McPhee v Steelsmith Engineering Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA
AT BALLARAT
WORKCOVER DIVISION

Case No. H10246359

PETER JOHN MCPHEE	Plaintiff
v
STEELSMITH ENGINEERING PTY LTD	Defendant

---

MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne sitting as Ballarat (Online)
DATE OF HEARING:	16 March 2022 (Final submissions delivered: 27 June 2022)
DATE OF DECISION:	5 August 2022
CASE MAY BE CITED AS:	McPhee v Steelsmith Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VMC 22

---

WORKERS COMPENSATION – Accepted left knee injury - Rejection of subsequent claims – Referral by the Court of questions to Medical Panel – Medical Panel opinion adopted and applied by the court – Weekly payments ordered by way of consent orders – Whether by such orders the Court had set aside the decision to reject the claim in the absence of an express order – Whether interest payable on the weekly payments – Statutory construction – Accident Compensation Act 1985, s 114E(1).

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms S Bailey	Saines Lucas Solicitors
For the Defendant	Mr A Middleton	IDP Lawyers

HER HONOUR:

Introduction and Overview

From 26 May 2003, Mr McPhee, the plaintiff, was a welder employed by Steelsmith Engineering Pty Ltd (Steelsmith), the defendant.
This is an application by Mr McPhee made pursuant to s 114E(1) of the Accident Compensation Act 1985 (the Act) for an order for interest on outstanding weekly payments of compensation.
Mr McPhee claimed interest under s 114E(1)(b) on weekly payments over an eight-year period from 12 April 2012 to 12 October 2020.[1]
[1]Mr McPhee also claimed interest under s 114E(1)(e) for late payment of the arrears for the period 19 October 2020 to 1 December 2020. That claim was not the subject of submissions nor evidence in the case before me.
Steelsmith refused to pay interest as claimed, contending that the interest claim failed to satisfy any of the requisite criteria of s 114E(1), particularly s 114E(1)(b).
As the parties were unable to agree on the interest claim, the proceeding was listed on 16 March 2022 for argument on that issue alone.
After having reserved my decision, the Court of Appeal on 12 April 2022 delivered the decision of O’Brien Transport Services Pty Ltd & Victorian WorkCover Authority v Williams (Williams)[2] in which the operation of s 114E of the Act was considered.
[2][2022] VSCA 62 (‘Williams’).
Counsel for the parties were then contacted by the Court and offered the opportunity to make any additional submissions in writing in light of Williams.
Both parties delivered additional written submissions.
Factual and Procedural Background
On 11 November 2004, Mr McPhee sustained a left knee injury in the course of his employment with Steelsmith (the 2004 left knee injury). He made a claim for compensation (04070148604) dated 8 May 2008 for which liability was accepted.
By notice dated 5 May 2011, Mr McPhee’s weekly payments were then terminated at the conclusion of 130 weeks (the May 2011 termination). After a conciliation outcome certificate was issued, the May 2011 termination was the subject of an earlier proceeding in the Magistrates’ Court.[3]
[3]Case no. B12745935.
The earlier proceeding was apparently the subject of terms of settlement between the parties for a limited period of weekly payments from 19 August 2011 to 16 April 2012 (the prior settlement).
Over the months of December 2007 and January 2008, Mr McPhee had suffered various falls in the course of or arising out of his employment with Steelsmith (the falls).
In July 2010, Mr McPhee lodged an impairment claim for injuries to his left leg/knee, right knee and right hip. Liability was accepted for left leg (knee) only and rejected for the other injuries by notice dated 21 August 2013. That dispute was the subject of a prior proceeding in the Magistrates’ Court and a Medical Panel Opinion subsequently adopted by the Court.[4]
[4]Case no. D1372093.
In January 2017, Mr McPhee issued the current proceeding claiming compensation initially for medical and like expenses only for injuries to the left knee, left hip, lumbar spine, right knee and hip and cervical spine.
