Arnold v Royal & Sun Alliance and WorkCover Corp No. Scgrg-00-427

ARNOLD v ROYAL & SUN ALLIANCE WORKERS COMPENSATION (SA) LTD AND WORKCOVER CORPORATION
[2000] SASC 215

Magistrates Appeal

DEBELLE J. (ex tempore) This is an appeal from an order of a magistrate permanently staying any further step in this action. There is a question whether the order the subject of the appeal is interlocutory in nature. Out of an abundance of caution and with the consent of the parties I granted leave to the appellant to appeal.
On 2 December 1999 the appellant, Mr Arnold, issued a claim out of the Adelaide Magistrates Court for payment of compensation alleged to have been awarded pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 (“the Act”). The amount of compensation claimed was $27,468. Mr Arnold alleged that he had been paid $7,303.06 of that sum but that WorkCover Corporation (“WorkCover”) had failed to pay the balance of $20,164.94. WorkCover is a respondent in this appeal. The first respondent, Royal & Sun Alliance Workers Compensation (SA) Ltd, is the other defendant in the action. It is an agent of WorkCover. I will refer to both respondents as “the defendants”.
The defendants are represented by the same solicitor. They filed one defence in which they admitted that compensation had been awarded to Arnold in the sum of $27,468. They said, however, that the determination of the compensation had not been made pursuant to s 43 of the Act but by an arbitration officer pursuant to s 93A of the Act. In addition, the defendants pleaded that Arnold was indebted to them in the sum of $20,164.94 because he had worked during the period when he was in receipt of income maintenance paid by WorkCover and did not inform the defendants of that fact. The defendants say that Arnold thereby became indebted to WorkCover in the sum of $20,164.98. In consequence, the defendants said they are entitled both at common law and by virtue of s 36(6) and s 53(7) of the Act and reg 8(1) of the Workers Rehabilitation and Compensation (General) Regulations 1999 to set-off that sum against the sum claimed by Arnold.
The reference to s 36(6) and s 53(7) are not entirely consistent. Section 36(6) entitles WorkCover to recover as a debt any weekly payments paid to the worker on the assumption that the worker was incapacitated when, in fact, the worker has returned to work. By contrast, s 53(7) enables WorkCover to make a redetermination of compensation in certain circumstances. It is doubtful whether the circumstances of this case enable WorkCover to make a redetermination: see s 53(7a) of the Act. Mr Coppola, who appeared for the defendants, conceded that the claim based on s 53(7) was ambitious. Regulation 8(1) enables WorkCover to set-off any claim to recover weekly payments pursuant to s 36(6). Thus, the claim by WorkCover is for a set-off. It is not for a redetermination.
After filing their defence, the defendants applied for an order that the action be dismissed on the ground that the Magistrates Court had no jurisdiction to hear and determine it. The application was grounded on the manner in which the determination of compensation had been made.
A determination that compensation was payable to Arnold pursuant to s 43 of the Act was made on 13 May 1997. Arnold was dissatisfied with the determination. He filed a notice of dispute in accordance with the provisions of the Act. The dispute was ultimately heard by an arbitration officer pursuant to s 93A of the Act. On 28 January 1998 the arbitration officer varied the determination and awarded Arnold $27,468. Thus, the determination was made pursuant to the award of the arbitration officer under s 93A and not pursuant to s 43. A determination made pursuant to s 93A is a determination of the Workers Compensation Tribunal. After the determination had been made, an agent of WorkCover sent a letter dated 13 February 1998 to Arnold claiming to set-off the sum of $20,164.94 and setting out the grounds of that claim. The claim was based on the fact that Arnold had received wages for working for another employer while he was also receiving payments of income maintenance.
The defendants asserted that the decision of the arbitration officer is a decision of the Workers Compensation Tribunal and that, by virtue of s 87A of the Act, the only court which could enforce the workers claim was the District Court. That contention was upheld by a magistrate who made the orders staying any further step in the action.
Section 87A of the Act provides:
“ 87A. (1) A certified copy of a judgment or order of the Tribunal may be filed in the District Court.
(2) When a certified copy of a judgment or order is filed in the District Court under this section, the judgment or order may be enforced as a judgment or order of the District Court.”
All that an injured worker must do to enforce a determination of the Tribunal is file a certified copy of the judgment or order of the Tribunal in the District Court. He is then at liberty to enforce it as a judgment or order of the District Court.
It will have been noticed that s 87A is not expressed to be the only means by which a worker may enforce a judgment order of the Tribunal. Furthermore, it does not enable the determination of disputes between a worker entitled to compensation and WorkCover or its agents which have arisen after the determination of the compensation. Mr Coppola, who appeared for the defendants, submitted that, given that the objects of the Act include the object of establishing a scheme to reduce the overall social and economic costs of employment related disabilities, the purpose of the Act is to establish a code for the purpose of enforcing orders of the Tribunal. So, he submitted, whilst there is nothing in s 87A which states that that provision provides the only means of enforcing judgments or orders of the Tribunal, that is the clear intention of the Act.
I do not accept that submission. Had that been the intention of the Parliament, it could easily have been stated. Furthermore, s 87A does not provide a means for the determination of disputes between a worker entitled to compensation and WorkCover in relation to disputes which arise after the determination of compensation has been made. In this case, the claim for a set-off was not made by or on behalf of WorkCover until after Arnold’s claim for compensation had been determined by the arbitration officer. The question whether WorkCover was entitled to a set-off was not an issue which could be determined by the Workers Compensation Tribunal because the claim for the set-off was separate and distinct from the determination. In any event, Arnold was not dissatisfied with the result of the determination: see s 94C of the Act. Knowing that WorkCover sought to set-off against the compensation payable to him, Arnold plainly sought the determination of the issues between him and WorkCover. The amount of the claim was within the jurisdiction of the Magistrates Court and it was, therefore, appropriate for him to institute proceedings in the Magistrates Court.
Mr Coppola submitted that Arnold could simply have requested a certified copy of the order of the Tribunal and filed it in the District Court and enforced it by that means. While that is true, the fact that I do not think that s 87A provides an exclusive procedure has the consequence that Arnold could proceed in the Magistrates Court.
For all of these reasons, the magistrate erred in deciding that the Magistrates Court did not have jurisdiction. The magistrate relied, and the defendants in this court rely, on the decision of the Full Court in Della Flora v Workers Rehabilitation & Compensation Corporation of South Australia (unreported, Full Court, 26 May 1998, Judgment No. S6691). In particular, they rely on the observations of the Chief Justice at p 8 to this effect:
“[O]nce a notice of dispute is given under s 90, a determination by the corporation is liable to be set aside or varied until the dispute is finalised by an order of the Tribunal. As I have already said, that order might be the result of an agreement reached before a conciliator, the result of a decision by an arbitrator, or the result of a decision by the Tribunal, a judicial determination. At that point there is clearly an enforceable right because a Tribunal's decision is enforceable like a judgment of the District Court.”

These observations speak generally to the operation of s 87A. They do not in any respect bear upon the issues in this appeal and do not assist the defendants.

For these reasons, the appeal will be allowed. There will be orders as follows:
Appeal allowed.
Order setting aside the orders made by the magistrate on 20 April 2000 and, in lieu thereof, orders:
(a).... Dismissing the defendants’ application dated 10 February 2000, and
(b)That the defendants pay the plaintiff’s costs of and incidental to the application.
The respondents will pay the appellant’s costs of and incidental to the appeal.
Leave to the respondents to appeal to the Full Court.
The respondent, WorkCover Corporation, will bear the costs of the appeal to the Full Court in any event.

[2000] SASC 215

6 June 2000