Return to Work Corporation of South Australia v Agnew

[2019] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW

[2019] SASCFC 110

Judgment of The Full Court

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Doyle)

23 September 2019

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - ENTITLEMENTS REDEEMED OR COMMUTED TO A LUMP SUM - EFFECT OF LEGISLATIVE CHANGES

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PERSONS ENTITLED TO COMPENSATION - OTHER CASES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

Application for permission to appeal to the Full Court.

On 16 March 2016, Ms Julia Agnew brought a claim pursuant to ss 61 and 59 of the Return to Work Act 2014 (SA) (RTW Act) for lump sum compensation and weekly payments in respect of the death of her husband on 19 May 2012. On 30 June 2016, the applicant rejected the claim.

A question was put to the Full Bench of the South Australian Employment Tribunal in the following terms: Is [Ms Agnew’s] claim barred by the operation of the transitional provisions in Part 10 of Schedule 9 of the RTW Act and, in particular, by clause 45 thereof? The Full Bench answered that question in the negative.

The applicant brought its application for permission to appeal from the decision of the Full Bench to a single Judge of this Court. On 23 August 2019, Kourakis CJ refused permission.

The applicant renewed its application for permission to appeal to the Full Court. That application is the subject of the present judgment.

Held, per curium, granting permission to appeal:

1. It is not clear that clause 45(1) is confined to circumstances where a claim failed. It is arguable that the availability of a right to seek an ex gratia payment under clause 45 evinces an intention to exclude such claims being brought under clause 29(1)(a). It is therefore at least arguable that clause 45(1) applies to Ms Agnew’s circumstances.

2. A question arises as to whether the provision in the scheme of the transitional provisions relating to Ms Agnew’s claim is appropriately said to be clause 45(1) or whether it is appropriately said to be clause 29(1)(a). A grant of permission to appeal is justified.

Return to Work Act 2014 (SA) s 59, s 61, sch 9 cl 29(1)(a), sch 9 cl 45(1), sch 9 cl 50; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, discussed.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW
[2019] SASCFC 110

Full Court:      Peek, Stanley and Doyle JJ

1. THE COURT:  This is an application for permission to appeal to the Full Court from a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench). That decision concerns a claim by Ms Julia Agnew, brought pursuant to s 61 and s 59 of the Return to Work Act 2014 (SA) (the RTW Act) for a lump sum compensation and weekly payments in respect of the death of her husband on 19 May 2012.

2. Ms Agnew brought her claim on 16 March 2016.  On 30 June 2016 the applicant determined to reject the claim.

3. Ms Agnew was not entitled to compensation for the death of her husband under the Workers Rehabilitation and Compensation Act 1986 (the repealed Act) as it stood at the time of his death, because she and her husband had separated and she was not financially dependent. Section 61 of the RTW Act removed financial dependence as a condition of entitlement.

4. The Full Bench answered in the negative the following question which had been referred to it:

   Is the applicant’s claim barred by the operation of the transitional provisions in Part 10 of Schedule 9 of the RTW Act and, in particular, by clause 45 thereof?

5. The relevant transitional provisions are clause 29, clause 45 and clause 50 of Schedule 9 of the RTW Act.

6. Clause 29 provides:

   (1)Subject to the other provisions of this Part, this Act applies to and in relation to –

   (a)     an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury);  and …

   (3)     Subject to the other provisions of this Part –

   (a)     a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act;  and

   (b)     this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.

   …

7. Clause 45 provides:

   (1)The Corporation may, in relation to the death of a worker occurring on or after 1 July 2008 and before the designated day, in its absolute discretion, on the application of a person who was the spouse or domestic partner of the worker at the time of death, make an ex gratia payment (of an amount determined by the Corporation) after taking into account the amount (or additional amount) that would have been payable under section 61 of this Act had this Act been in operation before that trauma.

   (2) The Corporation may make a payment under subclause (1) even if an amount has been paid under section 45A of the repealed Act in relation to the death of the worker (including an amount equal to the prescribed sum under that section).

   (3) The Corporation may, in relation to the death of a worker that is subject to a claim for compensation under section 45A of the repealed Act that has not been determined before the designated day (including by the resolution of any dispute by proceedings under the repealed Act), deal with the claim in all respects under section 61 of this Act.

   (4) A decision of the Corporation not to make a payment under subclause (1) (or the amount of any such payment) is not reviewable under this Act (or under the repealed Act).

