Victorian WorkCover Authority v Twentieth Super Pace Nominees Pty Ltd
[2015] VCC 1074
•17 August 2015
| IN THE COUNTY COURT OF VICTORIA AT Melbourne (transferred from Geelong) Common law DIVISION | Revised Not Restricted Suitable for Publication |
gENERAL LIST
Case No. CI-13-05343
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| TWENTIETH SUPER PACE NOMINEES PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne (transferred from Geelong) | |
DATE OF HEARING: | 13 April 2015 | |
DATE OF JUDGMENT: | 17 August 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Twentieth Super Pace Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1074 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: ACCIDENT COMPENSATION – the Victorian WorkCover Authority (“VWA”) was the plaintiff in recovery proceedings under s138 of the Accident Compensation Act 1985 (“the Act”) – by consent, judgment was entered in favour of the VWA in the amount of $109,000.00 – question of costs to be determined by the Court
COSTS – the VWA argued that costs should be assessed on the County Court Scale under the general costs rule – the defendant argued that the general costs rule should be displaced and that costs should be assessed on the Magistrates’ Court Scale, pursuant to s50(3) of the Act – whether costs to be reduced to the Magistrates’ Court Scale pursuant to s50(3) of the Act – whether VWA a “claimant” under s50(3) of the Act – Court satisfied that a “claimant” in s50(3) of the Act means a person who makes or has made a claim for compensation or statutory benefit under the Act – Court satisfied that a proceeding under s138 of the Act is not a claim for compensation or statutory benefit – VWA not a “claimant” under s50(3) of the Act – general costs rule not displaced in this instance – costs awarded at the County Court Scale
STATUTORY INTERPRETATION – whether the term “claimant” in s50(3) of the Act should be given a broad meaning which includes the VWA or a narrow meaning which does not include the VWA – principles of statutory interpretation applied by the Court – the modern approach to statutory interpretation insists that context be considered at the first instance – Court satisfied that the language of the Act in the context in which the term “claimant” appears conveys that only those who make claims for compensation or statutory entitlements are “claimants” – term “claimant” in the Act to be interpreted consistently as there is no reason to do otherwise – Court satisfied that its construction of “claimant” consistent with legislative intent and the purposive approach to statutory interpretation
Legislation Cited: Accident Compensation Act 1985, s138; Workplace Injury Rehabilitation and Compensation Act 2013, s278(5); County Court Act 1958, s50 and 78A; Civil Procedure Act 2010, Part 4.5, s65a-65E; County Court Civil Procedure Rules 2008, r63A; Limitation of Actions Act 1958, s23A; Motor Accidents Compensation Act 1999 (NSW), s3; Interpretation of Legislation Act 1984
Cases Cited:Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230; John Lewis Food Service Pty Ltd v Reynolds [2014] VSCA; Victorian WorkCover Authority v Goodman Fielder Consumer Foods Pty Ltd (No 2) [2014] VCC 1722; Read v Brown (1882) 22 QBD 128; West Wake Price & Co v Ching [1956] 3 All ER 821; Anisiena v Crane Haulage Pty Ltd [1974] VR 670; Independent Commission Against Corruption v Cunneen [2015] HCA 14; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 88 ALJR 847; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436; Corkery v Carpenter [1951] 1 KB 102; Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 40 FCR 59; Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208; Commonwealth v Baume (1905) 2 CLR 405; R v Berchet (1688) 1 Show KB 106; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1; Coco v The Queen (1994) 179 CLR 427; Esso Australia Ltd v Victorian WorkCover Authority; Victorian WorkCover Authority v Coats Paton Pty Ltd [2000] VSCA 74; Borg Warner Australia Ltd v Zupan [1982] VR 437; Philip Morris Ltd v Ainley and Anor [1975] VR 345; Tuckwood v Rotherham Corporation [1921] 1 KB 526
Judgment: VWA not a claimant under s50(3) of the Act. General costs rule not displaced. Costs awarded at the County Court Scale.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC | Russell Kennedy |
| For the Defendant | Mr S A Smith | Wotton + Kearney |
Table of Contents
Page
Introduction........................................................................................................................................ 1
Summary............................................................................................................................................. 1
The hearing......................................................................................................................................... 2
The issue............................................................................................................................................. 3
The submissions............................................................................................................................... 3
The Defendant’s submissions..................................................................................................... 3
The Plaintiff’s submissions.......................................................................................................... 4
The power to award costs.............................................................................................................. 4
Words defined in the Act, but not “claimant”........................................................................... 5
The alternative meanings of "claimant” contended by the parties.................................... 6
Who is a “claimant”?....................................................................................................................... 7
Dictionary definitions – standard and legal............................................................................... 7
Judicial attention............................................................................................................................ 8
Principles of statutory construction......................................................................................... 10
Context and purpose....................................................................................................... 10
Is a broader construction presumed?........................................................................... 11
Presumption that all words and provisions have work to do..................................... 12
The legal meaning Parliament is taken to have intended.......................................... 12
The Interpretation ofLegislation Act 1984................................................................... 13
Words in statute to be interpreted consistently unless there is reason to do
otherwise........................................................................................................................... 13Other canons of interpretation: Ejustem generis and noscitur a sociis................... 14
Application of the principles of statutory construction....................................................... 14
Context and purpose and Section 35 Interpretation of Legislation Act................... 14
Is a broad construction presumed?............................................................................... 44
Presumption that all words and provisions have work to do..................................... 45
The legal meaning Parliament is taken to have intended.......................................... 45
Section 35 Interpretation of Legislation Act................................................................. 46
Words in statute to be interpreted consistently unless there is reason to do
otherwise........................................................................................................................... 46Other canons of interpretation........................................................................................ 46
Goodman Fielder............................................................................................................................ 46
Conclusion....................................................................................................................................... 46
Orders................................................................................................................................................ 47
HER HONOUR:
Introduction
1 This was a “recovery proceeding”[1] brought by the Victorian WorkCover Authority (the “VWA”) under s138 of the Accident Compensation Act 1985 (“the Act”), following jury verdict in common law proceedings brought by Wolfgang Richter against Downer EDI Rail Pty Ltd (the first defendant) and Twentieth Super Pace Nominees Pty Ltd (the second defendant) (Case CI-13-02795 “the principal proceedings”). The jury found both defendants liable and judgment was entered in accordance with the jury’s verdict.
[1]The proceedings are not referred to as “recovery proceedings” in the Act. Section 138 is entitled “Indemnity by third party”.
2 The recovery proceedings were listed to follow the principal proceedings. However, the parties requested a brief adjournment to enable settlement discussions to take place.
3 Fortunately, the parties arrived at a suitable settlement and the only issue they asked me to resolve was the question of costs.
Summary
4 By consent, judgment was entered in favour of the VWA in the recovery proceedings in the amount of $109,000.00.
5 The plaintiff sought costs under the County Court Scale, with a portion on an indemnity basis. The defendant agreed that a costs order in favour of the plaintiff was inevitable, however argued that the appropriate scale is the Magistrates’ Court scale, relying on s50(3) of the Act.
6 Ordinarily, costs in this Court are in the discretion of the Court and usually they follow the event, on the applicable County Court Scale (“the general costs rule”). However, in certain circumstances, the general costs rule may be displaced. The Act contains a number of provisions that operate to displace the general costs rule. One such example is s50(3).
7 Section 50(3) has the effect of reducing “worker” or “claimant” costs to the Magistrates’ Court Scale, in defined circumstances, even if proceedings were instituted in the County Court.
8 The issue raised is whether the VWA, as plaintiff in a recovery proceeding brought under s138 of the Act, may be characterised as a “claimant” as that term is used in s50(3) of the Act. If so, and if the remaining preconditions of that subsection are satisfied, the amount of costs to be awarded in favour of the VWA must be reduced to the applicable Magistrates’ Court Scale.
9 For reasons that follow, I conclude that as a matter of statutory interpretation, in s50, “claimant” means a person who makes or has made a claim for compensation under the Act. When seeking entitlement to indemnification from a third party in accordance with s138 of the Act, the VWA makes no claim against the statutory fund for compensation or benefits, and, therefore the Authority is not a “claimant” for the purposes of s50(3) of the Act. Accordingly, the sub-section is not engaged and the general costs rule is not displaced.
10 I propose to order that the defendant pay the plaintiff’s costs on County Court Scale until the expiration date of an offer of compromise made in accordance with the County Court Civil Procedure Rules 2008, and thereafter on an indemnity basis.
