Theoret v Aces Incorporated

Case [2021] NSWCA 3

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Theoret v Aces Incorporated [2021] NSWCA 3
Hearing dates: 1 September 2020
Decision date: 02 February 2021
Before: Leeming JA at [1];
McCallum JA at [2];
Garling J at [49].
Decision:

(1) Allow the appeal.

(2) Set aside the judgment of the court below.

(3) Remit the matter to the Workers Compensation Commission to be determined according to law.

(4) Respondent to pay the appellant’s costs.

Catchwords:

STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012

Legislation Cited:

Interpretation Act 1987 (NSW), ss 39, 45C

WorkersCompensation Act 1987 (NSW), ss 33, 36, 37, 38, 43(1), 44C, 66, 79, 80, 82, 82A, Sch 3

Workers Compensation Legislation Amendment Act 2012 (NSW)

Workers Compensation Legislation Amendment Act 2018 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 353

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18

Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318

Cooper Brookes(Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26

Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250

Fisher v Hebburn Ltd (1960) 105 CLR 188; [1960] HCA 80

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Thompson v ATN Channel 7 Pty Ltd (No 2) [2017] NSWWCC 269

Category:Principal judgment
Parties: Patricia Theoret (Appellant)
Aces Incorporated (Respondent)
Representation:

Counsel:
D Hooke SC, B McManamey (Appellant)
M Allars SC, A Combe (Respondent)

Solicitors:
Carroll & O’Dea Lawyers (Appellant)
Hicksons Lawyers (Respondent)
File Number(s): 2020/118949
Publication restriction: None
 Decision under appeal 
Court or tribunal:
Workers Compensation Commission
Citation:

[2020] NSWWCCPD 18

Date of Decision:
25 March 2020
Before:
Elizabeth Wood, Deputy President
File Number(s):
A1-5261/19

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant suffered injuries at different times during the same employment. She first became entitled to weekly payments of workers compensation in 2004. However, her entitlement to weekly payments in respect of a different injury was not determined until April 2019. In the meantime, on 1 October 2012, substantial amendments to the Workers Compensation Act 1987 (NSW) were introduced including amendments to the process for determining the quantum of weekly payments. The appeal raised the application of those amendments where the entitlement to weekly payments arose before the commencement of the amendments…

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AGLC
Theoret v Aces Incorporated [2021] NSWCA 3
Case
[2021] NSWCA 3
Decision Date

CaseChat Overview and Summary

The appeal in *Theoret v Aces Incorporated* concerned the interpretation of amendments to the *Workers Compensation Act 1987* (NSW). The appellant's entitlement to weekly workers compensation payments arose before the 2012 amendments to the Act came into force, but her entitlement was not formally determined until after those amendments took effect. The central dispute was whether section 82A of the Act, as amended, entitled the appellant to have her pre-injury average weekly earnings indexed historically from the date she first became eligible for payments, or only from the commencement of the 2012 amendments.

The primary legal issue before the Court of Appeal was whether the 2012 amendments to section 82A of the *Workers Compensation Act 1987* (NSW) had retrospective operation in relation to the indexing of pre-injury average weekly earnings for claims where the entitlement arose before the amendments but was determined afterwards. Specifically, the court had to determine the correct starting point for the historical indexing of these earnings under the amended legislation.

The Court of Appeal allowed the appeal, setting aside the judgment of the court below. The court reasoned that the statutory language of section 82A, as amended, indicated an intention for the indexing to apply from the date of eligibility, not merely from the date the amendments came into force. Consequently, the matter was remitted to the Workers Compensation Commission for determination according to law, and the respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the judgment of the court below.

(3) Remit the matter to the Workers Compensation Commission to be determined according to law.

(4) Respondent to pay the appellant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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