McKenzie v Healthscope Operations Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01694

KEITH McKENZIE	Appellant
v
HEALTHSCOPE OPERATIONS PTY LTD (trading as the John Fawkner Private Hospital)	Respondent

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2019
DATE OF JUDGMENT:	28 April 2020
CASE MAY BE CITED AS:	McKenzie v Healthscope Operations Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 217

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ACCIDENT COMPENSATION – Workplace injuries – Statutory compensation scheme – Appellant’s entitlement to compensation previously terminated – Where appellant disputed termination by referring matter to Accident Compensation Conciliation Service – Where dispute was conciliated and settled with no retraction of termination – Appellant subsequently requested reinstatement of compensation – Whether Magistrate erred in finding that settlement of claims to entitlement to compensation is not precluded by statutory compensation scheme – No error of law in finding that statutory compensation scheme does not preclude settlement of claims to entitlement to compensation – Appeal dismissed – Accident Compensation Act 1985 ss 82, 93, 114(2)(b), 115, 116, 117, 118 – Workplace Injury Rehabilitation and Compensation Act 2013 ss 1, 10, 71, 293, 297, 300 – Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276, applied – Ozbilgi v Bradnams Windows & Doors Pty Ltd [2011] VSCA 210, applied – Perkins v GIO Workers’ Compensation (Victoria) Ltd (County Court of Victoria, Higgins J, 12 December 1995), overruled.

APPEAL – Whether Magistrate erred in upholding defence of accord and satisfaction– No error of law in upholding defence of accord and satisfaction – Appeal dismissed – Magistrates’ Court Act1989 s 109 – Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	T P Tobin SC with S D Dawson	Nowicki Carbone
For the Respondent	S A O’Meara QC with S E Gladman	IDP Lawyers

HIS HONOUR:

This is an appeal brought under s 109 of the Magistrates’ Court Act 1989 against the judgment and orders of the Magistrates’ Court made on 10 September 2018 dismissing a proceeding brought by the appellant in which he sought the reinstatement of weekly payments under the Accident Compensation Act 1985.[1]
[1]Accident Compensation Act 1985 (‘Accident Compensation Act’).

The appellant was employed by the respondent as a theatre technician. On 27 May 2014, he made a claim for compensation under the Accident Compensation Act in respect of a psychiatric injury that allegedly arose out of or in the course of his employment in March 2014. On 20 June 2014, the Victorian WorkCover Authority (the Authority) accepted his claim for weekly payments and medical and like expenses.

On 17 March 2016, the Authority, by its agent, notified the appellant of its decision to terminate those payments. On 13 April 2016, the appellant disputed that decision and requested that the dispute be conciliated by the Accident Compensation Conciliation Service (the ACCS). The dispute was settled without the need for a conciliation conference.

The appellant claims that the dispute was settled on the basis that he would be paid weekly payments from 20 April 2016 to 29 October 2016 and ongoing medical and like expenses (the settlement agreement). He subsequently received weekly payments in respect of that period.

On 14 March 2017, the appellant, in reliance on the opinion of a Medical Panel dated 1 February 2017, requested that the Authority reinstate his ‘entitlement to weekly payments for compensation’.

The Authority, by its agent, formally declined this request on 17 July 2017. It did so on the basis that the appellant’s ‘acceptance of the settlement offer at conciliation and the subsequent payment of weekly compensation finalised [his] entitlement to payment of compensation in the form of weekly payments’.

The appellant unsuccessfully sought to set aside this decision in the Magistrates’ Court and to obtain a declaration that he was entitled to weekly payments of compensation. The learned Magistrate upheld the respondent’s defence that the appellant was barred or precluded from claiming or receiving weekly payments after 29 October 2016 by reason of the doctrine of accord and satisfaction.

The two issues raised by the appellant on the appeal are as follows:

(1)Whether the learned Magistrate erred in law in finding that consensus ad idem existed between the parties such that it was agreed that the settlement agreement forever barred the appellant from any future entitlement to weekly payments of compensation he may have under the Accident Compensation Act.
(2)Alternatively, if the settlement agreement amounted to an accord and satisfaction of all of the appellant’s past, present and future entitlements under the Accident Compensation Act, whether the agreement is of no legal force because it is contrary to legal authority that it is impermissible to contract out of the Act.

Background – settlement of dispute in relation to termination of payments

As noted above, on 17 March 2016, the Authority notified the appellant that, from 20 April 2016, he would no longer be entitled to weekly payments and medical and like expenses in relation to his psychological condition. The notice was given pursuant to s 114 of the Accident Compensation Act and set out the following reasons said to be based on the available information, including an independent medical report:

·‘your incapacity for work is not materially contributed to by an injury arising out of or in the course of your employment’;
·‘your incapacity for work is not materially contributed to by an injury which entitles you to compensation’;
·‘the medical and like expenses you are claiming are not reasonable and/or necessary’; and
·‘the medical and like services you are claiming are not for an injury which entitles you to compensation under the Act’.

The evidence concerning the settlement of the dispute notified by the appellant in respect of the Authority’s decision to terminate weekly payments and medical and like expenses is contained in an exchange of emails between the representatives of the appellant and the Authority’s agent on 5 July 2016 and a ‘conciliation outcome certificate’ issued the same day by a Conciliation Officer with the ACCS.

On 5 July 2016, the appellant’s representative sent the following email to the representative of the Authority’s agent, copied to the appellant’s solicitor and the Conciliation Officer:

The dispute has been resolved without the need for a conference.
I have instructions from the worker and his solicitor to accept your offer of weekly payments to 130 weeks and ongoing medical and like expenses.
The worker has been notified that the conciliation conference listed for this Thursday will be cancelled.
Could you please confirm the 130 week termination effective date?
You mentioned earlier today that the 130 week termination effective date would take effect in November 2016.

Later on 5 July 2016, the representative of the Authority’s agent sent the following email to the appellant’s representative, copied to the appellant’s solicitor and the Conciliation Officer:

Further to Stephen’s e/mail GB is prepared to resolve on the following basis;
Recommendation: The Agent will make weekly payments from 20/04/16 to 29/10/16 but not thereafter in accordance with the Act. The Agent will reinstate the reasonable cost of medical and like expenses relevant to the claimed injury from 20/04/16 ongoing in accordance with the Act.

The Conciliation Officer then emailed the above-mentioned individuals stating that she would ‘issue the outcome certificate on that basis’. A conciliation outcome certificate was then issued on 5 July 2016 which stated as follows:

This dispute relates to a decision dated 17 March to terminate weekly payments and medical and like expenses for a psychological condition from 20 April 2016.
I have discussed the issues with the parties. Pursuant to Section 290 of the WIRC Act, I confirm that I have received sufficient information to enable me to exercise my functions without the need for a conciliation conference or further information.
I recommended pursuant to Section 294(1)(a) of the WIRC Act that the Authorised Agent agreed to make weekly payments from 20 April 2016 to 29 October 2016 but not thereafter in accordance with the Act. The Agent will reinstate the reasonable cost of medical and like expenses relevant to the claimed injury from 20 April 2016 ongoing in accordance with the Act.
The parties accepted this recommendation and agree that this dispute is resolved on these terms.
Payment of compensation in accordance with a recommendation is not an admission of liability (Section 300(1) of the WIRC Act).
Pursuant to Section 296(2)(d) of the WIRC Act, this Outcome Certificate certifies that each party to this dispute is bound by this result and these terms of resolution.
This Outcome Certificate is evidence of:
the resolution of this dispute between the parties; and
the terms on which this dispute has been resolved.

