McPhee v Steelsmith Engineering Pty Ltd

[2024] VSC 254

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03451

BETWEEN:

PETER JOHN MCPHEE	Appellant
v
STEELSMITH ENGINEERING PTY LTD	Respondent

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023, 7 February 2024
DATE OF JUDGMENT:	20 May 2024
CASE MAY BE CITED AS:	McPhee v Steelsmith Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 254

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JUDICIAL REVIEW — Worker’s compensation — Appeal pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) against a magistrate’s decision to reject a claim for interest on arrears of weekly compensation payments pursuant to s 114E(1)(b) of the Accident Compensation Act 1985 (Vic) (‘Act’) — Proper construction of s 114E(1)(b) of the Act and ambit of the term ‘claim’ — O’Brien Transport Services Pty Ltd v Williams [2022] VSCA 62 and Hall v Hallam Manufacturing Pty Ltd [2014] VMC 29 referred to — Whether it was open to the magistrate to characterise what had occurred pursuant to a consent order as a reinstatement of weekly payments, and that s 114E(1)(b) therefore did not enliven an entitlement to interest — Whether a consent order adopting and applying a medical panel opinion had the effect of setting aside a claims agent’s notice of a rejection of a claim — Katter v Melhem (2015) 90 NSWLR 205 referred to — Consideration of function and effect of medical panel opinions — Masters v McCubbery [1996] 1 VR 635 referred to — Whether the magistrate erred in failing to consider whether interest should have been awarded to the plaintiff pursuant to ss 114E(1)(d) and (e) of the Act — Sections 114E(1)(d) and (e) of the Act not applicable to appellant’s claim — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Jurica with Ms S Bailey of counsel	Saines Lucas Solicitors
For the Respondent	Mr M Hooper of counsel	Injury Disputes Practice Lawyers

HER HONOUR:

Introduction and background

1. These reasons concern an appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’) from a decision of the Magistrates’ Court at Ballarat.  A magistrate dismissed the appellant’s claim for interest upon arrears of weekly payments of compensation (‘weekly payments’) paid to him following the conclusion of a proceeding where he sought, among other things, weekly payments of compensation pursuant to the Accident Compensation Act 1985 (Vic) (‘Act’) in respect of a number of physical injuries suffered by him since 2004.

1. In around May 2003, the appellant, Mr Peter McPhee, commenced working as a welder for the respondent, Steelsmith Engineering Pty Ltd (‘Steelsmith’). Mr McPhee sustained an injury to his left knee during the course of his employment with Steelsmith as a result of a fall on 11 November 2004 (‘November 2004 incident’). Mr McPhee submitted a claim with respect to his left knee injury on 8 May 2008 (‘2008 claim’). Liability for the 2008 claim was accepted by Steelsmith’s claims agent (‘CGU’) and weekly payments were made in accordance with the Act. On 5 May 2011, those payments were terminated after 130 weeks following a notice issued by CGU on 5 May 2011.

1. On 5 October 2011, Mr McPhee issued a proceeding in the Magistrates’ Court seeking, among other things, the resumption of his weekly payments (‘first proceeding’).  On 17 April 2012, the first proceeding was compromised on terms whereby his weekly payments were to continue for the period between 19 August 2011 to 16 April 2012.  While the agreement between the parties provided for the payment of arrears of weekly payments, no allowance was made for interest on those arrears.[1]

   [1]Indeed, the terms of settlement dated 17 April 2012, which provided for the payment of weekly payments up to and including the day prior, had the words ‘together with interest pursuant to s 114E of the Act’ struck out by hand.

1. In December 2007 and January 2008, Mr McPhee suffered a number of falls in the course of his employment with Steelsmith.  In July 2010, Mr McPhee lodged a claim for impairment benefits for injuries related to his left leg/knee, right knee and right hip.  Liability was accepted for the left knee injury and rejected for the other injuries by a notice dated 21 August 2013.

1. Mr McPhee ceased employment with Steelsmith in late 2010.

1. In the period between 2008 and 2018, Mr McPhee had a number of surgeries to his left knee, right hip, and cervical spine.  He had three arthroscopies on his left knee in 2008 and 2009, further surgeries in 2009, 2011 and 2012, and a total knee replacement in 2014.  He had treatment for pain in his left hip in 2013, and a hip replacement in 2015.  His right hip was replaced in 2016.  He also had a number of surgical procedures on his right shoulder, and underwent neck surgery in 2018.

1. Mr McPhee was examined by a medical panel in April and July 2016.  The referral to this medical panel was made in the course of another proceeding brought by Mr McPhee in the Magistrates’ Court, which contested Steelsmith’s refusal to pay the impairment benefit referred to in paragraph 4 of these reasons.  The medical panel was asked to determine whether Mr McPhee had sustained compensable injuries to his left hip, right knee and lumbar spine as a result of his employment with Steelsmith, including the falls which occurred in the summer of 2007 and 2008.  The medical panel found that Mr McPhee’s employment with Steelsmith was a significant contributing factor to the injuries to his lumbar spine and left hip, which had since resolved, and that his employment with Steelsmith did not significantly contribute to his right knee dysfunction.

The current proceeding and the referral to the medical panel

1. In January 2017, Mr McPhee issued a further proceeding in the Magistrates’ Court (‘current proceeding’) claiming medical expenses with respect to injuries to his right hip.

1. On 11 January 2018, Mr McPhee lodged a further claim for compensation alleging injuries to his left knee, left hip, lumbar spine, right hip, and a rectal tear injury (‘2018 claim’).[2]  The 2018 claim was rejected by CGU in a notice dated 26 February 2018 (‘February notice’).[3]  The February notice rejected Mr McPhee’s claims with respect to his left hip, right hip, right knee, lumbar spine and the rectal tear injury, and stated that CGU considered Mr McPhee had already been compensated for injuries to his left knee pursuant to the 2008 claim.  The February notice stated, among other things, as follows:

On 31 January 2018 you completed a claim for injuries to your left knee, left hip, lumbar spine, right hip, and rectal tear due to constipation.  The circumstances of you suffering injury or illness were described as ‘initially injured left knee in November 2014 [sic].  Subsequent had a series of falls in November 2007, January 2018 whilst working at Selkirk Bricks resulting in repeated left knee surgery, and surgery to the left and right hips.’

CGU confirms that you have previously lodged a claim for a left knee injury occurring on 11 November 2004 (claim 0407148604).  Liability for this claim was accepted for weekly compensation and medical expenses.  It is noted that you have not returned to work since June 2010 and your entitlements to weekly payments on this claim were terminated with effect from 19 August 2011.

On the basis of the available information, CGU has determined to reject your new claim, CGU considers that you have previously been compensated for injuries to your left knee, left hip, lumbar spine and rectal tear against claim 04070148604.

Further, CGU accepts the opinion of the Medical Panel that you no longer suffer from any work related left hip or lumbar spine injury and the opinion of Dr Economos that you are not suffering from any work related right hip or right knee injury.  It has also been taken into account that you have not returned to work with this employer since June 2010.

CGU also considers there is insufficient evidence of any rectal tear injury however will continue to pursue further medical evidence with regards to this and advise you of any changes to this decision accordingly.[4]

[2]CB24-26.

[3]CB28-32.

[4]CB29.

1. On 11 April 2018, Mr McPhee lodged another claim for compensation in respect of a cervical spine injury, which was rejected by CGU on 31 May 2018.[5]  The claims which were the subject of this claim and the 2018 claim were brought into the current proceeding by way of an amended statement of claim dated 12 November 2018.  In the amended statement of claim, Mr McPhee sought a determination regarding Steelsmith’s overall liability with respect to the claimed injuries: that is, the current proceeding was no longer limited to a claim for medical and like expenses.

   [5]CB310-313.

1. On 13 February 2019, a magistrate referred some medical questions to a medical panel (‘Panel’).  The Panel delivered its opinion and reasons on 9 September 2019 (‘Panel opinion’).  The Panel opinion is important, and is set out below.

Question 1What is the nature of the plaintiff’s medical condition relevant to the following alleged injuries:

a) left knee;

b) lumbar spine;

c) left hip;

d) right knee;

e) right hip;

f) rectal tear due to constipation;

g) cervical spine;

h) precipitation, aggravation, exacerbation, acceleration and/or deterioration aforesaid injuries.

Answer:        The Panel is of the opinion that Mr McPhee is suffering from:

a) Left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement relevant to the alleged injuries;

b) No separate intrinsic medical condition of the lumbar spine following a soft tissue injury, now resolved;

c) Left hip dysfunction following a left total hip replacement in the context of constitutional osteoarthritis of the left hip but that this is not relevant to any alleged injury;

d) No separate intrinsic medical condition of the right knee;

e) Right hip dysfunction following a total hip replacement of the right hip in the context of constitutional osteoarthritis but that this is not relevant to any claimed injury;

f) Anorectal dysfunction in the context of medication induced constipation with persistent perianal pain and rectal bleeding, following an anal tear, surgically treated;

g) Cervical dysfunction following constitutional cervical spondylosis with referred symptoms, surgically treated, but that this is not relevant to any cervical spine injury.

Question 2In the period from November 2004 to the date of the Medical Panel’s examination, was/is the plaintiffs employment with the defendant in fact, or could it possible have been, a significant contributing factor to the alleged injuries in question 1?

Answer:The Panel is of the opinion that from November 2004 to the date of the Medical Panel’s examination that the Mr McPhee’s employment with the Defendant was in fact a significant contributing factor to the left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement; a labral tear of the left hip, surgically treated and now resolved; medication induced constipation perianal pain and rectal bleeding and anal fissure treated surgically, relevant to the alleged injuries.

Question 3In the period from November 2004 to the date of the Medical Panel’s examination did/does any medical condition found by the Medical Panel in answer to question 1(a)-(f) result from or was/is it materially contributed to by the accepted injury to the plaintiffs left knee?

Answer:The Panel is of the opinion that from November 2004 to the date of the Medical Panel’s examination that Mr McPhee’s left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement; a labral tear of the left hip, surgically treated and now resolved; and medication induced constipation perianal pain and rectal bleeding and anal fissure treated surgically, resulted from and was materially contributed to by the accepted injury to Mr McPhee’s left knee.

Question 4In the period from 17 April 2012 to the date of the Medical Panel’s examination, did/does the plaintiff have:

a) a current work capacity; or

b) no current work capacity?

Answer: a) No.

b) Yes.

Question 5If the Plaintiff had no current work capacity in the period from 17 April 2012 to the date of the Medical Panel’s examination:

a) was he likely to continue indefinitely to have no current work capacity;

b) did his capacity for work result from, or was it materially contributed to by any, and if so which, of the alleged injuries in question 1?

Answer: a) Yes

b) The Panel is of the opinion that Mr McPhee’s incapacity for work was materially contributed to by the left knee dysfunction following a patellofemoral injury, surgically treated by a left total knee replacement.[6]

…

[6]CB96-98.

1. Accordingly, the Panel accepted that Mr McPhee was suffering ongoing and indefinite impairment by reason of his left knee dysfunction following a patellofemoral injury, and anorectal dysfunction as a result of medication prescribed with respect to the accepted left knee injury, to which his employment with Steelsmith was a significant contributing factor.  However, the Panel found that the additional injuries to the lumbar spine and right knee referred to in the 2018 claim did not relate to any intrinsic medical condition, and the injuries to the left hip, right hip and the cervical dysfunction were not compensable.

1. An application by Steelsmith for judicial review of the Panel’s determination was dismissed by Incerti J on 8 September 2020.  On 12 October 2020, an order was made by Magistrate Wright (‘consent order’) substantially in the terms of the minutes of order provided to the court by the parties.  The consent order provided as follows:

1.The Medical Panel Opinion dated 9 September 2019 be adopted and applied.