Mr McPhee then lodged a claim for compensation dated 11 January 2018 on Steelsmith (together with a signed annexure of the same date) for his left knee as well as for his left hip, lumbar spine, right hip and a rectal tear injury from medication (the additional claimed injuries). The stated circumstances were of having ‘initially injured left knee in Nov 04’ and of subsequently having had the falls and of requiring left knee and other surgery.
By notice dated 26 February 2018, Mr McPhee’s claim dated 11 January 2018 was rejected (the 26 February 2018 notice).
Under the heading ‘CGU’s decision’, the 26 February 2018 notice stated as follows:
CGU confirms that you have previously lodged a claim for a left knee injury occurring on 11 November 2004 (04070148604). 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.
The 26 February 2018 notice then stated that ‘CGU has determined to reject your new claim on the following grounds’. The stated ground was that Mr McPhee had not sustained injury arising out of or in the course of employment.
Thereafter, the notice sets out specific grounds regarding the denial of liability pertaining to each of the additional claimed injuries as follows: right hip injury and right knee injuries; lumbar spine injury; left hip injury; rectal tear injury.
In the final section of the 26 February 2018 notice, the Agent also states: ‘CGU considers that you have been previously compensated for injuries to your left knee, left hip, lumbar spine and rectal tear against claim 04070148604.’
Mr McPhee lodged a further claim for compensation for weekly payments dated 11 April 2018. That was for a cervical spine injury in the course of or arising out his employment with Steelsmith (the April 2018 claim).
By notice dated 31 May 2018, the April 2018 claim was also rejected on grounds including that injury did not arise out of or in the course of employment (the 31 May 2018 notice).
With the Court’s leave, the current proceeding was then amended to include the disputed notices of 26 February 2018 and 31 May 2018.
The Court referred six medical questions to a Medical Panel on 13 February 2019.
The Panel then delivered an opinion dated 9 September 2019 including that inter alia Mr McPhee had no current work capacity from 17 April 2012 until the date of the Medical Panel examination and that such incapacity would continue indefinitely.
The Panel also opined 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. As for the additional claimed injuries, the Panel opined either there was no intrinsic medical condition or if there was a condition it was not relevant to any alleged injury (save for the anorectal dysfunction condition).
On 9 October 2020, the parties filed minutes of proposed consent orders which (omitting the orders as to medical and like treatment and costs) included the following paragraphs:
The Medical Panel opinion dated 9 September 2019 be adopted and applied.
The defendant pay to the plaintiff weekly payments of compensation from 17 April 2012 to date and continuing in accordance with [the Act].
Liberty to apply in respect of interest.
On 12 October 2020, by consent, the Court made orders that reflected the proposed minutes of 9 October 2020.
Relevant Statutory Provision
The relevant section of the Act is as follows:
114E 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.
(2)If an employer is responsible for making weekly payments to a worker, the Authority, must pay the employer the amount of any outstanding weekly payments payable under subsection (1).
(3) Subsection (2) does not apply to a self-insurer or a subsidiary of a self-insurer except in relation to the employment of a student worker.
Submissions for Mr McPhee
Mr McPhee’s entitlement to interest fell under s 114E(1)(b). That is because the 26 February 2018 notice was a rejection of his January 2018 claim.
The unequivocal effect of the Court’s orders of 12 October 2020 was to set aside the 26 February 2018 notice to reject his claim for weekly payments. That occurred by reason of the order to adopt and apply the Medical Panel opinion and, also, by reason of the related order requiring payment of weekly payments of compensation from 17 April 2012 to date and continuing in accordance with [the Act].