Conciliation has been completed.

Reasons of the Magistrates’ Court

The appellant commenced the proceeding in the Magistrates’ Court on 12 October 2017. As I have noted, he sought an order setting aside the decision of the Authority’s agent declining his request for reinstatement of compensation and a declaration that he was entitled to weekly payments of compensation.

On 10 September 2018, the learned Magistrate upheld the respondent’s defence that the appellant was barred or precluded from claiming or receiving weekly payments after 29 October 2016 by reason of the doctrine of accord and satisfaction.[2] He ordered that the proceeding be dismissed.
[2]McKenzie v Healthscope Operations Pty Ltd (Magistrates’ Court of Victoria, Magistrate Barrett, 10 September 2018).

His Honour set out the principles of accord and satisfaction referred to by the High Court in McDermott v Black and stated that, if they applied, they would bar the appellant from seeking the reinstatement of compensation in the form of weekly payments.[3] His Honour then set out the facts relevant to whether accord and satisfaction was established, including the terms of the conciliation outcome certificate dated 5 July 2016 referred to above.
[3]Ibid, citing McDermott v Black (1940) 63 CLR 161.

After outlining the submissions advanced by the parties, the learned Magistrate considered and rejected the appellant’s submission that he should follow the decision of Bowman J in the County Court in Fuat v OneSteel Ltd and the decisions of Magistrates in Filipovski v Tandem Australia Pty Ltd and Turner v Clinical Laboratories Pty Ltd.[4] His Honour considered these authorities to be distinguishable.[5]
[4]Fuat v OneSteel Ltd [2010] VCC 584 (‘Fuat’); Filipovski v Tandem Australia Pty Ltd [2016] VMC 3 (‘Filipovski’); Turner v Clinical Laboratories Pty Ltd [2016] VMC 9 (‘Turner’).
[5]His Honour distinguished Fuat on the basis that the Judge in that case relied upon ss 97(4) and 115 of the Accident Compensation Act, and ‘neither section preclude[d] a settlement in circumstances of this case being enforceable’. The settlement terms in Turner did not include the words ‘but not thereafter’. In Filipovski, there was a lack of evidence to establish that the terms of the settlement related to and covered the claims in issue, which differed from the present case. These authorities are considered in detail below.

His Honour accepted the proposition put by the respondent that the settlement agreement constituted the accord and the payment of the weekly payments and reimbursement of medical and like expenses constituted the satisfaction. He accepted the respondent’s submission that the case was similar to Bucic v Arnej,[6] where the words ‘but not thereafter’ were also used in the terms of settlement and held to constitute an accord and satisfaction of any future claim to compensation. His Honour held that it was ‘not plausible’ that the parties were not ad idem that no payments would be made after the second entitlement period because neither the plaintiff’s solicitor nor the WorkCover Assist agent disputed the words ‘but not thereafter’ in the conciliation outcome certificate.
[6][2014] VMC 17.

The learned Magistrate also referred to Bunney v CGU and Warren CJ’s observation in Ozbilgi v Bradnams Windows & Doors Pty Ltd about the defence of accord and satisfaction as supporting the respondent’s contention that the appellant’s claim was barred.[7]
[7]Bunney v CGU (Magistrates’ Court of Victoria, Magistrate Saines, 5 April 2013); Ozbilgi v Bradnams Windows & Doors Pty Ltd [2011] VSCA 210 (‘Ozbilgi’).

The learned Magistrate also rejected the appellant’s submission that the settlement agreement involved any impermissible ‘contracting out’ of the Act. His Honour appeared to consider that the prohibition on ‘contracting out’ discussed in the authorities was based on ss 97(4) and 115 of the Accident Compensation Act, but that those sections did not ‘refer to the relationship between contracting out of the Act and settlement terms’.

The Magistrate also rejected the appellant’s submission that the validity of the settlement agreement was affected by an alleged limitation on the ‘jurisdiction’ of the Accident Compensation Conciliation Service.

The Magistrate accordingly concluded that the doctrine of accord and satisfaction precluded the appellant from claiming weekly payments after 29 October 2016. The settlement constituted an accord and the payments of compensation made in accordance with that agreement constituted the satisfaction.

The Appeal

The appeal is brought pursuant to s 109(1) of the Magistrates’ Court Act 1989. It is accordingly confined to questions of law.

At the hearing of the appeal, Senior Counsel for the appellant submitted that there were three identifiable questions of law in the judgment below:[8]

1.Whether the learned [M]agistrate erred in law in his constructions, application, and finding of the special defence of ‘accord and satisfaction’ in the settling of the [p]laintiff’s claim to an ongoing entitlement to weekly payments of compensation pursuant to the Accident Compensation Act 1985.
2.Whether the learned [M]agistrate’s finding, that the settlement agreement in the present case amounted to an accord and satisfaction of all past, present and future entitlements of the appellant under the [Accident Compensation Act 1985] runs contrary to legal authority providing that it is not permissible to contract out of the Act because an injured worker’s health, capacity and entitlements in the jurisdiction are not static conditions.
3.Whether the learned [M]agistrate made an error of law and/or erroneously applied the facts in finding that consensus ad idem existed between the parties, such that it was agreed and contemplated that the settlement agreement forever barred the [p]laintiff from any future entitlement to weekly payments of compensation he may have under the accepted claim pursuant to the [Accident Compensation Act 1985].

[8]Being questions 1, 9 and 10 of the questions of law set out in the notice of appeal.

On the basis of these questions, two contentions were advanced on the appeal:

(a)That the learned Magistrate erred in law in finding that consensus ad idem existed between the parties such that it was agreed that the settlement agreement forever barred the appellant from any future entitlement to weekly payments of compensation he may have under the Accident Compensation Act.
(b)Alternatively, if the settlement agreement amounted to an accord and satisfaction of all of the appellant’s past, present and future entitlements under the Accident Compensation Act 1985, the agreement is of no legal force because it is contrary to legal authority that it is impermissible to contract out of the Act.

I will separately address these issues below. Before doing so it is necessary to set out the relevant statutory provisions.
Legislation

It was uncontroversial that, at the time of the appellant’s claimed injury in March 2014, provisions of both the Accident Compensation Act and the WIRCA applied to his claimed injury. The appellant’s entitlements to compensation were governed by the Accident Compensation Act and the arrangements which regulated the making of claims in respect of his injury were contained within the WIRCA. It is accordingly necessary to set out the provisions of both Acts insofar as they are relevant to the issues to be determined in this proceeding.

Accident Compensation Act 1985

The objects of the Accident Compensation Act are set out in s 3 as follows:

(a) to reduce the incidence of accidents and diseases in the workplace;
(b) to make provision for the effective occupational rehabilitation of injured workers and their early return to work;
(c)to increase the provision of suitable employment to workers who are injured to enable their early return to work;
(d)to ensure appropriate compensation under this Act is paid to injured workers in the most socially and economically appropriate manner, as expeditiously as possible;
(e)to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses;
(f)to establish incentives that are conducive to efficiency and discourage abuse;
(g)to enhance flexibility in the system and allow adaptation to the particular needs of disparate work situations;
(h) to establish and maintain a fully-funded scheme;
(i)in this context, to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.

