Theoret v Aces Incorporated - [2020] NSWWCCPD 18

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed – Theoret v Aces Incorporated* [2021] NSWCA 3**
CITATION:	Theoret v Aces Incorporated [2020] NSWWCCPD 18
APPELLANT:	Patricia Theoret
RESPONDENT:	Aces Incorporated
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-5261/19
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	6 November 2019
DATE OF APPEAL DECISION:	25 March 2020
SUBJECT MATTER OF DECISION:	Section 82A of the Workers Compensation Act 1987 – indexation of pre-injury average weekly earnings prior to 1 April 2013 where injury received before the enactment of s 82A
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Carroll & O’Dea Lawyers
Respondent:
Mr A Combe, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 6 November 2019 is confirmed.

INTRODUCTION AND BACKGROUND

This appeal concerns the indexation of the appellant’s pre-injury average weekly earnings (PIAWE).
Ms Patricia Theoret (the appellant) was formally employed by Aces Incorporated (the respondent) as a disability support worker. The appellant suffered several injuries in the course of her employment. Relevantly, on 23 December 2002 the appellant was struck on the face by a client and suffered facial, dental and neck injuries.
Liability for the injury was accepted and the appellant received weekly payments of compensation from June 2004. Although the appellant’s injury occurred in 2002, her compensation entitlements were affected by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments). The appellant’s entitlements were subject to those amendments as they stood from 1 October 2012. The legislation was again amended by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amendments) which took effect from 1 January 2019. The dispute which arose between the parties occurred in the context of the provisions of the Workers Compensation Act 1987 (the 1987 Act) as they stood after 1 October 2012 but prior to the 2018 amendments.
On 1 April 2018, AAI Limited trading as GIO (the insurer) made a work capacity decision pursuant to s 43 of the 1987 Act, finding that the appellant’s PIAWE at that date was $407.42.[1] The insurer confirmed that decision following an internal review.[2] The appellant applied to the State Insurance Regulatory Authority (the Authority) for a “merit review” of the work capacity decision in accordance with s 44BB of the 1987 Act. On 14 August 2018, the Authority confirmed that the appellant’s PIAWE was $407.42, which was indexed pursuant to s 82A of the 1987 Act. The Authority applied the indexation from 1 April 2013 to arrive at a figure of $458.00 for the PIAWE as at 1 April 2018.[3]
[1] Application for Expedited Assessment (Application), pp 19–24.
[2] Application, p 20.
[3] Application, pp 13–18.
On 3 April 2019, the insurer wrote to the appellant, enclosing a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer advised the appellant that on 3 April 2019 it had assessed the appellant as having no capacity for work and that there would be no change to the appellant’s weekly payments. In the same document, the insurer advised that it had decided that the appellant’s PIAWE, as indexed in accordance with s 82A of the 1987 Act, was $466.00, which entitled her to weekly payments pursuant to s 37 of the 1987 Act at the rate of $372.80 per week.[4]
[4] Application, pp 18–23.
On 24 July 2019 the appellant’s legal representatives wrote to the insurer challenging the calculation of the appellant’s PIAWE, asserting that in accordance with s 82A of the 1987 Act, the indexation of the appellant’s PIAWE should commence from the date that the appellant first received compensation, which was assumed to be 2002. The appellant asserted that the correct amount for the appellant’s indexed PIAWE should have been $690.19.[5]
[5] Application, pp 24–25.
The respondent disputed that the appellant’s PIAWE should have been indexed from 2002.
The appellant commenced these proceedings on 9 October 2019 and the matter was allocated to an arbitrator. The matter was listed for a telephone conference on 25 October 2019. In that telephone conference, the Arbitrator directed the attention of both parties to his previous decision in Thompson v ATN Channel 7 (No 2).[6]
[6] [2017] NSWWCC 269 (Thompson).
The Arbitrator issued a direction to the parties to provide written submissions. Those submissions were filed in accordance with the Arbitrator’s direction and the Arbitrator determined the matter on the basis of the written submissions and the documents before him.
The Arbitrator issued a Certificate of Determination on 6 November 2019 in which he declined to index the appellant’s weekly payments of compensation prior to 1 April 2013.[7]
[7] Theoret v Aces Incorporated [2019] NSWWCC 359 (Reasons).
The appellant appeals that decision.
The only issue in these proceedings is whether the appellant’s PIAWE should be indexed from the date she commenced receiving weekly payments (on the appellant’s case the year 2002), or from 1 April 2013, which is the first review date on which the PIAWE was to be indexed after s 82A was introduced into the 1987 Act.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents (although the appellant submits that having regard to the issue of legislative interpretation, an oral hearing may be beneficial). I note that there was not an oral hearing of the arbitration, and the written submissions made by both parties to the Arbitrator are before me as well as the submissions on appeal. I am therefore satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
There is no application to adduce fresh or additional evidence on the appeal pursuant to s 352(6) of the 1998 Act.

