March 2022

In this edition:

Welcome to the first COAT NSW newsletter for 2022.  My warm thanks to our editors Marie Johns and Judge Gerard Phillips for putting the newsletter together.

Each year, the Whitmore Lecture offers a chance for COAT NSW members to reflect on the nature of administrative law and what it offers the Australian community, with a lecture from a distinguished member of the legal profession. We are excited to announce that on 18 May, Professor Megan Davis will continue this tradition by giving the 2022 Whitmore Lecture.  There is more about the lecture below.

An invitation to the annual Whitmore Lecture is just one benefit of COAT NSW membership.  COAT NSW membership can now be renewed online through the COAT website. Renewal details are included in this newsletter.

We look forward to keeping in touch with you throughout the year.

Anina Johnson
COAT Convenor

Renew your COAT NSW membership online

Membership of COAT NSW entitles you to a $50 discount to the COAT NSW conference, member rates to the COAT National conference,a regular e-newsletter and an invitation to the Whitmore Lecture.  It also supports the work of COAT NSW in continuing to offer professional development tailored for Tribunal members.

You can now renew your membership online by clicking here.

To login for the first time use the “Lost your password” prompt to generate a new password. A password will be sent to your registered email address and from there, you can continue the registration process.


This year’s COAT NSW AGM will be held on 2 June 2022 at 4:30 pm.

This will be held via Teams. More details including invitations will follow shortly. All NSW COAT members are invited to attend.

2022 Whitmore Lecture

This year’s Whitmore Lecture will take place on 18 May 2022 at 5.30 pm. We are pleased to announce that this year, the event will be held both virtually and in person, at the Law Courts Building, 184 Phillip St, Sydney 2000 NSW. Please click here to register online.

Since 2007 the Council of Australasian Tribunals (NSW) has held an annual lecture in honour of the late Professor Harry Whitmore. Professor Whitmore was a driving force behind the rethinking of Australian administrative law and enhancing democracy.

At this year’s Whitmore Lecture, Professor Megan Davis will discuss the way in which the Uluru Statement from the Heart offers another opportunity to transform Australian ideas of law and democracy.

Professor Davis is a professor of constitutional law and holds the Balnaves Chair in Constitutional Law and is Pro Vice-Chancellor Indigenous at UNSW Sydney. Professor Davis is an Acting Commissioner of the NSW Land and Environment Court.

Professor Davis was a member of the Prime Minister’s Referendum Council and the Prime Minister’s Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution. Professor Davis is a globally recognised expert on Indigenous peoples' rights. She was an expert member of the United Nations Permanent Forum on Indigenous Issues (2011–2016) and is currently an expert member and Chair of the United Nations Human Rights Council’s Expert Mechanism on the Rights of Indigenous peoples (2017–2022). In 2022 Professor Davis will be a co-recipient of the Sydney Peace Prize for the Uluru Statement from the Heart.

2022 COAT National Conference

The 2022 COAT National conference will take place online on 9 and 10 June 2022. The theme for this year’s conference is “reset and reinvigorate”. There is an impressive range of national and international speakers lined up including:

· Damien Carrick, presenter of the ABC Law Report, asks a multidisciplinary panel “Would I lie to you?”
· Professor Tom Tyler, Macklin Fleming Professor of Law and Professor of Psychology at Yale Law School will explore the importance of procedural justice in Tribunal decision making.
· Franca Petrone, Dispute Management expert, will conduct a small group workshop on the skills of reality testing.

The conference will be recorded and available after the event so that registrants can take full advantage of all concurrent sessions. For more information and to register, please visit the COAT conference website by clicking here. Discounted early registration closes on 22 April 2022.

Reflections on the 2021 COAT NSW Conference

The 2021 COAT NSW Conference, with the theme of “Accessible and inclusive justice – What can tribunals do better?” took place on 26 November 2021. The conference was held fully online due to the COVID-19 Delta outbreak in New South Wales at the time. A total of 235 people participated in the conference which had a great reception from delegates across Australia and New Zealand.