The hearing
11 On 13 April 2015, the parties announced that the recovery proceedings had settled and they proposed a number of orders be made by consent, including that judgment be entered in favour of the plaintiff in the amount of $109,000.00. The costs argument then ensued. Ms J Forbes QC appeared on behalf of the VWA. Mr S Smith appeared on behalf of the defendant. Counsel tendered written submissions. They also presented oral arguments.
The issue
12 The general costs rule is that in proceedings in the County Court the successful party is entitled, prima facie, to an award of costs on the applicable County Court Scale. It is not in controversy that, if it applies, s50(3) of the Act displaces the general costs rule and compels the award of costs to be made under the Magistrates’ Court Scale.[2]
[2]Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230 at [5]; John Lewis Food Service Pty Ltd v Reynolds [2014] VSCA 162 at [16]
13 Section 50(3) provided:[3]
“(3) Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgement[4] or decision is a judgement or decision that could have been made by the Magistrates’ Court, had the proceedings been brought in the Magistrates’ Court, must be awarded as if the scale of costs applicable in the Magistrates’ Court applied.”
[3]The section has since been repealed and is replaced by s278(5) of the Workplace Injury Rehabilitation and Compensation Act 2013
[4]Curiously, “judgement” and “judgment” are both used in s50
14 Although the word “claimant” is used in combination with other words to constitute defined phrases in the Act, the term “claimant” simpliciter is not defined.[5]
[5]For example “pre-12 November 1997 claimant” in relation to a claim for compensation in the form of weekly payments is defined in s91E to mean a worker, provided certain pre-requisites are established.
15 The issue is whether, in proceedings brought by the VWA under s138 of the Act, the VWA plaintiff is a “claimant” within the meaning of s50(3), so as to compel the reduction of an order for costs in its favour to the Magistrates’ Court scale.
The submissions
The Defendant’s submissions
16 In summary, Mr Smith submits that the VWA claimed entitlement to be indemnified by a third party (the defendant) in accordance with s138 of the Act, and is therefore a “claimant” for the purposes of s50(3).
17 A full copy of Mr Smith’s submissions is attached as Annexure A.
The Plaintiff’s submissions
18 In summary, Ms Forbes submits that the term “claimant” in s50(3) of the Act, when read with its context and legislative purpose in mind, can only refer to a person making a claim for statutory benefits, entitlements or compensation under the statutory scheme. When seeking indemnity from a third party under s138 of the Act, the VWA is not making a claim for compensation or for a statutory benefit under the scheme. Rather, it is making application as a plaintiff (not a claimant) to be indemnified by a third party.
19 A full copy of Ms Forbes’ submissions is attached as Annexure B.
The power to award costs
20 The general power to award costs in County Court proceedings is conferred by s78A of the County Court Act 1958:
“78A Costs
(1)The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.”
21 There are further sources of power to award costs in civil proceedings conferred by the Civil Procedure Act 2010.[6]
[6]Part 4.5 – Sections 65A – 65E
22 Under s78(1)(a) of the County Court Act, the Court has jurisdiction to make rules:
“(a)for regulating any matters relating to the costs of proceedings in the court, and for regulating and prescribing the scales of fees and costs to be paid to counsel and practitioners.”
23 Order 63A of the County Court Civil Procedure Rules 2008 regulates costs in the County Court.
24 Neither the general costs rule nor the discretionary power to award costs is absolute: They may be displaced by other statutory provisions, rules or orders. I have mentioned that s50(3) of the Act as but one example. There are others, such as those provided in s134AB, ss(28) and ss(29) and in s134AG, s134AGA and s134AGB of the Act and in the Litigated Costs Orders made by the Governor in Council.
Words defined in the Act, but not “claimant”
25 The term “claimant” simpliciter is not defined in the Act. The meaning of the word is to be interpreted according to the principles of statutory construction.
26 However, “claimant” is used in combination with other words that are defined elsewhere in the Act. I shall refer to these definitions a little later.
27 The terms “Authority”, “employer”, “self-insurer” and “worker” are defined in section 5:
“Authority means the Victorian WorkCover Authority established under this Act.”
“employer includes—
(a) a person—
(i)for whom a worker works; or
(ii)with whom a worker agrees to perform work—
at the person’s direction, instruction or request, whether under a contract of employment (whether express, implied oral or in writing) or otherwise; and
(b) a person who is deemed to be an employer under this Act; and
(c)if the services of a worker are temporarily lent or let on hire to another person by, or with the consent of, the person with whom the worker has entered into a contract of employment or apprenticeship or otherwise—the last mentioned person, while the worker is working for that other person; and
(d) the legal personal representative of an employer who is dead.”
“self-insurer means—
(a) a body corporate approved as a self‑insurer under Part V; or
(b) a body corporate that has ceased to be a self-insurer—
(i)which has elected or entered into an arrangement with the Authority to retain liability for its tail claims; and
(ii)has not ceased to be liable for those claims.”
“worker means an individual—
(a) who—
(i)performs work for an employer; or
(ii)agrees with an employer to perform work—
at the employer's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or
(b) who is deemed to be a worker under this Act.”
The alternative meanings of ‘claimant” contended by the parties
28 Mr Smith submits that since the term “claimant” is not defined in the Act, its meaning is ambiguous. Accordingly, the word should be given its broadest and most benevolent interpretation possible. On his construction, “claimant” means any person or entity who makes any claim (allegation or assertion of right) or application for entitlement (relief) available under the Act. Since s138 creates a right in the VWA to seek entitlement to indemnity from a third party, when claiming entitlement under the Act, the VWA is claimant.
29 On this interpretation “claimant” has the same meaning as “plaintiff, applicant” or “any person/party who institutes proceedings under the Act”.
30 Mr Smith relies on the recent ruling of his Honour Judge Murphy in Victorian WorkCover Authority v Goodman Fielder Consumer Foods Pty Ltd (No 2)[7] (“Goodman Fielder”) in which his Honour found:
“[18] … I accept the submission … that s50(3) of [the Act] is wide enough to include the plaintiff [VWA] as a ‘claimant’ for the purposes of s50(3).
…
[21]A claim for benefits and a claim under s138 is in the same Part IV of [the Act] and there is no basis to find that any differing regime in relation to costs should apply.”
[7][2014] VCC 1722. Mr Smith appeared in that case.
31 On the other hand, Ms Forbes submits a narrower construction is to be preferred. She argues that the interpretation of the term is best informed by reference to its context not only within the section, but also within the relevant Part of the Act and in the overall scheme of the Act. Ms Forbes submits that the construction pressed by Mr Smith is not consonant with the purpose of the section, which she submits regulates costs only in proceedings that have not been instituted by the Authority, employer or self-insurer. Since proceedings under s138 can only be instituted by the Authority, employer or self-insurer, they fall beyond the scope of the section. Moreover, under the statutory scheme for compensation established by the Act, the VWA has responsibility for administering the fund and for determining at first instance whether a claimant who has lodged a claim form with supporting material seeking a statutory benefit is so entitled. In this capacity, the VWA cannot be both claimant and decision-maker. Further, she submits that a proceeding brought under s138 is not a claim against the statutory fund and no claim form is involved. Rather, such a proceeding is a suit for indemnity brought against a third party to recover, inter alia, compensation paid or payable under the Act by the Authority, employer or self-insurer to a successful claimant for compensation or statutory benefit or entitlement.
32 Ms Forbes respectfully submits that Goodman Fielder is not binding authority and that, in any event, it should not be followed.
Who is a “claimant”?
33 Because the critical term “claimant” is not defined in the Act, its interpretation is to be determined by the application of the principles of statutory construction.
Dictionary definitions – standard and legal
34 “Claimant” is defined in the Macquarie Dictionary as follows:
“claimant … noun one who makes a claim.”[8]
[8]Revised Third edition, page 359
35 “Claim” is defined in the same dictionary as follows:
“claim … verb .. 1. to demand by or as by virtue of a right; demand as a right or as due. 2. to assert, and demand the recognition of (a right, title, possession, etc.); 3. to assert or maintain as a fact. 4. to require as due or fitting. 5. to need, especially to need deservingly. - noun 6. a demand for something as due; an assertion of a right or alleged right. 7. an assertion of something as a fact. 8. a right to claim or demand; a just title to something. 9. that which is claimed. 10. a piece of public land to which formal claim is made for mining of other purposes. 11. a payment demanded in accordance with an insurance policy, etc.”[9]
[9](ibid) at page 359
36 Dictionary definitions alone do not resolve the matter, since both broad and narrow meanings are available.
37 Butterworths Australian Legal Dictionary[10] does not define “claimant”; however “claim” is defined as follows:
“The assertion of a right or demand to a right to property or to a remedy, a cause of action, the grounds in pleadings upon which relief is claimed: Read v Brown (1882) 22 QBD 128. Causes, actions and matters are all classes of claim, but ‘claim’ is a wider expression than any of these. Also known as ‘action’, ‘cause’, ‘cause of action’, or ‘matter’.”[11]
[10]1997 edition
[11]At page 198
Judicial attention
38 In West Wake Price & Co v Ching,[12] Devlin J considered the meaning of “claim” in an insurance policy. The policy provided cover:
“… against any ‘loss for any claim or claims which may be made against them … in respect of any act of neglect, default or error on the part of the assured … or their partners or their servants in the conduct of their business as accountants’.”
