Hancock, William Joseph v Edgell Birdseye (Ulverstone), Division of Petersville Industries Limited
[1998] TASSC 10
•19 February 1998
10/1998
PARTIES: HANCOCK, William Joseph
v
EDGELL BIRDSEYE (ULVERSTONE)
DIVISION OF PETERSVILLE INDUSTRIES LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 88/1997
DELIVERED: 19 February 1998
HEARING DATE/S: 20 October 1997
JUDGMENT OF: Underwood J
CATCHWORDS:
Workers Compensation - Miscellaneous matters - Other matters - Workers Rehabilitation and Compensation Reform Act 1995 - Transitional provisions - Meaning of "claim for compensation" and "finally determined" - Presumption against retrospective effect on substantive rights absent clear words to the contrary - Whether procedural changes apply to claims arising out of injury suffered prior to amending legislation.
Maxwell v Murphy (1957) 96 CLR 261; Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647, applied.
Jones v Jones (1996) 6 Tas R 173, considered.
Workers Rehabilitation and Compensation Reform Act 1995 (Tas), s92, Sch2, cl 19.
Aust Dig Workers Compensation [278]
Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - In respect of procedure and practice - Amendment with respect to costs of proceedings before the Tribunal procedural - Amendment has retrospective operation.
Wright v Hale (1860) 30 LJ Ex 40; R v Dunwoodie [1978] 1 All ER 923; Galvin v The Forest Commission of Victoria [1939] VLR 284, followed.
Workers Rehabilitation and Compensation Reform Act 1995 (Tas), s38.
Aust Dig Statutes [81]
REPRESENTATION:
Counsel:
Appellant: B R McTaggart
Respondent: S J D Knight
Solicitors:
Appellant: Jennings Elliott
Respondent: Dobson Mitchell & Allport
Court Computer Code:
Judgment ID Number: 10/1998
Number of pages: 6
Serial No 10/1998
File No LCA 88/1997
WILLIAM JOSEPH HANCOCK v EDGELL BIRDSEYE (ULVERSTONE) DIVISION OF PETERSVILLE INDUSTRIES LIMITED
REASONS FOR JUDGMENT UNDERWOOD J
19 February 1998
Introduction
This appeal from an order of the Workers Compensation Tribunal is the third time this Court has been asked to consider the meaning and effect of the Workers Rehabilitation and Compensation Reform Act 1995, s92, Sch2, cl 19. The previous two occasions were Jones v Jones (1996) 6 Tas R 173 and Swetnam Brothers Pty Ltd v Grundy 17/1997. There was an appeal to the Full Court in Swetnam. Judgment in that appeal had not been delivered when this matter came on for hearing. As I was a member of the Full Court that heard Swetnam, it seemed desirable to defer handing down this decision until after the Full Court had given judgment. This has now been done (9/1998). With respect to the general proposition of law, I repeat what I said in Swetnam:
"The Issue
The Workers Rehabilitation and Compensation Reform Act 1995 ('the Reform Act') commenced operation (except for s25) on 16 August 1995. See Statutory Rule 90/1995. It made far reaching changes to the Workers Rehabilitation and Compensation Act 1988 ('the Principal Act'). The Reform Act, s92 provides that 'Schedule 2 has effect'. Schedule 2, cl 19 provides:
'19 — Except as provided in section 69a of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day.'
The issue on this appeal concerns the true meaning of cl 19 and the extent of its operation.
Some Changes to the Principal Act
The Reform Act effected the following principal changes to the Principal Act.
_ Abolished the office of Workers Compensation Commissioner and the Workers Compensation Division of the Court of Requests.
_ Created the Workers Compensation Tribunal.
_ Abolished the Workers Compensation Board and created the Workplace Safety Board.
_ Introduced a conciliation process to facilitate settlement of disputed claims for compensation.
_ Conferred a power to make an 'interim determination, ruling or determination in respect of a claim for compensation'.
_ Inserted a curious onus of proof provision into the Principal Act, s49 which appears to govern all proceedings before the Tribunal. I suspect that this might become a fruitful source of litigation in the future.
_ Imposed limitations on the extent of an employer's liability to pay compensation in the case of an injury being a disease (including (inter alia) stress) and in the case of an injury sustained on a journey to or from work..
_ Limited the extent of an employer's liability in the case of disease by restricting the meaning previously given to the expression 'to which his employment contributed to a substantial degree'.
_ Altered the philosophy underpinning the making of orders for costs of proceedings before the Tribunal.
_ Altered the amount of compensation payable to part time workers (see Scott v Sun Alliance Insurance Australia Ltd & Anor (1993) 178 CLR 1).