2.The defendant pay to the plaintiff weekly payments of compensation from 17 April 2012 to date and continuing in accordance with the Accident Compensation Act 1985 (Vic) (‘the Act’).

3.The defendant to pay reasonable medical and like expenses in accordance with the Act relating to the following injuries:

(A)left knee dysfunction following patellofemoral injury, surgically treated by a left total knee replacement relevant to the alleged injuries;

(B)anorectal dysfunction in the context of medication induced constipation with persistent perianal and rectal bleeding, following an anal tear, surgically treated, including, but not limited to the following (not including physiotherapy or a pain management program;

(I)treatment for rectal tear including surgery performed by Mr Lowe;

(II)      monthly general practitioner attendances;

(III)medication, including simple non-narcotic analgesia, coloxyl and loxalate, but not including narcotic analgesia or lyrica;

(IV)attendances on a pain specialist, for rationalisation of medication and institution of other pain management strategies.

4.        Liberty to apply in respect of interest.

5.The defendant to pay the plaintiff’s costs, including reserved costs, on scale ‘G’ to be assessed by the costs court in default of agreement.[7]

[7]CB123-124.

1. The significance of the date of 17 April 2012 in paragraph 2 of the consent order is that this was the day after weekly payments ceased following the compromise of the first proceeding.  This reflects the Panel’s finding to the effect that, by reason of his left knee injury, Mr McPhee was incapacitated for work since at least that date, and that incapacity had been caused by Mr McPhee’s employment with Steelsmith from November 2004, and in particular by the accepted left knee injury.  It is not clear from the Panel opinion and reasons whether the Panel considered that the falls in the summer of 2007 and 2008 exacerbated Mr McPhee’s left knee injury, and/or substantially contributed to his incapacity for employment.

The decision under review

1. Following the making of the consent order, the parties were unable to agree upon the issue of interest.  On 10 January 2022, Mr McPhee filed a further amended statement of claim, which, after setting out the matters summarised earlier in these reasons, made the following claims:[8]

ON or about 12 October 2020 (following the Defendant’s unsuccessful appeal of the Medical Panel opinion) this Honourable Court made orders inter alia that the Defendant to pay to the Plaintiff weekly payments from 12 April 2012 to date and to continue in accordance with the Act, and interest on the outstanding weekly payments.

ON or about 1 December 2020 the Defendant paid to the Plaintiff $308,528 (net) which was to represent the outstanding weekly payments from 12 April 2012 to date.

ON or about 11 February 2021 the Defendant paid to the Plaintiff  $4011 which was said to be interest on the weekly payments.

IN accordance with section 114E(1)(b) of the Act the Plaintiff is entitled to interest at the prescribed rate from the day on which his incapacity commenced until the day the rejection of the Plaintiff’s claim is set aside by the Court.

THE interest due to the Plaintiff pursuant to section 114E(1)(b) amounts to $148,350.81.

FURTHER, in accordance with section 114E(1)(e) of the Act the Plaintiff is entitled to further interest in the sum of $4,169 as the outstanding weekly payments were not received within 7 days of a decision resulting in weekly payments being payable.[9]

[8]Omitting particulars.

[9]CB129.

1. Mr McPhee’s claim for interest was heard by Magistrate Hoare on 16 March 2022.  At her Honour’s request, the parties filed further written submissions following the publication of the reasons of the Court of Appeal in O’Brien Transport Services Pty Ltd v Williams (‘Williams’),[10] which was delivered on 12 April 2022.

   [10][2022] VSCA 62 (‘Williams’).

1. Before the learned magistrate, Mr McPhee submitted that his entitlement to interest on the outstanding weekly payments arose pursuant to s 114E(1)(b) of the Act, as the February notice constituted a rejection of his claim for weekly payments with respect to, among other things, his left knee injury. Further, the effect of the consent order was to set aside the decision in the February notice to reject Mr McPhee’s claim for weekly payments (‘February decision’) by virtue of the consent order’s adoption of the Panel opinion and the requirement for outstanding weekly payments to be made with effect from 17 April 2012. Section 114E(1)(b) of the Act provides that if a decision to reject a claim for weekly payments is set aside by the Magistrates’ Court or the County Court, the outstanding weekly payments and any interest on the outstanding weekly payments are payable from the day on which the incapacity commenced until the day the decision is set aside, in the current case, from 17 April 2012.[11]

   [11]See Victorian Workcover Authority v Vitoratos (2005) 12 VR 437, where the Court of Appeal considered how the total amount of interest on outstanding weekly payments is to be calculated.

1. Mr McPhee submitted that the present case was distinguishable from the decision of Magistrate Wright in Hall v Hallam Manufacturing Pty Ltd (‘Hall’).[12]

   [12][2014] VMC 29 (‘Hall’).

1. In Hall,[13] Magistrate Wright heard an application for the payment of interest on outstanding weekly payments pursuant to s 114E(1)(b) of the Act. There are a number of parallels between Hall[14] and the current proceeding.  In Hall,[15] the application for the payment of interest was made after his Honour made orders (by consent) which adopted and applied a medical panel opinion.  The worker, after receiving weekly payments for a few months in respect of an injury for which liability was accepted, had failed to submit any medical certificates for over 10 years, such that his weekly payments ceased.  In 2011, the worker’s solicitor wrote to Mr Hall’s employer’s claims agent enclosing a medical certificate and seeking ‘a resumption of his weekly payments in respect of the claim dated 1 September 1999 which was accepted’.  No fresh claim form was submitted by the worker, but following an unsuccessful conciliation, a proceeding was issued seeking what his Honour described as the ‘reinstatement of weekly payments’.

   [13]Ibid.

   [14]Ibid.

   [15]Ibid.

1. His Honour held that a refusal, or deemed refusal, of an application to reinstate weekly payments was not a rejection of a claim for weekly payments within the meaning of s 114E(1)(b) of the Act, and therefore the worker could not rely upon s 114E(1)(b) of the Act to support a claim for interest on outstanding weekly payments. His Honour stated as follows:

Nowhere in the Act is there a specific provision for an application for “reinstatement” of weekly payments whereby, as in this case, weekly payments had been initially made after a consideration of a claim for compensation with an appropriate medical certificate.

Some time later, after weekly payments had ceased to be made, a further medical certificate may be lodged, but without any further claim form. In such cases, the worker, and Mr Hall in this case, seeks to rely on the original claim form and the acceptance of liability therefrom.

Certainly, it is not unusual for such reinstatement applications to come before this court. The court has jurisdiction to consider such applications. Such a decision not to reinstate, or fail to reinstate, weekly payments in such circumstances comes within the general jurisdiction of the Act pursuant to s 5(3) and s 39. However, the provisions of the Act do not formally, or specifically, address such an application. Thus, it is difficult to see how s 114E does so either...[16]

[16]Ibid [23]-[25].

1. Mr McPhee sought to distinguish the decision in Hall[17] from the claim in the current proceeding on the basis that the February decision rejected a claim for weekly payments, and was not a decision to reject an application for the reinstatement of weekly payments.  The 2018 claim was significantly broader in scope than the 2008 claim for which liability was accepted, such that the 2018 claim was not an application for the reinstatement of weekly payments with respect to the 2008 claim.

   [17]Ibid.

1. Mr McPhee also sought to distinguish the current proceeding from another decision of Magistrate Wright in Tucker v Patrick Stevedores No 2 Pty Ltd (‘Tucker’).[18]  In Tucker,[19] the worker had been in receipt of weekly payments for many years. The claims agent issued a notice of termination, following which the worker issued an application for conciliation. Following the provision of further medical material prior to the scheduled conciliation conference, the notice of termination was withdrawn, and weekly payments recommenced, with full arrears paid. The worker then claimed interest on the weekly payments not made in the intervening period. His Honour rejected the worker’s claim for interest under s 114E(1) of the Act, stating as follows:

Section 114E specifies interest is payable in circumstances where such a Notice is served, but only where the decision underpinning the Notice is set aside in certain specific circumstances or it is subject to a direction by a conciliation officer. None of those circumstances have occurred in the present case.

Certainly, the scheme of the Act is such that injured workers should receive timely compensation. I agree that a court should be careful not to stretch the existing provisions too far to cover what might be regarded as an anomaly.

On one view of the plaintiff’s argument on the effect of s.114E(1)(e), it would not be necessary to have the specific provisions in s.114E(1)(a) to (d), as such instances would necessarily involve the liability to make weekly payments at the relevant time anyway.

It may be that parliament in enacting (and later amending) s.114E did not conceive a situation where the Authority or self insurer may make a decision and then reverse it without the need for intervention by the Accident Compensation Conciliation Service or a court. Such instances obviously involve a worker being out of pocket for a period at least.[20]

[18][2010] VMC 47 (‘Tucker’).

[19]Ibid.

[20]Ibid [27]-[30].

1. Mr McPhee sought to distinguish the decision in Tucker[21] on the basis that, in that case, the matter was resolved prior to conciliation, and therefore not in accordance with one of the scenarios contemplated by s 114E(1) of the Act. Mr McPhee submitted that, in contrast, his claim fell within the scope of s 114E(1)(b) of the Act.

   [21]Ibid.

1. As for the question of whether the consent order ‘set aside’ the February decision, Mr McPhee submitted that he should not be shut out from interest on a technicality in the wording of the consent order, as such a finding would be inconsistent with the decision of the Court of Appeal in Williams,[22] where the Court stated as follows:

[N]either the statutory history nor the non-technical use of the terms to which we have referred is suggestive of any intention of the Parliament to exclude from the ambit of s 114E(1) workers who have been put out of interest in respect of weekly payments to which they are subsequently determined to have been entitled. That is, in our view, certainly not so by reason of any technical characterisation of the determination concerned as being one ‘not to pay’ weekly payments as opposed to being, in some formal sense, a ‘termination’ of the entitlement to weekly payments.[23]

[22][2022] VSCA 62.

[23]Ibid [60].

1. In response, Steelsmith relied on the decision of Magistrate Wright in Hall.[24] Steelsmith submitted that Mr McPhee’s claim for interest should fail on the basis that the 2018 claim should properly be characterised as an application for reinstatement of weekly payments, not a fresh application for weekly payments with respect to Mr McPhee’s left knee injury. Steelsmith submitted that Mr McPhee’s claim for interest would stretch the existing provisions of s 114E(1) too far, consistent with Magistrate Wright’s observations in Hall[25] and Tucker.[26]

   [24][2014] VMC 29.

   [25]Ibid.

   [26][2010] VMC 47.

1. Steelsmith submitted further that in enacting s 114E(1)(b) of the Act, Parliament intended to address scenarios where a court had expressly set aside a decision to reject a claim for weekly payments, and that this had not occurred in the current proceeding. Steelsmith submitted that Mr McPhee’s claim in the current proceeding was distinguishable from Williams[27] on the basis that in Williams,[28] an order expressly setting aside the relevant decision had been made.

   [27][2022] VSCA 62.

   [28]Ibid.

1. On 5 August 2022, the learned magistrate dismissed Mr McPhee’s claim for interest, delivering written reasons.[29]

   [29]McPhee v Steelsmith Engineering Pty Ltd [2022] VMC 22 (‘reasons’).

1. The learned magistrate referred to the approach adopted by the Court of Appeal in Williams[30] by first considering how the February decision was to be properly characterised, and secondly, by considering whether those circumstances enlivened one or more of the sub-paragraphs in s 114E(1) of the Act.

   [30]Ibid.