Mr McPhee’s situation was distinguishable from this Court’s decision of Hall v Hallam Manufacturing Pty Ltd (Hall).[5] In Hall, which involved an application for reinstatement of weekly payments, Magistrate Wright found that s 114E, and in particular s 114E(1)(b) did not cover the circumstances of a reinstatement application.
[5][2014] VMC 29 (‘Hall’).
Counsel for Mr McPhee also sought to distinguish Tucker v Patrick Stevedores No 2 Pty Ltd (Tucker),[6] an earlier decision of Magistrate Wright. Tucker concerned a withdrawal by an Agent of a notice of termination at conciliation. Magistrate Wright agreed with the employer’s submissions that interest was not payable as the circumstances fell within none of the sub-sections s 114E(1)(a) through to (e).
[6][2010] VMC 47.
By contrast, this case was concerned with a rejection of Mr McPhee’s claim for weekly payments by the 26 February 2018 notice.
By reason of the adoption and application of the Panel opinion and in Steelsmith being ordered to pay weekly payments of compensation beyond 17 April 2012, the notice of rejection was necessarily set aside by the Court.
In written submissions, Counsel for Mr McPhee put it this way:
The only basis available to the Court to make such an order was on the Notice rejecting the Plaintiff’s left knee injury. It is therefore implicit in the orders that the Notice was set aside.[7]
[7]Plaintiff Submissions (PS) [18].
To interpret s 114E(1)(b) otherwise – that such a circumstance did not amount to a decision by the Court to set aside a decision to reject a claim – could not be correct.
Such a finding would result in a significant disadvantage to plaintiff workers in cases where medical questions were referred to a Medical Panel in court proceedings which would be inconsistent with the intention of the Parliament.
In subsequent written submissions, Counsel for Mr McPhee contended that Williams provided further support for previous submissions regarding his claim for interest under s 114E(1). Counsel put it this way:
For the Plaintiff to be shut out from interest on a technicality in the wording of the Orders would certainly go against the findings made by the Court of Appeal in Williams … There is a clear statutory entitlement for the Plaintiff to receive interest pursuant to s114E(1)(b) in line with the principles outlined in the matter of Williams.[8]
[8]PS [18].
Finally, no weight should be given to Steelsmith’s submissions as to the Panel’s opinion not leading to acceptance of other claimed injuries in the disputed notices. Nothing in s 114E suggested or required that a worker needed to be wholly successful in order to claim interest.
Submissions for Steelsmith
Mr McPhee’s claim for interest must fail essentially on the same grounds as in Hall.
Here, as in Hall, the Court referred questions to a Medical Panel and the Panel opinion was adopted and applied. The only difference between the facts of this case and those of Hall was that here the disputed notice was a rejection of a claim whereas Hall had concerned an application for reinstatement.
Counsel for Steelsmith relied on to the following passage Hall as being wholly applicable to this proceeding. In Hall, Magistrate Wright referred to Tucker and had this to say:
In that case, I agreed with Counsel’s submission that s. 114E is highly prescriptive. At para. 28 in that decision I also noted:-
“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”.
The five sub-sections of s.114E(1) address specific circumstances, that is, a conciliator’s direction; the rejection of a claim for weekly payments, the termination or reduction of weekly payments, the rejection of a decision to increase weekly payments and other circumstances in which weekly payments fail to be made despite the requirements otherwise to do so. …[9]
[9]Hall [2014] VMC 29 [20] – [21].
In the present case, similarly, Mr McPhee’s claim for interest ought not succeed as it ‘would stretch the existing provisions too far’.
It was very clear that the Parliament, in enacting sub-sections 114E(1)(b) through to 114E(1)(d), intended to deal with circumstances in which a Court had actually set aside a decision.
That had not occurred here and therefore s 114E(1)(b) had no application.
