Laminex Group Pty Ltd v Catford - [2021] NTSC 92

CITATION: Laminex Group Pty Ltd v Catford [2021] NTSC 92

PARTIES: LAMINEX GROUP PTY LTD

v
CATFORD, Joanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-00404-SC
DELIVERED:  30 November 2021
HEARING DATE:  31 May 2021
JUDGMENT OF:  Grant CJ
CATCHWORDS:

WORKERS COMPENSATION – Entitlement to and liability for compensation – Proceedings to obtain compensation – Preliminary requirements – Assessment and amount of compensation – Cessation of payments
Whether Notice of Decision cancelling payment of weekly benefits valid – Work Health Court fell into error of law by finding that Notice of Decision invalid – Finding that Notice of Decision valid not conclusive of the final result – Whether Work Health Court erred in law in determining worker’s ‘most profitable employment’ – Whether Work Health Court erred in law in dismissing the employer’s Counterclaim – Appeal allowed – Matter remitted to Work Health Court for rehearing.
Return to Work Act (NT) s 65, s 69, s 80, s 85, s 104, s 116
Work Health Administration Act 2011 (NT) s 14
Work Health Court Rules 1999 (NT) r 9.05
AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185, Alexander v Gorey & Cole Holdings Pty Ltd (2001) 163 FLR 227, Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31, Barbaro v Leighton Constructors Pty Ltd (1980) 44 FLR 204, Cardiff Corporation v Hall [1911] 1 KB 1009, Collins Radio Constructors v Day (1998) 143 FLR 425, Comcare v Rawling (1993) 42 FCR 421, Davison v Totalisator Administration Board (1988) 56 NTR 8, Dickin v NT TAB Pty Ltd [2003] NTSC 119, Disability Services v Regan (1998) 8 NTLR 73, FAI General Insurance Co Ltd v. Southern Cross Exploration NL (1988) 165 CLR 268, Foresight Pty Ltd v Maddick (1991) 1 NTLR 209, Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, Global Insulation Contractors (NSW) Pty Ltd v Keating [2012] NTSC 4, JH Constructions Pty Ltd v Davis (unreported, SCNT, 3 November 1989), Josephson v Walker (1914) 18 CLR 691, Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1, Knight v. FP Special Assets Ltd (1992) 174 CLR 178, Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, Morrisey v Conaust Ltd (1991) 1 NTLR 183, Newton v Masonic Homes Inc [2009] NTSC 51, Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465, Quality Plumbing & Building Contractors Pty Ltd v Schloss [2015] NTSC 56, The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404, referred to.
REPRESENTATION:
Counsel:
Appellant:B O’Loughlin
Respondent:  M Grove
Solicitors:
Appellant:HWL Ebsworth Lawyers
Respondent:  Ward Keller
Judgment category classification:              B
Judgment ID Number:  GRA2122
Number of pages:  50

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Laminex Group Pty Ltd v Catford [2021] NTSC 92

No. 2021-00404-SC
BETWEEN:

LAMINEX GROUP PTY LTD
Appellant

AND:

JOANNE CATFORD
Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 30 November 2021)

This is an appeal from a decision of the Work Health Court delivered on 28 January 2021 that found the employer’s Notice of Decision dated 21 September 2018 to be invalid, and dismissed the employer’s Counterclaim dated 29 June 2020.[1] The consequence of those findings was that the employer became liable to pay the worker arrears of weekly benefits from the date of cancellation; interest on those arrears pursuant to s 89 of the Return to Work Act 1986 (NT); medical and like expenses pursuant to s 73 of the Return to Work Act; and costs.
The employer has brought an appeal from that determination contending, in essence:
(a)that the Work Health Court erred in law in finding that the Notice of Decision cancelling benefits was invalid;
(b)that the Work Health Court erred in law in determining the worker’s ‘most profitable employment’; and
(c)that the Work Health Court erred in law in dismissing the employer’s Counterclaim despite finding that the worker had the capacity to work 12 hours per week.
In response, the worker has filed a Notice of Contention contending:
(a)that the Work Health Court’s determination that the Notice of Decision was invalid should be upheld on the basis that the evidence did not establish or substantiate any of the grounds provided in the Notice of Decision; and
(b)that the Work Health Court’s determination to dismiss the employer’s Counterclaim should be upheld on the basis that:
(i) the Work Health Court does not have jurisdiction to hear and determine a counterclaim by an employer in proceedings commenced by a worker; and
(ii) after the first 104 weeks of incapacity, the geographical location of the most profitable employment identified by an employer is not a relevant consideration in determining the most profitable employment ‘available’ within the meaning of ss 65(2) and (5) of the Return to Work Act.
Notice of Decision
The employer contends that the finding that the Notice of Decision was invalid was predicated on three errors of law. The first was the finding that the Notice did not comply with s 69(1)(b) of the Return to Work Act. The second was the finding that the certification from a medical practitioner did not comply with s 69(3) of the Return to Work Act. The third was the finding that the Notice as a whole did not comply with s 69(4) of the Return to Work Act.
Section 69(1)(b) of the Return to Work Act relevantly provides:
(1) Subject to this Subdivision, an amount of compensation under this Subdivision shall not be cancelled or reduced unless the worker to whom it is payable has been given:
(a) …
(b) a statement in the approved form:
(i) setting out the reasons for the proposed cancellation or reduction;
(ii) to the effect that, if the worker wishes to dispute the decision to cancel or reduce compensation, the worker may, within 90 days after receiving the statement, apply to the Authority to have the dispute referred to mediation;
(iii)to the effect that, if mediation is unsuccessful in resolving the dispute, the worker may appeal to the Court against the decision to cancel or reduce compensation;
(iv) to the effect that, if the worker wishes to appeal, the worker must lodge the appeal with the Court within 28 days after receiving a certificate issued by the mediator under section 103J(2);
(v) to the effect that the worker may only appeal against the decision if an attempt has been made to resolve the dispute by mediation and that attempt has been unsuccessful; and
(vi) to the effect that, despite subparagraphs (iv) and (v), the claimant may commence a proceeding for an interim determination under section 107 at any time after the claimant has applied to the Authority to have the dispute referred to mediation.
The Notice of Decision which the employer gave the worker on 21 September 2018 was in the form approved by the Work Health Authority. So far as the question of appeal and mediation is concerned, that form contained the following pro forma statements (as opposed to content formulated by the employer for the purpose of this particular cancellation):
Rights of Appeal
MEDIATION

Do you wish to dispute the NOTICE OF DECISION?

You may apply for Mediation if you wish to dispute the NOTICE OF DECISION.
…
NOTE: You have 90 days from receipt of this Notice of Decision and Rights of Appeal document to apply to NT WorkSafe for Mediation.
Mediation is a requirement before an application can be made to the Work Health Court.
…

NOTE: before making an application to the Work Health Court except for an application for interim benefits the worker must first apply for and complete the mediation process.

The Mediation process will conclude in you receiving a Certificate of Mediation. Then, if you wish to contest the decision in the Work Health Court you must make an application to the Court within 28 days of receiving a Certificate of Mediation.

