BHP Billiton Ltd v Bailey - [2015] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48
APPELLANT:	BHP Billiton Ltd
RESPONDENT:	Lyle Henry Bailey
INSURER:	Self-insured (QBE Self Insurance Services)
FILE NUMBER:	A1-1099/15
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:	15 April 2015 27 July 2015
DATE OF APPEAL DECISION:	19 August 2015
SUBJECT MATTER OF DECISION:	Injury received before 1 January 2002; claim pursuant to former s 67 of the Workers Compensation Act 1987 first made in December 2014; proper construction and application of provisions of the Workers Compensation LegislationAmendment Act 2012 and of savings and transitional provisions; consideration of continued operation of cl 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987; BP Australia Ltd v Greene [2013] NSWWCCPD 60 distinguished
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Andersen, solicitor, HWL Ebsworth
Respondent:	Mr M Bechelli, solicitor, Whitelaw McDonald
ORDERS MADE ON APPEAL:	The order made by the Arbitrator as found in [1] of the Certification of Determination dated 15 April 2015 is revoked and the following order is made in its place: “1. Award for the respondent in respect of the claim brought pursuant to s 67 of the Workers Compensation Act 1987.”

INTRODUCTION

This appeal raises questions as to the proper construction and application of certain amendments to the Workers Compensation Act 1987 (the 1987 Act) which followed the commencement of the Workers Compensation LegislationAmendment Act 2012 (the 2012 amending Act) and of the savings and transitional provisions effected by that Act and relevant regulations.
The particular provisions presently relevant are those amendments concerning a worker’s entitlement to lump sum compensation as found in Sch 2 to the 2012 amending Act.
Those amendments provided, inter alia, that lump sum compensation (s 66 of the 1987 Act) was payable only in respect of whole person impairment which exceeded 10 per cent. The provisions of s 67 of that Act which formerly had made provision for payment, in certain circumstances, of lump sum compensation for pain and suffering, was repealed.

BACKGROUND

Mr Lyle Henry Bailey was employed by BHP Billiton Limited (the appellant) as a supervising chemist. That employment ceased on 24 June 1988. There is no dispute between the parties that Mr Bailey received injury arising out of or in the course of that employment, being boilermaker’s deafness or deafness of like origin. The deemed date of injury is 24 June 1988: s 17(1)(a)(ii) of the 1987 Act.
Mr Bailey did not make a claim in respect of that injury until 4 December 2014. Such claim had been made by his solicitors in terms that were somewhat confusing. However, it is clear that Mr Bailey asserted entitlement pursuant to ss 66 and 67 of the 1987 Act as those provisions stood prior to the passage of the Workers Compensation Legislation Amendment Act 2001 (the 2001 amending Act) which came into operation on 1 January 2002. Certain savings and transitional provisions enacted by that last mentioned Act (found in Sch 6 Pt 18C to the 1987 Act) were relied upon by Mr Bailey and are presently of particular relevance.
The parties informed the Commission at the hearing of this appeal that an agreement had been reached that Mr Bailey was entitled to lump sum compensation pursuant to s 66 of the 1987 Act in respect of his hearing loss injury. There is no dispute that Mr Bailey is entitled to payment in respect of a 35.2 per cent binaural hearing loss. The quantum of that entitlement has been agreed as being $22,880. The parties further informed the Commission that such monetary entitlement had been calculated by reference to the Table of Disabilities which appeared at Pt 3 Div 4 of the 1987 Act before that Act’s amendment effected by the 2001 amending Act.
The dispute between the parties which led to the commencement of these proceedings concerned the appellant’s declinature of Mr Bailey’s claim made pursuant to s 67 of the 1987 Act. That denial of liability was founded upon the assertion, as made in correspondence from the appellant dated 23 February 2015 addressed to Mr Bailey’s solicitors, that:
“There is no entitlement for [sic] pain and suffering pursuant to s 67 for claims for lump sum compensation made on or after 19 June 2012.”
Reference was made in that correspondence to cl 15 found in Pt 19H of Sch 6 to the 1987 Act, and to the decision of the High Court of Australia in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213; 13 DDCR 90 (Goudappel). That provision and the decision of Goudappel are addressed below.

