Della-Flora v Wrac of SA No. DCCIV-97-991 Judgment No. D3768

[1998] SADC 3965

RUDY DELLA -FLORA V WORKERS REHABILITATION AND COMPENSATION CORPORATION OF SOUTH AUSTRLAIA

CIVIL
JUDGE RUSSELL

At all material times, the plaintiff was employed as a snake handler by Jayfix Enterprises Pty Ltd, trading as Butterfly House.

On 6 February 1996 whilst in the course of his employment the plaintiff was bitten on his right index finger by a snake.

The snake bite resulted in a 50% loss of the use of the plaintiff’s right index finger, a total loss of smell and a 20% loss of taste.

Following the injury the plaintiff made a claim for compensation and that claim was admitted by the defendant and payments of compensation by way of income maintenance were made to the plaintiff.

By letters dated 15 January 1997 and 15 May 1997 the plaintiff claimed lump sum compensation pursuant to s43 of the Workers Compensation and Rehabilitation Act 1986 (‘the said Act’) from the defendant through its claims agent, FAI Workers Compensation, and, after a protracted series of procedures undertaken under the provisions of the said Act the plaintiff was paid a lump sum of $38,635,06 compensation by the defendant pursuant to Section 43 of the said Act.

On 16 June 1997 the defendant, through its claims agent, made a determination to accept the plaintiff’s claims for Section 43 benefits in the sum of $38,635.06.

The plaintiff now claims -

1.. interest on the sum of $38,635.06 from 16 June 1997;

or, in the alternative

2.. a declaration that the plaintiff was entitled to be paid the sum of $38,635.06 as at 16 June 1997;

or, in the alternative

3.. a declaration that the plaintiff was entitled to be paid the sum of $38,635.06 as at 1 August 1997;

or, in the alternative

4.. a declaration that the plaintiff was entitled to be paid the sum of $35,268.75 as at 12 November 1997.

5.. costs of the action.

The parties have submitted a statement of agreed facts in the light of which the issues arising on the summons are to be determined.

Those facts are as follow -

1 ‘The defendant is and was at all material times a Corporation initially established in the State of South Australia pursuant to Section 7 of the Workers Rehabilitation and Compensation Act 1986 (the said Act) and continued pursuant to section 4 of the WorkCover Corporation Act 1994.

2 On 6 February 1996 the plaintiff suffered an injury namely a snake bit in the course of his employment with Jayfix Enterprises Pty Ltd.

3 Jayfix Enterprises Pty Ltd is an employer registered pursuant to section 59 of the said Act.

4 Following the said injury and on 21 February 1996 the plaintiff made a claim for compensation under the said Act.

5 The said claim was admitted by the defendant through its claims agent FAI Workers Compensation and payments of compensation were made to the plaintiff.

6 By letters dated 15 January 1997 and 15 May 1997 the plaintiff made a claim for compensation pursuant to section 43 of the said Act.

7 By letter dated 16 June 1997 the defendant by its agent gave notice to the plaintiff and the plaintiff’s employer that it had determined to accept the plaintiff’s claims for benefits pursuant to Section 43 assessed at the sum of $38,635.06.

8.1The plaintiff, through his solicitors, made demand of the defendant to pay to him the assessed benefit of $38,635.06 by letters dated 20 June 1997 and 12 November 1997 and telephone attendance on the 10 July 1997, 15 July 1997 and 5 August 1997.

8.2The defendant refused to make payment as demanded or at all.

8.3The defendant made no application to the Workers Compensation Tribunal for a stay of the payment of Section 43 benefits to the plaintiff.  (The agreement of this fact does not constitute any admission on the part of the defendant that it was entitled to seek a stay.

9On July 1997 the employer lodged a Notice of Dispute with the Registrar of the Workers Compensation Tribunal (the Tribunal) pursuant to section 90 of the said Act wherein the employer disputed the said determination.

10Pursuant to section 91 of the said Act FAI reconsidered the said determination and on 1 August 1997 confirmed.

11The said Notice of Dispute was thereupon referred to a conciliator of the Tribunal pursuant to section 91A of the said Act.

12A conciliation conference was held on 16 September 1997 at which time the Notice of Dispute was referred onto the Tribunal for arbitration pursuant to section 92D of the said Act.

