Motor Accidents Insurance Board v Britton - [2017] TASSC 60

[2017] TASSC 60

COURT: SUPREME COURT OF TASMANIA

CITATION: Motor Accidents Insurance Board v Britton [2017] TASSC 60

PARTIES:  MOTOR ACCIDENTS INSURANCE BOARD
  v
  BRITTON, Peta Leanne

FILE NO: 1413/2017
JUDGMENT

APPEALED FROM: Britton v Motor Accidents Insurance Board

[2017] TASMACT 1

DELIVERED ON:  16 October 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 September 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Traffic Law – Statutory restrictions or compensation in respect of motor vehicle accidents – Tasmania – Tribunal, Board, etc – Motor Accidents Compensation Tribunal – Right of appeal from determinations of Tribunal – Purported appeal from interlocutory determination – Jurisdiction of Tribunal to make retrospective determination as to eligibility for disability allowance – Status of unchallenged determination of ineligibility by Motor Accidents Insurance Board.
Acts Interpretation Act 1931 (Tas), s 20(a).

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 28.
Director-General of Social Services v Chaney (1980) 47 FLR 80; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal [2016] TASFC 6, 78 MVR 135, referred to.
Aust Dig Traffic Law [1318]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson SC
             Respondent:  N Everett
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Bartletts

Judgment Number: [2017] TASSC 60
Number of paragraphs: 35

Serial No 60/2017
File No 1413/2017

MOTOR ACCIDENTS INSURANCE BOARD v PETA LEANNE BRITTON

REASONS FOR JUDGMENT BLOW CJ

16 October 2017

This case involves questions as to the scope of the right of appeal conferred by s 28(6) of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), and as to the extent of the jurisdiction of the Motor Accidents Compensation Tribunal, in the circumstances that have arisen in this particular case, to make a retrospective determination as to the eligibility of the respondent to receive scheduled benefits under the Act.

Background

The background to this matter can be summarised as follows:
·     On 29 June 2012 the respondent, Peta Britton, was driving a motor vehicle when it collided with a cow. As a result she was injured.
· She claimed scheduled benefits under the Act from the appellant, the Motor Accidents Insurance Board. The Board commenced to pay her a disability allowance. It also paid various medical expenses.
·     In or about June 2014 the Board determined that the respondent was not entitled to any further payments of the disability allowance after 29 June 2014. She was notified of that determination in a letter dated 7 July 2014.
·     The respondent was aggrieved by that determination. By a notice dated 13 August 2014 she purported to refer to the Tribunal the matter of her right to be paid a disability allowance.
·     That reference to the Tribunal was out of time. Under reg 4(3)(a) of the Motor Accidents Compensation Tribunal Regulations 2009, the notice referring the matter to the Tribunal was required to be given within 14 days after the respondent was notified of the Board's determination. Regulation 4(3)(b) permits the Tribunal to allow a further period for the giving of the necessary notice, but only if that extension of time is sought before the 14-day period expires. Unsurprisingly, the respondent did not make an application for an extension of time. The Tribunal dismissed the purported reference on the basis that it had no jurisdiction: Britton v Motor Accidents Insurance Board [2015] TASMACT 4.
·     On 16 November 2015 the respondent's solicitors wrote to the Board on her behalf claiming a disability allowance on the basis that she was wholly disabled. Medical certificates covering the period from 1 June 2015 to 13 October 2015 were submitted with that letter.
·     The Board made a determination not to pay a disability allowance in response to that claim. An officer of the Board advised the respondent's solicitors of that determination by a letter dated 19 November 2015.
· On 3 December 2015 the respondent's solicitors referred the matter to the Tribunal pursuant to s 28(2) of the Act.
·     Subsequently the Board accepted that the respondent was entitled to again receive payment of a disability allowance. However a dispute developed between the parties as to the date from which the Tribunal could require the Board to make payments. The respondent contended that the Tribunal had jurisdiction to make a determination that was backdated to the date when payments ceased, namely 29 June 2014. However the Board, at that stage, contended that the Tribunal did not have jurisdiction to order payments as from any date earlier than 20 November 2015.
·     The Tribunal, constituted by its Chairman, Mr R B Webster, decided to determine the issue as to its jurisdiction as a preliminary point. A hearing was held for that purpose on 5 April 2017. On 3 May 2017 the Tribunal determined that it had "jurisdiction to determine the … claim for the employed person's allowance from and including 30 June 2014 to 19 November 2015": Britton v Motor Accidents Insurance Board [2017] TASMACT 1.
·     On 24 May 2017 the Board commenced these proceedings by filing a notice of appeal in respect of that decision.
The relevant legislative provisions include the following:
· Under s 23(1)(a) of the Act, the Board must pay the benefits prescribed by the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the MALC regulations") if a resident of Tasmania suffers personal injury resulting directly from a motor accident that occurs in Tasmania. Such benefits are referred to as "scheduled benefits".
·     Regulation 9 of the MALC regulations provides that the benefits payable under s 23(1) are as specified in Sch 1 to those regulations.
·     That schedule provides for the payment of various sorts of benefits. Part 5 of the Schedule deals with disability allowances. By virtue of cl 2(2)(a) of Pt 5, one type of disability allowance is an employed person's allowance.
·     Clause 3(4) of Pt 5 of Sch 1 provides as follows:
"(4)    An employed person's allowance is payable —
(a)for such periods, falling within the period of 104 weeks beginning on the day of the motor accident, during which the injured person is wholly disabled from engaging in his or her usual employment or occupation as a consequence of the injury; and
(b)for such other periods, falling within the prescribed period, during which the injured person is, by reason of the injury, wholly disabled from engaging in any employment or occupation for which he or she would otherwise be reasonably suited by education, training, experience or ability."
·     In cl 3(4)(b), the "prescribed period" is the period of 156 weeks that follows the period of 104 weeks referred to in cl 3(4)(a). The definition of "prescribed period" is in cl 4(1).
The dispute between the parties concerns the eligibility of the respondent to receive an employed person's allowance pursuant to cl 3(4)(b) in respect of a period more than 104 weeks after the day of her motor accident.

