There has been a raft of applications in the Personal Injury Commission within the last 18 months raising whether it has the jurisdiction to hear workers compensation disputes involving injured workers residing outside of New South Wales.
It is generally accepted, in such circumstances, that the determination of such matters by the Personal Injury Commission would involve an exercise of federal jurisdiction as defined in section 25 of the Personal Injury Commission Act, being jurisdiction under section 75(iv) of the Commonwealth Constitution. The Personal Injury Commission would therefore have no jurisdiction to hear those matters.
In the recent decision in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202 (Kanajenahalli), the Court of Appeal considered such a scenario.
Briefly, the injured worker resided in Queensland and commenced proceedings in the Personal Injury Commission claiming payments of weekly compensation, medical treatment expenses and lump sum compensation for permanent impairment in respect of a psychological injury. The only issue for determination appeared to be whether the employer’s conduct was reasonable pursuant to section 11A(1) of the Workers Compensation Act 1987 (1987 Act).
No federal jurisdiction question was raised at first instance before Member Cameron Burge and the matter proceeded to determination. The worker was unsuccessful and appealed to the President of the Personal Injury Commission.
Deputy President Wood ultimately determined that the Member had exercised judicial power and therefore did not have jurisdiction to hear the matter and/or issue a Certificate of Determination. Both parties had submitted to the Deputy President that the Member had exercised administrative power.
The worker appealed the decision and leave was granted with the appeal set down for hearing on 23 August 2023. Both parties again submitted that the Member and the Deputy President had not exercised judicial power. The Attorney General of New South Wales intervened and essentially agreed with the parties on this point.
Leeming JA, Adamson JA and Basten AJA confirmed the submissions by all those involved, that the Personal Injury Commission, in this particular case, had exercised administrative power. This is on the basis that “injury” was not in dispute and consideration was only in respect of the reasonableness of the employer’s actions. Therefore, the only issue was whether a statutory prohibition prevented the worker from being entitled to compensation and it was held that this was ‘considerably removed from traditional aspects of judicial power.’
While the conclusion reached by their Honours is suggestive of circumstances in which the Personal Injury Commission might exercise administrative power when hearing a matter involving a resident of another state, we would caution that the circumstances in Kanajenahalli were unique given the issues in dispute were narrow.
Different considerations might also arise in similar matters leading the Courts to determine that the consideration of a defence under section 11A(1) of the 1987 Act, whether in part or in whole, is an exercise of judicial power. We observe that if the consideration of a dispute as to injury under section 4 of the 1987 Act, an entitlement to medical treatment under section 60 of the 1987 Act or the recovery of damages under section 151A of the 1987 Act is considered an exercise of judicial power, then arguments might be raised that a complete defence to a claim for a psychological injury is also an exercise of judicial power.
Accordingly, we do not consider the federal jurisdiction question to have been resolved, however, it would be prudent to look at the particular circumstances of the case to ascertain whether the Personal Injury Commission is exercising judicial or administrative powers. As it presently stands, we can assume that the consideration as to the reasonableness of an employer’s actions as assessed under section 11A(1) of the 1987 Act, is an exercise of administrative power and that such a conclusion is likely to be followed until a superior court makes a contrary determination.
Members of the Personal Injury Commission are otherwise looking closely at the circumstances of such matters. In a recent decision by Principal Member John Harris in Chetty v Queanbeyan-Palerang Regional Council [2023] NSWPIC 528 (6 October 2023) relating to an injury under section 4(b) of the 1987 Act, the Member concluded the determination of that issue to arguably be an exercise of judicial power. The proceedings were therefore dismissed.
This article was written by Mersina Kikinis, Partner and Ron Galea, Special Counsel.
