District Court New South Wales Medium Neutral Citation: Bull v State of New South Wales [2024] NSWDC 37 Hearing dates: 22 February 2024 Date of orders: 23 February 2024 Decision date: 23 February 2024 Jurisdiction: Civil Before: Acting Judge Levy SC Decision: See paragraph [17] for orders Catchwords: PERSONAL INJURY CLAIMS – application by plaintiff for leave to commence proceedings to claim work injury compensation in the District Court – Personal Injury Commission unable to exercise federal jurisdiction – s 26 of the Personal Injury Commission Act 2020 (NSW) Legislation Cited: Commonwealth Constitution, s 75, s 76 Crown Proceedings Act 1988 (NSW), s 5 Personal Injury Commission Act 2020 (NSW), s 26 Residential Tenancies Act 2010 (NSW) Workers' Compensation Act 1987 (NSW) Workplace Injury Management and Workers' Compensation Act 1998 (NSW) Cases Cited: Attorney General for the State of New South Wales v Gatsby [2018] NSWCA 254 Ritson v State of New South Wales [2021] NSWPIC 409 Searle v McGregor [2022] NSWCA 213 Category: Procedural rulings Parties: Karen Bull (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr S McMahon (Plaintiff) Ms E Scott, Solicitor (Defendant) Solicitors: Cardillo Gray Partners (Plaintiff) Rankin Ellison Lawyers (Defendant) File Number(s): 2023/332177 Publication restriction: None JUDGMENT 1. These proceedings concern the plaintiff's disputed claim of entitlement to workers' compensation payments pursuant to the provisions of the Workers' Compensation Act 1987 (NSW). Ordinarily, the New South Wales Personal Injury Commission would determine that dispute but in this instance it does not have the power to do so because the plaintiff does not reside in the State of New South Wales. 2. The plaintiff, Karen Bull, a resident of the State of South Australia since 2021, brings these proceedings against the defendant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988 (NSW). 3. Between 2009 and 2015 the plaintiff was employed by the Ambulance Service of New South Wales as a paramedic. 4. On 22 December 2014, in the course of that employment, the plaintiff claims to have sustained an injury to her right hip whilst lifting a stretcher carrying a patient. She also claims to have sustained a further injury to her right hip on 5 September 2015 when she was assaulted by an ambulance passenger, and a further injury on 26 January 2020. 5. Thereafter, the plaintiff has attempted to navigate something of a legal obstacle course to seek statutory workers' compensation payments for her injuries. 6. The defendant declined the plaintiff's claim for such payments pursuant to s 78 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW). 7. Consequently, the plaintiff applied unsuccessfully to the New South Wales Personal Injury Commission to seek a resolution of her disputed claim for statutory workers' compensation benefits. A cascading series of events took place in the following chronological sequence: 1. On 24 November 2022 the plaintiff filed an Application to Resolve a Dispute with the Personal Injury Commission. In doing so she sought an order that the defendant be found liable to pay her statutory workers' compensation benefits; 2. On 28 November 2022, the Personal Injury Commission declined to consider the plaintiff's application on the ground that it lacked the necessary federal jurisdiction to do so; 3. On 17 April 2023 the plaintiff requested the Personal Injury Commission review its decision declining to consider her application, and at the same time requested the defendant's insurer, QBE, to accept liability for payments; 4. On 27 September 2023 QBE disputed the plaintiff's claim for compensation; 5. On 6 October 2023 the plaintiff again filed an Application to Resolve a Dispute with the Personal Injury Commission and sought an order that the defendant be found liable to pay her statutory workers' compensation benefits; 6. On 11 October 2023 the Personal Injury Commission declined to accept the plaintiff's filed Application on the stated ground that it lacked federal jurisdiction regarding a dispute between a State and a resident of another State. In declining the application the Personal Injury Commission cited its decision in the case of Ritson v State of New South Wales [2021] NSWPIC 409. The Personal Injury Commission's rejection letter also invited the plaintiff to read a relevant appellate decision: Attorney General for the State of New South Wales v Gatsby [2018] NSWCA 254, with specific reference to the judgment of Leeming JA paragraph [281]. 1. The plaintiff, not being versed in the nuances of legal analysis, could be readily forgiven for being confused by that suggestion, which had nothing to do with workers' compensation claims or the Personal Injury Commission. The decision to which she was referred concerned analysis of complex legal issues relating to the jurisdiction of tribunals in the context of constitutional limitations. In that instance, the underlying proceedings concerned the Residential Tenancies Act 2010 (NSW) litigated in the New South Wales Civil and Administrative Tribunal. 