Appeal Case Summaries

J & MA Costa Pty Ltd v Makouk [2021] NSWPICPD 11

WORKERS COMPENSATION – whether a “dispute” existed within the meaning of ss 289 and 289A of the 1998 Act; procedural fairness; Chanaa v Zarour [2011] NSWCA 199, Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; 204 CLR 82 considered and applied

Wood DP

6 May 2021

Facts

The respondent worker was a cleaner employed by the appellant. On 27 February 2017, she was required to clean toilets and bathrooms that were in a very unclean state. After finishing work that day, the respondent began to feel unwell. She was ultimately admitted to hospital where she was diagnosed with pseudomembranous colitis after testing positive to clostridium difficile. The respondent spent some weeks in hospital, including a week in the intensive care unit.

The respondent had a long prior history of anxiety and depression on the background of a number of significant personal traumas, as well as a work related back injury some years earlier. After the respondent contracted pseudomembranous colitis, she began to excessively clean her hands and her home and developed a fear of a recurrence of the condition. She lodged a claim for compensation, alleging that the contraction of pseudomembranous colitis was work related and a further claim alleging that the incident caused an aggravation of her pre-existing psychological condition. The claims were denied.

The Arbitrator determined that the respondent’s physical injury occurred in the course of her employment and that the respondent also sustained a primary psychological injury, namely an obsessive/compulsive disorder, in the course of her employment. The appellant appealed the Arbitrator’s decision, but only in respect of the findings in relation to the psychological injury.

The issues on appeal were whether the Arbitrator erred in law by:

1. finding that the respondent sustained an obsessive/compulsive disorder as a result of the work injury in circumstances where the respondent had never made a claim for obsessive compulsive disorder as a result of the work injury, and
2. not considering whether the respondent’s employment was the main contributing factor to the injury of obsessive/compulsive disorder.

Held: The Certificate of Determination was revoked in part. The matter was remitted to another Member for re-determination of whether the respondent suffered an injury in the form of an obsessive/compulsive disorder as a result of her employment.

Consideration

1. The Application to Resolve a Dispute (ARD) pleaded the respondent’s psychological injury occurred as a result of the shock and traumatic nature of being diagnosed with the physical conditions and her difficulty processing the fact that she nearly died due to the unclean conditions she worked in. An examination of the transcript revealed that the respondent’s case that was put to the Arbitrator was that she suffered an aggravation of her pre-existing anxiety and depression, which was a primary psychological injury within the meaning of s 65A of the 1987 Act. ([118]–[119])
2. This appeal concerned a challenge to the Arbitrator’s finding that the respondent suffered a primary injury in the form of an obsessive/compulsive disorder. The Arbitrator also made a finding that he was not satisfied that the respondent suffered an aggravation of her pre-existing anxiety and depression. The respondent had not challenged that finding either by lodging an appeal from that finding or by way of a notice of contention. ([121])
3. In respect of Ground 1, the appellant submitted:

a. the respondent’s case was that she suffered a work related aggravation of her pre-existing anxiety and depression in accordance with s 4(b)(ii) of the 1987 Act;

b. the respondent had never made a claim for injury in the form of an obsessive/compulsive disorder, so that the appellant had never considered or disputed the claim. The Arbitrator did not, therefore, have jurisdiction to make a determination that the respondent suffered from an obsessive/compulsive disorder;

c. the finding that the respondent suffered from an obsessive/compulsive disorder was against the evidence, and

d. the evidence was that any such disorder did not result from the respondent’s employment. ([124])

