Fergusson v Secretary, Department of Family & Community Services
[2017] NSWWCCPD 7
•23 March 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Fergusson v Secretary, Department of Family & Community Services [2017] NSWWCCPD 7 | |
| APPELLANT: | Leonie Anne Fergusson | |
| RESPONDENT: | Secretary, Department of Family & Community Services | |
| INSURER: | QBE Insurance (Australia) Limited as agent for NSW Self Insurance Corporation | |
| FILE NUMBER: | A1-3021/16 | |
| ARBITRATOR: | Ms A Farrell | |
| DATE OF ARBITRATOR’S DECISION: | 26 August 2016 | |
| DATE OF APPEAL DECISION: | 23 March 2017 | |
| SUBJECT MATTER OF DECISION: | Extension of time to appeal – Pt 16 rr 16.2(12) and (13) of the Workers Compensation Commission Rules 2011; application of Sch 6, Pt 6, cl 18 of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | John Maguire & Associates |
| Respondent: | Rankin Ellison Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Time to appeal is extended, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, to 11 October 2016. 2. The decision of the Arbitrator dated 3. In substitution the following orders are made: “That the respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 resulting from injury in 1994 (due to the nature and conditions of employment for the period 1984 to 1994): (a) $19,560 in respect of a further 25% permanent impairment of the back; (b) $9,780 in respect of a further 10% permanent loss of the efficient use of the right leg at or above the knee, and (c) $11,736 in respect of a further 12% permanent loss of the efficient use of the left arm at or above the elbow.” | |
INTRODUCTION
This appeal involves an issue regarding construction of Sch 6, Pt 6, cl 18 of the Workers Compensation Act 1987 (the 1987 Act), and quantification of an entitlement to lump sum compensation, for losses and permanent impairments resulting from injury suffered prior to commencement of the Workcover Legislation Amendment Act 1996 (the 1996 Amending Act). The facts of the matter are not controversial.
BACKGROUND
Leonie Anne Fergusson (the appellant) was employed by Home Care Service of New South Wales, now properly described as ‘Secretary, Department of Family & Community Services’ (the respondent). She suffered injury, resulting from “the nature and conditions of her employment as an assistant in nursing including lifting, bending, twisting and manually handling an incomplete quadriplegic”, from 1984 to 1994. Her history was of a slow onset of pain in the neck, shoulders and back. The lump sums referred to below result from that injury.
The appellant has been off work since 1994, notwithstanding some efforts at retraining.
The appellant underwent surgery to her right shoulder, involving arthroscopic decompression and rotator cuff repair, carried out by Dr Cossetto in March 2001.
In March 2014 Dr Mobbs carried out a fusion at the L4/5 level of the appellant’s back.
Dr Cossetto performed arthroscopic subacromial decompression with rotator cuff repair to the appellant’s left shoulder in January 2015.
On 18 October 1995 there was a consent award in the appellant’s favour, pursuant to s 66 of the 1987 Act, in respect of:
(a) 15 per cent permanent impairment of the back $11,736.00
(b) 5 per cent loss of use of the right leg at or above the knee $4,890.00
(c) 3 per cent loss of use of the left leg at or above the knee $2,934.00
(d) 10 per cent permanent impairment of the neck $5,216.00
(e) 5 per cent loss of use of the right arm at or above the elbow $5,216.00
(f) 3 per cent loss of use of the left arm at or above the elbow $2,934.00
The appellant also recovered a sum pursuant to s 67 of the 1987 Act for pain and suffering, and a sum for interest.
In proceedings no 8984-2002 the appellant recovered a sum pursuant to s 66 of $8,000, in respect of an additional 10 per cent loss of use of the right arm at or above the elbow, a further amount pursuant to s 67, and a sum in respect of weekly payments. The date of the award is not apparent from the evidence.
On 19 November 2015 the appellant made a claim for additional lump sum compensation in respect of the back, neck, right leg at or above the knee, right arm at or above the elbow and left arm at or above the elbow.
