Appeal Case Summaries

COURT OF APPEAL DECISIONS

Holcim (Australia) Pty Ltd v Thomas [2022] NSWCA 183

WORKERS COMPENSATION – Boilermaker’s deafness – 1987 Act, ss 60 and 17 – claim for provision of new hearing aids – where notice of injury of loss of hearing given to worker’s then employer in 1999 – where worker changed employment in 2009 – where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer – where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999 – held worker not obliged to give notice of further injury to second employer – first employer liable for consequences of 1999 injury – no question of law

Ward P, Macfarlan and White JJA

20 September 2022

Facts

The appellant employer sought leave to appeal against the decision of a Presidential Member, which confirmed a Certificate of Determination ordering the appellant to pay the respondent worker’s costs of new hearing aids. The respondent, after ceasing work with the appellant, subsequently commenced work with ACI Operations as a factory worker and was working with ACI Operations at the time of the hearing before the Commission.

On 28 June 1999, the respondent lodged a claim against the appellant for lump sum compensation in respect of 16.8% binaural hearing loss pursuant to ss 66 and the since repealed s 67 of the 1987 Act. Following negotiations between the appellant and the respondent, the claim was resolved for $9,665.50 on the basis of 14.87% binaural hearing loss. The agreement was registered in a document lodged with the WorkCover Authority of NSW dated 12 November 1999. The date of injury, which was deemed in accordance with s 17 of the 1987 Act, was recorded as 28 June 1999.

In 2010, the respondent made a claim against the appellant for bilateral hearing aids, which the appellant agreed to pay. The respondent made a further claim for hearing aids against the appellant in 2016, which the appellant again accepted. On 23 October 2020, the respondent made another claim on the appellant for hearing aids. The letter of claim referred to the previously accepted claim for lump sum compensation in 1999.

The appellant disputed the claim made on 23 October 2020 in a notice issued in accordance with s 78 of the 1998 Act, asserting:

(a) the respondent had not suffered further injury in the form of industrial deafness in accordance with s 17 of the 1987 Act as a result of his employment with the appellant;

(b) the appellant was not the respondent’s “last noisy employer”, and

(c) the claim for hearing aids was not reasonably necessary because the need for hearing aids did not result from the respondent’s injury in 1999.

The appellant asserted that the respondent’s employment with ACI Operations was sufficiently noisy to constitute employment to the nature of which the respondent’s further hearing loss was due and ACI Operations was thus the respondent’s “last noisy employer”.

The Senior Member determined that the appellant was liable to pay for the hearing aids. The employer appealed to a Presidential Member of the Commission. Deputy President Wood confirmed the Senior Member’s Certificate of Determination. The appellant then sought leave to appeal the Deputy President’s decision in the NSW Court of Appeal.

The issues on appeal were whether upon:

(a) the true construction of the legislation, a limited injury deemed to occur in 1999 can operate to enable recovery of medical expenses in 2020 in the presence of significant increase in the hearing loss and subsequent work in employment to the nature of which industrial deafness is due, and;

(b) its true construction, s 17(3) of the 1987 Act applies when the factual elements of a further and more substantial injury have supervened after the giving of notice of injury completing the existence of a deemed injury.

Held: Summons filed 11 March 2022 seeking leave to appeal was dismissed with no order as to costs.

White JA (Ward P and Macfarlan JA agreeing)

1. White JA held that there was no point of law arising from the Deputy President’s decision identified by the parties. White JA refused leave to appeal. ([14])
2. His Honour referred to s 17, noting that special provision is made for injuries consisting for loss of, or further loss of, hearing. White JA said:

“The effect of s 17(1)(a) and (c) is that the injury of loss of hearing (or further loss of hearing) is deemed to have happened at the time notice of the injury is given by the worker to his employer (or his last ‘noisy’ employer if not employed at the time the worker gives notice of the injury). Provided the worker had been employed in an employment ‘to the nature of which the injury was due’ at the time of the giving of notice (or was his last ‘noisy’ employer), that employer will be liable notwithstanding that the worker’s loss of hearing may have been attributable to multiple noisy employments. The injury, being the loss of hearing, or further loss of hearing, as the case might be, is taken to have happened ‘as it were, at one blow’ … without the need to prove that it was the employment with the employer to whom notice of injury was given (or the last ‘noisy’ employer) that caused the loss of hearing, provided the worker was or had been employed in an employment to the nature of which the loss of hearing (or further loss of hearing) was due. The time at which injury actually occurred is irrelevant. The section deems the injury to have occurred at the date notice of the injury is given.” ([17])

(Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 applied)

3. The appellant contended that if the respondent had given notice of injury to ACI Operations, ACI Operations would have been liable for the costs of the hearing aids. The appellant submitted that “s 17 should not be construed in such a way as would mean that the decision of the worker whether or not to give notice of injury should determine which employer was liable to pay for the cost of further hearing aids.” ([21]–[22])
4. The appellant submitted the respondent had suffered a significant increase in hearing loss after a period of noisy employment with another employer, and that its “responsibility should be regarded as spent”. It asserted that ACI Operations would then be liable. White JA held there was nothing in s 17 that supported the appellant’s construction of s 17. His Honour said:

“It could only be supported if there is implied in the legislation an obligation by the worker to give notice of injury to the subsequent employer. (Even then, as explained below, it would not follow that the subsequent employer would necessarily be liable for the whole cost of medical treatment, whether by way of new hearing aids or otherwise.)” ([23]–[24])

5. White JA held that the Deputy President was correct in saying that there is no requirement in the legislation that compels the worker to give a notice of injury to a later employer. ([25])
6. The loss of hearing which the respondent suffered that was the subject of his notice of injury of June 1999 was an injury. The injury was agreed to have resulted in a hearing loss of 14.8%. Section 17 provides that further hearing loss is a further and separate injury. ([28])
7. White JA held that if notice of injury was given to ACI Operations and if the respondent’s employment with ACI Operations was to the nature of which his disease of boilermaker’s deafness was attributable, then ACI Operations would be liable for the consequences of the respondent’s further hearing loss, not his total hearing loss. His Honour held that in the same way, the appellant was liable for the consequences of the respondent’s hearing loss as at 1999. ([29]–[30])
8. It was observed by White JA that the question before the Commission was whether or not the particular hearing aids whose cost was sought to be recovered from the appellant were reasonably necessary, as a result of that injury. It was noted that the Senior Member made findings of fact on that question. White JA said that the appeal papers “did not include any evidence relevant to this question, presumably because, at least prima facie, the question is one of fact rather than law.” ([31]–[35])
9. His Honour found that there was no challenge to the Senior Member’s finding of fact that the hearing aids the subject of his determination were reasonably necessary as a result of the respondent’s 14.8% hearing loss the subject of his 1999 notice of injury. An erroneous finding of fact can give rise to a question of law if the finding is made on the basis of a wrong principle, but that was not established in this case. ([38])
10. White JA observed that the Deputy President recognised that the appellant remained liable for compensation in respect of the injury notified on 28 June 1999. His Honour held there was no error in that conclusion. The Deputy President was correct to say that the appellant was liable for the treatment expenses if the respondent “could establish that ‘the’ hearing aids, that is, the particular hearing aids the subject of the application before [the] Senior Member … were reasonably necessary as a result of the 1999 injury which resulted in a 14.8% binaural hearing loss.” ([44]–[47])
11. White JA concluded there was no evidence that the particular hearing aids, the subject of the Senior Member’s determination were “not prescribed by reference to a hearing loss of 14.8%.” His Honour found there was no evidence that the same hearing aids that would be appropriate to address a hearing loss of that degree would not be used for a hearing loss of 21% subject to a different calibration. White JA held it was open to the respondent to contend to the Senior Member that it should only be liable for the cost of hearing aids appropriate to a 14.8% binaural hearing loss. His Honour said it appeared that such a contention was raised before the Senior Member, but he determined that the hearing aids in question were reasonably necessary for such a hearing loss. White JA held that that determination raised no point of law. ([49])

Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision

WORKERS COMPENSATION — Disease injury — Aggravation, acceleration, exacerbation, or deterioration in the course of employment — Where the deceased suffered an asthma attack causing cardiac arrest and anoxia, and ultimately resulting in her death, during the course of her employment — Where appellants initially pleaded the injury as an “asthma attack” — Where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia” — Whether Anshun estoppel precluded the appellants from bringing the second claim

STATUTORY INTERPRETATION — Applicability of Anshun estoppel to the 1987 Act and the 1998 Act

Ward P, Brereton and Mitchelmore JJA

23 September 2022

Facts

This matter had a lengthy history. The deceased worker, Ms Miller, was employed by the respondent who provided community transport for clients to attend medical appointments in north western NSW. Her duties were largely administrative, but she was also required to carry out driving duties when other drivers were not available.

