Return to Work Corporation of South Australia v Agnew
[2019] SASC 152
•23 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW
[2019] SASC 152
Judgment of The Honourable Chief Justice Kourakis
23 August 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 brought by the Return to Work Corporation of South Australia (RTW) for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench).
That decision concerns a claim by the respondent, Ms Julia Agnew, brought pursuant to s 61 of the Return to Work Act 2014 (SA) (the RTW Act), for lump sum compensation, and for weekly payments pursuant to s 59 of the RTW Act, in respect of the death of her husband.
In April 2011, the respondent and her husband separated. The respondent’s husband died on 19 May 2012. The respondent did not make any claim for a lump payment under the then-operative Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA) as she did not have the requisite financial dependence. Section 61 of the RTW Act removed the financial dependence requirement, and the respondent made a claim under that section.
Held, refusing permission to appeal:
1. Clauses 45(1) and 45(2) of Schedule 9 to the RTW Act allow for an ex gratia payment where the right to compensation for fatal injuries has merged in a determination in accordance with s 45A of the WRCA. The payment is properly characterised as an ex gratia one.
2. The decision of the Full Bench is plainly correct. Permission to appeal is refused.
Return to Work Act 2014 (SA) ss 59, 61, Schedule 9 cls 29, 45, 50; Workers Rehabilitation and Compensation Act 1986 (SA) s 45A, referred to.
Agnew v Return to Work SA [2018] SAET 209, discussed.
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW
[2019] SASC 152
KOURAKIS CJ: This is an application brought by the Return to Work Corporation of South Australia for permission to appeal against 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 of the Return to Work Act 2014 (SA) (the RTW Act) for lump sum compensation, and for weekly payments pursuant to s 59 of the RTW Act, in respect of the death of her husband on 19 May 2012.
Ms Agnew was not entitled to compensation for the death of her husband under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA) 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.
The relevant transitional provisions are cl 29, cl 45 and cl 50 of Schedule 9 of the RTW Act:
29—General provision
(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
(b) an injury that is attributable to a trauma that occurred on or after the designated day (a new injury).
(2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).
(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.
(4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.
…
45—Payments on death—lump sums
(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).
…
50—Existing proceedings etc
(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 repealed Act 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).
The reasons of the Full Bench were given by Calligeros DPJ, with whom Hannon and Kelly DPJJ agreed. Calligeros DPJ summarised the application of cl 45 as follows:[1]
[30]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).
[1] Agnew v Return to Work SA [2018] SAET 209 at [30].
In short, cl 45(1) and cl 45(2) allow for an ex gratia payment when the right to compensation for fatal injury under the WRCA has merged in a determination, to either dismiss a claim or make a more limited award of compensation, in accordance with s 45A of the WRCA. It is for that reason that the payment is properly characterised as an ex gratia one. Clause 45(3) on the other hand is purely procedural, allowing an existing, but yet to be determined claim, to proceed as if it has already been made under the RTW Act, thus obviating the need for a fresh claim under that Act. So viewed, it is plain that cl 45 is ancillary to the primary transitional provision in cl 29, which is, therefore, determinative of the issue raised by this application.
The decision of the Full Bench is therefore plainly correct. Permission to appeal is refused.
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