LEGISLATION

Section 82A of the 1987 Act was introduced by the 2012 amendments and was operational from 1 October 2012. The section was amended by the 2018 amendments. The amendment was effective from 1 December 2018.
Part 19H of Sch 6 to the 1987 Act contains the transitional provisions relevant to the 2012 amendments.
As it applies to this matter, s 82A provides:
“82A Indexation – weekly payments
(1)     The amount of a weekly payment to a worker under Division 2 in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury, by varying the amount of the worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly payment in accordance with the formula—
Where—
A is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is—
(a) the CPI for the December quarter immediately prior to the review date when the review date is 1 April, or
(b) the CPI for the June quarter immediately prior to the review date when the review date is 1 October.
C is—
(a) the CPI for the June quarter immediately prior to the review date when the review date is 1 April, or
(b) the CPI for the December quarter immediately prior to the review date when the review date is 1 October.
(2)     In this section—
CPI means the consumer price index (All Groups Index) for Sydney issued by the Australian Statistician.
review date means 1 April and 1 October in each year.
(3)     (Repealed)

(4) The Authority is to declare, by order published on the NSW legislation website on or before each review date, the number that equates to the factorfor the purposes of the variation required for that review date under this section.
(5) A declaration made by an order published on the NSW legislation website after a review date for the purposes of the variation required for that review date under this section has effect as if the order were published before that review date.”

Clause 3 of Part 19H of Sch 1 to the 1987 Act provides:
“3      Application of amendments generally
(1)     Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to—
(a) an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the amendment, and
(c) proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)     An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”