The claim for the additional lump sums was referred to Dr Ho, an Approved Medical Specialist. The referral gave the date of injury as 1994. In a Medical Assessment Certificate (MAC) dated 22 July 2016 Dr Ho assessed:
(a) 40 per cent permanent impairment of the back
(b) 15 per cent loss of use of the right leg at or above the knee
(c) 10 per cent permanent impairment of the neck
(d) 15 per cent loss of use of the right arm at or above the elbow
(e) 15 per cent loss of use of the left arm at or above the elbow
The appellant has higher assessments for the back (an additional 25 per cent), right leg at or above the knee (an additional 10 per cent), and left arm at or above the elbow (an additional 12 per cent), compared with the losses and permanent impairments previously compensated.
The Arbitrator issued a Certificate of Determination dated 26 August 2016. It provided for the payment of additional lump sums pursuant to s 66 of the 1987 Act:
(a) 25 per cent permanent impairment of the back $15,000.00
(b) 10 per cent loss of use of the right leg at or above the knee $7,500.00
(c) 12 per cent loss of use of the left arm at or above the elbow $9,000.00
The appellant’s solicitors wrote to the Commission on 1 September 2016 (received 6 September 2016). The letter stated that the appellant agreed with the additional percentage entitlements calculated, but disagreed with the dollar figures applied. It was submitted that the percentages should have been applied to the maximum amount available pursuant to s 66(1) of the 1987 Act as at the date of injury, a sum of $130,400. That maximum was subsequently reduced to $100,000 by the Workcover Legislation Amendment Act 1996. The figures in the preceding paragraph are based on this reduced figure. The appellant’s solicitors said that there was “still a dispute concerning the operation of the Act”, and asked that the matter be listed for arbitration on the question of the applicable amounts.
The Arbitrator responded by email on 8 September 2016, which relevantly said:
“The determination applies the reasoning as set out in Osborne [sic, Osbourne] v Department of Education & Communities [2016] NSWWCC 128 [Osbourne], which applies the reasoning in O’Connor v IPEC Transport Group [2000] 21 NSWCCR 193 [O’Connor].
The request to list the matter for further arbitration is declined.”
ISSUES IN DISPUTE
The appellant’s Application to Appeal Against Decision of Arbitrator (the Appeal) raises two issues:
(a) Ground No 1 – Whether the Arbitrator failed to afford the appellant procedural fairness, in not giving her a chance to be heard on the quantum of compensation payable.
(b) Ground No 2 – Whether the sum payable should have been calculated by reference to the maximum amount payable pursuant to s 66 as at the date of injury, or the maximum amount as reduced by the 1996 Amending Act. This involves a question of the construction of the transitional provisions in the 1996 Amending Act, and the correctness of the two decisions on which the Arbitrator relied in her email dated 8 September 2016.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
The appellant submits that the total additional compensation that should have been awarded was $41,076. The sum awarded by the Arbitrator, on the basis of the reduced maximum, was $31,500. The difference of $9,576 is the sum at issue on the appeal. This satisfies the thresholds in s 352(3) of the 1998 Act. The respondent makes no submission to the contrary. The threshold requirements as to quantum are met.
The Application to Extend Time
Section 352(4) provides “An appeal can only be made within 28 days after the making of the decision appealed against.” The Appeal was lodged on 11 October 2016, outside the 28 day period. There is provision for the extension of time in the Workers Compensation Commission Rules 2011 (the Rules). Part 16 r 16.2(12) and (13) provide:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(13) A party who seeks an extension of time as referred to in subrule (12) must:
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The appellant, in support of the application to extend time, submits:
(a) The appeal was lodged slightly outside the 28 day period from the issue of the Certificate of Determination.
(b) The appellant, after receipt of the Certificate of Determination, wrote to the Commission on 1 September 2016 submitting that quantum should have been calculated differently, and requesting an arbitration hearing. The Arbitrator responded to this on 8 September 2016.
(c) The appellant’s solicitors briefed counsel to advise, but he had been in hospital, and his advice and draft submissions had been delayed.
The respondent opposes the extension of time. It submits:
(a) There is no “evidence of ‘exceptional circumstances’ necessary to enliven the discretion contained in r 16.2(11)”. A delay in obtaining counsel’s advice due to his hospitalisation did not constitute ‘exceptional circumstances’.
(b) The respondent refers to the discussion of the phrase in San v Rumble (No 2) [2007] NSWCA 259.
