Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of NSW (on behalf of Darren Rudd) v Corrective Services NSW [2014] NSWIRComm 1021 Hearing dates: 9 July 2014 Decision date: 25 July 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Notice of motion dismissed Catchwords: WORKERS COMPENSATION - application pursuant to s.242 of the Workers Compensation Act - worker had received workplace injury damages - argument that receipt of such damages excluded Commission's jurisdiction - held, no bar - motion dismissed PRACTICE AND PROCEDURE - Strike out motion - jurisdictional argument on question of law - appropriate time to hear and determine jurisdictional question - held, appropriate to determine at an early stage where facts not in dispute. STATUTORY CONSTRUCTION - primacy of express statutory provisions Legislation Cited: Workers Compensation Act 1987 s.151A, 241, 242 Workplace Injury Management Act 1998 s.234 Cases Cited: Agar v Hyde (2000) 201 CLR 552 Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110; 198 IR 195 Baltic Shipping Company v Dillon (the "Mikhail Lermontov") HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281991%29%2022%20NSWLR%201?stem=0&synonyms=0&query=title(Zreika%20)" \o "View LawCiteRecord"(1991) 22 NSWLR 1 Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL) Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Haines v Bendall (1991) 172 CLR 60 J L Nagle & Sons) v Tilburg (1993) 51 IR 8 Manser v Spry [1991] HCA 40; 124 ALR 539 Meredith Projects v Fletcher Constructions [2000] NSWSC 493 Zreika V QBE Workers Compensation (NSW) Limited and Lynch Warehousing Pty Limited trading as Lynch Flowers Pty Limited [2005] NSWSC 573 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of NSW (on behalf of Darren Rudd) - applicant Corrective Services NSW - respondent Representation: M Cahill - respondent W G McNally Jones Staff - applicant I V Knight, Crown Solicitor - respondent File Number(s): IRC 954 of 2013 DECISION The proceedings 1Before the Commission is a Notice of Motion filed by the respondent in the proceedings. The motion is contained in an amended Notice of Motion filed, by leave, in court on the day of hearing. That Notice of Motion was itself subsequently amended in that Ground 1 of the Grounds and Reasons identified therein was not pressed. 2The substantive proceedings are an application for reinstatement of an injured worker, Mr Darren Rudd, brought pursuant to s.242 of the Workers Compensation Act 1987. ('the WCA') 3What is sought by the Notice of Motion is that the substantive proceedings be struck out or permanently stayed. 4This is advanced primarily on the basis that the Commission lacks jurisdiction to hear the substantive proceedings for reason of law, on the basis of the uncontested fact that Mr Rudd has already recovered work injury damages. 5The respondent advanced the central element of its argument in this way. Section 151A of the WCA and specifically the exclusions therein, by necessary implication extend to an injured worker's right to reinstatement pursuant to Part 8 of the WCA. It was said that upon recovery of workplace injury damages, the injured worker ceases to be entitled to reinstatement. 6A secondary and alternative assertion was advanced that the substantive proceedings are barred by effect of a Deed. Proper approach to the determination of the motion 7Counsel for the respondent and solicitors for the applicant both submitted that the legal principles applicable to a strike out application are those set out in Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311. 8In that case the Full Bench referred to the approach in Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8, referred to the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, and observed: 'Thus, for the Commission to grant a motion seeking the preliminary dismissal of an application for an award for want of jurisdiction, the Commission would need to be satisfied that no relevant award or order could be made in the circumstances of the case. To paraphrase the approach in General Steel, there must be "no possibility that there can be a good cause of action". This is the criterion which must be satisfied for a motion seeking the preliminary dismissal of an application for want to jurisdiction to succeed.' 9I observe that this is a matter in which it is squarely said that the Commission has no jurisdiction. That is argued as a point of law. 10The fact that the jurisdictional issue is raised as a threshold point, in the context of a motion to strike out proceedings, has a capacity to confuse thinking about the proper approach to the jurisdictional argument. 11The Commission either has jurisdiction or it does not. Provided that the jurisdictional question does not have a capacity to be influenced by any finding as to contested fact, which is not the case here, jurisdiction if raised or obviously in question must be determined once and for all. There cannot be a preliminary inquiry into jurisdiction in which one test is applied, followed by a more considered approach later. 