Supreme Court New South Wales Medium Neutral Citation: Transport Accident Commission of Victoria v; Leslie Ross Yarham [2016] NSWSC 1791 Hearing dates: 29 April 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Common Law Before: Hall J Decision: 1. A declaration that the assessment decision of the Claims Assessor, the Second Defendant, made on or about 25 September 2015 purportedly pursuant to s 92(1)(b) of the Motor Accidents Act 1999 was affected by jurisdictional error and accordingly was invalid. 2. An order that the First, Second and Third Defendants refrain from acting on or taking any step in reliance on the assessment decision referred to in Order (1). 3. A declaration that, by reason of the provisions of s 150A(1) of the Workers Compensation Act 1987 the substantive law that governs: a) Whether or not a claim for damages by the First Defendant in respect of injuries allegedly suffered by him in a motor vehicle accident on 18 July 2010 on the Newell Highway in New South Wales, can be made; and b) If it can be made, the determination of the claim is the substantive law of the State of Victoria. 4. In accordance with s 98 of the Civil Procedure Act 2005 and UCPR Part 42, r 42.1, costs of the proceedings should follow the event. I accordingly make an order that the First Defendant pay the plaintiff's costs subject to any submission on cost made upon delivering this judgment today, or otherwise as necessary upon relisting of the proceedings at 10:15am on Wednesday 14 December 2016. Catchwords: WORKERS COMPENSATION – practice and procedure – whether claims assessor erred in determining that claim was within jurisdiction conferred by the Motor Accidents Compensation Act 1990 – whether claims assessor erred by failing to ask and answer question whether the claim involves complex legal issues – whether substantive law of NSW or Victoria is applicable to the claim brought by the First Defendant Legislation Cited: Accidents Compensation Act 1985 (Vic) Motor Accidents Compensation Act 1999 Transport Accident Act 1986 (Vic) Workers' Compensation Act 1985 (Vic) Workers Compensation Act 1987 Cases Cited: Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Category: Principal judgment Parties: Transport Accident Commission of Victoria (Plaintiff) Mr Leslie Ross Yarham (First Defendant) Mr Andrew Gorman (Second Defendant) State Insurance Regulatory Authority (Third Defendant) Representation: Counsel: Ms M Allars (Plaintiff) Mr A Stone SC with Ms Holz (First Defendant) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Ryan Legal (First Defendant) Crown Solicitor (Second and Third Defendant) File Number(s): 2015/353438 Judgment INTRODUCTION 1. In these proceedings the plaintiff, the Transport Accident Commission of Victoria (the TAC) seeks a determination of the question as to whether the Third Defendant, the State Insurance Regulatory Authority (SIRA) had jurisdiction to entertain the First Defendant's personal injury claim lodged on 25 July 2014 with the Claims Assessment and Resolution Service (CARS) under the Motor Accidents Compensation Act 1999 ("the MAC Act"). The Proceedings 1. The TAC commenced these proceedings by Summons filed on 1 December 2015. Subsequent to that date an Amended Summons dated 3 December 2015 and a Further Amended Summons dated 9 March 2016 has been filed. 2. The Further Amended Summons was supported by the affidavit of Diana Farah, solicitor, sworn on 7 December 2015 and the affidavit of Olivia Mailian, solicitor, sworn on 28 April 2016. 3. The Second and Third Defendants, respectively; the Claims Assessor, Mr Andrew Gorman; and the SIRA entered submitting appearances on 11 December 2015. 4. As discussed below, the TAC, in bringing the proceedings, seeks judicial review of an assessment decision by the Claims Assessor made on or about 25 September 2015 purportedly made pursuant to s 92(1)(b) of the MAC Act ("the Assessment Decision"). 5. The plaintiff claims orders in the nature of prerogative relief setting aside or declaring invalid the assessment decision as well as other relief discussed below. Background Facts 1. The First Defendant, Mr Yarham, was a passenger in a motor vehicle which was involved in an accident on 18 July 2010 on the Newell Highway in New South Wales. The truck was driven by Mr Benson. The TAC claimed that he was injured in the accident. He claimed that the accident was caused by the negligence of Mr Benson. 2. Both Mr Yarham and Mr Benson were employed by a company, Detour Holdings Pty Ltd. That company was also the registered owner of the vehicle in which Mr Yarham and Mr Benson were travelling at the time of the accident. 3. Mr Yarham is a resident of the State of Victoria. 4. Detour Holdings Pty Ltd is a company domiciled in Victoria but operates out of the State. It appears from materials annexed to Ms Mailian's affidavit that the plaintiff was employed by Detour Holdings Pty Ltd as an interstate truck driver. The nature of Detour Holdings' business is recorded as being the transportation of vegetables, fruit and flowers from Melbourne to Sydney and Brisbane markets. Detour Holdings' principal place of business was in Victoria. 5. The TAC is the third party insurer of the truck involved in the accident. 6. On or about 25 July 2014, the First Defendant swore a statutory declaration in support of a workers' compensation claim (Annexure A to Ms Mailian's affidavit 28 April 2016). 7. TAC alleges that Mr Yarham received workers' compensation from Detour Holdings' workers' compensation insurer pursuant to the Accidents Compensation Act 1985 (Vic) (the AC Act). 8. An application was made under s 94 of the MAC Act, being an Application for General Assessment by the CARS dated 28 July 2015 (Annexure D to Ms Mailian's affidavit). Attached to the Application was a two-page document entitled "Insurer's Submissions" and dated 27 July 2015. Under the heading "Issues of Jurisdiction" the following paragraphs appear: "7. By virtue of Division 1 of Part 5 of the WC Act – NSW, and in particular ss 150A, 150B and 150E, in this claim for damages brought by the Claimant for injuries sustained in the accident, the substantive law of Victoria will be the applicable law. 8. By virtue of Part 1A of Part 5 of the WC Act – NSW, the insurer submits that the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) does not apply to the Claimant's claim for damages and a CARS assessor therefore has no jurisdiction to determine the claim. 