Secretary, Department of Communities and Justice v Nitchell

The matter before the court involved the Secretary, Department of Communities and Justice and Nitchell, who was a worker seeking compensation under the Workers Compensation Act 1987. The dispute centred on the calculation of Nitchell’s pre-injury average weekly earnings, specifically whether a period during which Nitchell received workers compensation payments for an earlier injury should be excluded from this calculation. The case was heard and determined by the relevant authority within the context of the applicable legislation and regulations.

The legal issues that the court needed to address included the interpretation of Clause 2 of Schedule 3 to the Workers Compensation Act 1987, and the applicability of Regulation 8C of the Workers Compensation Regulation 2016. The court had to decide whether this regulation permits the exclusion of a period of workers compensation payments from the calculation of pre-injury average weekly earnings. The matter required careful statutory construction, considering precedents such as Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19, Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41, and Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9.

In reaching its decision, the court carefully analysed the statutory language and the regulatory provisions, taking into account the context and purpose of the legislation. The court found that Regulation 8C of the Workers Compensation Regulation 2016 does apply to exclude the specified period of compensation payments from the calculation of Nitchell’s pre-injury average weekly earnings. The reasoning was grounded in the statutory construction principles and the relevant case law. Consequently, the court revoked the previous determinations and orders, and adjusted the relevant earning period as per the regulation.

The final orders of the court included the revocation of the Member’s Certificate of Determination dated 14 October 2022, and the further and final orders dated 24 October 2022 and 28 October 2022. The court also adjusted the respondent’s relevant earning period to be from 21 February 2022 until 17 March 2022 inclusive, in accordance with the regulation. The court granted the parties the liberty to apply if they could not agree on the calculation of the respondent’s pre-injury average weekly earnings.