13After hearing evidence from the plaintiff and submissions from the parties the arbitrator, Mr Robert McCouaig, handed down his decision on 7 January 1998 wherein he affirmed the determination dated 16 June 1997.

14No part to the said Notice of Dispute had lodged an application for Judicial Determination pursuant to Section 94A of the said Act.

15On 23 January 1998 the said sum of $38,635.06 was paid by the defendant through its agent FAI to the solicitors for the plaintiff and received by them on 27 January 1998.’

It is convenient to interpolate here that the significance of the alternative claim in paragraph four arises out of the fact that in its Notice of Dispute dated 9 July 1997 the employer said that its reason for disputing the determination was that the amount proposed ($38,635.06) is excessive.

However, it transpired later in November 1997 that the employer’s dispute really related only to that part of the claim concerning the loss of taste.  The amount assessed by the defendant for that part of the claim was $3,366.31.

I have also been given a book of documents relating to the plaintiff’s claim.

Those documents are as follows -

1 Letter dated 15 January 1997 from plaintiff’s solicitors to FAI Workers Compensation.  That claims the sum of $12,812.50 in respect of the plaintiff’s loss of function of the right index finger.

2 Letter dated 15 May 1997 from plaintiff’s solicitors to FAI Workers Compensation.  That letter claims compensation in the amount of $25,625.00 in respect of the plaintiff’s loss of smell and $5,125.00 in respect of the plaintiff’s loss of sense of taste.

3 The determination of the plaintiff’s claim by FAI Workers Compensation dated 16 June 1997

That determination is for a total entitlement of $38,635.06.  That amount was calculated on the basis of there being 50% loss of use of the right index finger; 100% of the loss of sense of smell and 20% loss of the sense of taste.  The calculations were based upon the prescribed sum applicable under s43 of the said Act when the disability was sustained on 6 February 1996 was $102,600.00 as compared with the figure of $102,500 used as the basis of calculation by the plaintiff’s solicitors.

4 Notice of Dispute dated 9 July 1997 lodged by the plaintiff’s employer.

The notice alleged that the amount of compensation proposed was excessive.

5 Notice dated 1 August 1997 given by the Case Manager confirming the determination dated 16 June 1997 in accordance with s91(3) of the said Act.

6 Letter dated 20 June 1997 from the plaintiff’s solicitors to FAI Workers Compensation giving notice that the plaintiff undertakes not to file a notice of dispute in respect of the determination dated 16 June 1997 and asking that FAI Workers Compensation forward a cheque for ‘the settlement monies’.

7 Letter dated 12 November 1997 from the plaintiff’s solicitors to FAI Workers Compensation advising that the matter came on for a pre arbitration conference on 10 November and that FAI Workers Compensation did not attend by their agent or counsel and that the arbitrator had fixed the hearing for 4 December 1997 at 10 am.

As appears in paragraphs 11 and 12 of the agreed facts the matter had been referred earlier for conciliation pursuant to s91A of the said Act.  The conciliation proceedings, which were conducted in accordance with Division 4 of the said Act did not result in an agreed settlement of the dispute and so, in accordance with s92D of the said Act, the conciliator presiding at the conciliation proceedings referred the dispute into the Tribunal for arbitration.

8 The order and reasons for decision made by the Arbitration Officer (Mr Robert McCouaig) on 7 January1998 were as follow -

I... Affirm the Claims Agents determination dated 16/6/97.

II. Award the worker his costs and disbursement of these proceedings as prescribed by the Act.

III.     Award the respondent employer its costs and disbursements of these proceedings as prescribed by the Act.

The learned Arbitrator also advised the parties of their right to seek a judicial determination if they were dissatisfied with the result of the arbitration in accordance with subrule (9) of Rule 4 of the Workers Compensation Tribunal Rules 1996.  It is to be noted that no application for judicial determination by way of dissatisfaction with the result of the arbitration was made within 14 days of the delivery of the Arbitration Officer’s decision as required by subrule (1) of Rule 5 of the Workers Compensation Tribunal Rules 1996.

The following provisions of the said Act are relevant for the resolution of the issues to be determined on the plaintiff’s claim -

‘43.   (1) Subject to this Act, where a worker suffers a permanent disability and the disability is compensable under this Act, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum. 