THE PROCEEDINGS BEFORE THE ARBITRATOR

Mr Bailey’s Application to Resolve a Dispute sought orders concerning his entitlement to a lump sum pursuant to s 67 of the 1987 Act in respect of pain and suffering. Whilst that application was opposed by the appellant, it had been agreed between the parties that, should Mr Bailey be entitled to an award in his favour, the sum appropriate in the circumstances was $15,000.
The matter was assigned to Arbitrator Ross Bell. A telephone conference was conducted by the Arbitrator on 10 April 2015. It seems that written submissions had been forwarded to the Commission by the appellant’s solicitors the day before conduct of that telephone conference.
The proceedings at the telephone conference were not sound recorded in their entirety. A transcript, which records only the Arbitrator’s determination of the dispute, has been produced. The Arbitrator’s statement of reasons, as recorded, may be described as terse. Whilst it was noted by the Arbitrator that submissions had earlier been received from the appellant’s solicitors and that there had been “some general discussion” at the telephone conference, any argument that may have been advanced on behalf of Mr Bailey is not recorded. The detail of the appellant’s written submissions, which remain with the Commission’s file, were not addressed by the Arbitrator.
There is no statement made by the Arbitrator concerning relevant facts other than that the claim had been made by Mr Bailey pursuant to s 67; that the quantum of any entitlement that may be established was agreed at $15,000, and that the “issue is whether the 2012 amendments catch Mr Bailey’s claim for s 67 lump sum compensation” (T1.30).
The Arbitrator proceeded to note that it was “common ground” that the “relevant factors in this matter are on all fours with the case of [BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene)]”, a decision of Deputy President Roche. It was further noted by the Arbitrator that the appellant had formally submitted that the matter of Greene had been “incorrectly determined” (at T1.40).
The Arbitrator stated that he considered himself “bound by [the decision in Greene]” and found that “the 2012 amendments to [sic, do] not apply to Mr Bailey’s claim and he is entitled to a lump sum pursuant to s 67 of the 1987 Act…” (T2.3). The agreement as to quantum was noted and the appellant was ordered to pay to Mr Bailey the sum of $15,000 pursuant to s 67.
The parties expressed their satisfaction with the manner in which the Arbitrator had stated his reasons and the matter concluded. A Certificate of Determination issued on 15 April 2015 which recorded the award made as noted above.

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.

