Swetnam Brothers Pty Ltd v Derek Douglas Grundy
[1998] TASSC 9
•19 February 1998
9/1998
PARTIES: SWETNAM BROTHERS PTY LTD
v
GRUNDY, Derek Douglas
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 25/1997
DELIVERED: 19 February 1998
HEARING DATE/S: 29 August 1997
JUDGMENT OF: Underwood, Crawford and Slicer JJ
CATCHWORDS:
Workers Compensation - Miscellaneous matters - Other matters - Workers Rehabilitation and Compensation Reform Act 1995 - Transitional provisions - Meaning of "claim for compensation" and "finally determined" - Presumption against retrospective effect on substantive rights absent clear words to the contrary - Whether procedural changes apply to claims arising out of injury suffered prior to amending legislation.
Maxwell v Murphy (1957) 96 CLR 261; Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647, applied.
Jones v Jones (1996) 6 Tas R 173, considered.
Workers Rehabilitation and Compensation Reform Act 1995 (Tas), s92, Sch2, cl 19.
Aust Dig Workers' Compensation [278]
Workers Compensation - Assessment and amount of compensation - Cessation of payments - Procedure - Form of notice of intention to terminate - Notice given in form prescribed at the time of the injury but not in form prescribed at the time notice is given - Whether sufficient - Whether termination and reference to Tribunal a "claim for compensation".
Jones v Jones (1966) 6 Tas R 173, considered.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss3(1), 86(3A)
Aust Dig Workers Compensation [237]
REPRESENTATION:
Counsel:
Appellant: G C Wood
Respondent: R Grueber
Solicitors:
Appellant: Wallace Wilkinson & Webster
Respondent: Jennings Elliott
Court Computer Code:
Judgment ID Number: 9/1998
Number of pages: 14
Serial No 9/1998
File No FCA 25/1997
SWETNAM BROTHERS PTY LTD v DEREK DOUGLAS GRUNDY
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
SLICER J
19 February 1998
Order of the Court
Appeal dismissed.
Serial No 9/1998
File No FCA 25/1997
SWETNAM BROTHERS PTY LTD v DEREK DOUGLAS GRUNDY
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
19 February 1998
The Issue
The Workers Rehabilitation and Compensation Reform Act 1995 ("the Reform Act") commenced operation (except for s25) on 16 August 1995. See Statutory Rule 90/1995. It made far reaching changes to the Workers Rehabilitation and Compensation Act 1988 ("the Principal Act"). The Reform Act, s92 provides that "Schedule 2 has effect". Schedule 2, cl 19 provides:
"19 — Except as provided in section 69a of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day."
The issue on this appeal concerns the true meaning of cl 19 and the extent of its operation.
Some Changes to the Principal Act
The Reform Act effected the following principal changes to the Principal Act.
_ Abolished the office of Workers Compensation Commissioner and the Workers Compensation Division of the Court of Requests.
_ Created the Workers Compensation Tribunal.
_ Abolished the Workers Compensation Board and created the Workplace Safety Board.
_ Introduced a conciliation process to facilitate settlement of disputed claims for compensation.
_ Conferred a power to make an "interim determination, ruling or determination in respect of a claim for compensation".
_ Inserted a curious onus of proof provision into the Principal Act, s49 which appears to govern all proceedings before the Tribunal. I suspect that this might become a fruitful source of litigation in the future.
_ Imposed limitations on the extent of an employer's liability to pay compensation in the case of an injury being a disease (including (inter alia) stress) and in the case of an injury sustained on a journey to or from work..
_ Limited the extent of an employer's liability in the case of disease by restricting the meaning previously given to the expression "to which his employment contributed to a substantial degree".
_ Altered the philosophy underpinning the making of orders for costs of proceedings before the Tribunal.
_ Altered the amount of compensation payable to part time workers (see Scott v Sun Alliance Insurance Australia Ltd & Anor (1993) 178 CLR 1).
_ Reduced the amount of weekly payments by specified percentages.
_ Altered some entitlements to lump sump payments.
_ Removed the problems that had existed with respect to the relationship between industrial deafness and incapacity for work.
_ Restricted valid medical certificates to those made by medical practitioners accredited by the Workplace Safety Board.
Thus, the Reform Act effected major changes to both the substantive law and the procedural law governing workers compensation.