THE ARBITRATOR’S REASONS

The Arbitrator reproduced s 82A of the 1987 Act and noted the amendments that were made to the section in the 2018 amendments, which required the Authority, rather than the Minister, to declare the number that equates to the factor B/C (s 82A(4)).
The Arbitrator referred to his earlier decision in Thompson in which he declined to index the PIAWE from March 2000 (the date of the injury) and instead indexed it from 1 April 2013.
The Arbitrator cited the authorities in respect of statutory interpretation discussed in Thompson. The Arbitrator adopted his reasons in Thompson, in which he:
(a)    referred to the decision by Arbitrator Dalley in Edwards v Southern IML Pathology,[8] in which Arbitrator Dalley found that the PIAWE could be indexed prior to 2013 in circumstances where the injury occurred, and payments commenced, before s 82A was introduced to the 1987 Act;
[8] [2015] NSWWCC 1 (Edwards).
(b)    “respectfully” disagreed with the decision in Edwards;
(c)    did not accept the appellant’s submissions;
(d) referred to s 82A(1) of the 1987 Act, which he said provides that the amount of weekly payments is to be varied “on each review date after the day on which the worker became entitled to weekly payments”;
(e) further referred to the definition of “review date” in s 82A(2), which was 1 April and 1 October in each year, and that before each review date, the Minister notifies the number that equates to the factor “B/C”;
(f) noted that while the worker’s calculation of the indexation was in accordance with the method of calculation set out in s 82A(1) of the 1987 Act, it did not comply with s 82A(4), which required the Minister (or now the Authority) to notify by order published on the NSW legislation website the number that equates to B/C;
(g)    observed that the Minister had not notified a number that equates to B/C prior to 1 April 2013;
(h) noted that s 82A was part of a scheme of amendments operational from 1 October 2012, including amendments to weekly payments for the first 13 weeks (s 36 of the 1987 Act) and the second period of entitlement (s 37 of the 1987 Act);
(i) took into account the worker’s submission that the words “on each review date on which the worker became entitled to weekly payments” contained in s 82A(1) were critical words;
(j)    considered that submission to be without reference to a commencement year, ignored the context of the section, read the words “review date” in isolation and otherwise ignored the clear words of the section;
(k)    reviewed the authorities in NSW Trustee and Guardian v Olympic Aluminium Pty Ltd[9] and Alphapharm Pty Ltd v Lundbeck A-S;[10]
[9] [2016] NSWWCCPD 54.
[10] [2014] HCA 42; 254 CLR 247; 89 ALJR 1; 314 ALR 182 (Alphapharm).
(l)    noted that the Arbitrator in Edwards relied upon the legislation being “beneficial” in nature when the High Court in Adco Constructions Pty Ltd v Goudappel[11] described operation of the 2012 amendments as “non-beneficial” and the Court of Appeal in Cram Fluid Power Pty Ltd v Green[12] was of the view that the amendments disclosed a cost saving objective;
[11] [2014] HCA 18; 254 CLR 1; 88 ALJR 624 (Goudappel), [29].
[12] [2015] NSWCA 250 (Cram Fluid), [122].
(m)     referred to authorities in which the legislative purpose of a statute was discussed;
(n)    reasoned that the 2012 amendments had the effect of limiting entitlements, which included:
(i)restricting the meaning of “suitable employment”;
(ii)restricting the number of weeks in which weekly payments are made, and
(iii)the introduction of work capacity decisions managed by the insurer;
which were amendments that were not always beneficial to workers.
(o) did not accept that s 82A should be given the “fullest relief that a fair meaning of its language would allow” or that “on each review date” meant a date when the Minister had not published the number factor B/C on the website;
(p)    did not reject the worker’s entitlement because of any consideration as to whether the section had retrospective operation because the section did not affect the worker’s entitlement until 1 October 2012, when it commenced, and
(q)    rejected the worker’s submission that indexation applied from the year 2000.
Having recited his reasons in Thompson, the Arbitrator referred to the appellant’s submissions that by virtue of cl 3 of Part 19H of Sch 6 to the 1987 Act, s 82A applied to injuries received before the commencement of the 2012 amendments but did not affect the amount of compensation payable. The Arbitrator agreed with that proposition.
The Arbitrator considered the appellant’s argument that the operation of s 82A was retrospective because it changed rights that had vested for many years, while conceding that the section did not operate to change the amount of compensation payable prior to 1 October 2012. The Arbitrator remarked that it was unclear how this submission impacted the operation of s 82A.
The Arbitrator again referred to Cram Fluid in which the Court of Appeal discussed the restrictions in s 66(1A) of the 1987 Act about making only one lump sum claim and held that s 66(1A) was not retrospective because the amendments only applied to claims made which specifically sought lump sum compensation on or after 19 June 2012. They did not apply to such a claim made before that date and it was an error to approach the construction on the basis of retrospectivity.