ISSUES ON APPEAL

The grounds relied upon by the appellant are as follows:
“Ground 1
1.       Greene wrongly decided that, in cases where a worker first makes a claim for lump-sum compensation for a pre-1 January 2002 injury on or after 19 June 2012, the worker’s entitlements for that claim are governed only by the lump sum compensation regime contained in Division 4 of Part 3 of the 1987 Act, as in force prior to the 2001 Amendments.
Ground 2
2.       Greene wrongly decided that, in cases where a worker first makes a claim for lump-sum compensation for a pre-1 January 2002 injury on or after 19 June 2012, clause 3 of Part 18C of Schedule 6 to the 1987 Act excepted that claim from the 2012 Amendments.
Ground 3
3.       Greene misconstrued the text of:
(a)Clause 2.1[5] of Schedule 2 to the 2012 Amendment Act (Entitlement to compensation for permanent impairment); and
(b)clause 19 of the Workers Compensation Regulation 2010 (Only one claim for permanent impairment compensation – injuries received before 01.01.2002), introduced by the 2012 Further Transitional Regulation.
Ground 4
4.       Greene misconstrued the text of clause 18 of the Workers Compensation Regulation 2010 (Lump sum compensation for hearing loss – injury before 1.1.2002), introduced by the 2012 Further Transitional Regulation.
Ground 5
5.       Greene misconstrued the text of clause 13 of the Workers Compensation Regulation 2010 (Determination of degree of permanent impairment – Table of Disabilities), introduced by the 2012 Transitional Regulation.
Ground 6
6.       Greene misconstrued the text of clause 23 of Part 19H of Schedule 6 to the 1987 Act (Assessment of permanent impairment), introduced by Schedule 12 to the 2012 Amendment Act.
Ground 7
7.       Greene failed to consider and apply the text of clause 3 of Part 19H of Schedule 6 to the 1987 Act (Application of amendments generally), as introduced by Schedule 12 to the 2012 Amendment Act, and then failed to apply clause 15 (Lump sum compensation).
Ground 8
8.       Greene erred in approaching the task of statutory construction on the basis that, unless the text of the 2012 Amendments contained clear and unambiguous language pointing to the repeal of valuable accrued rights, then clause 3 of Part 18C of Schedule 6 to the 1987 Act applied to completely preserve the pre‑1 January 2002 lump sum compensation regime, for workers who first make a claim for lump-sum compensation on or after 19 June 2012, subject only to clause 19 of the Workers’ Compensation Regulation 2010.”
It may be seen that the appellant relies upon eight “grounds” of appeal, each of which asserts error, not of the Arbitrator as one might expect, but of the reasoning and conclusions reached by the Commission in the decision relied upon by the Arbitrator, being that of Greene. During an exchange at the commencement of the hearing of the appeal, it was confirmed by Mr Andersen, solicitor for the appellant, that the error relied upon was the Arbitrator’s reliance upon a wrongly decided authority, Greene, and that such reliance undermined the conclusion reached. Whilst the appellant asserts that this appeal constitutes a challenge to the correctness of Greene, it is reasonably clear, from the submissions put in support of each ground, that the error asserted is that the Arbitrator wrongly placed reliance upon Greene when reaching his conclusion that, notwithstanding the amendments passed in 2012, Mr Bailey was entitled to s 67 compensation. In the circumstances it is necessary to examine the decisions of both Arbitrator Sweeney and Deputy President Roche in Greene.