9. Accordingly, the insurer submits that the matter ought to be exempted from determination by CARS." 1. Copies of the provisions of ss 150A, 150B, 150C, 150D, 150E and 150F of the Workers Compensation Act 1987 (the WCA) were attached to the "Issues" document. 2. A Reply to the Application for Exemption dated 6 August 2015 was lodged on behalf of the Mr Yarham (Annexure E to Ms Mailian's affidavit). 3. In support, a document entitled Claimant's Submissions on Discretionary Exemption dated 4 August 2015 by Mr Andrew Stone SC was lodged in which issue was taken with the plaintiff's (TAC) arguments as to the applicable law. It was noted at [25] that the Claimant maintained that the matter can and should remain within the CARS system. It was asserted that the claim fell within the scope of the MAC Act and that there was nothing within the WCA that provides for the motor accident claim to be removed from the jurisdiction of the MAC Act. The Claims Assessor's Decision 1. Applications for exemption from the CARS process are dealt with in Chapter 14 of the Claims Assessment Guidelines (the Guidelines) issued by the Motor Accidents Authority. 2. Chapter 14 of the guidelines entitled "Preliminary Assessment and Preliminary Conference" contains subparagraphs under the heading "Unsuitable for assessment under s 92(1)(b)". 3. Clause 14.11 provides "For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment. … 14.16. In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of consideration of the claim. This may include, but is not limited to: … … 14.16.3: whether the claim involves complex legal issues" 1. The plaintiff's application from exemption from the CARS system was based upon the proposition that the claim involved complex legal issues within the meaning of clause 14.16.3. In general, those issues were whether or not the law of New South Wales or the law of Victoria applied to this claim, having regard to the provisions of s 150A of the WCA. 2. It was contended for the claimant (the First Defendant to these proceedings) at [26] that there was no complexity to the legal arguments involved. It was submitted that the application for discretionary exemption should be dismissed. 3. The Claims Assessor, in his Determination, noted the basis of the Application for Exemption by the plaintiff in paragraphs [2] and [4] of his Determination and Reasons for Decision. Submissions as to alleged invalidity of the assessment decision Plaintiff's Submissions 1. In the proceedings in this Court, the plaintiff relied upon Outline of Submissions filed on 9 March 2016 and contended that the Assessment Decision was invalid because the Claims Assessor had asked the wrong question. What the Assessor was required to do, it was submitted, was to decide whether the claim involved complex legal issues. It was not a matter where the Assessor could, or should, have made a determination about the ultimate issue of jurisdiction which the plaintiff seeks to agitate. 2. The plaintiff contended that the substantive law of NSW includes NSW statutory law, relevantly including s 150A of the WCA. By reason of that and other sections of the WCA the plaintiff contended that the substantive law applicable to the claim brought by the First Defendant is the law of Victoria. In part this was because the alleged tortfeasor, Mr Benson, was an employee of Detour Holdings who is vicariously liable for the actions of Mr Benson. 3. More importantly, it was submitted, was the fact that the First Defendant sought and obtained workers' compensation payments in the State of Victoria which enlivens s 150A such that the substantive law of Victoria applies to his common law claim. 4. It was noted that the Claims Assessor made express reference to 14.16.3 of the Guidelines: "20. In the concluding sentence of paragraph 4 in his Determination and Reasons for Decision the Assessor concluded that it seemed incontrovertible that if there was a need to apply the law of another jurisdiction that would constitute sufficient grounds for its exemption pursuant to s 92.1 of the Act. 21. What the Assessor then did was to go on and determine whether or not, in his view, the claim attracted the operation of the WCA. His finding, and reasoning underlying it, commences in paragraph 6 under the heading 'DETERMINATION'. The Assessor outlines the various sections of the WCA at paragraphs 7-9. At paragraph 10 he says 'On the face of it, the Insurer's submissions appear to be well founded'. However, the Assessor then went on to consider a further section, s 151 of the WCA, and two Appellate decisions of the NSW Court of Appeal and a decision of the Supreme Court of the ACT. 22. Having apparently considered the submissions of the parties and the decisions of the NSW Court of Appeal and the decision of the ACT Supreme Court the Assessor concluded that the provisions of the WCA to which he had earlier referred did not apply to the Claimant's claim and that there was, therefore, no issue of legal complexity. He therefore refused the application for exemption." 1. As noted above, the plaintiff contended that the decision of the Assessor is invalid because he asked himself the wrong question. It was submitted that the power of an Assessor in relation to an application for an exemption from the CARS process commences with a consideration of s 92 of the MACA. That section provides that a claim will be exempt if it is a kind that is exempt under the guidelines. 2. Accordingly, it was submitted that what the Assessor was required to do was to decide whether the claim involved complex legal issues. It was not a matter where the Assessor could, or should, have made a determination about the ultimate issue of jurisdiction which the plaintiff seeks to agitate. 3. It was submitted that this Court ought declare that the proceedings brought by the First Defendant against the plaintiff are governed by the Workers' Compensation Act 1985 (Vic). First Defendant's Submissions 1. The First Defendant relied upon written submissions dated 19 April 2016. These were supplemented by his oral submissions. 2. At the hearing of the proceedings Mr Stone SC, who appeared for the First Defendant with Ms M Holz of counsel, developed the submissions as follows: 1. In determining Mr Yarham's "motor accident rights" one turns to the MAC Act first, not to the provisions of s 150A of the WCA: T 23: 5-12. 2. Mr Yarham's claim falls within the legislative scope of the MAC Act, reference being made to the definition of "claim" (s 3) T 23: 15-20. He has a motor vehicle accident claim within the scope of the MAC Act. 3. A claim was lodged by Mr Yarham: s 72(2). The claim is only a claim form that is lodged with TAC. The claim is therefore not made against the owner or driver. This was said to be a significant matter with respect to s 150A: T 23-24. TAC is obliged to deal with the claim: T 24: 1-5. 