4. The case as pleaded in the ARD was non-specific as to what constituted the respondent’s claimed psychological injury. Prior to making submissions, the respondent sought to amend the pleadings to allege that the injury was a primary psychological injury, which was not opposed by the appellant. The transcript disclosed that prior to the submissions being made, there was no discussion about what diagnosis should be attributed to the respondent’s alleged psychological injury. ([125])
5. It was apparent that the parties proceeded on the basis that the Arbitrator was required to consider the evidence of Dr Vickery, which included Dr Vickery’s opinion that the respondent suffered from an obsessive/compulsive disorder. The appellant had squarely raised the issue as to the diagnosis of the respondent’s psychological condition and its aetiology. In the context of this issue being raised in response to the respondent’s allegation of injury, it followed that there was, therefore, a dispute within the meaning of ss 289 and 289A of the 1998 Act. ([132])
6. The appellant maintained that the Arbitrator erred because neither party submitted that the respondent suffered an obsessive/compulsive disorder which was caused by the respondent’s employment. This allegation was correct. The appellant submitted to the Arbitrator that the respondent’s obsessive/compulsive disorder was constitutional. The respondent pointed to the evidence of Dr Anderson that her obsessive/compulsive traits were aggravated by the work related injury, but did not submit that the injury was an injury simpliciter within the meaning of s 4(a) of the 1987 Act or whether it constituted a disease within the meaning of s 4(b)(i) of that Act. ([133])
7. The proceedings are required to be conducted in accordance with the principles of procedural fairness, that is, the Arbitrator’s decision must be based upon the issues that were litigated in the course of the trial. ([134]–[137])

8. In this case, the Arbitrator went beyond the submissions put to him by the respondent that she suffered from an aggravation injury and determined that the respondent sustained a psychological injury within the meaning of s 11A(3) of the 1987 Act in the form of an obsessive/compulsive disorder. The Arbitrator expressly rejected the submission that the injury was an aggravation of a disease within the meaning of s 4(b)(ii) of the 1987 Act. ([138])
9. It was not apparent from the transcript or the Arbitrator’s reasons that the Arbitrator drew to the parties’ attention his intention to consider a matter that was not put to him by either party. The appellant, having not been warned of the risk of the adverse finding, ought to have been given the opportunity to make submissions on point and was not surprisingly aggrieved by the Arbitrator’s decision. It followed that the Arbitrator erred in reaching his conclusion and this was sufficient to set aside his determination. Ground 1 of the appeal succeeded. ([139]–[140])
10. In Ground 2, the appellant also alleged error on the part of the Arbitrator in failing to consider whether the respondent’s employment was the main contributing factor to the injury. The test of “main contributing factor” only applies if the injury constitutes either a disease or an aggravation of a disease within the meaning of ss 4(b)(i) or 4(b)(ii) of the 1987 Act. If the injury is an injury within the meaning of s 4(a) of the 1987 Act, the test of “main contributing factor” does not apply, but there is a requirement to determine whether the respondent’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. ([142])
11. The Arbitrator did not make a determination as to whether the injury was an injury simpliciter in accordance with s 4(a) or a disease injury within the provision of s 4(b)(i) of the 1987 Act. His consideration of the relevant sections was limited to him specifically rejecting the respondent’s case that there had been an aggravation of the respondent’s prior psychological condition of anxiety and depression (s 4(b)(ii) of the 1987 Act). Having failed to address the factors required by either or both s 9A and s 4(b) of the 1987 Act, the Arbitrator had erred and Ground 2 of the appeal also succeeded. ([143]–[144])

Trustees of the Roman Catholic Church for the Diocese of Lismore v Duncan [2021] NSWPICPD 12

WORKERS COMPENSATION – Section 11A(1) of the 1987 Act: defence based on allegedly reasonable action of the employer in respect of discipline; section 4(b) of the 1987 Act; application of the ‘disease’ provisions

Snell DP

7 May 2021

Facts

The respondent was a teacher at a high school operated by the appellant. The subjects he taught included year 12 legal studies. There were various incidents from 2015 to 2017 which the respondent found upsetting. He felt intimidated by an interview and surrounding events involving parents who complained about his showing a video to a legal studies class that depicted a person who died after being tasered by police. A group of students posted defamatory images on Snapchat of a number of teachers, including the respondent. A student accused the respondent of making an inappropriate comment during an excursion, a complaint that was dismissed. The respondent was off work for the “majority of Term 4” in 2015 due to “stress and anxiety”. The respondent said a student struck him on the school oval, on 8 March 2017. He said he reported the matter to the Deputy Principal who took no action. The respondent said he felt unsupported by management with respect to consistent issues with misbehaving students. He said the allegations and complaints affected his mental health. He said the school took no action to support him and had “no policy for dealing with bad behaving students”.