(c) The respondent refers to Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310 (Economidis). That decision applied Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce).
In Bryce Allsop P (Beazley and Giles JJA agreeing) dealt with the then equivalent provision in Pt 16 r 16.2(11) of the Rules. His Honour at [8] said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA (Tobias JA and Handley AJA agreeing) dealt with the phrase ‘exceptional circumstances’, in the Uniform Civil Procedure Rules 2005. His Honour at [66]-[67] said:
“66. In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
I applied the above passage in Economidis, subject to saying that, in the context of the Commission, it is appropriate to have regard to ss 3 and 354 of the 1998 Act, when considering the application of the provision.
Dealing with the matters relied on by the appellant:
(a) The decision appealed against was dated 26 August 2016. The appeal was lodged initially on 11 October 2016, 17 days out of time. This factor is not relevant to the issue of ‘exceptional circumstances’.
(b) The Deputy Registrar, in her capacity as an Arbitrator, routinely issued Certificates of Determination in claims for lump sum compensation, where the only issue was quantum, after a binding MAC had assessed relevant losses and impairments, and the time for appeal of the MAC (to a Medical Appeal Panel) had expired. This practice was “normally encountered”. The appellant’s solicitors wrote to the Commission on 1 September 2016 following the issue of the decision, raising the question of the rates applied. According to the Commission file, that letter was received on 6 September 2016, and responded to by email on 8 September 2016. The Arbitrator, in the email, referred to the decisions on which she relied, in determining the rates. An issue about the appropriate rates was unusual, but not rare. Part of the period, available for the institution of a Presidential appeal within time, was occupied by an email exchange about the rates. This also was unusual.
(c) There was delay in the receipt of advice and draft submissions from counsel, as he was hospitalised. The submissions do not identify when counsel was briefed to advise on the point, when he was hospitalised, when he ultimately furnished advice, or whether attempts were made to seek the assistance of other counsel in the circumstances. Whether the counsel’s hospitalisation was routine, or of an unexpected, emergency nature, is not apparent. Again, it is unusual that the appellant’s counsel was hospitalised, although limited detail is provided about the circumstances.
The matters relied on, taken individually, do not constitute ‘special circumstances’, although they are to some extent out of the ordinary. When the matters are taken together, there was a gap in time from 26 August 2016 (when the Certificate of Determination issued) to
8 September 2016, in part while an email exchange about the appropriate rates and the associated authorities occurred. There was then some delay (one cannot be more precise than that) due to the hospitalisation of the appellant’s counsel. The explanation of the delay is less than satisfactory. I am not satisfied that the appellant has established that there were ‘exceptional circumstances’ within the meaning of Pt 16 r 16.2(12). Consistent with Bryce, this is one factor which the Commission is required to consider, in the exercise of its discretion to extend time pursuant to Pt 16 r 16.2(12). It is not a precondition to that exercise.The Commission, in dealing with applications to extend time for bringing Presidential appeals, has frequently applied the following passage from the judgment of McHugh J Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 at [2] (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”
The factors favouring an extension of time are:
(a) the period by which the appeal is out of time is relatively short;
(b) it is not suggested that an extension of time will cause prejudice, and
(c) for reasons which follow, I have formed the view that the appeal is strongly arguable, and should succeed. Thus, failure to grant the extension would cause an injustice.
The factors militating against an extension of time are:
(a) there is not an adequate explanation of why the appeal was filed out of time, and
(b) ‘exceptional circumstances’ have not been established.
In my view the circumstances favour granting an extension of time in which to bring the appeal. The interests of justice favour that course, particularly given the view I have formed regarding the merits of the appeal. Time to appeal is extended to 11 October 2016.
THE NATURE OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
GROUND NO 2 – THE CONSTRUCTION ISSUE
It is convenient to deal initially with the second ground.
Prior to the commencement of the 1996 Amending Act, the maximum amount available, specified in s 66(1) of the 1987 Act, was adjusted at six monthly intervals pursuant to ss 79-82 of the Act, in its then form. This amount, as at the date of the appellant’s injury, having regard to the sums awarded as at 18 October 1995, was $130,400. The 1996 Amending Act reduced that figure, in s 66(1), to a sum of $100,000, and it ceased to be indexed. The 1996 Amending Act commenced on 12 January 1997.
