R v Southee; Ex Parte

[1991] TASSC 71

Serial No 52/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Southee; ex parte Motor Accidents Insurance Board [1991] TASSC 71; A52/1991

PARTIES:  R
  v
  SOUTHEE, Richard Carter
  MOTOR ACCIDENTS INSURANCE BOARD; ex parte

FILE NO/S:  M353/1990
DELIVERED ON:  5 July 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A52/1991
Number of paragraphs:  13

Serial No 52/1991
List "A"
File No M353/1990

THE QUEEN v RICHARD CARTER SOUTHEE;
Ex Parte MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  ZEEMAN J

5 July 1991

1. This is the return of an order nisi made on 13 December 1990 calling upon the respondent, in his capacity as chairman of the Motor Accidents Compensation Tribunal, to show cause why a Writ of Certiorari should not issue for the purpose of having brought before the court to be examined as to its correctness, a determination made by the Tribunal, constituted by the respondent, on 25 July 1990, upon a reference to it by Philomena Maureen Simpson ("the claimant") on the ground that that part of the Tribunal's determination, which ordered that the prosecutor could not terminate the payment of a disability allowance to the claimant unless a medical certificate, as defined in the determination, was furnished to the prosecutor or without further determination of the Tribunal, was wrong in law, in excess of the jurisdiction of the Tribunal and manifestly unreasonable.

1. The evidence discloses that on about 11 March 1990 the prosecutor received an application for the payment of a disability allowance from the claimant. In that application she stated that she had been injured in a motor vehicle accident which occurred on 27 February 1987 on Piper's River Road when a Tasmanian registered vehicle being driven by her came into collision with another vehicle. Those facts established that the claimant suffered bodily injury as a result of an accident arising out of the use in the State of a motor vehicle registered in the State so that there became payable by the prosecutor prescribed benefits pursuant to the provisions of s23(1) of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"). The relevant benefits are prescribed by reg12A of the Motor Accidents (Liabilities and Compensation) Regulations 1980, and in particular Part V of Schedule 2 to those Regulations. The application disclosed that the claimant was employed as a teacher at a Launceston private school. Such employment qualified her for the payment of a disability allowance by way of an employed person's allowance under Part V by reason of para2(1)(a) of that Part. The period during which such an allowance is payable is prescribed by para2(3) of that Part, which is in the following terms:

"(3)An employed person's allowance is payable –

(a)for such periods, falling within the period of 104 weeks beginning on the day of the accident, during which the injured person is wholly disabled from engaging in his 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 would otherwise be reasonably suited by education, training, experience, or ability."

1. By virtue of para2(8) of Part V, the prescribed period is a period of 156 weeks beginning at the expiration of the period of 104 weeks referred to in para2(3)(a).

1. The prosecutor apparently accepted that Mrs. Simpson was entitled to an employed person's allowance and made appropriate payments for some period. The application for benefits suggests that it was received by the prosecutor on 11 March 1987. The reference in an affidavit to it having been received on 11 March 1989 is an obvious error. Benefits continued to be paid until 27 February 1989. That day was the second anniversary of the accident so that the relevant period of 104 weeks had elapsed. The test to be satisfied before there is an entitlement to payment of an employed person's allowance differs depending upon whether the allowance is to be paid for a period which falls within the period of 104 weeks beginning on the day of the accident or whether it is to be paid for a period which falls within the next ensuing period of 156 weeks. As to the latter, it is payable if an injured person is wholly disabled from engaging in his usual employment or occupation as a consequence of the injury. As to the former, the test is more stringent, as the allowance is only payable if the injured person is wholly disabled from engaging in any employment or occupation for which he would otherwise be reasonably suited by education, training, experience or ability.

1. The claimant appealed to the Tribunal against the prosecutor's decision not to make payments beyond the period of 104 weeks. The Tribunal, by consent, ordered that the allowance be reinstated as from 16 February 1989 (sic). Nothing turns on that determination, as it is not challenged in any way. On 18 April 1990, the prosecutor once again terminated payment of the allowance. By a reference dated 26 April 1990, the claimant referred the refusal of the prosecutor to make "a payment by way of Scheduled Benefit," said to have been notified to her on 18 April 1990, apparently pursuant to s28(3) of the Act.

1. The reference duly came before the Tribunal (constituted by the respondent) and it made a determination in the following terms:

"THAT the respondent re–instate the applicant's disability allowance from 18th April 1990 to the present date and thereafter that the respondent continue payment of the disability allowance subject to medical certification which term means the certificate of a medical practitioner that the applicant is incapacitated from employment or occupation as a result of the injury sustained by her as a result of the motor vehicle accident on 27th February 1987.

FURTHER ORDER that the respondent not terminate the payment of disability allowance unless such certification has not been furnished to it or without the further determination of this Tribunal.

FURTHER ORDER that the respondent pay the applicant's costs and expenses of and incidental to this Reference."

1. The respondent only seeks to challenge the second of the orders set forth in that determination, although it will be seen from my reasons in dealing with the prosecutor's submissions as to that order that at least some part of the first order may have been beyond power. Whilst the order challenged is expressed in negative terms, in reality it amounts to a mandatory order requiring the prosecutor to continue payment of a disability allowance to the claimant until one or other of the following events occurs:

(a)that there is not furnished to the prosecutor the certificate of a medical practitioner certifying that as to a period for which the allowance is sought to be paid, the claimant is incapacitated from employment or occupation as a result of the injury sustained by her as the result of a motor vehicle accident on 27 February 1987;

(b)a further determination of the Tribunal.