In substance, Sch2 vests in the Workplace Safety Board all the liabilities and rights which were vested in the Workers Compensation Board before the Reform Act came into operation. It also deems all proceedings pending at the date the Reform Act came into operation to be proceedings before, against or from the Tribunal instead of the Workers Compensation Commissioner. In addition, it enacted by cl 18:
"18 — A worker, who before 4 June 1995 received, or was in receipt of, a weekly payment in accordance with the decision of the High Court of Australia in Scott v Sun Alliance Insurance Australia Limited & Anor (1993) 178 CLR 1, is, on and after the commencement day, entitled to have received or to continue to receive that payment as if section 69A of the Workers Rehabilitation and Compensation Act 1988 had not been enacted."
As amended by the Reform Act, s69A defeats the effect of the High Court decision in Scott v Sun Alliance (supra) concerning the amount of weekly payments payable to a part time worker and has retrospective effect. However, Sch2, cl 18 exempts from that retrospectivity those workers who had received or were in receipt of weekly payments calculated in accordance with the High Court decision before 4 June 1995. It is not clear to me why that date was selected. According to the Hansard report of proceedings in the House of Assembly, 4 June 1995 was sixteen days before the Reform Act was read for the first time.
The Reform Act, Sch2, cl 19 is a transitional provision. It is expressed to be "except as provided in s69A". I think a better expression might have been "subject to s69A" for the clear intention of Sch2, cl 19 is to govern all transitional claims, except those that fall within the retrospective provisions of the Principal Act, s69A. Clause 19 describes those transitional claims as "all claims for compensation" that:
are with respect to an injury which occurred before 16 August 1995; and
which have not been finally determined before that day.
Those claims are to be "continued and determined under the [Principal Act] as in force immediately before [16 August 1995]".
What then is a claim for compensation within the meaning of the Reform Act, Sch2, cl 19? It is to be noted at the outset that cl 19 is not an amendment to the Principal Act and accordingly, the definition of a claim for compensation in the Principal Act, s3(1), is not automatically incorporated into the Reform Act, Sch2. Did Parliament intend the expression "claim for compensation" in the Reform Act, Sch2, cl 19, to bear the same meaning as that given it by the Principal Act, s3(1), viz:
"... unless the contrary intention appears —
'claim for compensation' means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim;"
The Act does not define "compensation" but that word clearly contemplates all the statutory benefits payable to or to the use of a worker who is able to establish the appropriate criteria governing entitlement to the receipt of compensation. The Principal Act, s25 enacts the circumstances in which an employer incurs "liability to pay compensation in accordance with this Act". Thus, "compensation" in the statutory expression "claim for compensation" as enacted in the Principal Act, encompasses weekly payments, lump sum payments, medical expenses and the like.
At the time the Reform Act was enacted, this Court had determined that the expression "claim for compensation" as enacted in the Principal Act, meant different things according to the context in which it was enacted. In Chorley v Hazell Pty Ltd A17/1993 Zeeman J said at 2:
"The starting point in a consideration of the questions asked must be the definition of 'claim for compensation' appearing in the Act, s3(1). That expression is defined as meaning, unless the contrary intention appears, 'a claim for compensation under [the] Act and [including] any matter or question arising in connection with or incidental to such a claim.' The actual meaning of that expression as it appears in various sections of the Act depends upon the context. Section 32 provides for the making of 'a claim for compensation' as a pre-condition for an entitlement to be paid compensation at all. Such a claim for compensation must conform to the requirements prescribed by s34(1). The reference in s32 is to be taken as being a reference to a claim for compensation under the Act and not to 'any matter or question arising in connection with or incidental to such a claim'. The former s81(1) when it spoke of the receipt of 'a claim for compensation' referred to the claim required by s32 as otherwise the reference to its receipt would be a nonsense. On the other hand the extended definition contained in s3(1) ought to be applied to the reference to 'a claim for compensation' appearing in s42(1) as no contrary intention appears."
In Jones v Jones (1996) 6 Tas R 273, Zeeman J adopted his reasoning in Hazell. Jones was a case where the employer purported to give notice of termination of weekly payments pursuant to the Principal Act, s86. Zeeman J said at 281:
"So far as is disclosed by the material before me, there have been two discrete claims for compensation within the statutory definition which relate to the compensable injury suffered by the appellant. The first was the claim pursuant to the Act, s34(1) whereby the appellant asserted incapacity giving rise to an entitlement that a weekly payment commence. The entitlement to the worker to the commencement of such a weekly payment could have been challenged by the respondents under the Act, s81a or they could, as they did in the present case, have accepted the obligation to make the weekly payment by commencing to make it. This claim for compensation was finally determined within the meaning of par19 upon the respondents commencing to make the weekly payment without having proceeded under s81a (see Freemasons Homes of Southern Tasmania v Greenwood (1995) 5 Tas R 445). The second claim for compensation is the matter encompassed by the service of the notice of intention to terminate and the reference of that matter by the appellant to the Tribunal."