4. A claim may be referred to the Authority for assessment: s 90. 5. Section 92 then deals with Claims Exempt from Assessment. 6. The CARS process is between a claimant and the insurer: T 24: 45‑50. 7. The status of assessments is the subject of the provisions of s 95 of the MAC Act. 8. As to General Regulation of court awards: see provisions of s 123. 1. The above matters were said to represent "the overall regime by which Mr Yarham's claim proceeds as a motor accident claim". 2. It was then submitted that in New South Wales, a worker has "two sets of separate rights". The First Defendant pursues a claim under the MAC Act: "…and nowhere in the MAC Act is there any instruction or direction 'go check s 150A of the Workers' Compensation Act to see if you're excluded'": T 27: 30-40. 1. It was submitted in these proceedings there was a Compulsory Third Party (CTP) insurer "casting around" for some way to avoid New South Wales liability…": T 27: 40-50. 2. Mr Stone then referred to case law authorities which draw a distinction between the liability of an entity in its capacity as employer and the liability of that entity as owner of a motor vehicle. 3. Turning to the provisions of s 150A, Mr Stone raised the following matters: 1. That the word "claim" in s 150A is not to be given its ordinary English meaning. "Claim" is a defined term in The Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act"). 2. The WIM Act applies to the WCA through a "chain" of provisions. "Claim" provides a limitation on the meaning of the word "damages" in s 150A. It restricts it to "work injury damages". 3. The phrase "work injury damages" excludes "motor accident damages": T 29: 1-15. "Motor accident damages" are excluded from the definition of "claim": T 29: 30-35. 4. The "mischief" behind s 150A was to sort out the workers' compensation rights for people who are interstate: T 30: 25-35. This was said to be made clear by the Second Reaching Speech in relation to the Workers' Compensation Legislation Amendment Bill, 14 November 2002, in respect of "cross-border" issues in workers' compensation: see below. 1. Mr Stone stated: "In our submission, that was all about streamlining workers' compensation arrangement for workers' compensation insurers. It has done nothing to address arrangements for CTP insurers…": T 31. Written Outline as to "How the MAC Act Works" 1. Mr Stone produced a document (14 paragraphs) as to how, in the First Defendant's Submissions, the MAC Act applied in this case. Set out below are the 14 paragraphs: 1. Mr Yarham has been injured in a motor vehicle accident. 2. The accident was the fault of Mr Benson as driver of a motor vehicle. 3. The motor vehicle was insured for CTP purposes by TAC, a CTP insurer. 4. The accident occurred in New South Wales. 5. The lex loci of the tort governs choice of law so NSW law applies. 6. Mr Yarham's claim falls within the legislative scope of the MAC Act per s 3 and the definition of "claim". 7. Mr Yarham has lodged a claim with the TAC (a CTP insurer) pursuant to the MAC Act. 8. Unless exempt from assessment under s 92, Mr Yarham's claim is dealt with within the CARS system by way of assessment per s 90. 9. Within the CARS system the only parties are the claimant (Mr Yarham) and the insurer (TAC) per s 88. 10. Mr Benson and Detour Holdings are not a party to the CARS assessment process. 11. Section 95 provides that the status of an assessment of damages at CARS is that it is binding on the insurer and the insurer must pay to the claimant the amount of damages as specified in the certificate to the assessment. 12. The claims assessment process does not give rise to any liability to pay on the part of Mr Benson or Detour Holdings. There are no "damages recoverable" from Yarham's employer [Detour Holdings] as a consequence of a CARS assessment - the only damages recoverable are from the TAC. 13. Put another way, if there were an assessment of damages by CARS and for some reason, the TAC refused to pay, enforcement of payment pursuant to s.95 could only be as against the TAC and not against Mr Benson personally or Detour Holdings personally. 14. It is only if there were court proceedings, (which Mr Yarham is not currently permitted to bring) and even then, only if Detour Holdings were named as defendant (rather than Benson being sued as the negligent driver) that there would be any "claim" against Detour Holdings. 15. Before CARS or a court, if the substantive law of NSW is to be applied (which it is by virtue of geography), then the MAC Act must be applied (s 123 and s 122). The chain by which motor accident rights are excluded from s 150A 1. Mr Stone produced in written form what were said to be a number of steps involved in supporting his ultimate submission that the claim was one that fell within the provisions of the MAC Act and was not one to which s 150A applied at T 32-34. The six steps were as follows: "1. Section 150A of the WCA applies to work injury 'claims'. S.150A(1)(a) sets the substantive law that governs a 'claim' for damages. 2. S.2A of the WCA applies the WIM Act generally to the WCA (and thus to s.150A). 3. S.4 of the WIM Act defines 'claim'. 'Claim' means a claim for compensation or work injury damages that a person has made or is entitled to make. 4. S.4 of the WIM Act defines 'work injury damages' as having the same meaning as in Chapter 7 (of the WIM Act). 5. S.250 in Chapter 7 defines 'work injury damages' as meaning damages recoverable from the worker's employer in respect of injury caused by the negligence of the employer, but 'does not include motor accident claims'. 6. S.4 of the WIM Act defines 'motor accident damages' as damages to which Chapter 5 of the MAC Act applies." 1. In addition it was stated: "Linking 1 through 6 above, with s.150A limited to 'claims' that are work injury damages claims, MAC Act claims against an employer are excluded from the operation of s.150A. For all that the Plaintiff's submissions in reply seek to draw a distinction between 'damages' and 'work injury damages', this is not a distinction that actually exists in the legislation. This is not because of the definition of 'damages', but rather because of the definition of 'claim'. All that can be claimed under the WCA and WIM Act are work injury damages. Put even more succinctly, s.150A only has application to 'claims' as per s.150A(1)(a). 