The Relevant Transitional Provisions
The relevant transitional provision relating to the 1996 Amending Act is contained in Sch 6, Pt 6, cl 18 of the 1987 Act, which provides:
“Reduction in lump sum compensation amounts—1996 amendments
(1) Despite sections 66 (3) and 67 (6), the compensation payable under section 66 or 67 in respect of any injury received before the commencement of the amendment of those sections by the WorkCover Legislation Amendment Act 1996 where no claim for compensation under either section 66 or 67 in respect of the injury was duly made by the worker before that commencement is to be calculated by reference to the requisite percentage of the amounts in force under the relevant section immediately after its amendment by that Act.
(2) If proceedings are pending before the Compensation Court on a claim for compensation under section 66 or 67, a claim for that compensation is taken not to have been made before the commencement of the amendments to which this clause applies if:
(a) no claim for that compensation was duly made before the commencement of those amendments, or
(b) the worker did not, before the commencement of those amendments, give the employer particulars (including, in the case of a claim for compensation under section 66, a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of the compensation claimed.
(3) If this clause results, in a particular case, in a greater amount of compensation being payable in that case than would have been the case in the absence of this clause, this clause does not apply in that particular case.”
Some Authorities Dealing with the Provision
The Arbitrator referred to the decision of Bishop J in O’Connor. O’Connor involved injury in 1992, for which the worker received voluntary compensation under s 66 of the 1987 Act, in 1993. In May 1999 he claimed under s 66 for an additional loss resulting from the same injury. Thus, like the present matter, there was a claim prior to the 1996 Amending Act, and a later claim (resulting from the same injury) after the commencement of that Act. As in the current matter, the worker argued that the higher rate, applicable at the date of injury, should apply to the second claim.
Bishop J at [19] noted that “for many years the legislation provided that the scale applicable for determining the amount of lump sum compensation payable was the scale in existence at the date of injury”. His Honour noted that the scale was reduced “with regard to claims lodged on or after 12 January 1997”. His Honour said that Sch 6, Pt 6, cl 18(2) presented “a fatal obstacle” to the worker’s argument for application of the higher scale, applicable as at the date of injury. At [21] his Honour said:
“As has been observed earlier, the claim for additional compensation was by correspondence with medical report attached, dated 7 May 1999. Clause 18(1) of Sch 6, Pt 6 relates cl 18(2) to injuries received before the commencement of the Act which reduced the scale. Despite the convoluted wording of the clause it must, I think, be interpreted as meaning that lump sum claims relative to injuries occurring prior to 12 January 1997 are caught by the reduced rates, unless prior to that date the employer is at least notified with medical report as to the compensation sought, even if the claim is not duly made in the formal sense. There is no evidence of any such notification for the additional compensation (i.e. that compensation referred to in cl 18(2)) other than Exhibit 1. Accordingly, I conclude that the rates applicable in assessing the applicant’s entitlement to lump sum compensation are the current rates in force since 12 January 1997.” (emphasis in the original)
There was a similar factual situation in Osbourne. The injury and initial claim were prior to commencement of the 1996 Amending Act. There was a claim for additional compensation, resulting from the same injury, made after that commencement. At [19] the Arbitrator said that she adopted “the approach of Bishop J in O’Connor”. The additional compensation was compensated applying the scale as reduced by the 1996 Amending Act.
The operation of these transitional provisions was also raised in AUSGRID v Butler [2012] NSWWCCPD 19 (Butler). That matter involved relevant injury, and an associated claim pursuant to ss 66 and 67 of the 1987 Act, prior to commencement of the 1996 Amending Act. There was then a further claim after commencement of that Act. Dealing with the applicable rates governing the later claim, O’Grady DP at [98] said:
“At the hearing of the appeal the parties’ attention was drawn to the reduction of the quantum of entitlement pursuant to ss 66 and 67 effected by the WorkCover Legislation Amendment Act 1996 which came into operation on 12 January 1997. The application of those amendments was regulated by the transitional provisions (Sch 6 Pt 6 cl 18). It was argued that Mr Butler’s claim was not caught by those amendments given that he had duly made a claim in respect of the compensation prior to the amendment (Sch 6 Pt 6 cl 18(1)). Having regard to the fact that this is a claim for further loss, the claim having been made in October 2008, and the terms of Sch 6 Pt 6 cl 18(2), that submission must be rejected.”