Section 82(1) of the Accident Compensation Act gives a worker an entitlement to compensation in accordance with the Act. It provides:

82 Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

Section 93 provides that compensation shall be in the form of weekly payments (subject to and in accordance with Part IV of the Act). It provides:

93 Compensation in weekly payments
If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.

The Act then separately deals with the entitlement of a worker to weekly payments in the ‘first entitlement period’,[9] the ‘second entitlement period’,[10] and ‘after the second entitlement period’.[11] The first two of those periods are defined in s 91E of the Act in terms which are not presently relevant. In broad terms, the length of those periods varies according to when a claim for compensation is made.
[9]Accident Compensation Act (n 1) s 93A.
[10]Accident Compensation Act (n 1) s 93B.
[11]Accident Compensation Act (n 1) s 93C.

As to the first entitlement period, s 93A(3), which applied to the appellant, provides:

93A Weekly payments in first entitlement period
…
(3)In relation to a claim by a worker for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 5 April 2010, the worker is entitled, subject to and in accordance with this Part and Part VIIB, while incapacitated for work during the first entitlement period, to weekly payments—
(a) if the worker has no current work capacity and no current weekly earnings, at the rate of—

(i)95 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount; or
(ii)twice the State average weekly earnings—

whichever is the lesser;
(b)if the worker has a current work capacity or has no current work capacity but has current weekly earnings, at the rate of—
(i)the difference between 95 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount and the worker’s current weekly earnings; or
(ii)the difference between twice the State average weekly earnings and the worker’s current weekly earnings—

whichever is the lesser.

As to the second entitlement period, s 93B(3), which applied to the appellant, provides:

93B Weekly payments in second entitlement period
…
(3)In relation to a claim by a worker for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 5 April 2010, the worker is entitled, subject to and in accordance with this Part and Part VIIB, while incapacitated for work during the second entitlement period, to weekly payments—
(a)if the worker has no current work capacity and no current weekly earnings, at the rate of—
(i)80 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount; or
(ii)twice the State average weekly earnings—

whichever is the lesser;
(b)if the worker has a current work capacity or has no current work capacity but has current weekly earnings, at the rate of—
(i)the difference between 80 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount and 80 per cent of the worker’s current weekly earnings; or
(ii)the difference between twice the State average weekly earnings and 80 per cent of the worker’s current weekly earnings—
whichever is the lesser.

Section 114 deals with the termination or alteration of weekly payments. Relevantly, it provides:

114 Termination or alteration of weekly payments
(1)The Authority or self-insurer may in accordance with this Act terminate a worker’s entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments.

…
(2)In addition to other grounds under this Act for termination or alteration of weekly payments, the Authority or a self-insurer—
(a) may increase or reduce weekly payments on the ground that there is not, or is no longer, an entitlement to weekly payments of the existing amount; and
(b)may terminate weekly payments on the ground that—
(i)the worker is not entitled to compensation under Division 1 or 2; or
(ii)the worker is not, or is no longer entitled to weekly payments; or

(c)may terminate or alter weekly payments on the ground that—
(i)the worker has returned to any work whether as a self employed person or in employment; or
(ii)in the case of a worker who has current weekly earnings, the amount of the worker’s current weekly earnings alters; or
(iii)payments for regular overtime or shift allowances are no longer included in the worker’s pre-injury average weekly earnings; or
(iv) an amount referred to in section 155(1)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 is varied or no longer paid; or
(v)a non-pecuniary benefit within the meaning of section 155(1)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 is varied or no longer paid.

Division 3A of Part IV of the Accident Compensation Act deals with ‘Voluntary settlements’. By subdivisions 1–4, provision is made for four classes of settlements.[12] In relation to each, a worker to whom the relevant subdivision applies has a right to ‘apply for the settlement of his or her entitlement under this Act (other than Division 2B of Part IV) with respect to the injury’.[13]

Workplace Injury Rehabilitation and Compensation Act 2013[14]

[12]Subdivision 1 relates to settlements for certain serious injuries suffered on or after 12 November 1997 and before 20 October 1999. Subdivision 2 relates to settlements for certain injuries suffered on or after 4:00pm on 31 August 1985 and before 1 December 1992. Subdivision 3 relates to other settlements in specific circumstances. These subdivisions only apply where, among other requirements, the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity: see Accident Compensation Act (n 1) ss 115, 116 and 117. Subdivision 4 relates to other settlements, and only applies if the regulations state that the worker may apply for the settlement of his or her entitlement under the Act in any particular circumstances specified by those regulations: see Accident Compensation Act (n 1) s 118.

[13]See Accident Compensation Act (n 1) ss 115A(1), 116A(1), 117A(1) and 118A(1).

[14]Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’).

The purposes of the WIRCA are set out in s 1 and include to:

(a)simplify the provisions applying to the rehabilitation of injured workers and compensation in relation to injuries or deaths arising out of accidents and diseases in the workplace on or after 1 July 2014; and
(b)streamline the provisions of the Accident Compensation Act 1985 which continue to apply in respect of injuries or deaths arising out of accidents and diseases in the workplace before 1 July 2014; and
(c)provide a single gateway for claims for compensation whether under this Act or the Accident Compensation Act 1985…

The objects of the WIRCA set out in s 10 largely restate those of the Accident Compensation Act and are to:
(a)reduce the incidence of accidents and diseases in the workplace; and
(b)make provision for the effective occupational rehabilitation of injured workers and their early return to work; and
(c)increase the provision of suitable employment to workers who are injured to enable their early return to work; and
(d)ensure appropriate compensation under this Act or the Accident Compensation Act 1985 is paid to injured workers in the most socially and economically appropriate manner, as expeditiously as possible; and
(e)ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses; and
(f)establish incentives that are conducive to efficiency and discourage abuse; and
(g)enhance flexibility in the system and allow adaptation to the particular needs of disparate work situations; and
(h)maintain a fully-funded scheme; and
(i)in this context, to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.
The liability of the Authority and employers under the WIRCA is established by s 70(1) which states:

70 Liability of Authority and employer
(1)The Authority, as well as the employer, is directly liable to a worker and, in the event of the worker’s death, to the dependants of the worker, to pay compensation and damages in accordance with this Act or the Accident Compensation Act 1985 for which the employer is liable as an employer of the worker in respect of injuries arising out of, or in the course of, or due to the nature of, employment.

Section 71(3) of the WIRCA prohibits employers from making payments or settling claims for compensation in respect of injury, other than as provided by its terms. It states:

71 Authority to indemnify employer
…
(3) Except as provided in this Act, an employer must not—
(a)make or agree to make any payment or settlement in relation to an injury or a claim for compensation in respect of an injury, to a worker or admit liability for any injury or claim; or
(b)without the consent of the Authority; incur any expense or cost in relation to any such injury or claim.

Section 71(4) provides that the Authority is subrogated to all rights of action or recovery that an employer has against a person. It relevantly provides:
(4)The Authority is subrogated to all rights of action or recovery that an employer has against a person in respect of—
(a)any claim for compensation;
(b)any claim for damages;
(c)any claim for contribution under section 23B of the Wrongs Act 1958 or a corresponding provision of an Act of the Commonwealth, another State or a Territory—
made by a worker employed by the employer, or the dependants of a worker, including the right—
(d)to undertake the settlement of a claim against the employer…
Division 9 of Part 5 of the WIRCA deals with ‘Voluntary settlements’. The arrangements thereby established only apply to a worker who is over 55 years of age and who has no current work capacity and is likely to continue indefinitely to have no current work capacity.[15]
[15]WIRCA (n 14) s 244.

