2.Set aside paragraph 3 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 29 April 2013 and, in its place, order that the question of law referred to the President of the Workers Compensation Commission of New South Wales as amended:
"Do the amendments to Division 4 of Part 3 of the Workers Compensation Act1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on and after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?"
Workers Compensation Regulation 2010 (NSW) (introduced by Sched 1 [5] to the Workers Compensation Amendment (Transitional) Regulation 2012 (NSW)), with the effect that the amendments to Div 4 of Pt 3 of the Workers Compensation Act introduced by Sched 2 to the Workers Compensation Legislation Amendment Act apply to claims for compensation pursuant to s 66 of the Workers Compensation Act made on and after 19 June 2012, where the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012."
3.Appellant to pay the first respondent's costs in this Court.
On appeal from the Supreme Court of New South Wales
Representation
D F Jackson QC with S L C Flett and W A D Edwards for the appellant (instructed by Moray & Agnew Solicitors)
J B Simpkins SC with E G Romaniuk SC and L G Morgan for the first respondent (instructed by Leitch Hasson Dent Solicitors)
J K Kirk SC with S J Free for the second respondent (instructed by WorkCover Authority of New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ADCO Constructions Pty Ltd v Goudappel
Workers compensation – Permanent impairment compensation – Injured worker claimed compensation – Subsequent specific claim for permanent impairment compensation under s 66 of Workers Compensation Act1987 (NSW) ("WCA") – Amendments to WCA limited entitlement to permanent impairment compensation – Savings and transitional provisions of amending Act protected worker's entitlement – Employer claimed protection displaced by transitional regulation made pursuant to amending Act – Whether transitional regulation extinguished worker's entitlement – Whether transitional regulation valid.
Statutory interpretation – Retrospectivity – Henry VIII clause – Savings and transitional provisions.
Words and phrases – "accrued rights",…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18
Case
[2014] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by ADCO Constructions Pty Ltd against a decision of the Court of Appeal of the Supreme Court of New South Wales concerning Mr Goudappel's entitlement to permanent impairment compensation under the *Workers Compensation Act 1987* (NSW). Mr Goudappel had suffered a workplace injury in April 2010, and subsequently made a claim for compensation. Amendments to the *Workers Compensation Act 1987* (NSW) introduced a threshold for permanent impairment compensation, which the employer argued extinguished Mr Goudappel's entitlement due to a transitional regulation. The Court of Appeal had found this regulation invalid to the extent it prejudicially affected Mr Goudappel's accrued rights.
The central legal issues before the High Court were whether a transitional regulation made pursuant to the *Workers Compensation Legislation Amendment Act 2012* (NSW) validly extinguished Mr Goudappel's entitlement to permanent impairment compensation, and if so, whether that regulation was within the scope of the legislative power conferred upon it. Specifically, the Court had to determine the effect of clause 11 of Schedule 8 to the *Workers Compensation Regulation 2010* (NSW) on claims made before the commencement of the amending Act, and whether this regulation could override accrued rights.
The High Court allowed the appeal, holding that the transitional regulation was valid and did extinguish Mr Goudappel's entitlement. The Court reasoned that the amending Act, through its savings and transitional provisions and the subsequent regulation, intended to apply the new threshold for permanent impairment compensation to claims made after 19 June 2012, even if an initial claim for compensation of any type had been made prior to that date. The Court found that Mr Goudappel's initial claim in April 2010 did not specifically seek compensation under section 66 of the *Workers Compensation Act 1987* (NSW), and therefore, the transitional regulation validly applied the amended provisions to his claim, thereby extinguishing his entitlement to lump sum compensation. The Court therefore set aside the order of the Court of Appeal and answered the referred question of law in a manner that upheld the validity and effect of the transitional regulation.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraph 3 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 29 April 2013 and, in its place, order that the question of law referred to the President of the Workers Compensation Commission of New South Wales as amended:
"Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on and after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?"
be answered:
"Clause 5(4) of Pt 19H of Sched 6 to the Workers Compensation Act 1987 (NSW) (introduced by Sched 12 [1] to the Workers Compensation Legislation Amendment Act 2012 (NSW)) enabled the making of cl 11 of Sched 8 to the
Workers Compensation Regulation 2010 (NSW) (introduced by Sched 1 [5] to the Workers Compensation Amendment (Transitional) Regulation 2012 (NSW)), with the effect that the amendments to Div 4 of Pt 3 of the Workers Compensation Act introduced by Sched 2 to the Workers Compensation Legislation Amendment Act apply to claims for compensation pursuant to s 66 of the Workers Compensation Act made on and after 19 June 2012, where the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012."