12It is of course the case that, if the Commission does not have jurisdiction, the proceeding 'cannot possibly succeed', one of the formulae advanced in General Steel loc cit and cited in Nagle v Tilburg loc cit. An absence of jurisdiction would certainly provide a 'high degree of certainty' about outcome of the proceedings, which is the test as the High Court crystallised it in Agar v Hyde (2000) 201 CLR 552: '... all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.' (per McHugh, Gummow and Hayne JJ) 13But the test as to whether jurisdiction exists, in a case where facts are not in dispute and therefore a full hearing on the evidence cannot bear upon the outcome of the jurisdictional argument, is simply to be assessed on the arguments alone. The question is not to what degree of certainty the court or tribunal is or is not satisfied that it has jurisdiction; all courts and tribunals determine questions of jurisdiction to the greatest degree of certainty possible. 14Rather, as the Full Bench of the NSW Industrial Court held in Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110; 198 IR 195 held, the question is whether this is the correct time to determine the jurisdictional question. 15The Full Bench held: 'As a matter of principle, the jurisdictional issue should have been determined as a preliminary issue where, to adopt the reasoning of Wright J in Virtue v NSW Department of Education (1999) 92 IR 428 at 447, the "circumstances will conveniently admit so". These circumstances must include proceedings where the "facts, either established by evidence or plainly agreed terms, enable the court to determine what the contract or arrangement is, or, at least, the parameters of the contract or arrangement'. (at [28]) 16The Full Bench went on to hold that in circumstances where there is no relevant factual contest between the parties and jurisdiction is squarely raised, that is the 'appropriate time' to deal with jurisdiction. 17I accept that it in this case it is the correct or appropriate time for jurisdiction to be determined. The question is, as I say, not to what degree the Commission is satisfied that it has or does not have jurisdiction. The question is simply whether the Commission has jurisdiction to hear and determine Mr Rudd's application under s.242 or it does not. The jurisdictional argument 18From the uncontested factual starting point that Mr Rudd had recovered workplace injury damages, the respondent argued its jurisdictional case in the following way. 19First, the suite of workers compensation legislation as it stood at the times relevant to this matter preserved the liability, independent of that legislation, of an employer in relation to workplace injury damages. So much is clear from the words of s.151 of the WCA. 20Relevantly, workplace injury damages recoverable pursuant to Part 5 of the WCA were limited to past and future economic loss. Section 151G (1) of the WCA so provides. 21Further, section 151A of the WCA sets out in specific and express terms that if, as in this case, a person recovers workplace damages in respect of an injury from the employer, there is an exclusion from further compensation. 22For clarity of reading I set out the text of s.151A in full. "(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case): (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act. (2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation: (a) the amount of any weekly payments of compensation already paid in respect of the injury concerned, (b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned. (3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death: (a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker. (4) If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act: (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation." 23The respondent then argued that s.51A in providing the exclusions that it did operated consistently with the preservation of two matters of fundamental principle. 24The first of those was what was characterised as the 'once-and-for-all' rule; that is, the principle, set out with clarity in Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL) per Lord Halsbury at 132, that '... for one cause of action you must recover all damages incident to it once and for all.' 25It was not contested, it was said, that this rule applied in Australian law. The applicant did not argue otherwise. 26The second fundamental principle was said to be the principle that an award of damages, whether the action is an action in tort or contract, is compensatory. It was submitted that the rule that damages are compensatory in nature is 'a cardinal concept'; 'one principle that is absolutely firm, and must control all else'; and, as it was characterised in: Haines v Bendall (1991) 172 CLR 60 at 63, a rule which is 'universal'. Again, the applicant did not argue otherwise. 27It follows that a plaintiff cannot recover more than he has lost: Haines v Bendall loc cit at 63; Manser v Spry [1991] HCA 40; 124 ALR 539 at [8]. 28Further, it was said, the provisions generally of the workers compensation legislation are consistent with the principle that the proper operation of the 'once-and-for-all' rule and the universal' rule, as to the compensatory nature of an award of damages, will not permit 'technical differences' between causes of action to result in a plaintiff maintaining the benefit of an alternate award of compensation, or damages, in respect of the same loss. 29It was then, correctly, said that the operation of the reinstatement provisions under Part 8 of the WCA are properly characterised as an adjunct to the compensation and workplace injury management provisions under the workers compensation legislation. 