Part 6 of the WIRCA establishes a comprehensive regime for the resolution of disputes under the Act and the Accident Compensation Act. Sections 264 to 266 confer jurisdiction on the County Court and the Magistrates’ Court. Before legal proceedings may be commenced, certain disputes must first be conciliated by the ACCS.[16] Section 273 relevantly provides:
[16]WIRCA (n 14) s 519.

273 Certain proceedings referred for conciliation
(1)Proceedings, other than proceedings specified in subsection (3), must not be commenced in a court unless—
(a)the dispute between the parties has been referred for conciliation under Division 2; and
(b)ACCS is satisfied that all reasonable steps have been taken by the claimant to settle the dispute; and
(c)ACCS has issued a certificate to that effect that ACCS is so satisfied.

…
(3)This section does not apply to proceedings relating to—
…
(c) any question or matter referred to in section 265.

Section 265 of the WIRCA confers jurisdiction on the County Court to, amongst other things, ‘inquire into, hear and determine … any question or matter in relation to whether liability to pay compensation in relation to a claim for compensation arises under this Act …’

The duty of the ACCS is set out in s 293 of the WIRCA as follows:

293 Duty of ACCS
ACCS must, having regard to the need to be fair, economical, informal and quick, and having regard to the objectives of this Act, make all reasonable efforts to conciliate in connection with a dispute and to bring the parties to agreement.

The powers of the ACCS are principally set out in s 294 of the WIRCA. They include the power to ‘make such recommendations to the parties to the dispute as ACCS considers to be appropriate …’.[17] In the course of conciliating a dispute, the ACCS also has power, subject to various conditions, to give directions that the Authority or an employer pay, or continue to pay, compensation to a worker.[18] The power to make such a direction is only enlivened in relation to certain disputes, including those relating to a claim for weekly payments under the WIRCA or the Accident Compensation Act which have been ‘referred to conciliation under this Division, but ACCS is unable to bring the parties to agreement by conciliation’.[19]
[17]WIRCA (n 14) s 294(1)(a).
[18]WIRCA (n 14) s 297.
[19]WIRCA (n 14) s 297(2).

Where a dispute has been successfully conciliated, ACCS must issue an outcome certificate containing certain information. Section 296 relevantly states:

296 Outcome certificates to be issued
(1)Subject to subsection (4), ACCS must issue an outcome certificate within 7 days of the conclusion of a conciliation if—
(a)the dispute that is the subject of the conciliation was referred to conciliation under section 282; and

(b) the dispute is resolved.

(2) The outcome certificate must—
…
(c)set out any terms on which the dispute is resolved; and
(d)certify that each party to the dispute is bound by the result; and

(e) state that the outcome certificate is evidence of—
(i)the resolution of the dispute between the parties; and
(ii)the terms on which the dispute has been resolved.

(3)The outcome certificate is admissible in any court proceeding as evidence of—
(a) the resolution of the dispute between the parties; and
(b) the terms on which the dispute has been resolved.

…

Section 300(1) provides that:

300 Payments under direction etc. not admission of liability
(1) The fact that a person—
(a)pays or continues to pay compensation in accordance with a direction or recommendation of ACCS under this Division; or

(b) does not apply for a revocation of any such direction—
is not an admission of liability by the person.

Issue One - Consensus ad idem

Central to the appellant’s contention that the learned Magistrate erred in finding that consensus ad idem existed between the parties was the proposition that the dispute which was conciliated and the subject of the certificate issued by a conciliation officer concerned his entitlements under the Accident Compensation Act until the end of the second entitlement period. As such, the accord and satisfaction which was established related only to that period; the settlement agreement did not forever bar the appellant from any future entitlement to weekly payments of compensation he may have under the Accident Compensation Act.

In support of this submission, the appellant relied on the fact that he objected to the termination of his weekly payments and referred the dispute to conciliation during the second entitlement period. Similarly, the email exchange between the parties which preceded the issuance of the conciliation outcome certificate referred to a 130 week period.[20] It was common ground that, in relation to the appellant, this was the period which equated with the expiry of the second entitlement period.[21] There was no reference to the settlement extending after the second entitlement period.
[20]See [11] above.
[21]Inclusive of the first entitlement period of 13 weeks.

The appellant also submitted that the words ‘in accordance with the Act’ in the conciliation outcome certificate supported a conclusion that the settlement agreement only related to the appellant’s claim in the second entitlement period. The words ‘but not thereafter’ in the conciliation outcome certificate was submitted to be a reference to the fact that the appellant’s full entitlement in the second entitlement period would not be paid because it would be discounted by a couple of days.[22]
[22]It was submitted that in this particular case ‘and not thereafter’ means there was a discount and that the full period would not be paid. If the full period were to be paid, then it was submitted that it would refer to the ‘payment of the second entitlement period’ or whatever it may be.

The appellant also emphasised that, in order to obtain weekly payments after the second entitlement period, under the Accident Compensation Act, a worker is required to satisfy a different and harsher test of incapacity.

The appellant submitted that these matters also needed to be viewed in the context of the major disentitlement which would be occasioned upon him if the settlement agreement was interpreted as disentitling him from making any further claims beyond the period of 130 weeks. Any injured worker would have to engage in ‘very serious consideration’ before agreeing to such terms.

In light of these matters, the appellant contended that it was not reasonably open for the Magistrate to determine that the parties were ad idem that the appellant would accept a limited period of compensation in return for being precluded forever from seeking any further compensation. It was submitted that the respondent could only have made payments that satisfied ongoing requirements up to the end of the second entitlement period, and those payments could not have extinguished obligations after that. The accord and satisfaction created in relation to the second entitlement period meant that, if the appellant wanted to re-establish an incapacity thereafter, his evidentiary onus would be greater than usual.

Whatever else might be said about these arguments, the contention advanced on behalf of the appellant does not raise a question of law and must accordingly be dismissed.

In Patsuris v Gippsland and Southern Rural Water Corporation,[23] the Court of Appeal addressed the ‘question of law’ requirement in s 148 of the Victorian Civil and Administrative Tribunal Act 1998. That provision and the Court of Appeal’s observations are relevantly analogous and applicable to the approach to be adopted to s 109(1) of the Magistrates’ Court Act 1989. After referring to the ‘limited capacity on the Court to review findings of fact’ as a result of the confinement of an appeal to questions of law,[24] Garde AJA (with whom the other members of the Court agreed) referred to the following ‘archetypal, although non-exhaustive list’ of mistakes referred to by the Court of Appeal in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd which might constitute errors of law:[25]

·whether the tribunal has identified the relevant legal test;
·whether the tribunal applied the correct legal test;
·whether there is any evidence to support a finding by the tribunal of a particular fact; and
·whether the facts found fall within a statute properly construed.

[23](2016) 218 LGERA 167 (‘Patsuris’).

[24]Ibid 180 [44].

[25]Patsuris (n 23) 180 [45], citing Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, 784 [49], 805–6 [167].

