Darwin Ship Repair and Engineering Pty Ltd v Cranage

[2000] NTSC 60

Darwin Ship Repair & Engineering Pty Ltd v Cranage [2000] NTSC 60

PARTIES:DARWIN SHIP REPAIR & ENGINEERING PTY LTD

v

CRANAGE, Mark James

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:LA 14 of 2000 (20007561)

DELIVERED:  24 JULY 2000

HEARING DATES:  8 JUNE 2000

JUDGMENT OF:  MARTIN CJ

CATCHWORDS:

Appeal – general principles – interference with discretion of Court Below.

Workers Compensation – assessment and amount of compensation – weekly earnings – commutation – whether to record the Memorandum of Agreement.

Work Health Act 1986 (NT), s 74 and s 108.  See also s 65, s 65(2), s 65(3), s 68 and s 74(1)(b)
Work Health Court Rules, r 15.05 and Pt 15

Sanders v Northern Territory of Australia (1996) 5 NTLR 149, followed.

REPRESENTATION:

Counsel:

Appellant:G Roussos

Respondent:  R Jobson

Solicitors:

Appellant:Cridlands

Respondent:  Rob Jobson, Barrister & Solicitor

Judgment category classification:      B

Judgment ID Number:  mar20020

Number of pages:  3

Mar20020

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Darwin Ship Repair & Engineering Pty Ltd v Cranage [2000] NTSC 60
No. LA 14 of 2000 (20007561)

BETWEEN:

DARWIN SHIP REPAIR & ENGINEERING PTY LTD

Appellant

AND:

MARK JAMES CRANAGE

Respondent

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 24 July 2000)

1. The respondent was entitled to and was receiving regular payments for weekly compensation from the appellant under s65 of the Work Health Act 1986 (NT).  Pursuant to s 74 of the Act, the parties sought the authorisation of the Work Health Court to commute those payments.  They entered into an agreement and submitted it together with affidavit evidence in support of the application to that Court.  The evidence showed all of the requirements of s 74(1)(b) as to which the Court must be satisfied.

1. The material before the Court regarding the respondent’s loss of earning capacity showed his normal weekly earnings indexed in accordance with s 65(3), and an amount which upon the evidence he was reasonably capable of earning in a week, taking into account the criteria in s 65(2).  The commuted sum agreed to be paid by the appellant to the respondent was in accordance with that evidence.

2. The learned Magistrate before whom the application came, without hearing the parties, directed the Registrar not to record the Memorandum of Agreement (s 108 of the Act and Pt 15 of the Work Health Court Rules).  The reasons for that direction were:

   “I am not satisfied that the worker has a current ability to earn $575 per week.  Once he has actually successfully started work as a mortgage adviser and actively started to make earnings I would reconsider this agreement.”

3. The grounds of the appeal are that his Worship erred in law in giving that direction in that he held that it was a precondition to his approving the agreement that the respondent must actually have started work and must actually start to make earnings.  The parties were agreed that the appeal should be allowed.  In my opinion they were right to do so.

4. The essence of the right to weekly compensation for loss of earning capacity under s 65 lies in the worker’s capacity to earn.  That capacity may be demonstrated in actual employment or theoretically.  Many is the case in which there is a dispute between employer and worker as to the worker’s capacity to earn where there is no evidence of actual employment to demonstrate that capacity.

5. There is a requirement that the capacity be assessed paying regard to the most profitable employment, if any, reasonably available to the worker (s 65(2)).  The Court is to have regard as well to the matters referred to in s 68 which include the potential availability of such employment (e).  Availability of, can be as relevant as participation in, employment.

6. His Worship’s only stated reason for directing the Registrar not to register the agreement shows an error of law.

7. These are the reasons for my decision to reverse the decision of the learned Magistrate appealed against.  The appellant agree to pay the respondent’s costs.

8. Before leaving this appeal, I notice that a different Magistrate in the matter of Sanders v The Northern Territory of Australia (1996) 5 NTLR 149 also directed that an agreement not be registered without hearing the parties. The result in each case has been the bringing of a successful appeal to this Court with attendant cost and delay. The rights of the parties are adversely affected until the appeal can be determined. Rule 15.05 of the Work Health Court Rules empowers the Court before giving a direction under s 108(3), to record or not record an agreement, to call the parties in to provide further information and make further submissions.  It is at least possible that had that power been used, the adverse consequences of the directions given in these two cases would have been avoided.

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