[12][1956] 3 All ER 821 at 829
39 The underwriters (in a clause called for convenience the “Q C clause”) further agreed –
“… to pay ‘any such claim or claims which may arise without requiring the assured to dispute any claim, unless a King’s Counsel ... advise that the same could be successfully contested by the assured, and the assured consents to such claim being contested, but such consent not to be unreasonably withheld’.”
40 Devlin J rejected the proposition that the word “claim” in the context of the policy was interchangeable with “cause of action”. He referred to the Oxford Dictionary definition of “claim”, and observed:
“I think that the primary meaning of the word ‘claim’ – whether used in a popular sense or in a strict legal sense – is such as to attach it to the object that is claimed; and is not the same thing as the cause of action by which the claim may be supported or as the ground on which it may be based. In the Oxford Dictionary ‘claim’ is defined as: first, ‘A demand for something as due; an assertion of a right to something’; secondly, ‘Right of claiming; right or title (to something or to have, be, or do something; also on, upon the person, etc., that the thing is claimed from).’ All the examples given under these two heads are examples of claims made to an object or on a person. Under the verb ‘to claim’ it is observed that it is ‘often loosely used, especially in the United States, for: contend, maintain, assert’ I do not doubt that the word is frequently used in this looser meaning of ‘contention’, or that it is often used by lawyers as if it meant the same thing as a cause of action.”
41 However, in the context of the policy, Devlin J preferred the narrower construction of “claim”, holding it meant a claim that fell within the terms of the policy, not a claim that founds a number of causes of action.
42 In Anisiena v Crane Haulage Pty Ltd,[13] Starke J considered the meaning of “claimant” for the purposes of s23A of the Limitation of Actions Act 1958. His Honour cautioned of the danger inherent in construing the language of one Act by reference to cases decided upon another Act where the language is quite different.[14] In the case before him, a narrow construction of “claimant” was given, meaning the term was confined to the person making the claim under the provision, and was not wide enough to include that person’s servants or agents.
[13][1974] VR 670
[14](op cit) at 674
43 Apart from the observation that s50 and s138 of the Act appear in the same part, in Goodman Fielder, Murphy J expressed no further reasons why “claimant” should be given a broad interpretation that permits the VWA to be a “claimant” under s 50(3) of the Act.
44 No meaningful assistance can be gained from cases judicially decided in other States about similar legislative schemes, since the term “claimant” is either defined in the relevant legislation,[15] or the statutory provisions are not identical to the provisions under consideration here.
[15]For example “claimant” is defined in s3 of the Motor Accidents Compensation Act 1999 (NSW) as: “claim means a claim for damages in respect of the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle” and “claimant means a person who makes or is entitled to make a claim.”
Principles of statutory construction
(1) Context and purpose
45 In the High Court’s recent decision in Independent Commission Against Corruption v Cunneen,[16] the plurality[17] observed:
[16][2015] HCA 14
[17]French CJ, Hayne, Kiefel and Nettle JJ
“[31]As was said in Project Blue Sky Inc v Australian Broadcasting Authority:[18]
‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole. ... . ’
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. (emphasis added, footnotes omitted).”
[18](1998) 194 CLR 355 at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28, recently applied in Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 389 [24] per French CJ and Hayne J; [2012] HCA 56 and in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 88 ALJR 847 at 855 [42] per French CJ, Hayne, Crennan, Kiefel and Keane JJ; 312 (2014) ALR 537 at 546; [2014] HCA 34.
46 And, later in the judgment:
[57]... Contrary to counsel's submission, there was and is nothing impermissible about looking to the context in which s 8(2) appears or seeking guidance from the objects of the ICAC Act as stated in s 2A. Rather, as Mason J stated in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, it was and is essential to do so:[19]
‘[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [Cth];[20] Attorney-General v Prince Ernest Augustus of Hanover.[21] Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.’”
[19](1985) 157 CLR 309 at 315; [1985] HCA 48. See also Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; [1997] HCA 2; Project Blue Sky (1998) 194 CLR 355 at 381 [69]; Pearce and Geddes, Statutory Interpretation in Australia, 8th ed (2014) at 148 [4.3].
[20](1981) 147 CLR 297 at 304 per Gibbs CJ, 319-320 per Mason and Wilson JJ; [1981] HCA 26.
[21][1957] AC 436 at 461 per Viscount Simonds, 473 per Lord Somervell of Harrow
(2) Is a broader construction presumed?
47 On the question of whether a broad construction of words is to be preferred over a narrow one, in Cunneen,[22] the High Court held that context informed the answer:
“[58] Counsel for ICAC further submitted that … ‘corruption’ was an expression of such uncertain connotation … that there was no warrant for inferring from the objects of the ICAC Act stated in s 2A that the kind of corrupt conduct defined in s 8(2) is limited accordingly.
[59]So to reason, however, is to invert proper processes of construction. It amounts to assuming that the words of s 8(2) are used in their broadest possible sense and then excluding all the contextual indications which imply that they have a more narrow and focussed meaning. Expressions of indefinite connotation are especially susceptible to context. They may and frequently do mean one thing in one legislative context and something quite different in another. To ignore context in those circumstances is calculated to lead to error.[23] For the reasons that have been given, the provisions of the ICAC Act as a whole (including s 2A) operate more harmoniously on the footing that the Act is directed towards promoting the integrity and accountability of public administration in the sense of maintaining probity in the exercise of official functions. That is the context from which the relevant concept of ‘corruption’ emerges.”
[22]Supra
[23]See for example Corkery v Carpenter [1951] 1 KB 102 at 105-106 per Lord Goddard CJ; Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 40 FCR 59 at 62 per Gummow J; Pearce and Geddes, Statutory Interpretation in Australia (8th ed) (2014) at 148 [4.3]
48 Context requires examination of the subsection, the section and the Act as a whole. As Barwick CJ observed in Taylor v Public Service Board (New South Wales):[24]
“But the final words of the subsection clearly have an impact upon what the subsection as a whole provides. Even so, these must be read, not as displacing or rendering nugatory the earlier words of the subsection. Their meaning and operation must be read with and accommodated to the rest of the section.”[25]
[24](1976) 137 CLR 208
[25]At 213
(3) Presumption that all words and provisions have work to do
49 In Project Blue Sky,[26] the High Court emphasised that an important principle of statutory construction is that words are presumed to have work to do:
“[71]… [A] court construing a statutory provision must strive to give meaning to every word of the provision.[27] In The Commonwealth v Baume[28] Griffith CJ cited R v Berchet[29] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[30]
[26]Supra
[27]The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration [Local Government & Ethnic Affairs] (1992) 176 CLR 1 at 12‑13 per Mason CJ
[28](supra) at 414
[29](1688) 1 Show KB 106 [89 ER 480]
[30]At 382
(4) The legal meaning Parliament is taken to have intended
50 In Project Blue Sky,[31] the High Court noted that when interpreting statutes, the Court must consider the legal meaning parliament is taken to have intended:
“[78]... [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction[32] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:[33]
‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.’ (footnotes omitted).”
[31](supra) at 384
[32]For example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v The Queen (1994) 179 CLR 427 at 437
[33]3rd ed (1997) at 343-344
(5) The Interpretation ofLegislation Act 1984
51 The Interpretation ofLegislation Act 1984 invokes a purposive approach in statutory construction. Section 35 provides:
“35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i)all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament;
(iii)explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv)reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.”
(6) Words in statute to be interpreted consistently unless there is reason to do otherwise
52 In Registrar of Titles (WA) v Franzon,[34] Mason J noted:
[34](1975) 132 CLR 611
“It is a sound rule of construction togive the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”[35].