It is quite common for claims for different kinds of compensation to be made at different times. For example, the initial claim is made for weekly payments and later, a claim is made for hospital expenses and much later, a claim is made for a lump sum. Having regard to the changes that the Reform Act made to the substantive law, it is unlikely that the Parliament intended that the substantive law governing entitlements to one injury depended upon when a claim for compensation happened to be made. If this was the intention, substantial injustice could result in some cases. The Reform Act not only altered the rate of weekly payments, but also, in effect, abolished as compensable, quite a large number of injuries that were compensable prior to that Act coming into operation. It is unlikely that Parliament intended to affect the rights of persons who were injured before the Reform Act commenced. If, as is well settled law in this State, a claim for compensation includes any matter arising in connection with that application, an application under the Principal Act, s81A(5) brought by an employer to avoid further liability to pay compensation is a claim for compensation. If such an application is brought in the case of an injury that was compensable before the Reform Act but is not thereafter, it is unlikely that Parliament intended that the worker would be deprived of rights that he or she had before the Reform Act came into operation simply because a claim for compensation was made after that time.
I have had the advantage of reading what my brother Crawford J has written with respect to the common law principle that absent a clear statement to the contrary, an Act will be assumed not to have retrospective operation with regard to substantive rights and liabilities, and I entirely agree with him. That the Tasmanian Parliament did not intend the Reform Act to affect substantive rights and liabilities is evidenced by the relationship of cl 19 to cl 18, and reference to the latter in the opening words of the former. It seems to me that by cl 19 the Parliament said that except in the case of part time workers who were not in receipt of weekly payments before 4 June 1995, other entitlements to compensation in respect of injuries that occurred before the commencement of the Reform Act will continue as if the Reform Act had not been enacted. This interpretation is consistent with principle and the language of the Act, once it is accepted that the reference in cl 19 to "all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day", is not necessarily a reference only to claims made before the commencement day. As Crawford J points out, the clause does not say that and there is no warrant for reading those words into the section. Clause 19 provides that all claims for compensation and any matter or question arising in connection with or incidental to such claim with respect to an injury which occurred before the commencement of the Reform Act, shall be continued and determined as if the Reform Act had not been enacted. I accept that the reference in cl 19 to continuation of claims does not sit happily with the construction that Crawford J and I have put on that clause, but it is inconceivable that the Parliament meant, by the use of that word, that a worker's substantive acquired rights could be removed by the simple expedient of the employer making a claim for compensation to the Tribunal and insisting that, because it was a fresh claim for compensation and not a continuation of an existing claim, prior vested rights were lost.
Once the above interpretation is accepted, it is clear that cl 19 is not concerned with procedural matters. Clause 19 only concerns substantive law and, as Crawford J explains, the common law principle that absent clear words to the contrary, an Act is assumed not to have retrospective operation to affect substantive rights, does not apply to statutory changes to the procedural law.
The Facts
The following is a sufficient statement of the facts.
On 20 April 1994, the respondent suffered an injury arising out of and in the course of his employment and made a claim for compensation.
The claim was not disputed in accordance with the Act, s81A and weekly compensation was paid.
By letter dated 24 October 1995, the appellant gave notice of intention to terminate the payment of weekly payments. The appellant relied upon the Act, s86(1)(c) as authority for giving this notice and the medical certificate attached to that notice.
On 28 November 1995, the respondent referred the matter to the Workers Compensation Tribunal pursuant to the Act, s86(4).
In the Tribunal, the solicitor for the respondent raised a preliminary point that the notice of termination did not comply with the statutory prescription of a valid notice in that it did not comply with s86(3A) which was inserted into the Act by the Reform Act, s60(d).
The Tribunal applied Jones v Jones (supra) and held that there had been non-compliance with the statutory provisions and ordered that "the employer reinstate weekly payments from the date of termination of such payments ...".
From that order there was an appeal to this Court.
That appeal was dismissed and this appeal is brought from that order of dismissal.
The Relevant Statutory Provisions
The Principal Act, s86(3) provides:
"(3) An employer who, for the reasons specified in subsection (1)(c), (d) or (e), intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker ¾
(a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and
(b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1)(c), a copy of that certificate."
