The Mining List

Acknowledgement: the following material has been prepared by Her Honour Judge L Ashford of the District Court of New South Wales.

[5-0800] The residual jurisdiction of the District Court

The residual jurisdiction is that part of the original jurisdiction of the Compensation Court which the court retained after jurisdiction under the ordinary workers compensation legislation was transferred from the Compensation Court to the new Workers Compensation Commission on 1 April 2002. The Compensation Court kept this residual jurisdiction until the court’s abolition on 1 January 2004. At that time the residual jurisdiction of the Compensation Court transferred by statute to the District Court.

There are currently two Lists which hear matters falling under the residual jurisdiction of the District Court: the Coal Miner’s Compensation List (the Mining List), and the Special Statutory Compensation List: see [5-1000] and ff.

[5-0810] The Mining List

The District Court now determines all claims in respect of compensation claims for coal miners. They are treated as an exceptional case for compensation purposes and have thus retained substantial rights to workers compensation which were not retained by other workers. This includes the right to ‘redeem’ their entitlement to lump sum payments and also the benefit of an ability to have access to the “deemed” total incapacity provision available under the Workers’ Compensation Act 1926 (the 1926 Act).

The effect of Sch 6 Pt 18 of the Workers Compensation Act 1987 (the 1987 Act) is that ss 9, 11(1), 11(2), 12, 13 and 15 of the 1926 Act continue to apply to coal miners, that the rates in respect of weekly payments are to be calculated pursuant to the rates set out (as adjusted) under the 1987 Act and that the lump sum payments pursuant to ss 6667 are calculated under the 1987 Act unaffected by the Workers Compensation Amending Acts of 2001.

[5-0820] Commencement of Proceedings

Proceedings are commenced by statement of claim (UCPR Sch 11 Pt 2 cl 3; though particular proceedings are commenced by summons: Sch 11 Pt 2 cl 7) and can be filed in the Sydney or Newcastle registries of the District Court. At the present time two judges are allocated to hear matters in the mining list and normally sit in Newcastle at regular intervals to hear matters filed in the Newcastle registry. Those matters listed for hearing in Sydney are called over by the judge allocated to hear the matters in Sydney and dates for hearing fixed.

With respect to the Newcastle hearings, the particular judge allocated to a sittings in Newcastle controls the listing of claims for Newcastle in consultation with the conciliation officer and with the Newcastle registry.

As well, one of the mining judges is available on short notice to deal with any redemption application filed and this is normally done in Sydney, or in Newcastle at the time the judge is listed to sit in Newcastle.

[5-0830] Conciliation procedures

Sch 11 Pt 2 of the UCPR provides for conciliation of coal miner’s claims, the conciliator being an officer or employee of the District Court nominated by the Registrar to carry out such conciliation. All such claims shall be referred for conciliation no later than three months after the claim is filed: Sch 11 Pt 2 cl 25.

Conciliation conferences are held in Katoomba/Lithgow, Newcastle, Sydney and Wollongong during the year.

The primary purpose of the conciliation conference is to explore the possibility of settlement. However, even if settlement is unlikely, the conference provides an opportunity to seek concessions, narrow the issues and make application for directions to enhance readiness for hearing.

When a mining matter is filed in the Registry it is immediately referred to the conciliator. Matters are listed for conciliation by the conciliator in four lists, Wollongong, Western Mining, Newcastle and Sydney. Most of the matters are in the Newcastle list.

Matters are generally listed for conciliation four weeks prior to the conference in order to comply with s 90 of the Workplace Injury Management and Workers Compensation Act 1998, which requires conciliation to “cease 35 days after the District Court Conciliator notifies the parties that the dispute has been referred to conciliation” unless the parties consent to an extension of time for conciliation.

Matters are listed for conciliation in order of dated filed, with some variation to accommodate the practitioners. At the moment, most of the solicitors on the Coal Mines Insurance panel have Sydney based offices. Matters are grouped where possible so that practitioners are not travelling for single matters.

Newcastle Mining

Newcastle conciliations occur each month. There is a Registrar’s list in Newcastle each month to coincide with the conciliations. At the conclusion of conciliation, if the matter has not settled, it is determined whether the matter is ready for hearing. A date for hearing may be allocated from conciliation in consultation with the relevant mining list judge or the matter may be placed in the pending list. If necessary the conciliator can make orders to ensure the matter will be ready for hearing when listed.