'Claims' (as per s.4 of the WIM Act) only means work injury damages claims. This excludes motor accident damages." Plaintiff's Submissions in Reply 1. Ms Margaret Allars SC, who appeared on behalf of the plaintiff, relied upon her written submissions, Plaintiff's Submissions in Reply, dated 28 April 2016, as developed in her oral submissions. It was noted in the submissions that Claims Assessor, in exercising the power conferred by s 92(1)(b) of the MAC Act, was required to make a preliminary assessment as to whether the Claim was exempt as not being suitable for assessment under Part 4.4 of the MAC Act. Instead of asking and answering the question whether the claim "involves complex legal issues" as required by the legislation and guidelines, the Assessor asked and answered the legal issue itself. That issue was whether s 150A of the WCA required the substantive law of Victoria to govern the claim. If so, then the claim could not be brought under the MAC Act. It was submitted that this in itself amounted to a jurisdictional error in the Assessor misconstruing the provisions governing the jurisdiction of CARS and hence his own jurisdiction. 2. The plaintiff addressed two separate questions: firstly, the question as to error by the Claims Assessor in determining that a claim was within jurisdiction conferred by MAC Act and, secondly, jurisdictional error by failing to ask and answer question whether the claim involves complex legal issues. 3. On the substantive issue in relation to the first of the above two questions, it was submitted that s 150A of the WCA does not become inapplicable, as submitted for the First Defendant, on the basis that a distinction can be drawn between an entity, such as the company Detour in this case, "qua employer" and the same entity, "qua motor vehicle owner or driver". The First Defendant, it was noted, sought to establish that he had separate rights under the MAC Act by contending that the respondent in the proceedings in a CARS assessment under the MAC Act (the Plaintiff as CTP insurer) differs from the respondent in the statutory workers' compensation proceedings he has already brought under the AC Act (Detour Holdings Pty Ltd, the First Defendant's employer). 4. However, Ms Allars observed at 2.3 of her Reply Submissions that a claim under the MAC Act is made against the insured person (including an employer which is vicariously liable for the acts of its employee), although it was noted that the third party insurer is authorised to receive the claim and act in respect of the claim: MAC Act ss 72, 77, 78 and 79. A claim under the Accident Compensation Act 1985 (Vic), it was observed, is made against the employer, which may be represented by its workers' compensation insurer. In both proceedings, the insurer acts pursuant to a statutory right to act as respondent. In both proceedings the claim is in substance against the same entity, Detour. 5. Ms Allars submitted that s 150A of the WCA is not simply disposed of by an assertion that it only applies to a "work injury damages", common law proceeding for damages. 6. In relation to the provisions of Division 1A of Part 5 of the WCA, it was noted that Part 5 is entitled to "Common Law Damages". It was also noted that Division 1A which contains ss 150A to 150F, and is entitled "Choice of Law". 7. As also noted it was common ground that in respect of the injury that occurred on 18 July 2010 in NSW, the First Defendant applied for and received compensation under the Victorian Workers Compensation Scheme. That was a precondition to which s 150A refers. Further, it was observed that there could be no dispute that a workers compensation claim in respect of the injury had to be made under the AC Act, since the employer, Detour, is located in Victoria. 8. In consequence of the satisfaction of the precondition referred to in the preceding paragraph, the plaintiff contended that the "substantive law", in this case, the law of Victoria, governs in accordance with s 150A the determination as to: 1. Whether or not a claim for damages in respect of the injury can be made; and 2. If it can be made, the determination of the claim. 1. It was noted that the expressions "damages" and "substantive law" are defined in the WCA. 2. It was further noted that for the purposes of Part 5 of the WCA, s 149 defines "damages", non-exhaustibly, as including: 1. Any form of monetary compensation; and 2. Any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted). 1. One form of monetary compensation covered is, it was observed, "damage" sought in a claim for damages. In s 149 itself, seven particular matters are expressly excluded from the definition of "damages" in that section. 2. Ms Allars noted, relevant to the provisions of s 150A, that it is to be noted that there is no exclusion contained in s 149 for a sum payable under a statutory scheme for compensation for injuries caused by motor vehicle accidents. In other words that is a matter of particular relevance to the provisions of s 150A. 3. Accordingly it was submitted that a claim for compensation under a scheme such as the MAC Act or the Transport Accident Act 1986 (Vic) (the TA Act) is a claim for damages of a kind that is within the definition of "damages". On that basis a claim for compensation under the TA Act is therefore a claim for damages within s 150A(1)(a). 4. It was noted that s 150E, entitled Meaning of 'Substantive Law', is defined non-exclusively to include: (a) A law that establishes, modifies or extinguishes a cause of action or a defence to a cause of action, … (d) A law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered. (e) A law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered. … (g) A provision of a State's legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature. 1. It was submitted that the TA Act could fall within any or all of the above paragraphs, (a), (d) and (e) in s 150E. It was submitted it is a "substantive law" of the State of Victoria for the purposes of s 150A(1). 2. Accordingly, it was noted that the important and relevant point was that a claim for statutory compensation under the TA Act which is a Victorian counterpart to a claim for compensation under the MAC Act in NSW, is a proceeding under the "substantive law" of Victoria. 3. By force of s 150A(1), it was submitted the substantive law in Victoria contained in the TA Act governs whether or not a "claim for damages" in respect to the First Defendant's injury can be made and the basis on which it is determined. 