1. The claimant's reference to the Tribunal asserted that she was a person "aggrieved by the refusal of the Board to make a payment by way of scheduled benefit". That is a direct reliance on the first limb of s28(3)(b) of the Act, and that refusal was the "matter" which was referred to the Tribunal. It was on that "matter" that the Tribunal was to make a determination pursuant to s28(5).

1. The Act confers no discretion upon the prosecutor as to the payment of disability allowances. Once an applicant for such benefits comes within the provisions of s23(1) such applicant is entitled to such benefits applicable to him (if any) as are prescribed by the Regulations. The Regulations lay down objective requirements which give rise to entitlements to allowances of various types. For present purposes, as the claimant satisfied the requirements of para2(1)(a) of Part V, she was entitled to be paid an employed person's allowance for any relevant period during which she was wholly disabled by reason of the relevant injury from engaging in employment or occupation of the type referred to in the relevant part of para2(3). She was not entitled to be paid such allowance in respect of any other period. There is no legal justification or authority for the prosecutor to make payment of an allowance in respect of such other period. The prosecutor refused to pay the allowance for any period from 18 April 1990. It may be assumed that its refusal was by reason of it not being satisfied that the claimant was then, by reason of the relevant injury, wholly disabled from engaging in any employment or occupation for which she would otherwise have been reasonably suited by education, training, experience or ability. This identification of the basis upon it may be assumed that the prosecutor refused to pay the allowance necessarily identifies the question which fell to be determined by the Tribunal. It was for the Tribunal to determine anew whether the claimant was entitled (in the sense that she satisfied the statutory and regulatory requirements) to be paid an employed person's allowance as at 18 April 1990. It may be that the Tribunal was also empowered to determine the claimant's entitlement to be paid an allowance in respect of the whole of the period from 18 April 1990 until the date of the hearing before it. I do not need to consider the existence of such a power in present circumstances. The first order made by the Tribunal assumes the existence of such a power but that order is not sought to be challenged.

1. However, the Tribunal went further and purported to declare an on–going right on the part of the claimant to receive an employed person's allowance indefinitely until the happening of one or other of two defined future events. The Tribunal had no authority to make such an order. The existence of such a right was not a "matter" referred to the Tribunal. Compliance by the prosecutor with this order could result in it making payments to the claimant when the Regulations do not operate so as to confer an entitlement. Before making any particular payment by way of a disability allowance to the claimant, she must be a person who is entitled to receive such an allowance. She is not entitled to an allowance because a medical practitioner has certified that she is incapacitated from employment or occupation as a result of the injury sustained by her as a result of the motor vehicle accident on 27 February 1987. Such a certificate may be considered by the Board to have evidentiary value in considering whether, at any particular time, the claimant is disabled as referred to in para2(3)(b) of Part V, although I note that the form of certificate referred to in the orders falls short of being one certifying to all matters referred to in that paragraph. An order that the payments not be terminated without further determination of the Tribunal would appear to require the prosecutor to effect a reference under s28(4) of the Act before it may terminate payment of the allowance. That provision is permissive in terms and it must remain entirely a matter for the discretion of the prosecutor as to whether or not it makes such a reference in any particular case. It would not be open to the Tribunal to make a further determination on the reference in which the subject order was made, that reference having been finally determined. If at some time in the future the claimant is not disabled to the extent referred to in para2(3)(b) the prosecutor need not, and indeed may not, pay an employed person's allowance to her in respect of a period when she is not so disabled. It is beyond the power of the Tribunal prospectively to determine her entitlement to the payment of an allowance.

1. The order sought to be challenged appears to overlook the provisions of para2(8) of Part V. Whilst it would be within the power of the prosecutor to refer the claimant's entitlement to an allowance to the Tribunal under s28(4) of the Act, it ought not to be required to do so. It may act in accordance with its plain statutory duties without first making a reference to the Tribunal. The provisions are quite plain. Once 260 weeks have elapsed from the relevant accident, the claimant has no further entitlement to an employed person's allowance. It would be unlawful for the prosecutor to continue making such a payment once that period has elapsed and the Tribunal may not require it to do so.

1. There is a more fundamental reason why the order complained of cannot stand. It is in the nature of an injunction. The Tribunal has no power to grant any form of injunction. No such power is conferred by the Act and the existence of such a power can not be inferred from any provision of the Act. The order made is analogous to the order unsuccessfully sought in Routledge v A E Jack Nominees Pty Ltd [1982] Tas R 81. In that case, it was held that the Supreme Court, when exercising jurisdiction under the now repealed Workers' Compensation Act 1927 (which provided that the practice and procedure in relation to proceedings under that Act should be the same as nearly as may be as is provided under the Local Courts Act 1896), had no power to grant an injunction, as no power to grant injunctions was conferred by the Local Courts Act. A fortiori the respondent had no jurisdiction to grant an injunction.

1. The order nisi should be made absolute. The orders I propose is that a Writ of Certiorari issue directed to the Motor Accidents Compensation Tribunal for the purpose of having brought before the Court to be examined for its correctness the determination referred to in the order nisi made on 23 November 1990 and that that determination be quashed on return without further order. Before actually making those orders I will hear counsel as to the proposed form of the orders.