30From that it was said that, as Mr Rudd has already recovered workplace injury damages, an order of the Commission pursuant to section 243 of the WCA for reinstatement or re-employment would have the effect of placing Mr Rudd in a better position financially than he would have been but for his injury. He would have the benefit of the component of damages paid which constitutes compensation for loss of future earnings, and he would also have wages consequent upon his reinstatement or re-employment. In short, an order for reinstatement would have the effect of providing the worker with double recovery, or double compensation. 31Further, the financial burden of both the damages already paid and an ongoing liability for wages will fall on the employer. These were said to be outcomes that offended both the once-and-for-all rule and the compensatory nature of both the workers' compensation scheme established by the workers compensation legislation, and of workplace injury damages. 32It was accordingly said that the maintenance of a cause of action for reinstatement once an injured worker has recovered work injury damages - whether by way of judgment or the payment of monies upon settlement - is inconsistent with the structure of the workers compensation legislation and with principle. 33In particular, it was said that the recovery of workplace injury damages is a once and for all recovery of compensation under the Act. Accordingly, the argument ran, that brings an injured worker's rights to compensation and other benefits and entitlements and indeed participation in the work injury management and compensation scheme under the relevant legislation, to an end. 34It was pointed out that if the worker were reinstated or re-employed pursuant to ss.241 or 243 prior to finalising his claim for work injury damages, the worker's earnings and future earnings would have to be taken into account in assessing the worker's entitlement, if any, to work injury damages. It cannot be, it was said, that that accident of time could have two different effects. 35That is the more so, it was said, given that Part 8 of the WCA does not contain any provision which confers a power upon the Commission, in the exercise of its discretion to reinstate an injured worker, to set aside the recovery of work injury damages by the worker - whether that recovery be way of a judgment, or by way of a payment of workplace injury damages - pursuant to a settlement. 36Nor does Part 8 of the WCA make provision for an offset of damages for future economic loss or loss of earnings against future earnings; the Commission is restricted to the forms of order made set out in subss.243(2), (3) and (4), which do not include an order of that kind. Section 171 could not, it was put, broaden the nature of those orders, given the specificity with which they are framed in the statute. 37In sum, it was said that payment and receipt of the monies by way of workplace injury damages is a complete answer to the application for reinstatement under s.242. Consideration 38I have set out the respondent's argument at some length because it warrants close examination. 39It is unarguably the case that the common law of Australia includes the 'once-and-for-all' rule. It is also unarguably the case that it is a principle of law that a plaintiff cannot recover more than he has lost. 40The difficulty I have with the respondent's argument, notwithstanding those fundamental precepts, is that it requires - and the respondent did not shy away from this - that it be held that a person who has recovered workplace injury damages is expressly and necessarily excluded from the operation of s.242 of the WCA. 41And it requires that that be so held in circumstances where the WCA is innocent of any intimation to that effect. Section 151A goes to some length and detail in setting out exclusions that arise on the receipt of workplace injury damages. Access to the ability to apply for reinstatement under s.241, and access to the jurisdiction conferred by s.242, is patently not among those exclusions. 42Equally, s.242 itself does not provide that a person who had received workplace injury damages is excluded from the jurisdiction. The words of s.242 convey no limitation of that sort, expressly or impliedly. Part 8 as a whole does not lead to any view of that sort. 43The ability to apply for reinstatement to employment is a right of fundamental importance. As the respondent correctly observed, the reinstatement remedy created by the legislature is clearly intended to protect the employment of persons injured at work. It is a means of returning workers to the workforce once they have recovered from an injury sufficiently to enable them to be medically certified as fit for their pre-injury duties. Part 8 of the WCA is beneficial legislation and must be construed as such: Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41]. 44It is a right which in my view would not be removed from a discrete class of injured workers - those who had received workplace injury damages - without express provision. 