4. It was also noted that the provisions of s 150B of the WCA narrow the application of Division 1A. The provisions of Division 1A apply to "a claim for damages" against a worker's employer in respect of an injury caused by "the negligence or other tort (including breach of statutory duty) of the worker's employer", or "a breach of contract" by the employer: s 150B(1). 5. This, it was observed, includes an action brought against a person for whose acts the employer is vicariously liable: s 150B(3)(b). In that section, "claim for damages" requires reference back to the definition of "damages" in s 149. As noted above, the expression means any kind of claim for monetary compensation, whether at common law or under a statutory scheme, provided that none of the exclusions in the definition of "damages" applies. 6. The fact that the claim must be in respect of an injury caused by negligence, other tort or breach of contract, was said to indicate the breadth of the kinds of claims with which Division 1A is concerned. However, it was also noted that s 150B makes it clear that Division 1A is concerned only with claims for damages against the injured person's employer or a person for whose acts the employer is vicariously liable. Division 1A does not apply to claims for damages against other persons. Additional Submissions 1. The First Defendant relied upon five additional matters, in particular five points set out by way of reply entitled "The Flaws in the Plaintiff's Submissions in Reply" dated 29 April 2016. Certain of the points overlap with the submissions of both parties. 2. As to (1) it was contended that under the MAC Act the claim is not made against the insured person. A claim it was noted is made against an insurer: s 72. However, I note in this respect that other provisions of the MAC Act proceed upon the basis that liability attaches to an insured under a third party with a right of control in the insurer: see s 72, Time for making of claims; s 77, Insured not to admit liability; and s 78, Power of insurer to act for insured. 3. As to (2), issue was taken with s 150A(1)(a) as not confined to "work injury damage". Reference was made to the definition of "claim". 4. As to (3), s 250 is not to be taken as confined to Chapter 7 of the WIM Act. 5. As to (4), reference to "claim for damages", it was submitted it has two parts: WIM defines the term "claim" – s 2A of WCA applies the WIM Act including s 250 and s 4 to the WCA. "Claim" does not exclude motor accident damage – "claim for damages" in s 150A(1)(a) by virtue of the definition of "claim" covers only "work injury damages" and excludes "motor accident damages". 6. As to (5) the submissions for the plaintiff in relation to the Second Reading Speech in relation to the relevant legislation including s 150A were misconceived/misrepresented. Reply Submissions 1. In answer to the submissions on the construction of s 150A, Ms Allars submitted: 1. Section 150A employs the phrase "a claim for damages", not "work injury damages". The two expressions are different. 2. The word "claim" is not defined as embracing work injury damages that a person has made or is entitled to make. 3. Ms Allars submitted that it does not assist the First Defendant to rely upon the definition of motor accident damages, as "work injury damages" is not "claim for damages" within s 150A and is not "work injury claim". They are all different expressions. 4. Section 3(1)(AA) in the WCA provides: "In this Act, words and expressions have the same meanings as they have in the 1990 Act, unless this Act provides otherwise." Section 2A assists the process of construction of s 3(1)(AA) and the various definitions as there are definitions in each of the Acts which are expressed to apply "in this Act" or "in this Part", or "in this Chapter". It was submitted that that involves the kind of words that are providing otherwise, that is, "providing otherwise occurs". When a definition is preceded by a limitation it was noted it says "in this Chapter", "in this Part". The consequence of that is that there is a question of construction involved, not the overriding of one provision of the Act by another. 5. Section 149(1), for example, commences "In this Part" and includes the definition of "damages", a term used in s 150A(1). 6. Section 2A(3) of the WCA provides that in the event of an inconsistency between that Act, the WCA, and the 1998 Act (the WIM ACT), the 1998 Act prevails to the extent of the inconsistency. Ms Allars noted that, having regard to s 3(1AA) the issue is whether the 1987 Act does "provide otherwise". I note that s 3(1AA) states: "In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise". In that respect, it was noted that one does find that it does provide otherwise in relation to the concept of damages as defined in s 149(1)(a) (damages "includes (a) any form of monetary compensation"). The section provides for express exclusions, one exclusion being compensation under the 1987 Act in subs (c): s 149(c). 7. "Compensation under this Act": it was submitted that what is intended to be covered here is any form of compensation. The expression, "compensation" in para (a) of the definitions in s 149(1) of the WCA needs to be read in its entire context "any form of monetary compensation". It was submitted there would instead be an inconsistency to pick up and apply the definition in s 4 of the WIM Act for the purposes of that Act and adopt that in place of the definition of damages in s 149(1)(a). It was submitted in that respect "damages" is defined in the 1987 Act in a way that is contrary to, or "otherwise provides" for the purposes of s 3(1AA) of the WCA. 8. It was submitted that, in a sense, there is no contradiction for the purpose of s 2A(3) because each definition is expressed to apply for different purposes and in different contexts. Consideration 1. Many, probably most, motor vehicle accidents occur in circumstances that have no relevant connection with employment or arise in an employment context. However, of course, some motor vehicle accidents do have such a connection. The present case is one such case. In those cases an injured person may have rights both to statutory compensation and a right to sue at common law for damages. 2. In the present case, the accident in question occurred in New South Wales. However, there are a number of connecting factors with the State of Victoria. They include: 1. The fact that the First Defendant was an employee of the company Detour, a company located in Victoria. 2. The fact that Detour was both owner of the vehicle in which the First Defendant was a passenger, and as well was his employer. 3. The fact that the driver of Detour's vehicle was also an employee of Detour. 