Garde AJA then referred to the following observations and analysis by Bell J in Rugolino v Howard concerning the principles to be applied when investigating a finding of fact for legal error in the context of an appeal from the Magistrates’ Court,[26] which Garde AJA identified as being equally applicable to appeals under s 148 of the Victorian Civil and Administrative Tribunal Act 1998:[27]

These principles [of judicial decision-making] have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held “the question whether there is any evidence of a particular fact is a question of law.” Therefore a finding of fact is open to challenge as “erroneous in law”, but only if “there is no probative evidence to support it”. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if “it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.” His Honour emphasised that the question was not whether the finding was “reasonably open”, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria, Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was “not open”. After endorsing the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries that it was “critical” to making findings of fact that they be based on the evidence, but there would be no error of law “unless it can be shown that there was no evidence” to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council. After approving the “not open” test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was “any evidence” to support it.

In Victoria v Subramanian, Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.

[26]Rugolino v Howard (2010) 57 MVR 178 (‘Rugolino’).

[27]Patsuris (n 23) 181 [46], quoting Rugolino (n 26) 180 [10]–[12] (citations omitted).

The appellant did not submit that there was ‘no evidence’ before the Magistrate to support the finding that the parties were consensus ad idem. The contents of the conciliation outcome certificate and aspects of the preceding email exchange between the parties precluded any such argument. As was submitted on behalf of the respondent, whether or not the parties had agreed that the appellant would have no entitlement to weekly payments after 29 October 2016 was a question of fact which turned on the relevant evidence adduced at trial. The appellant has failed to establish any error in the Magistrate’s finding of fact which would constitute an error of law.

Issue Two - ‘Contracting out’

The appellant’s principal contention on the appeal was that if, contrary to its submissions referred to above, the settlement agreement amounted to an accord and satisfaction of all of the appellant’s past, present and future entitlements under the Accident Compensation Act, the agreement is of no legal force as it is impermissible to ‘contract out’ of the Act.

Appellant’s submissions

The appellant emphasised that s 93 of the Accident Compensation Act provides that a worker is entitled to weekly payments while ‘incapacitated for work’, and that a worker’s entitlement arises by operation of the Act from time to time. An injured worker’s health, capacity and entitlements are not static conditions. An example given by the appellant was that of an injured worker whose incapacity does not initially entitle her to compensation in the third entitlement period, but whose condition deteriorates during the third entitlement period such that she becomes entitled, once again, to compensation.

The potentially dynamic nature of an injured worker’s incapacity meant that settlement of disputes over compensation under the Accident Compensation Act could only relate to the entitlement period at the time, and could not preclude the worker from re-establishing an entitlement to compensation in the future because of a deterioration in their condition.

The appellant submitted that this reflected and was consistent with the fact that the Accident Compensation Act contained no provision for a worker’s future entitlement to payments to be compromised, other than the redemption provisions in Division 3A of Part IV,[28] or in relation to common law claims as provided for by the Act.[29] These were the only means by which a worker’s payments into the future could permissibly be compromised.
[28]See [34] above.
[29]See Accident Compensation Act (n 1) s 134AB.

It therefore followed that, although there was accord and satisfaction until 29 October 2016, this cannot preclude the appellant from bringing an application for incapacity from a later date – as occurred here – because any such preclusion would cause there to be a determination proscribed by the Act, namely, the settlement of a future entitlement.

Authorities

In support of these submissions, the appellant relied on decisions of the County Court in Perkins v GIO Workers’ Compensation (Victoria) Ltd,[30] Warren v Jennifer A Yates Pty Ltd,[31] and Fuat v OneSteel Ltd,[32] and decisions of the Magistrates’ Court in Filipovski v Tandem Australia Pty Ltd,[33] and Turner v Clinical Laboratories.[34] One ground of appeal relied on by the appellant is that the Magistrate erred in distinguishing the circumstances of these cases from those of the present case. The appellant appears to submit that the outcome in his case should mirror those of the cases that he relies upon.
[30](County Court of Victoria, Higgins J, 12 December 1995) (‘Perkins’).
[31][2006] VCC 1780 (‘Warren’).
[32]Fuat (n 4).
[33]Filipovski (n 4).
[34]Turner (n 4).

In Perkins,[35] the plaintiff’s claim for compensation for her injury was accepted. Sometime later, the defendant wrote to the plaintiff to inform her that her compensation in the form of weekly payments would be terminated on the basis that her injury was no longer aggravated by her employment and her entitlement to compensation had ceased. The plaintiff commenced proceedings in the Magistrates’ Court claiming that she was entitled to compensation on the basis that she was totally incapacitated for her pre-injury duties. The parties settled that proceeding. Judge Higgins found that the settlement included the following matters:[36]

Firstly, the defendant would pay the plaintiff’s weekly payments of compensation at the rate of 70% of pre injury average weekly earnings from the 25th June 1993 up to and including the 30th November 1993. As from the beginning of December 1993 weekly payments were not to be made to the plaintiff. Secondly the defendant would pay to the plaintiff the sum of $27,924 representing 50% impairment of the back pursuant to S.98 of the Act. Thirdly, the defendant would pay the plaintiff’s reasonable medical and like expenses to date, together with the medical and like expenses associated with a spinal fusion, which was to be performed in the near future. Fourthly, the defendant would pay the plaintiffs [sic] costs on Magistrates’ Court scale $20,000 to $25,000. Fifthly, the application made by the plaintiff as contained in the complaint and amended complaints was, “otherwise dismissed”

[35]Perkins (n 30).

[36]Ibid.

Judge Higgins found that this settlement had the effect of redeeming the plaintiff’s entitlement to future compensation in the form of weekly payments. However, his Honour also found that such a settlement was proscribed:[37]

In my opinion the degree of particularity with which the legislature has addressed its mind to the subject matter of redemptions or settlements as set out in section 115, can only mean that it intended to prohibit any agreements that fail to meet the criteria.

[37]Ibid.

His Honour found that the plaintiff would have to show some change in circumstances to maintain a claim for compensation based on total incapacity:[38]

In this action the plaintiff claims weekly payments from 2nd December 1993 which is immediately after the date upon which she agreed that her payments should cease. In my view she certainly has no entitlement to payments up until 16th December 1993 which was the date of the order made by the Magistrates’ court dismissing her application for payments based upon total incapacity. In my view she should not be entitled to institute further proceedings unless there is some change in the circumstances such as the intervening operative treatment, and that her claim for ongoing payments, based upon total incapacity, should be made from that date.

[38]Ibid.

The appellant submitted that, consistent with the approach in Perkins, there is no capacity under the Accident Compensation Act to make settlements in futuro, except as provided for in Division 3A.

In Warren,[39] the plaintiff alleged that she had suffered injuries to her back and wrist that were caused by her employment. She commenced proceedings in the Magistrates’ Court in September 2002 and sought compensation in the form of weekly payments. The defendant denied liability. At the hearing of the proceeding in March 2003, consent orders were made stating that there was no order as to costs and that the proceeding was ‘otherwise dismissed’. There were no signed terms of settlement or minute of consent.
[39]Warren (n 31).

In April 2015, the plaintiff brought proceedings in the County Court in relation to the same injuries. She initially sought a declaration of liability in relation to ss 98C and 98E of the Workers’ Compensation Act 1958, but later added a claim for compensation in the form of weekly payments from February 2002. Judge Dyett considered whether the new claims were barred by res judicata, issue estoppel or accord and satisfaction.

