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WIRO Wire | Worker Prosecutes Insurer

I would like to bring to your attention that on 29 November 2018, the Supreme Court of NSW (per McCallum J) declined to grant prohibition to Employers Mutual Limited (EML) in respect of a Court Attendance Notice (CAN) that was issued by the Local Court of NSW upon an application by an injured worker – Julie Ann Heise: Employers Mutual Limited v Julie Ann Heise and the Local Court of New South Wales – 2018/356687.

Her Honour’s judgment has not yet been published, but her decision provides authority for the proposition that SIRA does not hold a monopoly regarding the prosecution of offences under the WIMA.

Background

On 11 April 2017, the worker claimed compensation under s 66 WCA. This is the ‘claim’ for the purposes of s 283 WIMA. However, EML failed to determine the claim.

On 25 July 2018, the worker filed an ARD with the WCC and EML filed a Reply.

The worker then requested the Registrar of the Local Court of New South Wales to issue a CAN alleging that EML breached s 283 (1) WIMA. The Registrar issued the CAN (the date of issue is not clear) and it was served on EML on 30 October 2018.

Relevant Legislation

Section 283 WIMA provides:

(1) A person who fails to determine a claim as and when required by this Part is guilty of an offence unless the person has a reasonable excuse for the failure.

Maximum penalty: 50 penalty units.
(2) A person does not have a reasonable excuse for a failure for the purposes of this section unless the person has an excuse that the Workers Compensation Guidelines provide is a reasonable excuse.

(3) A person who has or anticipates having a reasonable excuse for the purpose of this section must notify the claimant in writing as soon as practicable.

Section 14 of the Criminal Procedure Act 1986 (CPA) provides:

Common Informer

A prosecution or proceeding in respect of any offence under an Act may be instituted by     any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons

Section 172 of the CPA provides:

(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.

(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence

(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

Section 174 CPA provides:

(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2) A registrar must not sign a court attendance notice if:

(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or

(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person.

Judicial Review

EML filed a Summons in the Supreme Court of NSW seeking judicial review of the Local Court Registrar’s decision to issue the CAN. In effect, it argued that the Local Court has no power to deal with a breach of s 283 WIMA laid at the request of a person other than SIRA.

In its written submissions, EML acknowledged that s 245 (5) WIMA expressly provides that proceedings for an offence against the WIMA can be instituted by a person other than SIRA. However, it argued that because s 283 WIMA is a “penalty notice offence” and ss 246 (1) and (6) WIMA together with cl 71 of the Workers Compensation Regulation 2016 (the Regulation) provide that only an “authorised officer” can issue a penalty notice, the worker is prohibited from instituting the Local Court proceedings.

The worker did not dispute that: s 283 WIMA is a “penalty notice offence”; only an “authorised officer” may issue a “penalty notice” and that she is not an “authorised officer”; s 246 WIMA provides the power to issue a penalty notice; and she has no capacity under the WIMA to issue a penalty notice.

However, she argued that a prosecution for an offence can be commenced by way of a CAN under s 172 CPA and s 174 CPA expressly provides for the commencement of private prosecutions. There is nothing in either the WIMA or the Regulation that expressly prohibits the issuing of a CAN and s 245 (1) WIMA expressly retains the power for the issuing of CANs and matters being dealt with by a Court. Read plainly, s 246 (5) WIMA provides that the penalty notice procedure may be employed, but that the provision of penalty notice offences does not prohibit the ability to proceed by way of a charge in the Local Court or the District Court as provided by the “other provision[s]” contained at ss 283 and 245 WIMA

The worker submitted that the use of the word “may” in s 246 (1) WIMA confers a discretion to an authorised officer to issue a penalty notice, but it does not impose a statutory obligation on that officer to issue a penalty notice for an alleged contravention of s 283 WIMA. It would require express words to oust the entitlement of a private citizen to bring a prosecution and there is no such prohibition.

In refusing to make an order for prohibition in respect of the CAN, her Honour referred to s14 CPA and determined that the worker is authorised as a common informer to commence her private prosecution in the Local Court of NSW by way of the issue of a CAN.

This decision has significant implications, as it is authority for the proposition that SIRA does not have a monopoly in relation to the prosecution of offences under the WIMA.​

WIRO will further report on the matter when her Honour’s judgment has been settled and published.

For more information

Please contact Kim Garling, Workers Compensation Independent Review Officer on 13 9476 or by email at editor@wiro.nsw.gov.au