Hollington v Northern Territory - [2001] NTSC 109

Hollington v Northern Territory [2001] NTSC 109
PARTIES:ALAN HOLLINGTON

v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LA 16 OF 2001 (9923249)
DELIVERED:  4 December 2001
HEARING DATES:  19 October 2001
JUDGMENT OF:  MILDREN J
CATCHWORDS:

Crimes Victim's Assistance – claimant assaulted causing injury and lost wages – injury compensible under Work Health Act – no claim made under Work Health Act – whether certificate issued should disallow claim for lost wages – meaning of "payable" – Crimes (Victim's Assistance) Act s 13(2).
Statutes:
Crimes (Victim's Assistance) Act; ss 5, 13(2) and 13(A), 15
Cases Cited:
1.   Glass v Defence Force Retirement and Death Benefits Authority (1992) 38 FCR 534 at 537, referred.
2.   Pitakis v S.A. Spastic Paraylsis Welfare Association Inc (1983) 33 SASR 302, referred.
3.   Walsh v The Commonwealth (1998) 155 ALR 182 at 189, referred.
4.   Woodruffe v Northern Territory of Australia [2000] NTCA 8 at [28], applied.
5.   Work Social Club – Katherine Inc v Rozycki (1998) 143 FLR 224 at 236-237, referred.
REPRESENTATION:
Counsel:
Appellant:G Clift
Respondent:  J B Waters QC
Solicitors:
Appellant:DeSilva Hebron
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No LA 16 of 2001 (9923248)
Hollington v Northern Territory [2001] NTSC 109

BETWEEN:
ALAN HOLLINGTON

Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 4 December 2001)
MILDREN J:

The appellant brought an application for assistance pursuant to s 5 of the Crimes (Victims Assistance) Act in respect of an assault which occurred on 11 October 1998 at the Walkabout Tavern, Nhulunbuy. The learned Magistrate found that the appellant was entitled to a certificate and awarded him the sum of $4,000-00 for pain and suffering. The appellant was not able to return to work immediately because of his injuries and claimed the additional sum of $917-00 for lost wages. Neither the quantum of the claim for lost wages, nor the fact that the appellant lost wages because of the assault, was in dispute. The respondent submitted in the Court below that the appellant was not entitled to any amount for lost wages, relying upon s 13(2) of the Act. The learned Magistrate accepted the submission of the respondent. This appeal seeks to challenge that part of his Worship's decision.
There is no dispute as between the parties that the appellant was, at the time of the assault, a worker and was prima facie entitled to weekly compensation pursuant to ss 53 and 64 of the Work Health Act.
The main relevant provisions of the Crimes (Victims Assistance) Act are s 13(2) and s 13A which are as follows:
(2)     In assessing the amount to be specified in an assistance certificate the Court shall have regard to the amount of any payment received by or payable to the victim or a dependant of the victim for the injury or death of the victim caused by the commission of the offence including the amount of any payment received or payable –
(a)     by way of compensation or damages from the offender or               any person on behalf of the offender; or
(b)     under –
(i)     the Motor Accidents (Compensation)Act;
(ii)    the Work Health Act; or
(iii)   a law of the Commonwealth, a State or another   Territory of the Commonwealth relating to the   payment of compensation to an employee in    respect of death or injury resulting from an    accident in or in connection with the employee's    employment,
and the Court shall reduce the amount so specified in the assistance certificate by such amount as it considers appropriate in the circumstances.
13A. REPAYMENT OF ASSISTANCE IN CERTAIN CIRCUMSTANCES
(1) Where the Court issues an assistance certificate and is satisfied that a victim or a dependant of a victim is, or may be, entitled to a payment referred to in section 13(2), the Court may make such order as to the repayment of the whole or a part of the amount specified in the certificate, if such a payment is received, under such circumstances as it thinks fit and specified in the certificate.
(2)     A person who contravenes or fails to comply with an order under subsection (1) is guilty of an offence.
Penalty: $2,000 or imprisonment for 6 months.
Mr Clift, counsel for the appellant, submitted that there were no monies payable to the appellant under the Work Health Act as yet because the appellant had not lodged a claim. He submitted that until that occurred and the employer accepted liability under s 85(1) of the Act, or the employer was deemed to have accepted liability under the Act, or the Work Health Court found that the employer was liable to make payments of compensation and ordered compensation payments to be made to the appellant, nothing was payable to the appellant under the Work Health Act. In support of this contention, Mr Clift relied upon Work Social Club – Katherine Inc. v Rozycki (1998) 143 FLR 224, where I said with the concurrence of Gallop ACJ and Bailey J at 236-237:
There are distinctions to be made between an entitlement to a benefit or an amount of compensation and that benefit or compensation becoming "payable". I consider that "payable" means "due and payable"; in other words, a worker may be entitled to a benefit, or to compensation, but the benefit or compensation may not yet be payable. The most obvious example of this is where the employer accepts liability under s 85(1). The worker cannot insist upon payment until after three days of acceptance; that is, the compensation is not payable until then, although the entitlement to it has been established.
Further, Mr Clift's principal submission was that the word "payable" in s 13(2) of the Crimes (Victims Assistance) Act is a general word and should be given its usually accepted meaning unless the contrary intention is shown, having regard to the text of the provision and its context in the relevant Act. He submitted that the ordinary meaning of "payable" signifies that "something is presently capable of being paid": see Glass v Defence Force Retirement and Death Benefits Authority (1992) 38 FCR 534 at 537. In essence, he submitted that "payable" in s 13(2) should be given the same meaning as it was given by the Court of Appeal in Work Social Club – Katherine Inc v Rozycki (supra).
Counsel for the respondent, Mr Waters QC, submitted that "payable" in s 13(2) of the Act should be given a broad enough meaning to include an entitlement when the only thing standing between the money becoming immediately payable is a procedural step such as the lodging of a claim. Mr Waters QC relied upon Pitakis v S.A. Spastic Paralysis Welfare Association Inc (1983) 33 SASR 302, where the Full Court comprising Mitchell, Wells and Cox JJ held that the word "payable" in ss 52(1) of the Workers Compensation Act, 1971-1999 (SA) was interpreted to mean "liable to be paid". It was conceded that the legislation there being considered was very different from s 13(2) of the Crimes (Victims Assistance) Act, but the case was cited as an example of a facilitative approach being taken where the circumstances require it. Mr Waters QC also referred to the decision of the New South Wales Court of Appeal in Walsh v The Commonwealth (1998) 155 ALR 182 at 189, which considered the word "payable" in s 45(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), but other than demonstrating that that word can have the meaning of "liable to pay", depending on its statutory context, the case has no other utility in this context. In particular, it cannot stand for the proposition that "payable" in s 53 of the Work Health Act has that meaning in the light of Work Social Club – Katherine v Rozycki, but I did not understand Mr Waters QC to be suggesting that it did. Rather, his argument was that s 13(2) of the Crimes (Victims Assistance) Act conferred a discretion on the Court to have regard to an amount "payable" (in the sense he submitted) and to reduce the amount specified in the certificate "by such amount as it considers appropriate in the circumstances". It was submitted that these latter words indicated an intention by the Parliament that some allowance could be made, taking into account the possibilities that the amount of compensation payable might not be able to be determined accurately and the chance that the claim might not succeed.
I consider that the respondent's submission must be rejected. It is clear from s 13A(1) that if there is an entitlement to compensation, or may be an entitlement to compensation, the Court may make "...such order as to repayment of the whole or part of the amount specified in the certificate, if such payment is received, under such circumstances as it thinks fit and specified in the certificate." (emphasis mine). This provision clearly focuses upon the situation where there is either an existing entitlement, or the possibility of a future entitlement, but nothing is as yet payable in respect of that entitlement. In those circumstances, the draftsman must have envisaged that no reduction had already been made in the certificate pursuant to s 13(2), for otherwise the applicant would be in danger of having the deduction made twice. Even if there is an existing entitlement, s 13A makes it clear that there is to be repayment only "if such a payment is received."
A significant problem with the respondent's argument is that if Mr Waters QC is correct, claimants who may have an entitlement that is "payable" in the sense contended for by the respondent, would be liable to have litigated in the Local Court their entitlement as to the receipt of compensation payments under the Work Health Act. The spirit of the Crimes (Victims Assistance) Act, as stated in s 15, is that hearings are to be conducted with as little formality and technicality, and with as much expedition as the requirements of the Act and a proper consideration of the application permit, and, it is to be noted, the Court is not bound by the rules of evidence. Claims under the Work Health Act are often not simple and straightforward and are often quite technical. There is a danger that claims might be reduced because of an optimistic view of the claimant's capacity to establish liability, especially where the views of the claimant's employer are unlikely to be heard.
Further, I note that s 13(2)(a) refers to "any payment received or payable by way of...damages from the offender...". In most cases, the victim will have an action for damages against the offender for trespass to the person and the claimant will inevitably, as part of his case for a certificate, prove the offender's liability in tort as well as the quantum of his claim. It might be said that all the claimant has to do is institute proceedings and judgment in his favour is inevitable. In my opinion, to give the word "payable" a meaning wide enough to include a mere entitlement contingent only upon the bringing of a claim would virtually destroy the compensation scheme which the Act is intended to establish.
Finally, the Act is remedial and should be construed beneficially. The words of s 13(2) and s 13A should be given a construction so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open, even if there is no ambiguity in the words chosen by the draftsman: see Woodruffe v Northern Territory of Australia [2000] NTCA 8 at [28]. The construction I have arrived at is consistent with this approach and consistent with the overall objects and purposes of the Act to provide compensation to victims of crime.
In conclusion, I consider that the proper meaning to be given to "payable" in s 13(2) is "presently due and payable". The learned Magistrate therefore erred in not allowing the full amount of $917-00 in the certificate. However, as the facts also establish that the appellant has or might become entitled to receive weekly payments of compensation under the Work Health Act sections 53 and 64, there should be an order under s 13A(1) requiring him to repay to the Northern Territory of Australia on behalf of the Victims' Assistance Fund within seven days of the receipt of such payment, so much of the amount of $917-00 that he receives by way of weekly compensation under the Work Health Act arising out of the injury which he sustained on 11 October 1998.
The formal orders of the Court are therefore as follows:
1.   The appeal is allowed.
2.   The assistance certificate is to be amended to include:
(a) a further amount of $917-00 for loss of wages;
(b)an order under s 13A(1) that the appellant shall repay so much that he receives by way of weekly compensation under the Work Health Act arising out of the injury which he sustained on 11 October 1998 as does not exceed in the aggregate the sum of $917-00, such payment to be made to the Northern Territory of Australia on behalf of the Victims' Assistance Fund within seven (7) days of the receipt of any payment or payments of such compensation.
3.   The respondent is to pay the appellant's costs of the appeal to be taxed.

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