(2)... Subject to this section, the lump sum shall be a percentage of the prescribed sum determined by reference to schedule 3. 

* * * * * * * * * *

(6)    Where-

(a).... a compensable disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable disability; and

(b)compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,

there shall be a proportionate reduction in the amount of the lump sum payable under subsection (2) in respect of the disability. 

(7)    Where a worker suffers two or more compensable disabilities arising from the same trauma, the worker shall not be entitled to receive compensation by way of lump sum under subsection (2) in respect of those disabilities in excess of the prescribed sum. 

(7a)   If the amount of compensation to which a worker is entitled under subsection (2) is greater than 55 per cent of the prescribed sum, the worker is entitled to a supplementary benefit equivalent to 1.5 times the amount by which that amount exceeds 55 per cent of the prescribed sum. 

(8)    No payment shall be made under this section unless the worker is living at the expiration of 28 days from the date of the occurrence of the disability and payment shall not be made under this section after the death of the worker. 

(9)    The Governor may, by regulation, amend schedule 3 by adding specified disabilities and fixing in relation to each such additional disability a percentage of the prescribed sum that is to be payable in respect of that disability. 

(10)  A regulation under subsection (9) must not be made except-

(a).... on the recommendation of the Corporation; or

(b)with the approval of the Corporation. 

(11)In this section-

"the prescribed sum" means-

(a)in relation to a disability occurring in 1987-$65 300;

(b).... in relation to a disability occurring in a subsequent year-a sum (calculated to the nearest multiple of $100) that bears to $62 000 the same proportion as the Consumer Price Index for the September quarter of the immediately preceding year bears to the Consumer Price Index for the September quarter, 1985.’

‘Certified copy of judgment or order

87.    The Registrar must, on application by a party to proceedings, issue a certified copy of a judgment or order of the Tribunal in the proceedings. 

Enforcement of judgments and orders

87A. (1)    A certified copy of a judgment or order of the Tribunal may be filed in the District Court. 

(2)    When a certified copy of a judgment or order is filed in the District Court under this section, the judgment or order may be enforced as a judgment or order of the District Court.’

‘89.   In this Part-

"applicant" means the person who lodges a notice of dispute under this Part;

"party" to a dispute means-

(a)     the applicant; and

(b).... the relevant compensating authority; and

(c).... if the dispute is about a compensable disability and the worker who suffered or is alleged to have suffered the compensable disability is not the applicant-the worker; and

(d)if the dispute is about a compensable disability and the employer from whose employment the disability arose or is alleged to have arisen is not the applicant-the employer; and

(e).... a person who has a direct interest in the dispute and has notified the Registrar of the interest;

"relevant compensating authority" in relation to a particular disputed decision means-

(a).... if the decision was made by the Corporation or a body corporate exercising powers delegated by the Corporation-the Corporation or the relevant delegate; or

(b)if the decision was made by an exempt employer-the exempt employer. 

Reviewable decisions

89A.(1)    The following decisions are reviewable-

(a).... a decision on a claim for compensation including-

(i).... a decision redetermining a claim1; or

(ii)    a decision on a claim by the Tribunal, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims2;

(b).... a decision about the nature of rehabilitation services provided, or to be provided, for a worker3;

(c)a decision to vary, suspend or discontinue weekly payments;

(d).... a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;

(e)a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation). 

(2)    However, a decision is not reviewable if declared not to be reviewable by or under this Act. 

1.. See section 53(7) & (7a). 

2.. See section 97B(3)(b). 

3.. Section 28B also provides for the review of a rehabilitation and return to work plan. 

DIVISION 2-NOTICE OF DISPUTE

Notice of dispute

90.    (1)    A person with a direct interest in a reviewable decision (the "applicant") may lodge a notice of dispute with the Registrar. 

(2)... A notice of dispute must be in writing and in the form prescribed by regulation. 

(3)    A person has a direct interest in a reviewable decision if the person-

(a).... is directly affected by the decision; or

(b)is the employer from whose employment the compensable disability arose or is alleged to have arisen.

Time for lodging notice of dispute

90A. (1)    The notice of dispute must be lodged within one month after the applicant receives notice of the reviewable decision unless the Tribunal allows an extension of time. 

(2)    The Tribunal's power to extend time may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power to allow an extension of time. 