1. Her Honour acknowledged that the characterisation of the February decision was not a straight-forward matter, but concluded that the February decision was not a rejection of a claim for weekly compensation payments within the meaning of s 114E(1)(b) of the Act. She said that the February decision was a decision to reject a claim for reinstatement of weekly payments on the accepted left knee claim.

1. In the reasons, her Honour stated as follows:

I conclude on an objective reading of the whole of the notice that the decision is not properly characterised as a rejection of a claim for weekly payments of the left knee. To my mind, that conclusion is supported by the later paragraph stating that Mr McPhee has been “previously compensated” for his injuries including for the left knee.

My further conclusions are as follows:

a.I find that on the evidence that Mr McPhee had received weekly payments for 130 weeks under his accepted 2004 left knee injury claim before payments were terminated in May 2011.

b.I also find that the May 2011 termination was the subject of litigation and the prior settlement which resulted in a further payment of period of weekly payments ending 16 April 2012.

c.I find that six years elapsed before Mr McPhee lodged the January 2018 claim for weekly payments and, so, post-dated the date on which weekly payments ultimately re-commenced by several years (being 17 April 2012 following this Court’s orders of 12 October 2020).

d.There was no evidence of Mr McPhee making any application for reinstatement of weekly payments before that time.

e.The Panel opinion of 9 September 2019 was that Mr McPhee had no current work capacity from 17 April 2012 and that such incapacity was materially contributed to by left knee dysfunction and not by any of the additional injuries.

f.The Panel had also opined that Mr McPhee’s employment with the Defendant from November 2004 to the date of the Medical Panel’s examination was in fact a significant contributing factor to left knee dysfunction following a patellofemoral injury.

On my findings of fact of this case, it seems to me that the delay in relation to Mr McPhee receiving “outstanding weekly payments” on the accepted left knee injury has flowed from: there having been no claim (or application) for weekly payments before 2018 and also, at least in part, upon the worker’s ultimately unsuccessful reliance upon the additional claimed injuries.

...

At the same time, taking into account both the content and characterisation of the notice together with the effect of the Panel opinion, I reject the submission for Mr McPhee that s 114E(1)(b) is engaged by reason of the 26 February 2018 “rejecting the plaintiff’s left knee”.

It seems to me, on a consideration of the entirety of my conclusions set out in paragraph 81 of these reasons, that is not what has occurred.

Again, taking into account both the content and characterisation of the notice together with the effect of the Panel opinion, what has occurred is a reinstatement of weekly payments on the accepted left knee claim.

For those reasons, I must conclude that s 114E(1)(b) is not engaged. In drawing that conclusion, I have considered the entirety of the circumstances relating to the “outstanding weekly payments”.

As Magistrate Wright observed in Hall, the scheme of the Act is for injured workers to receive timely compensation.

I take into account the objectives of the Act in s 3 and the need to strike a balance between those objectives, in particular to:

(d)to ensure appropriate compensation and provisional payments under this Act is paid to injured workers in the most socially and economically appropriate manner, as expeditiously as possible; and

(e)to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses.

On the facts of Mr McPhee’s situation, whilst, as I have found, there was a decision to reject a claim for weekly payments of a previously accepted injury, I am unable to conclude that he had been “kept out of his money, as the primary judge put it in Williams, nor “put out of interest” on “outstanding weekly payments” as the Court of Appeal found.

In the present circumstances, I conclude it would be to stretch existing provisions too far to cover Mr McPhee’s claim for interest on two bases: (1) the successful reinstatement on weekly payments was in respect of a previously accepted claimed injury; (2) some six years elapsed before weekly payments on the accepted left knee was sought or claimed by way of the January 2018 claim.[31]

[31]Ibid [80]-[92].

1. The learned magistrate also concluded that, irrespective of the proper characterisation of the February decision, in the absence of an express order to set aside the February decision, ss 114E(1)(b)-(d) of the Act were not enlivened. The learned magistrate noted the Court of Appeal’s observations in Williams[32] regarding the non-technical meaning of the words in s 114E(1) of the Act,[33] but observed that the ‘usual principles of statutory construction’ governed Mr McPhee’s claim for interest.[34] The learned magistrate found that s 114E(1)(b)-(d) plainly require that a decision be set aside by a court, and that had not occurred. Accordingly, Mr McPhee’s claim for interest failed.

   [32][2022] VSCA 62.

   [33]Ibid [55], [60].

   [34]Reasons [46].

The appeal

1. Mr McPhee appeals to this Court on a question of law pursuant to s 109 of the Magistrates’ Court Act.  In his notice of appeal dated 2 September 2022, as amended on 12 September 2023 (‘amended notice of appeal’), Mr McPhee seeks the following relief:

(a)   the order and decision of the learned magistrate made on 5 August 2022 be quashed;

(b)  the Court determine the question of interest; and

(c)   in the alternative, the Court remit the proceeding to the learned magistrate to determine the question of interest.

1. The amended notice of appeal advanced the following grounds of appeal:

(a)The learned Magistrate erred in law in determining at [87] that the effect of the medical panel opinion dated 9 September 2019 was to reinstate weekly payments of compensation with respect to a claim submitted 8 May 2008 liability for which had previously accepted left knee injuries until liability was terminated 5 May 2011 rather than to determine liability for the claim dated 11 January 2018 which had been referred to the medical panel for consideration and determination;

(b)The learned Magistrate erred in law in determining at [87] that there had been, by virtue of the determination of the medical panel opinion dated 9 September 2019, a reinstatement of a claim with respect to the appellant’s left knee injury on 11 November 2004 which pre-dated the injuries claimed in the claim submitted 11 January 2018;

(c)The learned Magistrate erred in law in determining at [88] that by reason of the errors in law contained within [87] as aforesaid, section 114E(1)(b) of the Accident Compensation Act 1985 was not thereby engaged or enlivened;

(d)The learned Magistrate erred in law in the interpretation and application of s.114E(1)(b) of the Accident Compensation Act 1985 to the case which was before her for determination;

(e)The learned Magistrate erred at [98] in concluding that the application of s.114E(1) of the Accident Compensation Act 1985 was excluded and/or adversely impacted by the verbiage of the proposed minutes of consent which did not set aside the notice of the respondent’s insurer dated 26 February 2018 in circumstances where the application of the opinion of the medical panel dated 9 September 2019 in and of itself set aside the notice of the respondent’s insurer dated 26 February 2018 or alternatively deprived that notice of any meaningful operation.[35]

[35]The amended notice of appeal substantially amended the questions of law identified in the original notice of appeal, but left in place the ‘grounds of appeal’ set out in the original notice of appeal.  However, as these grounds of appeal mirrored the original questions of law, and were not the subject of submissions at the hearing of the appeal, I have proceeded on the assumption that these grounds of appeal are not being pressed by Mr McPhee.

1. Grounds (a) to (c) concern, in essence, what was said to be a failure by the learned magistrate to properly characterise the February decision.  As for grounds (d) and (e), Mr McPhee contends that the learned Magistrate erred by failing to correctly consider whether the consent order, by ‘adopting and applying’ the Panel opinion, in effect set aside the February decision, thus entitling Mr McPhee to the payment of interest.

1. Steelsmith submitted that, in relation to grounds (a) to (c), the February decision did not constitute a rejection of a claim for weekly payments in respect of Mr McPhee’s left knee injury, but that it was open to the learned magistrate to characterise the February decision as a rejection of a claim for the reinstatement of weekly payments previously paid with respect to the injury claimed in the 2008 claim.  In relation to grounds (d) and (e), Steelsmith submitted that the February decision was not set aside by the consent order, and the learned magistrate was not jurisdictionally obliged to make an order setting aside the February decision.

1. The hearing of the appeal was originally scheduled for 8 September 2023, but was adjourned following the late filing of an amended notice of appeal. The hearing resumed on 30 November 2023, following which judgment was reserved. During the course of considering the materials and the authorities, I formed the preliminary view that the learned magistrate may have proceeded on an erroneous assumption, being that s 114E(1)(b) did not apply to the applications for the reinstatement of weekly payments, and that error was relevant and material to one limb of the appeal, being the issue raised by grounds (a) to (c) of the amended notice of the appeal. Accordingly, I invited the parties to make further submissions on the issue, which they did on 7 February 2024.

Submissions on grounds (a)-(c)

1. Mr McPhee referred to the decision in Williams,[36] where the Court of Appeal stated that ‘[o]nce the character of the agent’s decision is properly understood, the question then becomes whether one or more of the sub-paragraphs of s 114E(1) is engaged’. As such, the learned magistrate was tasked with, first, analysing the nature of the February decision, along with the manner in which compensation was payable as a consequence of the Panel opinion, and secondly, assessing whether those circumstances enlivened one or more of the sub-paragraphs of s 114E(1)(b)-(e) of the Act.

   [36][2022] VSCA 62, [64].

1. Mr McPhee submitted that her Honour’s characterisation of the February decision was erroneous.  In particular, ‘the Magistrate failed to observe that the 2018 claim was of significantly wider scope than the 2008 claim’, as evidenced by the statement annexed to the 2018 claim.  The 2008 claim related to the discrete incident which occurred in November 2004, and did not refer to the falls suffered by Mr McPhee in the summer of 2007 and 2008.  The questions of compensable injury and incapacity referred to the Panel in questions 2 and 5 respectively (see paragraph 11 of these reasons) could only be responsive to the 2018 claim.  As such, the learned magistrate failed to properly analyse the nature of the 2018 claim to which the February notice was responsive, and it was not open to her Honour to find that Mr McPhee had only made a claim with respect to an injury of the kind referred to in the 2008 claim.

1. Mr McPhee referred to the decision of Magistrate Garnett in Robinson v SPI Electricity,[37] where his Honour held that a court does not have jurisdiction to determine a claim for compensation in the absence of any claim within the meaning of s 103 of the Act, such that the learned magistrate was required to determine whether the claim rejected by the February decision was the 2008 claim or the 2018 claim.

   [37][2012] VMC 30.

1. Mr McPhee referred to the Panel’s reasons, where the Panel discussed the cause of Mr McPhee’s left knee injury, as follows:

Mr McPhee told the Panel that:-

·On 11 November 2004, he had developed pain over the outer aspect of his left knee related to kneeling on unwashed (rough) concrete whilst installing steel bollards.

·On the following day he attended an accident and emergency department of a hospital where he was told he had a strain of his left knee.

·His left knee symptoms settled over the next few months.

·Whilst refurbishing a large dryer in late 2007/early 2008 he had had a series of falls in which he had reinjured his left knee...

…

The Panel took into account the nature of Mr McPhee's general duties, the fact that he had performed alternative duties from May 2008 and had not worked since June 2010. The Panel also considered the likelihood of such problems developing due to age related degeneration and whether any alleged injury was a sequelae or consequence of an accepted injury. In particular the Panel noted that Mr McPhee has accepted injuries of his left knee and right shoulder and had suffered a soft tissue injury of his lumbar spine and labral tear of the left hip...[38]

[38]CB111.

1. Mr McPhee submitted that the Panel’s discussion of the cause of his left knee injury could not support the inference drawn by the learned magistrate to the effect that his compensable left knee injury arose from the November 2004 incident alone.  Mr McPhee submitted that it was not open to the learned magistrate to characterise the consent order and its adoption of the Panel opinion as effecting a reinstatement of weekly payments with respect to the 2008 claim or any ‘accepted’ left knee injury claim.

1. Alternatively, if the learned magistrate correctly characterised the effect of the consent order as a reinstatement of the prior weekly payments, then her Honour erred by not considering or applying s 114E(1)(d) or (e) of the Act. In Williams,[39] the Court of Appeal held that ‘no technical meaning is intended to be given to terms such as ‘claim’, ‘terminate’ and ‘reduce’ where used in s 114E(1)’.[40] As such, Mr McPhee submitted that s 114E(1)(d), which refers to ‘an application by a worker to increase the amount of weekly payments’, was enlivened by his application for an ‘increase’ to the amount of payments he was receiving in respect of his left knee injury (that is, an increase from nil). Further, s 114E(1)(e), which relates to a failure to make any weekly payment ‘as and when required by the Act’, was enlivened by the 2018 claim.