The Arbitrator noted the appellant’s submission that the clear meaning of s 82A(1), which referred to indexation occurring every April and October, was that the indexation in this case commenced on 1 April 2003, which was the first review date after the appellant was paid weekly compensation. The Arbitrator said that the appellant’s submission was that the indexation was based on the consumer price index (CPI) issued by the Australian Statistician since before 2002. The Arbitrator further noted the appellant’s submission that s 82A(1) and s 82A(2) could stand independently of s 82A(4) or otherwise stand alone because subsections (4) and (5) of s 82A:
(a)    make no express provision concerning the status of the number published on the website;
(b)    do not provide that the published number is to be used or otherwise deemed to be applied, and
(c)    the published number is simply an “easy ready reckoner” for the application of the formula.
The Arbitrator accepted that the CPI was in existence before 2002, but said that the appellant’s submissions otherwise ignored the clear words of s 82A(4) which provides that the “Authority [previously the Minister] is to declare by order the figure that equates to the factor B/C.” The Arbitrator considered that the word “equate” is a clear expression of meaning and that the words “has effect as if” in s 82A(5) were words similar to having a deeming effect.
The Arbitrator accepted the respondent’s submission that the appellant’s interpretation ignored the clear words of the text in s 82A(4) and observed that if the appellant’s submission was correct, it would result in the wording in s 82A(4) being superfluous and without application. The Arbitrator considered it difficult to accept that Parliament would enact a subsection that had the limited operation of simply providing a guide to a calculation.
The Arbitrator further considered the appellant’s submission that s 82A(5) allows for the publication of historical review dates, but said that the submission ignored the fact that neither the Minister or the Authority published review dates for the period prior to 1 April 2013, so that the right had never been exercised and the review figures specifically provided that the indexation commences from 1 April 2013. The Arbitrator added that while the legislation allows for the declaration to be backdated, if the publication was simply a ready reckoner and had no force, there would be no need to make provision for the order to be backdated.
The Arbitrator rejected the appellant’s submission that his interpretation required the application of the order declared under s 82A(4) and was therefore wrong because it used delegated legislation to interpret the legislation, contrary to the principles enunciated by the Court of Appeal in Mine Subsidence Board v Wambo Coal Pty Ltd.[13] The Arbitrator cited a passage from that decision and referred to a discussion of that authority in the text Statutory Interpretation in Australia.[14] The Arbitrator said that the submission fails to recognise that s 82A(4) authorises the declaration of the factor B/C. That is, it provides for its own modification by the order made pursuant to it. The Arbitrator reasoned that the section was not delegated legislation and was the source of the power under which the order is declared that equates to the factor B/C, which is published on the website. The Arbitrator explained that he was not using the order to interpret the legislation but applied it as a modification of the section.
[13] [2007] NSWCA 137.
[14] DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014) (Pearce and Geddes).
The Arbitrator said that in any event, there are exceptions to that rule, referring to Pearce and Geddes, which cited a number of cases in which it was established that where regulations together with the principal Act form part of a legislative scheme, they are to be read together.
The Arbitrator was of the view that s 82A(1) must be read subject to the express provision in s 82A(4). The Arbitrator also considered his decision in Thompson in which he did not apply a purposeful approach and disagreed with Edwards because it was reliant upon there being a beneficial construction. The Arbitrator said that the intention of Parliament was not “unclear” so that the section did not require a beneficial or non-beneficial construction. The Arbitrator said that he had not altered the view that he held in Thompson, and that his decisions were supported by reference to the context of s 82A(5).
The Arbitrator concluded that he did not accept that the interpretation of s 82A suggested by the appellant was open to him, because it ignored the clear words in both ss 82A(4) and 82A(5) and the order published by the Authority on the NSW legislation website. The Arbitrator noted that the appellant did not make a submission that the indexed PIAWE (if the indexation was to commence from 1 April 2013) was incorrect. The Arbitrator explained his orders, which were to convey that the appellant was not entitled to any additional weekly compensation.