By virtue of the Reform Act a new subsection (3A) was inserted as follows:
"(3a) A notice referred to in subsection (3)(a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the tribunal for determination."
Conclusion
Compliance with the Principal Act, s86(3A) is plainly a matter of procedure and therefore compliance with that subsection was required. The Tribunal was correct in so holding.
I would dismiss the appeal.
CRAWFORD J
19 February 1998
On 20 April 1994 the respondent sustained an injury to his lower back during the course of his employment by the appellant as a machinery operator. He claimed weekly compensation under the Workers Compensation Act 1988. The appellant did not dispute his claim. Accordingly, weekly compensation payments commenced to be paid and continued to be paid at the time of the enactment of the Workers Rehabilitation and Compensation Reform Act 1995 ("the Reform Act"). That Act received the Royal Assent on 24 July 1995 and, pursuant to s2, all of its provisions, with the exception of s25, commenced to operate on 16 August 1995 (see Statutory Rule 90/1995).
By letter dated 24 October 1995, the appellant gave notice to the respondent that pursuant to s86(1)(c) it intended to terminate the payment of weekly compensation at the expiration of ten days from the date upon which such notice was served upon him. Section 86(1)(c) was slightly amended by the Reform Act but, before and after that Act, it authorised an employer to terminate payments of weekly compensation where a medical practitioner who had examined the worker had certified that the worker had wholly recovered or substantially recovered, from the effects of the injury in respect of which the weekly compensation was being paid or that the worker's incapacity was no longer due, wholly or substantially, to that injury. Subsection(3) was unaffected by the Reform Act. It was apparently complied with by the appellant in this case. It required by par(a) that the worker be served with a notice of the employer's intention to terminate or reduce the weekly payment, at the expiration of a period of ten days from the day on which the notice was served on the worker, and it required by par(b) that there also be served on the worker a copy of the medical practitioner's certificate. A new subs(3A) was inserted into s86 by the Reform Act, s60, and it was in these terms:
"(3A) A notice referred to in subsection (3) (a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination."
If subs(3A) applied to the facts and circumstances of this case, the appellant did not comply with its requirements, for its notice did not contain a statement informing the respondent of his right to refer the termination of the weekly payments to the Workers Rehabilitation and Compensation Tribunal.
The respondent wished to dispute the termination of his weekly payments and, pursuant to s86(4), he referred the matter to the Tribunal for determination. Before the Tribunal a technical point was taken by him, that the notice did not comply with the requirements of the law because it did not contain the notice required by s86(3A). I refer to it as a technical point, because the failure to include in the notice a statement concerning the respondent's right to refer the matter to the Tribunal appears not to have affected him adversely in any way whatever. Commissioner Carey, who constituted the Tribunal, gave reasons why he would have determined the point in favour of the appellant and adversely to the respondent, but nevertheless found himself compelled to decide it in favour of the respondent because he was unable to distinguish the ratio decidendi of Zeeman J in Jones v Jones (1996) 6 Tas R 273. In that case, in similar factual circumstances, it was held that the notice had to comply with the provision which had been inserted by the Reform Act. Accordingly, the Tribunal held the notice did not comply with the legislation, that the termination of weekly payments was therefore unlawful and it was ordered that the weekly payments be reinstated from the date of their determination and that they be paid subsequently in accordance with the Act.
The appellant appealed from the Tribunal and the appeal was heard by Wright J. His Honour felt compelled to follow Jones v Jones, adding that he was strongly inclined to adopt the reasoning and interpretation embraced by Zeeman J in that case, although he had not formed a concluded view about the matter. From the order dismissing the appeal the appellant has appealed to this Court.
The Reform Act, s92(1) provided that Sch2 of the Act had effect. It contained savings and transitional provisions. Clause 1 of the Schedule stated that in the Schedule "commencement day" meant "the day on which the Act commences". Clause 19, which is the provision which has caused so much difficulty in this case, and in Jones v Jones, was in these terms:
"19 — Except as provided in section 69A of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day."
To understand the meaning and effect of cl 19, it is necessary to also understand the meaning and effect of the exception to which it was expressed to be subject. Section 69A was inserted into the current Act by the Reform Act, s47, and is in these terms:
"69A — Section 69 (1) (a) (ii) (as amended by the Workers Rehabilitation and Compensation Reform Act 1995) is to be taken to have applied in respect of injuries suffered by a worker before or after the commencement of that Act."