THE PROCEEDINGS AND DETERMINATIONS IN GREENE

Mr Greene’s claim was one in respect of boilermaker’s deafness. He had claimed lump sum compensation pursuant to s 66 of the 1987 Act in respect of 15.7 per cent binaural hearing loss. He further claimed, pursuant to s 60 of that Act, reimbursement of the cost of hearing aids. Whilst a “supposition” was made by the Arbitrator that there was “a consequential claim I suppose for pain and suffering pursuant to s 67”, such was not addressed in the proceedings. The injury was deemed to have been received in 1994. Mr Greene first claimed compensation, it was agreed between the parties, on a date after 19 June 2012. That last date is of relevance concerning the operation of the 2012 amending Act and is discussed below.
One issue which required determination in Greene was whether, having regard to the 2012 amendments, Mr Greene’s entitlement to s 66 lump sum had been affected. Mr Greene’s contention was that, having regard to the deemed date of his injury (1994), his entitlement was to be determined having regard to the terms of s 66 in force immediately prior to amendments which had been effected by earlier legislation, the 2001 amending Act. It was argued that, having regard to certain savings and transitional provisions found in cl 3 of Pt 18C of Sch 6 to the 1987 Act, introduced by the 2001 amending Act, noted at [34] below, the 2012 amendments did not apply to his injury, it having been received before 1 January 2002.
The employer argued that, having regard to the terms of Sch 6 Pt 19H cl 15 and the date of claim being after 19 June 2012, Mr Greene’s entitlement was to be determined by reference to the amendments effected by the 2012 amending Act. Those amendments included the omission of s 66(1) as it had stood and the insertion of a new s 66(1) which introduced a threshold of greater than 10 per cent whole person impairment before entitlement to lump sum arose (s 66(1)); and, for the first time in the legislative history of the 1987 Act, provided that only one claim could be made under the Act for permanent impairment compensation (s 66(1A)). Having regard to the evidence as to the extent of the alleged hearing loss, the employer argued that Mr Greene’s claim was defeated by the provisions of s 66(1) in its amended form.
To permit an understanding of the competing arguments, in both Greene and the present matter, it is necessary to attempt a summary of a thicket of legislative provisions which have, over the relevant period, amended, from time to time, the scheme which the 1987 Act had in place concerning compensation for non-economic loss (as found in Div 4 of Pt 3 of that Act).
Before 1 January 2002, the 1987 Act made provision for payment of lump sum compensation for loss of use which was to be assessed by reference to a Table found in the Act (s 66(1)). Such compensation was payable in respect of a loss of a thing appearing in that Table or in respect of the permanent loss of the use, or the efficient use, of that thing (s 65(1)).
The 2002 amendments replaced the Table with an entirely new scheme for the determination of entitlement to lump sum compensation. That new scheme provided for medical assessment of, and payment for, permanent impairment pursuant to s 66 as amended.
It is of relevance to note that, following amendments which had been effected in 1995, the 1987 Act provided that no compensation was payable for a loss of hearing due to boilermaker’s deafness if the worker’s total hearing loss was less than 6 per cent (s 69A(1)). The operation of that amendment is governed by the provisions found in Sch 6 Pt 6 cl 9. Such percentage, having regard to the terms of the Act, was in respect of binaural hearing loss as calculated: s 69A(5).
Whilst the question of entitlement to lump sum compensation in respect of pain and suffering (s 67 of the 1987 Act) was of no relevance in Greene, it is convenient to note the history of that provision at this point given the issues raised in the present appeal. Before 1 January 2002, in the case of a worker suffering a loss which gave rise to entitlement under s 66 to a sum which was not less than 10 per cent of the maximum sum provided by that section, s 67 provided for payment of a further lump sum in respect of pain and suffering (s 67(1) and (2)).
Significant amendments to Div 3 of Pt 4, in which s 67 appeared, were effected by the 2001 amending Act. Shortly stated those amendments made provision for payment of compensation for pain and suffering in circumstances where injury resulted in a degree of permanent impairment of 10 per cent or more (s 67(1)), as assessed in accordance with the terms of the Act as introduced in that amending legislation.
Section 67 was repealed by the 2012 amending Act.
Returning to the dispute in Greene, the relevant savings and transitional provisions concerning operation of the 2001 amendments referred to at [20] above (cl 3 of Pt 18C of Sch 6) provided:
“Lump sum compensation amendments
The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows: …”
The exceptions had no relevance to the facts in Greene, nor are they relevant in the present matter, and need not be reproduced.
The question before the Arbitrator in Greene was whether Mr Greene’s entitlement to s 66 lump sum compensation as assessed by reference to the pre-2001 amendment method (Table of Maims) had survived the passage of the 2012 amendments. If the amended provisions had application to his claim, it was, as argued by the employer, defeated by the new threshold requirements of s 66.
Whilst the employer had not specifically submitted that the 2012 amendments (including savings and transitional provisions found in regulations passed subsequently) had impliedly repealed cl 3 of Pt 18C of Sch 6, the Arbitrator treated the argument as being tantamount to such a submission.
Arbitrator Sweeney noted the relevant savings and transitional provisions which were included in the 2012 amendments and regulations. The primary provision concerning lump sum compensation is to be found in Sch 6 Pt 19H cl 15 which provides:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 15, noted immediately above, must be read subject to cl 11 of Sch 8 to the Workers Compensation Regulation 2010 (the 2010 Regulation) which had been enacted subsequently. I note that that clause has been found by the High Court of Australia, in Goudappel (a judgment delivered by the Court after conclusion of the proceedings in Greene), to have been within power and validly passed. That clause provides:
“11 Lump sum compensation
(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
I note that a general provision concerning application of the amendments is to be found in cl 3 of Pt 19H of Sch 6 which provides:
“3 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
The existence of those transitional provisions gave rise to the question, as stated by Arbitrator Sweeney (at T9.31), as to “whether reading the [2012 amending Act] and transitional provisions as a whole can [it] be said that the transitional provisions consequent upon the 2012 Act impliedly repeal [cl 3 of Pt 18C of Sch 6]?” The Arbitrator determined that such was not the legislative intent.
The conclusion reached by the Arbitrator was primarily founded upon a consideration of the text of the legislation, its context and the fact that the legislature had “a clear opportunity” to expressly repeal cl 3 of Pt 18C of Sch 6, but had not done so. He further stated (at T11.6) that “the clause was left in Part 18 [sic, 18C] and in my opinion it must be given some work to do”.