4. The fact that the vehicle was being used in the course of Detour's business operations making an interstate delivery of Detour's products. 5. The fact that the motor vehicle accident occurred during or in the course of the First Defendant's and Mr Benson's employment with Detour. 6. The fact that statutory compensation was claimed by the First Defendant under the relevant Victorian statutory scheme (under the AC Act) and compensation under the scheme was paid to the First Defendant. 1. The common law rules with respect to actionability and choice of law are rules of substantive law. They apply unless they are made subject to statutory modification. The law governing all questions of substance in Australia torts involving an interstate element is the lex loci delicti: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36. The plurality in Pfeiffer stated at [102]: "Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws." 1. The WCA was amended in 2002 to include Division 1A entitled "Choice of Law". That Division was inserted into Part 5 entitled "Common Law Remedies" of the WCA. As the title to Part 5 indicates, the provisions in Part 5 are not directed at rights etc in respect of statutory enacted workers compensation. Division 1A is wholly directed to rights conferred by the common law to sue for damages. Part 5 as originally enacted had abolished the right of a worker to recover damages from an employer in respect of an injury for which the employee was liable to pay compensation under the Act. That Part was repealed and a new Part 5 was substituted. That Part restored the right to common law damages. 2. Division 1A, "Choice of Law", is to be construed in context with other provisions in Part 5. Division 1 entitled "Preliminary", in particular and importantly the provisions of s 149, sets out the definition of the word "damages" and does so in broad terms. It provides that "In this Part 'damages' includes the matters in (a) and (b) of the definition, namely: "(a) any form of monetary compensation, and (b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), 1. However, also of importance is the fact that the definition of "damages" also contains exclusions provisions, compensation, and amounts as follows: "but does not include: (c) compensation under this Act, or (d) additional or alternative compensation to which Division 8 of Part 3 applies, or (e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996 , or (f) a sum required or authorised to be paid under a State industrial instrument, or (g) any sum payable under a superannuation scheme or any life or other insurance policy, or (h) any amount paid in respect of costs incurred in connection with legal proceedings, or (i) damages of a class which is excluded by the regulations from this definition." 1. The provisions of 150A in Division 1A employ the word "damages" as defined in s 149. Whilst the subheading to s 150A is entitled "The applicable substantive law for work injury claims". The subheading is in the nature of a summary description or a reference to what is provided by the terms of s 150A itself. Of particular importance is the fact that there is no separate definition of the expression in the Act of "work injury claims" which appears in the subtitle to s 150A. I accept, as Ms Allars submitted, the sub-heading cannot be used to control the proper construction of the actual terms of s 150A itself: s 35(2)(a) Interpretation Act 1987 (NSW). A heading may assist in the interpretation of s 150A: s 35(3) Interpretation Act. However, that said, I accept as submitted for the plaintiff the descriptive reference in the subtitle to s 150A, "work injury claims" is merely a shorthand reference to the provisions to be found in s 150A and those descriptive words do not in any event provide an accurate or detailed account of those provisions. 2. Section 150A is directed at modifying the common law choice of law principle in particular cases that fall within its provisions. In that respect: 1. It applies to the case of: 1. a person who is a worker suffering injury, 2. (b) to whom compensation is payable (whether or not it has been paid under a statutory workers compensation scheme of another State) 1. Section 150A specifies that in such cases the substantive law of that State is the substantive law that governs both actionability and the determination of a claim for damages, namely: "(a) whether or not a claim for damages in respect of the injury can be made, and (b) if it can be made the determination of the claim.". 1. The accident occurred on 18 July 2010 in New South Wales and, as has been noted above, the First Defendant claimed, or applied for and received, compensation under the Victorian Statutory Compensation Scheme. Such a claim had to be made under the AC Act: s 80; Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230. 1. Accordingly, on these facts s 150A applies. On that basis the substantive law as to the matters in (a) and (b) of s 150A, is the law of the State of Victoria. 2. In other words, the matters referred to in (2) above constitute the matters that constitute the precondition to the application of s 150A in this case. 1. The ambit of s 150A is, as discussed in the submissions for the plaintiff, limited by the provisions of s 150B. Section 150B limits Division 1A to a claim for damages against a worker's employer in respect of an injury that was caused by: "(a) the negligence or other tort (including breach of statutory duty) of the worker's employer, or (b) a breach of contract by the worker's employer." 1. By s 150B(3) a worker's employer includes, inter alia, a person for whose acts the employee is vicariously liable. 