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The Personal Injury Commission and the exercise of federal jurisdiction

  • Newsletter Article
  • Published 14.12.2022

Fletcher International Exports Pty Ltd v Lee (NSWPICPD 2022)

Link to Decision

Key Takeaways

A Personal Injury Commission jurisdictional issue can arise when a worker has relocated interstate before an Application to Resolve a Dispute (ARD) is filed. Ultimately, in matters involving the exercise of federal jurisdiction, it is a matter for a party with appropriate standing to make an application to, and have the matter heard in, the NSW District Court pursuant to s26 of the Personal Injury Commission Act 2020 (2020 Act).

Brief Facts

The worker was employed with the employer from November 2018 performing meat packing and slicing at the appellant’s premises at Dubbo. The worker resided in Dubbo at the time. On 27 October 2020, the worker was seeking to free a box that was stuck on a conveyor belt. As she freed the box, the conveyor belt started moving and the worker’s jacket was sucked into a machine by the conveyor belt. The worker alleged injuries to the pelvis and lower back, together with a primary psychological condition.

Liability was disputed and the worker commenced proceedings in the Commission. The Member noted that a preliminary issue arose in relation to whether the Commission had jurisdiction as the worker, prior to lodging the ARD, moved to Queensland.

The issue was whether the Commission would be exercising federal jurisdiction (in accordance with Division 3.2 of the 2020 Act) if it determined the dispute. The circumstances relevant to the submissions and ultimate decision centred on an analysis of the insurer (NSW Self-Insurance Corporation) and whether that was a State for the purpose of s75 (iv) of the Constitution. The Member was ultimately satisfied that he had jurisdiction to determine the dispute as the respondent was neither a State nor a resident of a State and issued a Certificate of Determination.

The decision was appealed by the employer and on 21 October 2022, Deputy President Michael Snell found that the Member’s decision was made without jurisdiction and was lacking in legal force. The Certificate of Determination was revoked and the matter was remitted to the Workers Compensation Division Head of the Commission.

The employer, in its submissions on the appeal, argued the matter was federally impacted, and therefore should be referred to the District Court. Deputy President Snell cited Leeming JA in Attorney General for New South Wales v Gatsby (NSWCA 2018) (Gatsby) who stated ‘Only a superior court can pronounce authoritatively on the limits of its own jurisdiction. At best, all that NCAT could do was to form and express an opinion…’ Deputy President Snell then referred to the High Court in Citta Hobart Pty Ltd v Cawthorn (HCA 2022) (Cawthorn) who considered the power of a court or a non-court tribunal to consider the limits of its jurisdiction and also whether it was necessary that an asserted constitutional defence meet ‘some threshold degree of arguability and, if so, what that threshold was’. In Cawthorn, it was said that ‘examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment’.

Deputy President Snell referred to the Member’s reasons and concluded that it was clear that the Member dealt with the federal jurisdiction issue on the basis that he was determining the substantive issue on its merits (whether the insurer constituted a State as a self-insurer under NSW workers compensation legislation) as opposed to considering its arguability. That is, the Member should have considered the issue from the perspective of whether the 2020 Act imbued him with the jurisdiction to hear the matter at all. The reasons of the plurality in Cawthorn made it clear that examining from the perspective of whether the insurer was a ‘State’ was ‘no part of the requisite assessment’.

Deputy President Snell stated that such a course would ‘inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution’.

Deputy President Snell noted that the proceedings were still on foot and that the most efficacious way to bring the proceedings to a conclusion would be for a party with appropriate standing to make an application to the District Court pursuant to s26 of the 2020 Act.

Section 26 of the 2020 Act provides that a person with standing (i.e. the parties to the proceedings) can apply to the President or Commission for a matter to be determined by the District Court instead of the usual decision maker (i.e. the Commission) in matters involving federal jurisdiction. Those substituted proceedings in the Court are to be heard in accordance with the normal ‘practice and procedure’ applicable in the District Court as opposed to the practice and procedure of the Commission.


The appeal decision overturning the Member’s determination ultimately confirms that when an Application is lodged by an applicant who has relocated interstate prior to filing the Application, the matter is most likely one which will involve an exercise of a federal jurisdiction and therefore ultimately required to be determined by the District Court.