The Salvation Army v Jarvis

The Salvation Army, as the self-insurer, brought an appeal against a decision by Jarvis, a worker who had suffered an injury. The dispute centred on the interpretation of sections 114(2A) and other relevant provisions of the Accident Compensation Act 1985. Jarvis argued that the statutory discretion conferred on the WorkCover Authority or self-insurer to terminate or not resume weekly payments did not include an entitlement not to resume such payments. The Victorian Court of Appeal was tasked with determining this legal issue, alongside whether a hearing by the court required to ‘inquire into, hear and determine any question or matter’ constituted a hearing de novo and whether the court could re-exercise the insurer’s discretion.

The court examined the statutory language and context, focusing on whether the discretion conferred was permissive or mandatory. It considered whether the statutory provisions required the court to make an independent decision based on the evidence presented, or if the court could adopt the decision of the insurer. The court also examined the language of the Act to determine if it mandated a de novo hearing or allowed for a re-exercise of the insurer’s discretion.

In its reasoning, the court held that the discretion conferred by the Act was permissive, not mandatory, and therefore, the WorkCover Authority or self-insurer did not have an entitlement not to resume weekly payments. The court further held that the statutory requirement for the court to ‘inquire into, hear and determine any question or matter’ mandated a de novo hearing, meaning the court could make an independent decision based on the evidence presented. However, the court could not re-exercise the insurer’s discretion, as this would undermine the statutory scheme and the role of the court in providing a forum for independent determination.

The court ordered that the Salvation Army was not entitled to terminate or not resume weekly payments to Jarvis. The court further clarified that any decision by the insurer on such matters could be subject to independent review by the court.