Springvale Coal Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2012] HCATrans 30 (10 February 2012)

Last Updated: 15 February 2012

[2012] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S289 of 2011

B e t w e e n -

SPRINGVALE COAL PTY LTD

Applicant

and

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

First Respondent

ROSS SPEIRS

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2012, AT 10.27 AM

Copyright in the High Court of Australia

MR R.A. DICK, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.A. YEZERSKI. (instructed by Blake Dawson)

MR S. CRAWSHAW, SC: May it please the Court, I appear with my learned friend, MR A.M. SLEVIN, for the second respondent. (instructed by Slater & Gordon Lawyers)

GUMMOW J: There is a submitting appearance from the Commissioner, obviously enough.

MR DICK: Yes, your Honour. Your Honours, in order for the Industrial Relations Commission to exercise its jurisdiction to reinstate workers to their employment under Part 8 of the Workers Compensation Act 1987, the applicant must be an injured worker. This application raises the important question as to who qualifies as an injured worker under Part 8 of the Act. The question is one of statutory construction and focuses particularly on the requirement in section 240(2) that the worker has received an injury:

for which the worker is entitled to receive compensation under this Act - - -

GUMMOW J: That appears at page 24.

MR DICK: Yes, your Honour.

GUMMOW J:

under this Act or the Workers’ Compensation (Dust Diseases) Act 1942.

MR DICK: That is correct, your Honour. Your Honour, the significance of the question is that if the decision of the Court of Appeal stands the Industrial Relations Commission, which is intended to be a body specialising in industrial disputes could, in many cases, be drawn into the question of whether a worker has been injured in the workplace and associated questions of incapacity and entitlement to compensation.

In our submission, all of those matters are reserved under the Workplace Injury Management and Workers Compensation Act 1998, which I will refer to from now on as the 1998 Act, for the specialist jurisdiction of either the Workers Compensation Commission or in coal miner matters, the District Court. There will also be different consequences for appeal rights. Our construction has the effect that the Industrial Relations Commission will be able to exercise its reinstatement jurisdiction where it is admitted or agreed that the applicant is an injured worker.

GUMMOW J: And if not?

MR DICK: If not it will be necessary for that question to be determined by either the Workers Compensation Commission or the District Court, which we say is consistent with the scheme for workers compensation matters in New South Wales, namely, to provide that questions of entitlement to receive compensation fall within the exclusive jurisdiction of either of those two bodies.

GUMMOW J: You would have to say questions howsoever arising, I think.

MR DICK: We say that our construction gives proper weight to the words “entitled to receive compensation” and that there can never be any entitlement to receive compensation until such time as a claim has been made, and determined, in the event of a dispute about that matter. Your Honours, contrary to the reasoning of Justice Giles below and if I could take your Honours particularly to the application book at page 91, paragraph 55, it is our submission that the construction that we advance and which the Commission itself advanced in the proceedings below, does not pose any problem for the operation of the legislative scheme.

One point to note about the reasoning of his Honour Justice Giles at application book pages 90 and 91 is that he assumed, in our submission erroneously, that the construction advanced by the applicant in the Commission below did not accommodate there being any agreement or admission as to the question whether the applicant was an injured worker. Your Honours will see that, in particular, in paragraph 53 on page 90 where his Honour only refers to there being a determination by either the Workers Compensation Commission or the District Court and similarly, in paragraph 55, at page 91 of the application book where there is no contemplation of any agreement or admission on the question.

GUMMOW J: Now, what do you say in response to the point your opponent makes on page 125, paragraph 3:

proceedings before the IRC under Part 8 . . . are not claims for workers compensation and cannot result in payment of workers compensation.

MR DICK: We accept that, but our construction does not require a conclusion that a reinstatement application necessarily involves a claim for compensation. On our construction, there will either be no claim for compensation because the employer has admitted the question that the applicant is an injured worker and/or that the respondent is an employer, or in other proceedings prior to the reinstatement application occurring, the question of entitlement to compensation will have been determined. So it does not convert the reinstatement proceeding into an application for compensation, in our submission.