[35]Barwick CJ and Jacobs J agreeing. Also see: Gardner v R (2003) 39 MVR 308; [2003] NSWCCA 199, para [43]; Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156, para [128]; DPP v Scott [2004] VSC 129, para [22]; University of Tasmania v Mary-Anne Cane [1994] TASSC 73; (1994) 4 Tas R 156 per Wright J and Slicer J (delivering separate judgments) with Cox J agreeing.
(7)Other canons of interpretation: Ejustem generis and noscitur a sociis
53 Consideration may also be given to the rebuttable canons of interpretation, such as ejustem generis - noscitur a sociis, both of which support the narrower construction of “claimant” advanced by Ms Forbes. However, these canons are not determinative.
Application of the principles of statutory construction
(1)Context and purpose and Section 35 Interpretation of Legislation Act
54 It is convenient to deal with these topics together.
55 The starting point is to examine the words of the statute and the context in which they appear.
Section 50 of the Act – examination of subsection (3) in the context of the section as a whole
56 Section 50 provided:
“50 Costs –
(1)Subject to this Act, in proceedings before the County Court under this Act or the Workers Compensation Act 1958 being proceedings brought by a person other than the Authority, employer or a self-insurer, the Court—
(a)must award costs against the party against whom a judgement or decision is made; and
(b)may, if it considers it appropriate, include in an order under paragraph (a) an award of costs to the representative of a worker in whose favour a judgement or decision is made; and
(c)must not otherwise make an award of costs.
(2)Nothing in subsection (1) applies to proceedings brought by the Authority, employer or a self‑insurer.
(2AA)Subsections (3) to (6) do not apply in proceedings before the County Court commenced before the commencement of section 5 of the Accident Compensation and Other Legislation (Amendment) Act 2006 if the only reason why those subsections would apply is because of the amendment of section 43 by that section.
(2A)In proceedings before the County Court under this Act which relate to a claim under section 98 or 98A, if a judgment or order is made by the County Court for the payment of an amount of compensation to the claimant—
(a)which is not less than 90 per cent of the claimant's counter statutory offer but is greater than the statutory offer made by the Authority, employer or self-insurer—the Authority, employer or self-insurer must pay the claimant's party and party costs and must bear their own costs; or
(b)which is equal to or less than the statutory offer made by the Authority, employer or self-insurer—the claimant must pay the party and party costs of the Authority, employer or self-insurer and bear his or her own costs; or
(c)which is greater than the statutory offer made by the Authority, employer or self-insurer but less than 90 per cent of the counter statutory offer made by the claimant—each party must bear their own costs—
and the County Court must not otherwise make an award of costs.
(2B)If a direction of a Conciliation Officer under Division 2 of Part III is revoked by the County Court or Magistrates’ Court in an application under section 60, unless the County Court or Magistrates’ Court has made an order under section 60(4)(b), the County Court or Magistrates’ Court must order that the costs of the worker are to be paid by the person who made the application and must not order that the costs of the person who made the application be paid by the worker.
(3)Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgement or decision is a judgement or decision that could have been made by the Magistrates’ Court, had the proceedings been brought in the Magistrates’ Court, must be awarded as if the scale of costs applicable in the Magistrates' Court applied.
(4)If a settlement or compromise is made in respect of proceedings in the County Court brought under this Act by a worker or claimant and the outcome achieved by the settlement or compromise could have been achieved by a judgment or decision made by the Magistrates’ Court had the proceedings been brought in the Magistrates’ Court—
(a)subsection (5) and (6) apply in respect of that settlement or compromise; and
(b)whether or not an agreement referred to in subsection (5) is entered into, the worker or claimant or his or her legal practitioner is not entitled to receive either directly or indirectly from the other party to the proceedings an amount for or in respect of the legal practitioner appearing for or acting on behalf of the worker or claimant in the proceedings that exceeds the amount the worker or claimant or legal practitioner could have been awarded if the scale of costs applicable in the Magistrates’ Court applied.
(5)An agreement must not be entered into in respect of, or which forms part of, the settlement or compromise which provides that the worker or claimant or his or her legal practitioner is to receive directly or indirectly from the other party to the proceedings for or in respect of the legal practitioner appearing for or acting on behalf of the worker or claimant in the proceedings, an amount which exceeds the amount that the worker or claimant or legal practitioner could have been awarded if the scale of costs applicable in the Magistrates’ Court applied.
(6)An agreement which does not comply with subsection (5) is void but the validity of the settlement or compromise is not otherwise affected.
(7)This section has effect despite anything to the contrary in any other Act or law.”
57 Subsections (1) and (2) specifically provide that the costs power referred to applies only to proceedings brought by a person other than the Authority, employer or self-insurer. If ss(1) and ss(2) control the whole of the section (I am inclined to the view that they do), then ss(3) can have no application since a proceeding under s138 can only be brought by the Authority, employer or self-insurer.
58 Subsection (2A) concerns proceedings relating to specific claims, namely those under s98 and s98A. In the introductory paragraph, both terms “claim” and “claimant” are used. The use of these terms is consistent with their use in s98, s98A, s103 and s104.[36] In subparagraphs (a), (b) and (c) of s50(2A), the term “claimant” is used in a manner, purpose and context to distinguish it from “Authority, employer or self-insurer”. In this subsection, “claimant” is not interchangeable with the VWA. The most rational interpretation is that “claimant” means the person who makes a “claim” under s98 or s98A.
[36]These provisions are examined in more detail later in this judgment, to reason that “claimant” means a person who lodges a claim for compensation against the statutory fund, in writing, in approved form, with supporting materials.
59 Pausing at this point, to adopt Mr Smith’s broad construction would require an elastic and somewhat inconsistent approach when defining the same word for the purposes of the single section – first, the construction must be narrow in the case of ss(2A), since claimant cannot there mean VWA (the terms are mutually exclusive), but then the construction must be broad in the case of ss(3) where it must mean the VWA (the terms are not mutually exclusive). Mr Smith gave no satisfactory explanation how the same word, appearing in the same section can both exclude and include the VWA.
60 If ss(1) and ss(2) do not control the rest of the section, consideration must be given to the purpose of:
· the Act;
· section 50; and
· section 138.
Overall, what is the purpose/objects sought to be achieved by the Act?
61 The objects of the Act are set out in s3. So far as relevant for present purposes, the objects are defined:
“3 Objects of Act
The objects of this Act are—
...
(d)to provide adequate and just compensation to injured workers;
(e)to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses;
(f)to establish incentives that are conducive to efficiency and discourage abuse;
...
(h) to establish and maintain a fully-funded scheme;
(i)in this context, to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation.”
62 Among the objects that the Act seeks to achieve is containment of the burden of costs of workers or accident compensation on businesses and on the broader community. By containing the financial burden in this manner, the object of providing adequate and just compensation from a fully-funded scheme is enhanced.
The statutory scheme and how it is administered
63 The Act establishes the creation of the Authority[37] and a fund from which claims for compensation are to be paid.[38] The Authority is responsible for administration of the fund and assessment of claims.
[37]Part II, Division 1
[38]Part II, Division 3
64 Section 19 sets out the objectives of the Authority. So far as relevant for present purposes, these objectives include:
“19 Objectives of the Authority
The objectives of the Authority are to—
(a)manage the accident compensation scheme as effectively and efficiently and economically as is possible;
(b)administer this Act, the Accident Compensation (WorkCover Insurance) Act 1993, the Workers Compensation Act 1958, the Occupational Health and Safety Act 2004, the Equipment (Public Safety) Act 1994, the Dangerous Goods Act 1985 and any other relevant Act;
…
(f)ensure that appropriate compensation is paid to injured workers in the most socially and economically appropriate manner and as expeditiously as possible;
(g)develop such internal management structures and procedures as will enable the Authority to perform its functions and exercise its powers effectively, efficiently and economically.”
65 The functions of the Authority are also defined by the statute, in s20, and so far as relevant for present purposes, provide:
“20 Functions of the Authority
(1) The functions of the Authority are to—
(a)administer the WorkCover Authority Fund;
(aa) receive and assess and accept or reject claims for compensation;
(b)pay compensation to persons entitled to compensation under this Act;
(ba)administer the Uninsured Employers and Indemnity Scheme under the Accident Compensation (WorkCover Insurance) Act 1993;
...
(d)ensure that the scheme of accident compensation is competitive and fully-funded;
...
(e)conduct or defend proceedings before a court or tribunal;
(f)provide insurance for the purposes of this Act and the Accident Compensation (WorkCover Insurance) Act 1993;
(g)defend actions against employers under this Act and at common law;
...