The Certificate of Determination issued on 6 November 2019 records:
“The Commission determines:
Finding
1. The respondent has not erred in the calculation of the indexation the applicant’s pre-injury average weekly earnings as provided by s 82A of the Workers Compensation Act, 1987.
Order
2. The applicant’s claim is refused.”

GROUND OF APPEAL

The appellant raises one ground of appeal. The ground alleges that the “Arbitrator erred in law when he concluded that indexation only commenced from April 2013 and did not apply from the date when the appellant first suffered incapacity.”

SUBMISSIONS

The appellant’s submissions

The appellant refers to cl 3 of Part 19H of Sch 6 to the 1987 Act. The appellant says that there is no transitional provision that applies specifically to s 82A so cl 3 applies. The appellant refers to the amendments made to s 82A in 2018, which applied from 1 January 2019 and contends that the amended section applies because this matter involves compensation payable after 1 January 2019.
The appellant says that she suffered injury on 23 December 2002 and was not an existing recipient at the time the 2012 amendments came into force so that the amendments applied to her weekly compensation paid or payable from 1 January 2013, but subject to cl 3 of Part 19H of Sch 6. This was despite the fact her injury occurred over nine years before the amendments.
The appellant submits that s 82A is retrospective in operation because it changes the rights that had vested when the injury occurred,[15] many years before the amendments. The appellant asserts that the provision is retrospective in the second sense discussed in Goudappel. That is, that the application of the amendments to the appellant’s entitlements causes a retrospective change to her vested rights and entitlements. The appellant submits that because her rights had already vested, the appellant would not have been subject to the 2012 amendments except for the transitional provisions that made the amendments retrospective. The appellant asserts that the only limit on the retrospective operation is that it does not change the amount of compensation payable prior to its commencement.
[15] Citing Ogden Industries Pty Ltd v Lucas [1967] HCA 30; 116 CLR 537.
The appellant submits that applying the simple terms of s 82A(1), the PIAWE is to be varied on each review date after the appellant became entitled to weekly payments, that is after 23 December 2002. The appellant says that the general retrospectivity is highlighted by cl 13 of Part 19H of Sch 6 to the 1987 Act, which provides that for the purposes of s 39 of the 1987 Act, no regard is to be had to any period before the commencement of the amendments in respect of which weekly payments were paid or payable. The appellant asserts that cl 13 is only required because the amendments are generally retrospective in operation. The appellant maintains that the general transitional provision would mean that the weeks prior to the commencement of the amendments would count towards a worker’s 260 weeks in which the worker was entitled to weekly payments.
The appellant argues that s 82A does not affect her compensation payable before 1 January 2013 because those weekly payments were determined by the former ss 36, 37 and 40 of the 1987 Act, which were calculated by earnings that are not the PIAWE.
The appellant submits that unless there is some contrary indication, s 82A applies to her 2002 injury.
The appellant contends that the terms of s 82A are that the PIAWE is to be adjusted each April and October applying movements in the CPI issued by the Australian Statistician, who has been issuing the CPI since before 2002. The appellant maintains that the legislation does not impose any start date for the section to commence, which could have been simply addressed by a transitional provision.
The appellant submits that it is clear that the ordinary grammatical meaning of the words in the section are that the indexation commences on the first review date after the day on which the appellant was entitled to weekly payments. The appellant says that applying those words, the indexation commences on 1 April 2003. The appellant says there is no other start date identified either in the section itself or in the transitional provisions and cl 3 of Pt 19H extends the operation of the section back to the date of injury.
The appellant contends that it is “important to examine how the section works”.[16] The appellant says that it operates as follows:
(a)    subsection (1) provides for indexation from the date the worker became entitled to weekly payments;
(b)    the section then provides a formula to calculate the indexation;
(c)    the three parts of the formula can all be determined independently of subs (4);
(d)    the PIAWE must be determined (in this case as $407.42);
(e)    the indexation is then calculated using the CPI provided by the Australian Statistician, which figures are available on the Australian Statistician’s website.
[16] Appellant’s submissions, [15].
The appellant refers to Thompson and says that the conclusion in the present case was based on the Arbitrator’s earlier decision in Thompson, and that for the above reasons, the Arbitrator was wrong in both cases.
The appellant submits that subs (1) and (2) of s 82A make no reference to any publication by the Minister, they stand alone and do not require any reference to subs (4) in order to operate.
The appellant contends that the Arbitrator did not explain why the simple operation of subs (1) is contrary to the requirements of s 82A(4) and that subs (4) only provides only for the declaration of the number that is derived from subs (1). The appellant further contends that subs (4) has no meaning without subs (1), which makes subs (1) the dominant provision and subs (4) should be read subject to it.
The appellant asserts that the Arbitrator simply assumed that because subs (4) required a declaration there could be no calculation in the absence of a declaration, which the appellant says, simply does not follow. The appellant adds that subss (4) and (5) make no express provision in relation to the number published on the website, it does not say that the number published is to be used and neither does it deem the published number to be the result of applying the formula. The appellant asserts that the published number does not operate to determine the figure, but rather it provides a ready reckoner for applying the formula. The number is still derived by applying the terms of subs (1).
The appellant maintains that the subsection can be applied without any number being declared by the Minister or the Authority, because the numbers required are those provided for by the Australian Statistician. The appellant says that any number that was applied which did not correspond with the number provided by the Australian Statistician would not be in compliance with the 1987 Act.
The appellant submits that it is significant that subss (1) and (2) are not expressed to be subject to subs (4), or any other provision, so that the terms of subs (4) are not inconsistent with the clear intent that the section applies retrospectively.
Further, the appellant argues that the legislation allows for the publication of historical figures and the fact that there have been no such publications does not detract from the ability to do so. The appellant says that regulations and publications by the Minister come after the enactment of legislation and so do not disclose the intention of the legislature at the time the legislation was enacted.
The appellant contends that the failure to make declarations prior to 1 April 2013 cannot be a consideration in the interpretation of subss (4) and (5) because s 82A(4) is not delegated legislation and the declarations do not modify the operation of the section. The appellant submits that if the Arbitrator was correct, it would enable the Authority to avoid indexation by failing to make a determination, and there would be a difficulty in calculating the entitlement if a late declaration is made.
The appellant asserts that the Arbitrator erred in his determination as to the effect of subs (5) because that subsection does not deem the numbers that make up the formula. The appellant says that the subsection merely gives effect to the declarations after they are made.
The appellant submits that the meaning of s 82A is clear, so that it is not necessary to ascertain whether the provision is beneficial in nature. The appellant says that in any event, the section is beneficial because it provides for increased benefits to workers, so that if there is any ambiguity in the section, it should be resolved favourably for the appellant.
The appellant refers to the legislation prior to the 2012 amendments which allowed for adjustments to be made in accordance with increased comparable earnings, whereas s 82A provides a simpler approach by adjusting all entitlements in accordance with CPI changes. The appellant says that the CPI figures are freely available.
The appellant contends that the purpose of s 82A is that the appellant’s weekly entitlements should be adjusted from the date she was first entitled to weekly compensation. The appellant describes the situation as “absurd” that a worker who receives an injury now is able to get the benefit of indexation whereas the appellant is precluded from years of indexation, which would lead to a reduction in her weekly payments permanently.
The appellant asserts that it is also inconsistent with the purpose of the section, which is to provide for adjustments in the weekly payments to allow for the increase in the cost of living since 2002. The appellant says that a failure to apply those increases from 2002 is not warranted.
The appellant maintains that the indexation should apply because the amendments apply in respect of injuries that occurred before the amendments were enacted and the section in its terms says that the indexation applies from the date the appellant became entitled to weekly payments. The appellant submits that the Arbitrator failed to consider the terms of the section and give the section its clear meaning. The appellant asserts that there is a conflict between the Arbitrator’s interpretation and the terms of subs (1), which would not arise if it was accepted that indexation applied from the date of injury and subss (4) and (5) of s 82A are given the role the appellant has proposed in these submissions.
The appellant discussed the CPI figures between December 2002 and June 2012 and says that the appellant’s indexed PIAWE as at December 2019 equates to $603.43.
The appellant concludes that there should be an award of weekly payments as indexed in her favour, or alternatively that the matter should be remitted to a different arbitrator for re-determination.

