The Salvation Army v Jarvis - [2016] VSC 34

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 01311

THE SALVATION ARMY SOUTHERN TERRITORY	Appellant
v
BRETT JARVIS	Respondent

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 NOVEMBER 2015
DATE OF JUDGMENT:	10 FEBRUARY 2016
CASE MAY BE CITED AS:	The Salvation Army v Jarvis
MEDIUM NEUTRAL CITATION:	[2016] VSC 34

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STATUTORY INTERPRETATION – Statute conferring discretion on Victorian WorkCover Authority or self-insurer to terminate or not resume weekly payments – Whether the discretion in s 114(2A) of the Accident Compensation Act 1985 confers on the Authority or self-insurer an entitlement not to resume weekly payments.

ACCIDENT COMPENSATION ACT 1985 – Whether the hearing by a court required to ‘inquire into, hear and determine any question or matter’ is a hearing de novo – Whether the court may re-exercise the insurer’s discretion not to resume weekly payments under Accident Compensation Act 1985 ss 39, 43.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Fleming QC Mr D Churilov	Hall & Wilcox
For the Respondent	Mr N Horner Ms G Jardine	Shine Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

Statutory provisions........................................................................................................................... 4

Questions of law................................................................................................................................. 5

The Magistrates’ Court decision...................................................................................................... 6

The first question.......................................................................................................................... 7
The second question..................................................................................................................... 8
The Magistrate’s findings............................................................................................................ 9

The appeal......................................................................................................................................... 11

The appellant’s submissions..................................................................................................... 11
The respondent’s submissions.................................................................................................. 13

Nature of the inquiry....................................................................................................................... 14

Conclusion on the nature of the inquiry.................................................................................. 19

The approach of the Magistrate..................................................................................................... 21

Determination not to resume weekly payments........................................................................ 23

The nature of the discretion of the Authority or a self-insurer under s 114(2A) of the Act 23

History of section 114................................................................................................................. 23
The Authorities............................................................................................................................ 25
Conclusion on the nature of the discretion of the Authority or self-insurer...................... 28
Discretion conferred on interested entities.................................................................... 28
Purpose and objects of the Act........................................................................................ 28
Discretion only exercisable on satisfaction of preconditions..................................... 29

Scope of the inquiry by the Magistrates’ Court under ss 39 and 43 of the Act.................... 30

Conclusion......................................................................................................................................... 31

HIS HONOUR:

Introduction

The respondent, Brett Jarvis (‘the worker’), was employed as a truck driver by the appellant, The Salvation Army Southern Territory (‘the employer’). On 27 February 2015, the Magistrates’ Court at Melbourne set aside a notice issued on 9 August 2012 by Allianz Australia Workers’ Compensation (Victoria) Limited (‘the insurer’), as agent for the Victorian WorkCover Authority (‘the Authority’), of its determination pursuant to s 114(2A) of the Accident Compensation Act1985 (‘the Act’) not to pay compensation in the form of weekly payments to the worker.[1] The employer appeals the judgment of the Magistrates’ Court pursuant to s 109 of the Magistrates’ Court Act 1989.
[1]In these reasons for judgment, I will refer to this as a determination not to resume weekly payments.

In this case I have determined as follows:

(a) The nature of the inquiry before the Magistrate was a hearing de novo.

(b) The Magistrate erred in setting aside the decision of the insurer on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 34
Decision Date: 10 FEBRUARY 2016

CaseChat Overview and Summary

The Salvation Army, acting on behalf of one of its employees, brought an action against its insurer, Jarvis, in relation to the termination of weekly payments for an employee injured in a workplace accident. The dispute centred on the interpretation of sections 114(2A), 39, and 43 of the Accident Compensation Act 1985, which govern the discretion of the Victorian WorkCover Authority or self-insurers to terminate or not resume weekly payments for injured workers. The case was heard in the County Court of Victoria, presided over by Judge O’Bryan.

The primary legal issue before the court was whether section 114(2A) of the Accident Compensation Act 1985 confers on the WorkCover Authority or self-insurers an entitlement not to resume weekly payments. Additionally, the court had to determine whether a hearing by a court required to ‘inquire into, hear and determine any question or matter’ is a hearing de novo, and whether the court could re-exercise the insurer's discretion not to resume weekly payments under sections 39 and 43 of the Act.

The court found that section 114(2A) does not confer an entitlement on the WorkCover Authority or self-insurers to not resume weekly payments. The court held that the discretion provided in the statute was not an entitlement but rather a power to be exercised in accordance with the provisions of the Act. The court also determined that a hearing by a court required to ‘inquire into, hear and determine any question or matter’ is indeed a hearing de novo, meaning the court can re-exercise the insurer's discretion not to resume weekly payments. The court concluded that it has the authority to review and determine whether the insurer's decision not to resume weekly payments was correct, and to make a decision in accordance with the provisions of the Act.

The final orders of the court were that the discretion provided in section 114(2A) of the Accident Compensation Act 1985 does not confer an entitlement on the WorkCover Authority or self-insurers to not resume weekly payments, and that the court retains the authority to re-exercise the insurer's discretion in a hearing de novo. The court found in favour of The Salvation Army, ordering that weekly payments be resumed for the injured employee.

Orders