45It is inescapable that this appears anomalous. It does, as the respondent submitted, appear to operate so as to allow some workers, but not others, to be doubly benefited. It may be that it is an oversight; it may be that it is intended, although that would, I am obliged to agree, appear to offend against principle. 46However, notwithstanding that, I am unable to find that such a fundamental right as that conveyed by Part 8 is closed to some workers without an express, or even implied, legislative statement to that effect. 47The right to apply for reinstatement is, on the face of s.242, expressly granted to all injured workers who have been dismissed without limitation. Of course in determining the meaning of a statutory provision a court may take into account, particularly, the general purpose and policy of a provision: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412 at [70], which purpose might not be thought to include what might be anecdotally described as 'double-dipping'. 48However, I see no warrant for reading into either s.151A or s.242 an exclusion which is simply not there, the more so in the context of the parliament having expressly turned its mind to exclusions, as is evident from the words of s.151A, without including any exclusion from the operation of Part 8. 49Accordingly, the respondent's motion cannot be sustained on the first ground upon which it argues. Second basis on which the respondent moves - the Deed 50Notwithstanding the submissions of the applicant to the effect that the appearance of consideration renders the document into which Mr Rudd entered a contract, not a Deed, the document is a Deed. 51In my view the respondent was correct in submitting that when the subject document is considered as a whole, the indicia clearly indicate an intention on the part of both parties to execute the agreement as a deed under seal. 52Further, the document was executed for the purpose of embodying the terms of settlement of litigation. It can be taken that the parties intended the instrument to be an effective binding instrument of settlement once the document was executed, even in the absence of consideration save only the promise to pay: Meredith Projects v Fletcher Constructions [2000] NSWSC 493 at [166] - [176]. 53However, in my view the argument is a sterile one. 54That is because s.234 of the Workplace Injury Management Act 1998 ('the WIMA') provides for that Act and the WCA to apply despite any contract to the contrary. It matters not whether the document is a deed or a contract; neither could operate to effect a contracting-out of the provisions of the WIMA and, relevantly, the WCA. 55True it is, as the respondent argues, that the legislative scheme provides for and recognises the right of workers and their employers to reach agreement in relation to rights under the WCA and to enforce such agreements. But the Parliament has enacted s.234 of the WIMA in terms, and it must be given effect in its plain terms. 56Again, true it is, as it was held in Zreika V QBE Workers Compensation (NSW) Limited and Lynch Warehousing Pty Limited trading as Lynch Flowers Pty Limited [2005] NSWSC 573, drawing on Baltic Shipping Company v Dillon (the "Mikhail Lermontov") (1991) 22 NSWLR 1, that the law does not lightly reject as incapable of enforcement a commercial bargain the parties intended to consummate and believed to be binding. 57Of course, here the Deed does not say in terms that Mr Rudd may not pursue rights under s.241 or 242 of the WCA; that was not an agreement the parties made and which is now sought to be enforced. But notwithstanding that the legislative scheme may operate in a way that recognises settlements as a matter of practicality, it is in my view not open to me to find that rights as fundamental as those given to injured workers in Part 8 of the WCA are taken away, even by the apparent operation of principles of the common law, without an express Parliamentary statement. 58Lastly on this matter, the respondent submitted that if the argument were accepted that s. 234 of the WIMA provides a complete bar to settlements with respect to claims or entitlements under the WIMA and the WCA, a settlement, whether effected by contract or Deed, would afford no protection either to the worker or the employer. 59I do not say that s.234 is a complete bar to settlements. Parties may settle litigation before a court on terms. What I have held is that a settlement does not operate to deny the injured worker access to the reinstatement jurisdiction conferred on the Commission under Part 8 of the WCA, in the absence of a clear statutory statement to that effect. That in no wise means that settlements do not afford protection; they certainly, for example, attract the express statutory protections provided by s.151A. Summary and Orders 60It follows from what I have said above that I do not propose to make the orders sought by the respondent. 61The Orders that I make are: 1. The respondent's Amended Notice of Motion filed on 9 July is dismissed. 2. The matter will be listed before the Commission for directions. PETER NEWALL Commissioner 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: 25 July 2014