Scope of the right to appeal

The right to appeal from a determination of the Tribunal to this Court is conferred by s 28(6) of the Act. The relevant provisions in s 28 read as follows:
"(1)    The Board is to determine —
(a)whether or not a person is to be treated as a person within a class of persons to whom scheduled benefits may be paid; and
(b)the right of a person to be paid any scheduled benefit; and
(c)the amount of any scheduled benefit to be paid to a person.
(2)   A person aggrieved —
(a)by a determination under subsection (1); or
(b)by a refusal or failure of the Board to make a payment by way of a scheduled benefit —
may refer the matter to the Tribunal.
(3)   The Board may, at any time, refer any matter to the Tribunal affecting —
(a)the right of a person to a scheduled benefit; or
(b)the amount of any scheduled benefit.
(4)   The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances.
(5)   A determination under subsection (4) binds —
(a)the Board; and
(b)any other party to the reference to the Board.
(6)     A person aggrieved by a determination made by the Tribunal under subsection (5) [sic] may appeal to the Supreme Court which may confirm, vary or rescind the determination."
Obviously the right of appeal conferred by s 28(6) relates to determinations made by the Tribunal under s 28(4), not s 28(5). It is s 28(4) that empowers the Tribunal to make determinations, whereas s 28(5) makes provision only as to the consequences of such determinations.
The Board contends that the Tribunal's determination as to its jurisdiction constituted a "determination on a matter referred to it" within the meaning of s 28(4), and that it therefore had the right to appeal from that determination pursuant to s 28(6). I disagree.
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47], "the task of statutory construction must begin with a consideration of the text itself". Section 28(2) allows an individual to "refer the matter to the Tribunal". Section 28(3) allows the Board to "refer any matter to the Tribunal". Section 28(4) uses the singular when it provides that "The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances." In their ordinary meaning, the words "such determination" must, in my view, refer to a final determination that resolves the dispute referred to the Tribunal.
It follows that, in their ordinary meaning, the words in s 28(6) "a determination made by the Tribunal under subsection (5)", must also refer only to such a final determination.
A similar question was considered by the Full Court of the Federal Court of Australia in Director-General of Social Services v Chaney (1980) 47 FLR 80. In that case the respondent had applied to the Administrative Appeals Tribunal for the review of a decision cancelling her pension. While the tribunal proceedings were pending, the President of the tribunal held that it had jurisdiction to review the decision. The Director-General purported to appeal. The relevant statute conferred a right to appeal to the Federal Court on a question of law "from any decision of the Tribunal in that proceeding". By majority (Deane and Fisher JJ, Northrop J dissenting), it was held that the appeal was incompetent.
Deane J said, at 100:
"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate … or be limited to referring only to a determination which effectively disposes of the matter in hand …".
The same can be said of the word "determination".
The meaning of the word "decision" was also considered in Commonwealth v Bank of New South Wales (1949) 79 CLR 497. At 625, Lord Porter, delivering the judgment of the Privy Council, said:
"… though it is not necessarily a word of art, there is high authority for saying that … the 'natural, obvious and prima-facie meaning of the word "decision" is decision of the suit by the Court': see Rajah Tafadduq Raful Khan v Manik Chand (1902) LR 30 Ind App 35".
Counsel for the Board referred me to the judgment of Cox CJ in Haas Investments Pty Ltd v Lowe [2003] TASSC 14. That case concerned a hearing before the Workers Compensation Tribunal, as it was then named, in which the employer had applied to reopen its case, and that application had been refused. The employer appealed to this Court. Section 63(1) of the Workers Rehabilitation and Compensation Act 1988 permitted an appeal by "any party … aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law". Cox CJ held that the tribunal proceedings had not reached the stage where the employer could be said to be a "person aggrieved". His Honour said, at [7]:
