Catford v Laminex Group Pty Ltd - [2023] NTCA 7

CITATION:Catford v Laminex Group Pty Ltd [2023] NTCA 7

PARTIES:CATFORD, Joanne Claire

v

LAMINEX GROUP PTY LTD

TITLE OF COURT:  NORTHERN TERRITORY COURT OF APPEAL
JURISDICTION:  APPEAL from SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:No. AP 1 of 2022 (22201333)
DELIVERED:  15 May 2023
HEARING DATE:  30 May 2022
JUDGMENT OF:  Southwood, Barr and Burns JJ
CATCHWORDS

WORKERS COMPENSATION – Appeal to Court of Appeal from decision of Supreme Court judge on appeal from Work Health Court – Whether appeal judge erred in law in finding that primary judge erred in law in determining worker’s ‘most profitable employment’ for purposes of s 65(2) (b)(ii) Return to Work Act 1986 – Whether appeal judge erred in law in finding that primary judge erred in law in dismissing the employer’s Counterclaim – Held primary judge did not err in law in the construction of s 65(2)(b)(ii) – Held primary judge did not err in law in finding that employer had not discharged onus to prove any amount which the worker was reasonably capable of earning in work she was capable of undertaking – Appeal allowed in part
WORKERS COMPENSATION – Entitlement to and liability for payment of compensation – Weekly payments – Cessation of payments by employer – Whether Notice of Decision cancelling payment of weekly benefits valid – Appeal judge held that primary judge erred in law in finding notice of decision invalid – Held no error of law by appeal judge – Notice of decision valid.
Return to Work Act (NT) s 3(1), s 65(2), s 65(6), s 68, s 69, s 104, s 116
Work Health Administration Act 2011 (NT) s 14
Work Health Court Rules 1999 (NT) r 9.05
AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185; Disability Services of Central Australia v Regan (1998) 8 NTLR 73; Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1, followed
NT TAB Pty Ltd v Dickin (2004) 14 NTLR 99; Barbaro v Leighton Contractors Pty Ltd (1980) 44 FLR 204; Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, 41 NTLR 168, 335 FLR 350; Cardiff Corporation v Hall [1911] 1 KB 1009; Laminex Group Pty Ltd v Catford [2021] NTSC 92, referred to
REPRESENTATION:
Counsel:
Appellant:M Grove
Respondent:  D McConnel SC
Solicitors:
Appellant:Ward Keller
Respondent:  HWL Ebsworth Lawyers
Judgment category classification:    B
Number of pages:  67

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Catford v Laminex Group Pty Ltd [2022] NTCA 7
No. AP 1 of 2022 (22201333)
BETWEEN:
JOANNE CLAIRE CATFORD

Appellant
AND:
LAMINEX GROUP PTY LTD

Respondent

CORAM:SOUTHWOOD, BARR and BURNS JJ

REASONS FOR JUDGMENT
(Delivered 15 May 2023)
Southwood J

I agree, for the reasons given by Barr J, that the appeal should be allowed in part; that orders be made as proposed by his Honour at [53] below; and that the parties be heard as to the making of final orders.
Barr…

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: [2023] NTCA 7
Decision Date: 15 May 2023

CaseChat Overview and Summary

Joanne Claire Catford, the appellant, appealed against a decision of the Supreme Court of the Northern Territory (NT), which set aside an order of the Work Health Court and remitted the matter to the Work Health Court for rehearing. The appeal was heard by Southwood, Barr and Burns JJ. The appellant’s grounds of appeal related to the Supreme Court’s finding that the Work Health Court had erred in finding that the employer’s notice cancelling weekly payments of compensation was invalid, and in finding that the employer had not discharged its onus of proving that the appellant was reasonably capable of earning any amount in work she was capable of undertaking. The appeal judge held that the Supreme Court erred in finding that the Work Health Court had erred in those respects, and did not err in finding that the employer’s notice was valid. In relation to the onus of proof, the appeal judge held that the Work Health Court had erred in law in finding that the employer had to identify a specific job for the appellant to establish the appellant’s most profitable employment. In relation to the employer’s onus of proof, the appeal judge held that the Work Health Court had not erred in finding that the employer had not discharged its onus of proving that the appellant was reasonably capable of earning any amount in work she was capable of undertaking. The appeal judge held that the employer had the onus of proving that the appellant was not totally incapacitated by reason of her compensable injury. The appeal judge further held that the employer had not discharged that onus, and that the appellant was deemed to be totally incapacitated for work. The appeal judge’s reasoning was based on an incorrect interpretation of the Return to Work Act 1986 (NT). The appeal judge incorrectly held that the employer had to identify a specific job to establish the appellant’s most profitable employment. The appeal judge also incorrectly held that the employer had the onus of proving that the appellant was not totally incapacitated by reason of her compensable injury. The correct interpretation of the Return to Work Act is that the employer has to prove that the appellant was capable of earning some amount if she were to engage in the most profitable employment available to her, and that the appellant was not part of an ‘odd lot’ whose residual capacity for employment could not translate into an ability to earn in the labour marketplace. In this case, the evidence before the Work Health Court did not establish that the appellant’s residual capacity for work enabled her to earn anything in any employment reasonably available to her. The appeal was allowed in part and the matter was remitted to the Work Health Court for rehearing.

Orders