McCarthy, Lois v State of Tasmania

[1998] TASSC 124

124/1998

PARTIES:  McCARTHY, Lois

v
TASMANIA, STATE OF

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/1998
DELIVERED:  9 October 1998
HEARING DATE/S:  7 August 1998
JUDGMENT OF:  Evans J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners, etc - Tasmania - Jurisdiction of Tribunal - Whether referral as to disputed termination within time - Applicable legislation - Whether amending legislation retrospective - Whether procedural or substantive right affected.

Maxwell v Murphy (1957) 96 CLR 261; Associated Pulp & Paper Mills Ltd v Bramich [1960] Tas SR 165; Yrttiaho v The Pubic Curator (Queensland) (1971) 125 CLR 228, applied.
Jones v Jones and Anor (1996) 6 Tas R 273; Swetnam Brothers Pty Ltd v Grundy 9/1998; Hancock v Edgell Birdseye (Ulverstone) Division of Petersville Industries Ltd 10/1998; Saarinen v University of Tasmania (1997) 7 Tas R 154; Abbott v Minister for Lands (1895) AC 425, considered.
Workers Compensation Act 1988 (Tas), s86.
Workers Rehabilitation and Compensation Act 1988 (Tas), s86(4).
Workers Rehabilitation and Compensation Act 1995 (Tas), s83(3A), (4).
Aust Dig Workers Compensation [143]

REPRESENTATION:

Counsel:
             Appellant:  K J Stanton
             Respondent:  C J G Owen
Solicitors:
             Appellant:  Shields Heritage
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  124/1998
Number of pages:  5

Serial No 124/1998
File No LCA 14/1998

LOIS McCARTHY v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  EVANS J

9 October 1998

This is an appeal against a decision of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") that it had no jurisdiction under the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(4), to hear the appellant worker's reference disputing the respondent employer's notice terminating the worker's entitlement to weekly payments.

As a consequence of an injury suffered by the worker in the course of her employment, the employer paid the worker weekly payments under the Workers Compensation Act 1988 ("the former Act").  In October 1994, the employer served the worker with notice of its intention to terminate the payment of weekly payments to her on the basis of a medical certificate which complied with the former Act, s86(1)(c).  Pursuant to the notice, the employer ceased paying weekly payments to the worker in October 1994.

At that time, the relevant provisions of the former Act, s86, were:

"86 ¾ (1)    Except in pursuance of a determination made by the Commissioner under section 88 (2), an employer may, subject to this section, terminate or reduce a weekly payment made to a worker only where ¾
…

(c)  a medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury;

…

(3)   An employer who intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker ¾

(a)  a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and

(b)  where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1) (c), a copy of that certificate.

(4)   A worker who has been served with a notice under subsection (3) (a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may, as prescribed, refer the matter to the Commissioner for determination."

The effect of the former Act, s86(4), was that upon the worker being served with the employer's notice of intention to terminate her weekly payments, she was entitled to dispute the termination by referring it to the then equivalent of the Tribunal for determination. There was no limit on the time within which the worker could dispute the termination.

The former Act was extensively amended by the Workers Rehabilitation and Compensation Act 1995 ("the Reform Act") which, for relevant purposes, commenced on 16 August 1995.  Amendments made by the Reform Act included amendments to s86.  Subsection (3A) was added and subsection (4) was amended by the inclusion of a time limit on a worker's entitlement to refer a disputed termination to the Tribunal.  Since the Reform Act, those subsections have been as follows:

"(3A)    A notice referred to in subsection (3)(a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination.

(4)   A worker who has been served with a notice under subsection (3)(a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination."

By a referral dated 13 May 1997, the worker applied to the Tribunal disputing the employer's termination of her weekly payments in October 1994. The employer challenged the Tribunal's jurisdiction to hear the reference on the basis that it had not been made within sixty days of the termination of the weekly payments as required by s86(4) as amended. The worker contended that the amendment made to s86(4) by the Reform Act did not affect her pre-existing entitlement to refer the termination. The Tribunal rejected this contention and found that it did not have jurisdiction to hear the referral as a consequence of the time limit added to s86(4) by the Reform Act. The worker has appealed.

The starting point in the consideration of the effect of the amendment of s86(4) is the common law presumption against the retrospective operation of legislation which was expressed in the following terms by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

The Reform Act contains no indication of an intention contrary to the common law presumption against the retrospective operation of legislation and includes a provision which reinforces the presumption.  The Reform Act, Sch 9, contains savings and transitional provisions.  Clause 19 of that Schedule provides:

"19   Except as provided in section 69A, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under this Act as in force immediately before that day."

Not all rights are protected by the common law presumption against retrospectivity.  The Acts Interpretation Act 1931, s16(1)(c) is a statutory provision which protects rights which have accrued under repealed legislation. As the Reform Act is an amending Act, that provision has no application in this case. However, the provision is relevant as the criterion for assessing whether a right is protected by it or the common law presumption against retrospectivity are the same. Saarinen v University of Tasmania (1997) 7 Tas R 154 and Jones v Jones & Anor (1996) 6 Tas R 273. In Yrttiaho v The Pubic Curator (Queensland) (1971) 125 CLR 228, Gibbs J at 244 - 245 said that the equivalent to the Acts Interpretation Act, s16(1)(c) did not apply to rights of a procedural kind but only to substantive rights. His decision on this point was agreed with by the four other members of the High Court. Maxwell v Murphy (supra) is authority that the common law presumption against retrospectivity only applies to substantive rights and does not protect procedural rights.  Consistent with these authorities, the Reform Act, cl 19, Sch 9 has been construed as having no application to matters of procedure.  Jones v Jones and Anor (supra); Swetnam Brothers Pty Ltd v Grundy 9/1998; and Hancock v Edgell Birdseye (Ulverstone) Division of Petersville Industries Ltd 10/1998. Accordingly, the issue for determination is whether the worker's right to dispute the October 1994 termination of weekly payments and have that dispute determined pursuant to the former Act, s86(4) was procedural or substantive.