"It is not, as a general rule, in the public interest that rulings on adjectival matters, which may not affect the outcome of proceedings, should be the subject of appeals to this Court before the hearings to which they relate are concluded in the Tribunal. It would lead to great inconvenience if proceedings before a Tribunal were to be interrupted or prolonged by a succession of appeals on adverse rulings concerning the admissibility of evidence or the like. There may be some cases where such a ruling may necessitate a lengthy hearing and thereby cause a detriment sufficient to make the appellant a person aggrieved."
I accept that the question of the extent of the Tribunal's jurisdiction was not an adjectival matter. I accept that the Board was aggrieved by the decision on that point. However those facts are not relevant unless s 28(6) confers a right to appeal in relation to determinations other than final determinations, and in my view it does not do that.
Estcourt J has considered the meaning of "determination" in s 28(6) in an unpublished judgment: Re a Reference to the Motor Accidents Compensation Tribunal by Sharman (unreported, 5 December 2014). In that judgment at [14] he said:
"It seems to me that no matter what view one takes of the meaning of the word 'determination' in s 28(6), the phrase used in s 28(4) 'determination on a matter referred to it' militates against s 28(6) embracing a dispute about the breadth of the Tribunal's powers and jurisdiction arising prior to the determination of the matter referred to it."
At [20] he said:
"The words in s 28 are not 'any determination of the Tribunal in the matter', [but] 'a determination made by the Tribunal under subsection 5' (emphasis added). The word 'determination' in s 28(6) against which an appeal to this Court may be brought, thus refers back to the words in s 28(5) which are, relevantly, 'A determination under subsection 4'. Then, s 28(4) in turn refers to 'such a determination on a matter referred to' the Tribunal. The 'matter' there described is the 'matter' referred to the Tribunal under s 28(2) by the person aggrieved and that matter is the determination by the Motor Accidents Insurance Board under s 28 (1) or, a refusal or failure by the Board to make a payment by way of a scheduled benefit. The language of those provisions and the scheme of the simple one section legislative regime for the operation of the Tribunal are not capable in my view of extending a right of appeal under s 28(6) beyond decisions of the Tribunal that are final or that effectively determine the reference to it. In particular they do not provide a right of appeal against a decision of the Tribunal as to the ambit of its own jurisdiction." [Original emphasis.]
In that case the Tribunal had dismissed Mr Sharman's reference to it, but had later decided to reinstate the reference at his request. The Board purported to appeal from the order for reinstatement, but Estcourt J held that there was no right of appeal from that decision. The Board contends that that case should be distinguished because it concerned a dispute as to whether the Tribunal had the power to revoke an earlier dismissal, not a dispute as to an entitlement to the payment of a scheduled benefit. That is not a proper basis for distinguishing that decision. That is because Estcourt J held the appeal in Sharman to be incompetent on the basis that "determination" in s 28(6) means "final determination".
In my view he was plainly correct. In Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal [2016] TASFC 6, 78 MVR 135 at [2], I expressed the view that he was correct. Wood and Pearce JJ agreed with my reasons in that case.
If a right of appeal existed in relation to interlocutory "determinations" of the Tribunal, appeals from such determinations could result in the undesirable fragmentation of tribunal proceedings. Interlocutory determinations by the Tribunal can be challenged in proceedings for relief in the nature of prohibition under r 623 of the Supreme Court Rules 2000. However the Court has a discretion in such cases to refuse relief because of the undesirability of fragmenting proceedings. See, for example, BTH v BTI [2016] NSWSC 533 at [40]-[43].
Having regard to the language and context of s 28(6), that subsection must be interpreted as conferring a right of appeal only in respect of final determinations. The interpretation contended for by the Board would have the undesirable result of allowing appeals from interlocutory decisions when such appeals could often result in the inappropriate fragmentation of proceedings.
For these reasons, I consider that this appeal is incompetent, and must be dismissed.