On 7 March 2018 the respondent’s daughter, who was a lawyer with expertise in international law, assisted (not for the first time) in a Year 12 Legal Studies lesson. Students were disruptive and were rude to the respondent’s daughter. On the Friday, two days later, the respondent told his class he was disgusted by their behaviour and referred to the behaviour of a number of students. He said he told the two most disruptive girls that their behaviour in particular was unacceptable.

On the following Monday, a series of serious allegations were made against the respondent by girls in the Legal Studies class, including particularly the two main girls he had admonished. The allegations included physical assaults, belittling students, holding a pen against a student’s throat and wrapping a computer cord around her neck. The respondent said that he felt “distressed and anxious”. He was stood down on special leave while an investigation into four allegations was undertaken. The person initially appointed to undertake the investigation withdrew after the respondent accused him of bias.

The Principal wrote to the respondent on 23 November 2018, advising that all of the allegations were sustained. The respondent was required to show cause why his employment should not be terminated. Notwithstanding his submission to the contrary, the respondent’s employment was terminated on 10 December 2018.

The respondent’s union wrote to the head of human services challenging the allegations. There was further correspondence involving the Office of the Children’s Guardian (OCG), who recommended two of the allegations be overturned. The other two allegations were overturned by the appellant.

It was accepted that the respondent suffered a psychological injury. The appellant relied on a defence pursuant to s 11A(1) of the 1987 Act. The Member found that the “psychological injury was predominantly caused by the [appellant’s] actions with respect to discipline, but the [appellant] has not proven that its actions were reasonable in accordance with section 11A(1)”. The s 11A(1) defence accordingly failed. There was an award for weekly payments together with s 60 expenses. The appellant appealed against that decision.

The issues on appeal were whether the Member erred in:

a.fact and law, in considering events and actions beyond 13 March 2018 for the purpose of assessing reasonableness under s 11A of the 1987 Act (Ground 1);

b.law in determining an injury other than that claimed and pleaded in the proceedings (Ground 2);

c.fact and law in finding injury that was not supported by medical evidence (Ground 3), and

d.law in finding that the perpetuation of the found injury of 13 March 2018 constituted an injury within the meaning of the Workers Compensation legislation (Ground 4).

Held: The Certificate of Determination dated 27 October 2020 was confirmed.

Grounds 1 and 2

1. Ground 1 dealt with the Member’s finding of ‘injury’ on the basis of the ‘disease’ provisions, and with the extent (if at all) to which it was appropriate to have regard to events after 13 March 2018 (the deemed date of injury) in considering the issue of reasonableness. Ground 2 dealt with whether the finding of ‘injury’ was outside the pleadings. ([47])
2. The appellant’s submissions placed emphasis on the fact that the pleaded ‘injury’ nominated 13 March 2018 as the deemed date. Whilst this was true, the pleading did not, on a fair reading, restrict the period of exposure to allegedly injurious workplace events on and prior to 13 March 2018. The pleading appeared to be intentionally general regarding the period relied on. The date was referred to only in the context of a deemed date (consistent with the claim being brought on the basis of the ‘disease’ provisions). ([48])
3. The deeming provisions may result in different dates of injury, in respect of the same injurious events, depending on the circumstances and the nature of the compensation which is claimed. It would be nonsensical if the matters to be considered, in determining whether an employer’s actions were ‘reasonable’ for the purposes of a defence pursuant to s 11A(1) of the 1987 Act, depended on the nature of the compensation at issue. ([52])

_{(Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701, and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie) discussed)}

4. Snell DP observed the approach for which the appellant argued had the effect of isolating the events on 13 March 2018 from the balance of the investigation. The appellant argued this removed the balance of the appellant’s (subsequent) actions from consideration, in assessing the ‘reasonableness’ of the appellant’s actions with respect to discipline. The approach taken by the Member, in considering the ‘reasonableness’ issue, was more consistent with Spigelman CJ’s comments in Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair), at [96]. ([56])
5. It is necessary that the Member’s reasons be read as a whole. The Member’s reasons were consistent with a factual finding that the psychological injury resulted from the events as a whole, including the investigation and surrounding events. The finding on ‘injury’ was not restricted to events on and before 13 March 2018. The consideration of ‘reasonableness’ was not restricted to the appellant’s actions on and before 13 March 2018. In this regard, the matter could be distinguished from Heggie. Heggie involved injury resulting from a worker being stood down on a specific date, with an issue regarding whether that action was reasonable. The reasonableness of the employer’s action was to be determined by reference to the circumstances known at the time, including relevant information that could have been obtained with reasonable inquiries or the exercise of reasonable care. At issue in the current matter was the reasonableness of a course of conduct over a period of time. ([52], [57]–[58])