The Appellant’s Submissions
The appellant quotes Sch 6, Pt 6, cl 18(1). Her counsel’s submissions at [18] say that the “words are to be given their ordinary grammatical meaning and are to be read as part of the Act as a whole”. He submits at [21]-[22]:
“21. The clear meaning of the words is that so long as there has been a claim for compensation under section 66 before the commencement then the amendments do not apply.
22. The provision does not express itself as requiring the claim to still be current and does not express itself as being limited to the claim that has previously been made.”
Section 66 of the 1987 Act, in its relevant form having regard to the date of injury, provided:
“66 Compensation for permanent injuries
(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $130,400 set out opposite to that loss in that Table.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $158,650 in respect of those losses.
(3) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the requisite percentage of the amount in force at the date of injury.”
The appellant quotes s 66(1), and submits:
“30. The section provided for compensation for the loss that resulted from the injury. It did not make any separate entitlement for a loss and a further loss. When a claim was made for a further loss was made [sic] the correct legal position was that the compensation was being sought for the new increased total loss with credit being given for the compensation already paid. The constant reference to further losses was an imprecise way of referring to increased entitlement that arose in circumstances where there was no issue about the correct amounts to be applied.”
The appellant submits that s 66(3) “reflected the general principle that entitlements to lump sum compensation vest at the date of injury”. There is reference to Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318, and Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534.
The appellant acknowledges that her submissions are inconsistent with the decisions in O’Connor, Butler and Osbourne. She submits at [36]:
“36. Each of those decisions is infected by the simple error that none of them considers the actual words of the transitional provision and accordingly make no attempt to interpret the provision. All of the decisions are infected with the idea that the Act makes some kind of separate provision for further losses or that the provision only applies to the claim that was actually made prior to 12 January 1997. For the reasons set out above those decisions are wrong.”
The Respondent’s Submissions
The respondent submits that Sch 6, Pt 6, cl 18 was correctly applied. The Arbitrator correctly applied O’Connor and Osbourne, and there are no authorities inconsistent with those decisions. The respondent refers to the Arbitrator’s application of O’Connor and Osbourne as “matters within the Arbitrator’s discretion”. Elsewhere in its submissions, the respondent submits that appeals against such discretionary decisions are subject to the principles in House v R [1936] HCA 40; 55 CLR 499 (House v The King). The respondent refers to Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, a decision which applied House v The King.
The respondent also refers to the “Table in the Workers Compensation Benefits Guide”, which provides for:
“Maximum payments payable for permanent injuries received from 1 February 1992 – 31 December 2001, where the claim is lodged on or after 12 January 1997”.
It submits that the relevant figures in this Table are consistent with the maximum figure pursuant to s 66 as reduced by the 1996 Amending Act.
Further Submissions
Schedule 6, Pt 6, cl 18(2) of the 1987 Act was, in my view, important in the reasoning of Bishop J in O’Connor. The submissions of the parties did not touch on cl 18(2). A Direction was issued on 2 March 2017 in the following terms:
“The attention of the parties is drawn to cl 18 of Pt 6 of Sch 6 to the Workers Compensation Act 1987. The parties are required to lodge and serve further written submissions dealing with the following:
1. Does cl 18(2) have any application in the circumstances of the current proceedings, noting the Compensation Court Repeal Act 2002 and the Compensation Court Repeal (Transitional) Regulation 2003? The parties are directed to address the construction of cl 18(2), in particular having regard to its opening words, “[i]f proceedings are pending before the Compensation Court…”.
2. If cl 18(2) does not have application, what effect does this have on the construction of cl 18(1)?”
The appellant lodged further submissions on 10 March 2017, in compliance with the Direction. The appellant submits that there were no proceedings pending before the Compensation Court at the time of the commencement of the 1996 Amending Act. It follows that cl 18(2) has no operation, and the appellant’s entitlements are determined by applying cl 18(1). The appellant submits that the only question is whether there was a claim under ss 66 or 67 prior to 12 January 1997. Given that the Compensation Court actually made an award for such compensation, prior to that date, “there can be no dispute that such a claim had been made”. The words of cl 18(1) are “clear and unambiguous”.