   [39][2022] VSCA 62.

   [40]Ibid [55].

1. At the resumed hearing, Mr McPhee submitted, in summary, as follows:

(a)   his primary submission is that the decision in Hall[41] does not apply to the current case, because the 2018 claim was a new claim, not an application for the reinstatement of weekly payments.  Mr McPhee was being paid under a new claim, with a different claim number;

(b)  in any event, there is no material difference between a claim for weekly payments and an application for the reinstatement of weekly payments; and

(c)   the decision of the Court of Appeal in Williams[42] supports taking a generous and non-technical approach to the question of what amounts to a ‘claim’ for the purpose of s 114E(1)(b) of the Act.

[41][2014] VMC 29.

[42][2022] VSCA 62.

1. In response, Steelsmith submitted that the learned magistrate’s finding that the February decision was not a rejection of a claim for weekly payments was a finding that was open on the material before her. In any event, her Honour’s finding that there had been a reinstatement of weekly payments was not critical to her finding that the February decision did not reject a claim within the meaning of s 114E(1)(b) of the Act. It was sufficient that the learned magistrate was not satisfied that the February decision was a rejection of a claim for weekly payments.

1. Steelsmith observed that the reasons provided by CGU in the February notice dealt with the additional injuries claimed by Mr McPhee and the injury to the left knee separately.  While the claim for the additional injuries was rejected, the claim regarding the left knee was not rejected, but CGU instead said that the left knee injury had been previously accepted, and that Mr McPhee had already been compensated pursuant to the 2008 claim.  The 2008 claim was lodged by Mr McPhee on or about 5 May 2008, after he had suffered the falls in the summer of 2007 and 2008, and the statement of claim in the first proceeding referred to an injury to the left knee as a consequence of his employment between May 2003 and 2008, not just the November 2004 incident.  Accordingly, the allegations regarding the falls in the summer of 2007 and 2008 in the 2018 claim were not ‘new’, as the 2008  claim was not confined to the November 2004 incident.  As such, it was open to the learned magistrate to find that the February decision was not a rejection of a new claim with respect to the left knee injury, but rather a decision to reject an application for the reinstatement of weekly payments with respect to the accepted left knee injury.

1. In response to Mr McPhee’s submissions regarding the questions referred to the Panel and the effect of the Panel’s opinion and reasons, Steelsmith submitted that the Panel’s opinion post-dated the February notice, and as such, should carry little weight in determining whether the February decision was a rejection of a claim for weekly payments.

1. At the resumed hearing, Steelsmith acknowledged that there was a factual difference between the circumstances in Hall[43] and the current case, as in the current case, unlike in Hall,[44] Mr McPhee had submitted a new claim form. However, Steelsmith submitted that Magistrate Wright’s observation to the effect that s 114E(1) of the Act is prescriptive of the limited circumstances in which interest upon arrears of weekly payments payable is correct. Steelsmith submitted that any apparent harshness of the operation of s 114E of the Act is merely a product of the clear language of the Act.

   [43][2014] VMC 29.

   [44]Ibid.

1. Steelsmith submitted that in Hall,[45] Magistrate Wright reached a conclusion that s 114E(1)(b) did not apply to applications for the reinstatement of weekly payments after locating the counterparts of each of the sub-paragraphs in s 114E(1) of the Act elsewhere in the Act, and observing that the Act does not expressly provide for applications for the reinstatement of weekly payments, while claims for compensation are expressly provided for and governed by s 103 of the Act.

   [45]Ibid.

1. Steelsmith referred to the statement by Magistrate Wright to the effect that it is not possible to form the view that s 114E(1) applies to applications not expressly contemplated by the Act, submitting that:

…there are a multitude of ways that the Act acknowledges that there can be a cessation or reduction of payments, whereas there’s only one way in which you can make a claim for compensation and the Act is very clear about that.

1. Steelsmith acknowledged that in Williams,[46] the Court of Appeal treated the language of ‘reduction’ and ‘termination’ of weekly payments in a less technical way, but observed that when one reads s 114E together with s 114C of the Act, it is clear that the scenarios in s 114E(1) of the Act are a sub-set of the range of scenarios contemplated by s 114C of the Act, with s 114E(1) encompassing scenarios where the inability of a worker to receive weekly payments is outside the control of the worker. Section 114E(1) did not contemplate a scenario such as the current case, whereby weekly payments ceased following a compromise, and then the worker sought the resumption of weekly payments plus arrears many years later. Steelsmith submitted that there are sound policy reasons for s 114E(1) to exclude an entitlement to interest in cases of the current kind, as adverted to by the learned magistrate in the reasons.

   [46][2022] VSCA 62.

1. In response to Mr McPhee’s submissions regarding s 114E(1)(d) and (e) of the Act, Steelsmith submitted that Mr McPhee had never pleaded a case or advanced an argument before the learned magistrate that s 114E(1)(d) or (e) applied in the event that s 114E(1)(b) did not, and cannot do so now. In any event, none of those provisions apply, for the following reasons:

(a) as for s 114E(1)(d), no application was made by Mr McPhee to increase the amount of his weekly payments. Pursuant to s 110(1) of the Act, a worker ‘who is receiving weekly payments’ may apply in writing for an increase in the amount of the payments. At the time the 2018 claim was lodged, Mr McPhee was not receiving weekly payments, and as such, the February decision was not a rejection of any application by Mr McPhee to increase his weekly payments; and

(b) as for s 114E(1)(e), the obligation for payments to be made to Mr McPhee only arose from the date on which the consent order was made. Prior to that date, there was no failure by Steelsmith to make weekly payments. The consent order required payment to be made in respect of a period dating back to 17 April 2012, in circumstances where no claim form had been submitted by Mr McPhee until January 2018. The Act could not be said to have required weekly payments to have been made during a period for which no claim had been made.

Submissions on grounds (d) and (e)

1. Mr McPhee submitted that s 114E(1) of the Act was engaged by the consent order by reason of the consent order adopting and applying the Panel’s opinion, directing the making of weekly payments from April 2012, and granting liberty to apply with respect to interest, given that the making of such orders is inconsistent with the February decision. Mr McPhee referred to the decision of the New South Wales Court of Appeal in Katter v Melhem[47] where JC Campbell AJA, when construing a reference in a rule of the Court to the phrase ‘in which the setting aside of a decision is not required’, said that the rule ‘…should be interpreted purposively, by reference to the substantial nature of the bases upon which the orders are sought’.[48]

   [47](2015) 90 NSWLR 164.

   [48]Ibid [50].

1. Mr McPhee submitted that there are two possible eventualities, being:

(a)If this Court is satisfied that the 2018 decision notice constituted a decision to reject (as opposed to a reinstatement), then it is submitted that the provisions which become enlivened or engaged in respect of the payment of interest are ss.114E(1)(b) and ss.114E(1)(e).

(b)Should this Court consider that Magistrate below correctly characterised [the February decision] (adopting the terms used in Williams) as a reinstatement, then it is submitted that the provisions enlivened or engaged in respect of the payment of interest are ss. 114E(1)(d) and (e).

1. Mr McPhee submitted further that the learned magistrate was required to consider whether or not Mr McPhee was entitled to an order setting aside the February decision, and to consider whether she was empowered to do so by the terms of paragraph 4 of the consent order, which provided there be liberty to apply with respect to interest. The learned magistrate was jurisdictionally obliged to make an order to set aside the February decision so as to enliven s 114E(1)(b) of the Act if the consent order was found not to have such an effect.

1. In response, Steelsmith observed that it is clear that the consent order did not contain any order setting aside the February decision.  Steelsmith submitted that the February decision could only be set aside by some act of the Magistrates’ Court ordering or declaring that the decision be cancelled, was invalid or ceased to have effect.  Steelsmith relied on the decision of the High Court in Disorganized Developments Pty Ltd v South Australia[49] (‘Disorganized Developments’) in support of the proposition that the setting aside of a decision requires a positive act by a court. Referring to other decisions where an order had been sought or made to set aside a decision made under the Act,[50] Steelsmith submitted that it had been open to Mr McPhee to seek a similar order following the delivery of the Panel opinion.  However, Steelsmith submitted that there was no evidence that the setting aside of the February decision was the subjective or objective intention of either party when drafting and settling the consent order.

   [49](2023) 410 ALR 508 [23]-[24] (‘Disorganized Developments’).

   [50]Williams [2022] VSCA 62; McKenzie v Healthscope Operations Pty Ltd [2020] VSCA 309 [13]; Jarvis v The Salvation Army Southern Territory [2016] VSCA 175 [17]; Victorian WorkCover Authority v Balogh [2004] VSCA 200 [3]-[4]; Francis v Farrell [2016] VSC 251 [1]-[2]; Armstrong v Mulcahy Pastoral Holdings Pty Ltd [2011] VCC 350 [12]; Tran v Visy Recycling Operation Pty Ltd [2005] VCC 1636 [28]; Levey v Apex Printing Pty Ltd [2005] VCC 1545 [33].

1. Steelsmith also referred to the following definition of the term ‘set aside’ in the Encyclopaedic Australian Legal Dictionary:

To cancel, to declare invalid.  If an order or decision is set aside, it ceases to have any effect.  For example, if a conviction is set aside on appeal the appellant’s position at law is determined as if the conviction never occurred: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; 35 SR (NSW) 340. Setting aside is a type of variation of an order or decision: Cohen v Associated Dominions Assurance Society Pty Ltd (1946) 73 CLR 435; 20 ALJR 282. The court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment: for example (NSW) Supreme Court Rules Pt 40 r 9(1); (VIC) Supreme Court (General Civil Procedure) Rules 1996 r 46.08; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; 111 ALR 385. The court ordinarily has no power to set aside a final judgment once it has been passed and entered: for example Bailey v Marinoff (1971) 125 CLR 529; [1972] ALR 259. A decision of a superior court is valid and enforceable until it is set aside. The circumstances in which a court may set aside an order include where an order has been made in the absence of a party, and where notice of motion for the setting aside is filed before entry of the order: (NSW) Supreme Court Rules Pt 40 r 9(3).[51]

[51]Lexis Nexis Butterworths ‘Encyclopaedic Australian Legal Dictionary’.

1. Steelsmith submitted that it could not be implied that the February decision was set aside for three additional reasons. First, any order setting aside the February decision would have needed to distinguish between the injuries which were accepted by the Panel and the injuries which were rejected by the Panel, as the February decision, insofar as it rejected the additional injuries referred to in the 2018 claim, was not disturbed by the Panel’s opinion. Secondly, the consent order clearly specified the date from which weekly payments were payable, thus removing any dispute as to whether s 114E(1) applied to determine that date. Thirdly, the amended statement of claim did not seek an order setting aside the February decision or any part of it.

1. Steelsmith made the following submission in response to Mr McPhee’s submission that the magistrate was ‘jurisdictionally obliged’ to make a decision setting aside the February decision:

(a)   that application or submission was not made before the learned magistrate, and should not be entertained by this Court.  Even if the submission was made to the learned magistrate, her Honour would not have had the power to make the order, as the consent order precluded Mr McPhee from seeking such an order;

(b)  paragraph 4 of the consent order providing liberty to apply in respect of interest did not extend to permitting an application to be made for an order that the February decision be set aside; and

(c)   in any event, the learned magistrate was not bound to make an order setting aside the February decision.