_{(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)}

_{(Heggie distinguished)}

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6. Snell DP concluded that the way in which the injury allegation was pleaded in the ARD did not restrict itself to allegations of injury based only on events on and prior to 13 March 2018. The way in which the exchange of information between the parties, and the s 78 notice, were framed also was not restricted in such a way. Grounds 1 and 2 failed. ([63]–[64])

   Ground 3

7. The submissions on this ground substantially recapitulated issues raised in Grounds 1 and 2. In the Deputy President’s view, it was apparent that the Member did not find that there was a second injury. Whether injury resulting from events after 13 March 2018 was sufficiently raised was dealt with in Ground 2, in a fashion contrary to the appellant’s arguments. The Member did not rely on Dr Roberts in forming his views on ‘injury’. The highest it was put by the Member was to say that Dr Roberts may not be “entirely consonant” with the Member’s views but was “not diametrically opposed”. This was consistent with the general lack of opinion expressed by Dr Roberts on that topic. Snell DP could not see that it involved error on the Member’s part, much less error that could affect the outcome. Ground 3 failed. ([69]–[75])

   Ground 4

8. The Deputy President had accepted, dealing with Ground 1, that the Member’s ‘injury’ finding was of a single injury over a period of time, pursuant to the ‘disease’ provisions, based on not only the events on and around 13 March 2018, but also the ensuing investigation. This was consistent with the case run by the respondent, both before the Member and on the appeal. The appellant’s arguments dealing with Ground 4 proceeded on a basis that was inherently inconsistent with this scenario. ([80])
9. The way in which the respondent’s case was run was not restricted to matters on and about 13 March 2018. His case on ‘reasonableness’ was clearly based on the whole sequence of events in the process, it was not restricted to events up to the deemed date of injury. The case presented to the Member involved allegations of defects in the whole course of the investigation process on multiple issues. It involved an allegation of a single injury involving the ‘disease’ provisions, with a deemed date of injury of 13 March 2018, the first date of incapacity. The Member did not make an artificial, impermissible and unnecessary finding of an exacerbation injury. He was required to deal with the case that was run before him, which he essentially accepted. ([82]–[83])
10. Deputy President Snell concluded that the approach taken by the Member involved a consideration of the whole course of the appellant’s conduct in respect of discipline. This was consistent with the approach taken in Sinclair, and was appropriate where the Member had made a finding of injury (as is frequently the case) resulting from a whole course of conduct. The appellant had referred to no authority in support of its criticism of this approach. Ground 4 failed. ([85]–[86])

Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13

WORKERS COMPENSATION – Section 9AA of the 1987 Act – connection with State of New South Wales – procedural fairness – credibility of witness – findings of dishonesty, creating false and misleading evidence made without Arbitrator raising preliminary view with the parties – State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226 applied – weekly compensation – whether weekly payments made under Queensland workers compensation scheme should be taken into account for entitlement to weekly compensation under the 1987 Act

Parker SC ADP

11 May 2021

Facts

The first respondent, a motor mechanic, was employed by the appellant during two periods, namely, December 2016 to mid-January 2017, and from August 2017. On 13 December 2017, at the appellant’s workshop at Tweed Heads, the first respondent was dragging a Toyota Tarago motor across the floor of the workshop to make it available for scrap metal, when he sustained injury to his right knee. He reported his injury to Mr King.

The appellant had business premises at Brisbane Airport, at the location in Tweed Heads, New South Wales (NSW), and at Bilinga, a location in Queensland. It was insured for its workers compensation liability under the relevant Queensland legislation. Although it had employees working in Tweed Heads, NSW, it did not have insurance under the NSW workers compensation legislation for those employees.