2. The intention behind the enactment of s 150A is not, as submitted for the First Defendant, "to simplify workers compensation claims for employers and workers compensation insurers": First Defendant's Outline of Submissions 19 April 2016 at [30]. It was intended to address both statutory compensation and claims for common law damages. Thus in the Second Reading Speech it was observed: "I now turn to each of these amendments in more detail. For a number of years, there has been concern about the need for employers to take out workers compensation insurance for individual workers in more than one State or Territory even if these employees are working only temporarily in another State. Over the past 10 years there have been a number of attempts to resolve these cross-border issues. Discussions with all of the States and Territories at ministerial and officer level have recognised the need for a legislative solution. Attempts were made to prepare national template legislation, but these attempts have foundered because the proposed solution became too complicated and unworkable. However, national principles have been agreed. These aim to eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction. These principles also are intended to ensure that workers working temporarily in another jurisdiction will only have access to the workers compensation entitlements—and common law benefits—available in their home State or "State of connection" and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another. (Emphasis added) … Other provisions in schedule 1 will enable the recognition of a determination of the State of connection made in another State and will enable the State of connection tests to also apply to common law claims against an employer. The reforms contained in schedule 1 will be of significant benefit to both workers and insurers. It will give employers with workers in different States clear guidelines on their workers compensation responsibilities. It will also provide injured workers with increased certainty about their workers compensation entitlements and common law rights." (Emphasis added). 1. In the reference in s 150A(1) to "a claim for damages", "damages" has the meaning given to that word in s 149. So understood, it does not mean work injury damages which is the subject of s 250 in Chapter 7 of the WIM Act. I note, as extracted above, the definition of damages under s 149. 2. Equally important is that the definition of "damages" whilst specifically excluding certain specified species of compensation, and other sums or amounts, does not exclude "damages" under a statutory scheme to compensate in cases of injuries caused by motor vehicle accidents or in respect of motor vehicle liability or "motor accident claims", an expression as noted above, found in s 250 of the WIM Act. The terms of the broad definition of "damages" in s 149 accordingly would encompass for the purpose of its companion provision, s 150A, damages in motor accident cases. 3. There is no distinction between the respondent in CARS and the respondent in statutory workers compensation proceedings which the First Defendant instituted under the AC Act. As noted in the plaintiff's submissions a claim under the MAC Act is made against the insured person (including an employee who is vicariously linked to the acts of its employer), the third party insurer being authorised to receive the claim and act in respect of it: MAC Act: ss 72, 77, 78 and 79. 4. It is not open to the First Defendant to either simply assert that s 150A applies to a "work injury damages" common law proceeding for damages. Conclusions 1. In any determination of the choice of law issue in this case, the issue is one to be resolved by the statutory language appearing in s 150A of the WCA, construed in the context of the WIM Act. In the latter respect s 2A(2), (3) of the former Act applies. Additionally, the operation of s 3(1AA) of that Act in respect of the meaning of words and expressions, has relevance in terms of the definitions in s 149 for the purpose of Part 5 of the WCA, "Common Law Damages". 2. The scope and operation of these provisions cannot, in my opinion, as a matter of statutory construction be controlled or shaped by the description in the sub-heading to s 150A "work injury claims", an expression not otherwise used or defined in the WCA. The text of s 150A is critical in its construction. Also of central importance are the undisputed facts as to injury occurring in New South Wales on 18 July 2010 and the First Defendant's claim for compensation under the AC Act. Those facts satisfy the precondition in s 150A which in turn determines the "substantive law" of Victoria governs both whether or not a claim for damages in respect of the injury can be made and, if so, the determination of the claim: s 150A(1)(a) and (b). 3. Section 149 plays a key role for the purposes of Part 5 of the WCA in that the definition of "damages", on a proper reading of its provisions, includes a claim for damages for injury sustained in a motor vehicle accident. The motor vehicle accident in this case had, as discussed above, a number of factual connections both to the First Defendant's employment and to the State of Victoria: see [65] above. The common law as to the lex loci delicti by the enactment of Part 5, so far as the present case and like cases are concerned, was modified or changed as specified in s 150A. Where s 150A applies to a case of an injured interstate employee involved in a New South Wales accident and the preconditions in s 150A are satisfied, then by that section the injured employee's rights to claim damages will be determined by the substantive law of the other State. 4. A claim for compensation under the scheme under the TA Act or a claim under the scheme under the MAC Act is not excluded under the definition in s 149. Each involves a claim of a kind that fall within the definition of "damages" in that section. A claim under the above Victorian Act is accordingly a claim for damages in s 150A(1)(a). The TA Act would fall within s 150E of the WCA ("substantive law"): see s 150E(a), (d) and (e). A proceeding for damages under the latter Act is one under the substantive law of Victoria. It is that Act which governs whether or not a claim for damages in respect of injuries sustained in the motor vehicle accident can be made. 5. I do not, with respect, consider that the construction and approach to the construction of s 150A advanced in submissions for the First Defendant should be accepted. In particular: 1. The provisions of s 150A cannot, given their terms, be read down or construed by the heading to that section as the heading is not part of a New South Wales Act: s 35(2)(a) Interpretation Act 1987. 2. In any event, there is no definition of the expression "work injury claims" and is in the nature of an abbreviation designed to be descriptive of what is in fact provided for in s 150A. 3. There is no proper foundation or basis for, effectively, substituting for the definition of "damages" in s 149 the definition of "work injury damages" in s 4 of the WIM Act (defined in s 4 as having the same meaning as in Chapter 7 (New Claims Procedure of the WIM Act). 4. In that respect "work injury damages" is defined in a way that confines it to Chapter 7. Section 250(1) commences "In this Chapter" and separately defines "damages" and "work injury damages". On the other hand, for the purpose, inter alia, of the choice of law provision in Division 1A of Part 5, s 149 directs "In this Part" which specifically defines "damages". 