Discussion

1. The issues for determination in this appeal are:

(a)   whether the learned magistrate erred in law in characterising what had occurred pursuant to the consent order as a reinstatement of weekly payments in respect of the 2008 claim;

(b)  whether the consent order impliedly (but effectively) set aside the February decision by reason of the practical effect of the adoption and application of the Panel’s opinion in the consent order; and

(c) in finding that there had been a reinstatement of weekly payments, whether the learned magistrate erred in failing to consider whether interest should have been awarded to Mr McPhee pursuant to s 114E(1)(d) and/or (e).

Grounds (a) to (c)

1. Turning first to the question of whether the learned magistrate properly characterised the February decision, a threshold issue is whether grounds (a) to (c) of the amended notice of appeal raises a question of law within the meaning of s 109 of the Magistrates’ Court Act.  Steelsmith contended that the learned magistrate, in characterising the February decision as a rejection of an application for reinstatement of weekly payments, made a factual finding which was open to be made on the evidence before her.

1. In response, Mr McPhee submitted that this finding was not a finding that was open to her Honour to make, because it is clear from the 2008 claim, the questions and materials referred to the Panel, and the Panel’s opinion and reasons, that the 2018 claim was considerably wider in scope than the 2008 claim, which was limited to the injuries arising from the fall in November 2004.

1. The distinction between what is a question of law (appellable under s 109 of the Magistrates’ Court Act) and a question of fact, which is not appellable, can at times be somewhat vexed.  The position was summarised by Phillips JA in the oft-cited decision in S vCrimes Compensation Tribunal,[52] where his Honour referred to the following three propositions:

(a)what is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure is a question of law;

(b)once the task of construction is over, the question of whether the claimant’s particular circumstances fall within the relevant statutory description is essentially a question of fact; and

(c)nevertheless, if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question of whether it arrived at a conclusion which was not open to it is a question of law.[53]

[52][1998] 1 VR 83.

[53]Ibid 88-89.

1. Relevantly for the purpose of the current appeal, Phillips JA explained the distinction further as follows:

The first is the proper meaning, as a matter of statutory construction, of the statutory description (or descriptions) at base, so far as relevant to the claim which is being pursued. The second is whether, and if so to what extent, the particular circumstances of the claimant are such as to bring his or her case within the statutory description.  So much is trite because on one level it merely distinguishes between the construction of the statutory description and its application to the facts. Yet because the first is essentially a question of law while the second is essentially a question of fact, it serves to encapsulate in very broad outline the basic distinction which must be drawn between what may and what may not be canvassed on an appeal which lies only on a question of law.[54]

[54]Ibid 86.

1. In their submissions, both parties proceeded upon the assumption that the task before the learned magistrate was to determine whether Mr McPhee’s particular circumstances were such as to bring his claim for interest under s 114E(1)(b), that is, applying the second limb or proposition identified by Phillips JA. Where they parted company is whether the learned magistrate’s finding in that regard was one which was open for her to make.

1. The learned magistrate’s decision to reject Mr McPhee’s claim for interest was made on two bases:

(a)first, s 114E(1)(b) was not enlivened, because the February decision was not a decision to reject a claim for weekly payments, but rather was a decision not to reinstate weekly payments with respect to the left knee injury which was the subject of the 2008 claim; and

(b)secondly, the February decision had not been set aside by the consent orders.

1. I accept that, on the basis that the appeal was originally argued before me, in order to find that the learned Magistrate made an error of law, I would need to find that it was not reasonably open for her to find that the February decision was a decision to reject a claim for reinstatement of weekly payments.  I accept that Mr McPhee has a high bar to clear in order to make good that proposition.

1. However, as indicated to the parties prior to the resumption of the hearing of the appeal in February 2024, I considered that there may have been a more fundamental difficulty with the learned magistrate’s determination that s 114E(1)(b) of the Act was not engaged. In particular, her Honour’s determination proceeded on an assumption that the proper construction of s 114E(1)(b) necessarily excludes claims involving applications for the reinstatement of weekly payments with respect to an already accepted injury. That assumption (which, in my view, concerns the proper construction of s 114E(1)(b) of the Act, not its application) is arguably not supported by a plain reading of s 114E(1)(b), the objects and purposes of the Act, and the observations of the Court of Appeal in Williams.[55]

   [55][2022] VSCA 62.

1. In Williams,[56] the employer appealed a decision of a County Court judge to order that interest be paid upon outstanding weekly payments and outstanding superannuation contributions for a nine year period pursuant to s 114(1)(c) of the Act. Section 114(1)(c) provides that if a decision to terminate or reduce weekly payments is set aside by the County Court, the employer must pay any outstanding weekly payments and any interest on those outstanding weekly payments from the date the decision to terminate or reduce weekly payments took effect.

   [56]Ibid.

1. The worker in question had an accident while driving a truck during the course of his employment.  He was off work for about a fortnight, and later received weekly payments in respect of this period.  He returned to work on restricted duties for approximately two months.  The Court of Appeal noted that, but for the wages he received during this period, the worker would have been entitled to receive weekly payments for this period because he was not fit to carry out his pre-injury duties.

1. After the accident, the worker returned a positive drug test, although the test was taken on a day he was not working.  Shortly after that, he ceased working for the employer.

1. Around a year later, the worker submitted a claim form in respect of injuries said to have been suffered during the accident.  Soon after, the claims agent wrote to the worker accepting the claim for weekly payments and medical and like expenses, but, being illiterate, the worker did not understand the letter, and took no steps to pursue the matter.  He did however lodge a further claim with respect to additional injuries said to have been suffered by him as a consequence of the accident.  The claims agent did not respond to this claim.

1. After the worker appointed solicitors to act for him in about October 2015 (some 18 months after submitting the second claim form), there was correspondence between the worker’s solicitors and the claims agent, to no avail.  Finally, by a letter sent in March 2018 (‘notice’), the claims agent, by reference to the claim number for the first claim, said that it had determined not to pay the worker weekly payments at any time from the date the worker ceased work, because while the worker would have been entitled to receive weekly payments in the relevant period, the worker had resigned from his employment following the failed drug test.[57]

   [57]Relying upon s 114(2A)(e)(i) of the Act.

1. Following the issue of a proceeding and a referral to a medical panel, the medical panel found in the worker’s favour on the question of his (in)capacity for work.  A trial then proceeded on the question of whether the worker had effectively resigned from his employment, which again was resolved in favour of the worker.  Judge Wischusen made orders which adopted and applied the medical panel’s opinion, set aside the decision in the notice, directed the payment of weekly payments from September 2012 and interest upon outstanding weekly payments from November 2012, and granted liberty to apply with respect to the calculation of interest and other matters.

1. In his ruling on the question of interest, Judge Wischusen held that the effect of the determination not to pay compensation after the date specified in the notice, in circumstances where a claim had been accepted and payments had commenced, is a termination of weekly payments within the meaning of s 114E(1)(c) of the Act, stating that ‘there is nothing in the wording of s 114E, nor in the object or purposes of the Act or that provision which requires paragraph (c) to be read as requiring that weekly payments be actually being paid at the time the decision took effect.’[58]

   [58][2022] VSCA 62 [30].

1. His Honour held, in the alternative, that if he was wrong about the application of s 114E(1)(c) to the case before him, he would have held that the worker would have been entitled to interest under s 114E(1)(b) of the Act, as, in his view, ‘there was no requirement to read sub-section 1(b) as if it related to, and only to ‘claims for compensation in the form of weekly payments that are referred to in s 103 and s 105 [of the Act].’

1. The employer appealed to the Court of Appeal on the question of interest alone.

1. Turning now to the observations of the Court of Appeal in Williams[59] regarding the preferred approach to the proper construction of s 114E(1) of the Act, while the Court was concerned with somewhat different factual circumstances than those in the current proceeding (albeit there are also some similarities), the Court’s observations regarding the purpose and ambit of s 114E(1) have broader application.

   [59][2022] VSCA 62.

1. First, the Court stated, uncontroversially, as follows:

In the first instance, it will be necessary to apply the usual principles of statutory construction, which require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.[60]

[60]Ibid [46], referring to the decision of the High Court in R v A2 (2019) 269 CLR 507, [32]-[37], [124].

1. The following extract from the Court’s reasons suggest that an overly technical approach to the construction of s 114E(1) should be avoided, and implicitly rejected the submission of the employer that the purpose of s 114E(1) was to ‘very narrowly prescribe the circumstances’ in which interest is payable.[61]  The Court stated as follows (omitting footnotes):

Finally, s 114E(1) is not just directed to payment of interest;  it is also directed to the payment of amounts of outstanding weekly payments. In that connection, the circumstances identified in the sub-paragraphs of s 114(1) embrace a sequence of potential scenarios in which weekly payments might be found to be outstanding and therefore payable. Those scenarios include where ‘a decision to reject a claim for weekly payments’ or ‘a decision to terminate or reduce weekly payments’ is later set aside. In neither such instance, however, is any other provision of the Act relevantly incorporated; save for subsection (1A), which is presently irrelevant. That suggests that no technical meaning is intended to be given to terms such as ‘claim’, ‘terminate’ and ‘reduce’ where used in s 114E(1).

...

Further, the presently relevant words appearing in s 114(2A) – ‘not to pay’ – are not intended to be technical words of limitation. Contrary to the submission advanced on behalf of the applicants, both those words and the term ‘reduced’ appearing earlier in s 114(2A) are ambulatory in effect, because the section contemplates the making of a determination by the Authority or self-insurer not to pay weekly payments in scenarios ranging from a ‘reduction’ of ‘current weekly earnings’ in the nature of a mere alteration to a ‘reduction’ of ‘current weekly earnings’ in the nature of a diminution to zero. Consequently, a determination ‘not to pay’ may be made in respect of that differing range of circumstances – some of which stand to leave the underlying entitlement to weekly payments unaffected and others of which stand as, in effect, a cessation or termination of that entitlement.

Moreover, neither the statutory history nor the non-technical use of the terms to which we have referred is suggestive of any intention of the Parliament to exclude from the ambit of s 114E(1) workers who have been put out of interest in respect of weekly payments to which they are subsequently determined to have been entitled. That is, in our view, certainly not so by reason of any technical characterisation of the determination concerned as being one ‘not to pay’ weekly payments as opposed to being, in some formal sense, a ‘termination’ of the entitlement to weekly payments. As we have endeavoured to explain, in some circumstances the effect of a determination ‘not to pay’ will be to that very effect. In that instance, by operation of s 114(2B)(b), such a worker will thereafter have no entitlement to compensation in the form of weekly payments. In such a circumstance, there will be no difference between such a worker and another worker whose payments have been formally ‘terminated’ under a different provision of the Act.[62]

(emphasis added).

[61]Ibid [35].

[62]Ibid [55],[59]-[60].

1. Following consideration of the particular statutory provisions relevant to the case before them (being ss 114, 114(2A) and 114(2B) of the Act, which concern the termination of weekly payments), the Court considered the relevant chronology of events, and concluded as follows:

It follows that the Notice is properly characterised as, in effect, terminating any entitlement of the respondent to weekly payments from 21 November 2012.

Once the character of the agent’s decision is properly understood, the question then becomes whether one or more of the sub-paragraphs of s 114E(1) is engaged. In that connection, s 114E(1)(c) is directed to a decision ‘to terminate or reduce weekly payments’ that is later set aside.

There is no issue that the decision made by the Notice was later set aside by his Honour.

It follows, in our view, that, given the proper characterisation of the Notice and construction of the statutory provision to which we have referred, his Honour was correct to determine that the effect of the decision of the agent was to terminate or reduce weekly payments within the non-technical meaning of those words in s 114E(1)(c). Consequently, the respondent was and is entitled to interest ‘at the prescribed rate on each outstanding weekly payment’ from ‘the day on which the decision [of the agent] took effect until the day on which the decision is set aside [by the trial judge]’.