The first respondent’s claim was initially paid under the Queensland legislation, but the Queensland WorkCover Authority subsequently ceased making payments and denied liability on the basis that pursuant to s 9AA of the 1987 Act, the injury was connected to NSW.

At issue before the Arbitrator was whether the first respondent should be compensated under NSW or Queensland legislation. As the appellant was uninsured, the Nominal Insurer was joined as the second respondent.

The Arbitrator determined that the first respondent had suffered injury to the right knee in the course of his employment with the appellant in the form of the aggravation, acceleration, exacerbation or deterioration of previously asymptomatic osteoarthritis disease including tear of the meniscus for the purposes of s 4(b)(ii) of the 1987 Act.

The Arbitrator determined further that the medical evidence supported the conclusion that the employment of the first respondent by the appellant was the main contributing factor. He held the first respondent was totally incapacitated and made an award in the first respondent’s favour from 18 November 2019 pursuant to ss 36 and 37 of the 1987 Act.

The uninsured employer appealed.

The issues on appeal were whether the Arbitrator erred in:

1. failing to make a finding in respect of credit issues raised in the evidence of the worker;
2. failing to engage with the appellant’s contentions and/or provide proper reasons when he did;
3. fact and law by disregarding the evidence of the first respondent’s witnesses in so far as that evidence relates to where the applicant usually worked and for the purposes of his determination pursuant to s 9AA(3)(a) of the 1987 Act;
4. fact and law by disregarding the evidence of the first respondent’s witnesses in so far as that evidence relates to where the worker was usually based and for the purposes of his determination pursuant to s 9AA(3)(b) of the 1987 Act, and
5. law by finding that the worker was entitled to weekly compensation benefits after 13 June 2020.

Held: The Certificate of Determination was revoked and the matter was remitted for re-determination.

Ground 1 – credit of the applicant worker

1. The Arbitrator preferred the evidence of the first respondent. The difficulty with the decision was not the preference for the first respondent’s evidence, but the reasons expressed for rejecting Mr King’s evidence. Ground 1 of the appeal was allowed because in making the credit based finding in favour of the first respondent, the Arbitrator failed to afford Mr King procedural fairness. The error was of such magnitude that the matter should be remitted for further hearing on the central issue by a different member. ([26])
2. The findings with respect to the evidence of Mr King were trenchantly made, grave and of a very serious nature. The Arbitrator found Mr King to have given exaggerated, unreliable evidence that was at least in part untrue, and that he had attempted to influence the evidence for the purpose of (“consistent with”) achieving “a false account to suit the insurance position of the” appellant. ([36])
3. The Acting Deputy President issued a Direction to the parties, directing them to make further submissions with respect to the evidence of Mr King. ([37])
4. The arbitration was conducted under s 354 of the 1998 Act. The transitional provisions to the 2020 Act provide that for the purpose of this appeal, s 354 continued to apply even though the 1998 Act has been repealed. This was critical to the Arbitrator’s determination, as it is to the Acting Deputy President’s determination of the appeal.  The Commission is obliged to afford the parties and witnesses procedural fairness. ([53]–[54])