Scope of the reference to the Tribunal

In case I am wrong in concluding that the appeal is incompetent, I will address the Board's contentions as to the scope of the reference to the Tribunal.
As I have said, the respondent received payments of a disability allowance up to 29 June 2014, and there was a dispute as to whether the Tribunal had jurisdiction in respect of the period from 30 June 2014 to 19 November 2015. The claim for the restoration of the respondent's disability allowance was made in a letter dated 16 November 2015. There is nothing in the Act or any regulations that precludes the Tribunal from determining that an allowance is payable from a date prior to the date it is claimed. There is no limit on how far a determination by the Tribunal as to the payment of an allowance can be backdated.
The Board's primary contentions as to the scope of the Tribunal's jurisdiction are based on the wording of the letter of 16 November 2015. The material part of that letter read as follows:
"I enclose copy [sic] of two Certificates, Form J Medical Certificate dated 1 June 2015, covering the period 1 June 2015 to 1 August 2015 and also 1 August 2015 to 13 October 2015. Please treat it [sic] as a claim from my client for Disability Allowance Benefits on account of the fact that she is wholly disabled."
That letter was accompanied by two medical certificates. One said that the respondent was wholly disabled, as a result of injuries sustained, from engaging in her usual employment or occupation for the period 1 June 2015 to 1 August 2015. The second said the same thing in relation to the period from 1 August 2015 to 13 October 2015.
The Board contends that the letter constituted a claim to a right to be paid an allowance only for the period covered by the two medical certificates; that the Board's determination under s 28(1) rejecting that claim related only to that period; and that the matter that the respondent was entitled to refer to the Tribunal under s 28(2) related only to that period.
I disagree. In the second sentence of the letter, quoted above, the claim for a disability allowance was not confined to any particular period. The fact that the respondent's solicitor submitted medical certificates covering a particular period does not compel the conclusion that she did not seek payments of disability allowance in respect of other periods. The assertion that she was wholly disabled compels a conclusion that she at least wanted the allowance to be paid in respect of the period after that covered by the medical certificates. In the circumstances, the solicitor's letter should be interpreted as a claim for the payment of a disability allowance that was not confined to any particular period.

Section 23(1)(a) of the Act imposes a duty on the Board to pay scheduled benefits to those who are eligible. That provision reads as follows:
"(1) The Board must pay the benefits prescribed by the regulations if a resident of this State suffers personal injury resulting directly from a motor accident and —
(a) the motor accident occurs in this State …".
There is nothing in the Act or any regulations that makes eligibility for a disability allowance contingent upon the provision of medical certificates.
The Board relies on the fact that it determined in 2014 that the respondent was not entitled to any further payments of disability allowance after 29 June 2014. It contends that, since the question of her eligibility for payments after that date was not competently referred to the Tribunal, the Tribunal cannot make a determination that is inconsistent with that determination. I disagree.
There is nothing in the Act that suggests that a determination by the Board that a person is ineligible for a particular allowance is final or irreversible. There is nothing in the Act or any regulations that imposes an onus of proof on claimants. There must be many situations in which evidence as to the extent of a person's disabilities becomes stronger as time goes on. It follows that great injustices could occur if the Board were unable to reconsider, vary or reverse its own decisions.
Section 20(a) of the Acts Interpretation Act 1931 provides:
"Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed —
(a) from time to time as occasion may require …".
By virtue of s 20(a), a statutory authority must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [3] and [21]; Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal (above) at [16]. Section 28(5) provides that a determination under s 28(4) is binding, but there is nothing in the Act to say that a determination under s 28(1) is binding. There is nothing in the relevant legislation that expressly or impliedly indicates that decisions of the Board may not later be varied or reversed by the Board, or by the Tribunal standing in the shoes of the Board.
It is common ground that the respondent became "wholly disabled from engaging in any employment or occupation for which … she would otherwise be reasonably suited by education, training, experience or ability". For the reasons stated, the Tribunal has jurisdiction to determine when she became disabled to that degree and to determine that she is entitled to the payment of an employed person's allowance in respect of any periods since 29 June 2014 when she was disabled to that degree.

Conclusion

For these reasons, the appeal is dismissed.