_ Reduced the amount of weekly payments by specified percentages.
_ Altered some entitlements to lump sump payments.
_ Removed the problems that had existed with respect to the relationship between industrial deafness and incapacity for work.
_ Restricted valid medical certificates to those made by medical practitioners accredited by the Workplace Safety Board.
Thus, the Reform Act effected major changes to both the substantive law and the procedural law governing workers compensation.
In substance, Sch2 vests in the Workplace Safety Board all the liabilities and rights which were vested in the Workers Compensation Board before the Reform Act came into operation. It also deems all proceedings pending at the date the Reform Act came into operation to be proceedings before, against or from the Tribunal instead of the Workers Compensation Commissioner. In addition, it enacted by cl 18:
'18 — A worker, who before 4 June 1995 received, or was in receipt of, a weekly payment in accordance with the decision of the High Court of Australia in Scott v Sun Alliance Insurance Australia Limited & Anor (1993) 178 CLR 1, is, on and after the commencement day, entitled to have received or to continue to receive that payment as if section 69A of the Workers Rehabilitation and Compensation Act 1988 had not been enacted.'
As amended by the Reform Act, s69A defeats the effect of the High Court decision in Scott v Sun Alliance (supra) concerning the amount of weekly payments payable to a part time worker and has retrospective effect. However, Sch2, cl 18 exempts from that retrospectivity those workers who had received or were in receipt of weekly payments calculated in accordance with the High Court decision before 4 June 1995. It is not clear to me why that date was selected. According to the Hansard report of proceedings in the House of Assembly, 4 June 1995 was sixteen days before the Reform Act was read for the first time.
The Reform Act, Sch2, cl 19 is a transitional provision. It is expressed to be 'except as provided in s69A'. I think a better expression might have been 'subject to s69A' for the clear intention of Sch2, cl 19 is to govern all transitional claims, except those that fall within the retrospective provisions of the Principal Act, s69A. Clause 19 describes those transitional claims as 'all claims for compensation' that:
(i) are with respect to an injury which occurred before 16 August 1995; and
(ii) which have not been finally determined before that day.
Those claims are to be 'continued and determined under the [Principal Act] as in force immediately before [16 August 1995]'.
What then is a claim for compensation within the meaning of the Reform Act, Sch2, cl 19? It is to be noted at the outset that cl 19 is not an amendment to the Principal Act and accordingly, the definition of a claim for compensation in the Principal Act, s3(1), is not automatically incorporated into the Reform Act, Sch2. Did Parliament intend the expression 'claim for compensation' in the Reform Act, Sch2, cl 19, to bear the same meaning as that given it by the Principal Act, s3(1), viz:
'... unless the contrary intention appears —
"claim for compensation" means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim;'
The Act does not define 'compensation' but that word clearly contemplates all the statutory benefits payable to or to the use of a worker who is able to establish the appropriate criteria governing entitlement to the receipt of compensation. The Principal Act, s25 enacts the circumstances in which an employer incurs 'liability to pay compensation in accordance with this Act'. Thus, 'compensation' in the statutory expression 'claim for compensation' as enacted in the Principal Act, encompasses weekly payments, lump sum payments, medical expenses and the like.
At the time the Reform Act was enacted, this Court had determined that the expression 'claim for compensation' as enacted in the Principal Act, meant different things according to the context in which it was enacted. In Chorley v Hazell Pty Ltd A17/1993 Zeeman J said at 2:
'The starting point in a consideration of the questions asked must be the definition of "claim for compensation" appearing in the Act, s3(1). That expression is defined as meaning, unless the contrary intention appears, "a claim for compensation under [the] Act and [including] any matter or question arising in connection with or incidental to such a claim." The actual meaning of that expression as it appears in various sections of the Act depends upon the context. Section 32 provides for the making of "a claim for compensation" as a pre-condition for an entitlement to be paid compensation at all. Such a claim for compensation must conform to the requirements prescribed by s34(1). The reference in s32 is to be taken as being a reference to a claim for compensation under the Act and not to "any matter or question arising in connection with or incidental to such a claim". The former s81(1) when it spoke of the receipt of "a claim for compensation" referred to the claim required by s32 as otherwise the reference to its receipt would be a nonsense. On the other hand the extended definition contained in s3(1) ought to be applied to the reference to "a claim for compensation" appearing in s42(1) as no contrary intention appears.'