In subsequent written submissions, Steelsmith contended that Williams was distinguishable from the present case.
Firstly, that was because Williams was directed at a specific scenario regarding the worker’s weekly payments of compensation. There, the disputed decision made under s 114E(2A) was ‘not to pay compensation in the form of weekly payments’.
Secondly, a further distinction to Williams was that the trial Judge in the County Court had made an order to set aside the disputed notice.
In subsequent written submissions, aside from relying on the absence of a specific order to set aside, Steelsmith contended that Mr McPhee’s claim for interest should fail based on the ‘correct characterisation of what has occurred in this proceeding’.[10]
[10]Defendant’s Submissions (DS) [22] and following.
In essence, Steelsmith submitted that what had occurred in Mr McPhee’s case was that the Court was, in effect, reinstating weekly payments of compensation for the accepted 2004 left knee injury. The reinstatement was from 17 April 2012, being the day after the period for which weekly payments of compensation were paid pursuant to the terms of the prior settlement.
That is an outline of the submissions. I turn now to my consideration and findings.
Analysis
In Williams, the sole question before the Court of Appeal related to an order of his Honour Judge Wischusen of the County Court that the worker be paid interest on outstanding weekly payments in accordance with s 114E(1)(c) of the Act. The Authority’s application for leave was refused and the Court of Appeal confirmed the trial judge’s decision that interest was payable.
The Court of Appeal gave consideration in Williams to the construction and operation of the provisions of both ss 114(2A) and 114E(1) generally.
On that basis, parties in the current proceeding were offered an opportunity to make any additional submissions in writing in light of Williams.
Whilst there were important factual differences between Williams and the present case, there were also parallels.
As occurred in this case, in Williams, the trial judge referred medical questions to a Panel. The Panel then provided an opinion on issues of causation and incapacity.
There, as here, the trial judge made orders including: that the opinion of the Medical Panel be adopted and applied; and that outstanding weekly payments be paid to the worker in accordance with the Act.
However, as Counsel for Steelsmith noted in written submissions, the trial judge in Williams made a specific order to set aside the notice of decision.[11]
[11]Williams [2022] VSCA 62 [65].
The grounds of appeal in Williams related to the characterisation of the notice of decision and whether the disputed notice did, in fact, engage either sub-sections 114(1)(b) or (c).
On appeal, the Authority had submitted that the purpose of s 114E(1) is to ‘very narrowly prescribe the circumstances’ in which interest is payable. The Authority referred to the reasoning of a majority of the Court of Appeal (Callaway and Buchanan JJA; Nettle JA dissenting) in Victorian WorkCover Authority v Vitoratos[12] in urging a literal construction of the effect of s 114E.
[12](2005) 12 VR 437.
That was similar to the prescriptive approach that Counsel for Steelsmith had urged for in this proceeding, in reliance on Hall, as set out previously in my outline of submissions.
In Williams, the disputed notice of decision was a determination ‘not to pay’ weekly payments. The central issue before the primary judge had related to the pleaded defence in reliance on s 114(2A) of the Act. That arose because the employer alleged the worker had effectively resigned from his employment.
The Court of Appeal confirmed the finding of the primary judge which was that the effect of the ‘not to pay’ decision was a decision to terminate or reduce payments within the meaning of s 114(1)(c).
In essence, the Court of Appeal considered that determining a claim for interest depended ‘upon the proper construction and operation of ss 114(2A) and s 114E(1) of the Act together with a characterisation of the notice’.[13]
[13]Williams [2022] VSCA 62 [45].
The plurality (Beach, Kennedy JJA and O’Meara AJA) had this to say:
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.[14]
[14]Ibid [46] (citation omitted).