On 14 April 2011, on the return drive from Brewarrina to Dubbo, Ms Miller experienced a severe asthma attack, and despite receiving CPR, passed away. The proceedings were brought by the deceased’s surviving husband and also nominated the deceased’s son as a dependant.

In Miller No. 1, Arbitrator Batchelor made an award for the respondent employer. The liability issue before him was whether the deceased’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of asthma from which the deceased suffered, in accordance with s 4(b)(ii) of the 1987 Act prior to its amendment by the 2012 Amendment Act.

Miller No. 1 was confirmed on appeal by Parker SC ADP (Miller No. 2), and also by the Court of Appeal (Miller No. 3).

Fresh proceedings in the then Workers Compensation Commission were commenced, in which injury was instead pleaded under s 4(a) of the 1987 Act. The pleaded injuries were anoxia and cardiac arrest (the direct causes of death) which were pleaded as injuries simpliciter. Both the deceased’s husband and her son were nominated as applicants in these proceedings. Arbitrator Wynyard (in Miller No. 4) rejected arguments that these proceedings were prevented by the doctrines of res judicata, issue estoppel and estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun estoppel). He made findings of injury in the dependents’ favour. That decision was overturned on appeal by the President of the Commission (in Miller No. 5), and the matter was remitted to Arbitrator Harris. In Miller No. 6, due to disagreement between the parties regarding the scope of the remitter, Arbitrator Harris directed the parties to lodge an application for reconsideration of the decision in Miller No. 5. The matter was subsequently reconsidered by the President (Miller No. 7). It was returned to Arbitrator Harris to deal with the issues of issue estoppel and Anshun estoppel, the other issues by that point having been resolved in the claimants’ favour. Arbitrator Harris dealt with those issues in Miller No. 8. The Arbitrator decided the issue of issue estoppel in the claimants’ favour. The employer’s argument based on Anshun estoppel succeeded. There was an award in favour of the employer.

The claimants appealed. In Miller No. 9, Deputy President Snell confirmed the Certificate of Determination dated 8 January 2021 by Arbitrator Harris.

The claimants appealed against Deputy President Snell’s determination in Miller No. 9 in this current appeal to the Court of Appeal.

The issue before the Court of Appeal was the following sole question of law:

“Is the application of the common law doctrine of estoppel associated with Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 as a defence to statutory entitlements consistent with the scheme of the 1987 Act and the 1998 Act?”

Held: Appeal dismissed with costs.

As to issue (1):

1. There is no reason in principle why Anshun estoppel ought not be applicable to the legislative schemes established by the 1987 and 1998 Acts: [127] (Ward P). One cannot expect there necessarily to be a perfect alignment between a statutory framework and common law principles, here the 1987 and 1998 Acts and the principle of Anshun estoppel. Mere difficulty in the application of such principles to the statutory framework should not preclude any attempts to reconcile the two in the absence of an express exclusion of common law principles by the legislature, or manifest inconsistency between the statute and those principles. No such exclusion or inconsistency exists here: [127] (Ward P). Moreover, the application of Anshun is consistent with statutory provision for dismissal of vexatious proceedings in the compensation jurisdiction: [134] (Brereton JA).

   (Lambidis v Commissioner of Police (1995) 37 NSWLR 320 applied)

2. The Anshun doctrine is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding. The rationale of the Anshun doctrine is to prevent a party being vexed by multiple proceedings when the issue raised in the later proceedings ought reasonably have been raised in the earlier proceedings. Proceedings which are caught by Anshun are ex hypothesi vexatious: [134] (Brereton JA).

   (Timbercorp Finance Pty Ltd (in liq) v Collins[2016] HCA 44; 259 CLR 212, and Tomlinson v Ramsey Food Processing [2015] HCA 28 ; 256 CLR 507 applied)

3. Courts have consistently applied Anshun estoppel in the context of the 1987 and 1998 Acts in situations where the dispute concerns the whole issue of liability to pay compensation as opposed to disputes where compensation was claimed for separate entitlements arising from the one incident: [120]–[121] (Ward P), [135] (Brereton JA).