A highlight of the conference was the session on access for people with disabilities with panellists including Graeme Innes AM, Former Disability Discrimination Commissioner, Fiona Given, General Member, NSW Civil and Administrative Tribunal and Dr Kate Anderson, Associate Head of School, Teaching and Learning (Health, Disability & Inclusion), Deakin University.

Other sessions covered fact-finding dos and don’ts, working effectively with people with challenging behaviours, and a thought-provoking discussion between Judge Gerard Phillips and Kylie Nomchong SC on managing bullying in a Tribunal setting in order to create safe workplaces.

The 2022 NSW COAT conference will be scheduled later this year, so keep an eye out for details to come.

Recent Significant Cases

The High Court of Australia has recently handed down two decisions which change the way courts and tribunals distinguish between employees and independent contractors. These create significant precedent, and the High Court Statements can be found on their website: see here for [2022] HCA 1 and [2022] HCA 2.

In addition, the Federal Court has determined the common procedural issue of the unreasonable failure to adjourn tribunal review proceedings, and the Personal Injury Commission has delivered a decision which highlights the application of estoppel principles in a tribunal setting.

The HCA and Federal Court summaries were prepared by Michelle Yu, Frederick Jordan Chambers. The Personal Injury Commission summary was prepared by Rosemary Sagvand, Principal Lawyer (Presidential Chambers) of the Personal Injury Commission.

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
High Court of Australia, Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ, 9 February 2022

This was an appeal from a decision of the Full Court of the Federal Court of Australia dismissing an appeal from the dismissal of an application for compensation and penalties pursuant to ss 545, 546 and 547 of the Fair Work Act 2009 (Cth) (the Act).

Section 545(1) of the Act relevantly provided that the Federal Court may make any order the court considered appropriate if the court was satisfied that a person has contravened or proposed to contravene a civil remedy provision. Sections 546 and 547 of the Act relevantly provided powers for the Court to make pecuniary penalty orders and to order a person to pay interest up to judgment to a claimant. The application of these provisions, depended on, among other things, whether the claimant was a ‘national systems employee’ as defined in s 13 of the Act and whether the employer was a ‘national systems employer’ for the purposes of s 14 of the Act. There was no dispute that Construct was a national systems employer, or that the meaning of ‘employer’ and ‘employee’ in the Act were the common law meanings of those terms.

The Respondent (trading as Construct) was a labour hire company which engaged workers to supply their labour to building clients. Construct’s major client was Hanssen Pty Ltd (Hanssen) a builder of high-rise buildings. The Second Appellant (Mr McCourt) was a British backpacker who had travelled to Australia on a working holiday visa and sought to work on construction sites with Construct. At an interview with Construct, Mr McCourt signed documents including an Administrative Services Agreement (ASA) describing him as a ‘self-employed contractor’. The day after the interview, Construct contacted him to offer him work at one of Hanssen’s sites. Mr McCourt did not sign a contract with Hanssen. When working on the Hanssen site, Mr McCourt worked in basic labouring tasks. He was paid by the hour, and when at work, he was told what to do and how to do it.

Mr McCourt and the Construction, Forestry, Maritime, Mining and Energy Union commenced proceedings against Construct seeking orders for compensation and penalties pursuant to ss 545, 546 and 547 of the Act on the basis that Construct had not paid Mr McCourt according to his entitlement, as an employee of Construct, to payment in accordance with the Building and Construction General On-site Award 2010. The crucial question in the proceedings was whether Mr McCourt was an employee of Construct for the purposes of the Act.

Held: appeal allowed; matter to be remitted to the Federal Court for determination according to law.