The Arbitrator noted that there was no possibility that the amended s 66 could be transposed upon the preserved form of s 66, as such “results in a nonsense”. No clear “expression of legislative intent” to abolish cl 3 of Pt 18C was found by the Arbitrator.
Arbitrator Sweeney took into account two further matters which fortified his conclusion (at T12.16) that “the previous dispensation of Section 66 remains extant and that Clause 3 of Part 18C of Schedule 6 still has some work to do”.
Those matters concerned the enactment of cl 18 and cl 19 of Sch 8 to the 2010 Regulation. Those clauses provide:
“18   Lump sum compensation for hearing loss—injury before 1.1.2002
Section 69A of the 1987 Act (as in force before its repeal by the 2012 amending Act) continues to apply, despite its repeal, to a claim for compensation made on or after 19 June 2012 for loss of hearing resulting from an injury received before 1 January 2002.
19     Only one claim for permanent impairment compensation—injuries received before 1.1.2002
(1)     In the application of section 66 (1A) of the 1987 Act to a claim resulting from an injury received before 1 January 2002:
(a)a reference in that subsection to permanent impairment compensation is taken to be a reference to lump sum compensation payable under Division 4 of Part 3 of the 1987 Act (as in force immediately before 1 January 2002), and
(b)a reference in that subsection to permanent impairment is taken to be a reference to an injury of a kind to which any such lump sum compensation applies.
(2)     Section 66 (1A) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.”
As to cl 18, I note that reference is made to s 69A at [25] above. Arbitrator Sweeney stated (at T13.2) that the transitional clause:
“… makes it as clear as day that the legislature understood that there would be claims made in respect of injuries occurring before 1 January 2002 would [sic, which would] be compensable for less than 10% whole person impairment. In other words it would be completely unnecessary to introduce or re-introduce a regulation stating compensation for industrial deafness was not payable for more than 6% binaural hearing loss if the new version of Section 66 applied which would preclude any worker obtaining compensation for hearing loss unless he had whole person impairment of 11% which equates roughly to binaural hearing loss of 21%. That transitional regulation introduced on 21 December 2012 is in my opinion particularly telling as to the legislative intent and it is not consistent with any implied repeal of the pre-31 December 2001 provisions.”
Arbitrator Sweeney characterised cl 19 as a Henry VIII clause and observed (at T14.6):
“The salient feature however of the regulation is that it assumes, in my opinion, that Section 66(1A) as introduced by the amendments of the Workers Compensation [Legislation Amendment] Act 2012, the 2012 Act, did not extend to injuries prior to the 31 December 2001 or, more correctly the 1 January of 2002. However it merely attempts to repair that situation in respect of Section 66(1A). It says nothing at all about Section 66. That again seems to me to be clearly supportive of a legislative intention that Section 66(1) as opposed to Section 66(1A) should continue to exist in two distinct forms, that the two regimes should continue to exist and that Schedule 6, 18C, Clause 3 still has some work to do.”
A determination was made by the Arbitrator in Greene that the claim was not subject to the amendments to Pt 3, Div 4 of the 1987 Act made by Sch 2 to the 2012 amending Act.
On appeal to Roche DP, the Arbitrator’s reasoning was challenged by the employer. The Deputy President identified the relevant issue as follows (at [119]):
“The critical issue is the effect of cls 3 and 15 of Pt 19H, in circumstances where those clauses are in apparent conflict with cl 3 of Pt 18C. The answer to this question depends on whether cl 3 of Pt 18C has been impliedly repealed by the 2012 amending Act. The Arbitrator concluded that it has not and that the clause ‘must be given some work to do’ (T11.7).”
The Deputy President agreed with the Arbitrator’s conclusion.
The Deputy President considered submissions and the Arbitrator’s reasons between [120] and [136], and expanded his reasons for his acceptance of the Arbitrator’s conclusion between [137] and [144] of his Reasons. He proceeded to state (at [145]):
“In the present matter, the 2012 scheme is capable of sensible operation by applying it to injuries received on and after 1 January 2002 (where the claim was made on or after 19 June 2012) and applying the pre-2002 scheme, as saved by cl 3 of Pt 18C, and subject to cl 19 of Sch 8 (assuming that that clause was validly made), to injuries received before that date. Indeed, that result is not only sensible, it is consistent with the intention of the legislation, as gleaned from the words used in the various provisions referred to above.”
The observation was made by the Deputy President that entitlement to lump sum compensation under s 66 is “a significant statutory entitlement” and that (at [149]):
“…the repealing or limiting of such a right requires clear and unambiguous language (Buck v Comcare [1996] FCA 1485; 66 FCR 359). With regard to the right to lump sum compensation for hearing loss injuries received before 1 January 2002, the legislature has not used clear and unambiguous language that points to a repealing of those rights. Rather, by not repealing cl 3 of Pt 18C, and by introducing cls 18 and 19 to Sch 8, and the other transitional provisions referred to above, it has indicated an intention that those injuries should continue to be assessed and compensated under the Table of Disabilities, subject to the one claim restriction.”
An order was made confirming the Arbitrator’s determination.