The respondent lodged further submissions, in response to the Direction, on 17 March 2017. The respondent concedes that cl 18(2) “may have no application” as it is predicated on there being proceedings “pending before the Compensation Court”. The respondent refers to two other matters which, it submits, support its contended construction that the reductions in the 1996 Amending Act apply in the circumstances.
The first of these is that the heading of cl 18 should be considered in its construction. It is headed “Reduction in lump sum compensation amounts – 1996 amendments”. The respondent submits:
“The intention of the clause is, it is submitted, to ensure that the persons who make a claim for lump sum compensation at a later date are not given the advantage of having the earlier (and in some circumstances, higher) entitlements to lump sum compensation under the Workers Compensation Act 1987.” (emphasis in original)
The respondent also refers to cl 18(3), submitting:
“…the clause in its entirety including clause 18(3) means that if the clause results in a greater amount of compensation being payable than would have been the case in the absence of the clause, the clause does not apply in that particular case.”
Consideration
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; 260 ALR 1; 83 ALJR 1152 French CJ at [4] said:
“The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill as:
‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.’
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.”
In the same case the plurality at [47] stated (excluding references):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503; 293 ALR 257 ; 87 ALJR 98 at [39] said:
“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.”
The appellant refers specifically to cl 18(1) of the transitional provision, and submits “the words [of cl 18(1)] are to be given their ordinary grammatical meaning and are to be read as part of the Act as a whole”. She submits that “the one interpretation of the provision that is available” is that for which she argues, “[t]he provision is clear.”
Bishop J in O’Connor referred to the opening sentence of cl 18(2), which provides that it applies if proceedings are pending before the Compensation Court, and then provides that “a claim for that compensation is taken not to have been made before the commencement of the amendment” if sub-clauses (a) or (b) apply. His Honour interpreted “that compensation” to be the compensation at issue in the “pending” proceedings. It followed that if that claim, for what his Honour described as the “additional compensation”, had not been made in compliance with sub-clauses (a) or (b) of cl 18(2), the claim was taken “not to have been made before the commencement of the amendments”. It was then the subject of the reduction in entitlement provided for in the 1996 Amending Act.
Bishop J dealt with the claim before him on the basis that it was one “pending before the Compensation Court”. That claim was made on 7 May 1999, over two years after the relevant commencement of the 1996 Amending Act. The correctness of the approach to that issue was not argued in the current matter, and does not require determination. The application of cl 18(2), on its clear words, depends on the existence of proceedings “pending before the Compensation Court”. The Compensation Court of New South Wales was abolished by the Compensation Court Repeal Act 2002. There were two proceedings in the Compensation Court, relating to the injury the subject of the current proceedings; both concluded by way of consent awards long ago (see [7]-[9] above). There are no proceedings “pending before the Compensation Court”. It follows that I accept the appellant’s argument that cl 18(2) can have no application in the circumstances.
In O’Connor Bishop J described cl 18(2) as the provision which presented “a fatal obstacle” to the worker’s submission that “the rates applicable to the date of injury were the relevant ones” (at [19]-[20]). The application of cl 18(2), which in my view does not apply in matters where there are no proceedings “pending before the Compensation Court”, was crucial in his Honour’s reasoning.
The decision in Osbourne involved an apparent acceptance by the parties, in the circumstances of that case, that where a claim for further lump sum compensation had been made after commencement of the 1996 Amending Act, the reduced figure applied (at [15]). The Arbitrator in that case adopted “the approach of Bishop J in O’Connor” (at [19]). However, the live issue in that case appears to have concerned the approach to giving credit for previous lump sum compensation (at [18]-[20]), rather than the construction issue argued in the current appeal. The decision in Osbourne does not assist on the issue before me in the current appeal.
That part of the decision in Butler, quoted at [40] above, with respect, also offers little assistance. It states a conclusion, that cl 18 has the effect that a claim for a further loss (which post-dated commencement of the 1996 Amending Act) is subject to the reduction, although the relevant injury and initial claim for lump sum compensation occurred prior to the relevant commencement. The basis of this conclusion, by reference to cl 18, is not made clear.