Wollongong Mining and Western Mining

Wollongong and Western Mining matters are heard in Sydney.

Matters are listed in the Wollongong and Western Mining conciliation lists with a view to ensuring there are always sufficient matters for the next call over list. After discussion with the Judge allocated to the Sydney sitting, if there is insufficient time between the conferences the sitting week, matters are listed directly for hearing from conciliation.

Conciliation outcome

Following conciliation, if an overall settlement of the coal miner’s rights has been agreed between the parties then it is necessary for the employer to file a statement of claim/application for redemption, which is heard by the judge conducting a mining list.

If resolution is achieved in respect of other matters such as settlement of lump sums for loss of use of a limb or function pursuant to ss 6667 then such matters are ordinarily disposed of by the filing of terms of settlement.

[5-0840] Redemption applications

All redemption applications under s 15 of the 1926 Act are made by the employer following agreement having been reached with the worker as to a redemption sum.

This constitutes a full and final settlement of the workers rights to compensation in respect of the particular injuries/incapacities as set out in the statement of claim filed, or may be the result of separate negotiation between the parties without any statement of claim having previously been filed. The redemption application includes any right or further right to lump sum payments for loss of any limb or function (ss 6667).

It is necessary for the worker to give evidence, in appropriate circumstances by affidavit, in respect of any injuries which are included in the redemption application and in respect of any payments of compensation which have been made, including evidence in respect of medical expenses paid or unpaid.

It is the responsibility of the judge to determine if the sum offered in redemption is adequate following consideration of matters such as:

  • the likelihood of further medical treatment

  • the prospects of future employment

  • the reasons as to why the worker would prefer a lump sum in settlement of the claim acknowledging that in accepting a lump sum the worker is aware of potential rights for the future which are being forgone.

It is necessary for the worker to advise the court of consent to the redemption and a signed consent form is handed to the judge for inclusion on the file along with the tender of Short Minutes setting out the payment details in respect of the redemption.

Often the redemption amount will be part of a common law settlement and the parties will advise the Judge accordingly.

It is always within the discretion of the judge hearing the application to determine if the amount is adequate and in the best interests of the worker. If the judge decides the amount is not adequate then generally the application will be rejected.

Any redemption takes effect from the date of the application being approved. It is prudent to check that the worker is aware of any deductions by way of Health Insurance Commission payments which can be deducted from any sum redeemed or of any Social Security payment outstanding which will also be deducted as these sums obviously have a bearing on whether the amount approved is an adequate one. As well the worker should be aware of any preclusion period to be served prior to an ability to access Social Security payments in the future.

If a worker is in receipt of voluntary payments or subject to an award of compensation of the court it is relevant to note that those payments cease on the day of the approval of the redemption. Medical expenses should be paid up to that date. It is not appropriate there should be any deduction from the redemption sum to pay any outstanding medical/treatment expenses.

See Sch 6 Pt 4 cl 6 of the 1987 Act.

[5-0850] Costs in respect of the redemption application

The usual order is that the employer bears the costs of the application even if the worker withdraws his consent on the day of or prior to the application being heard by the judge, or if the judge refuses to approve the application. Costs orders are not made against a worker unless the court is satisfied an application was frivolous, vexatious or without proper justification, and of course the application in redemptions is made by the employer: s 112 Workplace Injury Management and Workers Compensation Act 1998.

[5-0860] Medical hospital and related expenses

Sections 59 and 60 of the Workers Compensation Act 1987 apply.

Section 59 Definitions — sets out the services for which compensation can be claimed and by whom such services are provided.

Section 60 relates to compensation for the cost of medical hospital and rehabilitation treatment and includes the cost of travel related expenses to obtain such treatment.

It is necessary for the worker to show:

(a) 

the worker received injury arising out of or in the course of employment,

(b) 

relevant treatment expense was as a ‘result’ of that injury, and

(c) 

the treatment was ‘reasonably necessary’.