The respondent’s submissions

The respondent submits that the appeal must fail because the appellant has not identified any error of law in the Arbitrator’s reasons but is merely re-stating the case she presented at arbitration. The respondent says that in effect, the appellant is seeking a review of the decision or a re-hearing, which is precluded by s 352(5) of the 1998 Act.
The respondent contends that the Arbitrator closely followed and correctly applied established principles of statutory construction which were identified in his reasons at [17]–[31] and correctly identified that the 2012 amendments to weekly entitlements were not beneficial to workers.
The respondent submits that the appellant is seeking to re-agitate its argument that s 82A is retrospective when the Arbitrator did not determine the matter on that basis. The respondent says that the Arbitrator found that s 82A clearly operates from 1 October 2012 when the section commenced and that 1 April 2013 was the first date available for the Minister (or after the 2018 amendments, the Authority) to declare the factor B/C.
The respondent refers to the appellant’s submission that the Arbitrator did not explain why the simple operation of subs (1) is contrary to the requirements of s 82A(4), as well as the appellant’s submissions that:
(a)    subsection 4 provides nothing more than the declaration of the number that is derived by application of subs (1);
(b)    without subs (1), subs (4) has no meaning, so that subs (1) is the dominant provision, and
(c)    subsection (4) should be read subject to the dominant provision.
The respondent asserts that this submission is a fundamental misstatement of the operation of s 82A. The respondent submits that there is no basis to assert that one subsection is either dominant or subordinate to another. The respondent says that without the factor B/C declared under s 82A(4), s 82A(1) cannot be calculated, which means that subs (4) is not subordinate to subs (1) and that both subsections are essential integers of the section, which should be read as a whole. The respondent submits the Arbitrator’s finding was correct.
The respondent submits that the appellant’s argument conflicts with the principle of statutory interpretation that courts are not at liberty to consider any word or sentence to be superfluous or insignificant. The respondent says that all words must be given some meaning or effect, citing Commonwealth v Baume.[17] The respondent says that the appellant’s submission means that subs (4) would be excised from s 82A and the subsection would be rendered superfluous or insignificant. The respondent maintains that if accepted, the appellant’s submission would mean that s 82A(1) would operate without the application of the factor B/C as notified by the Minister or the Authority in accordance with s 82A(4). The respondent says that this would be contrary to the section. The respondent adds that the B/C factor, which is required to be applied, is clearly that which is notified by the Minister or the Authority.
[17] [1905] HCA 11; 2 CLR 405.
The respondent contends that the appellant’s submissions suggest that the operation of subss 82A(4) and 82A(5) are “entirely hypothetical and serve no purpose” and that it is extraordinary to assert that “the published figure does not determine the figure for the purposes of B/C.”[18] The respondent says that if that submission is accepted, it suggests that the legislature has created superfluous legislation in the form of subss (4) and (5) and that it leads to the conclusion that the legislative intention was that s 82A(4) can be ignored.
[18] Respondent’s submissions, [13].
The respondent submits that if the appellant’s submission is accepted that the numbers required for the calculation of the indexation are those issued by the Australian Statistician, then s 82A(4) would not be necessary. Further, if the legislature intended that s 82A(1) could apply without s 82A(4), it would have expressed that intention. The respondent submits that the legislature has made it plain that s 82A(1) cannot operate without the factor B/C in s 82A(4).
The respondent contends that the appellant’s submission that the section is clearly beneficial should be rejected and is contrary to the Arbitrator’s reasons in which the Arbitrator followed Goudappel and Cram Fluid. The respondent asserts that the 2012 amendments are not beneficial, have a cost saving purpose, and that s 82A is limited by s 82A(4).
The respondent maintains that the appellant’s submission that the entitlement to indexation commences when the appellant becomes entitled to weekly compensation should be rejected because it ignores the fact that there was no publication of the factor B/C before 1 April 2013. The respondent says that there therefore could be no application of s 82A(1) before 1 April 2013.
The respondent submits that the appellant has failed to identify any error of law and the appeal should be dismissed.

The appellant’s submissions in reply

The appellant submits that it is immaterial that the submissions she makes in the appeal are substantially the same as her submissions made to the Arbitrator. The appellant maintains that the Arbitrator erred in law by not accepting those submissions.
The appellant contends that she explained in her primary submissions that the formula in s 82A(1) can be calculated without a declaration because what is required is the CPI published by the Australian Statistician. The appellant says that these figures are regularly published, are readily available and are independent of any declaration by the Authority.
The appellant asserts that the respondent has misunderstood her primary submissions, which were that a declaration by the Authority that was not in accordance with the formula would be ultra vires of the power in subs (4). The parties are required to accept the figures declared on any review date, which gives subs (4) a valuable operation by providing certainty in respect of the figure declared. The appellant explains that this does not impact on the proposition that subs (4) does not operate if there has been no declaration on any particular review date, where the figure is to be ascertained by applying the formula in subs (1).
The appellant maintains that s 82A does not say that the section does not operate until there is a declaration or that the indexation is in accordance with the number declared. The appellant submits that the formula allows subs (1) to operate on its own.