To understand that in turn requires an understanding of the effect of the amendment to s69(1)(a)(ii), which was made by the Reform Act, s46(c). The provisions of s69(1)(a)(ii) before and after that amendment, concerned the method of calculating the amount of weekly compensation payable under the legislation to a worker for total incapacity. The High Court considered the provisions, in their form prior to the enactment of the Reform Act, in Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1, and interpreted them in a way which established that the legislation was overly generous in favour of some workers. The plaintiff in that case was only paid for working sixteen hours each week at the time he suffered his injury, but the High Court's interpretation of s69(1)(a)(ii) meant that he was entitled to be paid weekly compensation as if he had been paid for working thirty-eight hours a week at the time he suffered his injury. The reason for that interpretation was the requirement in s69(1)(a)(ii) that he be paid weekly payments equal to "the ordinary time rate of pay of the worker (as expressed by reference to a week)" (my italics). Not surprisingly, the Government of the day sought to amend the legislation so as to make it fairer to employers in that regard and, by s46(c) of the Reform Act, s69(1)(a)(ii) of the Principal Act was amended so as to provide for weekly payments equal to "the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity" (my italics).
An obvious question which arose in conjunction with the making of that amendment was to whom the amendment should have effect. Should it only extend to workers who suffered their injuries after the commencement of the operation of the amendment or should it also extend to workers who suffered their injuries before that date, perhaps depending on whether or not they had commenced to receive weekly payments when the Reform Act commenced. A number of possibilities were open, and the decision reached by the legislature was that those workers who at a date shortly before the enactment of the Reform Act had already received or were then receiving weekly payments in accordance with s69(1)(a)(ii) before it was amended, would be allowed to continue to receive payments on that basis in the future. But workers who at no time prior to that date had received weekly payments in accordance with that provision, would no longer be entitled to receive payments on that basis notwithstanding that their injuries may have been suffered before that date. The date chosen was 4 June 1995, which I understand was the day upon which the Premier announced to the public the proposal for what subsequently became the Reform Act. Accordingly, there was inserted into the savings and transitional provisions of Sch2 of the Reform Act, cl 18 in these terms:
"18 — A worker, who before 4 June 1995 received, or was in receipt of, a weekly payment in accordance with the decision of the High Court of Australia in Scott v Sun Alliance Insurance Australia Limited & Anor (1993) 178 CLR 1, is, on and after the commencement day, entitled to have received or to continue to receive that payment as if section 69A of the Workers Rehabilitation and Compensation Act 1988 had not been enacted."
The Reform Act, cl 19 provided in effect that "all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day", except that the new provisions of s69(1)(a)(ii) were to apply and not the old provisions. An exception was grafted onto that exception by cl 18, which entitled those workers who, before 4 June 1995, had received, or were in receipt of, a weekly payment at the higher rate under the old s69(1)(a)(ii) to continue to have that entitlement after the commencement day as if the new provisions of s69(1)(a)(ii) had not been inserted into the Principal Act.
I turn to consider the proper interpretation of cl 19 in the context of this case. It was common to the submissions of both parties that a claim for compensation is involved here. Counsel for the appellant wove a most intricate argument surrounding this aspect, and spoke of initial claims and ancillary claims (which he described as claims within the initial claims), but it was nevertheless part of his argument to the Court that this case concerns a claim for compensation. Counsel for the respondent accepted that also. The Workers Rehabilitation and Compensation Act 1988, has, since its enactment as the Workers Compensation Act 1988, provided in s3(1) that in the Act, "unless the contrary intention appears ... 'claim for compensation' means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim". Under that definition a claim for compensation is plainly proceeding here. The worker, the respondent, made a claim for weekly compensation before the Reform Act became law. The question of terminating the payment of weekly compensation is plainly a matter or question arising in connection with or incidental to that claim. It is therefore clear that in the terms of cl 19, what is involved here falls within the ambit of the expression "all claims for compensation with respect to an injury which occurred before the commencement day".
If the meaning of a "claim for compensation" in the Principal Act, s3(1) is applied to cl 19, and it seems reasonable to apply it because the Reform Act was enacted to amend the Principal Act, then cl 19 could be read as follows:
"Except as provided in s69A of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation under this Act with respect to an injury which occurred before the commencement day including any matter or question arising in connection with or incidental to such a claim and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day."
The next question which arises under cl 19 is whether the claim for compensation in this case had been "finally determined before that day", that is to say before "the commencement day". Plainly it had not. The commencement day was 16 August 1995 and the claim with which the Tribunal was concerned here had certainly not been finally determined before that date.