I reject the respondent’s submission that the decision going to the applicable rates involved an exercise by the Arbitrator of her discretion, and that this aspect of the appeal is subject to the principles in House v The King. Although briefly expressed by the Arbitrator, consistent with the nature of the decision which she made, the decision went to an issue of statutory construction, being the operation of Sch 6, Pt 6, cl 18. It was not a discretionary decision.
The respondent refers to the ‘Workers compensation benefits guide’. That is a publication of the State Insurance Regulatory Authority (SIRA) normally published at six monthly intervals, as a ready reference guide to the quantum of multiple varieties of benefit payable pursuant to the 1987 Act. The ‘Notes to the Table of Disabilities’ appearing in that guide include the following:
“A December 1996 amendment specifies that a claim for compensation under section 66(1) duly lodged on or after 12 January 1997, the maximum amount payable is $121,000 for multiple losses or impairments and $100,000 for individual losses or impairments.” (emphasis in original)
The above guide has no statutory force, and I do not accept that it can be used as an aid in the construction of cl 18.
The respondent relies, in its submissions, on the heading of cl 18, quoted at [52] above, and submits that “the heading should be duly considered” (its further written submissions dated 17 March 2017). The respondent’s submissions do not deal with the statutory basis of this. Nor do they specify in what way the heading should be considered.
Section 35 of the Interpretation Act 1987 (Interpretation Act) deals with circumstances in which headings to provisions of an Act “shall be taken to be part of the Act”. The heading of cl 18 in my view falls within s 35(2) of the Interpretation Act, and is “taken not to be part of the Act”. The heading constitutes ‘extrinsic material’, to which “consideration may be given” (see s 34(1) of the Interpretation Act).
The respondent refers to cl 18(3). It submits that any further claims for lump sum compensation should be compensated “as at the date upon which the claims for further lump sum compensation were made, as to not do so would effectively preclude entirely the operation of clause 18(3) and would mean that the clause would have no practical effect.”
Clause 18(3) requires a comparison of the amount of compensation payable, depending on whether cl 18 is applied or not. If cl 18 results in a greater amount being payable than in the absence of the clause, the clause does not apply. Section 66 of the 1987 Act in its relevant form is quoted at [42] above. If cl 18 is applied, and the appellant’s submission regarding the construction of cl 18 and the resultant quantification is accepted, the effect is that the appellant’s further entitlement is quantified on the basis of a maximum under s 66(1) of $130,400. If the entitlement is calculated “in the absence” of cl 18, the entitlement is the same, it is based on a maximum under s 66(1) of $130,400. This is because s 66(3) requires that where an amount “is adjusted by an amendment of this section”, the compensation is “calculated by reference to the amount in force at the date of injury”. Clause 18 does not result in a greater amount of compensation being payable. Acceptance of the construction for which the appellant contends would not trigger the operation of cl 18(3), causing a reduction in the amount.
The respondent submits that cl 18(3) operates to reduce the quantum to that applicable as at the date upon which the claims for further lump sum compensation were made. It submits that to conclude otherwise “would effectively preclude entirely the operation of clause 18(3)”. This raises a general principle of statutory construction (see Pearce & Geddes, Statutory Interpretation in Australia, 8th edition at pp 62-64). In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (Project Blue Sky) the plurality at [71] said:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
I do not accept the respondent’s submission that, if cl 18(3) is not construed so as to reduce the quantum in the circumstances of the current matter, that sub-clause “would have no practical effect”. The maximum sum provided in s 66(1) of the 1987 Act was, on commencement of that Act, the figure of $80,000. That amount was periodically increased. As at 1 February 1992 it was raised to a figure of $123,400; this was the first occasion that the figure in s 66(1) exceeded $100,000. In respect of injuries occurring from 4 pm on 30 June 1987 to 31 January 1992, a worker’s entitlement pursuant to s 66 was lower than that provided for in the 1996 Amending Act.