DISCUSSION

The appellant’s submissions complain that the Arbitrator erred in not accepting her assertions that s 82A of the 1987 Act is retrospective in the sense identified by the High Court in Goudappel. The relevant passage in Goudappel is from the judgment of Gageler J, in which his Honour observed:
“Secondly, a provision of a regulation might be said to have retrospective operation if, and to the extent that, the regulation operates to alter rights or liabilities which have already come into existence by operation of prior law on past events. The potential for a regulation to have retrospective operation in that substantive sense is affected in part by s 30 of the Interpretation Act and in part by the ‘general rule of the common law’ stated by Dixon CJ in Maxwell v Murphy.”[19]
[19] Goudappel, [48].
The rule of common law as expressed by Dixon CJ in Maxwell v Murphy was that:
“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 had defined by reference to the past events.”[20]
[20] [1957] HCA 7; 96 CLR 261, 267.
Section 30(1)(c) of the Interpretation Act 1987 provides that an amendment to an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act unless the contrary intention appears.
The Arbitrator determined that s 82A of the 1987 Act did not operate to “alter rights or liabilities which have already come into existence by operation of prior law on past events.”[21] The Arbitrator, however, expressly stated that he did not “reject the [appellant’s] entitlement based on suggestions of ‘retrospective operation.’”[22] The Arbitrator then reasoned that s 82A did not affect the appellant’s weekly entitlement until the section commenced on 1 October 2012.
[21] Reasons, [31].
[22] Reasons, [31].
The appellant maintains that s 82A operates retrospectively because cl 3 of Part 19H of Sch 6 applies to an injury received before the commencement of the amendment, and it therefore changes the appellant’s rights which vested when the injury occurred.
Clause 3 of Part 19H relevantly provides that the 2012 amendments apply to an injury received and a claim for compensation made before the commencement of the amendment.
On the appellant’s own submission, up until the 2012 amendments, the appellant’s weekly entitlements were determined by the application of the former ss 35, 37 and 40 of the 1987 Act, and were calculated by reference to comparable earnings. The appellant’s rights and entitlements for any period prior to 1 January 2013 remain unaffected by the 2012 amendments. The appellant’s argument is that her PIAWE, which is calculated according to her earnings during the 52 weeks prior to the injury in 2002, should be adjusted twice each year so that her rights and entitlements to weekly compensation from 1 January 2013 would be greater because her PIAWE was higher. That cannot be said to have an effect on the appellant’s past rights or entitlements. The appellant’s reliance on cl 13 of Part 19H of Sch 6 to the 1987 Act is of no assistance. The fact that the amendments encapsulated in s 39 of the 1987 Act are not to be applied retrospectively to the receipt of weekly payments prior to the 2012 amendments does not mean that because there is no such clause in relation to s 82A, s 82A is to be read retrospectively. The presumption is that an enactment has prospective operation.[23]
[23] Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188, [9].

