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 Brothers Pty Ltd v Grundy A17/1997 as authority for the proposition that, to be valid, a notice must contain the information required by s86(3A) and that the absence of a valid notice makes any subsequent termination of weekly payments unlawful.

In the present case, the respondent employer sought to terminate weekly payments and gave notification to the applicant in a letter dated 26 February 1997 which concluded with the following sentence:

"We confirm you have the right to refer this termination of your weekly benefits to the Tribunal for determination."

The point was taken before Mr Commissioner Carey that this notification did not include notification of the time limit which applied to the worker's right to refer the matter to the Tribunal.  Mr Carey concluded, as I think I have already mentioned, that there was no obligation upon the employer to mention the time limit and, consequently, that the notice from which I have just read was a valid notice. 

I have no doubt that this conclusion was incorrect. Section 86(3A) requires that the worker be informed of "the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination". It seems to me that it is an incomplete compliance with that subsection unless the true nature and extent of the right is notified to the worker at the time that he is served with the appropriate documentation. His right is clearly a very limited right. It is no longer a right at large as it was before 1995; it is a right now to refer the matter to the Tribunal but only within a period of sixty days. There is no power in the Act to extend that period of time, so once that time has expired, the worker's "right" under s86 also expires. Workers compensation legislation is, generally speaking, remedial legislation to confer rights to compensation upon workers who are incapacitated as the result of work related injury or disease. That philosophy has been expressed time and again by courts of high authority, including the High Court of Australia and, it appears to me, that my interpretation of s86(3A) is perfectly consistent with the general legislative philosophy.

It is my view that this appeal should be upheld.  It is accordingly determined that the notice of termination by the employer was an invalid notice and consequently the employer will be ordered to reinstate weekly payments to the worker as from the date of the purported termination.  The respondent will be ordered to pay the applicant's taxed costs of the appeal.  I will also grant a certificate under the Appeal Costs Fund Act in respect of the costs of the appeal.  The effect of that is set forth in the Appeal Costs Fund Act, s9.