(n)develop equitable and effective programs to identify areas of unnecessarily high cost to the workers compensation system and, as far as practicable, to reduce those costs;
…
(r)implement measures to deter and detect fraudulent workers compensation claims;
…
(zb) carry out other functions specified under this Act or any other Act.
(2) In performing its functions, the Authority must—
...
(b)ensure the efficient, effective and equitable …. compensation of persons injured at work;
(c)ensure the financial viability and efficient operation of the workers compensation arrangements;
... .”
66 The powers of the Authority are set out in s20A and s20B.
67 The Act both limits and governs the types of claims that can be made against the scheme, the class of persons entitled to make these claims, and the prerequisites to be satisfied in order to qualify for compensation.
68 The “no-fault” statutory scheme entitles a person injured arising out of, or in the course of employment to compensation.[39] Under the scheme, various entitlements are available. Applicants for compensation under the statutory scheme are generally referred to as claimants.[40] But the Act contains no provision that entitles the VWA to compensation. The VWA is not a person injured arising out of, or in the course of employment. Nowhere in the Act is the VWA ever referred to as a claimant.
[39]Section 82 and Part IV of the Act
[40]See for example s103(4H) and (5); s104(1)(a),(b), (2)(b), (c) and (d), (3), (7), (8)(a), (11A) and (11B)
69 Those who are entitled to make claims for compensation include workers and persons who are deemed workers for the purposes of the Act (such as some “sub-contractors”), including certain: students,[41] apprentices,[42] participants attending employment programs,[43] secretaries of co-operative housing societies,[44] door to door sellers,[45] timber contractors[46] and drivers for reward.[47] But these are not the only persons who may seek compensation under the Act. Certain sailors may make claim in defined circumstances.[48] In addition, compensation may be claimed by dependants of a worker who has died as a result of a work injury in certain circumstances.[49]
[41]Section 5F
[42]Section 5F
[43]Section 5H
[44]Section 5I
[45]Section 5J
[46]Section 6
[47]Section 7
[48]Section 81
[49]Section 92, 92A, 92B, 92C, 92D
70 Section 103 is the principal section that governs and specifies the manner in which a claim for compensation must be made, to whom it must be made and by whom it must be assessed. As can be seen, both terms, “claim” and “claimant”, appear in the section:
“103 Claim for compensation
(1)A claim for compensation must be in a form approved by the Authority in respect of that type or class of claim.
(2)A claim for compensation in the form of weekly payments must—
(a)state the date on which the worker ceased work because of the injury; or
(b)be accompanied by a medical certificate in accordance with section 105; or
(c)be supplemented at a later date by a medical certificate in accordance with section 105.
(3)A claim for compensation (other than a claim arising from the death of a worker) must include an authority, signed by the worker, authorising a provider of a medical service or hospital service to the worker in connection with the injury to which the claim relates to give to the Authority, self-insurer or employer information regarding the service relevant to the claim.
(4)Where a claim for compensation in the form of weekly payments has been given to or served on the employer or self-insurer or lodged with the Authority but was not accompanied by a medical certificate, compensation in the form of weekly payments is not payable unless and until a medical certificate in accordance with section 105 has been given to or served on the employer or self-insurer or lodged with the Authority.
(4A)A claim for compensation—
(a)must be given to or served on the employer or self-insurer; or
(b)if section 106 of this Act or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993 applies, must be lodged with the Authority.
(4B)A claim for compensation is deemed to have been given to or served on the employer or self-insurer or lodged with the Authority if it is given, served or lodged in accordance with guidelines made by the Minister.
(4C)The Minister may make guidelines for the purposes of this section and section 108 specifying—
(a)the manner and form in which a claim for compensation may be given, served or lodged by a worker;
(b)the manner in which a claim for compensation may be forwarded by an employer to the Authority.
(4D)Guidelines made under subsection (4C) must be published—
(a)in the Government Gazette; and
(b)on a Government Internet website.
(4E)If the employer or self-insurer or the Authority receives from a worker a claim for compensation made in accordance with this section, the employer or self-insurer or the Authority must, as soon as is reasonably practicable, give the worker acknowledgement in writing that the claim has been received.
(4F)A worker may notify the Authority that the worker has given to or served on the employer a claim for compensation in the form of weekly payments by giving to the Authority—
(a)a copy of the claim signed and dated by the worker; and
(b)a copy of the relevant medical certificate in accordance with section 105.
(4G)A claim is deemed to have been made in accordance with this section despite any material defect, omission or irregularity in the claim that relates to information that is within the knowledge of the employer or self-insurer or the Authority, as the case requires.
(4H)A claim that contains a material defect, omission or irregularity to which subsection (4G) does not apply is deemed not to have been made if, within 14 days after the claim is given to or served on the employer, lodged with the Authority or given to the self-insurer, as the case requires, the Authority or the self-insurer returns the claim to the claimant with a notice that—
(a)specifies in detail each material defect, omission and irregularity identified in the claim; and
(b)states that any period within which the claim is required to be dealt with does not commence until a claim that does not contain any specified material defect, omission or irregularity is given to, served on or lodged with the Authority or the self-insurer.
(5)If—
(a)a claim for compensation is made in respect of an injury to a worker arising out of or in the course of, or due to the nature of, employment with a particular employer; and
(b)the claim is made after the worker ceases to be employed by that employer—
the claim is deemed not to have been made unless the claimant satisfies the Authority or self-insurer that he or she could not reasonably have made the claim while employed by that employer.
(6)If a claim for compensation relates to an injury resulting from an accident involving a motor vehicle within the meaning of the Road Safety Act 1986 the claim is deemed not to have been made unless a report of the accident has been made to a member of the police force, whether under section 61 of the Road Safety Act 1986 or otherwise.
(7)Subject to subsection (8), a claim for compensation must be given, served or lodged under this section or section 106 or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993—
(a)in the case of a claim for compensation in the form of weekly payments, as soon as practicable after the incapacity arising from the injury becomes known;
(b)in the case of a claim for compensation under section 92, 92A or 92B within the period of 2 years after the date of the death of the relevant worker;
(c)in the case of a claim for compensation under section 98A, at the same time as the claim for compensation under section 98 in respect of the same injury is given, served or lodged;
(d)in the case of a claim for compensation under Division 2B of Part IV, within 6 months after the date of the relevant service.
(8)If the Authority or self-insurer is satisfied that a person making a claim for compensation had a special excuse for not making the claim within the relevant applicable time limit, the Authority or self-insurer may waive or extend the time limit to enable the claim for compensation to be made.
(9)A claim for compensation by a worker under section 98 or 98A must seek compensation for all injuries of the worker that are within the categories of injury listed in the Table in Schedule 3A that are compensable under that section and that are manifest and that have stabilised.
(10)Subsection (9) only applies in respect of claims for compensation that are given, served or lodged after the commencement of section 16 of the Accident Compensation (Amendment) Act2001.
(11)Subsection (9) only applies in respect of injuries of the worker arising out of, or in the course of, or due to the nature of, the worker's employment with—
(a)the employer to, or on, whom the claim for compensation was given or served under section 103(4A); or
(b)the employer referred to in section 106 if the claim for compensation was lodged with the Authority; or
(c)the employer referred to in Part 5 of the Accident Compensation (WorkCover Insurance) Act1993 if the claim for compensation was lodged with the Authority.
(12)Subsection (9) does not apply to a worker who, at the time the claim for compensation was given, served or lodged—
(a)was under 18 years of age; or
(b)was not capable of managing his or her affairs in relation to the claim by reason of injury, disease, illness, dementia, intellectual impairment, physical disability or mental disorder.”
(emphasis added to show the context in which “claimant” appears).
71 As mentioned above, both terms, “claim” and “claimant”, appear in s103. In the context of this section, “claim” is used exclusively with the word “compensation”, and claimant can only have the a corresponding meaning, namely, a person who has made a claim for compensation.[50] The section also draws a clear distinction between a claimant who has lodged a claim for compensation on the one hand and the Authority, employer and self-insurer who assesses the claim on the other. In this section, “claimant” cannot be used interchangeably with VWA.