   (Salmon Street Ltd (in liq) v Jorgensen (1991) 56 SASR 158 distinguished)

4. The application of Anshun in the compensation jurisdiction, albeit in a somewhat circumscribed way, is well-established by authority. The application of Anshun in this context must have regard to the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgment as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier. The authorities establish that a worker is not required to bring forward at once all claims for all types of compensation in respect of all injuries arising out of the one event, and may pursue different types of compensation and in respect of different injuries separately, but may not in a later application claim, on an alternative basis, the same relief as has earlier been denied: [135] (Brereton JA).
5. Insofar as the 1998 Act provides that disputes are to be determined according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”, this does not preclude the application of Anshun estoppel to the legislative scheme. Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice: [123] (Ward P).
6. The appeal failed on the merits. However, the error alleged in the sole ground of appeal was not made expressly, because at no earlier stage had the point been taken. Until the appeal to the Court, the case had been conducted on the basis that Anshun was available in law, but not engaged on the facts. If the point was to be taken, it should at least have been raised on the appeal to Phillips P in Miller No. 6. It was unreasonable to raise it before the Court now only after remitter, rehearing, and a further appeal to Snell DP. Had it been raised earlier, the respondent might have invoked s 354(7A) of the 1998 Act (see now s 54 of the 2020 Act), which authorised dismissal of proceedings on the ground that they are vexatious, as an alternative basis for substantially the same outcome. The loss of the ability to do so was prejudicial to the respondents: [136] (Brereton JA).

PRESIDENTIAL DECISIONS

Williams v Cubbyhouse Childcare NSW Pty Ltd [2022] NSWPICPD 36

WORKERS COMPENSATION – section 11A(1) of the 1987 Act – application of Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; Northern NSW Local Health Network v Heggie [2013] NSWCA 255, 12 DDCR 95; Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 – error in applying s 789FD of the Fair Work Act 2009 (Cth) in the application of s 11A(1) of the 1987 Act

Snell DP

7 September 2022

Facts

The appellant worker was employed by the respondent as a childcare worker from 2010, ultimately as an area manager responsible for a number of childcare centres. She sustained a psychological injury with a deemed date of 22 January 2021. The insurer disputed liability. It accepted the appellant had suffered a work-related psychiatric condition. It argued the condition was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline.

In proceedings in the Commission, the Member found she was satisfied the “injury was wholly or predominantly caused by the reasonable actions of her employer with respect to discipline within s 11A” of the 1987 Act. An award was made in favour of the respondent. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) fact and law in failing to find that the appellant’s injury was caused by the bullying and harassment occasioned to her by the general manager of the respondent, Ms Revill (Ground 1);

(b) fact and law in finding that the appellant’s injury was wholly or predominantly caused by reasonable actions of the respondent with respect to discipline within the meaning of s 11A of the 1987 Act (Ground 2), and

(c) fact in the acceptance of, and weight placed on, the statement of Ms Revill (Ground 3).

Held: The Certificate of Determination dated 11 November 2021 was revoked and the matter was remitted for re-determination by a different Member.

Consideration – Ground 1

‘Wholly or predominantly’

1. Section 11A(1) of the 1987 Act presupposes the existence of an ‘injury’. Although the issue of ‘injury’ was conceded by the respondent, it was necessary to identify the actions of the respondent that caused the psychological injury before the s 11A(1) defence could be considered. The appellant submitted the Member failed to consider the issue of whether the injury resulted wholly or predominantly from relevant action or proposed action by the respondent. ([73]–[75])

   (Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 applied)

2. The respondent stated that its dispute notice relied on the report of Dr Smith, which said that there was a work-related condition of adjustment disorder. Dr Hong, psychiatrist, was qualified in the appellant’s case. The Member relied on the evidence of Dr Hong and Dr Smith. The appellant submitted that the opinion of Dr Hong was not necessarily determinative. The Deputy President was of the view that the Member did not treat it as necessarily determinative, she simply agreed with and accepted Dr Hong’s opinion on this topic. This was open to her on the evidence. ([76]–[79])
3. Snell DP noted that there was no challenge in this matter to Neilson CCJ’s discussion of the meaning of ‘discipline’ in s 11A(1) of the 1987 Act in Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 339 . ([81]–[82])
4. The Deputy President accepted that the Member dealt with the issue of whether the psychological injury was caused wholly or predominantly from actions or proposed actions of the respondent with respect to discipline. It followed that Snell DP rejected the argument that the Member failed to deal with this issue. ([83])