It is express in those provisions that if the worker wishes to dispute the decision to cancel or reduce compensation, he or she may apply for mediation; that if the worker wishes to contest the decision following mediation, the worker must make application to the Work Health Court within 28 days after receiving a certificate issued by the mediator; and that an appeal to the Court may only be brought if an attempt has been made to resolve the dispute by mediation. It is implicit in those provisions that if mediation is unsuccessful in resolving the dispute the worker may apply to the Court to contest the decision to cancel or reduce compensation. Despite that ex facie compliance with s 69(1)(b)(iii), (iv) and (v) of the Return to Work Act, the Work Health Court found that the notice did not comply with those provisions on the following ground:
The clear point of distinction between the requirements in subsection 69(1)(b)(iii), (iv) and (v) and the statements actually set out in this Notice is the claim in the Notice that the mediation process will conclude in the Worker’s receiving a Certificate of Mediation and then, and by implication only then, the Worker can make an application to the Court. This goes further than the required statements and is in any event an incorrect statement of the law.
The issue whether a Certificate of Mediation must issue and be received before a worker is entitled to make an application to the Court was considered by Magistrate Trigg of this Court in Murwangi Community Aboriginal Corporation v Denis Martin Carroll [2002] NTMC 25. The Worker in that case had made an initiating Application to the Court more than 28 days after having requested a mediation but before any mediation had been held, and before a Certificate of Mediation had issued. The Employer applied to the Court to strike out the Worker’s initiating Application because no mediation had been held and because no Certificate of Mediation had issued. Magistrate Trigg ruled that the times prescribed in the Act for the holding of a mediation once the request had been received must be strictly observed and if a mediation was not held within the prescribed time then it was ipso facto “unsuccessful” and “The fact that the certificate had not issued by the time the proceedings had been commenced, in my view should not be a bar to the proceedings”.
Accordingly, in my view the statements required under subsections 69(1)(b)(iii), (iv) and (v) and which purport to be provided in the Notice in this case when considered together include an incorrect statement of the Worker’s rights and obligations. This is not cured by prefacing the statutory requirements with the words “to the effect that...”. [2]
That finding was clearly made in error. Subsection 69(1)(b)(iv) is the statutory provision which stipulates the relevant criterion of validity. It is that the Notice must provide a statement ‘to the effect that, if the worker wishes to appeal, the worker must lodge the appeal with the Court within 28 days after receiving a certificate issued by the mediator under s 103J(2)’. The relevant provision in the Notice served on the worker in this case was that ‘if you wish to contest the decision in the Work Health Court you must make an application to the Court within 28 days of receiving a Certificate of Mediation’. That constitutes substantial, if not strict, compliance with the statutory requirement.
There is no point of distinction between the relevant statutory provision and the content of the Notice on the basis identified by the Work Health Court. Rather, the Work Health Court has identified a circumstance in which a worker might arguably make an application to the Work Health Court without a certificate from the mediator, which is not recognised in the requirements imposed by statute as a precondition to an effective notice of cancellation or reduction of compensation. Even if the rather obscure point of construction seized upon by the Work Health Court is correct, the conclusion which follows is that the statutory requirements for effective notice constitute an incomplete statement of the circumstances in which a worker may lodge an appeal with the Work Health Court. It is not that the Notice is vitiated by formal defect for failure to comply with the statutory requirements.
The second basis on which the Work Health Court found that the Notice of Decision was invalid was that the certification from a medical practitioner did not comply with s 69(3) of the Return to Work Act. That subsection provides:
Where compensation is to be cancelled for the reason that the worker to whom it is paid has ceased to be incapacitated for work, the statement under subsection (1) shall be accompanied by the medical certificate of capacity of the medical practitioner certifying that the person has ceased to be incapacitated for work.
The Notice in this case was accompanied by the medical certificate of a medical practitioner dated 13 September 2018. That certificate was based on an examination conducted on 28 August 2018, and certified that the worker had ceased to be incapacitated for work or, in the alternative, that if the worker was still incapacitated for work then such incapacity was no longer a result of the work-related injury/disease. The grounds for that opinion were stated as follows:
Having examined the worker it is my opinion that as from [28 August 2018] in relation to her work-related injury, namely an aggravation of her underlying condition, that being impingement and a partial tear of her cuff and some AC joint arthritis of left shoulder injury (the injury) sustained on 9 February 2012, I certify that:
The worker has ceased to be incapacitated for work as a result of the injury.
1.    The injury, being the aggravation, has now ceased.
2.    If the worker is still incapacitated for work, then such incapacity is due to the worker’s underlying condition not related to the injury.
3.    There is no reason why the worker could not return to her pre-injury role.
The Work Health Court quoted that part of the medical certificate in its decision, but, for reasons which are not readily apparent, excluded from that extract the statement that, ‘[t]he worker has ceased to be incapacitated for work as a result of the injury.’[3] The Work Health Court then went on to find that the certificate did not comply with s 69(3) of the Return to Work Act for the following reasons:
Whilst the first of the statements which Dr Andrews has ticked complies with the wording of the requirement in subsection 69(3) of the Act, it is not in the form of a certification. The only certification appears as set out in the preceding paragraph and it does not include the words that the Worker “has ceased to be incapacitated for work”.
In Collins Radio Constructors Inc v Day (“Day”) (1998) 143 FLR 425 at page 430.4 and following, the NT Court of Appeal said unanimously: “... the question can be narrowed down to whether the requirement that the certificate served upon the worker should indicate that the worker has ceased to be incapacitated for work is of such importance to the object of the statute as to disclose an intention that its complete non-observance should invalidate the action of the appellant in cancelling the respondent’s weekly benefits. For the reasons given by the learned Chief Justice, we think that the answer to this question must be “yes”, and that it is clear beyond question that the requirements of section 69(3) as to the contents of the certificate may not be ignored”.
The Court went on in Day as follows: “However, we would not go so far as to say that a form of words other than those prescribed by the subsection could never amount to compliance. If, for example, Dr Awerbuch had certified that the appellant was “capable of returning to employment full-time in all forms of employment for which she had any previous experience” this or some other suitable words, would convey the same meaning as “ceased to be incapacitated for work”. We do not think it was the intention of the legislature that only the precise words chosen by the legislature, and no others conveying the same meaning, would suffice. Obviously those who draft the certificates would be wise to follow the words of the statute, but they are not to be treated as possessing special magical powers which other words to like effect do not”.
The question therefore is whether Dr Andrews’ certification consists of words “... conveying the same meaning...” or which are “...of like effect...”. I am satisfied that it does not. This is because in reason 3. Dr Andrews limits his certification to the Worker’s “pre-injury role”. In order to convey the same meaning as the words prescribed by the statute Dr Andrews needed to embrace a broader concept such as that suggested in Day in the preceding paragraph, of “all forms of employment for which (s)he had any previous experience”. I am satisfied and I find that the Notice does not comply with subsection 69(3) of the Act.[4]
That finding was also clearly made in error. It would be an exercise in sophistry to suggest that there was no relevant certification because the word ‘certify’ was not used in conjunction with the formulation ‘has ceased to be incapacitated for work’. First, the document itself is titled ‘Statement of fitness for work – Final certificate’. Its whole character and content is a certification of medical opinion. Second, the medical practitioner has clearly marked that box which indicates his ‘opinion’ that, ‘[t]he worker has ceased to be incapacitated for work’. That expression of opinion, appearing as it does in the body of a medical certificate, clearly constitutes a certification in the relevant sense. Third, the grounds for the opinion endorsed in the certificate expressly include, ‘I certify that: The worker has ceased to be incapacitated for work as a result of the injury.’ Fourth, the passages extracted from Collins Radio Constructors Inc v Day[5] are concerned with the question whether the certificate had adequately conveyed that the worker had ‘ceased to be incapacitated for work’ or some formulation conveying the same meaning. It is not authority for the proposition that the word ‘certify’ must be used in any particular place or as part of any particular configuration.
Turning then to the finding that the medical certificate failed to indicate adequately that the worker had ceased to be incapacitated for work, that finding was based on the fact that the reason numbered ‘3’ limited the certification to the worker’s ‘pre-injury role’. In essence, this was said to be inconsistent with the notion that ‘incapacity’ extends to an inability or limited ability to undertake paid work in a worker’s general labour market ‘because of an injury’,[6] as opposed to an inability or limited ability to undertake the duties of the specific job in which the worker was employed at the time of injury. This finding fails to have regard to the certification as a whole.
First, as stated, the grounds for the opinion included an express certification that the worker had ceased to be incapacitated as a result of the injury. Second, the grounds described the work-related injury as the aggravation of an underlying condition in the worker’s left shoulder, and provided expressly that the aggravation had ceased. That particular ground made it plain that in the medical practitioner’s opinion, the worker had no inability or limited ability to undertake paid work ‘because of an injury’, and was not limited to the worker’s pre-injury role. Third, the grounds stated expressly that if there was any incapacity for work, it was due to the worker’s underlying condition and unrelated to the injury, which had ceased. Again, that explanation made it plain that in the medical practitioner’s opinion the worker was no longer incapacitated ‘because of an injury’. The subsequent and final reference to the worker’s ability to return to ‘her pre-injury role’ is properly read having regard to the preceding explanations. On such a reading, it is plain that there was no failure to comply with the statutory requirement that the certificate should indicate that the worker has ceased to be incapacitated for work.