In the present context, the decision of the agent was also expressed as taking effect from 21 November 2012 which, within the language of s 114(2C) of the Act, is ‘the day on which the current weekly earnings were reduced’. It follows that there was no error in his Honour ordering that the interest be paid ‘from 21 November 2012 to this date’.[63]

[63]Ibid [63]-[67].

1. As observed by the Court of Appeal in Williams,[64] the normal principles of statutory construction apply to the task of considering whether there is any material distinction between decisions rejecting claims in respect of new injuries or decisions rejecting claims for the reinstatement of weekly payments in respect of a prior injury for which liability has been accepted. The legislative purpose and context are important. Accordingly, the relevant provisions of the Act follow.

   [64]Ibid.

1. Section 3 of the Act provides, among other things, as follows:

Objects of Act

The objects of this Act are—

…

(d)      to ensure appropriate compensation and provisional payments 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;

…

(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.

1. Section 82(1) of the Act provides as follows:

Entitlement to compensation

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.

1. Section 93 of the Act provides as follows:

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.

1. Section 103 of the Act provides as follows:

Claim for compensation

...

(1)A claim for compensation must be in a form approved by the Authority in respect of that type or class of claim.

(3)A claim for compensation (other than a claim arising from the death of a worker) must include an authority, signed by the worker, authorising a provider of a medical service or hospital service to the worker in connection with the injury to which the claim relates to give to the Authority, self-insurer or employer information regarding the service relevant to the claim.

(4A)     A claim for compensation—

(a)       must be given to or served on the employer or self-insurer; or

(b)if section 106 of this Act or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993 applies, must be lodged with the Authority.

…

1. Section 110(1) provides as follows:

A worker who is receiving weekly payments may apply in writing to the Authority or self-insurer for an increase or reduction in the amount of the payments and must specify in the application the reasons for so applying and provide with the application any supporting evidence.

1. Section 114C of the Act provides as follows:

Time for payment

(1)If a Conciliation Officer directs, or the Magistrates' Court or the County Court determines, that weekly payments are payable by the Authority or a self-insurer, the Authority or self-insurer must commence payment, including amounts payable under section 114E, no later than 7 days after the direction or determination.

(2)On the commencement of payment under subsection (1), the Authority or self-insurer must pay an amount equal to any outstanding weekly payments to the worker.

(3)If the Authority, a self-insurer or an employer accepts a claim for weekly payments, payments including amounts payable under section 114E must commence to be paid within 7 days after the claim is accepted.

(4)If a Conciliation Officer directs or the Magistrates' Court or the County Court determines, that weekly payments be made, section 114E applies and the entitlement of the worker to weekly payments commences on the date specified by the Conciliation Officer or by the Magistrates' Court or the County Court.

1. Section 114E of the Act provides as follows:

Outstanding weekly payments

(1)The amount of outstanding weekly payments and interest at the prescribed rate on each outstanding weekly payment are payable to the worker in the following circumstances and in respect of the periods specified in relation thereto—

(a)if a Conciliation Officer directs that weekly payments be commenced or continued to be paid at the current rate or increased, from the day—

(i)on which incapacity commenced; or

(ii)on which weekly payments were terminated or altered; or

(iii)on which the worker’s application to increase the amount of weekly payments was received by the Authority or self-insurer—

until the day on which the direction is revoked or payments are commenced, continued or increased, whichever is the earlier;

(b)subject to subsection (1A), if a decision to reject a claim for weekly payments is set aside by the Magistrates’ Court or the County Court, from the day on which the incapacity commenced until the day on which the decision is set aside;

(c)subject to subsection (1A), if a decision to terminate or reduce weekly payments is set aside by the Magistrates’ Court or the County Court, from the day on which the decision took effect until the day on which the decision is set aside;

(d)subject to subsection (1A), if a decision to reject an application by a worker to increase the amount of weekly payments is set aside by the Magistrates’ Court or the County Court, from a day determined by the Magistrates’ Court or the County Court until the day on which the decision is set aside;

(e)if an employer, the Authority or a self‑insurer fails to make any weekly payment as and when required by the Act to be made to a worker, from the day after the payment was required to be made until the day before the payment is made.

(1A)If a worker has not made an application to the Magistrates’ Court or the County Court within one year of being notified by a Conciliation Officer under section 59(4) that the Conciliation Officer is satisfied that there is a genuine dispute with respect to the liability to make or continue to make weekly payments and that an application may be made to the Magistrates’ Court or the County Court to determine the matter, interest is not payable under subsection (1) in respect of the period beginning after the expiry of one year after that date and ending on the day on which the application is made.

…

1. Accordingly, s 114C provides for the entitlement of a worker to prospective weekly payments and for the time from which prospective weekly payments must be paid to the worker. Section 114C(2) provides that the time for payment for any outstanding weekly payments is the same time that payments of prospective weekly payments commence. Section 114E is concerned with a worker’s entitlement to outstanding weekly payments and interest on those outstanding weekly payments, and the period for which the worker becomes entitled to outstanding weekly payments and interest. Significantly, s 114E of the Act does not appear to contemplate a scenario whereby a worker is entitled to arrears of weekly payments for a defined period of time, but not interest on those outstanding weekly payments, or for interest in respect of a different period of time. In other words, the entitlements to outstanding weekly payments and interest on those outstanding weekly payments ‘travel together’.

1. While there is no definition in the Act of the term ‘outstanding weekly payments’, it is apparent from the scheme of s 114E(1) that outstanding weekly payments are the cumulative amount of weekly payments not paid to a worker where it has been subsequently determined that the worker was in fact entitled to weekly payments for the relevant period. I respectfully agree with the following statement of the judge at first instance in Williams:[65]

The purpose of provisions such as s 114E is to compensate a worker for being kept out of his money for the periods of time to which the various provisions of sub-section (1), particularly (b) and (c) relate.[66]

[65]Ibid [30].

[66]Ibid.

1. Accordingly, s 114E(1) is a remedial provision, and should be construed beneficially.

1. Arguably, when read as a whole, s 114E(1) should not be viewed as providing for an entitlement to interest only in confined circumstances. Rather, the provision covers a range of scenarios where a worker may have been wrongfully denied weekly payments or had their entitlement to weekly payments wrongfully terminated or altered, with the only express limitation being the time stipulation in s 114E(1A), which is no doubt there to discourage claimants from sitting on their hands following an unsuccessful conciliation conference.

1. Further, given the scheme and purpose of s 114E(1), there seems to be no rational basis, as a matter of either logic or principle, for denying an entitlement to interest on outstanding weekly payments to a worker who has made an application for the reinstatement of weekly payments, that is, where weekly payments in respect of an injury have ceased for whatever reason, but there has been a subsequent request for payments to be made with respect to a previously accepted claim, which has been refused, and there has been a subsequent determination or agreement that the refusal was erroneous.

1. It is to be kept in mind that a worker is entitled to weekly payments in respect of their incapacity for work arising from a compensable injury.  If a worker’s claim for weekly payments is refused, but their claim is subsequently vindicated, there seems to be no reason to distinguish between claims with respect to new injuries, and claims for the reinstatement of payments with respect to prior injuries.  The critical issues when determining a worker’s entitlement to weekly payments are the existence of the relevant incapacity, and the period of incapacity, and of course, whether the worker’s employment was a significant contributing factor to the injury or condition causing that incapacity.  Both of those matters were found in Mr McPhee’s favour following the delivery of the Panel opinion.

1. In approaching the task before her in the way that she did, her Honour faithfully adhered to the statement of the Court of Appeal in Williams[92] to the effect that it was necessary to properly characterise the decision which deprived the worker of an entitlement to weekly payments.  However, that statement needs to be viewed in the context of the particular facts in that case.  In Williams[93] the key issue was the nature of the decision itself, being the question of whether the employer’s reference in the notice to having made a determination ‘not to pay’ weekly payments was, in effect, a decision to ‘terminate’ weekly payments. On the facts of that case, it was not necessary for the Court to conduct a close analysis of the worker’s claim.  In the current case, while of course the nature of the decision is not irrelevant, the primary issue is the characterisation of the ‘claim’ to which the February decision is referable.  By focussing on the February decision, the learned Magistrate appears to have given excessive weight to what I have found are the largely irrelevant opinions of the CGU regarding the character of the 2018 claim.

   [92][2022] VSCA 62.

   [93]Ibid.

1. Further, the learned Magistrate made a number of observations in the reasons which suggest that, when determining Mr McPhee’s entitlement to interest under s 114E(1)(b), her Honour took into account the delay by Mr McPhee in pursuing his entitlement to weekly payments, as shown by the observations that:

I find that six years elapsed before Mr McPhee lodged the January 2018 claim…and, so, post-dated the date on which weekly payments ultimately recommenced by several years (being 17 April 2012…);[94]

[94][2022] VMC 22 [81](c).

…

There was no evidence of Mr McPhee making any application for reinstatement of weekly payments before that time;[95]

[95]Ibid [81](d).

…

[I]t seems to me that the delay in relation to Mr McPhee receiving outstanding weekly payments on the accepted left knee injury has flowed from: there having been no claim (or application) for weekly payments before 2018 and also, at least in part, upon the worker’s ultimately unsuccessful reliance upon the additional claimed injuries;[96]

…

On the facts of Mr McPhee’s situation, whilst, as I have found, there was a decision to reject a claim for weekly payments o previously accepted injury, I am unable to conclude that he has been ‘kept out of his money’, as the primary judge put it in Williams,[97] nor ‘put out of interest’ on ‘outstanding weekly payments’ as the Court of Appeal found;[98]

In the present circumstances, I conclude that it would be to stretch existing provision too far to cover Mr McPhee’s claim on two bases: (1) the successful reinstatement on [sic] weekly payments was in respect of a previously accepted claimed injury; (2) some six years elapsed before weekly payments on the accepted left knee injury was sought or claimed by way of the January 2018 claim.[99]

[96]Ibid [83].

[97][2022] VSCA 62 [30].

[98][2022] VMC 22 [91].

[99]Ibid [92].

1. While it seems that Mr McPhee no longer presses a ground of appeal based upon an assertion that the learned Magistrate took into account irrelevant considerations when determining whether Mr McPhee was entitled to interest pursuant to s 114E(1)(b) of the Act, it seems that her Honour’s conclusions regarding the character of the February notice were influenced by, in addition to CGU’s characterisation of the 2018 claim, a concern that Mr McPhee not, in effect, be rewarded for his delay in pressing his claim for weekly payments with respect to his left knee injury.

1. That concern is understandable, and, as suggested by counsel for Steelsmith, may reflect a sound policy reason for not construing s 114E(1)(b) to include informal applications for the reinstatement of weekly payments as one of the scenarios conferring an entitlement to interest pursuant to s 114E(1) of the Act. However, whether a worker is entitled to interest on outstanding weekly payments is not a discretionary matter. Her Honour’s reference to Mr McPhee’s delays in pressing the matter may well reflect that she was distracted from the task before her (being the characterisation of the February decision, which as I have found also required the proper characterisation of the 2018 claim) by policy considerations which the legislature has not articulated as being relevant matters to be taken into account in determining whether s 114E(1) confers an entitlement to interest (save for s 114E(1A), which does not apply here).

1. Another distraction in the current case is the fact that the claim with respect to the left knee injury was said to have been a claim with respect to an accepted injury.  That the left knee injury was an accepted injury was referred to by Mr McPhee in the 2018 claim, by CGU in the February notice, and by the Panel in the Panel opinion.  However, the left knee injury was only an accepted injury insofar as it was said to be an injury caused by the November 2004 incident.

