Teofilo v State of New South Wales [2007] NSWSC 767

New South Wales Supreme Court

CITATION : Teofilo v State of New South Wales [2007] NSWSC 767

HEARING DATE(S) : 09/07/07 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 9 July 2007

DECISION : Declaration made in plaintiff's favour.

CATCHWORDS : PROCEDURE [743]- Declarations- Jurisdiction- Plaintiff seeks declaration that defendant obliged to pay moneys owing under Workers Compensation Commission award- Defendant claims Court lacks jurisdiction to make declaration as Commission said to have exclusive jurisdiction to determine Workers Compensation matters- Held exclusive jurisdiction limited- In circumstances declaration of utility- Declaration made. WORKERS COMPENSATION [263]- Enforcement- Unpaid award for weekly payments- Whether declaratory order appropriate.

LEGISLATION CITED : Crown Proceedings Act 1988, s 7 Workplace Injury Management and Workers Compensation Act 1998, ss 3, 105(1), 352, 353, 362

Ellinas v Ellinas (No 2) [1979] 1 NSWLR 431 CASES CITED : Law Society of New South Wales v Weaver [1974] 1 NSWLR 271 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366

PARTIES : Adam Teofilo (P) State of New South Wales (D)

FILE NUMBER(S) : SC 3215/07

COUNSEL : S Gibb SC and S Moffet (P) J Catsanos (D)

SOLICITORS : Walker Legal (P) DLA Phillips Fox (D)

- IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Monday 9 July 2007

3215/07 – TEOFILO v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff seeks a declaration that the defendant is obliged to pay him the amount of weekly payments awarded to him by Arbitrator Lancken of the Workers Compensation Commission of New South Wales on 26 February 2007. 2 The background to the present claim is that the plaintiff was a police officer who alleged that he suffered an injury for which the Police Service was liable to pay compensation. His application was dealt with by Arbitrator Lancken in his favour and a weekly award was made. 3 On 12 April 2007, the Police Service lodged an appeal to a Presidential member of the Commission. I suppose it was actually an application for leave to appeal, because appeals appear to be only by leave in that Commission. The grounds of the appeal are a little obscure in the way they are expressed, but one would appear to be that as the plaintiff's employment with the Police Service was about to come to an end in any event, it was wrong for the arbitrator to make a continuing award. However, the arbitrator awarded the plaintiff weekly benefits of $321.93 per week and according to a certificate in evidence of 6 July 2007, weekly benefits totalling $4,539.90 are unpaid. A certificate to that effect could, pursuant to Workers Compensation legislation, be lodged with a local court and judgment could be entered for the plaintiff, who could have execution subject to any application made by the defendant for a stay of execution. 4 The plaintiff, however, says that it is a cumbersome process to have to, each week or each so often, apply for a certificate from the Registrar of the Workers Compensation Commission and then register that certificate with the local court. He says that there is no provision in the current Workers Compensation legislation for a stay of a weekly award of compensation and there is no reason why, despite the fact that an appeal has been lodged, he should not be paid his weekly amount and that he is entitled to approach this Court to have it declared that the defendant is liable to make the payment. 5 The plaintiff recognises that a declaratory order is not an executive judgment, but the custom has been in the past that the Crown recognises the declaratory judgment of the Supreme Court so that execution processes are rarely necessary. The position of the Crown was explained by Mahoney J in P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-84. It is unnecessary to go into further detail as to whether s 7 of the Crown Proceedings Act 1988 applies to a declaratory judgment. 6 There is no doubt that the arbitrator made his award and that an appeal is pending. There is, however, considerable doubt as to when the appeal will actually be heard. Someone said from the Bar table that it might be eighteen months, but there is no evidence of that. However, there is a distinct flavour in this case that the Workers Compensation legislation was put together on the basis that there would be sufficient funding of the Workers Compensation Commission and enough staff and judicial officers to enable appeals to be heard expeditiously, but that for some reason or other this is not occurring in practice. Hence, the situation appears to be that a worker can receive an order for a weekly payment from an arbitrator and be paid absolutely nothing by his employer for a period exceeding a year. The remedy, it would seem, apart from any application to this Court, is that under the Workplace Injury Management and Workers Compensation Act 1998, s 362, the worker can obtain a certificate as to how much is owing and under s 362(3): "A certificate of the Registrar under this section that is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment." 7 Accordingly, the worker could register his certificate in the local court and then endeavour to issue execution. However, there he may have a problem because the real defendant is the Crown and, under s 7(2) of the Crown Proceedings Act, execution is not to be issued out of any Court against the Crown or any property of the Crown. Thus, it would seem that if a judgment is registered under s 362(3) of the Workplace Injury Management and Workers Compensation Act the worker would have to obtain a mandamus for the Treasurer to pay out the amount under section 7(1) of the Crown Proceedings Act. 8 During argument it was put that if the normal procedure was followed, then the Police Service would be able to get a stay of execution in the local court, but now that my attention has been drawn to s 7 of the Crown Proceedings Act, this would not appear to be feasible. 9 Accordingly, one has a situation where s 3 of the Workplace Injury Management and Workers Compensation Act makes it plain that the objectives of the system are: to provide effective measures to assist injured workers; to promote their return to work as soon as possible and to provide injured workers and their dependants with income support during incapacity. The system to be fair, affordable and financially viable. Yet one also has the situation that even a worker who has convinced an arbitrator of the righteousness of his or her claim, can be denied any sustenance at all for perhaps a year or eighteen months, merely because the employer puts on an appeal. Furthermore, when the employer is the Crown, there is no way at all that even a registered judgment can get the worker cash in his or her hand to enable them to buy food and other necessities whilst the appeal is working its way through the system, other than by hiring a lawyer and getting a mandamus against the Treasurer. 10 However, despite all those problems, the Crown argues in this case that this Court has no jurisdiction to alleviate the problem. Primarily, its counsel, Mr Catsanos, argues that s 105(1) of the Workplace Injury Management and Workers Compensation Act provides: "Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act ..."