In relation to the declaration of liability under ss 98C and 98E, his Honour held that there was no issue of res judicata because the consent orders related to different relief, subject to different criteria, under different sections of the Act. The plaintiff was not precluded from seeking the declaration by virtue of issue estoppel, as all that the consent orders determined was that, at that time, the plaintiff was not entitled to weekly payments or medical expenses.

His Honour held that the plaintiff was precluded from claiming compensation in the form of weekly payments between February 2002 and the date of the consent orders by virtue of accord and satisfaction or res judicata. The plaintiff was, however, able to claim compensation in the form of weekly payments after the date of the consent orders. Judge Dyett cited Perkins in support of the proposition that a previous settlement does not preclude a claim for compensation in respect of a discrete period of time at a later date because ‘[a] worker’s health is not a static condition. It may vary from time to time and so will the entitlement to payments’.[40]
[40]Warren (n 31) [13]–[15].

In Fuat,[41] the plaintiff’s claim for compensation for a back injury was accepted, but his claim for compensation for a knee injury was rejected. In July 2001, the defendant notified the plaintiff that his weekly payments would be terminated on the basis that he had not made every reasonable effort to return to work and participate in rehabilitation programs. The plaintiff commenced a proceeding in the Magistrates’ Court claiming that he was entitled to weekly payments at the appropriate rate for a worker who had no current work capacity and was likely to continue indefinitely to have no current work capacity. The parties settled this proceeding in June 2004, entered into a Deed of Release, and consent orders were made.[42]
[41]Fuat (n 4).
[42]It is unnecessary to set out the terms of settlement and Deed of Release in any detail, save to say that it was held that ‘the defendant paid a greater amount than the plaintiff may well have obtained in consideration of his relinquishing any entitlement to future weekly payments’: Ibid [43(e)].

The plaintiff subsequently commenced another proceeding in the Magistrates’ Court that was transferred to the County Court, seeking compensation in the form of weekly payments from around the time of the consent orders in the previous proceeding, as well as medical and like expenses. The defendant submitted that the claim was precluded by res judicata, issue estoppel and accord and satisfaction.

In relation to the defence of accord and satisfaction, Judge Bowman cited Perkins with approval and concluded that the settlement purported to extinguish the plaintiff’s future entitlement to compensation. It was therefore proscribed by the Accident Compensation Act. His Honour concluded that ‘[t]he defence of accord and satisfaction may operate up until the date of the consent orders, but not thereafter’.[43] Further:[44]

It may be that [the plaintiff] will have to establish some change in circumstances which has occurred since the dismissal of his previous claim and the execution of the documents to which I have referred. However, he is not precluded from attempting so to do.

[43]Ibid [43(f)].

[44]Ibid [45].

The appellant relied on the above decisions of the County Court as illustrations of the proposition that the defence of accord and satisfaction could only be successfully raised in relation to the period for which weekly payments were actually paid, but not thereafter. In respect of the latter period, the appellant accepted that he would have to show a change in circumstances for evidentiary reasons.

In Filipovski,[45] the plaintiff suffered an injury in June 2010. He submitted a claim for compensation which was accepted. In June 2012, the defendant’s insurer ‘issued a notice of termination of weekly payments on the basis that [the plaintiff] had no incapacity for work or work related incapacity’.[46] The plaintiff commenced a proceeding in the Magistrates’ Court in December 2011, seeking the reinstatement of weekly payments.
[45]Filipovski (n 4).
[46]Ibid [5].

The plaintiff also submitted a second claim form, alleging that he suffered from a ‘[p]sychiatric condition, aggravation of pre-existing condition and new post-traumatic stress disorder’.[47] The second claim form was rejected on the basis that these injuries were not work-related. The plaintiff amended his statement of claim to include complaints around the rejection of the second claim form. The parties agreed to settle the proceeding on 29 June 2012 and consent orders were made. The terms of settlement were described as follows:[48]

[The defendant] agreed that it would pay pursuant to the first claim form 20 weeks weekly payments at the current “no current work capacity” rate from 5 August 2011 to 23 August 2011 and “reasonable medical and like expenses in accordance with the Act in respect of both the claimed physical and consequential psychiatric injuries”.

[47]Ibid [7].

[48]Ibid [12]. In the terms of settlement, the defendant maintained its rejection of the second claim form.

At some later point, the plaintiff sought the reinstatement of weekly payments from 29 June 2012. This was rejected by the defendant. The dispute was referred to the ACCS, which issued a genuine dispute certificate. The plaintiff commenced another proceeding in the Magistrates’ Court on 12 August 2015, alleging that his mental health had substantially deteriorated since 29 June 2012. The defendant raised the defences of issue estoppel and accord and satisfaction, citing the consent orders and terms of settlement.

Magistrate Wright found that the plaintiff was precluded from re-litigating the injuries set out in the second claim form as they were finalised in the dismissal of the earlier proceedings and the related terms of settlement, which dismissal was final.[49] However, his Honour considered that the plaintiff was not precluded from arguing that he had ‘a work related incapacity for work as a result of the injuries, and any consequential injuries, as set out in the first claim form beyond 29 June 2012’.[50]
[49]Ibid [47], [50].
[50]Ibid [52].

The appellant contended that the circumstances of his case are very similar to those in Turner.[51] In that matter, the plaintiff suffered a psychiatric injury at work in August 2007. She submitted a claim for compensation which was accepted. In August 2008, the defendant gave notice of its intention to terminate her weekly payments and medical treatment expenses because she was no longer incapacitated for work and her incapacity for work was no longer materially contributed to by either an injury arising out of or in the course of employment or an injury which entitled her to compensation.
[51]Turner (n 4).

The plaintiff commenced a proceeding in the Magistrates’ Court alleging that she was still entitled to weekly payments and medical and like expenses. In December 2010, the proceeding was resolved by consent. The terms of settlement were described as follows:[52]

…with an express ‘denial of liability’, the defendant was to pay [the plaintiff] weekly payments of compensation at the rate for ‘no current work capacity’ from 5 August 2008 to 19 March 2010 (being the balance of weekly payments up to the 130 week entitlement period) together with ongoing reasonable medical and like expenses in relation to her psychiatric condition

[52]Ibid [5].

In May 2015, the plaintiff applied for the reinstatement of her weekly payments, which request was rejected. The plaintiff commenced another proceeding in the Magistrates’ Court, and the defendant claimed that the plaintiff was barred from applying for reinstatement of her weekly payments because the settlement of the previous proceeding constituted an accord and satisfaction or raised an issue estoppel. Magistrate Garnett held that:[53]

It is clear from the principles stated in these cases that the agreement reached by the parties on 16 December finalised any claim by Ms Turner to be entitled to weekly payments up to the 130 week entitlement period. The agreement extinguished all claims by her for weekly payments against the defendant in relation to her psychiatric condition to that point. However, it did not extinguish her right to prove an entitlement to weekly payments beyond 130 weeks if she is able to satisfy the evidentiary onus that from 25 May 2015 her psychiatric condition has deteriorated to such an extent that she has ‘no current work capacity’ which is likely to last indefinitely. My finding is consistent with the approach taken in Perkins, Chalkley, Hall and Cihan.

Therefore, the plaintiff was not barred from making a claim for the reinstatement of her weekly payments.