Consideration – Ground 2

The objective nature of the test

5. The passage from Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, at [59] refers to the need for assessment of the reasonableness of the disciplinary action that caused the psychological injury. Dr Hong’s opinion did not suggest any relevant causal factors beyond those that were the subject of the appellant’s allegation of work-related psychological injury. ([85]–[87])

   ‘Reasonableness’

6. The remaining issue in determining the success of the respondent’s defence pursuant to s 11A(1) was whether its causative actions, on objective assessment, were ‘reasonable’. This determination is different to the test described in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [69], which applies to the proof of psychological injury by a worker. ([88])
7. In this matter, the issue of reasonableness was complicated by the references in the Member’s reasoning to ‘bullying and harassment’ and to what she described as the definition of that phrase in the Fair Work Act 2009 (Cth). The Member, in her reasons at [87], referred to the fact that the respondent had conceded the occurrence of “a psychological injury, identified as an adjustment disorder, arising out of and in the course of her employment with the respondent”. The Member, at [88], described the question before her as:

“The real issue is whether that injury was wholly or predominantly caused by the actions of the respondent with respect to performance appraisal and/or discipline within the meaning of s 11A or whether it was caused by the ‘bullying and harassment’ by Ms Revill as claimed by the [appellant]” (emphasis added). ([89])

8. The way in which the Member formulated this question would have been unobjectionable if the word ‘reasonable’ was inserted before the word “actions” and if the question had concluded after the words “within the meaning of s 11A”. The balance of the question formulated an additional inquiry that was not part of the causation test in s 11A(1). Additionally, the “real issue” formulated did not acknowledge that the respondent carried the onus on the issue and the appellant did not. ([90])
9. The Member described the definition of ‘bullying and harassment’ in the Fair Work Act as “a useful starting point” in answering the question posed. The respondent submitted that, given the way in which the appellant addressed on ‘bullying and harassment’, it was not inappropriate that the Member took this as a “starting point” in her consideration of the defence. ([91])
10. The Deputy President observed the term ‘bullying and harassment’ is not to be found in the New South Wales workers compensation legislation. The appellant’s pleading of ‘injury’ in the ARD did not rely on an allegation of ‘bullying and harassment’. The way in which the appellant’s case was opened before the Member did make positive allegations dealing with the respondent’s behaviour towards the appellant. ([93])
11. Deputy President Snell held that the Member’s reasons at [119] tended to invert the onus of proof. There was no onus on the appellant to establish that she was ‘bullied or harassed’, either within a definition in the Fair Work Act or within a “lay definition”. The reasons did not nominate any “lay” definition of ‘bullying and harassment’ or ‘bullying or harassment’ (both terms were used) that should be applied in the absence of that in the Fair Work Act being appropriate. The Member found that the appellant’s “conduct and behaviour” warranted ‘reasonable management action’. The phrase ‘reasonable management action’ was to be found in s 789FD of the Fair Work Act, in both the section as quoted in the reasons at [89] and in the definition as at the deemed date of injury. It was not part of the test in s 11A(1) of the 1987 Act, which referred to ‘reasonable action’ taken or proposed to be taken by the employer in respect of one of the categories set out in s 11A(1). Section 11A(1) did not deal with ‘reasonable management action’, in circumstances where a worker’s “conduct and behaviour” warranted it. The section provided a defence to the payment of compensation in certain specified circumstances (in which the employer carried the onus of proof). ([99])
12. Reading the reasons as a whole, the Deputy President noted that the “real issue” referred to in the reasons at [88] raised the issue of whether the injury was caused by ‘bullying and harassment’. The definition of that term was described at [89] of the reasons as a “useful starting point”. The question requiring answer was not whether the appellant had been bullied and/or harassed but rather whether the respondent had discharged its onus of establishing that the appellant’s conceded psychological injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline. The Member reasoned towards her ultimate factual conclusion in the context of whether the evidence established that the appellant was bullied and/or harassed. This consideration was raised in the reasons at [88], [90], [106], [110], [117] and [119]. Snell DP held this was not the statutory test. It was not a test that appeared in the New South Wales workers compensation legislation. The inappropriateness of the test was accentuated when one had regard to what the Member adopted as the definition of those words in her reasons at [89]. The reasoning at [119] considered whether the appellant was ‘bullied or harassed’, or rather whether her “conduct or behaviour warranted ‘reasonable management action’”. This suggested that in the absence of a finding of ‘bullying or harassment’ the available alternative finding was that the appellant’s “conduct or behaviour warranted reasonable management action”. This misstated the test in s 11A(1) and where the onus lay to satisfy that test. ([102])
13. Deputy President Snell concluded that the Member dealt with the application of s 11A(1) of the 1987 Act by reference to an incorrect test. This affected the result and constituted appealable error. It followed that Grounds 1 and 2 succeeded. It was unnecessary for the Deputy President to deal with Ground 3. Resolution of the broad evaluative test in s 11A(1) of the 1987 Act had miscarried. ([103]–[104])