It was submitted in argument that the words "not finally determined before that day" imply that the clause is only concerned with claims which had been made before the commencement day, but I do not accept that. The clause does not say it and why should it be implied? If the meaning of "claim for compensation" in the Principal Act, s3(1) is applied literally it is clear that the respondent's claim, which involves a matter or question arising in connection with or incidental to his claim for weekly compensation under the Act, had not been finally determined before the commencement day.
Clause 19 continues by saying that such of the claims with respect to an injury which occurred before the commencement day which have not been finally determined before that day are "to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day". It was submitted for the respondent that a claim cannot be so continued, as well as be determined, unless it was in existence before the commencement day. Counsel argued that the reference by the respondent to the Tribunal of the question whether the appellant was entitled to terminate the weekly compensation was itself, by virtue of the definition in the Principal Act, s3(1), a claim for compensation which did not exist before the commencement day, and which was therefore incapable of being continued past that day. That may well be so, but I am not persuaded that Parliament intended to achieve the result argued by the respondent by such oblique means.
It is a common law principle that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation with regard to substantive rights and liabilities. "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events." Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267. The principle has been applied in the workers compensation field in a particular way. An example is Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647. At 650, Latham CJ said that if the Act he was considering had merely altered procedure, the case would have been different, but it was impossible to regard it as merely affecting procedure. Latham CJ referred to the Acts Interpretation Act 1918 (WA), s16(c), which was in similar terms to the Acts Interpretation Act 1931 (Tas), s16(1)(c) which provides:
"16 — (1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not —
...
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;"
After referring to the nature of the claim he was considering as a right to obtain an order for money (the case concerned an application for redemption of weekly payments), Latham CJ pointed out that the right of a worker who suffers from an accident for which compensation is payable under a workers compensation statute accrues immediately on the happening of the injury, (Stevens v Railway Commissioners for New South Wales (1931) 31 SR (NSW) 138), and held that the Act he was considering, which would effectively have increased the amount payable to a worker, applied only to accidents happening after the new Act came into operation. The former legislation continued to apply to rights and liabilities in respect of accidents happening before that time. Starke J, at 651 - 652, pointed out that the Act being considered was clearly not a procedural Act and cited, with obvious approval, the following passage from In re Athlumney; ex parte Wilson (1898) 2 QB 547 at 651:
"Perhaps no rule of construction is more firmly established than this—that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment."
Dixon J explained the principle further at 652:
"The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce."
I refer also to John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11 in which Kearney J discussed a number of authorities and followed Kraljevich v Lake View and Star Ltd.
A most important factor in my view is that the Reform Act, Sch2, cl 19, was intended to apply to the changes made by the Reform Act to the substantive rights of workers and liabilities of employers. By inference that is made clear by the opening words of cl 19, which state that the provisions of the Principal Act, s69A shall be an exception to it. Section 69A is not a procedural provision but one affecting the amount of weekly compensation payable to workers.
The Reform Act made significant changes to substantive rights and liabilities with respect to compensation in addition to the change made by the insertion of s69A. The changes included —
_ Reductions in the amount of weekly payments payable to workers by specified percentages over the period of payment. Reform Act, s47.
_ Restrictions on the entitlement of workers to compensation in respect of a disease. Reform Act, s24.
_ Removal of the entitlement of workers to compensation for an injury suffered while travelling in either direction between the place of employment and the worker's place of residence. Reform Act, s24.
The provision inserted by s47 whereby the amount of weekly payments payable to a worker is to be reduced by specified percentages over a period of time would be difficult if not impossible to apply in the cases of workers who were receiving weekly payments, or who had received them, when the provisions of the Reform Act commenced. Inserted into the Principal Act was a new s69B, the effect of which was that a weekly payment was to be made at the rate of 100 per cent for the first six weeks following the date of incapacity, 95 per cent for the period exceeding six weeks but not exceeding twenty-five weeks from the date of incapacity and thereafter 90 per cent. It is clear that the new s69B could only be applied to payments of weekly compensation which commenced after the commencement of the Reform Act. Contrast the new s69A which was expressly declared to apply to injuries suffered both before and after the commencement of that Act. Applying the principle against retrospectivity, there not being a clear expression to the contrary in the Reform Act, it is also clear that the removal of the entitlement of workers to compensation for a disease in certain circumstances and to compensation for an injury suffered while travelling in either direction between the place of employment and the place of residence, should be interpreted as applying only to claims for compensation in respect of injuries suffered after the commencement of that Act. If that was not so, a worker who, prior to the commencement of the Reform Act, suffered say an injury in the course of a journey from home to work and had been paid weekly compensation and had received payment of some of his medical expenses and the like, would no longer be able to make a claim with respect to such matters after the commencement of the Reform Act.