[53]Ibid [9].

The appellant also relied upon a number of authorities regarding the Commonwealth compensation scheme to support the proposition that decision-makers in an administrative scheme cannot deny future compensation to workers. The appellant submitted that, as a general rule, there is no issue estoppel arising in respect of matters decided by an earlier tribunal. It was submitted that this rule precluded the operation of accord and satisfaction to establish an issue estoppel in this case. The appellant also submitted that the following remarks in Commonwealth of Australia v Snell,[54] regarding the Commonwealth compensation scheme, were equally applicable to the Act in this case:[55]

The scheme of legislation is to provide for the administration of claims, including the review of determinations by the Tribunal, including where appropriate the reconsideration of earlier determinations. No principle of issue estoppel or some cognate procedural rule of approach, taken from procedure and principle governing final hearings of judicial or quasi-judicial tribunals, should restrict what is to be drawn from the statute: a progressive and evolving decision-making giving effect to the ongoing review of entitlements including, where appropriate, the review of earlier determinations.

[54](2019) 269 FCR 18.

[55]Ibid 21 [4].

The appellant also relied on AMP Workers Compensation Services Ltd v Chalkley in support of the proposition that the Accident Compensation Act permitted him to request the reinstatement of compensation in the form of weekly payments.[56]
[56]AMP Workers Compensation Services v Chalkley [1998] VSC 29.

Consideration

Consideration of the appellant’s submissions must begin with a recognition of the distinction made in the WIRCA and the Accident Compensation Act between an entitlement to compensation and a claim for compensation. The importance of this distinction was identified by the Court of Appeal in Victorian WorkCover Authority v BSA Ltd in determining the proper construction of s 71(4) of the WIRCA.[57] The Court of Appeal stated:[58]
[57]Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276 (‘BSA’).
[58]Ibid [49]–[52] (emphasis in original).

The distinction between entitlement and claim
In our view, the key to answering the construction question lies in the critical difference between an entitlement to compensation, on the one hand, and a claim for compensation, on the other. The Act of course deals separately with these subject-matters. Entitlement to compensation is dealt with by div 3 of pt 2 of the Act, while claims for compensation are dealt with by pt 3 of the Act.
The primary entitlement provision is s 39(1), which states:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.

The entitlement to compensation is thus conferred on a ‘worker’. Using the simplest part of the definition, that means ‘an individual who performs work for an employer’. Entitlement to compensation depends, therefore, on it being shown that the individual who suffered injury was in fact performing work for an employer and, moreover, that the injury in fact arose out of or in the course of that employment.
Thus, for entitlement to arise it must be established, or accepted, as a matter of fact that the injured individual was a worker at the relevant time. Mere assertion to that effect would not suffice. Establishing the relevant facts would also, of course, involve identifying the claimant’s employer, being ‘a person for whom [the] worker works’.
It follows, plainly enough, that in the provisions of the Act dealing with entitlement, references to ‘worker’ and ‘employer’ are references to – and only to – persons who in fact had the relevant status at the relevant time. Provisions dealing with claims for compensation must, however, be approached differently. An individual who makes a claim for compensation thereby asserts that the circumstances of his/her case satisfy all of the conditions necessary to create an entitlement to compensation. That is, the individual claims to have been (at the relevant time) a worker performing work for an employer and to have suffered an injury ‘arising out of or in the course of’ that employment.

The respondent submitted (and the appellant did not suggest otherwise) that the distinction identified by the Court of Appeal in the WIRCA between an entitlement to compensation and a claim for compensation is likewise evident in the provisions of the Accident Compensation Act.

As I have already noted,[59] in the appellant’s case, the provisions of the WIRCA governed the making of a claim for compensation in relation to his injury. The question of his entitlement to compensation was governed by the Accident Compensation Act. Section 82(1) of the Accident Compensation Act provides that a worker ‘shall be entitled to compensation’, ‘[i]f there is caused to a worker an injury arising out of or in the course of any employment’.[60] Pursuant to s 93, compensation shall be in the form of weekly payments ‘[i]f a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation’.[61]
[59]See [26] above.
[60]Set out in [28] above.
[61]Set out in [29] above.

As BSA makes clear, for an entitlement to arise, the necessary elements prescribed by the Act upon which the entitlement is said to depend must be established, or accepted, as a matter of fact. In this matter, the Authority accepted the appellant’s claim for weekly payments and medical and like expenses for a mental injury.

As the concluding words of s 82(1) make clear, a worker’s entitlement to compensation is not at large but ‘in accordance with this Act’. Likewise, the provision made by s 93 that compensation shall be in the form of weekly payments if incapacity results from or is materially contributed to by an injury which entitles the worker to compensation is ‘subject to and in accordance with’ Part IV of the Act.

Section 114(1) of the Accident Compensation Act provides that the Authority may ‘terminate a worker’s entitlement to weekly payments’ in accordance with the Act.[62] A notice given under s 114 of the Accident Compensation Act is capable of being a notice to terminate a worker’s entitlement to payments.[63] Pursuant to s 114(2)(b), one ground upon which the Authority may terminate weekly payments is that ‘the worker is not entitled to compensation under Division 1 or 2;’ or ‘the worker is not, or is no longer entitled to weekly payments …’.
[62]Set out in [33] above.
[63]Victorian WorkCover Authority and Shire of Yarra Ranges v Balogh [2004] VSCA 200, [17].

The Authority acted on the ground in s 114(2)(b) when it gave notice to the appellant that he would no longer be entitled to weekly payments and expenses from 20 April 2016.[64] In substance, the Authority determined that the appellant’s employment was not a cause of any incapacity on his part. The effect of this notice was that the appellant’s entitlement to workers compensation terminated on 20 April 2016.
[64]See [9] above.

Contrary to the appellant’s submissions, in giving this notice, the Authority did not purport to terminate the appellant’s entitlement to compensation in the second entitlement period. Consistent with the terms of s 114 of the Accident Compensation Act, the Authority terminated the appellant’s entitlement to weekly payments per se. I reject the appellant’s submission that the Authority’s decision which was referred to conciliation was a decision about his entitlements under the Accident Compensation Act until the end of the second entitlement period. As the request for conciliation stated, the detail of the dispute was that ‘the insurer has terminated my entitlement to weekly payments and medical and like expenses’.

The consequence of this analysis is that, from 20 April 2016, the appellant no longer had any entitlement to compensation under the Accident Compensation Act. Thereafter, the appellant could and did make a claim for entitlements under that Act. He did that by notifying the dispute to the ACCS in relation to the Authority’s decision to terminate his entitlement to weekly and other payments.

The conciliation outcome certificate issued by the conciliation officer on 5 July 2016 is evidence of the resolution of the dispute between the parties and the terms on which the dispute was resolved.[65] The certificate records that the parties resolved the dispute on the basis of the Conciliation Officer’s recommendation that:

… the Authorised Agent agreed to make weekly payments from 20 April 2016 to 29 October 2016 but not thereafter in accordance with the Act. The Agent will reinstate the reasonable cost of medical and like expenses relevant to the claimed injury from 20 April 2016 ongoing in accordance with the Act.

[65]Pursuant to WIRCA (n 14) s 296(3).