Richards v Macarthur Electrical Connection Services Pty Ltd [2022] NSWPICPD 37

WORKERS COMPENSATION – Death of a worker – s 25(1)(b) of the 1987 Act – payment of weekly compensation to a student over the age of 16 years – whether dependants who were engaged in apprenticeships were students as defined by s 25(5) of the 1987 Act – alleged failure to refer to and deal with submissions made – Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7; Wang v State of New South Wales [2019] NSWCA 263 applied – alleged failure to provide reasons – whether a proper application of the principles of construction – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 applied

Wood DP

12 September 2022

Facts

These proceedings concerned a claim brought by two appellants for weekly compensation in respect of the death of their father, who died on 1 November 2018. The deceased was employed by the first respondent at the time of his death. Both appellants were under the age of 21 and undertaking apprenticeships in electrotechnology at the time of their father’s death.

The wife of the deceased brought proceedings in the Commission claiming lump sum death benefit provided for in s 25(1)(a) of the 1987 Act, together with interest on the lump sum. The appellants were joined as parties to the proceedings as they were also dependent on the deceased at the date of death and were entitled to a proportion of the lump sum benefit.

The appellants additionally asserted that they were entitled to weekly payments of compensation on the basis that they were students under the age of 21 for the purpose of s 25(1)(b)(ii) of the 1987 Act in accordance with the definition of “student” contained in s 25(5) of the 1987 Act, which defined “student” as “a person receiving full-time education at a school, college or university”.

Liability for the lump sum benefit and interest, as well as the claim brought by the appellants, was disputed. In the course of proceedings, the claim for the lump sum was resolved. The issues of interest and the appellants’ entitlements to weekly payments proceeded to arbitration before the Member.

The Member issued a Certificate of Determination, in which he determined the interest payable on the lump sum benefit and found that the appellants were not entitled to weekly payments because they were not “students” within the meaning of the legislation.

Each of the appellants lodged an appeal in respect of the weekly payments decision.

The second appellant indicated that he adopted and relied upon the submissions made by the first appellant.

The issues on appeal were raised in the following grounds of appeal:

(a) denial of procedural fairness by failing to deal with submissions and evidence relied upon by the first appellant (Ground A);

(b) denial of procedural fairness by failing to provide lawful reasons in reaching his conclusion (Ground B), and

(c) failure to apply proper principles of statutory construction in resolving the issues (Ground C).

Held: The Member’s Certificate of Determination dated 16 December 2021 was confirmed.

Ground A

1. The appellants asserted that they had been denied procedural fairness because the Member failed to give consideration to their submissions and failed to deal with the evidence relied upon by them. In respect of the assertion that the Member failed to refer to their submissions, the appellants contended that the Member “failed to produce the specific arguments raised”. ([70]–[71])
2. Wood DP noted that the Member was not required to separately address all the submissions made by a party when reaching his or her conclusion. ([72]–[73])

(Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7, and Wang v State of New South Wales [2019] NSWCA 263 applied)