If Parliament had intended that the significant changes made by the Reform Act to the substantive rights and liabilities of workers and employers would apply to cases of injuries which occurred before the commencement, I am satisfied that it would have revealed that intention by clearly expressing it. By not doing so it revealed a contrary intention. Having regard to the fact that cl 19 was intended to apply to substantive rights, for the reason I explained earlier, I consider that what the clause means is that, in that context and except as provided by the Principal Act, s69A, all claims for compensation with respect to an injury which occurred before the commencement day, and which had not been finally determined before that day are, on and after that day, to be determined under the Workers Compensation Act 1988 as in force immediately before that day. It follows that the words "continued and" effectively add nothing to the meaning of the clause. Such an interpretation is not of course a wholly satisfactory one, but it is an appropriate and fair one and in accordance with the principle against retrospectivity.
That principle does not of course operate with regard to matters of procedure and I have concluded that cl 19 was not intended to apply to matters of procedure at all. As was said by Dixon CJ in Kraljevich v Lake View and Star Ltd (supra) at 652, when an alteration in the law relates to the mode in which rights and liabilities are to be enforced or realised, there is no reason to presume that it was not intended to apply to rights and liabilities already existing. I consider it unlikely that it was intended by Parliament, with regard to the mode in which rights and liabilities are to be enforced or realised in the future with respect to injuries suffered prior to the commencement day of the Reform Act, that the law as in force immediately before that day is to apply. If that was intended, one result would be that every claim with respect to an injury before that day, including claims which may not be made for many years from now, perhaps twenty or more years away, for medical expenses, lump sum compensation for specified injuries under the Principal Act, s71, or even weekly compensation, would have to be referred to the Workers Compensation Division of the Court of Requests for determination by a Workers Compensation Commissioner. The Reform Act has replaced that division and such a person with a Workers Rehabilitation and Compensation Tribunal and with Commissioners who constitute that tribunal. It would be a ridiculous thing to intend that many years from now disputed claims should be determined by a division which has ceased to exist and which no longer has a Commissioner in office who could determine the dispute.
It is therefore my opinion that cl 19 only has application with regard to the substantive rights and liabilities of workers and employers with respect to injuries which occurred before the commencement day and that it has no application to matters of procedure or to the mode in which rights and liabilities are to be enforced or realised. The service by an employer on a worker of a notice under s86(3) is a mere matter of procedure, part of the mode in which rights and liabilities are to be enforced or realised. It follows that s86(3A), which was inserted by the Reform Act, s60, applied to the appellant's notice in this case and the learned Commissioner was right when he held, although he would have preferred not to have done so, that the notice did not comply with the legislation.
For these reasons I would dismiss the appeal.
SLICER J
19 February 1998
This appeal concerns the termination of payments of compensation following the service of a notice not complying with the Workers Rehabilitation and Compensation Act 1988, s86(3A) ("the Act") a provision not in operation at the time of the original claim for compensation. A Commissioner of the Workers Compensation Rehabilitation Tribunal ("the Tribunal") determined that weekly payments be re-instated from the date of termination. In doing so, he expressed himself bound by an authority of this Court, Jones v Jones (1996) 6 Tas R 273, a case in which Zeeman J held that an application by a worker concerning the validity of termination was not a claim for compensation to which the transitional provisions of the Workers Rehabilitation and Compensation Reform Act 1995 ("the Reform Act"), applied. The Reform Act, s19, states:
"Except as provided in section 69A of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day."
The determination of the Tribunal accorded with the conclusion of Zeeman J in Jones v Jones (supra) that a claim initially made was finally determined by acceptance of the employer in the making of weekly payments. Thereafter, a referral by a worker of a matter concerning the termination of payments constituted a fresh claim, which, not being subject to the Reform Act, s19, required compliance with the Act, s86(3A). In this case, the appellant made no attempt to follow the procedures required by the Act, s86(3A), regarding the initial claim as constituting the only claim for compensation with respect to a particular injury. Central to the appellant's contention is the interpretation placed on the words "claims for compensation". The Act, s3, provides the definition as:
"... unless the contrary intention appears
...'claim for compensation' means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim;".