(3)    An application an extension of time must be made as in the manner and form prescribed by the regulations.

Notice to be given by Registrar

90B. (1)    On receiving a notice of dispute, the Registrar must immediately send copies of the notice of dispute to the other parties to the dispute. 

(2)    The copy of the notice of dispute sent to the relevant compensating authority must be accompanied by copies of any documentary materials lodged with the notice of dispute. 

DIVISION 3-INITIAL RECONSIDERATION

Initial reconsideration

91.    (1)    The relevant compensating authority must, on receiving a copy of a notice of dispute under this Part-

(a).... assign a suitable person to reconsider the disputed decision; and

(b)have the decision reconsidered in the light of the matters set out in the notice of dispute. 

(2)    A person assigned to reconsider the disputed decision-

(a).... may (but need not be) an officer of the relevant compensating authority but must not be the person who made the disputed decision;

and

(b).... must be a person who has been nominated to the Registrar in accordance with the regulations as a person who may be assigned to reconsider disputed decisions under this Division. 

(3)    On completion of the reconsideration, the relevant compensating authority must confirm or vary the disputed decision to conform with the result of the reconsideration and give the Registrar a written notice stating-

(a).... the result of the reconsideration; and

(b)whether the compensating authority has confirmed or varied the decision as a result of the reconsideration and, if the decision has been varied, how the decision has been varied. 

(4)    If the disputed decision is varied, the written notice must also be given to the other parties to the dispute. 

(5)    The relevant compensating authority must complete the reconsideration and give the notice or notices stating the result of the reconsideration within 7 days after receiving the notice of dispute or a longer time allowed by the Registrar on the authority's application. 

Penalty: $5 000. 

(6)    The variation of a decision under this section is not to be regarded as a redetermination of a claim1. 

(7)    A decision on a claim by the Tribunal itself, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims2, is not liable to reconsideration under this section; if such a decision is disputed, the Registrar must immediately refer the dispute for conciliation. 

1.. See section 53(7) and (7a). 

2.. See section 97B. 

Reference of disputes to conciliation

91A. If-

(a).... the relevant compensating authority, on reconsideration of a disputed decision, confirms the decision; or

(b)the relevant compensating authority, on reconsideration of a disputed decision, varies the decision and a party to the dispute expresses dissatisfaction with the result of the reconsideration in accordance with the rules,

the Registrar must refer the dispute for conciliation. 

Procedure in conciliation proceedings

92C. (1)    In the course of conducting conciliation proceedings, the conciliator may interview the parties to the dispute separately or together. 

(2)    The conciliator presiding at a conference may (subject to the rules) adjourn the conference from time to time to allow the parties to gather further information, to consider their respective positions or for other purposes relevant to the resolution of the dispute. 

(3)... Evidence of anything said or done in the course of conciliation proceedings is only admissible in subsequent proceedings by consent of all parties to the proceedings. 

(4)    However-

(a).... evidence of a settlement reached in conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings; and

(b)evidence of the offers made in the course of conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying provisions for deciding questions about costs. 

(5)    A settlement to which counsel or another representative of a party agrees at a conference is binding on the party. 

(6)    The conciliator presiding at a conference may make a determination or order to give effect to a settlement reached at the conference. 

(7)    A determination or order under subsection (6) is a determination or order of the Tribunal. 

Reference of dispute into Tribunal

92D. (1)    If conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator presiding at the conciliation proceedings must-

(a).... refer the dispute into the Tribunal for arbitration; or

(b)refer the dispute into the Tribunal for judicial determination. 

(2)    A dispute may only be referred into the Tribunal for judicial determination under subsection (1) if-

(a).... the conciliator has first informed the parties to the dispute of the intention to do so and has considered any representations made by any of them about the proposed reference; and

(b)the President (or a Deputy President to whom the President has delegated powers under this section) agrees to the proposed reference. 

(3)    However, the President (or a Deputy President to whom the President has delegated powers under this section) may, on application by a party or in the exercise of a personal initiative, direct that a dispute be referred into the Tribunal for judicial determination at the conclusion of conciliation proceedings. 

DIVISION 5-ARBITRATION

Arbitrator

93.    (1)    An arbitration will be conducted by an arbitration officer. 

(2)... A conciliation officer who presided at the conciliation proceedings cannot arbitrate the same dispute unless the parties involved in the conciliation proceedings agree.