_{(South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 applied)}

5. In this matter, the Acting Deputy President held that procedural fairness required:
   1. the findings of dishonesty, creating false and misleading evidence not be made until those allegations were put squarely to Mr King;
   2. the Arbitrator should have informed the parties that he had formed a preliminary view with respect to the evidence of Mr King;
   3. the Arbitrator should have re-convened the hearing;
   4. the parties should have been invited to make submissions as to what course the proceedings should then take in view of the articulated “preliminary view”, and
   5. the parties should have been permitted to make additional submissions addressing what findings should be made and as to the terms in which the findings should be made. ([59])
6. The Arbitrator made findings that Mr King’s evidence was dishonest; that he gave a false account to suit the insurance position of the appellant; that he gave false and misleading evidence; that his evidence had changed over time to suit the jurisdictional issues; that he was not a witness of truth, and that he had participated in the creation of statements from witnesses that were false and misleading. Mr King was not cross examined and necessarily he was not confronted with the proposed findings with respect to his evidence. He was not afforded an opportunity to provide an explanation or otherwise deal with the ultimate conclusions. ([63]–[64])
7. The appellant’s case relied heavily on Mr King’s evidence. The findings adverse to Mr King and the witnesses whose statements he witnessed were not raised with counsel for the parties. The appellant was thereby denied an opportunity of seeking to persuade the Arbitrator to another view with respect to the evidence of Mr King and those other witnesses. The first respondent was deprived of the opportunity of seeking to persuade the Arbitrator that he was entitled to succeed without such substantial findings affecting Mr King being made. ([65])
8. It was correct that the appellant did not in terms raise procedural fairness as a ground of the appeal. Furthermore, previously no complaint was advanced with respect to the particular findings adverse to Mr King’s evidence. However, Ground 1 of the appeal squarely raised the question of credit, albeit in the context of the first respondent’s evidence, nevertheless, it was inevitable that in considering the Arbitrator’s finding favourable to Mr Chequer’s credit it was necessary to consider the findings adverse to Mr King’s credit. ([66])
9. More significantly, the parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness.” The Acting Deputy President did not believe the Commission was in any different position. In his view, s 354(3) in requiring the Commission to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” meant that it must afford the parties and the witnesses in the case procedural fairness whatever position the parties themselves may adopt. Acting Deputy President Parker SC did not think that it made any difference that the witness to whom procedural fairness has been denied was not a police officer, solicitor or medical referee. ([67]–[68])

(State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226 applied)

10. Such findings were of such a serious character that they should not have been made unless Mr King was confronted with the allegation(s) and, further, should not have been made without first inviting the parties to make submissions on whether such finding(s) were available and appropriate. The arbitration failed to achieve procedural fairness in the credit-based finding. Ground 1 of the appeal had been made out. ([72]–[73])
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    Ground 2 – s 9AA(3) connection with NSW

11. The Arbitrator accepted Mr Chequer’s evidence and, for the reasons he gave at [81]–[82] of the reasons, he found that Mr Chequer usually worked in NSW. The accepted evidence was that Mr Chequer was seen daily at the Tweed Heads workshop, his motor bike was always at the shed, Mr King initially said Mr Chequer normally began each day at Tweed Heads. Importantly there was no statement from the workshop manager Mr Robinson. The Acting Deputy President was not persuaded that the Arbitrator’s conclusion was wrong and there was no evidence of an error on the part of the Arbitrator. ([80])
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    Ground 3 – s 9AA(3)(b) of the 1987 Act

12. The Arbitrator found in the alternative that if Mr Chequer did not usually work in NSW, he was “usually based in New South Wales”. ([81])
13. The Arbitrator made a finding of fact that in the first respondent’s case he usually commenced and finished work at Tweed Heads, he left his motorbike there, he performed most of his mechanical work there and it was from that place that he went to Queensland to service or bring back cars. The Arbitrator noted that the Bilinga office did not have a workshop. He accepted the first respondent’s evidence that he did not attend regular meetings about the vehicle maintenance list at Bilinga and that he did not work part of the time at Brisbane. ([89])
14. Parker SC ADP held the Arbitrator was entitled to find that the first respondent was usually based in NSW for the purpose of s 9AA(3)(b). The fact that there may be other evidence pointing to a different conclusion did not falsify the conclusion reached by the Arbitrator. There was no error of fact or law demonstrated. Ground 3 was dismissed. ([90])

Ground 4 – weekly compensation benefits after 13 June 2020

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15. The Arbitrator did not provide adequate reasons with respect to this part of the appellant’s claim. ([95])
16. There did not seem to the Acting Deputy President any reason why if the worker received compensation under the Queensland system those payments should not be taken into account for the purpose of calculating the first and second entitlement periods. ([100])
17. Under s 9AC(1) compensation is not payable under the NSW legislation where compensation has been received by the worker “under the laws of a place other than this State”. It was plain that the first respondent had received compensation under the Queensland system and whilst he retains those compensation payments, s 9AC operates to preclude him obtaining payments beyond 13 June 2020 from the second respondent. Ground 4 was made out and the first respondent’s entitlement to compensation payments ended on 13 June 2020. ([101]–[102])