There is some dispute as to whether declaratory orders can be made. In the Compensation Court a number of decisions came to the view that such orders could be made: Lupton v BetterCare Pty Ltd (1996) 13 NSWCCR 246; McEvoy v Southern Cross Homes (Broken Hill) Incorporated (2001) 22 NSWCCR 415. In the Workers Compensation Commission, Sheahan P decided there was no power to make a declaratory order in Widdup v Hamilton (2006) NSW WCC PD 258. See [10-0320] as to declaratory orders in the District Court.

Quite often mining claims relate solely to the cost of medical expenses for items such as physiotherapy and/or remedial massage. This is a factual issue. In determining the claim it is necessary to look at the amount of treatment, by whom it was provided, the cost of that treatment and whether the treatment is such that it maintains the worker at work. “Reasonably necessary” is the relevant consideration (see discussion in Butterworths, Mills Workers Compensation Practice (NSW) p 2940.4 and 2940.5).

[5-0870] Lump sum payments for permanent losses or impairments: ss 66–67

In general terms medical opinions will be proffered by the plaintiff and by the defendant which are often markedly different in their determination of the percentage impairment. The evidence of the worker is of some assistance in determining the issue as it is unlikely medical witnesses will be called or those opinions tested in evidence. It is an objective assessment. Many of the claims are for loss of sexual organs, usually resulting from back injury. It is rare to have evidence called of a partner of the injured worker which might assist in evaluating the veracity of such a claim.

Section 67 assessments are made in comparison to a most extreme case. See commentary in Butterworths, Mills Workers Compensation Practice (NSW) p 2988.

In respect of any injury received prior to 30 June 1987 then s 16 of the 1926 Act applies so long as there has been no employment in the mining industry which may have caused, accelerated, or exacerbated injury beyond 1 July 1987, as the 1987 Act procedures then apply.

Under the 1926 Act there is no provision for pain and suffering.

[5-0880] Special provisions in respect of continuation of weekly compensation payments

Section 11(1) of the 1926 Act applies instead of s 38 of the 1987 Act.

Sch 11 Pt 2 cl 18 of the UCPR provides that a wage schedule is required to be filed if the quantum of weekly payments is in dispute or there is a dispute in respect of actual or probable earnings of a worker during any relevant period. If a disputing schedule is not filed in accordance with the rules, the filed schedule is accepted: Sch 11 Pt 2 cl 18(c).

Section 11(2) provides:

An employer shall provide suitable employment for his injured worker during the worker’s partial incapacity for work, but, if the employer fails to do so the worker shall be compensated as if his incapacity for work were total.

If partial incapacity still exists the judge must consider if the employer provided suitable employment and whether the worker is ready willing and able to enter into such employment. If the worker shows that he or she is ready willing and able to enter into the suitable employment and the employer has failed to provide such employment, the worker must be compensated as if totally incapacitated: Atlas v Bulli Spinners Pty Ltd (1993) 9 NSWCCR 378.

[5-0890] Cessation of payments at age 65 pursuant to s 54(2) of the Workers Compensation Act 1987

If injury was sustained before 30 June 1985, s 52(4) does not apply. If an award of weekly payments of compensation is made in respect of incapacity due to injury, both before and after 30 June 1985, this provision comes into operation: Rizk v Royal North Shore Hospital (1994) 10 NSWCCR 427.

[5-0900] Issues arising

  • As to the issue whether a worker is employed “in or about a mine” under Sch 6 Pt 18 of the 1987 Act see Ellavale Engineering P/L v Pilgrim [2005] NSWCA 272.

  • As to issue whether an employer is an “employer in the coal industry” under s 7A of the 1987 Act see Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348.

[5-0910] Costs

Costs are not governed by the Civil Procedure Act 2005 but by s 112 of the Workplace Injury Management Workers Compensation Act 1998.

Legislation

  • Workers’ Compensation Act 1926 (as amended)

  • Workers Compensation Act 1987 (as amended). A version of the 1987 Act which does not incorporate Workers Compensation Amending Acts of 2001 is available at <www.legislation.nsw.gov.au>. Access the current Act and then select the “Historical versions” option from the menu at the top of the screen.

  • Workplace Injury Management and Workers Compensation Act 1998

Rules

  • Uniform Civil Procedure Rules 2005 Sch 11 Pts 1, 2, 3, 5

Forms

Further reading

Butterworths, Mills Workers Compensation Practice (NSW)