Your Honours, the construction given to the words “entitled to” by the Court of Appeal is to be found in the application book at page 102, paragraph 85. His Honour Justice Giles described the words “entitled to”, and this is at line 50, as being:

a right subsisting in law when there has been injury satisfying ss 4 and 9A of the WC Act.

In our submission, that construction is problematic. It requires the Industrial Relations Commission to determine whether the applicant for reinstatement has suffered an injury in the course of employment with the respondent employer. That arises from the definition of “injury” in section 4 of the 1987 Act, and further, whether the employment was a “substantial contributing factor to the injury”. That comes from section 9A of the 1987 Act.

These raise potentially complex questions of fact and law, and one can see that in particular from section 9A, which raises a range of matters that need to be considered in connection with the injury, the health of the worker and similar matters. In our submission, all of those are matters which the statutory scheme for workers compensation requires specialist tribunals, namely the Workers Compensation Commission and the District Court to determine.

We also submit that because the Court of Appeal’s definition requires the Industrial Relations Commission to determine whether the injury arose in the course of employment, the suggested limitation on the IRC’s inquiry that comes from paragraph 85 of the Court of Appeal judgment to sections 4 and 9A of the 1987 Act seem unworkable. Depending on the nature of the injury, other provisions of the 1987 Act which deal with the question whether the injury arose out of, or in the course of employment, would presumably need to be considered.

It is our submission that these other sections which include many, but for example, section 10 which deals with journey claims and section 11 which deals with recess claims, also raise very difficult questions of fact and law which are properly in the province of either the Workers Compensation Commission or the District Court.

GUMMOW J: What do you say about paragraph 92 of Justice Giles’ reasons? It is not a matter arising under the Workers Compensation legislation.

MR DICK: It is our submission that on the proper construction of - - -

GUMMOW J: Because there is no claim to an award of compensation.

MR DICK: The way section 105, in our submission, has to be read, particularly in the context of this case because we say this is a coal miner matter, so we are in subsection (4) because the relevant respondent was employed in or about the mine, takes one to there being a claim with respect to such a matter, and all claims that fall within that definition fall within the exclusive jurisdiction of the District Court.

We say a similar analysis arises where one is not dealing with coal miner matters, but dealing with other workers compensation matters, such that under section 105(1)(a) those matters need to be determined by the Workers Compensation Commission. We do not contend that a reinstatement application falls within the province of either the Workers Compensation Commission or the District Court, simply the anterior precondition to the exercise of jurisdiction if it is not agreed.

In our submission, your Honours, the Court of Appeal’s construction opens a loophole whereby an applicant for reinstatement could obtain a finding of entitlement to receipt of compensation from the Industrial Relations Commission, but avoid compliance with a notice and other procedural provisions of Chapters 4 and 7 of the 1998 Act, all of which are designed to achieve the expeditious resolution of workers compensation matters.

As has been identified in the appeal papers, the Court of Appeal’s construction also raises at least the risk of issue estoppels, or alternatively the risk of inconsistent decisions as between the IRC on the one hand and the Workers Compensation Commission and the District Court on the other. In our submission, those consequences are also contrary to the statutory scheme. Conversely, the construction which we advance achieves certainty and it is consistent with the way in which the legislation provides for the receipt by a worker of compensation for injuries suffered in the workplace. In our submission, that certainty is of particular importance when one of the consequences of the dismissal by an employer of an injured worker is to create an offence under section 248 of the 1987 Act.

Our construction is also consistent with the history of the 1987 and 1998 Acts which were addressed in some detail by the Commission and summarised by his Honour Justice Giles in the Court of Appeal. That history shows that those Acts and their predecessors have always designated specialist courts and tribunal with exclusive jurisdiction to resolve workers compensation and coal mining claims. That much is clear from the application book at page 53 paragraph 108 in the decision of the Commission and also 59 at about line 30.