Cases where Tribunal makes judicial determination

94.    The Tribunal must make a judicial determination of a disputed claim-

(a).... if the dispute is referred for judicial determination under Division 4; or

(b)     if a party to the dispute is dissatisfied with the result of an arbitration and disputes the arbitrated determination in accordance with the rules.’

The general scheme for claiming compensation under the said Act was considered and discussed by Doyle CJ in Mitsubishi Motors Aust Ltd v Harbord & Kowalski (an unreported decision of the Full Court of the Supreme Court of South Australia delivered on 15 July 1997 Judgment No S6239).

At pages 7 and 8 of the judgment His Honour said -

“I will deal with the Act as it was at the relevant time.  Compensation is payable in respect of a compensable disability.  A disability, which is defined to include any physical or mental injury, is compensable if it arises from employment.  Section 30 provides the criteria for determining if a disability arises from employment.  There are different types of compensation that are payable.  For example, the cost of medical services and related services incurred in consequence of having suffered a compensable disability: s32.  Another type of compensation that is payable is compensation by way of income maintenance.  If a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in accordance with principles set out in s35.  There are other types of compensation that are payable as well.  If a worker suffers a compensable disability, the worker is required to give notice of that disability to the worker's employer, if the worker is employed at the time, and otherwise to the Corporation: s51.  Failure to give notice, or a deficiency in the notice, can be excused: s52(3).  A claim for compensation is to be made "in a manner and form approved by the Corporation": s52(1)(a).  It must be made within a prescribed period, and must be supported by a medical certificate certifying the nature of the disability, the probable cause so far as ascertainable by the relevant expert and, if the claimant claims to be incapacitated for work, the certificate must state the extent and probable duration of the incapacity: s52(1)(b) and (c). 

A feature of the scheme of the Act is that each time compensation is claimed, a claim for the purposes of s52 is required to be submitted.  The statutory scheme hinges on this process of making a claim and, subsequently, a decision being reached in respect of the claim.  The Act does not provide the making of a  decision in relation to the occurrence of a compensable disability other than in the course of determining a claim for compensation. 

This feature of the statutory scheme was commented upon by King CJ in Christea v Workers Rehabilitation and Compensation Corporation (1993) 61 SASR 487 at 489. He said:

"The claim envisaged by s52 is a claim for compensation.  It is not a claim to have a disability accepted as compensable.  A claim for compensation made pursuant to s52 must be for one or more of the entitlements to compensation conferred by the Act ....  The entitlement arises when the worker incurs one or other of the heads of expense or loss for which compensation is payable."

The claim for compensation is to be given to the employer if the worker is employed at the commencement of the incapacity, and in any other case to the Corporation: s52(4). 

Unless the employer is an exempt employer, relevant decisions are to be made by the Corporation and payments of compensation made by the Corporation.  There is a statutory scheme of delegation of powers and discretions to exempt employers: s63.  In what follows I will refer to the Corporation, but it is necessary to bear in mind that, in the case of an exempt employer, the relevant steps are taken and decisions made by the exempt employer. 

On receipt of a claim for compensation, the Corporation is to make "such investigations and inquiries as it thinks necessary to determine the claim": s53(1).  The Corporation has power to require the worker to submit to a medical examination, and may require information from the claimant: s53(2) and (3).  There is an obligation on the Corporation to make a decision "as expeditiously as reasonably practicable" and, if the claim is for income maintenance, to do so within ten business days: s53(4).  After determining a claim for compensation, the Corporation is to give notice in writing of the determination to the claimant: s53(5). 

It can be seen from this that the determination by the Corporation to accept or to reject a claim is central to a worker's entitlement to compensation.’  

Whilst His Honour was specifically dealing with compensation by way of income maintenance, the scheme is, in my view, the same for claims for benefits pursuant to s43 of the said Act.

A worker who suffers a permanent disability which is compensable under the said Act may make a claim for compensation for non economic loss by way of a lump sum (s43).

Provided that the worker is living at the expiration of 28 days from the date of the occurrence of the disability, the amount of compensation is determined by the Claims Agent acting on behalf of the WorkCover Corporation pursuant to the power being conferred on the Agent by the Corporation in accordance with paragraph (a) of ss(3) of s14 of the WorkCover Corporation Act 1994.

