Section 60 – when a genuine dispute is not enough


CASE SUMMARY: District Court Number [2017] WADC 12, Regis Aged Care P/L v Hunter

On 13 January 2017 Parry DCJ in the District Court delivered the reasons for decision in an appeal by the employer, Regis Aged Care P/L against an arbitrator’s dismissal of an application brought by the employer pursuant to s60 of the Workers’ Compensation and Injury Management Act.

The worker, Ms Hunter was an enrolled nurse who sustained a hip injury in the course of her employment on 28 June 2013.

Mrs Hunter was ultimately able to return to work on a part-time basis, however in May 2016 Regis contended that there was a genuine dispute as to liability based upon the failure of Ms Hunter to mitigate her loss. Regis had offered Ms Hunter the opportunity to train as a phlebotomist but she had declined this invitation on the basis that she wished to continue to be employed as an enrolled nurse.

Regis issued a s60 application on the basis that the worker’s decision gave rise to a genuine dispute as to liability to make weekly payments.

In dismissing the application, the arbitrator made reference to the State of Western Australia (Department of Education) v Leak [2014] WADC 10, to support the proposition that an application pursuant to s60 would not be competent if the circumstances giving rise to the application were such as to enable an employer to either issue a s61 notice or to bring a s62 application.

In the appeal by Regis, Parry DCJ considered the principles applicable to this dispute derived particularly from the decision of the Court of Appeal in Taylor v Star Broken Meats, library number 920434, 26 August 1992, and the Leak case.

In Leak, His Honour Staude DCJ made it clear that the point of s60 was to establish whether or not there was a genuine dispute and this did not require the arbitrator to focus on the merits of the employer’s grounds.  In fact, His Honour made the statement that

These authorities to which I have referred make it clear that the Arbitrator does not look behind the declared attitude of the employer provided it is sincere and serious and that the grounds of the dispute are not frivolous”.

On the other hand, it was necessary for an employer to establish that a s60 application was appropriate in the circumstances. The Court of Appeal decision in Star Broken Meats was relevant here.  Parry DCJ observed that

On the proper interpretation of the legislative scheme comprising Section 60 and Section 61, as determined by the Full Court in Star Broken Meats, an application could not properly be brought by Regis under Section 60 in circumstances where the substance of the dispute falls within the scope of Section 61 of the Workers’ Compensation and Injury Management Act”.

Her Honour found that although leave to appeal was to be granted, the Appeal should be dismissed on the grounds that the employer’s application was not competent under s60.

To the extent that the decision of Staude DCJ in Leak may have encouraged insurers to look more broadly at the possibilities of issuing a s60 application in preference to seeking relief under s61 or s62, this decision might be seen as re-emphasising the limits that need to be observed. Before the Leak decision, the general view derived from Star Broken Meats was that s60 would generally be applicable to a different subject matter than that which would give rise to potential relief under s61 or s62. Leak on the other hand reiterated the fact that s60 was not concerned with assessment of merits so much as the identification of a genuine dispute. It did not appear to preclude circumstances in which the dispute concerned incapacity.  In Regis v Hunter, we are reminded that a s60 application will not be likely to succeed if, for example, a gloss is put on the relevance of s61 and s62 based upon the proposition that a worker has failed to mitigate loss. Failure to mitigate is of course important, but will not displace the application of ss61 or 62 if they are appropriate to, and better address the substance of the relief sought.

Conclusion

This decision may not change any existing practices, but when in doubt, should be worth considering on the issue of the competency of a potential application under s60.

Of course, while this decision may be instructive, we are still left, in dealing with s60, with a cumbersome, two stage procedure, not reflecting the original intent of the provision.

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