The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Darren Rudd) [2015] NSWIRComm 11

Industrial Relations Commission New South Wales Medium Neutral Citation: The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Darren Rudd) [2015] NSWIRComm 11 Hearing dates: 13 November 2014 Date of orders: 19 March 2015 Decision date: 19 March 2015 Before: Walton J, President; Harrison DP; Tabbaa C Decision: The Full Bench makes the following Orders:

(1) The grant of leave to appeal is confirmed;

(2) The appeal is allowed;

(3) The order of Newall C of 25 July 2014 in Matter No IRC 954 of 2013 is set aside;

(4) In lieu thereof, we order that:

(a) The appellant's Amended Notice of Motion filed on 9 July 2014 is granted;

(b) The proceedings in Matter No IRC 954 of 2013 are dismissed. Catchwords: APPEAL – Industrial Relations Commission – jurisdiction – application for reinstatement order under Workers' Compensation Act 1987 – right of person to seek reinstatement under Pt 8 of the Workers' Compensation Act – preclusion from application for reinstatement upon recovery of common law damages – misconception of extent of powers by Commissioner – appeal allowed – dismissal of proceedings

STATUTORY INTERPRETATION – general principles – Workers Compensation Scheme NSW – Workers Compensation Act 1987 Pt 5 and Pt 8 – entitlement to reinstatement under Workers' Compensation Act – relationship between the operation of provisions regarding reinstatement and common law damages – effect of recovery of common law damages – meaning of "entitled to receive compensation" – meaning of "injured worker" – whether "injured worker" for purposes of Pt 8 upon recovery of common law damages – historical relationship between Industrial Relations Act 1991 and Workers' Compensation Act – whether existence of casus omissus – determination of no casus omissus – relationship between statute and common law principles – individual determined as not an 'injured worker' for purposes of Pt 8 Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations Further Amendment Act 2006 Interpretation Act 1987 Workers Compensation Act 1987 Workers' Compensation (Benefits) Amendment Act 1989 Workers' Compensation Dust Diseases Act 1942 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 Allchin v Commissioner of Police (No 2) (2007) 168 IR 170 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 Australian Salaried Medical Officers Federation v Central Sydney Area Health Service (2005) 147 IR 56 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350 Boncristiano v Lohman [1998] 4 V.R. 82 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 Coulton v Holcombe (1986) 162 CLR 1 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL) Drake Personnel Ltd t/as Drake Industrial v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027 Grljak v Trivan Pty Ltd (1194) 35 NSWLR 82 Haines v Bendall (1991) 172 CLR 60 Hood Constructions Pty Ltd v Nicholas (1987) NSWLR 60 HSUeast v Director-General, Department of Finance and Services [2012] NSWIRComm 112 Integral Energy v Allen (2001) 107 IR 456 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 Manser v Spry [1994] HCA 50; (1994) 124 ALR 539 Mills v Meeking (1990) 169 CLR 214 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Newcrest Mining Ltd v Thornton (2012) 248 CLR 555 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Texts Cited: Harold Luntz, Assessment of damages for Personal Injury and Death: General Principles, LexisNexis Butterworths Australia Category: Principal judgment Parties: The Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (Appellant) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent) Representation: Counsel: M P Cahill (Appellant) M Gibian (Respondent)