The decision of Burns v Corbett [2018] HCA 15 found that a State Tribunal cannot exercise judicial power in regard to matters between residents of different states.

The Chief Commissioner of the Tasmanian Workers Rehabilitation and Compensation Tribunal has handed down a decision in regard to that Tribunal’s jurisdiction in The State of Tasmania (Department of Health & Human Services) v M.; M. v The State of Tasmania (Department of Health & Human Services) (Ref Nos 920/2017 & 1045/2017) [2018] TASWRCT 24 (The State of Tasmania v M.).

The matter involved an injury to an employee of the Tasmanian Department of Health & Human Services who subsequently moved interstate. The employee was granted weekly workers’ compensation payments which eventually led to the employer seeking a review and reduction on the payments.

In Issue

Is the Tasmanian Workers Rehabilitation and Compensation Tribunal a Court for the purposes of Chapter III of the Constitution?

Determination

Last year in our article ‘A jurisdictional storm for Tribunals or just a storm in a tea cup?’ we anticipated that the Tribunal, when assessing the relevant indicia, would conclude that it is a ‘Court’ for the purposes of the Constitution.

However in The State of Tasmania v M., the Chief Commissioner has concluded that the Tribunal is not a Court.

He followed, amongst other authorities, Zistis v Zistis [2018] NSWSC 722 and Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146 (Orellana-Fuentes). In doing so the Chief Commissioner rejected the reasoning in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 on the basis that although decision making bodies exercise judicial power, that does not mean that they should be classified as a Court. The Chief Commissioner considered multiple indicia and concluded that on balance they point to the Tribunal not being a Court, and added that in his view the Tribunal’s members are not judges.

We are not aware if an appeal against the decision has been lodged, but assume not.

Implications for you

The basic difficulty created by the decision is that when an individual resident on the big island is the employer or worker, ordinarily the Tribunal would consider that the Tribunal no longer has jurisdiction to determine a dispute.

So what should you do when you want orders made in relation to a claim involving an interstate resident worker or employer?

It is important to distinguish between the administrative role of the Tribunal and the judicial role. The administrative role continues. So, for example, filing an 81A application with the Tribunal should still occur even if the Tribunal in its judicial capacity has no power to make a determination in the application. For each different application you should ensure that the procedural aspects required by the Act are completed, even if the matter to be determined has to be brought to the Supreme Court. We suggest that you also consider filing the application under cover of an originating motion in the Supreme Court at the same time.

Section 58 of the Workers Rehabilitation and Compensation Act 1988 (Tas) gives the Tribunal power to refer a stated case to the Supreme Court. This section involves an assessment of the facts of the matter and relevant issues, and as a result the Tribunal may not be capable of being utilised to refer matters to the Supreme Court. We note the Chief Commissioner in The State of Tasmania v M. did not make a referral under section 58.

However, in our view the Supreme Court has a supervisory role and may be able to consider and decide upon matters that ordinarily would be considered by the Tribunal. It will be necessary to file an originating motion in the Supreme Court if the Tribunal is unable to refer a case stated to the Supreme Court itself.

These procedural issues are complex and we are continuing to investigate the appropriate processes to use to minimise delay, which is particularly important in relation to 81A applications. We will comment further in a future bulletin.

Each matter will need to be looked at carefully as it arises. We suggest that if you anticipate needing orders in a matter that involves an individual resident interstate that you involve your legal advisors early in the process so that they can ensure that the necessary processes are followed.

We expect that the Tasmanian Government and the DOJ are looking at how to manage the implications of the Chief Commissioner’s decision.

We suggest that Insurers consider working together to ensure that action is taken without delay by the Government to either do what is necessary to have the Tribunal regarded as a Court, or amendments to the Act are made to create an appropriate process for such matters.