Detailed consideration was given to the distinction between procedural rights and substantive rights in Maxwell v Murphy (supra).  In that case, the High Court was dealing with the enlargement of a time limit for the institution of proceedings under New South Wales legislation similar to the Fatal Accidents Act 1934 (Tas). It was held that the amendment did not revive a plaintiff's previously statute barred claim. As to the difficulty of distinguishing between matters of procedure and matters of substance, Dixon CJ observed at 267:

"In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance.  Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy."

With reference to the principle to be applied, he said at 270:

"Perhaps there could be no more practical summary of the principle, which, as was said, emerges from the English and Canadian cases, than the following, - 'unless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.'- Dixie v Royal Columbian Hospital (1941) 2 DLR 138, at pp 139, 140 …".

At 271, his Honour considered The Ydun (1899) P 236 and rejected the suggestion that that decision was authority for a general proposition that a statute attaching a time limit to the assertion of a right of action was an enactment relating to procedure only.

In the same case, Williams J said at 277:

"Statutes of limitation are often classed as procedural statutes.  But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation.  Two classes of case can be considered.  An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted.  If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural.  Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural.  But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise.  A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time.  Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural.  They would affect substantive rights."

In Associated Pulp & Paper Mills Ltd v Bramich [1960] Tas SR 165, Crawford J (agreed with by Green J) observed at 178 that a provision which provided that an action could not be brought after a certain time was not merely procedural.

In Yrttiaho v The Pubic Curator (Queensland) (supra), the High Court considered the effect of an amendment to the Queensland Rules of the Supreme Court which reduced the time within which proceedings were stayed if no step was taken in the proceedings, from six years to three years.  The plaintiff in that case had an action on foot when the amendment was made.  If the amendment applied to the action, it became barred for inaction approximately four months after the amendment.

The High Court held that the operation of the amendment was procedural and had retrospective effect.  The leading judgment of the court was given by Gibbs J.  He said, at 241:

"However, although the amendment to O 90, r 9 might have affected vested rights if it had applied to cases where the three-year period had elapsed before the amendment took effect, in the present case, in my opinion, the operation of the amendment to O 90, r 9 was purely procedural.  The amendment did not impair the appellant's right or bar his cause of action. After the amendment took effect the appellant remained entitled to continue with his action and enforce his right."

Gibbs J referred to the above quoted passage from the decision of Williams J in Maxwell v Murphy (supra), and, in substance, said that a valid distinction was drawn between alterations which did not, when made, bar causes of action and those that did.  At 242 he said:

"The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought.  In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period."

Unlike the amendment under consideration in Yrttiaho v Public Curator (Queensland) (supra), if the amendment to s86(4) applied to the worker's right of referral, it left her no "time after its commencement within which an action might be brought". No time was left for her to dispute the October 1994 termination of her weekly payments and refer that dispute for determination pursuant to the former Act, s86(4). For the amendment to apply in such a way would not be procedural, it would affect a substantive right of the worker. In some cases a right may not be protected by the presumption against the retrospective operation of legislation unless the claimant has taken a step towards availing himself or herself of the right. Abbott v The Minister for Lands [1895] AC 425 at 435. This provides the basis for an argument that as the worker had not referred her dispute for determination prior to the amending legislation coming into force, she could not rely on the presumption for protection. It is clear, however, from Maxwell v Murphy (supra) and Yrttiaho v Public Curator (Queensland) (supra) that there is no requirement that a claimant must have instituted the action before he or she can rely on the presumption to protect his or her right to bring the action from an amendment imposing a limitation which would bar the action.  The amending legislation must leave time after its commencement within which the claimant may bring the action.  See the immediately above quoted passage from the decision of Gibbs J in Yrttiaho v Public Curator (Queensland) (supra) and the passage quoted earlier from the decision of Williams J in Maxwell v Murphy (supra). Accordingly, the common law presumption against retrospectivity applies to deny the amendment to s86(4) retrospective operation and to protect the plaintiff's right to dispute the termination of her weekly payments and refer that dispute for determination. In addition, the worker's right being substantive, it is protected by the Reform Act, cl 19, Sch 9.

One other matter warrants attention.  In Yrttiaho v Public Curator (Queensland), Gibbs J observed that a contrary intention to the presumption against the retrospective operation of an amendment in circumstances such as those under consideration could be found if the commencement of the amending legislation, which shortens the time within which proceedings may be brought, is postponed to a future date.  No injustice is likely to result from giving retrospective effect to the amendment, since proceedings could be instituted before the amendment came into operation.  His Honour observed, at 247: "A provision postponing the commencement of a statute or a rule in these circumstances may be regarded as revealing an intention that the enactment, when it does come into effect, should operate retrospectively".  This approach was not endorsed by Windeyer and Walsh JJ, the other members of the court who adverted to it.  It can have no application in the circumstances of the Reform Act.  Whilst there was a delay between the Reform Act obtaining royal assent and its commencement, this is not an indication that when it was to come into effect it should operate retrospectively.  The Reform Act, cl 19, Sch 9, which has already been referred to, makes it plain that the Reform Act was not intended to retrospectively impact on rights and entitlements which were not merely procedural.

As I am satisfied that the worker's right was substantive and not procedural, the common law presumption against retrospectivity applies to deny the amendment of s86(4) retrospective effect. The worker's right is also protected by the Reform Act, cl 19, Sch 9. The Tribunal's order dismissing the reference is set aside. The reference is remitted to the Tribunal for determination according to law.