Cram Fluid Power Pty Ltd v Green - [2014] NSWWCCPD 84

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed* – Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250
CITATION:	Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84
APPELLANT:	Cram Fluid Power Pty Ltd
RESPONDENT:	Michael George Green
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-999/14
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	8 August 2014
DATE OF THE APPEAL HEARING	25 November 2014
DATE OF APPEAL DECISION:	17 December 2014
SUBJECT MATTER OF DECISION:	Application of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012; cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; whether the amendments apply only to claims that are “pending” or “on foot”; Goudappel v ADCO Constructions Pty Ltd[2013] NSWCA 94; ADCO Constructions Pty Ltd v Goudappel[2014] HCA 18 considered and applied; whether the limitation on claims referred to in s 66(1A) of the Workers Compensation Act 1987 applies only in respect of claims made after 19 June 2012
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr S Flett, instructed by Hicksons
Respondent:	Mr M Boulton, instructed by RMB Compensation
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 8 August 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns the effect of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the amending Act) and the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation) on workers’ entitlements to pursue subsequent claims for permanent impairment compensation under s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act).
In particular, the issues concern whether the transitional provisions, which are expressed to exempt certain claims from the application of the amending Act, apply only to claims that are pending or unresolved as at 19 June 2012. The appeal also concerns the question of whether the limitation of “only one claim” contained in s 66(1A), is intended to mean one claim in respect of an injury or one claim following the introduction of the amending Act and amending Regulation.
The question requires a consideration of the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2), the transitional provisions introduced by the amending Act and the amendments to the Workers Compensation Regulation 2010 (the 2010 Regulation).
This appeal also challenges the correctness of the decision in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield), where Deputy President Roche held that the amendments to s 66 introduced by the amending Act, do not apply to workers who had specifically sought permanent impairment compensation prior to 19 June 2012.

BACKGROUND

Mr Green was employed by Cram Fluid Power Pty Ltd (the appellant) as a maintenance fitter. On 24 May 2005, Mr Green injured…

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: [2014] NSWWCCPD 84
Decision Date: 17 December 2014

CaseChat Overview and Summary

In the case of Cram Fluid Power Pty Ltd v Green, the primary issue before Caulfield Deputy President Roche was the application of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012, specifically clauses 15 of Part 19H of Schedule 6 and 11 of Schedule 8 to the Workers Compensation Act 1987, to workers' compensation claims. The central legal question revolved around whether these amendments applied only to claims that were "pending" or "on foot" at the time of the amendment's introduction or whether they applied more broadly to all claims made after a certain date. This issue was addressed through a consideration of the High Court decisions in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1) and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2).

The Deputy President applied the reasoning from these cases to the facts of the present matter. He noted that the Court of Appeal in Goudappel No 1 had determined that the term "a claim" in clause 15 of Part 19H included any claim for compensation made before 19 June 2012, and that clause 11 of Schedule 8 was invalid and did not apply. However, the High Court in Goudappel No 2 overturned this, holding that clause 11 was valid and applied according to its terms. The High Court held that the amendments applied to claims made on or after 19 June 2012, provided the worker had not made a claim specifically seeking compensation under sections 66 or 67 before that date.

Following this reasoning, Deputy President Roche concluded that as Mr Caulfield had specifically sought compensation under section 66 before 19 June 2012, the amendments did not apply to his claim. Consequently, his entitlement to compensation for permanent impairment was not restricted by the new provisions in section 66. This interpretation was deemed to produce the greatest harmony and the least inconsistency with the overall legislation, while also preserving rights accrued before the amendment date.

ORDERS:
1. The Arbitrator’s determination of 8 August 2014 is confirmed.
2. No order as to costs.