   …

8. Clause 50 provides:

   (1) Subject to this Part, an application or other proceedings commenced before WCT under the repealed Act before the designated day may be continued and completed (and any appeals initiated or completed) under the repealed Act (and, if relevant, after applying any provision of this Part that is relevant to the proceedings).

   (2) A right to make an application or to bring proceedings before WCT under the repealed Act in existence before the designated day and not exercised before that day will be exercised as if Part 6 of this Act were in operation before that right arose so that the relevant proceedings will be commenced before SAET rather than WCT.

   (3)Without limiting any other provision—

   (a)     the regulations may make provision for or with respect to the interaction between this Part and the in order to ensure that SAET and WCT can operate under both sets of provisions (including, if necessary, by modifying any provision of the repealed Act or section 7 of this Act so that SAET can exercise the jurisdiction conferred by subclause (2)); and

   (b)     the President of SAET may take other steps to ensure the smoothest possible transition from 1 jurisdiction to the other in connection with the operation of this clause (including by giving directions as to any procedural matter which will then have effect according to their terms).

9. The designated day is 1 July 2015.

10. The reasons of the Full Bench were given by Deputy President Judge Calligeros, with whom Hannon and Kelly DPJJ agreed.  Judge Calligeros explained his reasons for answering the question referred in the negative as follows:[1]

    Clause 45(3) allows the Corporation to apply the RTW Act to a claim made under s 45A of the repealed Act which was not determined prior to 1 July 2015. Clause 45(3) therefore has a partially retrospective operation. That result is perhaps not surprising as Schedule 9 deals with different entitlements to compensation in different ways, extinguishing some entitlements, preserving others and creating some entitlements.

    While it seems counter-intuitive that a right which was not available under the repealed Act can be claimed under the RTW Act, clause 45 of Schedule 9 is not really directed to a claim like this one. Clause 45 comprehends three types of claims: claims for the death lump sum made under the repealed Act that failed – clause 45(1); claims made under the repealed Act which succeeded but for which a greater payment can be made under the RTW Act – clause 45(2); and claims made under the repealed Act that were not determined prior to commencement of the RTW Act – clause 45(3).

    It is also relevant to note that while clause 45(3) of Schedule 9 vests a discretion in the Corporation in relation to whether to apply the RTW Act to a death claim that arose under the repealed Act, that discretion is not described as absolute nor is a right to seek review of a refusal to exercise the discretion said to be non-reviewable like a decision made under clause 45(1).

    In light of those matters, I consider that regard should be had to clause 29 of Schedule 9 of the RTW Act in deciding this matter. There is no provision in Schedule 9 or in Part 10 which prevents clause 29 from applying to Ms Agnew’s claim. Mr Agnew’s death is an existing injury under clause 29(1)(a) which provides that the RTW Act applies to existing injuries. Clause 29(3)(a) provides that the term ‘work injury’ in the RTW Act is taken to include a reference to the term ‘compensable injury’ in the repealed Act. Further, clause 29(3)(b) provides that in the absence of a transitional provision which provides otherwise, the RTW Act applies to compensable injuries under the repealed Act as if the RTW Act had been in operation when the compensable injury occurred.

    [Footnote omitted.]

    [1]    Agnew v Return to Work SA [2018] SAET 209 at [29]-[32].

11. There is some tension between the terms of clause 29(1)(a) and clause 45(3) on the one hand and clause 45(1) on the other hand.

12. It appears to us that it is at least arguable that, contrary to the view taken by the Full Bench, clause 45(1) applies to Ms Agnew’s circumstances. In particular, it is not clear to us that the operation of that sub-clause is confined to circumstances where a claim has failed. If that is so, it is arguable that the availability of a right to seek an ex gratia payment under clause 45 evinces an intention to exclude such claims being brought under clause 29(1)(a).

13. As the High Court makes clear in Project Blue Sky Inc v Australian Broadcasting Authority:[2]

    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

    [Footnotes omitted.]

    [2] [1998] HCA 28 at [70], (1998) 194 CLR 355 at 381.

14. We consider that it is at least arguable that the application of this principle to the constructional choice in this matter puts in issue whether the predominant provision in the scheme of the transitional provisions relating to Ms Agnew’s claim is clause 45(1) or clause 29(1)(a).

15. The answer to this question concerns an entitlement to a substantial sum of compensation.  There may be other claimants in a similar position to Ms Agnew.  In all the circumstances, we consider that a grant of permission to appeal is justified.