3. The first submission identified by the appellants as one which they alleged the Member failed to consider was the submission that the “entire factual matrix” must be considered in order to determine whether they were “subjectively” pursuing full-time education. While the Member did not adopt the phrase expressed by the first appellant, he did in fact consider the particular facts and circumstances pertaining to the nature of the appellants’ engagements. ([74])
4. The appellants referred to the first appellant’s submission that there were three participants in the delivery of the education which meant that the education was delivered in the workplace and in the classroom. The appellants submitted that the Member did not make reference to that submission. ([76])
5. The Deputy President held that whilst the Member did not specifically mention the predicator that there were three participants in the apprenticeships, in the reasons at [22], the Member clearly appreciated the submission that an apprenticeship encompasses a combination of education in the classroom and the workplace. That was certainly the gravamen of the submission put to the Member. It was also clear that the Member referred to the appellants’ submissions in relation to the Apprenticeship and Traineeship Act 2001, and the material from Training Services NSW. ([78])
6. The appellants did not point to any other submission that they said the Member did not include in the matters recorded in his reasons. In any event, the matters identified by the appellants on appeal were acknowledged by the Member and his overview of the submissions, together with his subsequent evaluation of the issues, although succinct, disclosed that he was alive to the arguments put by the appellants. Wood DP rejected the appellants’ assertion that the Member’s summary of the submissions was inadequate. ([79])
7. The appellants’ submission was that the appellants fell within the definition of “students” receiving full-time education because of the combination of the fact that the three participants (TAFE, the employers and the appellants) were participating in the education, which was facilitated through an educational organisation, namely TAFE. The Member did not accept that the definition of “student” in s 25(5) could be interpreted in that way and concluded that what was required was that the student was “receiving full-time education at a school, college or university”. The Deputy President held it was apparent that the Member dealt with the appellants’ submissions. The appellants’ complaint that the Member failed to deal with their submissions was rejected. ([82]–[83])
8. The appellants contended that the Member’s treatment of the evidence and submissions constituted error. Wood DP did not accept that the Member erred in the manner alleged and this ground of appeal failed. ([87])

Ground B

9. The appellants contended that the Member failed to provide lawful reasons for his conclusions. ([88])
10. In Wood DP’s view, the Member’s reasoning provided an adequate basis upon which to conclude that the practical work on site could not be considered education at TAFE and that he was not satisfied that the appellants were receiving a full-time education at TAFE at the date of the deceased’s death. It followed that Ground B of the appeal failed. ([90]–[97])

Ground C

11. The appellants asserted that the Member failed to “apply proper principles of statutory construction in resolving the issues.” The appellants submitted that their submissions as to how the definition of “student” ought to be interpreted went further than simply that the section was beneficial in nature. The appellants asserted error on the part of the Member in that he focused on where the education was facilitated by a school, college or university. ([98])
12. The Member considered that each of the appellants could be described as a “student” as that word is defined in the Macquarie Compact Dictionary, 8th edition. He noted the submission made by the first respondent that if the legislature had intended an apprentice to fall within the definition of student contained in s 25(5) of the 1987 Act, it would have said so. He referred to the evidence of the Head Teacher as to the outline of the requirements of the course offered at TAFE. He concluded that, while there was a connection between the TAFE course and the apprenticeship, the education delivered through the apprenticeship could not be considered to fall within the phrase “education at a school, college or university.” He further concluded that:

“The [appellants’] education at a school could not in ordinary language be said to be ‘full-time’. Rather, they were receiving a part-time education at TAFE as part of a full-time apprenticeship.” ([104])

13. Wood DP found the Member rested his determination on the ordinary language of the provision. The Member’s treatment of the definition did not offend the requirement for the construction of the definition to be consistent with the language and purpose of the statute. ([105])
14. The construction put forward by the appellants, that is, that the appellants satisfied the definition of “students”, could not be accepted. The definition must be read as a whole. As observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 (Alcan), the starting point is the text itself. That is, the appellants must be “receiving full-time education at a school, college or university”. ([106])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 and Alcan applied)

15. The appellants submitted that the Member ought to have focused on the reception of the education and not where it took place. The Deputy President stated that there was no proper reason as to why there should be a greater focus on the receipt of the education or that the requirement for it to be at a school, college or university should be read down. The text was clear in its meaning. ([107])
16. The appellants contended that because the education was “facilitated” “by” or “through” TAFE, the definition was satisfied. Those words did not appear in the definition and were not synonymous with the word “at”. To interpret the definition in such a manner was inconsistent with the rules of statutory interpretation and required reading into the definition words that could have been used by the legislature but were not. In essence, the appellants asserted that the word “at” was either void or insignificant, which was again contrary to the principles of statutory construction. ([108])
17. The Deputy President concluded that the Member did not fail to apply proper rules of statutory construction and thus did not err in his interpretation of the definition of “student”. It followed that Ground C of the appeal failed. ([109])