Orders

Orders of the court

1. The Arbitrator’s determination of 8 August 2014 is confirmed.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Caulfield Deputy President Roche applied the binding authority from Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1) and Goudappel No 2 to the facts. It is convenient to extract the relevant passages from the Deputy President’s decision (at [31]–[42]):“The Court of Appeal’s decision 31. The Court of Appeal held in Goudappel No 1 that ‘a claim’ in cl 15 of Pt 19H includes any claim for compensation made before 19 June 2012 and that cl 11 of Sch 8 was invalid and did not apply. It followed that, as Mr Goudappel had made a claim for weekly compensation in 2010, the amendments to s 66 introduced by the 2012 amending Act did not apply to his later claim for lump sum compensation, even though he did not make that claim until 20 June 2012.The High Court’s decision 32. In the High Court, there was no challenge to the Court of Appeal’s finding that ‘a claim’ in cl 15 of Pt 19H means any claim. However, overturning the Court of Appeal, the High Court held that cl 11 of Sch 8 is valid and applies according to its terms. 33. The Court therefore held that the amendments to Div 4 of Pt 3 of the 1987 Act (which deal with compensation for non-economic loss) introduced by Sch 2 of the 2012 amending Act apply to claims for compensation pursuant to s 66 of the 1987 Act made on or after 19 June 2012, where ‘the worker has not made a claim specifically seeking compensation under s 66 or s 67 before 19 June 2012’ (emphasis added) ([36]).34. As Mr Goudappel had not made a claim specifically seeking compensation under s 66 or 67 before 19 June 2012, the 2012 amendments applied to him and he had no entitlement to lump sum compensation because his claim did not meet the threshold in the new s 66.The present claim35. The present matter is different. Mr Caulfield ‘specifically sought’ compensation under s 66 prior to 19 June 2012. Given the High Court’s ruling, Mr McManamey submitted, and I accept, that the ‘clear words of the High Court are that the amendments do not apply where the worker has made a claim for s 66 prior to 19 June 2012’. 36. This submission is supported by the following statement by the plurality, French CJ, Crennan, Kiefel, and Keane JJ, at [29]:‘The purpose of cl 11, ... , 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.’37. It is clear, as Mr McManamey contended, that their Honours did not limit the exclusion from the operation of cl 11 to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim (before 19 June 2012) under that section. In other words, the exclusion is not limited to any specific claim. 38. This conclusion is consistent with the combined effect of cl 15 of Pt 19H and cl 11 of Sch 8. This is because, as accepted by the Court of Appeal, and not challenged in the High Court, the amendments do not apply to claims for compensation made before 19 June 2012. 39. As cl 15 must be ‘read subject to’ cl 11, the proper interpretation of the two provisions is that the permanent impairment amendments apply to claims made on and after 19 June 2012, but not where a worker has claimed before that date. However, cl 11 modifies that position to make the amendments apply to claims made before 19 June 2012 but not if the worker made a claim that ‘specifically sought’ compensation under s 66 or 67. 40. It follows that, applying the text of the legislation, having regard to its context and history, as Mr Caulfield ‘specifically sought’ compensation under s 66 before 19 June 2012, the amendments to s 66 in the 2012 amending Act do not apply to him and his claim is entitled to be determined without regard to the restrictions in the new s 66. In other words, he is not caught by the new threshold and not restricted to making only one claim for permanent impairment compensation. 41. It follows that, though this is Mr Caulfield’s second claim for permanent impairment compensation, he is entitled to make the claim. Though the combined value of his claims is over 10 per cent, as the amendments do not apply to him, it would not matter if they were not. 42. The end result ‘produces the greatest harmony and the least inconsistency’ (Australian Alliance Assurance Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135 at 161 per Cooper CJ; T v T[2008] FamCAFC 4; (2008) 216 FLR 365 at 394) in the legislation overall. The interpretation construes the provisions so they are ‘consistent with the language and purpose of all the provisions of the statute’ (Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; 194 CLR 355 at [69]) and in a way that preserves rights accrued before 19 June 2012, except where the legislature has used clear language to remove those rights, as it did with respect to workers in Mr Goudappel’s situation.”

Ratio Decidendi

Legal Principle Established

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