In Jones v Jones (1996) 6 Tas R 273, Zeeman J adopted his reasoning in Hazell. Jones was a case where the employer purported to give notice of termination of weekly payments pursuant to the Principal Act, s86. Zeeman J said at 281:
'So far as is disclosed by the material before me, there have been two discrete claims for compensation within the statutory definition which relate to the compensable injury suffered by the appellant. The first was the claim pursuant to the Act, s34(1) whereby the appellant asserted incapacity giving rise to an entitlement that a weekly payment commence. The entitlement to the worker to the commencement of such a weekly payment could have been challenged by the respondents under the Act, s81a or they could, as they did in the present case, have accepted the obligation to make the weekly payment by commencing to make it. This claim for compensation was finally determined within the meaning of par19 upon the respondents commencing to make the weekly payment without having proceeded under s81a (see Freemasons Homes of Southern Tasmania v Greenwood (1995) 5 Tas R 445). The second claim for compensation is the matter encompassed by the service of the notice of intention to terminate and the reference of that matter by the appellant to the Tribunal.'
It is quite common for claims for different kinds of compensation to be made at different times. For example, the initial claim is made for weekly payments and later, a claim is made for hospital expenses and much later, a claim is made for a lump sum. Having regard to the changes that the Reform Act made to the substantive law, it is unlikely that the Parliament intended that the substantive law governing entitlements to one injury depended upon when a claim for compensation happened to be made. If this was the intention, substantial injustice could result in some cases. The Reform Act not only altered the rate of weekly payments, but also, in effect, abolished as compensable, quite a large number of injuries that were compensable prior to that Act coming into operation. It is unlikely that Parliament intended to affect the rights of persons who were injured before the Reform Act commenced. If, as is well settled law in this State, a claim for compensation includes any matter arising in connection with that application, an application under the Principal Act, s81A(5) brought by an employer to avoid further liability to pay compensation is a claim for compensation. If such an application is brought in the case of an injury that was compensable before the Reform Act but is not thereafter, it is unlikely that Parliament intended that the worker would be deprived of rights that he or she had before the Reform Act came into operation simply because a claim for compensation was made after that time.
I have had the advantage of reading what my brother Crawford J has written with respect to the common law principle that absent a clear statement to the contrary, an Act will be assumed not to have retrospective operation with regard to substantive rights and liabilities, and I entirely agree with him. That the Tasmanian Parliament did not intend the Reform Act to affect substantive rights and liabilities is evidenced by the relationship of cl 19 to cl 18, and reference to the latter in the opening words of the former. It seems to me that by cl 19 the Parliament said that except in the case of part time workers who were not in receipt of weekly payments before 4 June 1995, other entitlements to compensation in respect of injuries that occurred before the commencement of the Reform Act will continue as if the Reform Act had not been enacted. This interpretation is consistent with principle and the language of the Act, once it is accepted that the reference in cl 19 to 'all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day', is not necessarily a reference only to claims made before the commencement day. As Crawford J points out, the clause does not say that and there is no warrant for reading those words into the section. Clause 19 provides that all claims for compensation and any matter or question arising in connection with or incidental to such claim with respect to an injury which occurred before the commencement of the Reform Act, shall be continued and determined as if the Reform Act had not been enacted. I accept that the reference in cl 19 to continuation of claims does not sit happily with the construction that Crawford J and I have put on that clause, but it is inconceivable that the Parliament meant, by the use of that word, that a worker's substantive acquired rights could be removed by the simple expedient of the employer making a claim for compensation to the Tribunal and insisting that, because it was a fresh claim for compensation and not a continuation of an existing claim, prior vested rights were lost.
Once the above interpretation is accepted, it is clear that cl 19 is not concerned with procedural matters. Clause 19 only concerns substantive law and, as Crawford J explains, the common law principle that absent clear words to the contrary, an Act is assumed not to have retrospective operation to affect substantive rights, does not apply to statutory changes to the procedural law.
Conclusion
Compliance with the Principal Act, s86(3A) is plainly a matter of procedure and therefore compliance with that subsection was required. The Tribunal was correct in so holding.
I would dismiss the appeal."
The Facts
In 1984, the appellant suffered an injury to his back that arose out of and in the course of his employment. Weekly payments were made. After a period of time, the appellant returned to work. Thereafter until 1993 there were a number of periods of incapacity and claims for compensation. Some periods of incapacity were caused by an incident at work and some appeared to be exacerbations of symptoms from an earlier incident. In the Tribunal the appellant referred to two particular incidents at work, each of which resulted in a period of incapacity; one was in 1986 and the other in 1992. The appellant said that the latter incident gave rise to increasingly severe symptoms.
In July 1995, the appellant applied for and was granted a redundancy. He told the Tribunal that he applied for a redundancy because he was finding it difficult to cope with his work, because his job "had been altered" and because another employee, similarly affected, had been offered a redundancy. Since the appellant left the respondent's employ, the appellant has been working on a casual basis with another employer, two to three days per week.