The third basis on which the Work Health Court found that the Notice of Decision was invalid was that the Notice as a whole did not comply with s 69(4) of the Return to Work Act. That subsection provides:
For the purposes of subsection (1)(b), the reasons set out in the statement referred to in that subsection shall provide sufficient detail to enable the worker to whom the statement is given to understand fully why the amount of compensation is being cancelled or reduced.
The Work Health Court found that the Notice of Decision did not provide sufficient detail to enable the worker to understand fully why the amount of compensation was being cancelled or reduced. In coming to that conclusion, the Court adopted statements made in two decisions of the Supreme Court concerning the operation of s 69(4) of the Return to Work Act. The first was the statement from Dickin v NT TAB Pty Ltd[7] to the effect that the Notice ‘must unambiguously spell out why a current payment regime should change in clear terms that a lay reader can fully and readily understand’. The second was the statement from Newton v Masonic Homes Inc in the following terms:
In my opinion, the test is an objective one, and does not depend on the level of education or intelligence of the worker. Nor is it invalid if written in English where the worker is unable to read, either at all, or in the English language. An objective test recognises that there will be many occasions where workers will need to consult a solicitor before being able to fully understand why the compensation is being reduced or cancelled, particularly as the provisions of the Act are complex and likely to be difficult for a layman to comprehend.[8]
Having identified those two statements, the Work Health Court stated:
Each of these rulings on the operation of subsection 69(4) of the Act is part of the ratio decidendi in its respective case and both are binding on this Court. I am satisfied that taken together, they establish that for the purposes of subsection 69(4) of the Act, a notice “...must unambiguously spell out why a current payment regime should change in clear terms that an average lay person can fully and readily understand...”, but in order to achieve this the notice need not take into account any disadvantage or disability which might derogate from the capacities or comprehension of the specific worker to whom the notice is directed. The test is an objective test and therefore it is not necessary for particular workers to give evidence of their understanding of the notices in specific cases.[9]
In adopting that formulation, the Work Health Court misdirected itself in law. First, the two statements prescribe two quite different approaches to the construction and operation of s 69(4) of the Return to Work Act which are not reconcilable. The statement from Dickin requires that the reasons must permit of understanding by the layperson without further assistance. Conversely, the statement from Newton clearly contemplates that valid reasons might not permit of such understanding without further explanation and assistance. The statement from Newton is not limited in its operation to disadvantages or disabilities which might bear upon a particular worker’s comprehension. Second, the decision at intermediate level in Dickin was comprehensively overturned by the Court of Appeal, including the determination in relation to the validity of the notice.[10] Third, Mildren J’s formulation from Newton has subsequently been endorsed and adopted by the Court of Appeal.[11]
The Work Health Court went on to find that the Notice consisted of four documents, viz the covering letter dated 21 September 2018; the Notice of Decision and Rights of Appeal in approved form which is described above; a medical report dated 28 August 2018; and the medical certificate dated 13 September 2018 which is described above. The medical report was prepared by the same medical practitioner who provided the certificate dated 13 September 2018, and describes the examination of the worker conducted on 28 August 2018 and the conclusions drawn from that examination.
To approach the matter on the basis that the Notice was constituted by all of those materials was also in error. That is because s 69(4) of the Return to Work Act is concerned with the reasons set out in the statement in the approved form. It is not concerned with the Notice generally, or with documents which might be related to or served with the Notice. Accordingly, it was not open to the Work Health Court, on a consideration of the ‘four documents as a whole’, to determine that ‘the Notice is over-long, verbose, circular, ambiguous, garbled and confusing’.[12] It was also not open to the Work Health Court to adopt the test that the Notice had to be ‘in clear terms which an average lay person can fully and readily understand’.[13] For the reasons already given, that is an erroneous synthesis derived from the misguided attempt to reconcile the statements in Dickin and Newton. In assessing compliance with s 69(4) of the Return to Work Act the operative question is whether the reasons set out in the statement provide sufficient detail to enable the worker to understand why compensation has been cancelled or reduced, including with the assistance of a solicitor where necessary.
That part of the Notice setting out the reasons for the proposed cancellation or reduction states:
The reasons for this decision are:
This Notice of Decision is to advise you of a decision by the employer in relation to your claim for compensation dated 29 February 2012 (the left shoulder claim) for a left shoulder injury that you suffered on 9 February 2012 (the left shoulder injury).
Background/Relevant matters
1.    On or about 9 February 2012 you suffered the left shoulder injury.
2.    On or about 29 February 2012 you submitted a claim to the employer in respect of the left shoulder injury.
3.    By written notice dated 18 April 2012 Allianz accepted the left shoulder claim on behalf of the employer.
4.    In his report dated 28 August 2018, Dr Andrews reported as follows:
10. If the worker did suffer an injury to her left shoulder, was her employment with the employer a significant contributing cause of the injury? Please detail the basis of your opinion.
It would seem reasonable that Joanne has had a work-related aggravation of her underlying condition. I would consider that the aggravation has now ceased and her ongoing problems are due to the underlying condition.
Capacity for Work
11. If the worker did suffer an injury to her left shoulder, has the worker ceased to be incapacitated for work in relation to that injury?
There does not seem to be any reason why Joanne could not return to work. She would be able to resume most occupations. She may struggle with an occupation that required heavy repetitive work above shoulder height.
12. If the worker did suffer an injury to her left shoulder, and she continues to suffer any capacity for work, do you agree that the worker’s incapacity is no longer as a result of the work-related injury?
Yes, any ongoing limitations are not due to the work-related injury.
5.    On 13 September 2018 Dr Andrews issued a Statement of fitness for work – Final certificate in which he certified that:
(a) You have ceased to be incapacitated for work; and
(b) Your incapacity is no longer as a result of the injury.
6.    Further, Dr Andrews stated in the Final certificate:
Having examined the worker it is my opinion that as from 28 August 2018 in relation to her work-related injury, namely an aggravation of her underlying condition, that being impingement and a partial tear of her cuff and some AC joint arthritis of the left shoulder injury (the injury) sustained on 9 February 2012, I certify that:
The worker has ceased to be incapacitated for work as a result of the injury.
1. The injury, being the aggravation, has now ceased.
2. If the worker is still incapacitated for work, then such incapacity is due to the worker’s underlying condition not related to the injury.
There is no reason why the worker could not return to her pre-injury role.
Based on the above, the employer has decided that:
1.    You have ceased to be incapacitated (total or partial) as a result of the left shoulder injury.
2.    You no longer suffer from a work-related injury to your left shoulder for the purposes of the Return to Work Act.
3. In light of all of the above, your entitlement to compensation is cancelled pursuant to sections 65 and 69 of the Return to Work Act.
It is difficult to see how the reasons for the cancellation could have been expressed with greater clarity or precision. They could perhaps have been formulated more briefly, but at the expense of excluding the relevant parts of the medical opinion. While the Work Health Court was critical of the employer’s decision to annex the medical report dated 28 August 2018 to the Notice of Decision, it was not inappropriate to do so in circumstances where the reasons for cancellation made reference to the report. In fact, the employer might well have been subject to criticism for failing to provide the report had it not done so. It cannot reasonably or rationally be concluded that the reasons set out in the statement failed to provide sufficient detail to enable the worker to understand why compensation has been cancelled or reduced, including with the assistance of a solicitor where necessary, and therefore failed to comply with s 69(4) of the Return to Work Act.
Not only were all three findings concerning the validity of the Notice of Decision made in error, they were errors on questions of law because they involved a determination of whether the facts found fell within the relevant provisions of s 69 of the Return to Work Act as properly construed. Accordingly, they are amenable to appeal under the terms of s 116 of the Return to Work Act and these grounds of appeal have been made out. The Notice of Decision and Rights of Appeal dated 21 September 2018 complied with the procedural requirements of s 69 of the Return to Work Act and was valid. The worker’s Notice of Contention in relation to the validity of the Notice is dealt with further below.
Consequence of finding Notice of Decision valid
The above finding gives rise to a consideration of what the consequences would have been had the Work Health Court not fallen into error in finding that the Notice of Decision was invalid, and the consequences of the finding in this appeal that the Notice was in fact valid. Those consequences were described in general terms by the Court of Appeal in Lee v Macmahon Contractors Pty Ltd.[14] So far as is relevant to these circumstances, they are as follows.
The Work Health Court found, and both parties accepted, that the worker’s ‘appeal’ to the Work Health Court against the decision to cancel weekly benefits did not widen the scope of the issues beyond an appeal against cancellation.[15] In those circumstances, the employer carries the burden of first proving that there has been compliance with the procedural requirements of s 69 of the Return to Work Act.[16] If the Notice is found to be valid, the employer then bears the onus of establishing the change of circumstances warranting the cancellation of the weekly benefits. Where the reason for cancellation given in the Notice is an assertion that the worker has ceased to be incapacitated for work, the employer assumes the burden of proving the cessation of total incapacity.[17] If the employer fails to establish that change in circumstances, it will be required to continue the payment of weekly benefits until those payments are lawfully cancelled or reduced.[18] On the other hand, if the employer is successful in discharging those onera, the onus of proving any partial incapacity passes to the worker.[19] This Court is bound by those principles as formulated by the Court of Appeal, and neither party to this appeal submitted that this Court should depart from them in any event.
Those principles are sufficient to dispose of the worker’s Notice of Contention concerning the validity of the Notice of Decision. The contention is that even if it is found on appeal that the Notice of Decision satisfied the procedural requirements, the Work Health Court’s determination that the Notice was invalid should be upheld on the basis that the evidence did not establish or substantiate any of the grounds provided in the Notice. That contention conflates invalidity on procedural grounds and the requirement to prove a change in circumstances. The latter requirement involves a substantive question, and a failure on the part of the employer to establish that matter will ground an order for the continuation of the payment of compensation, but not on the basis that the Notice is invalid.
Returning then to the respective burdens of the parties, the significance of those onera has been reduced in practical and evidentiary terms by the body of authority which has built up around the operation of s 69 of the Return to Work Act, and the manner in which proceedings are generally conducted in the Work Health Court as a result. Under that authority, a Notice which fails to comply with the procedural requirements will be invalid and ineffective in terminating the worker’s right to receive payments of compensation.[20] However, as a consequence of a series of decisions of the Supreme Court and the Court of Appeal, the practice has developed whereby an employer may guard against the contingency that a Notice may be found to be invalid for formal defect by bringing a ‘counterclaim’ to the worker’s ‘appeal’, asserting the substantive case for the cancellation or reduction.[21]
That is what the employer did in the present case. By Counterclaim dated 29 June 2020, the employer pleaded that the worker was capable of undertaking work as a dental or medical practice manager, or a dental assistant, and reasonably capable of earning anywhere between $769.23 and $1538.46 gross per week, depending upon the role in which she was employed. In the alternative, the employer pleaded that the worker was capable of carrying out that employment on a part-time basis of at least 20 hours per week. The employer sought, in essence, a determination of whether any, and if so what, compensation in the form of weekly benefits was payable; a declaration that the worker had ceased to be totally incapacitated; and costs.
The Work Health Court sought to make something of the fact that the employer had not pleaded expressly in the Counterclaim that the worker had ceased to be incapacitated for work, and sought a declaration only that worker had ceased be totally incapacitated.[22] Nothing turned on that matter, because the employer’s primary case on the Counterclaim was that, at the date of cancellation and from thereon, the worker had no loss of earning capacity as a consequence of the injury. The employer’s ‘fall back’ case was that the worker was capable of working at least 20 hours per week.
Ordinarily, as was the case in these proceedings, the workers ‘appeal’ and the employer’s Counterclaim are heard together, with the employer dux litis in both. As a consequence, the employer’s evidence traversed all issues arising in the proceedings, including: the cessation of total incapacity; the employment the worker was capable of undertaking; whether that employment was ‘available’; the amount the worker was reasonably capable of earning in that employment; and the worker’s capacity to undertake employment on a part-time basis of at least 20 hours per week. In those circumstances, the worker was able to call in aid both the employer’s evidence to the extent that it was supportive of the worker’s case, and any evidence which the worker herself called in order both to discharge the onus of proving any partial incapacity in her ‘appeal’ against cancellation, and in defence of the employer’s Counterclaim.
In the present case, had the Work Health Court correctly found that the Notice of Decision was valid, it would have then been incumbent on the Court to determine whether the employer had established a cessation of total incapacity and, if so, whether the worker had in turn proved a partial incapacity and to what extent. They are essentially the same issues that arose for determination on the Counterclaim, which the Work Health Court went on to determine in any event. Accordingly, leaving aside fine distinctions concerning where the persuasive onus lay on each issue, the Work Health Court would have gone through essentially the same process regardless of whether it found the Notice of Decision to be valid or invalid. Similarly, the finding on this appeal that the Notice of the Decision was valid is not conclusive of the final result. It still leaves the questions of whether the Work Health Court erred in law in determining the worker’s ‘most profitable employment’ (which subsumes whether there was a cessation of total incapacity and whether there was any continuing partial incapacity); and the question of whether the Work Health Court erred in law in dismissing the employer’s Counterclaim despite finding that the worker was capable of working 12 hours per week. Ultimately, the question arising on both the ‘appeal’ and the Counterclaim was the extent of the worker’s entitlement to compensation.