1. In the 2018 claim, Mr McPhee referred to the November 2004 incident, but also asserted that the injury to his left knee had been exacerbated or aggravated by the falls in the summer of 2007 and 2008.  That was not ‘accepted’ by CGU, and neither was Mr McPhee’s contention that he had a continuing incapacity for work and an ongoing requirement for medical treatment as a consequence of a series of incidents which affected the condition of his left knee.  However, in my view, the question of whether or not the  injury which was the subject of the 2008 claim had been accepted by CGU is largely irrelevant to the characterisation of the 2018 claim, and thus the February decision.

1. Also largely irrelevant to the proper characterisation of the February decision and the 2018 claim are the Panel opinion and reasons.  As observed by Steelsmith in its submissions, the Panel opinion post-dated the February notice, such that it should not be relied upon for the purpose of characterising the February decision.

1. In its reasons, the Panel did not expressly address the question of whether the falls in the summer of 2007 and 2008 caused, aggravated, or exacerbated the condition of Mr McPhee’s left knee.  However, it is tolerably clear from the Panel’s references to the ‘accepted left knee injury’ that the Panel considered that the primary cause of Mr McPhee’s left knee condition and consequent incapacity for work was the November 2004 incident.  However, that the Panel would ultimately reach that conclusion was not something that could have been known to Mr McPhee and/or CGU at the time the February notice was delivered.  The February decision rejected a bona fide claim by Mr McPhee with respect to a left knee condition said to have been caused by multiple incidents in the workplace.  That it seems that the Panel subsequently accepted that just one of those incidents was the primary cause of Mr McPhee’s left knee condition does not seem to me to be particularly relevant to the characterisation of the claim that was rejected by the February decision.

1. Accordingly, I would uphold grounds (a), (b) and (c) of the amended notice of appeal. However, as will be seen from the following section of these reasons, that is not the only hurdle Mr McPhee has to overcome to make good his claim for interest under s 114(1)(b) of the Act.

Grounds (d) and (e)

1. The question of whether s 114E(1)(b) of the Act only enlivens an entitlement to payment of interest on those outstanding weekly payments (and, arguably, the entitlement to payment of the outstanding weekly payments themselves) if a court makes an express order setting aside the decision to reject a claim for weekly payments does not appear to have been the subject of direct consideration by a court to date. In Williams,[100] there had been an express order setting aside the decision in question, such that the Court of Appeal observed that it did not need to deal with that issue.  And, as observed by Steelsmith in its submissions, there are numerous instances of proceedings where the relevant decision was expressly set aside.

   [100][2022] VSCA 62.

1. A requirement for an express order setting aside a decision to reject a claim for weekly payment is supported by the dictionary definition extracted at paragraph 56 of these reasons.  Steelsmith also relied upon the decision of the High Court in Disorganized Developments[101] to support its contention that in order to set aside a decision, a court must take a positive step to do so.

   [101](2023) 410 ALR 508.

1. In addition to the matters above, I also consider it to be arguable that, given that the consent order embodied an agreement reached between the parties, the granting of liberty to apply with respect to interest could support a construction of that agreement to the effect that the parties had not intended that the February decision be set aside, because, given the mandatory terms in which s 114E(1) is expressed, if the February decision had been expressly set aside, then, subject to the debate earlier in these reasons regarding the applicability of s 114E(1)(b) to Mr McPhee’s claim, an entitlement to interest on any outstanding weekly payments would automatically follow, which is inconsistent with the express agreement of the parties to defer the resolution of their dispute about interest to another day.

1. Mr McPhee submitted that, by adopting and applying the Panel opinion, the effect of the consent order was to set aside the February decision, at least insofar as it rejected Mr McPhee’s claim with respect to his left knee injury. I agree. That proposition is consistent with the authorities I have reviewed concerning first, the meaning of ‘set aside’, and secondly, the function and effect of medical panel opinions in the Act and its successor legislation.

1. While of limited precedential value, and made in completely different statutory context, the following statement by a senior member of the Administrative Appeals Tribunal provides a useful working definition of ‘set aside’:

The setting aside of a ‘decision’ is the vacating of a conclusion, reached by a prior decision-maker in relation to a set of antecedent facts that had been prescribed to that prior decision-maker for their assessment, in the form of his or her making a conclusion – or assessment – upon the set of antecedent facts.[102]

[102]Poyton and Secretary, Department of Social Services (Social Services Second Review) [2022] AATA 1320.

1. That seems to me to be an accurate explanation of what occurred when the consent order adopted and applied the Panel opinion, which reached a conclusion on the evidence before them that Mr McPhee had an ongoing incapacity for work from April 2012, which was inconsistent with the February decision.

1. The leading Australian authority on the meaning of the term ‘set aside’ is the decision of the New South Wales Court of Appeal in Katter v Melhem.[103] In that proceeding, the Court was concerned with an application for judicial review of a judgment entered by the District Court of New South Wales (‘District Court’). The Court was required to consider, among other things, whether the applicant required an extension of time to bring the application, and in particular, whether an exception to the time limitation imposed for bringing applications for judicial review in r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) applied to the application.

   [103](2015) 90 NSWLR 164. Reaffirmed by the New South Wales Court of Appeal in May v Northern Beaches Council [2023] NSWCA 205.

1. Rule 59.10 of the UCPR provides as follows:

59.10 Time for commencing proceedings

(1)Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a)any particular interest of the plaintiff in challenging the decision,

(b)possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the. proceedings,

(c)the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)      any relevant public interest.

(4)This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5)This rule does not apply to any proceedings in which the setting aside of a decision is not required.

1. In the application before the Court, the applicants had applied for, among other things, a writ of prohibition against the District Court and another party to prevent them from taking any steps to enforce or otherwise give effect to a judgment obtained by the other party as a consequence of the applicants’ failure to comply with terms of settlement entered into between them.  The applicants also sought a writ of certiorari quashing the judgment.

1. The applicants submitted that as their application for judicial review sought a writ of prohibition, the application fell within the exception in r 59.10(5) of the UCPR. JC Campbell AJA (with whom the other members of the Court agreed) rejected that contention, as can be seen from the following extract of these reasons:

Insofar as the summons seeks an order quashing the judgment of 22 July 2013, it is clearly proceedings in which the setting aside of a decision is sought.  Mr King does not dispute that.  However, he submits that insofar as the summons seeks an order for prohibition it initiates “proceedings in which the setting aside of a decision is not required”.  He submits that, even though an order in the nature of a writ of prohibition aims to stop a tribunal of limited jurisdiction from purporting to exercise, in the future, a jurisdiction it does not have, there is still scope for an order in the nature of prohibition to operate, because Mr Melhem’s solicitors have foreshadowed seeking an examination order in the District Court.

...

There is some ambiguity in the wording of UCPR, r 59.10(5). Whether proceedings are ones “in which the setting aside of a decision is not required” might depend, on one possible construction, upon the text of the orders that are sought in the proceedings. On that view of UCPR, r 59.10(5) if the prayers for relief do not seek an order that the decision be set aside, UCPR, r 59.10(5) has no application. If that were the correct construction, if proceedings sought an order for certiorari, or perhaps a declaration of the invalidity of a decision, leave would be required, while if no such order or declaration was sought leave would not be required.

In my view, the rule should not be interpreted in that way.  Rather, it should be interpreted purposively, by reference to the substantial nature of the bases upon which the orders are sought …

Within the meaning of UCPR, r 59.10(5) proceedings are ones “in which the setting aside of a decision is not required” if the grounds on which the orders are sought do not include matters that, if made out, would have the consequence that the decision is one that should be set aside. There would be no sense in a rule that required leave for a summons that sought explicitly the setting aside of a decision, but did not require leave if the summons sought, for example, declarations the inevitable consequence of which was that the decision was invalid, or an injunction preventing a party from giving effect to the decision or acting on the basis that it was correct.

....

The declarations sought in par 3 of the Judicial Review Summons are of legal propositions, the logical consequence of which is that the judgment of 22 July 2013 should be set aside.  Thus, insofar as the Judicial Review Summons seeks the declarations in par 3, an extension of time is required to bring it after more than three months.

The prayers for relief in par 4 of the summons do not seek the setting aside of any decision of the District Court - they seek the setting aside of the terms of settlement. However, if the prayers for relief in a summons include one that is based upon the ground that there exist circumstances such that a decision is one that should be set aside, the summons as a whole is one to which UCPR, r 59.10 applies. Thus, it is necessary for an extension of time to be sought to bring the summons in the present case.[104]

[104]Ibid [47]-[54].

1. In short, substance is to be preferred over form.

1. The reasoning in Katter v Melhem[105] was adopted and applied by the New South Wales Court of Appeal in May v Northern Beaches Council,[106] in circumstances where a self-represented appellant sought ‘[a] Declaration that Jurisdictional Errors and planning Laws have been breached in determining of the Initial DA determined on 29/09/2017 and the Section 96 application approved on the 4/7/2018 and the 4.56 Modification approved on the 29/09/2021’.

   [105]Ibid.

   [106][2023] NSWCA 205.

1. The Court rejected the appellant’s submission that the time limits in r 59.10(1) of the UCPR did not apply by reason of the terms of r 59.10(5), saying:

If jurisdictional error had been established, the consequence would be that the decision affected by that error is one that should be set aside. The invalidity of the particular decisions said to be affected by jurisdictional error was the inevitable consequence of the declaratory relief the applicant sought. The applicant’s judicial review application was therefore not protected by the exception in r 59.10(5).[107]

[107]Ibid [26].

1. Similarly, the New South Wales Land and Environment Court has held on a number of occasions that proceedings seeking declarations that development consents are ‘invalid and of no effect’ do not fall within the exception in r 59.10(5), as ‘[t]he making of such a declaration has the effect to setting aside the development consent …’.[108]

   [108]Wingecarribee Shire Council v Uri Turgeman (t/as Uri T Design) [2018] NSWLEC 146 [31]. See also Bankstown City Council v Ramahi [2015] NSWLEC 74 [69] and Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd(No. 2) [2019] NSWLEC 136 [12].

1. Of course, the decisions referred to above are not binding upon me.  In ‘Statutory Interpretation in Australia’, the learned author observed that the doctrine of precedent has a different significance in the task of statutory construction than in other areas, saying:

The result flowing from this difference is that if a court is seeking the meaning of a particular piece of legislation, it cannot be bound by the interpretation placed on like words in other legislation by another court.  Since the latter court was only saying what the words before it meant, its decision cannot be conclusive as to the meaning of another similar provision.  Other decisions may be of assistance, but they cannot remove from a court the obligation to seek the meaning of an Act under consideration for itself.[109]

[109]DC Pearce, Statutory Interpretation in Australia (Lexis Nexis, 10^th ed, 2024) [1.16].  The learned author referred to Ogden Industries Pty Ltd v Lucas [1970] AC 113 and McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646.

1. However, after a discussion of the relevant authorities, the learned author went on to say that:

It hardly needs to be stated that previous decisions concerning the same legislative provision or a similar one may have strong persuasive authority on the interpretation to be placed on a provision.[110]

[110]Ibid [1.18].

1. Of course, the decisions referred to above concern a different statutory provision in a different statutory context.  However, the approach taken by the Court in Katter v Melhem[111] and in other subsequent decisions to the meaning of ‘set aside’ in r 59.10(5) of the UCPR, insofar as the Court said that the rule ‘should be interpreted purposively, by reference to the substantial nature of the bases upon which the orders are sought’[112] seems to me to be an uncontroversial application of an uncontroversial principle.

   [111](2015) 90 NSWLR 164.