The matter proceeded on the basis that by operation of cl 3, the amount of compensation received by the appellant prior to the amendments was not affected by the amendments, which is clearly correct.
It must be noted that while cl 3 applies to the amendments to the appellant’s “injury,” neither cl 3 of Part 19H of Sch 6 nor s 82A of the 1987 Act express any date upon which the amendments commence to apply to the appellant’s injury. Clause 3 does not say that the amendments apply to the appellant’s injury from when the injury occurred. There is a distinction between an enactment having a prior effect on past events and one that bases future action on a past event.[24] In the absence of the provision of a date earlier than the commencement date of the amendments, the Arbitrator was correct to conclude that s 82A “clearly operates from 1 October 2012.”[25]
[24] Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW).
[25] Reasons, [31].
The appellant complains that the Arbitrator erred by finding that the PIAWE could not be indexed each April and October commencing from 1 April 2002. Apart from the “retrospectivity” argument, the appellant relies on s 82A(1), which expresses that a worker is entitled to an indexation on the first review date after the entitlement to weekly payments arose. The appellant effectively argues that s 82A(1) stands alone and can operate without recourse to subss (4) and (5).
The Arbitrator rejected the appellant’s argument on the basis that, although the calculation put forward by the appellant was in accordance with s 82A(1), it did not comply with s 82A(4). The Arbitrator took into account the words “on each review date on which the worker became entitled to weekly payments” contained in s 82A(1), which he described as “critical.” The Arbitrator determined that the appellant’s approach was to consider the words “review date” in isolation and ignored the clear words and the context of the section.
The process of construction of statutory provisions starts with the words of the statute, read in their context. As the majority said in Alphapharm:
“It is not always appropriate to dissect a composite legislative expression into separate parts, giving each part a meaning which the part has when used in isolation, then combine the meanings to give that composite expression a meaning at odds with the meaning it has when construed as a whole”.[26]
[26] Alphapharm, per Crennan, Bell and Gageler JJ, [61].
The Arbitrator applied Alphapharm and other authorities dealing with statutory construction. The Arbitrator looked at the context of the subsection within the section and the context of the section as part of the 2012 amendments, which included the amendments to weekly payments that were operational from 1 October 2012. The amendments did not impact the appellant’s rights and entitlements in relation to weekly payments until 1 January 2013.[27]
[27] Clause 3(1) of Sch 8 to the Workers Compensation Regulation 2010.
The Arbitrator’s approach and reasoning process was correct. It is important that the subsection is read in the context of the section as a whole. The task of ascertaining the meaning of a statute is not to pull apart a provision into its constituent words and select one meaning in isolation from the context of the provision in which it appears.[28] The context in which the phrase is used must be considered as a whole.[29]
[28] Lorimer v Smail [1911] HCA 44; 12 CLR 504.
[29] XYZ v Commonwealth [2006] HCA 25; 227 ALR 495; 80 ALJR 1036, [102].
Section 82A(1) provides a formula for the calculation of the indexation of the worker’s weekly payment, where “A” is the worker’s PIAWE or if the amount was varied “in accordance with this section, that amount as last so varied” (emphasis added). Subsection (4) provides that the Authority (formerly the Minister) is to declare the number that equates to the factor B/C which is done “for the purposes of the variation required for that review date under this section.” That is, the subsection requires the Authority to publish the declaration for the purpose of implementing the indexation of benefits. Reading the text of the provision as a whole, it is clear that the declaration made by order is a requisite element in the indexation of weekly benefits.
The appellant submits that the legislation allows for the publication of historical figures and the fact that there have been no such publications does not detract from the ability to do so. This submission does not assist the appellant. The declaration by the authority is a requirement in the application of indexation in accordance with the section. The publication of a declaration in respect of any review date prior to 1 April 2013 has not been made.
The appellant’s submission that subs (1) is the “dominant” provision also cannot be accepted. There is no conflict between subs (1) and subs (4) of s 82A. Subsection (4) simply requires the Authority to perform an act that enables a review and indexation of a worker’s weekly payments in accordance with subs (1) and in accordance with the section as a whole. If it is possible for both provisions to operate together, there is no requirement to determine a leading provision and a subordinate provision.[30] Such an exercise is not required in this case.
[30] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841.
The appellant complains that the Arbitrator simply assumed that there could be no calculation of the formula without a declaration pursuant to subs (4). The appellant says that subss (4) and (5) do not require that the number published by the Authority or the Minister is to be used and does not deem the published number to be the result of applying the formula. The appellant’s submission ignores the plain words of subs (4) that the number declared by the authority “equates to the factor B/C” and “for the purpose of the variation.”
The appellant further submits that if the Arbitrator’s decision was correct, then the Authority could avoid indexation by not making a declaration. This submission also ignores the plain words of the statute, which requires the Authority to make the declaration. The Authority does not have a discretion to avoid making the declaration.
The appellant contends that the Arbitrator erred in his determination of the effect of subs (5), because subs (5) does not deem the numbers that make up the formula. The Arbitrator dealt with subs (5) in the following terms:
“I accept the [appellant’s] submission that s 82A(5) provides that the Authority can publish a figure after the review date and that means ‘that the legislation allows for the publication of historical review dates.’ However, what the submission ignores is that the Authority, and previously the Minister, did not publish ‘historical review figures’ for the period prior to 1 April 2013. Whilst such a right clearly exists under s 82A(5), it has not been exercised. The review figures specifically provide that the indexation commences on 1 April 2013.
In my view that description of s 82A(5) supports the interpretation I previously reached, that is it allows the Authority to make a declaration to be published on the website that can be backdated. If the publication had no force and was only a ready reckoner, then there would be no need to provide that the order could be backdated.”[31]
[31] Reasons, [39]–[40].
Further, the Arbitrator considered that the word “equate” was a clear expression of meaning and that the words “has effect as if” in s 82A(5) were words similar to having a deeming effect.
The Arbitrator’s conclusion that the words “has effect as if” constituted a deeming effect is logical and it follows that the figure declared in accordance with subs (5) is deemed to be the number that makes up the factor B/C. It is patently clear when reading the section as a whole, and in particular subs (4), that the number declared, whether it is made before or on the review date or declared historically, is the number that “equates to the factor B/C” and “for the purpose of the variation”(subs (4)).
The appellant’s submission is misguided and does not disclose any error on the part of the Arbitrator in dealing with s 82A(5).
The appellant maintains that it is not necessary to ascertain whether s 82A is or is not beneficial. The Arbitrator did not make a determination in relation to the beneficial nature of the section or otherwise.
This appeal is limited to the identification of error and the rectification of that error. It is not necessary for me to address the appellant’s further submission that s 82A is beneficial in nature, and that any ambiguity should be resolved in the appellant’s favour. In any event, there is no ambiguity in the section so that it is not necessary to give consideration to whether s 82A is beneficial in nature.[32]
[32] Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622.

CONCLUSION

The Arbitrator’s reasons and conclusions were logical and soundly based on accepted authority. For all of the above reasons, the appellant has not established error on the part of the Arbitrator as required by s 352(5) of the 1998 Act and the appeal fails.

DECISION

The Arbitrator’s Certificate of Determination dated 6 November 2019 is confirmed.

Elizabeth Wood
Deputy President

25 March 2020