Validity of counterclaim procedure

Those considerations make it strictly unnecessary to consider the worker’s Notice of Contention that the Work Health Court does not have jurisdiction to hear and determine a counterclaim by an employer in proceedings commenced by a worker. That is because, for the reasons I have described, the Notice of Decision was valid and it was therefore incumbent on the Work Health Court to determine whether the employer had established a cessation of total incapacity and, if so, whether the worker had in turn proved a partial incapacity and to what extent. That lack of necessity notwithstanding, I will deal with the issue for sake of completeness, and to obviate the need, when discussing the remaining grounds of appeal, to make fine distinctions between the issues arising on the worker’s ‘appeal’ and the issues arising on the employer’s Counterclaim.
As stated above, the prevailing authority and practice is that it is open to an employer to assert the substantive case for cancellation or reduction by counterclaim in the event that the Notice of Decision is found to be invalid. The counterclaim procedure had its genesis in observations made by Mildren J (with whom the other members of the Court of Appeal agreed) in Disability Services v Regan. His Honour stated:
The second matter is that the Work Health Rules do not contemplate, and made no specific provision for, a counterclaim. In this case, the appellant sought in its answer to recover payments of compensation already made. The learned Chief Stipendiary Magistrate, although finding for the employer, did not consider this claim. That is not the subject of complaint here, but it illustrates a weakness in the Work Health Rules which perhaps should be addressed. It is understandable that, in proceedings in the Work Health Court, the parties will usually wish to litigate all outstanding issues. An employer who has served a s69 notice, may subsequently decide after the [worker] has appealed, that the issues to be decided upon the appeal are too narrowly confined. At present, if the employer is in this position, the employer can bring its own substantive application and apply to have the two applications heard together. It may simplify hearings procedurally and focus proper attention on who bears the onus of proof if the rules were amended to permit the employer to raise new issues by way of counterclaim.[23]
The Work Health Court Rules which had been made in 1987 were repealed and replaced by the Work Health Court Rules 1999 with effect from 1 August 1999, shortly after the decision in Disability Services v Regan was delivered. Whether coincidentally or not, r 9.05 of the new Rules made provision for counterclaims in the following terms:
(1) If:
(a) an employer served with a statement of claim has a claim against the worker; or
(b) a respondent served with a statement of claim has a claim against the applicant,
he or she may counterclaim in the proceeding by completing the part of the notice of defence that relates to a counterclaim.
(2) A counterclaim is to contain:
(a)a concise statement of the nature of the claim;
(b) particulars of the claim; and
(c) a statement of the relief or remedy sought.
(3) The pleadings in a counterclaim are to comply with Part 8 but a failure to comply does not invalidate the counterclaim.
(4) These Rules apply to and in relation to a counterclaim as if:
(a) a reference in these Rules to a party who is the employer or respondent were a reference to the worker or applicant; and
(b) a reference in these Rules to a party who is the worker or applicant were a reference to the employer or respondent.

