Chapman-Davis v State of New South Wales [2015] NSWIC 10

Industrial Court New South Wales

Medium Neutral Citation: Chapman-Davis v State of New South Wales [2015] NSWIC 10 Hearing dates: 4 March 2015 Decision date: 03 August 2015 Before: Walton J, President Decision: It is appropriate to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant.

The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same. Catchwords: APPLICATION FOR DECLARATORY RELIEF – declaratory relief pursuant to s 154 – statutory construction – construction of Item 25 in Pt 19H of Sch 6 of the Workers Compensation Act – workplace injury – exemption from amendment to workers compensation legislative scheme - entitlement to workers compensation – three declarations sought – discretionary considerations – first declaration sought lacks utility – third declaration sought not pressed - whether term 'paramedic' should be construed by reference to award classification or duties – meaning of 'operational duties' – secondment - applicant maintained appointment to her substantive position during secondment and at time of injury – applicant was classified as a 'paramedic' under the relevant award during secondment and at time of injury – applicant was performing duties in secondment distinct to those of an 'operational paramedic' – principles of statutory interpretation – whether it is permissible to have recourse to extrinsic material – Parliamentary debates – meaning of the provision is "ambiguous" so extrinsic material may be considered pursuant to s 34(1)(b)(i) of the Interpretation Act – comments made in Parliamentary debates merely confirm purpose apparent upon text of the Schedule - reliance placed by parties upon Stockwell and the AWU case – authorities distinguishable on facts, but may offer some guidance – ultimate issue was whether the applicant was a 'paramedic' within the meaning and for the purposes of the Schedule at the time of her injury by virtue of her continued employment in a position classified at that time as a paramedic under the award notwithstanding that, in her secondment to the role of Health Advisor, which she occupied at the time, she was not required to perform the duties of an operational paramedic as defined by the respondents – reference to dictionary meaning – limitations of recourse to dictionary definition in construction –– construction must begin with consideration of text – consideration of text requires it to be read in context – application of the noscitur a sociis principle – Schedule provides an exemption from the amendments to the workers compensation legislative scheme to nominated classes of emergency services worker – indefinite article 'a' conditions each word in the phrase – legislative intention for words to have the current ordinary and natural meaning – consistent with general intent of the legislative scheme - whether the word 'operational' should be read into the Schedule – conditions not satisfied, 'operational' cannot be read in - beneficial construction required – identification of purpose and mischief – purpose of Schedule may be identified by express statement, text and structure as well as extrinsic material - textual construction consistent with purpose and legislative intention - 'paramedic' denotes an employee who is classified as a paramedic under the award and, relatedly, appointed to a paramedic position by the Ambulance Service of NSW – the applicant was such an employee at the time of her injury – the exemption in the Schedule applies to the applicant – Court determined to make a declaratory order consistent with the terms of the second declaration sought – draft orders with submissions reflecting the decision to be filed and served – costs applications and submissions in support of the same to accompany submissions on draft orders. Legislation Cited: Crown Proceedings Act 1988 Fire Brigades Act 1989 Government Sector Employment Act 2013 Health Services Act 1997 Industrial Relations Act 1996 Interpretation Act 1987 Police Act 1990 Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: A-G v Scott (1904) 20 TLR 630 Amaca Pty Ltd v Novek [2009] NSWCA 50 Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Barrett v Thurling (1984) 2 NSWLR 683 Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Coleman v Power [2004] HCA 39; (2004) 209 ALR 182 Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 Construction, Forestry, Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 Dare v Pulham (1982) 148 CLR 658 Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111 Eaton v Overland [2001] FCA 1834 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 441 Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380 Harrison v Melhem (2008) 72 NSWLR 380 House of Pearce Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 IW Applicant v the City of Perth (1997) 191 CLR 1 Korczynski v Wes Loftus Pty Ltd (1985) 62 ALR 225 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Lansell House Pty Ltd v Commissioner of Taxation [2010] FCA 329 Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 Lewis v Green [1905] 2 Ch 340 Mills v Meeking (1990) 169 CLR 214 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 Nilant v Macchia (2000) 104 FCR 238 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955-1956) 94 CLR 509 Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 R v Liverpool Justices (1883) 11 QBD 638 Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346 Smart v Allen (1970) 91 WN (NSW) 241 State of New South Wales v Bishop [2014] NSWCA 354 State of New South Wales v Stockwell [2015] NSWWCCPD 9 Taylor v Owners – Strata Plan No 15564 [2014] HCA 9; (2014) 88 ALJR 473 The Australian Workers Union, New South Wales v Office of the Environment and Heritage [2012] NSWIRComm 133 The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381 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 Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: R W Burchfield, Fowler's Modern English Usage (3rd ed 1998, Oxford University Press) Macquarie Dictionary (6th ed 2013, Macmillan Publishing Group) Oxford English Dictionary (2nd ed 1989, Oxford University Press) The Chicago Manual of Style (15th ed 2003, The University of Chicago Press) W A Sabin, The Gregg Reference Manual: A Manual of Style, Grammar, Usage, and Formatting (10th ed 2004, McGraw-Hill) Category: Principal judgment Parties: Lorelle Chapman-Davis (Applicant) State of New South Wales (First Respondent) QBE Insurance (Australia) Limited, as an agent for NSW Self Insurance Corporation (Second Respondent) Representation: Counsel: T M Ower of counsel (Applicant) P Ginters of counsel (Respondents)