The Court then considered the provisions of s 114 were directed to the ‘Termination or alteration of weekly payments’.
As for the operation of s 114E, the Court had this to say:
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).[15]
After considering the legislative history of s 114(2A) to (2C) inserted in 2010, the Court then had this to say:
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.[16]
[16]Ibid [60].
The Court held that the notice in Williams was properly characterised as, in effect, terminating any entitlement of the respondent to weekly payments.
71 The Court put it this way: ‘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.[17]
[17]Ibid [64].
I now turn a consideration of the evidence in this case and my findings.
It seems to me there are essentially two issues for consideration.
Firstly, in adopting the language of Williams, it is necessary for me to consider and arrive at a proper understanding of the character of the disputed decision.
Secondly, I must decide whether s 114E(1)(b) was engaged and particularly, having regard to the there being no express or explicit order by the court to set aside the disputed decision.
Neither Counsel suggested that s 114A(1A) of the Act was enlivened by any issue as to the timing of the application to the court following conciliation.
Characterisation of 26 February 2018 notice
The starting point must be the characterisation of the notice of decision and, in this case, that is not a particularly straight-forward question.
The 26 February 2018 notice contains the agent’s confirmation of various matters including: that liability was accepted for the 2004 left knee injury claim; that Mr McPhee had not returned to work after June 2010; and that weekly payments entitlements were terminated from 19 August 2011.
The notice then stated that the agent has ‘determined to reject [Mr McPhee’s] new claim’ on the grounds injury did not arise out of or in the course of employment. The particularised grounds for rejection that follow refer sequentially to the additional claimed injuries, but not to the accepted left knee.
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.
In written submission, Steelsmith contended that the effect of the Panel opinion was to ‘largely vindicate the position adopted’ by Steelsmith to reject Mr McPhee’s January 2018 and April 2018 claims.
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.
Nevertheless, I accept as correct the submission of Mr McPhee’s Counsel that nothing in s 114E suggested or required that a worker needed to be wholly successful in order to claim interest.
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,[18] nor ‘put out of interest’ on ‘outstanding weekly payments’ as the Court of Appeal found.
[18]Ibid [30] where the primary judge’s reasons are set out.
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.
For completeness, I observe that no evidence was adduced nor submissions made regarding the prior settlement (other than the fact of it) being for a limited period of weekly payments. Nor was there any clarity as to the significance of the end date of 16 April 2012 for weekly payments under the prior settlement. Certainly, there was no issue estoppel or res judicata type argument relied upon by Steelsmith.
At this point I note that Mr McPhee’s Counsel objected to those aspects of Steelsmith’s written submissions which dealt with ‘characterisation’ of the decision or what actually occurred as being an attempt ‘to re-open their case.’[19] It was contended those submissions ought to be struck out.
[19]PS [4].
I do not accept that contention. In my view, Steelsmith’s submissions appropriately addressed the Court of Appeal’s analysis in Williams regarding the need in all cases to arrive at a proper understanding and characterisation of the decision.
Even if I am wrong and the submissions could be considered an attempt ‘to re-open their case’, the reality is this. Steelsmith’s written submissions of 14 June 2022 were delivered first in accordance with an agreed timetable. Submissions for Mr McPhee of 27 June 2022 were delivered in response. Accordingly, the plaintiff had opportunity to reply and respond to all aspects of Steelsmith’s submissions in light of Williams. Additionally, at all times, the parties had liberty to apply had they wished to come back before the Court.
Whether s 114E(1)(b) was engaged where no explicit order to set aside the disputed notice
Finally, if I am wrong regarding my characterisation of the agent’s decision in relation to claimed weekly payments for the left knee injury, then I find Mr McPhee’s claim for interest must still fail.
In this case, the proposed minutes of consent filed by the parties’ legal practitioners included no order proposing or seeking that the 26 February 2018 notice be set aside.
Mr McPhee’s Counsel submitted that this should be overlooked because the Court of Appeal concluded in Williams that ‘technical meanings’ were not intended by the Parliament in relation to s114E(1).[20]
[20]Williams [2022] VSCA 62 [55] and [60].
Yet the starting point must still be 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’.[21]
[21]Ibid [46] (citation omitted).
Section 114E(1)(b) through to (d) requires in plain language that a decision be set aside by a Court.
In Williams, the trial judge had distinguished Hall stating that it was ‘explicable by the fact that the introductory words of (b) and (c) were not engaged because no decision had been set aside in the orders there made’.[22]
[22]Ibid [30] where the primary judge’s reasons are set out.
On appeal, in Williams, it was unnecessary for the Court to consider whether an express Court order to set aside a notice was a requisite condition to the operation of sub-sections s 114(1)(b) to (d).
Nevertheless, the plurality’s decision made specific reference to the fact that such an order had been made by the primary judge and, by doing so, confirmed the necessity of that occurring as a requisite step.[23]
[23]Ibid [65].
I therefore reject the submission of Mr McPhee’s Counsel that ‘to shut him out from interest on a technicality in the wording of the orders’ would be contrary to the principles outlined by the Court of Appeal’s decision in Williams regarding s114E(1).

Conclusion

I would dismiss the proceeding.

MAGISTRATE HOARE

5 AUGUST 2022

[15]Ibid [55].

[2022] VMC 22

5 August 2022