5. Finally, on this aspect, had the legislature intended to exclude cases such as the present from s 150A it could readily have done so by adding an exclusion clause to the definition of "damages" in s 149. I accept as submitted for the plaintiff that the failure to exclude motor accident claims is a powerful indicator of a legislative intention that claims such as that in this case are, where the preconditions in s 150A are satisfied, governed by the substantive law of the other State – in this case, the substantive law of Victoria. 6. The second reading speech to which reference is made above, in my opinion, is consistent with and provides support for the construction of s 150A advanced by the plaintiff. Disposition The Issue of Jurisdictional Error 1. The Claims Assessor in determining the plaintiff's application for exemption was required to exercise the power conferred by s 92(1)(b) of the MAC Act to make a preliminary assessment as to whether the claim of the First Defendant was exempt as being not suitable for assessment under Part 4.4 of the MAC Act. 2. It is clear, in my opinion, that instead of determining the issue for decision – whether the claim "involved complex legal issues" as required by s 92(1)(b) the Claims Assessor addressed and answered the wrong question, namely, the legal issue itself being whether s 150A of the WCA operated to make the substantive law of Victoria as the law that governs the First Defendant's claim. 3. In doing so, the Claims Assessor erred in law by misconstruing and/or misapplying the provisions that governed his jurisdiction. 4. In so proceeding, the Claims Assessor failed to exercise the jurisdiction vested in him and in determining the substantive or legal issue under s 150A and in determining that the claim was within the jurisdiction or scheme conferred or arising under the MAC Act exceeded the jurisdiction vested in him under s 92(1)(b). Relief Claimed 1. In the Further Amended Summons the plaintiff claimed an order in the nature of certiorari or alternatively declaratory relief (Para [1](i) of the Relief Claimed), prohibition or injunctive relief against the defendants, declaratory relief as to the applicability of s 150A(1) in terms of the substantive law by which his Claim is governed. 2. Paragraph [1](iv) and (v) related to any necessary interim relief or other interim relief including a stay in the nature of prohibition. No application was made for such interim relief pending final disposition of these proceedings. 3. Finally, an order for costs was sought. 4. In opening submissions on the question as to whether, if the Claims Assessor's was set aside on the basis of jurisdictional error, I should determine the substantive law issue in this case under s 150A, the parties having addressed that latter issue at length. 5. Ms Allars addressed the latter issue at T 2-3, stating that the plaintiff sought to have "both issues" determined by this Court, the plaintiff contending that there is jurisdictional error in both respects: T2:5-10. If both issues were decided in favour of the plaintiff it would be odd to then remit the matter to a CARS assessor to decide again according to law in circumstances where there is no jurisdiction: T 3: 1-5. 6. Ms Allars also referred to the benefits of having both issues determined thereby putting an end to litigation rather than leaving the substantive issue for later determination: T 3. 7. Mr Stone endorsed the approach whereby I would determine "the substantive legal question": T 3: 24-26. In so saying, Mr Stone maintained the position that the Claims Assessor's determination was a correct one. Mr Stone further submitted: "…so we are very much in favour of your Honour deciding the substantial point so we can move forward one way or another…": T 3: 50 – T 4: 1. 1. Mr Stone argued that in determining the issue of "complexity" relevant to the application to exempt, the Claims Assessor was entitled to address and consider the "substantive" issue concerning s 150A: T 3: 24-35. 2. The position of both parties as expressed by counsel is both understandable and practical. If there was jurisdictional error by the Claims Assessor in failing to exercise the jurisdiction under s 92(1)(b), there would be little point in remitting the matter for a re-determination of the exemption application if, having heard submissions on the substantive issue, s 150A, operated on the known facts s 150A did apply, so as to render the law of Victoria the substantive law that governs: (a) whether the claims for damages in respect of the injury can be made and (b) if it can be made, as to the determination of the claim. 3. Accordingly, I have determined that I should proceed to determine both issues. The scope of any relief in relation to the second issue, in my opinion, should be the minimum necessary required to dispose of that issue. 4. Accordingly, I consider that the plaintiff is entitled to declaratory relief as set out below and relief by way of prohibition as follows. ORDERS 1. I make the following declarations and orders: 1. A declaration that the assessment decision of the Claims Assessor, the Second Defendant, made on or about 25 September 2015 purportedly pursuant to s 92(1)(b) of the Motor Accidents Act 1999 was affected by jurisdictional error and accordingly was invalid. 2. An order that the First, Second and Third Defendants refrain from acting on or taking any step in reliance on the assessment decision referred to in Order (1). 3. A declaration that, by reason of the provisions of s 150A(1) of the Workers Compensation Act 1987 the substantive law that governs: 1. Whether or not a claim for damages by the First Defendant in respect of injuries allegedly suffered by him in a motor vehicle accident on 18 July 2010 on the Newell Highway in New South Wales, can be made; and (b) If it can be made, the determination of the claim is the substantive law of the State of Victoria. 1. In accordance with s 98 of the Civil Procedure Act 2005 and UCPR Part 42, r 42.1, costs of the proceedings should follow the event. I accordingly make an order that the First Defendant pay the plaintiff's costs subject to any submission on cost made upon delivering this judgment today, or otherwise as necessary upon relisting of the proceedings at 10:15am on Wednesday 14 December 2016. ********** Amendments 15 December 2016 - Amendment to representation 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: 15 December 2016