Further, the retention of a court-based jurisdiction for coal miner matters in the District Court reflected the particular interests of parties in the coal-mining industry. Your Honours will see that in application book at page 52 at the foot of the page by reference to the second reading speech and also, over the page, at page 53, paragraph 107. Although the particular courts have changed over time it has always been the province of a court to determine the entitlement of a worker in the coal-mining industry to receive compensation.

In our submission, your Honours, the reasoning of the Court of Appeal as to the meaning of “entitlement” which commences at application book 95 is also suspect. His Honour Justice Giles sought to reason to the construction of the definition of “injured worker” under Part 8 of the 1987 Act by reference, at least in part, to where similar words were used elsewhere in the Act. However, a review of the reasoning shows, starting at page 95, that reliance is being placed on the use of words either in a different context or where critical words are not used. For example, in paragraph 66, the reference to section 9, which is relied on by his Honour, simply uses the words:

shall receive compensation from the worker’s employer in accordance with this Act.

The critical words “entitled to” do not appear and the context simply informs that in order to determine whether compensation will be received the balance of the Act will need to be reviewed. That is consistent with our construction. Further, if your Honours go to page 96 of the application book in paragraph 71 where his Honour refers to parts of the Act that use the words “entitlement to compensation”, we would rely on those provisions in support of our construction. So, for example, the words in section 11A(4) that simply provide that:

any entitlement to compensation under this Act –

appear is open-ended and general and does not tell one either way what step needs to be taken in order to crystallise that entitlement. Similarly, the references to section 18 and 22A over the page at page 97 refer to the receipt of compensation in circumstances where there is no dispute as to the entitlement to receive because the insurer has admitted liability. Again, that is consistent with the construction that we advance for the purposes of Part 8.

Our overall submission is that the use of expressions such as “entitlement to compensation” or “shall receive compensation” that are referred to in his Honour Justice Giles’ judgment all depend on the context and do not support a general proposition that the meaning of the words in section 240(2) comprise of rights subsisting in law simply where there has been an injury satisfying sections 4 and 9A.

GUMMOW J: You say the notion of entitlement cannot include entitlement pursuant to a settlement out of court.

MR DICK: We do – no, we do embrace that and that is one of the errors that we say was made by Justice Giles because, on our construction, if there is a settlement or if there is an admission or if there is an agreement, then in all of those circumstances the Industrial Relations Commission can proceed to determine the reinstatement application. It is only in circumstances where there has not been either a settlement, obviously with the particular employer, or some form of agreement or admission that it would be necessary for there to be a determination.

The fact that it is only this case and Marro, which is referred to at page 102 of the application book, that ever seemed to have raised either a question of who the relevant employer is or whether there is an injured worker tends to show that, on our construction, there would be very few cases where it would be necessary to, as it were, go back to the Workers Compensation Commission or the District Court once a reinstatement application had been made.

The fact that there only seemed to be two such cases suggests that in most cases there either is an admission or an agreement or an out-of-court settlement or something of that sort, or the applicant, prior to making the reinstatement application, has made the claim for compensation and it has been determined, bearing in mind that the procedures in Chapters 4 and 7 of the 1998 Act all provide for the swift and expeditious resolution of such claims. We would also point - - -

GUMMOW J: And of reinstatement applications.

MR DICK: Yes, and of reinstatement applications as well. Ultimately, your Honours, in support of our construction, no worker is “entitled to receive compensation”, those being the critical words in section 240(2), unless and until the claims procedures in Chapters 4 or 7 of the 1998 Act are implemented and a determination is made by either the District Court or

the Workers Compensation Commission. Our construction of “injured worker” gives effect to this statutory scheme. Those are our submissions.

GUMMOW J: We do not need to call on you, Mr Crawshaw.

There are insufficient prospects of success in demonstrating error by the New South Wales Court of Appeal on this issue of statutory construction. Special leave is refused with costs.

AT 10.49 AM THE MATTER WAS CONCLUDED