According to a finding of the Tribunal, at the time the appellant was made redundant and left the respondent's employ, there was no current certificate certifying incapacity for work and I infer therefrom that payment of weekly compensation had ceased upon the basis that the appellant had returned to work.
On 10 July 1995, shortly after leaving the respondent's employ, the appellant obtained and presented to the respondent, a medical certificate certifying that he was partially unfit for work. The certificate failed to identify the injury from which the partial incapacity for work resulted. That failure is immaterial for present purposes. The presentation of the certificate was, nonetheless, a claim for compensation within the meaning of the Principal Act, s3(1). The respondent did not make weekly payments upon receipt of the claim for compensation. Subsequently, the appellant submitted further certificates, each of which certified partial incapacity for work. Still the respondent made no payments. During this period, the Reform Act commenced operation, viz, on 16 August 1995. On 18 July 1996, the appellant made application to the Tribunal for an order for weekly payments of compensation from July 1995. At the hearing, the issue was whether the appellant's disability was due to the incident at work in 1986, before the Workers Rehabilitation and Compensation Act 1988 commenced, or the incident at work in 1992. The Tribunal found that the appellant's incapacity was due to the 1986 incident and dismissed the appellant's claim.
The respondent sought an order for costs against the appellant. In the Tribunal, the argument on behalf of the respondent was that the claim for compensation was the application made to the Tribunal dated 18 July 1996 after the enactment of the Reform Act and, accordingly, the discretion to order costs was to be exercised in accordance with the Principal Act, s59 as amended by the Reform Act.
On behalf of the appellant it was submitted that the claim for compensation was the medical certificate presented in July 1995, before the Reform Act came into operation, and accordingly, the discretion to order costs was to be exercised in accordance with the Principal Act, s59 before its amendment by the Reform Act.
For the reasons I have expressed, both the medical certificate presented in July 1995 and the application to the Tribunal made in July 1996 were claims for compensation. However, on behalf of the respondent, Mr Knight submitted that cl 19 concerned only matters of substantive law and that costs were a matter of procedure. Mr Knight's submission that the Reform Act, Sch2, cl 19 concerns only substantive law has been established as correct by the decision in Swetnam. For the following reasons his submission that costs are a matter of procedure is also correct.
Craies on Statute Law, 7th edn, shortly states the position at 401:
"But there is no vested right in procedure or costs. Enactments dealing with these subjects apply to pending actions, unless a contrary intention is expressed or clearly implied."
The author of the 7th edition cites Wright v Hale (1860) 30 LJ Ex 40 at 42 as authority for that statement. The same authority was relied upon by Slynn J in R v Dunwoodie [1978] 1 All ER 923 at 928. After confessing to doubts that he had held during argument that a statutory change to the law of costs was a matter of procedure, his Honour referred to Wright v Hale, Craies on Statute Law and other texts and said at 929:
"Accordingly, despite my own doubts, on the basis of these authorities I accept that the provisions as to costs are to be treated as procedural and, in the absence of any express or implied contrary intention, changes would normally take effect on proceedings pending at or commenced after the date of the change."
In Galvin v The Forest Commission of Victoria [1939] VLR 284, the Full Court of the Supreme Court of Victoria said at 297 - 298:
"Two cases of high authority decide that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure (Freeman v Moyes [1834] 1 Ad & El 338); Wright v Hale [1860] 30 LJ (Ex) 40."
That decision is of particular interest as it concerned the costs of proceedings under the Workers Compensation Act. Prior to a statutory change, the Workers Compensation Board had no power to award costs against a party, but by virtue of an amendment made after proceedings had been commenced, the Board was given a general power to award costs against any party. The Full Court held that the Board had power to award costs against a party in proceedings commenced before it had that power but concluded after the power had been conferred. Jackman v Dandenong Sewerage Authority (No 2) (1969 - 1970) 20 LGRA 413, is another authority to the effect that costs are a matter of procedure and therefore changes in the legislation made after the proceedings have been commenced have retrospective effect and apply to the pending proceedings. Batt J recently expresssed approval of Jackman in Timmerman v Choy and Anor, Victorian Supreme Court unreported, 6 November 1995.
Accordingly, the Tribunal's discretion with respect to costs fell to be exercised in accordance with the Principal Act, s59 as amended by the Reform Act. As I said in Farrow v State of Tasmania 62/1997, ordinarily the proper exercise of the discretion under the amended section means that costs will follow the event. The Tribunal referred to and applied Farrow and as the appellant lost before the Tribunal, the order was that the appellant pay the respondent's costs. There was no error of law in the making of that order. The appeal is dismissed.
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