That provision remains in the Rules. Although the availability of the counterclaim process was not subsequently subject to any express analysis in the authorities, the Work Health Court’s jurisdiction to entertain a counterclaim by an employer was assumed on the basis that: (a) it was open to an employer to bring its own substantive application in response to an ‘appeal’ by a worker;[24] (b) such an application could broaden the issues to be determined beyond those raised by the ‘appeal’, including asserting a substantive case for cancellation or reduction; (c) the Court could entertain an application for such relief pursuant to s 104(1), read with s 94(1)(a) of the Work Health Act (as the Return to Work Act was then named);[25] and (d) subject to appropriate provision in the rules of court, the application could be brought by counterclaim, rather than made separately and heard together with the ‘appeal’.
At the time the Rules providing for counterclaims commenced, s 104(1) of the Work Health Act provided:
For the purposes of the Court exercising its powers under section 94(1)(a), a person may, subject to this Act, commence proceedings before the Court for the recovery of compensation under Part V or for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under that Part.
At the same time, s 94(1) of the Work Health Act provided:
The Court has power to hear and determine -
(a) claims for compensation under Part V and all matters and questions incidental to or arising out of such claims; and
(b) all other matters required or permitted by this Act to be referred to the Court for determination,
and such other powers as are conferred on it by or under this or any other Act.
It was that latter provision, although couched in terms of ‘power’, which conferred jurisdiction on the Work Health Court. There can be no doubt that both an ‘appeal’ against cancellation and an employer’s substantive case in that respect were ‘matters [or] questions incidental to or arising out of’ a claim for compensation under Part V, which regulated both claim, cancellation and reduction procedures and the benefits available and payable under the legislation. However, it is the worker’s contention that subsequent iterations of the legislation have removed the provisions constituting and conferring power on the Work Health Court from the principal legislation (renamed the Return to Work Act), and promulgated them in different terms in the Work Health Administration Act 2011 (NT). Section 14 of the Work Health Administration Act relevantly provides:
The Court has the following jurisdiction:
(a) under the Return to Work Act 1986, to hear and determine:
(i) claims for compensation under Part 5 of that Act; and
(ii) all other matters required or permitted by that Act to be referred to the Court for determination;
(b) ….
(c) to determine all matters and questions incidental to, or arising out of, matters before the Court;
(d) ….
The worker’s argument follows that the Work Health Court’s jurisdiction is now restricted to hearing and determining claims for compensation and only such other matters expressly required or permitted under the terms of the Act to be determined by the Court. The examples of such matters postulated by counsel for the worker included determining the jurisdiction with which a worker’s employment is connected[26]; determining the proportions in which a deceased worker’s dependants are to receive benefits[27]; and interim determinations of compensation[28]. That submission cannot be accepted the following reasons.
The term ‘jurisdiction’ is an expression which is used in a variety of senses. As it is used in s 14 of the Work Health Administration Act, it denotes the authority of the Work Health Court to adjudicate upon a particular subject matter. The Work Health Court is a specialist tribunal, with two consequences. First, its jurisdiction is limited to matters arising under the Return to Work Act and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Second, where a specialist tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, the tribunal’s jurisdiction is both exclusive and exhaustive in the determination and enforcement of those rights.[29]
Part 5 of the Return to Work Act continues to regulate both claim, cancellation and reduction procedures and the benefits available and payable under the legislation. Given the Work Health Court’s character and constitution as a specialist tribunal created to determine and enforce the rights and obligations arising under that Part, the jurisdiction ‘to hear and determine claims for compensation’ is properly construed to include all matters arising out of a ‘claim’ within the meaning of s 80 of the Return to Work Act. It is not limited to the hearing and determination of primary applications for compensation by a worker. The adoption of that construction is consistent with the principle expressed by the High Court in The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc that ‘[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words’.[30] That principle was expressed in response to a submission that the conferral of jurisdiction in ‘a claim relating to ownership’ was limited to a claim by which a plaintiff asserted a right to possession, title or ownership, and did not extend to ancillary claims for equitable relief by third parties.
Moreover, on the construction pressed by the worker, although the Court would have jurisdiction to hear and determine an ‘appeal’ against cancellation, because it is a matter expressly permitted by the legislation to be determined by the Court, in the event of formal defect in the Notice of Decision the Court is not permitted to consider the substantive case underlying the employer’s use of the legislative machinery to either cancel or reduce payments of compensation. In hearing and determining that disputation, an employer cannot be deprived of the opportunity to present its substantive case in relation to that claim for compensation – whether by way of defence, counterclaim or separate application heard together with the ‘appeal’. To construe the grant of jurisdiction otherwise would be antithetical to the judicial process and the essential characteristics of a court.
The contrived nature of the construction pressed by the worker is demonstrated by the fact that in circumstances such as those presently under consideration, an employer would only be precluded from ventilating its substantive case in the event that the Notice of Decision was found to be invalid. If found to be valid, for the reasons and on the basis of the authority described above, the employer’s substantive contentions concerning the cessation of total incapacity and the level of partial incapacity would fall to be heard and determined in the context of the worker’s ‘appeal’. If a worker’s ‘appeal’ falls within the Court’s jurisdiction, so too must the employer’s substantive contentions.
Even if I am wrong in that determination, s 14(a)(ii) of the Work Health Administration Act would invest the Court with jurisdiction to entertain a counterclaim by an employer asserting a substantive case as another matter ‘required or permitted by [the Return to Work Act] to be referred to the Court for determination’. As the Work Health Court identified in the reasons below, s 104 of the Return to Work Act permits a person to commence proceedings for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under Part 5. That formulation is broad enough to encompass either a separate application or a counterclaim by the employer, even if it were to be accepted that s 14(a)(i) of the Work Health Administration Act is not.
‘Most profitable employment’
I turn then to consider the ground of appeal that the Work Health Court erred in law in determining the worker’s ‘most profitable employment’. The legislative context for that enquiry was the determination of the worker’s loss of earning capacity in accordance with the formula in s 65(2)(a) and (b)(ii) of the Return to Work Act, which provides:
For the purposes of this section, loss of earning capacity in relation to a worker is the difference between:
(a) his or her normal weekly earnings indexed in accordance with subsection (3); and
(b) the amount, if any, he or she is from time to time reasonably capable of earning in a week in work he or she is capable of undertaking if:
(i) …
(ii) in respect of the period after the first 104 weeks of total or partial incapacity – he or she were to engage in the most profitable employment that could be undertaken by that worker, whether or not such employment is available to him or her,
and having regard to the matters referred to in section 68.
The qualification ‘whether or not such employment is available’ was inserted into the provision by amending legislation which commenced on 1 November 2002. Prior to that amendment, s 65(2)(b) made no distinction between the first 104 weeks of incapacity and the period after that time, and provided that loss of earning capacity was the difference between indexed normal weekly earnings and:
… the amount, if any, he or she is from time to time reasonably capable of earning in a week in work he or she is capable of undertaking if he or she were to engage in the most profitable employment, if any, reasonably available to him or her, and having regard to the matters referred to in section 68.
The legislative purpose and intention in removing the requirement of availability from the assessment of the ‘most profitable employment’ was described in the second reading speech for the amending legislation in the following terms:
