkCover Authority under s.143; with discretionary elements. There is no conferral on the Authority of an entitlement to recover from the uninsured employer; ss.144 and 145 create machinery under which there may be a recovery, but it cannot be said that they create entitlements to recover, again because of discretionary elements at several stages. Neither the terms of Div.6, which is the only possible origin for any entitlement of WorkCover Authority to claim reimbursement from an uninsured employer, nor the general law relating to guarantees confer any legal right which the Commission is to enforce when it hears an application under s.145(4). 56 Judge Geraghty's orders imposed liability upon WorkCover Authority to cause payment of the compensation awarded to Mr McLeod against Mr Mackley to be made out of the fund. The award of 5 September 2003 (as amended) imposed liability to pay compensation on Mr Mackley while the award of 3 October 2003 required WorkCover Authority to cause payment of that compensation awarded against Mr Mackley to be made out of the fund. These orders are enforceable as judgments. It was open to Mr McLeod to enforce the award against Mr Mackley, and not to rely on a claim under the Uninsured Liability and Indemnity Scheme: the award establishes his absolute entitlement to payment by Mr Mackley. These aspects may take the facts outside the simple operation of Div.6 into an area where WorkCover Authority is guarantor of a legal obligation for which Mr Mackley is primarily liable. If the awards of Judge Geraghty are seen as creating a relationship of creditor, principal debtor and guarantor, they do so with the anomaly that his Honour refused to enforce any indemnity such as that relationship would suggest existed, although contemplating that it might be enforced by another procedure. The existence of Judge Geraghty's award, which created enforceable debts, and the possibly consequential entitlement of WorkCover Authority as guarantor to indemnity distinguishes the present facts from cases, which might more usually happen, where an application under s.145(4) is made on a basis no more complex than appears from the terms of s.145 itself: there has been a claim, WorkCover Authority has paid and has given the employer notice, and the employer has applied for the Commission under s.145(3). If in an application arising from a s.145(1) notice there were facts which gave WorkCover Authority a right to indemnity under general law principles WorkCover Authority could urge these facts and its consequential entitlement upon the Commission as a ground upon which the Commission should make a determination enforcing the notice; while the Commission's claim on that basis would be a strong one the strength of the claim would not affect the existence of a broad discretion. The Commission did not approach the issues on the basis that general law principles relating to guarantors applied, and there is nothing in the material before the Court of Appeal to suggest that the Commission was asked to do so, or that there was any error of law in its not doing so. 57 As Mr McLeod has made a claim and it has been paid out of the Fund, there are echoes of situations in which, in insurance and other relationships, an insurer might become entitled by a subrogation to enforce Mr McLeod's award against Mr Mackley. However these are but echoes; as there is no insurance or other relevant relationship between WorkCover Authority and Mr McLeod, I see no basis for supporting rights of WorkCover Authority against Mr Mackley by reference to subrogation. Again, the present case has not been dealt with on this basis in the Commission. 58 In my opinion the Court of Appeal should dismiss the appeal with costs. **********

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(2002) 23 NSWCCR 170

(2001) 22 NSWCCR 602

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