Consistent with s 300(1) of the WIRCA, the certificate also stated that ‘payment of compensation in accordance with a recommendation is not an admission of liability’. The respondent was therefore correct in its submissions that the Authority resolved the dispute which the appellant notified by agreeing to make certain payments to him calculated in accordance with the Accident Compensation Act, but not making any admission that he had an entitlement to those payments.

The Court of Appeal has recognised that the functions of the Authority include the settlement of claims. In BSA, the Court referred to the right of subrogation under s 71(4) of the WIRCA[66] as being ‘exercised as part of the Authority’s claims assessment function, that is, the function conferred by s 493(1)(a) of receiving, assessing, accepting or rejecting claims for compensation’.[67] The Court continued:[68]

By s 71(4)(d) the right of subrogation expressly includes the right to undertake the settlement of a claim against the employer. This reinforces the conclusion that the Authority is empowered to determine all aspects of the merits of a claim against an alleged employer, and to settle the claim without the need for any court proceeding at all.

[66]See [39] above.

[67]BSA (n 57) [57].

[68]Ibid [59].

The position was in substance the same under the Accident Compensation Act (despite various, presently immaterial, differences with the arrangements established under the WIRCA). This is made clear by Warren CJ’s observation in Ozbilgi v Bradnams Windows and Doors Pty Ltd that ‘[i]t cannot, in my view, be doubted that the functions and powers of the WorkCover Authority include the power to compromise proceedings without admitting liability’.[69]
[69]Ozbilgi (n 7) [37] (Warren CJ, Buchanan JA and Sifris AJA agreeing).

The central reasoning in the authorities relied upon by the appellant is the judgment of Higgins J in Perkins which was followed in the later decisions of the County Court and the Magistrates’ Court on which the appellant relied. The key part of his Honour’s reasoning which underpinned the conclusion that the agreement entered into in that case was proscribed by the Accident Compensation Act was his conclusion that:[70]

In my opinion the degree of particularity with which the legislature has addressed its mind to the subject matter of redemptions or settlements as set out in section 115, can only mean that it intended to prohibit any agreements that fail to meet the criteria. See the discussion of the application of the rule "expressio unius est exclusio alterius" in Pearce 2nd Edition Statutory Interpretation in Australia at pps.44-45.

[70]Perkins (n 30).

Respectfully, this analysis and conclusion cannot be accepted.

In concluding that s 115 prohibited ‘any agreements’ which failed to meet the criteria set out in the section, his Honour’s analysis does not engage with the distinction between an entitlement to compensation and a claim for compensation subsequently identified by the Court of Appeal in the BSA. His Honour in effect combined these two categories together so as to treat in the same way a redemption of an entitlement to compensation which a worker actually has, and the settlement of a disputed claim for compensation.

The fact that s 115 of the Accident Compensation Act (as it then was) applied to ‘a worker who is receiving weekly payments’[71] indicates that, as with the current provisions in Division 3A, it was concerned with a worker’s existing entitlement to weekly payments. Although s 115 then (and now Division 3A) provided a dedicated and exclusive regime for the calculation of settlement amounts for workers who have an entitlement to compensation under the Act, there is no basis to conclude that it prohibits the settlement of disputed claims to entitlements.
[71]Accident Compensation Act (n 1) ss 115(1), (3): see Perkins (n 30).

Such a conclusion would be inconsistent with the recognition by the Court of Appeal in BSA that, under the WIRCA, the Authority ‘is empowered to determine all aspects of the merits of a claim against an alleged employer, and to settle the claim without the need for any court proceeding at all’.[72] The existence, in Part 6 of the WIRCA, of a comprehensive regime for the resolution of disputes under that Act and the Accident Compensation Act evinces an intention that disputes arising out of the workers’ compensation regime be resolved, where appropriate, outside of court.
[72]BSA (n 57) [59] and see [95] above.

Those disputes must include disputes between a worker and an employer regarding the employer’s liability to pay compensation. The WIRCA does not prevent disputes of this type, such as that raised by the appellant, being conciliated under Part 6 of the WIRCA. The fact that the ACCS is under a duty to make all reasonable efforts to conciliate to resolve disputes[73] and has certain powers if they are unable to bring the parties to agreement,[74] are strong indications that liability disputes must be capable of settlement.
[73]WIRCA (n 14) s 293. See [43] above.
[74]WIRCA (n 14) s 297. See [44] above.

The existence of the voluntary settlement schemes in Division 3A of the Accident Compensation Act does not lead to a different conclusion. The schemes provided for by Division 3A of the Accident Compensation Act and the dispute resolution scheme in Part 6 of WIRCA can be read together coherently as they deal with different subject matters. The former are concerned with the settlement of a worker’s entitlement. The purpose and objectives of the Acts indicate that the voluntary settlement schemes are intended to provide permanently injured workers – who are entitled to compensation under the Acts – with flexibility as to how they receive their compensation.

In contrast, the dispute resolution scheme in Part 6 of the WIRCA is concerned with the settlement of disputes, including liability disputes. A liability dispute may arise because an insurer has terminated a worker’s entitlement to compensation in the form of weekly payments. In that event, the dispute concerns whether or not the insurer had power to issue the termination notice, and therefore whether the worker was still entitled to compensation in the form of weekly payments. If the worker chooses to settle this dispute on terms that do not include the retraction of the termination notice, this cannot be properly framed as a voluntary settlement of their entitlement because the worker does not have any entitlement under the Accident Compensation Act. The voluntary settlement scheme provisions in Division 3A of the Accident Compensation Act only relate to settlements where the worker has an entitlement. They do not establish a process for the resolution of disputes about the existence of that entitlement.

A construction of the regime established by the Accident Compensation Act and the WIRCA which allows disputes regarding an employer’s liability to pay compensation to be settled outside of court is one which would promote the purposes and objects of those Acts.[75] A contrary result would defeat the purpose of the dispute resolution scheme in Part 6 of the WIRCA and would seemingly require every such dispute to be litigated. Such a result would, contrary to the purpose and objects of the regime,[76] impose considerable expense on workers, employers and the Authority.
[75]In particular see [27], [35], [36] above.
[76]In particular WIRCA (n 14) ss 1 and 10. See above [35]–[36].

The above consideration highlights the hazard associated with the generalised application of the principle expressio unius est exclusio alterius relied on by Higgins J in Perkins. As the High Court has stated, the principle is to be applied with caution and not where it would bring about a result which the legislature is unlikely to have intended.[77] For the above reasons, I consider its application would have that result in this case.
[77]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575; Daniels Corporation v ACCC (2002) 213 CLR 543, 560 [34].

In summary, it may be accepted that it would be contrary to the purposes and objects of the Accident Compensation Act for parties to compromise a worker’s future statutory entitlements other than in the manner provided for by the voluntary settlement schemes in Division 3A of the Accident Compensation Act. However, this is not such a case. When the settlement agreement was entered into, the appellant did not have any entitlement to compensation under the Act. The settlement agreement did not therefore constitute any impermissible ‘contracting out’ of statutory entitlements. Instead, what it effected was a compromise of the appellant’s claim to have an entitlement under the Accident Compensation Act. Part 6 of the WIRCA contemplates and seeks to facilitate the making of such compromises.

The appeal is accordingly dismissed.

Within seven days, the parties are to submit any proposed minute of consent orders in respect of the costs of the proceeding or, in the absence of consent, any short submissions on costs.

---

[2020] VSC 217

28 April 2020