Bowerman, Brian Royce v CSR Humes Pty Ltd - [1998] TASSC 69

69/1998

PARTIES:  BOWERMAN, Brian Royce
  v
  CSR HUMES PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 31/1997
DELIVERED:  11 June 1998
HEARING DATE/S:  11 June 1998
JUDGMENT OF:  Wright J

CATCHWORDS:

Workers Compensation - Assessment and amount of compensation - Cessation of payments - Procedure - Worker's right to refer the termination or reduction of weekly payments to the Tribunal for determination - Employer's notice to worker of worker's right - What constitutes a valid "notice" - Reinstatement of weekly payments.
Workers Rehabilitation and Compensation Act 1988 (Tas), s86(3A), (4).
Jones v Jones & Anor (1996) 6 Tas R 273; Swetnam Brothers Pty Ltd v Grundy A17/1997, followed.
Aust Dig Workers Compensation [287]

REPRESENTATION:

Counsel:
           Applicant:  S Taglieri
           Respondent:  A J Dillon
Solicitors:
           Applicant:  Phillips Taglieri
           Respondent:  Archer Bushby

Judgment category classification:
Court Computer Code:
Judgment ID Number:  69/1998
Number of pages:  2

Serial No 69/1998
File No LCA 31/1997

BRIAN ROYCE BOWERMAN v CSR HUMES PTY LTD

REASONS FOR JUDGMENT WRIGHT J
(GIVEN ORALLY) 11 June 1998

What is before me is a short, but important, issue of construction arising under the workers compensation legislation. In particular there is a need to consider whether or not the requirements of the Workers Rehabilitation and Compensation Act 1988, s86(3A) require an employer who wishes to reduce or terminate a worker's weekly payments to inform the worker at the time of giving notice of that intent that the worker's right to refer the issue to the Tribunal is limited to his so doing within a period of sixty days as required by the Act, s86(4). There is no direct precedent to which counsel have been able to refer which assists in the resolution of this question. It is of some significance to note, as Ms Taglieri has pointed out, that before the 1995 amendments to the Workers Compensation Act, there was no obligation upon an employer to advise a worker of his right to refer the matter to the Tribunal but, equally, there was no time limit upon a worker who sought to challenge the course proposed by his employer. So we have, in the 1995 amendments, both the insertion for the first time of an obligation upon the employer to notify the worker of his right to refer the proposed termination or reduction of weekly payments to the Tribunal for determination and, in addition, a limitation on the worker who seeks to exercise that right to "a period of sixty days from the date on which the weekly payments were terminated or reduced."
Now, Mr Commissioner Carey, who constituted the Tribunal on the present occasion, took the view that there was no need for an employer seeking to terminate or reduce payments to advise the worker against whom he was seeking to take that course of the sixty day time limit imposed by s86(4). Mr Carey correctly referred to the decisions of Jones v Jones & Anor (1996) 6 Tas R 273 and Swetnam…

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

Case: [1998] TASSC 69
Decision Date: 11 June 1998

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Brian Royce Bowerman, the applicant, appealed against CSR Humes Pty Ltd, the respondent, regarding the assessment and amount of compensation under the Workers Rehabilitation and Compensation Act 1988. The core dispute centred around the cessation of weekly compensation payments and the adequacy of the respondent's notification to the applicant of his right to refer the termination of payments to the Tribunal for determination. Specifically, the applicant contended that the notice provided by the respondent did not adequately inform him of the sixty-day period within which he could challenge the termination of his weekly payments, as required by the Act.

The legal issue before the court was whether an employer, when seeking to reduce or terminate a worker's weekly compensation payments, must inform the worker of the sixty-day limit within which the worker can refer the matter to the Tribunal. This question was pivotal because the validity of the employer's notice and the subsequent cessation of payments hinged on the interpretation of s86(3A) and s86(4) of the Act. The court had to determine if the notice provided by the employer was complete and sufficient under the statutory requirements.

Wright J concluded that the respondent's notice to the applicant did not comply with the statutory obligations as it failed to mention the sixty-day time limit within which the applicant could refer the termination of payments to the Tribunal. The court found that the notice was invalid because it did not fully inform the applicant of his right as stipulated in s86(3A). Consequently, the court determined that the appeal should be upheld, rendering the notice invalid and ordering the respondent to reinstate weekly payments to the applicant from the date of the purported termination. Additionally, the respondent was ordered to pay the applicant's taxed costs of the appeal, and a certificate was granted under the Appeal Costs Fund Act to cover the costs of the appeal.

Orders