Secretary, Department of Communities and Justice v Stewart

In the matter of Secretary, Department of Communities and Justice v Stewart, the dispute arose from the calculation of pre-injury average weekly earnings under Clause 2 of Schedule 3 to the Workers Compensation Act 1987. The issue before the court was whether the relevant earning period should exclude the time during which workers compensation payments were received in respect of an earlier injury, in accordance with regulations 8C, 8D, or 8E of the Workers Compensation Regulation 2016. This case was heard in the court of appeal.

The central legal issue was the interpretation of the relevant statutory provisions and regulations, specifically whether the period during which compensation payments were received for an earlier injury should be excluded from the calculation of the pre-injury average weekly earnings. The court applied principles of statutory construction as elucidated in Project Blue Sky Inc v Australian Broadcasting Authority, Taylor v The Owners – Strata Plan No 11564, and Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, among others. It was necessary to determine the applicability of regulations 8C, 8D, or 8E in the given circumstances.

The court conducted a detailed analysis of the statutory language and legislative context, concluding that regulation 8E of the Workers Compensation Regulation 2016 was the appropriate provision to apply. Regulation 8E explicitly excludes the period of compensation payments for an earlier injury from the relevant earning period. The court found this regulation to be consistent with the statutory purpose and the legislative framework. Therefore, the relevant earning period for the calculation of the pre-injury average weekly earnings was adjusted as per regulation 8E.

The court confirmed Order Number 1 of the Certificate of Determination dated 28 June 2022 and amended Order Number 2 to reflect the adjusted relevant earning period from 1 February 2020 to 19 November 2020. This adjustment was made in accordance with regulation 8E of the Workers Compensation Regulation 2016.