THE RELEVANCE OF GREENE TO ISSUES RAISED IN THE PRESENT APPEAL

The appellant has provided lengthy and detailed written submissions in support of each “ground” relied upon. As earlier noted, those “grounds” were, in substance, directed to suggested errors found in the appeal decision of Greene.
It is important to note that the question raised in the present matter is what, if any, consequences flow from the enactment of the 2012 amendments to the 1987 Act and regulations so far as Mr Bailey’s right to a s 67 lump sum is concerned. Whilst the matter of Greene addressed those amendments and the savings and transitional provisions (cl 3 of Pt 18C of Sch 6) which had, to some extent, protected Mr Greene’s rights to s 66 lump sum compensation from the consequences of the 2001 and 2012 amending Acts, the Commission, in that matter, was not concerned with, and thus did not address, the question of the consequences, if any, concerning s 67 entitlement.
It is, in my opinion, thus clear, notwithstanding the parties’ agreement before the Arbitrator that Greene was “on all fours” with the present matter, that Greene does not, expressly or by necessary implication, address the question of the preservation or otherwise of s 67 entitlement concerning injury which had been received before 1 January 2002 where a claim is first made on or after 19 June 2012. That fact has not been acknowledged by the Arbitrator in the present matter.
Arbitrator Bell was not bound, nor is the Commission on this appeal, by the concession made by each party as to Greene being “on all fours” with the present case (see Comcare v Fiedler [2001] FCA 1810 per the Court at [39]). Whilst there is no assertion made by the appellant that the Arbitrator’s reasons were relevantly inadequate (indeed both parties accepted the brief manner in which the Arbitrator addressed the dispute) I have formed the view that the Arbitrator has erred in treating Greene as binding authority concerning the s 67 question. Fortunately, the submissions advanced by each party, particularly those supplementary oral submissions put at the hearing of the appeal, address the questions which presently require attention.