3. Appellant to pay the first respondent's costs in this Court.
Background
Background to the litigation
The questions in this appeal are whether the regulation would have extinguished Mr Goudappel's entitlement to lump sum compensation and, if so, whether the regulation was valid. The Court of Appeal of the Supreme Court of New South Wales held that the regulation was invalid to the extent that it sought to affect that entitlement prejudicially. For the reasons that follow, the regulation was valid and applied the amendments to extinguish Mr Goudappel's entitlement. The appeal must be allowed. Factual and procedural background On 17 April 2010, Mr Goudappel, who was then the State Manager for ADCO, suffered injury at work when a bundle of steel purlins fell from a forklift, crushing his left foot and ankle. On 19 April 2010, he made a claim for compensation under the WCA. On 14 July 2011, he was assessed by an orthopaedic surgeon as having a six percent permanent impairment with respect to the injuries he sustained. On 20 June 2012, his solicitors made a claim for lump sum compensation, pursuant to s 66 of the WCA, for $8,250 on the basis of the assessed six percent permanent impairment. ADCO's workers compensation insurer declined liability for lump sum compensation. Mr Goudappel filed an Application to Resolve a Dispute in the Workers Compensation Commission of New South Wales ("the WCC"). A Senior Arbitrator of the WCC, of her own motion, made an Application for Leave to Refer a Question of Law to the President of the WCC, pursuant to s 351(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act"). The question referred, as reformulated by the President, was:"Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on and after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?" The President, his Honour Judge Keating, granted leave to refer the question of law and answered the question in the affirmative[2]. Mr Goudappel appealed by leave to the Court of Appeal, which allowed the appeal and ordered that the question of law be answered in the negative[3]. On 11 October 2013, ADCO was granted special leave to appeal to this Court against the decision of the Court of Appeal[4]. Special leave was granted on ADCO's undertaking not to seek to disturb any orders as to costs which had been made below and to pay Mr Goudappel's costs of the appeal, including the costs of the application for special leave. The WorkCover Authority of New South Wales was joined as second respondent in support of ADCO's position.[2]Goudappel v ADCO Constructions Pty Ltd [2012] NSWWCCPD 60.[3]Goudappel v ADCO Constructions Pty Ltd (2013) 11 DDCR 534; [2013] NSWCA 94.[4][2013] HCATrans 250 (Kiefel and Keane JJ).The statutory entitlement and claim provisions When Mr Goudappel suffered injury in April 2010, he became entitled, pursuant to s 9(1) of the WCA, to receive compensation from his employer in accordance with the Act[5]. Having suffered what was later assessed as a permanent impairment, he acquired an accrued right to lump sum compensation pursuant to s 66(1), which, as it stood prior to the amendments, provided:"A worker who receives an injury that results in permanent impairment is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act." If the degree of permanent impairment was not greater than ten percent, the compensation was the product of the percentage degree of permanent impairment and the sum of $1,375[6].[5]Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 650–651 per Latham CJ, 652–653 per Dixon J; [1945] HCA 29; Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 at 327 per Priestley JA, 334 per Sheller JA.[6]WCA, s 66(2)(a).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN, KIEFEL AND KEANE JJ
GAGELER J
The President held that cl 15 of Pt 19H of Sched 6 to the WCA would protect a claim for lump sum compensation made on or after 19 June 2012, but not such a claim made before that date[21]. His Honour held that the term "a claim for compensation" in cl 15 was a reference to lump sum compensation and not a reference to compensation used in the wider sense[22]. As Mr Goudappel had made no claim for permanent impairment compensation until after 19 June 2012, he had no entitlement to such compensation[23]. The President therefore answered the question reserved for his consideration in the affirmative[24]. [21][2012] NSWWCCPD 60 at [126].[22][2012] NSWWCCPD 60 at [161].[23][2012] NSWWCCPD 60 at [128].[24][2012] NSWWCCPD 60 at [179].The decision of the Court of Appeal The reasons for judgment of the Court of Appeal were delivered by Basten JA, with whom Bathurst CJ[25] and Beazley P[26] agreed. The argument in that Court had focussed upon the operation of cl 15 of Pt 19H of Sched 6 to the WCA, on which the President's decision turned. The Court held that Mr Goudappel could rely upon the claim he had lodged on 19 April 2010, and that cl 15 did not apply the new s 66 to that claim[27]. [25](2013) 11 DDCR 534 at 536 [1].[26](2013) 11 DDCR 534 at 536 [2].[27](2013) 11 DDCR 534 at 539 [16]. The Court went on to consider the new transitional regulation, cl 11 of Sched 8 to the WCR. The Court held:•Clause 1 of Pt 20 of Sched 6 to the WCA does not authorise a regulation which interferes with rights which accrued prior to the date of its publication, whether or not it purported to take effect at an earlier date[28]. •Clause 5 of Pt 19H of Sched 6 to the WCA did not expand the power derived from Pt 20 so as to authorise a regulation which extinguishes rights accrued prior to the date of its publication[29].•Even if it had that effect, it would not affect the outcome in the present case unless it prejudicially affected rights accrued prior to the date on which it commenced. The transitional regulation did not seek to backdate its operation to a point prior to the date of assent to the Amendment Act. Therefore, cl 5(1) was not relevant[30].•The entitlement to permanent impairment compensation arose at the date of injury[31].•To the extent that cl 11 sought to prejudicially affect Mr Goudappel's accrued right to permanent impairment compensation, it was beyond power and invalid[32].[28](2013) 11 DDCR 534 at 541 [24].[29](2013) 11 DDCR 534 at 542 [27]–[28].[30](2013) 11 DDCR 534 at 542 [28].[31](2013) 11 DDCR 534 at 543 [32].[32](2013) 11 DDCR 534 at 543 [33].The construction of cl 11 There is little room for debate about the construction of the new cl 11 of Sched 8 to the WCR and its application to Mr Goudappel's entitlement. It extended the amendments made by Sched 2 to the Amendment Act to a claim for compensation made before 19 June 2012. It therefore extended to such claims the operation of the new s 66(1), with its ten percent permanent impairment threshold. Mr Goudappel's initial claim, which, it was common ground, subsumed his claim for permanent impairment compensation, was made on 19 April 2010. That claim was not "a claim that specifically sought compensation under section 66 … of the 1987 Act" within the meaning of cl 11. As a matter of construction, therefore, cl 11 applied the new s 66(1) to Mr Goudappel's claim and, if valid, extinguished his entitlement. There was no room in the text of cl 11 for a construction that avoided that result.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, KIEFEL AND KEANE JJ,
GAGELER J