Such a worker’s entitlement, under s 66 as amended by the 1996 Amending Act, continued (without the application of cl 18) at the lower figure, rather than the figure of $100,000. This was because of s 66(3) of the 1987 Act. If such a worker had not made a “claim for compensation under either section 66 or 67 in respect of the injury”, prior to commencement of the 1996 Amending Act, the effect of cl 18(1) would be that the worker’s entitlement under s 66(1) would be calculated by reference to the sum of $100,000, rather than the lower figure which applied as at the date of injury. That is, “a greater amount of compensation” would be payable, than in the absence of cl 18. The effect of cl 18(3) is that cl 18 “does not apply in that particular case”. The purpose of cl 18(3) is clear. The amendment to the sum in s 66(1), provided for in the 1996 Amending Act, is not to result in that particular class of worker receiving greater compensation than would otherwise be the case.
The scheme of the transitional clause is apparent. Where an injury occurred, and a claim for lump sum compensation was made in respect of it, prior to commencement of the 1996 Amending Act, the s 66(1) figure applying at the date of injury continued to apply, providing that figure was equal to or greater than $100,000. Where no claim for lump sum compensation was made in respect of such an injury, prior to commencement of the 1996 Amending Act, the reduced s 66(1) figure of $100,000 applied. If the applicable s 66(1) lump sum, as at the date of injury, was less than $100,000, that lower figure continued to apply.
In Project Blue Sky at [78] the plurality said:
“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
In my view the meaning of cl 18(1) is clear, and the legal meaning corresponds with the grammatical meaning. Clause 18(1) provides that compensation pursuant to ss 66 and 67 of the 1987 Act is to be recovered at the reduced rate, “where no claim for compensation under either section 66 or 67 in respect of the injury was duly made by the worker” before commencement of the 1996 Amending Act. It follows that, if such a claim had been made before that commencement, the requirement of cl 18(1) that the s 66 entitlement “be calculated by reference to the amounts in force under the relevant section immediately after its amendment” does not apply. The provision does not distinguish between claims and further claims. I accept the appellant’s submissions quoted at [41] above. There is nothing which suggests that the clause should be given other than its ordinary grammatical meaning.
The respondent submits that regard should be had to the heading of cl 18, which reads “Reduction in lump sum compensation amounts – 1996 amendments”. The heading constitutes “extrinsic material” within the meaning of s 34 of the Interpretation Act. The heading does not “confirm that the meaning of the provision is the ordinary meaning conveyed by the text” for the purposes of s 34(1)(a) of the Interpretation Act. Plainly the meaning of clause 18 is not to uniformly provide for the reduction of lump sum compensation amounts. The preservation of higher amounts, in some circumstances, is part of the specific purpose of cl 18(1), which is at issue in this appeal. For reasons given above, the meaning of the provision is not “ambiguous or obscure” (s 34(1)(b)(i)). It could not be suggested that the “ordinary meaning conveyed by the text of the provision” (taking account of the matters referred to in s 34(1)(b)(ii)) “leads to a result that is manifestly absurd or is unreasonable”. Use of the heading, as extrinsic material, does not “assist in the ascertainment of the meaning” of cl 18.
The appellant submits that “[i]n circumstances where the Compensation Court had actually made an award of compensation there can be no dispute that such a claim had been made.” I do not understand the respondent to submit to the contrary.
For the above reasons, the appellant succeeds on Ground No 2, which is upheld. It follows that the compensation payable pursuant to s 66 of the 1987 Act, provided for in the Certificate of Determination dated 26 August 2016, requires amendment to reflect the figure payable pursuant to s 66(1) as at the date of injury.
It is not, in the circumstances, necessary to deal with Ground No 1.
DECISION
Time to appeal is extended, pursuant to Pt 16 r 16.2(12) of the Rules, to 11 October 2016.
The decision of the Arbitrator dated 26 August 2016 is revoked.
In substitution the following orders are made:
“That the respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 resulting from injury in 1994 (due to the nature and conditions of employment for the period 1984 to 1994):
(a) $19,560 in respect of a further 25% permanent impairment of the back;
(b) $9,780 in respect of a further 10% permanent loss of the efficient use of the right leg at or above the knee, and
(c) $11,736 in respect of a further 12% permanent loss of the efficient use of the left arm at or above the elbow.”
Michael Snell
Deputy President
23 March 2017
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