   [112]Ibid [50].

1. Accordingly, when considering whether the consent order had the effect of setting aside the February decision, it is necessary to consider the meaning of the purpose and effect of that part of the consent order which ‘adopts and applies the Panel opinion’, in the particular context of the Act, and in particular, the role and functions conferred upon medical panels and their opinions by the Act.

1. When considering what is the legal effect of a court making an order to ‘adopt and apply’ a medical panel opinion, it is necessary to turn first to the terms of the relevant provision of the Act.

1. Section 68(4) of the Act provided as follows:

For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

(Emphasis added).

1. The functions and effect of opinions of a medical panel were first considered at length by the Court of Appeal in Masters v McCubbery,[113] where the Court emphasised the final and binding nature of medical panel opinions when reaching the conclusion that a medical panel is a ‘tribunal’, and that a medical panel opinion is a ‘decision’ within the meaning of the Administrative Law Act 1978 (Vic) (‘ALA’).

   [113][1996] 1 VR 635.

1. In the course of his reasons, Winneke P made the following observations regarding the functions and powers of medical panels:

By means of this section the legislature has at the option of a party, effectively divested the court of the power to make the ultimate decision as to an applicant’s entitlement to compensation and invested that power in a panel of doctors. This is so because the Act defines “medical question” so broadly that it encompasses the essential ingredients which underwrite a worker's entitlement to compensation. Thus a “medical question” includes:

(a)A question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated;

(b)A question whether a worker's employment could possibly have been a significant contributing factor to an injury or alleged injury, or to a similar injury, other than a question whether the worker's employment was in fact such a significant contributing factor;

(c)A question as to the extent of any physical or mental condition resulting from or materially contributed to by the injury;

(d)A question as to the level of impairment of a worker including a question or the degree of impairment of a worker assessed in accordance with the (Guides).

(f)A question whether the worker's incapacity for work resulted from or was materially contributed to by an injury or alleged injury.

It is thus clear that what is capable of being transmitted to a medical panel for its “opinion” is the matter which would otherwise be determined by the court in deciding the applicant's entitlement to compensation.[114]

(emphasis added).

[114]Ibid 637.

1. His Honour went on to discuss the decision appealed from, and stated as follows:

It cannot be denied, as the trial judge found (correctly in my view) that the scheme of the legislation is such that the medical panels are empowered to decide, in a manner which binds the court making the referral, the critical issues which have arisen between the worker and the authorised insurer, which issues the worker has referred to the court as a consequence of action taken by the insurer.  Although these critical issues are referred to the medical panel couched in terms of “medical questions” and the responses of the panel to the are couched in terms of “opinions”, such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.[115]

(emphasis added).

[115]Ibid 642.

1. In reaching his conclusion that the legislature intended to create the medical panels as an alternative method of dispute resolution to the court, his Honour stated as follows:

The “opinions” thus formed by the panel incorporated within them a number of sub-determinations, based on the material before it, on matters of both fact and law.

…

These ultimate conclusions expressed by the panel as “opinions” dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms. The conclusions by virtue of the Act become binding on the court. Thus the effect which the Act gives to the panel’s “opinion” is apt to demonstrate how clearly the powers invested in the panel are capable of /interfering with the rights of the individual. By virtue of those opinions the appellant’s claims that he was entitled to compensation as a person who had suffered a “serious injury” and/or was “totally incapacitated for work” were conclusively determined against him.[116]

[116]Ibid 643.

1. Finally, in reaching the conclusion that a medical opinion is a ‘decision’ within the meaning of the ALA, his Honour said as follows:

In my view a “medical opinion” given by a medical panel pursuant to s. 45 of the Act is a decision within that definition. It is, as I have pointed out in these reasons, a determination which effectively disposes of the issues between the parties and thus bears the characteristics of a “decision”: see Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 at 335, per Mason CJ. Furthermore, notwithstanding the submission of the respondent to the contrary, the decision of the medical panel is one which in my opinion “(operates) in law to determine a question affecting the rights of any person...”. The Act itself operates to provide the “medical opinion” with that necessary quality by reason of the fact that it is made conclusive of the issues between the parties. The mere fact that the process contemplated by the Act has to be completed by the “adoption by the court” of the medical panel’s opinion (as the court is obliged to do) does not deprive the panel’s decision of that necessary quality. What gives the “opinion” that quality is that, by the statute’s authority, it “determines a question affecting the rights of a person” [emphasis added]; it is not necessary as the respondent’s arguments appear to assume, that it should incorporate the characteristics of an immediately binding and enforceable decision:…[117]

[117]Ibid 649.

1. Subsequent decisions which have considered the role and effect of medical opinions have tended to focus upon the reach and scope of medical panel opinions rather than their fundamental character.  Those controversies were largely resolved by the High Court in the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak,[118] where the Court stated as follows:

What s 68(4) ... requires is that an opinion of a Medical Panel on a medical question referred to it must thereafter be adopted and applied for the purpose of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purpose of determining some other question or matter.

The operation of s 68(4) of the Act in the present case was therefore to require the opinion given by the medical panel on the medical questions referred to it in the statutory compensation application to be adopted and applied by all courts and persons in the determination of the question or matter the subject of the statutory compensation application. That question or matter comprised the controversy between the parties to the statutory compensation application about the worker’s entitlement to the statutory compensation he claimed under Pt IV of the Act, and was brought to a conclusion when the statutory compensation application was dismissed. ...[119]

[118](2013) 252 CLR 480.

[119]Ibid [37]-[38].

1. As is clear from the above, the appellate courts speak as one in recognising the final and determinative role of medical panels and their opinions with respect to the medical questions referred to them, with the ‘medical questions’ capable of being referred to them extending well beyond traditional clinical matters to matters fundamental to the determination of controversies regarding a worker’s entitlement to compensation under the Act and the duration and extent of that compensation, leaving little, if anything, left to a court to determine.

1. Accordingly, turning now then to the proper construction of the consent order, and the question of whether the consent order ‘set aside’ the February decision, the consent order cannot be viewed in a vacuum.[120] The consent order was made in a proceeding brought by Mr McPhee to pursue his rights to compensation under the Act. The amended statement of claim, among other things, brought in Mr McPhee’s claims in the 2018 claim, which were rejected by the February decision. The medical questions referred to the Panel completely covered the field in terms of the issues for determination in the current proceeding, making reference to each of the injuries referred to in the 2018 claim and the amended statement of claim, and addressing each of the matters prescribed by the Act as being relevant to Mr McPhee’s claim for compensation under the Act. The Panel opinion answered each of these questions, following which each of the issues in the current proceeding was conclusively determined, save for the questions of interest and costs.

   [120]Surrounding circumstances can be used to construe court orders, including consent orders. (Katter v Melham (2015) 90 NSWLR 164 [62]).

1. The substantive effect of the adoption and application of the Panel opinion was to:

(a)   uphold the February decision insofar as the February decision rejected any claim by Mr McPhee for injuries to the lumbar spine, left hip, right knee, right hip and cervical spine;

(b)  to put it neutrally, finally and conclusively negate the effect of the February decision insofar as the February decision evinced an intention to refuse to pay Mr McPhee weekly payments of compensation and medical and like expenses with respect to Mr McPhee’s left knee injury; and

(c)   limit Steelsmith’s liability to pay for medical and like expenses with respect to Mr McPhee’s left knee injury to certain items and treatments.

1. In substance, therefore, the adoption and application of the Panel opinion by the Court in effect reversed the February decision insofar as it concerned Mr McPhee’s claim for compensation with respect to his left knee injury.  That the reasons provided in the February notice for refusing to pay compensation to Mr McPhee in respect of his left knee claim differed from the reasons provided with respect to the rejection of the other claimed injuries is irrelevant to determining the substantive effect of the adoption and application of the Panel opinion by the court upon that part of the February decision which rejected Mr McPhee’s claim for compensation with respect to his left knee injury.  Following the adoption and application of the Panel opinion, that part of the February decision had no work to do, and no longer had any legal effect.  It was, in substantive terms, set aside, notwithstanding that the consent order did not use words to that effect.

1. For completeness, I do not consider that the decision of the High Court in Disorganized Developments[121] is of particular relevance to the construction of the term ‘set aside’ in s 114E(1)(b) of the Act. In that case, the Court was concerned with the validity of regulations purporting to declare certain parcels of land ‘prescribed places’ under the Criminal Law Consolidation Act1935 (SA), thus making it a criminal offence to enter those properties. The Court rejected an argument that the regulations concerned ‘impliedly’ declared the blocks of land prescribed places. The majority stated as follows:

As a matter of ordinary English, a “declaration” is a positive statement or proclamation.  To declare a place to be a prescribed place by regulation requires a positive statement that the relevant place is a prescribed place.[122]

[121](2023) 410 ALR 508.

[122]Ibid [23].

1. Steelsmith relied upon the passage above to support its submission that the court must make an express order setting aside the relevant decision to enliven the entitlement to interest under s 114E(1) of the Act. The court must positively act to do something. I do not disagree with that proposition. However, as can be seen from the preceding discussion, the court, in making the consent order, did do something. It adopted and applied the Panel opinion, which I have found had the substantive effect of setting aside that part of the February decision which rejected Mr McPhee’s claim for compensation with respect to his left knee injury.

1. Given my conclusion that the effect of the adoption and application of the Panel opinion was to set aside the February decision insofar as it concerned Mr McPhee’s claim for compensation with respect to his left knee, it is not necessary for me to deal with Mr McPhee’s submission to the effect that the learned magistrate was ‘jurisdictionally obliged’ to set aside the February decision.  However, briefly, I disagree, for the reasons advanced by Steelsmith in its submissions (see paragraph 58 of those reasons).  Similarly, one could not have expected Magistrate Wright, on his own initiative, to amend a consent order in a way which would, at least arguably, have the effect of altering the rights and obligations of the parties without giving the parties an opportunity to be heard on the matter.

Additional matters

1. Given my findings in relation to the construction and application of s 114E(1)(b) of the Act, then strictly speaking, it is not necessary for me to address Mr McPhee’s submissions in relation to the potential application of s 114E(1)(d) and (e) of the Act to Mr McPhee’s claim for interest, but I will do so, briefly.

1. Setting aside for the moment Steelsmith’s submissions to the effect that Mr McPhee cannot contend that these provisions apply to his claim for interest because he had not made submissions to that effect before the learned magistrate (which perhaps carry less force in this appeal), I agree, largely for the reasons advanced by Steelsmith in its submissions, that no entitlement to interest on Mr McPhee’s part is enlivened by these provisions.

1. In relation to s 114E(1)(d) of the Act, I agree that it would be straining the language of the provision to construe that provision to encompass an application by a worker to increase their weekly payments from nil in circumstances where, at the time the 2018 claim was made, Mr McPhee was not receiving any weekly payments. In any event, the construction of s 114E(1)(b) of the Act I have adopted renders such a strained construction of s 114E(1)(d) unnecessary. As for s 114E(1)(e) of the Act, I accept that provision is, in essence, a machinery provision designed to provide for the payment of interest on late payments where the worker’s entitlement to weekly payments is not in dispute, but where there has been a delay for administrative reasons. Indeed, that construction was recognised in the amended statement of claim where Mr McPhee claimed interest of $4,169 pursuant to s 114E(1)(e) by reason of the outstanding weekly payments not having been paid within 7 days of the consent order having been made.

Disposition

1. Accordingly, the appeal will be allowed.  I shall hear further from counsel as to the orders required to give effect to these reasons, and in particular, upon the question of whether the calculation of interest needs to be remitted to the Magistrates’ Court.  I shall also hear further from the parties on the question of costs, and any other relevant matter either party wishes to raise.