The term quite clearly has differing meanings dependent upon the context within which it is used (Chorley v Hazel Pty Ltd Mercantile Mutual Insurance Ltd A17/1993, Brambles Holdings Ltd t/as Brambles Shipping v Pincott A30/1994). The contention that there is an "initial claim" is in part dependent upon the interpretation afforded the term in cases where there has been no disputation of the initial claim so that it is deemed to have been accepted or settled (FAI General Insurance v Morrison (1993) 2 Tas R 9, Harris v TSS Pty Ltd and Sun Alliance Insurance Group Limited A46/1992, Brambles Holdings Ltd t/as Brambles Shipping v Pincott (supra), Freemasons Homes of Southern Tasmania v Greenwood (1995) 5 Tas R 445). Confusion arises in the application of different concepts to the same term. A claim for compensation not disputed has the consequence that the issue of entitlement is deemed to be settled unless and until an employer invokes the provisions of the Act, s81A or there occurs an event as defined by the Act, s86, justifying termination. Acceptance by an employer is to that of entitlement. To attribute greater import to that conceptual approach in the interpretation of a word "claim" is to impose more constraint than is warranted by the definition. The "initial claim" is that of entitlement which, if accompanied by the appropriate certification, constitutes an accompanying claim for an identified form of compensation (eg, medical expenses and weekly payments). Provided an employer acts in accordance with the statutory scheme, challenge can be made to subsequent claims, although the initial entitlement was never in dispute.
In the circumstances of this case, the respondent made a claim of entitlement to compensation with respect to an identified injury in April 1994. Concurrently, he made a claim for a form of compensation referable to such injury and entitlement. The claim for entitlement, not being disputed, entitled the respondent to receive payments in the form of compensation, provided he continued to provide certification unless and until a defined event occurred. In this case, the defined event was termination of payment by the appellant in accordance with the statute. The statutory provision relied upon by the appellant was the Act, s86, and as of the date of purported termination, the procedure required included compliance with the Act, s86(3A). The "Reform Act" commenced on 16 August 1995, and the notice of termination served on 24 October 1995. As of 16 August, the claim of the respondent had been determined in the context that unless and until there occurred a defined event, the appellant was required to make payment. The respective rights and obligations of the parties had been determined as of the date of commencement of the amending legislation.
In the circumstances of this case, two approaches may be considered. If the term "claim for compensation" relates to an ongoing entitlement evidenced by the production of the requisite certification, then each production constitutes a claim for a specified amount of compensation, and, as such, constitutes a fresh "claim for compensation". If the term is confined to the initial claim for entitlement which can only be effected by either the occurrence of a statutory condition, or the absence of certification, then it remains a concluded or determined claim. On either approach, the appellant is not entitled to rely upon the exception afforded by the Reform Act, s19.
The term "finally determined" does not afford the meaning that there can be no further claim. The term can only refer to the status of the claim which is subject to the particular statutory provision. A worker might have received compensation and returned to work. The claim could be regarded as having been finally determined, yet it could not be said that recurrence of disability referable to the injury giving rise to the entitlement would preclude the making of a further claim for compensation. The Reform Act, s19, is, in my opinion, intended to govern the procedure affecting cases before the Tribunal which were unresolved as of the date of the commencement of the legislation, and further to preserve the entitlements of parties with respect to unresolved claims which arose from injuries which had occurred before the commencement of the legislation. The legislation sought to preserve substantive rights and permit continuity of procedural requirements in cases pending before the Tribunal. Absent clear statement by Parliament to the contrary, the presumption is that the legislation does not retrospectively affect substantive rights and liabilities existant as of the date of the amendment. I adopt both the reasoning and conclusion of Crawford J in his judgment on the interpretation of "the Reform Act". On neither basis can it be said that the amending legislation absolved the appellant from the requirement to afford the respondent procedural fairness by the delivery of a notice required by the Act, s86(3A), which states:
"A Notice referred to in subsection 3 (a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the tribunal for determination."
The Reform Act effected change to the substantive rights of both employer and worker. The Act, s86(3A), can be regarded in part as an accommodation of the interests of one of the sections of the community affected by an alteration of substantive rights. Its import ought not be negated by a restrictive judicial interpretation of the term "finally determined". Its import permits an interpretation as "determination of a claim existant as of the date of the commencement of the legislation". In my opinion, the existant claim of the respondent had been determined as of 16 August 1995. Accordingly, the appellant was required to comply with the provisions of the Act, s86(3A).
In my opinion, the appeal should be dismissed.
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