In the present case FAI Workers Compensation had been appointed by the Corporation to manage the claim in question.

Mr Pearce, who appeared as counsel for the plaintiff argued that whilst s43 of the said Act is silent as to when a worker’s entitlement to a lump sum compensation is payable, the proper inference to be drawn is that any benefits to which the worker is entitled pursuant to s43 are payable upon the Corporation or its claims agent determining the amount of compensation.

In the alternative Mr Pearce argued that if the benefits are not payable then, that they are payable upon a reconsideration of the claim and if not payable then if, as is the case here, it becomes clear that certain amounts of compensation are not in dispute, then those amounts should be paid forthwith.

It was Mr Pearce’s contention that the said Act makes no provision for a worker to enforce his rights to any benefits under the said Act and so where the benefits are not paid in accordance with a determination made by the Corporation or its claims agent, the worker may enforce his rights as to compensation by an action in the District Court.

Whilst that argument may have some force in respect of a reviewable decision which has not been disputed, I do not agree with Mr Pearce’s submission in so far as it relates to a reviewable decision that has been disputed by a person who has a direct interest in that decision.

The said Act makes provision for the enforcement of determinations or orders made by the Workers Compensation Tribunal.  Ss 87 and 87A enable certified copies of the determination or orders of the Tribunal to be filed in the District Court and such determination or orders may then be enforced as a judgment or order of the District Court.

Where, as is the case here, the dispute is referred into the Tribunal for arbitration (s97D(1)), or where the dispute is settled at a conference presided over by a Conciliator, then the order made by the Arbitrator or the determination or order made by the Conciliator to give effect to a settlement of the dispute are orders made by the Tribunal (s92C(6) and (7)) and may therefore be enforced in accordance with ss87 and 87A.

There is, in my view, a distinction between a determination or order of the Tribunal and a determination of a claim by the Corporation or its claims agent.  The latter are reviewable decisions (s89A) in respect of which a person with a direct interest in such a decision may lodge a Notice of Dispute with the Registrar within one month after the applicant receives notice of the reviewable decision (s90A).

I infer from the general scheme of the said Act that in the absence of any Notice of Dispute being lodged with the Registrar within one month after the determination has been published to those persons who have a direct interest in the reviewable decision, it is anticipated that the Corporation will pay the compensation to the worker in accordance with the determination that it has made by its claims agent.

Of course, in the unlikely event that the Corporation, having determined that a worker is entitled to be paid compensation by it, then refused, at the expiration of one month after publishing its determination, to pay the compensation that it has said is payable, I have no doubt that the worker would have a cause of action to recover the compensation from the Corporation in a court of competent jurisdiction.

But that is not the case here.  By lodging its Notice of Dispute with the Registrar, the employer set in motion the process of review provided for by the said Act.

The process of review is that first the relevant compensating authority is required to assign a suitable person to reconsider the disputed decision (s91).

If, as is the case here, the decision is confirmed, then the Registrar is required to refer the dispute for conciliation (s91A).

If the conciliation conference results in a settlement, the Conciliator is empowered to make a determination or order to give effect to the settlement and such a determination or order is deemed to be a determination or order of the Tribunal (s92C(6) and (7)).  As I have already said, such determinations or orders are enforceable in the manner provided for by ss87 and 87A.

If no settlement is reached the Conciliator must either refer the matter into the Tribunal for arbitration (as is the case here), or into the Tribunal for Judicial Determination (s92D).

If a party to the dispute is dissatisfied with the result of the arbitration and disputes the arbitrated determination in accordance with the Rules, the Tribunal is required to make a Judicial Determination of the disputed claim (s94).

In the present case the Arbitrator’s decision has not been disputed and so his decision is a final decision of the Tribunal and was capable of being enforced in accordance with ss87 and 87A.

In all the circumstances I have reached the conclusion that the fact that the said Act makes express decisions for reviewable decisions to be reviewed in the manner provided for by ss90, 91, 91A, 92C and 92D and makes express provisions only for the enforcement of determinations and orders of the Tribunal and not for disputed determinations of the Corporation or its claims agent, gives rise to a clear inference that such disputed determinations are not enforceable, but must be resolved by the very process expressly provided for by the said Act.

Accordingly, there will be judgment for the defendant.