2. The plaintiff's next step, with legal assistance, was to file her originating process in this Court, pursuant to s 26 of the Personal Injury Commission Act 2020 (NSW), the ("PIC Act"), seeking leave to commence her proceedings in order to have her dispute determined by this Court. 3. At the hearing of the application the defendant indicated that it neither consented to nor opposed the plaintiff's application for the relief sought. Legislation 1. Section 26 of the Personal Injury Commission Act 2020 (NSW provides as follows: 26 Applications involving federal jurisdiction may be made to District Court (1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission. (2) The regulations may make provision for or with respect to— (a) who has standing to make an application for leave, and (b) excluding or including applications as compensation matter applications. (3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that— (a) an application was first made to the President or Commission, and (b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and (c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application. (4) An application for leave must be— (a) filed with the District Court along with— (i) an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and (ii) if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation—a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid. (5) The District Court may— (a) remit a compensation matter application for determination by the usual decision-maker if the Court is satisfied that the usual decision-maker has jurisdiction to determine it, and (b) do so instead of granting leave or after granting leave. (6) If the District Court remits a compensation matter application to be dealt with by the usual decision-maker, the Court may make such orders that it considers appropriate to facilitate the determination of the application by the decision-maker. (7) The usual decision-maker is to determine any compensation matter application that is remitted to the decision-maker in accordance with any orders made by the District Court. Applicable principles 1. In Searle v McGregor [2022] NSWCA 213, at [4], Kirk JA succinctly summarised the function of s 26 as follows: "… The section grants the District Court a discretionary power to permit a 'compensation matter application' to be made to and determined by that Court instead of PIC. The power may only be exercised if the Court is satisfied that the application was first made to PIC or its President, that determination of the matter by the usual decision-maker 'would involve an exercise of federal jurisdiction', and that that decision-maker would otherwise have had jurisdiction to determine the application. …" 1. In that case, at [15], Kirk JA explained the issue in the following terms: "… there has been a number of decisions of intermediate courts of appeal relating to whether particular issues could be determined by tribunals. Those decisions have turned on two key issues: whether or not the tribunals would be exercising judicial power in resolving the disputes in question; if so, whether the tribunals could be characterised as 'courts' for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act." 1. In Searle, at [22], it was made clear that claims of the type the plaintiff seeks to pursue fall within the categories of dispute comprehended by s 75 to s 76 of the Commonwealth Constitution. 2. It is accepted that the Personal Injury Commission is not a Court, and therefore it cannot exercise federal jurisdiction. Determination 1. I find that the plaintiff has satisfied each of the elements of s 26 (3) of the PIC Act required for making the order she seeks. In that regard before seeking the present relief, she first made an unsuccessful application to the Personal Injury Commission: s 26(3)(a) of the PIC Act. The decisionmaker within the Personal Injury Commission was unable to exercise federal judicial power where the plaintiff resided interstate at the time the jurisdiction of the Personal Injury Commission was invoked: s 26(3)(b) and s 26(3)(c) of the PIC Act. She is therefore entitled to the discretionary relief which she hereby seeks. Orders 1. I make the following orders: 1. Pursuant to s 26 of the Personal Injury Commission Act 2020 (NSW) leave is granted to the plaintiff to commence proceedings in this Court to claim compensation for personal injury incurred in the course of her employment with the New South Wales Ambulance Service on 22 December 2014, 5 September 2015 and 26 January 2020. 2. Costs of this application are to be costs in the cause. 3. Case management orders will be made to progress the proceedings after hearing from the parties. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2024