DISPOSITION OF THE APPEAL

It should be noted at the outset that both parties accept that the 2012 amendments did not impliedly repeal cl 3 of Pt 18C of Sch 6. I have, on an earlier occasion (in Michell Australia Pty Ltd v Fordham [2015] NSWWCCPD 15 at [46]), expressed my agreement with the reasoning and conclusions reached by Roche DP in Greene concerning the non-repeal of cl 3 and the continued relevance and application of the Table of Disabilities in the case of a s 66 claim arising from an injury received before the 2002 amendments. However, for the reasons stated below, I do not consider that, on the present facts, the continuing existence of cl 3 has the effect, as argued by Mr Bailey, of preserving his entitlement to a s 67 lump sum following the repeal of that section in 2012.
Mr Bailey’s submissions when dealing with grounds one and two correctly, in my view, identify the relevant amendments addressed by cl 3 of Pt 19H of Sch 6 (noted at [34] above) as being those provided by cls 5, 6, 7 and 13 of Sch 2 to the 2012 amending Act. Clause 13 made provision for the repeal of s 67.
When developing argument concerning the operation of the savings and transitional provisions, it is put by Mr Bailey that, in the case of a pre-2002 injury claim, such was brought, not pursuant to s 66 or 67 but “pursuant to cl 3 of Pt 18C” (at [8] of written submissions). That argument must be rejected given my view that such a claim made before 19 June 2012 was able to be brought pursuant to s 66 or s 67, albeit in those terms, by reason of the date of injury, as preserved by the provisions of cl 3 of Pt 18C.
Mr Bailey’s claim was, as earlier noted, not made until December 2014 at which time s 67 had been repealed. Any right to lump sum compensation for pain and suffering had, subject to the savings and transitional provisions earlier discussed, been expunged by the 2012 amending Act. Mr Bailey’s claim was, in my opinion, defeated by the terms of cl 15 of Pt 19H of Sch 6.
Whilst, as found in Greene, cl 3 of Pt 18C of Sch 6 survived the 2012 amendments, that provision, thereafter, has effect as stated by Roche DP as noted above at [45]. In my opinion, given the issue before the Commission in that matter, that statement may be taken as determining that the work to be done by cl 3 is limited to preservation of s 66 entitlement in accordance with the pre‑2001 form of that section subject to the provisions of cl 18 and cl 19 of Sch 8 to the 2010 Regulation.
Entitlement to s 67 benefits does subsist in circumstances where an exception is made by Pt 6 of Sch 6 to the 1987 Act or the Regulations: cl 3(1) of Sch 6 of Pt 19H. Such exceptions are expressly made by the terms of cl 11 of Sch 8 to the 2010 Regulation as well as by cls 25 and 26 of Pt 19H. In the case of injury suffered by police officers, paramedics and fire fighters (cl 25) and coal miners (cl 26), the 2012 amendments do not apply. There is no equivalent provision concerning pre-2002 injuries. No comfort can be gained by Mr Bailey from the continuing existence of cl 3 given, firstly, that the provision does not appear in Pt 19H or in the Regulations; and, secondly, given the terms of that clause, they being merely that the 2001 amending Act amendments do not apply to pre-2002 injuries.
When reaching the conclusion expressed at [53] above, I have had regard to the decision of the plurality in Goudappel concerning the relevance of cl 11 where it was stated by their Honours (at [29]):
“The purpose of cl 11, made pursuant to cl 5(4), was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66. Its purpose was patently not beneficial.”
It was argued by Mr Bailey that Goudappel may be distinguished from the present case given that the Court was not there dealing with an injury which occurred before 2002, nor was the question of s 67 entitlement in issue. Those arguments must be rejected given the absence of any relevant exception as noted at [55] above, and given that cl 11 makes express reference to “section 67”.
Mr Bailey further argues that, given an absence of any reference in the 2012 amending Act to cl 3 of Pt 18C of Sch 6, entitlement pursuant to that provision is in some way “isolated” (T62, 27 July 2015) and is “not affected by cl 15”. Given the decision in Greene and my view as to the limited work to be done by cl 3 of Pt 18C of Sch 6 as expressed at [54], that argument must be rejected.
Reliance was placed by Mr Bailey upon the protective provisions of s 30(1)(c) of the Interpretation Act 1987 when argument was advanced that the 2012 amending Act should not be taken to “retrospectively” adversely affect his accrued right to a s 67 lump sum.
In my opinion, s 30(1)(c) must, as demonstrated by the reasoning of the plurality in Goudappel, be read together with s 5(2) of that Act which addresses the question as to the existence of a “contrary intention” expressed by the legislature. In my view such contrary intention is to be found in cl 15 (read with cl 11). As earlier stated, at [53] above, Mr Bailey’s claim is caught by the relevant repeal.

DECISION

The order made by the Arbitrator as found in [1] of the Certification of Determination dated 15 April 2015 is revoked and the following order is made in its place:
“1. Award for the respondent in respect of the claim brought pursuant to s 67 of the Workers Compensation Act 1987.”

Kevin O'Grady
Deputy President

19 August 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE