Cetel Communications v Parker - [2014] VSC 318

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 04490

CETEL COMMUNICATIONS PTY LTD	Appellant
v
TERRANCE PARKER	Respondent

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 JUNE 2014
DATE OF JUDGMENT:	15 JULY 2014
CASE MAY BE CITED AS:	CETEL COMMUNICATIONS v PARKER
MEDIUM NEUTRAL CITATION:	[2014] VSC 318

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Administrative Law – Judicial Review – Appeal from magistrate under s 109 of the Magistrates’ Court Act 1989 – Proper construction of s 114 (2A) of the Accident Compensation Act 1985 – Whether error of law - Accident Compensation Act 1985 s 114, 114(1), 114(1A), 114(2A).

Accident compensation – Weekly payments - Proper construction of s 114 (2A) of the Accident Compensation Act 1985 – Whether power to determine pursuant to s 114(2A) not to pay the worker weekly payments is subject to s 114(1A) and limited to circumstances where the worker is receiving weekly payments as at the date of the change in entitlements of the worker - Accident Compensation Act 1985 ss 114, 114(1), 114(1A), 114(2A).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr MF Fleming QC with Mr R Kumar	Lander & Rogers
For the Respondent	Mr PA Jewell QC with Mr ND Horner	Simon Parsons & Co.

HIS HONOUR:

The issue

The respondent, Terrance Parker, (‘the worker’) was employed by the appellant, Cetel Communications Pty Ltd (‘the employer’). The Magistrates’ Court of Victoria at La Trobe Valley dismissed the worker’s complaint that, having been constructively dismissed from his employment, his employer was not entitled to terminate weekly payments for compensation.

This proceeding is an appeal brought under s 109 of the Magistrates’ Court Act 1989. The questions of law raised on the appeal are:

(a)whether the learned magistrate erred in construing ss 114(1A) and 114(2A) of the Accident Compensation Act 1985;
(b)whether the learned magistrate erred in law in his construction of s 114(1A) of the Act by holding on the basis only that the worker was not in receipt of weekly payments as at 9 May 2012 that the Victorian Workcover Authority’s claim agent, Allianz, did not have power to determine pursuant to s 114(2A) not to pay the worker compensation in the form of weekly payments from that date; and
(c)whether the learned magistrate erred in law by not holding that s 114(1A) of the Act is limited in its application to s 114(2)-(13) to circumstances where the worker is receiving weekly payments as at the date of the change in entitlements of the worker to weekly payments.

Background

The facts are not in dispute and may be briefly stated. The worker’s claim for weekly compensation payments and medical and like expenses, following on an injury to his cervical spine and neck said to have occurred in the course of his employment with the employer on 18 November 2011, was accepted by the Authority. In due course, the worker returned to work but his employment ceased on 9 May 2012. At…

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.

Continue reading Cetel Communications v Parker

Details

AGLC: Cetel Communications v Parker [2014] VSC 318
Case: [2014] VSC 318
Decision Date

CaseChat Overview and Summary

The appeal in Cetel Communications v Parker involved the interpretation of sections 114(1A) and 114(2A) of the Accident Compensation Act 1985, focusing on the power to terminate or alter weekly payments for workers' compensation. The case centred on whether the power under s 114(2A) to determine not to pay compensation in the form of weekly payments was limited to circumstances where the worker was receiving weekly payments as at the date of the change in entitlements. The respondent, Terrance Parker, argued that the Victorian Workcover Authority's claim agent, Allianz, did not have the power to terminate his weekly payments because he was not receiving them at the relevant time. Conversely, the appellant, Cetel Communications, contended that the statutory language permitted the termination of payments even when the worker was not receiving them, as long as they would have been entitled to them.

The court held that the magistrate had erred in his construction of the statutory provisions. It was determined that section 114(1A) did not limit the application of section 114(2A) to circumstances where the worker was receiving weekly payments. The court emphasised that the statutory language of section 114(2A) expressly permitted the termination of payments in the specified circumstances, regardless of whether the worker was currently receiving them. The court further found that the legislative history and purpose of the amendments did not support the imposition of such a limitation. The magistrate's error in interpreting the statute led to the conclusion that Allianz had the power to determine not to pay weekly payments from 9 May 2012, the date of the change in the worker's entitlements. Consequently, the appeal was allowed, the judgment of the primary court was set aside, and the complaint was dismissed. The court also considered but ultimately rejected the respondent's argument for a remitter to allow the rehearing of the case on its merits, ruling that the proper course was for the worker to seek reinstatement through a new proceeding if the appellant's determination was adverse.

Orders