The bill will provide for a stronger ability to deem injured workers to have an earning capacity after 104 weeks of incapacity. This will have the potential to reduce future long-term scheme costs by enabling the possible reduction or cancellation of benefits in accordance with the claimant’s reasonable capacity to earn. Currently, a long-term partially incapacitated worker can remain on total incapacity benefits if, because of the condition of the labour market, suitable employment is not readily available. This provision will only apply after 104 weeks of incapacity.[31]
Although that speech gives relatively cursory attention to the legal issue involved, and describes that issue somewhat inelegantly, the subjective legislative intention is plain. That is, the amendment was intended to leave it incumbent on an employer to prove the most profitable employment which the worker was medically capable of undertaking, but to remove any onus on the employer to establish in the evidentiary sense that such employment was in fact available to the worker in the labour marketplace. It is in that sense that the amendment was said to ‘deem’ a worker to have that earning capacity, regardless of the state of the labour market.
The notion of availability of employment derives from early workers compensation law, and particularly the famous statement of Fletcher Moulton LJ in Cardiff Corporation v Hall in the following terms:
There can therefore be no general principle, i.e., a principle true in all cases, that in the case of partial incapacity the employer is required not only to show what work the workman can do but also to show that he can get such work. But on the other hand I am also of the opinion that there are cases in which the onus of showing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workmen so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market – if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to show that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman’s labour in the position of an ‘odd lot’ in the labour market, the employer must show that a customer can be found who will take it.[32]
As the principle was originally formulated, an employer only carried the onus of establishing that work was reasonably available in circumstances where the nature of the limitations on the worker’s ability to undertake paid employment were such that employment in the ordinary branches of the labour market was not available. The concept of ‘reasonable availability’ was expressly incorporated into some workers compensation legislation, including the Work Health Act when it was promulgated with effect from 1 February 1988.[33] The requirement in s 65(2)(b) of the Work Health Act to determine ‘the most profitable employment, if any, reasonably available to [the worker]’ came to be interpreted as casting an onus on the employer in all cases to prove not only the worker’s medical capacity for a suitable category of employment, but also that there was employment available in that category and the relevant amount which the worker was capable of earning in that employment.[34]
It was against that background that the review conducted by the working group into the operation of the Territory’s Workers Compensation Scheme, which was referred to in the second reading speech extracted above, recommended that the legislation be amended to remove the requirement for reasonable availability after the first 104 weeks of incapacity, such that the assessment of loss of earning capacity after that time required only an assessment of the most profitable employment that could be undertaken by the worker, whether or not such employment was available to him or her. It was in this sense that the second reading speech expressly contemplated that the amendment would enable ‘the possible reduction or cancellation of benefits in accordance with the claimant’s reasonable capacity to earn’.
Despite that legislative structure, the Work Health Court relevantly found:
In the absence of any evidence before the Court of any other real job which actually exists by way of any “most profitable employment” for the purposes of the Employer’s Counterclaim, the Employer has failed to discharge its onus to identify the Worker’s “most profitable employment” or to put a value on her partial capacity to work.[35]
The Work Health Court made that finding in purported reliance on two decisions of this Court which were delivered following the legislative amendments made in 2002. First, the Work Health Court cited the following passage from Quality Plumbing & Building Contractors Pty Ltd v Schloss [2015] NTSC 56:
… both parties agreed on the following – in my view, rightly so (my emphasis).
(a) For the ‘deeming’ provisions of s 65 to apply, the Employer must be able to identify a ‘real job’ that could be undertaken by the Worker – that is to say one that actually exists, whether or not there are vacancies for employment in that job at the time.[36]
The reference to ‘deeming’ in that passage picks up the terminology from the second reading speech. It is important to put that passage into context. The case concerned putative employment as a casual school bus driver. Workers in that category of position were employed for 40 weeks per year during school terms, but were not engaged during the 12 weeks of school holidays. The matter at issue, which the Supreme Court ultimately determined that it did not have to decide at that point, was whether loss of earning capacity should be calculated on the basis of weekly earnings in that employment during the 40 week period without regard to the fact that such employment was not ‘available’ to the worker during the 12 week stand down period. The agreement between the parties that an employer must be able to identify a ‘real job’ that could be undertaken by the worker was not to the effect that the employer must be able to identify a specific position available to the worker. It was only to the effect that an employer must be able to point to an established type or category of employment which the worker is capable of undertaking having regard to any medical or functional limitations on the worker’s ability to undertake paid employment.
The Work Health Court then cited the following passage from the decision of this Court in Global Insulation Contractors (NSW) Pty Ltd v Keating:
Her Honour considered the issue of the work that the respondent worker could or could not do in some detail. On behalf of the employer it was submitted her Honour misapplied s 65(2)(b)(ii) of the Act. The submission is that assumed availability of suitable employment post 104 weeks under the section excludes consideration of market forces and any need to consider what many places of employment require, as distinct from the fundamental requirements of the job.
Although her Honour described some of the duties of crane operator or forklift driver as ancillary, in the sense that they involved preparation of load and other duties in the context of arduous environments, this is not in my view beyond the scope of s 65(2)(b)(ii). While the section is concerned with the fundamental requirements of a job, this must be sensibly construed and applied. In my view, her Honour was entitled to consider the physical requirements of any position. That approach is in keeping with the purposes of the Act and the section.[37]
Again, that passage must be put into its proper context. The employer had pointed to crane driving and forklift operation as types or categories of employment which the worker was capable of undertaking even if it was assumed the worker had suffered a work-related injury and was partially incapacitated for work as a result of that injury. On the employer’s case, such limitations as the injury may have imposed on the worker’s ability to undertake paid employment did not preclude him from working as a crane driver or forklift operator. The magistrate’s determination was that the continuing physical consequences of the worker’s injury precluded him from undertaking many of the duties involved in those categories of employment. In essence, the finding was that the worker was not physically or medically capable of undertaking work in those categories of employment. It was not, as the Work Health Court purported to find in the present matter,[38] that the employer had to identify a particular job or employment vacancy to allow the court to examine the physical requirements of that specific position. So much is apparent from the fact that in making the finding in Keating, the magistrate relied on evidence from an occupational therapist as to the requirements of crane operator and forklift driver positions in a general sense.
The Work Health Court artificially and erroneously approached the present matter on the basis that the dicta in Schloss and Keating supported a construction of s 65(2)(b)(ii) of the Return to Work Act which required the employer to identify a specific position available to the worker. This error was then perpetuated and amplified through the balance of the Work Health Court’s reasoning.
First, the Work Health Court found that the scheme of the legislation and the Supreme Court authorities did not support the employer’s submission that, ‘[t]he employer merely needs to identify a class of jobs (that the medical experts say the worker can do)’.[39] To the contrary, that submission correctly and precisely identifies the nature of the enquiry required by s 65(2)(b)(ii) of the Return to Work Act.