1. Mr McCourt was Construct's employee. Under the ASA, Mr McCourt promised Construct to work as directed by Construct and by Construct’s customer, Hanssen. Mr McCourt was entitled to be paid by Construct in return for the work he performed pursuant to that promise. That promise to work for Construct’s customer, and his entitlement to be paid for that work, were at the core of Construct’s business of providing labour to its customers. The right to control the provision of Mr McCourt’s labour was an essential asset of that business. Mr McCourt’s performance of work for, and at the direction of, Hanssen was a direct result of the deployment by Construct of this asset in the course of its ongoing relationship with its customer. [9], [89]–[90], [159]–[160], [202] (per Kiefel CJ, Keane and Edelman JJ; Gageler, Gleeson and Gordon JJ agreeing).

ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2
High Court of Australia, Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ, 9 February 2022

This was an appeal from a decision of the Full Court of the Federal Court of Australia in which the Court made declarations to the effect that, among other things, the Respondents were employees of the Appellant company. The Respondents had commenced proceedings in the Federal Court seeking declarations in respect of statutory entitlements alleged to be owed to them as employees of the company pursuant to the Fair Work Act 2009 (Cth) (the Act), the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) and the Long Service Leave Act 1955 (NSW) (LSL Act).

The Respondents (Mr Jamsek and Mr Whitby) were initially engaged as employees of the company and drove trucks provided by the company. However, in late 1985 or early 1986, the company insisted that it would no longer employ the Respondents, and would continue to use their services only if they purchased their trucks and entered into contracts to carry goods for the company. The Respondents agreed to the new arrangement and each of Mr Jamsek and Mr Whitby set up a partnership with his wife. Those partnerships purchased trucks from the company and executed a written agreement with the company for the provision of delivery services. Thereafter, the Respondents made deliveries as requested by the company. Each partnership invoiced the company for the delivery services provided, and was paid by it for those services.

The central question to be determined by the Court on appeal was whether the Respondents were “employees” of the Appellant company for the purposes of the Act and the SGA Act and/or "workers" for the purposes of the LSL Act.

Held: appeal allowed; matter to be remitted to the Full Court of the Federal Court for determination of the issues raised by the notice of cross-appeal.

1. The Respondents were not employed by the company. They were members of partnerships which carried on the business of providing delivery services to the company. [9], [91], [111] (per Kiefel CJ, Keane and Edelman JJ; Gageler, Gleeson, Gordon and Steward JJ agreeing).
2. Two features of the relationship that existed between Mr Jamsek and the company point inexorably to it having been a relationship within which Mr and Mrs Jamsek in partnership provided carriage services to the company using their own truck as distinct from a relationship within which Mr Jamsek provided personal service to the company as a truck driver. The first was that Mr and Mrs Jamsek were obliged to and maintained the truck which was used to perform the 1993 contract. The second was that it was Mr and Mrs Jamsek in partnership who contracted for the doing of the work involving the use of the truck, and who were therefore jointly and severally liable to the company for the performance of the contract and jointly and severally entitled to be paid by the company when performance in fact occurred. They together invoiced the company as partners and were together paid by the company as partners. [87]–[89] (per Gageler and Gleeson JJ).

Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Federal Court of Australia, Burley J, 16 February 2022

This was an application for an extension of time and leave to appeal from a decision of the then-Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of the Applicants’ Student visas.

In seeking the grant of a Student visa, the First Applicant was required to demonstrate that, among other things, she was currently enrolled in a course of study. Section 363(1)(b) of the Migration Act 1958 (Cth) (the Act) provided that the Tribunal may adjourn the review from time to time.

After lodging an application for review with the Tribunal, no substantive correspondence was sent by the Tribunal to the Applicants until some 18 months later when the Tribunal sent an invitation to the Applicants to attend a hearing. The invitation relevantly requested that the Applicant provide, at least seven days before the hearing date, a copy of the First Applicant’s current Confirmation of Enrolment (COE) to show that she was currently enrolled in a course of study. The Applicants responded to the hearing invitation and provided a statement which included a detailed account of the First Applicant’s circumstances including that she was interested in studying a Bachelor of Business at the University of the Sunshine Coast.

