North Broken Hill Limited, ZC Mines Pty Limited & Pasminco Australia Limited T/as Pasminco Metals-Sulphide Corporation Limited v Vockins

[2000] NSWCA 210

NEW SOUTH WALES COURT OF APPEAL

CITATION:     North Broken Hill Limited, ZC Mines Pty Limited & Pasminco Australia Limited t/as Pasminco Metals-Sulphide Corporation Limited v Vockins [2000]  NSWCA 210

FILE NUMBER(S):
40950/99

HEARING DATE(S):           22 June 2000

JUDGMENT DATE:            11/08/2000

PARTIES:
North Broken Hill Limited,  ZC Mines Pty Limited & Pasminco Australia Limited t/as Pasminco Metals-Sulphide Corporation Limited) v Robert Reginald Vockins

JUDGMENT OF:      Priestley JA Stein JA Clarke AJA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):        CC 18704/97

LOWER COURT JUDICIAL OFFICER:     Bishop J

COUNSEL:
Appellant - J.D. Hislop QC / P.M. O'Rourke
Respondent - B. Ferrari

SOLICITORS:
Appellant - Bartier Perry
Respondent - Buckworth Ready & Chalker

CATCHWORDS:
Workers Compensation Act
Interpretation and application of s 52A and s 54
meaning of "discontinuance of payments"

LEGISLATION CITED:
Workers Compensation Act

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40950/99
  CC     18704/97

PRIESTLEY JA
  STEIN JA
  CLARKE AJA

Friday, 11 August 2000

NORTH BROKEN HILL LIMITED, ZC MINES PTY LIMITED & PASMINCO AUSTRALIA LIMITED t/as PASMINCO METALS-SULPHIDE CORPORATION LIMITED   v   VOCKINS

WORKERS COMPENSATION ACT - interpretation and application of s 52A and s 54 - meaning of “discontinuance of payments”.

The employer contended that notice of intention to discontinue payment of compensation could be given although no payment of compensation had yet been made.

Held: Bishop J had been right in holding that no notice of intention to discontinue payment could be validly given until payments had in fact been made.

ORDERS

Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40950/99
  CC     18704/97

PRIESTLEY JA
  STEIN JA
  CLARKE AJA

Friday, 11 August 2000

NORTH BROKEN HILL LIMITED, ZC MINES PTY LIMITED & PASMINCO AUSTRALIA LIMITED t/as PASMINCO METALS-SULPHIDE CORPORATION LIMITED   v   VOCKINS

1. PRIESTLEY JA:  I agree with Clarke AJA.

2. STEIN JA: I agree with Clarke AJA.

3. CLARKE AJA: Robert Reginald Vockins (the worker) sustained injuries in the employment of one of the appellants on the 2nd of July 1985 and by the general nature and conditions of his employment as a diamond driller from 1983 until the 29th of November 1996 when he retired voluntarily.  There was a question as to which of the appellants employed him at relevant times but that question does not arise in this appeal and I will refer to the appellants as the employer.

4. On the 16th of October 1997 he filed an application for determination in the Compensation Court in which he sought weekly payments and lump sums under ss 66 and 67. The employer raised a number of defences including a defence under s 52A of the Workers Compensation Act as amended in 1998. The defence involved the assertion that s 52A(8) applied because the worker was not suitably employed and was not seeking suitable employment. The same claim was put in alternative ways but it is sufficient for present purposes to observe that the employer was seeking to rely on s52A as a defence to the claim.

5. On 10 November 1999 his Honour found in favour of the worker to the extent that he found that the accumulated effect of his injuries led to his partial incapacity for work on the open labour market. His Honour also found against the employer on the s 52A defences and made an award in favour of the worker upon the basis of his partial incapacity . No appeal has been brought against the findings of his Honour in relation to any of the issues litigated other than the issue whether s 52A provided a defence to the employer.

6. In the appellant’s submission it could not be liable to pay to the worker compensation beyond the period of a 104 weeks in respect of the worker’s partial incapacity for work.  Accordingly upon his Honour’s findings that the worker was entitled to compensation in respect of partial incapacity from the 29th of November 1996 and upon the assumption that his Honour was of opinion that the worker had not been seeking suitable alternative employment, his Honour was not entitled to make an award in respect of any period after 29th of November 1998. 