[50]See particularly subsection (4H)
72 I have earlier referred to claims made under s98 and s98A. There are further requirements imposed in respect of claims for compensation made under s98 (compensation for maims) and s98A (compensation for pain and suffering). These are set out in s104:
“104 Claims for compensation under sections 98 and 98A
(1)In addition to the requirements under section 103, a claim for compensation under section 98 or 98A must be given, served or lodged with a copy of all the medical reports—
(a)which the claimant intends to tender in any proceedings relating to the claim; or
(b)the substance of which the claimant intends to adduce in evidence in support of the entitlement of the claimant to compensation or as evidence of the extent of any relevant loss, impairment, disfigurement or pain and suffering in any proceedings relating to the claim.
(2)The Authority or self-insurer must within 90 days of receiving the claim—
(a)accept or reject the claim; and
(b)advise the claimant of the decision; and
(c)if the decision is to accept the claim, advise the claimant of its offer based on its determination of the worker's entitlement to compensation; and
(d)give the claimant a copy of all the medical reports—
(i)which the Authority or self-insurer intends to tender in any proceedings relating to the claim; or
(ii)the substance of which the Authority or self-insurer intends to adduce in evidence in any proceedings relating to the claim.
(3)If the claimant disputes the decision in respect of the claim, the claimant must not commence proceedings unless the claimant first refers the dispute for conciliation by a Conciliation Officer in accordance with Division 2 of Part III and the Conciliation Officer has issued a certificate under subsection (8).
(4)If the Conciliation Officer considers that it is necessary for the purpose of settling the dispute, the Conciliation Officer may—
(a)obtain a medical report in relation to the worker from a medical practitioner appointed under section 63(2);
(b)request the worker to submit to a medical examination conducted by that medical practitioner.
(5)The costs of any medical report and medical examination under subsection (4) are to be paid by the Authority or self-insurer.
(6)The Conciliation Officer must serve a copy of a medical report obtained under subsection (4) with the certificate under subsection (8).
(7)If the Conciliation Officer is satisfied that all reasonable steps have been taken by the claimant to settle the dispute, the Conciliation Officer must issue a certificate under subsection (8).
(8) The certificate must—
(a)certify that all reasonable steps have been taken by the claimant to settle the dispute; and
(b)identify all copies of medical reports provided in accordance with subsections (1) and (2) and any medical report obtained under subsection (4); and
(c)if any medical question has been referred by the Conciliation Officer under section 56(6) for an opinion by a Medical Panel, specify that opinion; and
(d)be served by post on all the parties to the dispute.
(9)The Authority or self-insurer must within 14 days after the certificate has been served on the Authority or self-insurer make a statutory offer in writing in settlement or compromise of the claim.
(10)If any medical question has been referred by the Conciliation Officer under section 56(6) for an opinion by a Medical Panel, the statutory offer must be consistent with that opinion.
(11)If the Authority or self-insurer fails to comply with subsection (9), the Authority or self-insurer is deemed to have made a statutory offer of nothing.
(11A)The claimant must within 21 days after the making by the Authority or self-insurer of a statutory offer—
(a)accept the statutory offer in writing; or
(b)make a counter statutory offer in writing which is to remain open for 21 days.
(11B)If at the expiry of the first period specified in subsection (11A), the claimant—
(a)has not accepted the statutory offer; and
(b)has not made a counter statutory offer—
the claimant is deemed to have made a counter statutory offer of an amount equal to the total of the maximum amounts that can be claimed for the relevant injury or injuries under section 98 and, where applicable, under section 98A.
(12)A party to any proceedings relating to a claim for compensation under section 98 or 98A cannot in evidence submit any medical evidence or tender a medical report or adduce evidence dependent on a medical report unless that evidence is disclosed by a medical report a copy of which has been provided to the other party in accordance with subsection (1) or (2) or a copy of which has been provided in accordance with subsection (8).”
(emphasis added to indicate context in which “claimant” appears).
73 As can be seen, the terms, “claim”, “claim for compensation” and “claimant” appear in this section. In the context of this section, “claim” can only refer to a claim for compensation, and claimant can only have a corresponding meaning, namely, a person who has made a claim for compensation. The section also draws a clear distinction between a claimant who has lodged a claim for compensation on the one hand and the Authority, employer and self-insurer who assesses the claim on the other. In this section, “claimant” cannot be used interchangeably with VWA.
74 In s104(12), the broader phrase “a party to any proceedings relating to a claim for compensation” is employed. This phrase conveys that it will include claimants, the VWA, employers and self-insurers. On the other hand, “claimant” must have a narrow meaning, limited to a particular class of party. “A party” and “claimant” each have work to do in this section.
75 Similarly, in the case of claims for compensation under s98C (compensation for non-economic loss), there are further requirements imposed by s104B regarding the manner in which an application for compensation is to be made and processed. In this section, “claimant” is not directly used, but “worker” is. Interestingly, s104B provides circumstances where the conduct of the VWA has the effect of initiating an application under s98C on behalf of a worker who has not yet made a claim under s98C:
“104B Claims for compensation under section 98C
(1)In addition to the requirements under section 103, this section … [applies] to a claim for compensation under section 98C.
(1A)Subject to subsection (1B), a claim for compensation under section 98C or 98E, not being a claim for compensation for industrial deafness, can not be made before the expiry of the period of 12 months after the date of the relevant injury.
(1B)Despite subsection (1A), the Authority or a self-insurer may receive a claim for compensation under section 98C or 98E before the expiry of the period of 12 months after the date of the relevant injury if the relevant injury has stabilised.
(1BA)If a worker has commenced an application under section 134AB(4)(b), the worker can not make a claim for compensation under section 98C until the proceedings under section 134AB in respect of that application have been finally determined.
(1C)If liability has been accepted or determined in respect of a prior claim for compensation for an injury, the Authority or a self-insurer may after the expiry of the period of 18 months after the date of the relevant injury and without a claim having been made under section 98C or 98E, request the worker to attend an independent examination under subsection (4).
(1CA)For the purposes of this section, a request under subsection (1C) has the effect of initiating a claim for compensation under section 98C or 98E in respect of the worker by the Authority or self-insurer.
(1D)The Authority or self-insurer may within 90 days of receiving a claim made by the worker by notice in writing to the worker suspend the claim made by the worker if—
(a)the Authority or self-insurer has insufficient medical information to determine the matters specified in subsection (2); or
(b)the Authority or self-insurer can not make a determination under subsection (2) because the condition of the injury of the worker is not stable.
(1E)The Authority or self-insurer must within 14 days—
(a)if subsection (1D)(a) applies, of having sufficient medical information to determine the matters specified in subsection (2); or
(b)if subsection (1D)(b) applies, of being able to make a determination under subsection (2) because the condition of the injury of the worker has stabilised—
by notice in writing to the worker remove the suspension under subsection (1D).
(2)The Authority or self-insurer must within 120 days of receiving a claim made by the worker or in the case of a claim initiated by the Authority or self-insurer, within 120 days of the relevant date—
(a)if the claim is a claim made by the worker, accept or reject liability for each injury included in the claim;
(b)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;
(c)after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i)section 98C;
(ii)section 134AB;
(iii)Subdivision 1 of Division 3A;
(d)determine whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B;
(e)calculate any entitlement to compensation under section 98C or 98E;
(f)advise the worker as to—
(i)if the claim is a claim made by the worker, the decision to accept or reject liability for each injury included in the claim;
(ii)each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B resulting from the injury or injuries in respect of which liability is accepted;
(iii)the calculation of any entitlement to compensation under section 98C or 98E;
(g)provide to the worker a copy of—
(i)any medical reports, correspondence and other documents provided to; and
(ii)any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
(2AA)For the purposes of this section—
claim made by the worker means—
(a)a claim by a worker for compensation under section 98C or 98E; or
(b)a claim by a worker for compensation under section 98C or 98E in accordance with subsection (5D)(a);
relevant date means—
(a)if the worker makes a claim for compensation under section 98C or 98E in accordance with subsection (5D)(a), the day on which the claim is received by the Authority or self-insurer; or
(b)if the worker advises the Authority or self-insurer that he or she disputes the written statement under subsection (5C), the day on which the dispute is resolved; or
(c)if the worker does not make a claim or dispute the statement within the period specified under subsection (5D), the day on which that period expires; or
(d)if the worker accepts the written statement of the injury or injuries under subsection (5C), the day on which the Authority or self-insurer receives the advice of the worker that he or she accepts the written statement of the injury or injuries.
(2A)The Authority or self-insurer is not bound by the assessment or assessments obtained under subsection (2)(b) in determining the degree of permanent impairment (if any) under subsection (2)(c).