Second, the Work Health Court ruled that the previous decision of that Court in Roberta Barnett v Northern Territory of Australia[40] had been wrongly decided, and that the precise working conditions of a specific job had to be identified by the employer, which was a question quite separate to whether or not such employment was available.[41] It may be accepted that the analysis in Barnett is in error to the extent that it suggests that limitations which an injury has imposed on a worker’s ability to undertake paid employment, and any consequent modifications to employment duties which might be required as a result, are matters going only to ‘the availability of employment’ and are therefore precluded from consideration after the first 104 weeks of incapacity. Limitations of that nature clearly bear also on a worker’s capacity to undertake a general type or category of employment. However, there was no error in approaching the assessment of ‘most profitable employment’ by making a determination based on expert medical and occupational evidence that, on the balance of probabilities, the worker was able to engage in a general type or category of employment, even in circumstances where the employer had not identified a specific job and the worker had not actually undertaken that employment post-injury (or is engaged in a graduated return to work program).
Third, the Work Health Court held, in essence, that because the employer had initially accepted the claim, and was now seeking to cancel or reduce compensation, the employer bore the legal and evidentiary onus of identifying a specific position said to constitute the worker’s ‘most profitable employment’, and that the determination of ‘most profitable employment’ was informed by the employer’s obligation ‘to find suitable employment for [the worker]’.[42]
The employer’s case in this respect, and the evidence called in proof of that case, was that the worker was capable of working as a medical or dental receptionist. Of the five expert witnesses called to give evidence at the hearing, four of those experts were of the opinion that the worker was capable of undertaking paid employment on a full-time basis in those categories of employment. Only the orthopaedic surgeon called on behalf of the worker expressed a different view, and that witness’s evidence was somewhat inconsistent on the issue. At one point in his evidence he stated that the worker would be able to return to full-time employment as a medical receptionist or practice manager, subject to the qualification that for the first four to six weeks she would need to work half a day on Mondays, Wednesdays and Fridays; only to subsequently express the view that it was probable that she would not return to full-time employment.[43] When pressed to quantify the worker’s capacity ‘on the balance of probabilities’, the witness opined that the worker would likely be able to work in the order of 20 hours a week.[44]
All of the experts who gave evidence at the hearing either confirmed or accepted (implicitly or expressly) that there were part-time positions available in those types or categories of employment; that the positions were largely sedentary; that the worker was qualified to undertake those positions by reason of experience and general aptitude; and that those positions did not involve repetitive reaching or repetitive lifting of weights at a distance away from the body which would render the worker incapable of undertaking the employment.
In the face of that evidence, the Work Health Court made the following findings:
I conclude that I prefer the evidence and opinions of the current treating orthopaedic specialist Dr Hutabarat to that of any of the medico-legal witnesses whose evidence was before the Court.
…
I am satisfied and I find that as a consequence of the work injury the Worker continues to experience symptoms arising in her left shoulder. I find that she experiences difficulties and pain when using her left arm in overhead activity and in reaching with her left arm both in front of her and out to her left side. I find she is limited in the weight she can manipulate with her left arm.
I am satisfied and I find that as a consequence of the work injury the Worker is presently limited in undertaking any suitably modified employment to working four hours a day for three days a week with a rest day between each day worked. I am satisfied and I find that the Worker may in due course be able to build up to working 19 or 20 hours in a week in such employment. On the evidence before me which I have preferred, I am not able to determine how long it might take the Worker to be able to advance from working 12 hours in a week in such employment to 19 or 20 hours in a week, if at all.[45]
That finding was certainly against the weight and preponderance of the evidence. However, as the Court of Appeal stated in Lee v Macmahon Contractors Pty Ltd, that a finding is against the evidence or contrary to the overwhelming weight of evidence does not constitute an error of law for these purposes.[46] In Nicolia v Commissioner of Railways (NSW), Barwick CJ observed:
The Commission’s award found that the deceased died as a result of injuries received by him in the course of his employment. In my opinion there was evidence to support that award and, therefore, in my opinion, the Supreme Court, Court of Appeal Division was in error in setting aside that award.[47]
Windeyer J expressed the same principle in the following terms:
There was, I consider, evidence on which that decision could be based. It was not for us, as it was not for the Supreme Court to say whether it was correct in fact. To quote what was said in St George Club Ltd v Hines (1961), 35 ALJR 106, at p 107, that has been mentioned, “our problem is simply whether there was evidence that, if believed, was sufficient to warrant the decision of the Commission”.[48]
It is only where there is no evidence to support a finding of fact that there will be an error of law. However, in making that finding of fact the Work Health Court necessarily accepted the orthopaedic surgeon’s evidence that the worker was capable of undertaking employment for four hours per day, three days per week as a medical receptionist or practice manager, even allowing for the fact that there were limitations on her ability to perform tasks involving repetitive reaching or lifting. Despite that acceptance, and in the misapplication of Schloss and Keating described above, the Work Health Court then conducted a minute examination of eight advertisements for receptionist and practice manager positions which had been identified by the occupational therapist called by the employer as examples of the types or categories of employment which the worker was capable of undertaking.[49] The Work Health Court concluded relevantly as follows:
In identifying a “most profitable employment” an employer is obliged to identify a real job which actually exists. Although that job does not have to be available to a worker, the evidence must allow ascertainment of its prerequisites and duties. This means that if the worker in question does not have the requisite qualifications or experience or otherwise does not meet the specific selection criteria for the real job which actually exists then, in the absence of explanatory evidence, that worker cannot be said to be reasonably capable of earning anything in a week in that job or that he or she is capable of undertaking all the duties of the work involved in that job.
…
In respect of each of the eight identified jobs in evidence before the Court as candidates for the Worker’s “most profitable employment”, there was no evidence before the Court, other than speculation, that any one of these eight identified jobs provided working conditions within the Worker’s capacity in light of the restrictions identified by Dr Hutabarat and found by me in paragraphs 123 and 124 above. The Employer has not discharged its onus to prove that the Worker is reasonably capable of earning anything in a week in any one of those jobs, or that she is capable of undertaking the duties, or all of the duties, in any one of those jobs.[50]
As stated, the Work Health Court had already accepted Dr Hutabarat’s evidence that the worker was capable of working part-time hours as a medical receptionist or practice manager. It was in error to impose the further requirement that the employer identify specific positions to enable an analysis of the selection criteria for those positions. Those findings conflated the need to demonstrate an established type or category of employment which the worker was medically and functionally capable of undertaking, with the question of whether or not any specific positions within that type or category of employment were available to the worker. Those findings constituted an error on a question of law because they involved a misconstruction of s 65(2)(b)(ii) of the Return to Work Act. Accordingly, they are amenable to appeal under the terms of s 116 of the Return to Work Act and this ground of appeal has been made out.
However, I do not find that the ancillary ground of appeal has been established. It asserts that the Work Health Court:
Erred in law not following Roberta Barnett v Northern Territory of Australia [2010] NTMC 70, including the unreported further Decision of His Honour Dr John Lowndes SM (as he then was) delivered on 24 June 2011, and determining the Respondent Worker’s ‘most profitable employment’ on the balance of probabilities.
The intention and purpose of this ground of appeal is unclear. If it is only an assertion that the Work Health Court erred by requiring the employer to identify a specific job available to the worker, it is subsumed by the previous ground of appeal. I have already dealt with Barnett in that context. If it is an assertion that the Work Health Court erred in law by not finding on the balance of probabilities that the worker was capable of undertaking employment as a medical receptionist or practice manager on a full-time basis following a graduated return to work program, that assertion must be rejected. For the reasons already described, the Work Health Court accepted the opinion of the orthopaedic surgeon called on behalf of the worker, and concluded as a matter of fact that it was not possible to say when the worker might progress beyond working 12 hours per week. Although idiosyncratic, there was evidence on which the decision could be based and it did not constitute an error on a question of law.
Dismissal of the Counterclaim
The final ground of appeal is that the Work Health Court erred in law in dismissing the employer’s Counterclaim in its entirety despite finding that the worker was capable of working 12 hours per week. This ground of appeal is largely overtaken by the conclusions that the Work Health Court erred in finding that the Notice of Decision was invalid and in its approach to assessing the worker’s ‘most profitable employment’. As described above, because the Notice of Decision was valid, the employer’s Counterclaim was strictly unnecessary and the Work Health Court was required to determine the question of capacity in the context of the worker’s ‘appeal’. As further described above, the finding that the worker was capable of working part-time hours as a medical receptionist or practice manager required a determination of her loss of earning capacity and the amount of weekly compensation payable, regardless of whether that determination was properly undertaken in the context of the ‘appeal’ or the Counterclaim.
As it was, the Work Health Court dismissed the contention in the employer’s Counterclaim that the worker was capable of working on a full-time basis. That dismissal was based purely on a factual finding and did not constitute an error of law. The Work Health Court dismissed the contention in the employer’s Counterclaim that the worker was capable of working 20 hours per week as a medical receptionist or practice manager. That dismissal was also based on a factual finding. Finally, the Work Health Court dismissed the order sought in the employer’s Counterclaim for a reduction of the compensation payable to the worker pursuant to s 65 of the Return to Work Act on the basis that the employer had not identified a ‘real job’ which might constitute the worker’s ‘most profitable employment’. That dismissal was predicated on an error of law, and it was incumbent on the Work Health Court to put a value on the worker’s loss of earning capacity, rather than dismissing the Counterclaim.
Disposition
In the event the appeal is allowed, the employer seeks orders that the judgment in favour of the worker be set aside and that the Counterclaim be remitted to the Work Health Court for hearing in accordance with law. For the reasons I have given, any remitter would involve both the worker’s ‘appeal’ and the employer’s Counterclaim, to the extent that the employer wished to press any of the assertions made in that Counterclaim in addition to the issues arising on the ‘appeal’. On the other hand, the worker submits that in the event error is found on the part of the Work Health Court, this Court should simply substitute its own decision.
Section 116 of the Return to Work Act relevantly provides:
(1) …
(2) In deciding the appeal, the Supreme Court may:
(a) confirm or vary the decision or determination; or
(b) set aside the decision or determination and substitute its own decision or determination; or
(c) set aside the decision or determination and remit the matter to the Work Health Court.
(2A) For subsection (2), the Supreme Court may make the orders and give the directions it considers appropriate.
(3) …
The avenue of appeal is limited to questions of law. Although that provision authorises the Supreme Court to substitute its own decision or determination, that does not require or authorise this Court to make findings of fact or to determine questions of mixed fact and law. This Court will ordinarily only substitute its own decision in circumstances where the correct answer to the question of law is of itself determinative of the matter. That is not the case in the present matter. The findings that the Notice of Decision is valid and that the Work Health Court misconstrued s 65(2)(b)(ii) of the Return to Work Act are not determinative. In order to dispose of the matter, further findings of fact and mixed fact and law would be required in relation to whether the worker has ceased to be incapacitated for work as the result of a work-related injury, and the extent and value of any partial incapacity which may be found. It would not be appropriate for this Court to adopt the factual findings made by the Work Health Court for that purpose given the pervasiveness of the errors of law made in favour of the worker’s case, and the extent to which some of the crucial findings of fact made by the Work Health Court were against the weight and preponderance of the evidence.
Accordingly, I make the following orders:
1.The appeal is allowed.
2.The orders made by the Work Health Court at paragraphs [155] to [162] of the Reasons for Decision delivered on 28 January 2021 are set aside.
3.The Application and Counterclaim are remitted to the Work Health Court, differently constituted, for hearing in accordance with law.
I will hear the parties in relation to costs if need be.