7. Two reasons were given by his Honour for rejecting the employer’s submission.  They were (a) no preliminary notice had been given as required by cl 14 of the Act.  In this respect the judge relied upon the authority of his own earlier decision in Royal Society of Welfare v Bowers (1999) 18 NSWLR CCR 732. and (b) that the current s 52A could not operate unless at the time it was sought to be applied compensation payments had in fact been made and were still being made.

8. In the light of the conclusion which I have reached it is necessary only to consider the second of the two assigned reasons.

9. Section 52A, so far as is relevant, reads:

   “1.       Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:

   (a)      …

   (b)      …

   (c)       …

   2.        The relevant time for the purposes of this section is the time at which the notice under s 54 of intention to discontinue payment of compensation pursuant to this section is given.  The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.

   3.        A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.

   4.        The notice under s 54 of intention to discontinue payment of compensation pursuant to this section must be given.  The notice can be given up to six weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.

   5.        …

   6.        …

   7.        …

   8.        If:

   (a)      …

   (b)      proceedings before the Compensation Court involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of 104 week period,
   The notice under s 54 may, (but need not) be given before payments are discontinued.  If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.”

10. In rejecting the defence his Honour pointed out that s 52A deals with the discontinuance of payments and, prima facie at least, cannot have application in a case where no payments have been made. In support of this view he referred to the definition of relevant time in s 52A(2) which is fixed by reference to the giving of a notice under s 54. This section is concerned with the giving of a notice that the employer intends to discontinue payment of compensation in a case in which a worker has received weekly payments of compensation for a continuous period of at least 12 weeks.

11. In its submissions the employer pointed out that it had accepted before Judge Bishop that it was liable to pay compensation for the first 104 weeks. Thereafter it was not liable to pay any further compensation. This submission flowed, according to counsel, from the clear words of s 52A that weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work.

12. The employer argued that the purpose of s 52 A was transparent - it was, in circumstances where a claimant was seeking compensation payments, but not seeking suitable employment, to restrict the compensation payable to two years and reliance was placed upon the explanatory notes to the amending legislation. In support of this submission much emphasis was placed upon the apparent ease with which a worker could defeat the obvious purpose of the section by delaying the initiation of court proceedings. For instance where a worker retired in 1996 but did not bring proceedings until the year 2005 he could defeat the limitation under s 52A unless the employer’s construction was correct. The only way to overcome the injustice of such a situation was to give to s 52A a construction which enabled an employer unilaterally to terminate its liability to pay workers’ compensation in those circumstances notwithstanding that it had made no payments of compensation nor given notice under s 54.

13. It may be, as the employer submits, that the effect of a worker delaying the initiation of proceedings would be to secure compensation for a greater period than two years. If there was ambiguity in s 52A this consideration may be a persuasive factor leading to the adoption of the construction for which the employer argues.

14. I am, however, unable to agree that there is the relevant ambiguity. It seems to me that the only sensible interpretation of s 52A is that it applies to enable an employer to give a notice of discontinuance under s 54 and to discontinue payments so that its liability is confined to the period of 104 weeks or two years. It is implicit in that statement that there must be payments in respect of which the employer gives notice of discontinuance and which themselves must be discontinued. I reach that conclusion from a consideration of those parts of s 52A which I have set out and cl 15 of Schedule 6 Part 4. The whole thrust of the section is directed at the discontinuance of payments, implicit in which is the fact that payments have been made.

15. The definition of relevant time reinforces that conclusion. That time is defined to be the time at which the notice under s 54 of intention to discontinue payment of compensation is given. Leaving aside the exception in s 52A(8)(b) I do not understand how it could be said that the relevant time can be fixed in the absence of the notice under s 54. If reference is then made to the exceptional case it will be seen that in that instance the relevant time is the time at which payments are discontinued. As a matter of plain English there must an activity which is discontinued. In this case that activity is the weekly payment of compensation. If no payments have been made there is nothing to discontinue. In these circumstances I am unable to accept that the employer’s submission could be accepted without doing considerable violence to the words of the section.

16. In my opinion the appeal should be dismissed with costs.

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LAST UPDATED:    22/08/2000