At the hearing, the Applicants appeared unrepresented and provided further evidence including a letter of Unconditional Offer addressed to the First Applicant confirming that she had been accepted to study at the University. The letter stated that, among other things, the offer amounted to a written agreement between herself and the University and that acceptance was to be communicated electronically and with the payment of a first semester tuition fee. The Tribunal gave oral reasons affirming the decision to refuse the Applicants’ visas on the same day for reasons including that they had not provided a current COE.

On appeal, the Applicants argued that among other things, the primary judge failed to consider whether the Tribunal should have considered exercising its discretion to adjourn the review under s 363(1)(b) of the Act. The First Respondent argued that there was no obligation on the Tribunal to grant an adjournment in the absence of a request from the Applicants.

Held: application for extension of time and leave to appeal allowed; appeal allowed; matter to be remitted to the Tribunal for reconsideration according to law.

1. The Tribunal acted in a manner that was legally unreasonable. The sole basis upon which the Tribunal determined that it should affirm the decision was that it was not satisfied at the date of the hearing that the First Applicant was enrolled in a course of study. In reaching that conclusion, the Tribunal did not give proper consideration to the contents of the Unconditional Offer or to the statement provided by the First Applicant. Had it done so, any Tribunal acting reasonably would have appreciated that the self-represented Applicants sought a brief period of time in which to accept the Unconditional Offer and provide a COE to the Tribunal. There was no pressing need for it to conclude the review on that day. [66]

Geary v UPS Pty Ltd [2021] NSWPICPD 47
Personal Injury Commission of NSW, Phillips J, 17 February 2021

This matter dealt with an appeal against the decision of a Member of the Workers Compensation Division, and considered the application of estoppel principles set out in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589. It highlights that Tribunals are not immune from the long existing estoppel considerations that are ventilated in the courts of NSW.

Mr Geary suffered an injury whilst at work on 1 February 2018 and commenced proceedings in the then Workers Compensation Commission. That matter was determined in 2019 by way of consent, where he agreed to an order for the respondent for his “allegation of injury and/or consequential condition” to the neck. In subsequent proceedings commenced in 2021, a claim was made for a “disease” type injury to the neck as a result of the nature and conditions of this employment. At first instance, the Member found that the claimant was estopped from pursuing this subsequent allegation, relying upon the application of Anshun estoppel principles in consideration of the earlier 2019 proceedings.

Mr Geary appealed. On appeal, the issues requiring determination, amongst other things, were whether the Member erred in applying the Anshun estoppel principles, and whether the 2021 allegation of injury was a “claim or issue” connected with the 2019 proceedings.

Held: There was no error in the Member’s determination that Mr Geary was estopped from making his 2021 claim. The Member’s determination was confirmed.

1. The Member’s finding that the disease injury to the neck was a claim or issue connected with the subject matter of the 2019 proceedings was not an error of discretion (House v The King (1936) 55 CLR 499). The argument that the 2021 claim was not a claim or issue connected with the 2019 proceedings concentrated on the ultimate conclusion in the 2019 proceedings rather than the principles associated with Anshun estoppel. [96]–[98] This was a significant finding from an Anshun point of view in terms of what the High Court said about conflicting judgments with respect to the same transaction. [99] What is required is an assessment of substance, and not form of the proceedings. To assert that the claim in relation to the neck injury was not a claim or issue connected with the 2019 proceedings was artificial. Whilst there may have been some differences in the proceedings, the overlap in facts were more than great, and essentially the same. [101] The claimant’s solicitors were not ignorant to the medical evidence regarding the nature of the claimant’s neck injury, and in the 2021 proceedings, they relied on some of the same evidence as in 2019. This does not mean that all claims need to be brought at once. It is possible to pursue different statutory benefits in different sets of proceedings, however this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Anshun requires a case-by-case consideration as to whether or not that principle applies to estop a claim. The question to consider is whether it was unreasonable not to have pleaded the cause in an earlier action. [102]


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