(3)If the Authority or self-insurer rejects liability in relation to the injuries included in the claim made by the worker and the worker disputes the decision as to liability, the worker must not commence proceedings in relation to the claim made by the worker unless the worker first refers the dispute for conciliation by a Conciliation Officer in accordance with Division 2 of Part III and until the Conciliation Officer has issued a certificate under section 49.
(4)The worker must at the request of the Authority or self-insurer attend an independent examination to be conducted by a medical practitioner referred to in section 91(1)(b) for the purposes this section.
(5)The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of—
(a)determining any entitlement of the worker to compensation under section 98C;
(b)determining the whole person impairment under sections 134AB(3) and 134AB(15);
(c)Subdivision 1 of Division 3A.
(5A)A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
(5AA)A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
(5AB)Subject to subsection (5D)(a), if a claim for compensation under section 98C or 98E has been initiated in respect of a worker by the Authority or self-insurer, the worker cannot make a claim for compensation under section 98C or 98E in respect of injuries arising out of the same event or circumstance.
(5B)A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
(5C)If the independent examination has been requested by the Authority or a self-insurer under subsection (1C), the Authority or self-insurer must give the worker a written statement of the injury or injuries to be included in the assessments and a statement of rights in a form approved by the Authority for the purposes of this section.
(5D)A worker must within 60 days of receiving a written statement under subsection (5C)—
(a)make a claim for compensation under section 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance; or
(b)advise the Authority or self-insurer that he or she disputes the statement; or
(c)advise the Authority or self-insurer that he or she accepts the written statement of the injury or injuries.
(5DA)If after receiving a written statement under subsection (5C) the worker makes a claim for compensation under section 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance—
(a)the claim by the worker and the claim initiated by the Authority or self-insurer are to be considered as one consolidated claim; and
(b)the consolidated claim is to be dealt with in accordance with subsection (2).
(5DB)If the worker advises the Authority or self-insurer that he or she disputes the written statement under subsection (5C), the worker must not commence proceedings in relation to the claim unless the worker first refers the dispute for conciliation by a Conciliation Officer in accordance with Division 2 of Part III and until the Conciliation Officer has issued a certificate under section 49.
(5E)If the worker does not make a claim or dispute the statement within the period specified under subsection (5D), the injury or injuries specified in the written statement are deemed to be the only injury or injuries arising from the same event or circumstance which are to be included in the determination of impairment to be dealt with in accordance with subsection (2).
(5F)If the worker was not 18 years of age at the time of the event or circumstance, the determination of impairment resulting from the injury can not be made until the worker attains the age of 18 years.
(6)The worker must within 60 days of being advised under subsection (2) in respect of a claim made by the worker advise the Authority or self-insurer in writing whether the worker accepts or disputes the decision as to liability in respect of each of the injuries claimed.
(6A)If under subsection (6) a worker disputes any part of the decision as to liability, the worker does not have to respond to any other part of the advice under subsection (2).
(6B)Subject to subsection (6), the worker must within 60 days of being advised under subsection (2) advise the Authority or self-insurer in writing—
(a)whether the worker accepts or disputes the determinations of impairment and total loss;
(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any.
(7)If the decision made under subsection (2)(a) to reject liability for an injury is varied as the result of a decision of a court or an agreement between the worker and the Authority or self-insurer, the Authority or self-insurer must within 90 days of the variation—
(a)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted or determined;
(b)after taking into account the assessment or assessments obtained under paragraph (a), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i)section 98C;
(ii)section 134AB;
(iii)Subdivision 1 of Division 3A;
(c)determine whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B;
(d)calculate any entitlement to compensation under section 98C or 98E;
(e)advise the worker as to—
(i)the decision or determination of liability for each injury included in the claim;
(ii)each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B resulting from the injury or injuries in respect of which liability is accepted;
(iii)the calculation of any entitlement to compensation under section 98C or 98E;
(f)provide to the worker a copy of—
(i)any medical reports, correspondence and other documents provided to; and
(ii)any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
(7A)The Authority or self-insurer is not bound by the assessment or assessments obtained under subsection (7)(a) in determining the degree of permanent impairment (if any) under subsection (7)(b).
(7B)The worker must within 60 days of being advised under subsection (7) advise the Authority or self-insurer in writing—
(a)whether the worker accepts or disputes the determinations of impairment and total loss;
(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any.
(8)Subject to section 134AB(36), the Authority or self-insurer must, within 14 days of being advised by the worker either under subsection (6B) or (7B) or at a later date that the worker accepts the determinations of impairment and total loss and the entitlement to compensation—
(a)if the entitlement is under section 98C, make payments in accordance with section 98D; or
(b)if the entitlement is under section 98E, pay the amount specified for the total loss under section 98E.
(9)The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to—
[28]These, and other, authorities make it abundantly clear that the statutory right of indemnity conferred by the Act upon the person who has paid the compensation is not to be equated to the cause of action which the worker would, but for the Act, have had against the person liable to pay damages to him. This is so notwithstanding the fact that it is an ingredient of the statutory right, sought to be enforced, that the person from whom the indemnity is sought was liable to pay damages to the worker. The claim to enforce the entitlement to indemnity is not a claim in tort. It is a cause of action created by statute for an indemnity against a person liable to pay damages to another (Tuckwood v. Rotherham Corporation [1921] 1 K.B. 526 at 540 per Aitkin, L.J.). Nor is the action to enforce the right of indemnity to be confused with, or characterized as, a right to recover a debt or damages from the person liable to indemnify. In the Borg Warner case, supra, the Full Court was called upon to determine the effect of s.64 of the Workers Compensation Act 1926 (N.S.W.) which provided a right of indemnity in terms similar to those contained in s.62 of the Workers Compensation Act 1958 (Vic.) - the statutory predecessor of s.138. In discussing the nature and effect of the right to indemnity provided by s.64, Murphy, J. (with whose reasons Starke, J. agreed) said (at 442):
‘Certainly the effect of s.64 of the N.S.W. Act is not to render the third party liable to indemnify [the employer] for a statutory tort, making him liable in damages to the person paying compensation, such damages being limited to the amount of the compensation paid.’
Likewise, in Philip Morris Ltd. v. Ainley, supra, Menhennitt, J. considered the nature of the right to indemnity conferred by the former s.62(1) of the Workers Compensation Act 1958 (Vic.) and, in particular, whether it was an action ‘in contract or tort’ for the purposes of the applicable costs rule. His Honour said (349):
‘The fact that the right being enforced is the creature of statute need not produce the result that the action is not one of tort. However the cause of action appears to me to have none of the elements of a common law cause of action in the definitions to which I have referred. It is not a common law action for unliquidated damages within the definition of Salmond on Torts. Nor is it a civil right of action available under the English common law for the recovery of unliquidated damages within the definition in Halsbury ... . In essence, the action is one to enforce a statutory right by a statutory cause of action. This is made clear by the section itself.’”
88 As can be seen, a proceeding under s138 is not a claim for compensation under the Act – it is a proceeding that can only be brought by the Authority, the employer or self-insurer to recoup compensation that has been or may become payable by the Authority, employer or self-insurer to a successful claimant in accordance with the statutory scheme. No subrogation arises: the plaintiff in a proceeding under s138 does not stand in the shoes of the original claimant. Nor does the plaintiff assume the character or rights of the original claimant. The plaintiff is not acting on behalf of the original claimant and no agency is created. Rather, the plaintiff stands in its own shoes, seeking to recover the compensation due to the original claimant, for which it is or may otherwise be responsible.
89 I have identified many provisions in the Act that admit of only one interpretation of “claimant” – a person who makes a claim for compensation.
90 Nowhere in s138 is the Authority, employer or self-insurer referred to as “claimant”. Nowhere in s138 do the words “claim” and “claimant” appear. However, an essential element is that “compensation” has been paid or is payable under the Act. Since compensation can only be assessed by the Authority, employer or self-insurer, and paid to a successful claimant, and, as referred to above, on no occasion where that term is used elsewhere in the Act is it interchangeable with the VWA, there is little room to imply that for the purposes of s138, the VWA is a claimant for compensation.
What is the purpose of the costs provisions?
91 The costs provisions contained in Part IV are consistent with the objects of the Act set out earlier.
(2) Is a broad construction presumed?
92 There is no reason to presume that a broad construction of “claimant” is to be preferred over a narrow one. Having analysed every section in which the term “claimant” appears in the Act, that term admits of only one interpretation – a person who has made a claim for compensation under the Act. It is illogical to construe the term “claimant” narrowly in every sub-section in which it appears, except for one subsection: ss(3) of s50 of the Act.