_________________________

[1] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4.

[2] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [36]-[38].

[3] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [41].

[4] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [42]-[45].

[5] Collins Radio Constructors Inc v Day (1998) 143 FLR 425.

[6] See definition of 'incapacity': Return to Work Act, s 3.

[7] Dickin v NT TAB Pty Ltd [2003] NTSC 119, [18].

[8] Newton v Masonic Homes Inc [2009] NTSC 51, [16].

[9] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [49].

[10] NT TAB Pty Ltdv Dickin [2004] NTCA 8.

[11] Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, [37].

[12] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [54].

[13] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [54].

[14] Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, [21], [43]-[50].

[15]JH Constructions Pty Ltd v Davis (unreported, SCNT, 3 November 1989); Davison v Totalisator Administration Board (1988) 56 NTR 8; Morrisey v Conaust Ltd (1991) 1 NTLR 183; Foresight Pty Ltd v Maddick (1991) 1 NTLR 209.

[16]Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1.

[17]Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1; Morrisey v Conaust Ltd (1991) 1 NTLR 183; AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185; Disability Services of Central Australia v Regan (1998) 8 NTLR 73.

[18]Disability Services of Central Australia v Regan (1998) 8 NTLR 73.

[19]Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1, [15.4]; AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185, 191; Morrisey v Conaust Ltd (1991) 1 NTLR 183; Barbaro v Leighton Constructors Pty Ltd (1980) 44 FLR 204, 223.

[20]Collins Radio Constructors v Day (1998) 143 FLR 425; Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1; Newton v Masonic Homes Inc [2009] NTSC 51.

[21]Disability Services v Regan [1998] NTCA 77; (1998) 8 NTLR 73, 78-79 per Mildren J; Alexander v Gorey & Cole Holdings Pty Ltd [2002] NTCA 7; (2002) 171 FLR 31, [30].

[22] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [9]-[10].

[23]Disability Services v Regan [1998] NTCA 77; (1998) 8 NTLR 73, 78-79 per Mildren J.

[24]Alexander v Gorey & Cole Holdings Pty Ltd [2002] NTCA 7; (2002) 171 FLR 31, [30].

[25]Alexander v Gorey & Cole Holdings Pty Ltd [2001] NTSC 74, (2001) 163 FLR 227, [33]-[34].

[26] Return to Work Act, s 53AB.

[27] Return to Work Act, s 62(2).

[28] Return to Work Act, s 107.

[29] See, for example, Josephson v Walker (1914) 18 CLR 691, 701; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 427.

[30] The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421. See also FAI General Insurance Co. Ltd. v. Southern Cross Exploration N.L. [1988] HCA 13; (1988) 165 CLR 268, 283-284, 290; Knight v. F.P. Special Assets Ltd. [1992] HCA 28; (1992) 174 CLR 178, 185, 202-203, 205.

[31] Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 20 June 2002, pp 1824-1825.

[32] Cardiff Corporation v Hall [1911] 1 KB 1009, 1020-1021.

[33] Even under the former worker's compensation legislation, in circumstances where the employer sought to review the amount of compensation payable it was considered that the employer was required to call evidence of sufficient cogency to establish that there was employment reasonably available: see, for example, Buyong v Readymix Concrete (1990) 67 NTR 1, 4-5, 9-10.

[34] However, there was no obligation on an employer to find suitable employment for the worker or to otherwise introduce the worker to the employment. An employer could establish the availability of suitable employment without making any offer of re-employment or suitable employment: see, for example, Comcare v Rawling (1993) 42 FCR 421, 424-425.

[35] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [153].

[36] Quality Plumbing & Building Contractors Pty Ltd v Schloss [2015] NTSC 56, [46].

[37] Global Insulation Contractors (NSW) Pty Ltd v Keating [2012] NTSC 4, [110]-[111].

[38] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [90].

[39] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [87].

[40] Roberta Barnett v Northern Territory of Australia [2010] NTMC 070.

[41] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [133]-[138].

[42] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [140]-[142].

[43] Appeal Book ('AB') 243-245.

[44] AB 247-248.

[45] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [121], [123]-[124].

[46] Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, [60]; citing Haines v Leves (1987) 8 NSWLR 442 at 469-470.

[47] Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465, 466.

[48] Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465, 466.

[49] Broadly for the reasons given by the Work Health Court, after the first 104 weeks of incapacity is not incumbent on the employer to establish that those types or categories of employment are available at the geographical location where the worker normally resides: see Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [144], [150]; cf Respondent's Notice of Contention, para 1(c).

[50] Joanne Claire Catford v Laminex Group Limited [2021] NTLC 4, [77]-[83].