93 Section 50(3) must be read in context of the proceeding in respect of which it is sought to be invoked. For the purposes of s138, I have held that the VWA is not a “claimant”. If there is any “claimant” for the purposes of s138, it is the original person who successfully made a claim for compensation. The compensation so paid (or payable) is relevant to the formula set out in s138(3). The original “claimant” is not a party to proceedings under that section.
94 Another reason why a broad construction ought not be presumed is more fully explained under the next heading.
(3) Presumption that all words and provisions have work to do
95 If “claimant” means any party, what work does “party” have to do in the section, and more significantly, what distinct work does “claimant” have to do? If “claimant” is a term broad enough to include the VWA, would it not also be broad enough to include “worker”? What work does a “worker” have to do, if Mr Smith’s interpretation is correct?
(4) The legal meaning Parliament is taken to have intended
96 Overlapping with the above presumption, is the presumption that Parliament is taken to have understood that the term “party” in the context of litigation has legal significance and intended that the legal meaning of “party” is to be applied. Parliament is also to be taken to have intended that legislation will be construed according to principles of statutory construction and with the Interpretation of Legislation Act in mind. Mr Smith has not advanced any sound reason why Parliament would have intended conflicting constructions of one word – “claimant” – in the same section in which it appears, let alone wherever else it appears in the same piece of legislation.[53]
[53]I am here referring to the “elastic” approach required under Mr Smith’s method of statutory construction. First, the construction must be narrow in the case of s50(2A), since claimant cannot there mean VWA (the terms are mutually exclusive), but then the construction must be broad in the case of s50(3) where it must mean the VWA (the terms are not mutually exclusive). Mr Smith gave no satisfactory explanation how the same word, appearing in the same section can both exclude and include the VWA.
97 If Parliament had intended “claimant” to mean any “party”, ss(3) could simply have been worded as follows:
“Costs awarded to a
worker or claimantparty by the County Court … [etc].”
But that is not how the section is drafted.
(5) Section 35 Interpretation of Legislation Act
98 I have already dealt with context and purpose under the first topic above. Section 35(a) prescribes that in statutory interpretation, a purposive construction is to be preferred. For the reasons stated earlier, applying this approach compels the conclusion that “claimant” means a person who has made a claim for compensation or statutory benefit in accordance with the Act. The VWA is not counted in the definition.
(6) Words in statute to be interpreted consistently unless there is reason to do otherwise
99 Applying this rule, if “claimant”, as the term is used in the Act means a person who makes a claim for compensation under the Act, unless contrary intention appears, “claimant” has the same meaning throughout the Act. Mr Smith has not advanced any reason why the term “claimant” should not be interpreted consistently throughout the Act. Moreover, no contrary intention is either expressed or implied in s50(3).[54]
(7) Other canons of interpretation
[54]In DPP v Scott [2004] VSC 129 Justice Balmford looked to ‘the joint history of’ different provisions before concluding that there was a ‘sufficient association between the two provisions to render it appropriate to assume that the word "with" is intended to be given the same meaning in section 52(2) as in section 47'. Also see: University of Tasmania v Mary-Anne Cane [1994] TASSC 73 per Slicer J
100 I mentioned earlier that there are other canons of construction that weigh against Mr Smith’s interpretation of “claimant”, such as “ejustem generis” and “noscitur a sociis”. I do not need to resort to these canons to resolve the matter.
Goodman Fielder
101 With respect, I have reached a different conclusion regarding the interpretation of s50(3) than did his Honour Judge Murphy.
Conclusion
102 Applying the principles of statutory interpretation, in s50(3) of the Act, “claimant” means a person who has made a claim for compensation or statutory benefit under the Act. Mr Smith was unable to point to any section in the Act where the term “claimant” could include a reference to the VWA. It is untenable that the only section in which “claimant” could be construed to mean the VWA is a costs provision in respect of a proceeding in which no claim for compensation is made.
103 A proceeding under s138 is not a claim for compensation or statutory benefit, and so falls outside the scope of s50(3).
104 Section 50(3) is not engaged in this costs application.
105 The general costs rule is not displaced.
106 Costs in this matter are in the discretion of the Court and will follow the event.
Orders
107 Accordingly, for the reasons above, subject to the next order, the defendant shall pay the plaintiff’s costs on the applicable County Court Scale, to be assessed by the Costs Court in default of agreement.
108 Mr Smith does not dispute that it is appropriate to award costs on an indemnity basis from the date that the plaintiff’s offer of compromise expired.[55] I consider it appropriate to make such an order.
[55]T75
109 I shall hear the parties on the final form of the order.
Following discussion with counsel the following orders were made:
(1) The defendant shall pay the plaintiff’s costs pursuant to County Court Scale to be assessed by the Costs Court in default of agreement, on a standard basis to 25 May 2014 and thereafter on an indemnity basis.
(2) Reserve liberty to apply on the question of whether a stay should be granted in respect of payment of costs.
Annexure A
DEFENDANT’S SUBMISSIONS AS TO COSTS
The defendant submits that sections 43 and 50 of the Accident Compensation Act 1985 (Vic) (“the ACA”); and sections 100(1)(d) and 100(2A) of the Magistrates Court Act 1989 (Vic) (“the MCA”) operate in conjunction to the following effect:
a) The Magistrates Court has jurisdiction to hear and determine claims made pursuant to section 138 of the ACA.
b) Where a claim is determined to have a value less than the jurisdictional limit of the Magistrates Court, the court is proscribed to order costs in accordance with the relevant Magistrates Court Scale of Costs applicable to that monetary value.
c) There is no jurisdictional limit to the Magistrates Court ability to hear and determine claims made pursuant to section 138 of the ACA.
That being so, the appropriate Order in the present instance is that the Defendant should pay the Plaintiff’s costs, including any reserved costs, to be taxed in default of agreement pursuant to Magistrates Court Scale “G”, being the appropriate scale for claims with a monetary value in excess of $70,000.
The jurisdiction of the Magistrates Court to determine the claim
Section 43(1) of the ACA is as follows:
“If the County Court would have had jurisdiction under this Act or the Workers Compensation Act 1958 to inquire into, hear and determine any question or matter, the Magistrates’ Court has a like jurisdiction unless expressly excluded by this Act”
There is no provision within the ACA, or any other statute, expressly excluding the Magistrates Court from hearing and determining claims made pursuant to section 138 of the ACA, rather section 100(1)(d) of the MCA grants the Magistrates Court jurisdiction:
“[T]o hear and determine any other cause of action if the Court is given jurisdiction to do so by or under any Act other than this Act.”
Section 100(2A) further stipulates:
“The jurisdictional limit does not apply to any question or matter arising out of Part IV of the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 for which the Court has jurisdiction to determine.”
These provisions expressly grant to the Magistrates Court jurisdiction to determine claims pursuant to section 138 as a “question or matter” under the ACA, reinforced by section 100(1)(d) of the MCA as a “cause of action” over which the Court is given jurisdiction by section 43 of the ACA. The provisions of section 100(2A), which came into effect on 5 April 2010, further operate to abolish the jurisdictional limit in respect of matters under Part IV of the ACA, which includes claims under section 138. The phrase “for which the Court has jurisdiction to determine” has operative effect in respect of claims pursuant to section 134AB of the ACA, also contained within Part IV of the ACA, and over which the Magistrates Court clearly does not have jurisdiction, for instance by reason of the provisions of sections 134AB(16)(b) and 134AB(19) of the ACA.
It is noted that the Plaintiff in these proceedings will regularly commence proceedings pursuant to section 138 of the ACA in the Magistrates Court.
The cost implications of section 50(3) of the ACA
Section 50(3) states:
“Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgement or decision is a judgement or decision that could have been made by the Magistrates’ Court, had the proceedings been brought in the Magistrates’ Court, must be awarded as if the scale of costs applicable in the Magistrates’ Court applied.” (emphasis added)
The section clearly anticipates a class of claims other than those brought by a worker by use of the disjunctive phrase “or claimant”. The section is expressed in mandatory language i.e. the costs “must” be awarded on the Magistrates’ Court scale. The operative condition for the application of the section simply requires a jurisdiction on the part of the Magistrates Court to make the determination. For reasons set out above the Magistrates Court clearly had jurisdiction to hear and determine these proceedings.
The binding and mandatory nature of section 50(3) was affirmed by the Court of Appeal in Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230 at [5]; John Lewis Food Service Pty Ltd v Reynolds [2014] VSCA 162 at [16] per Ashley JA:
“His Honour’s reliance upon the existence of a discretion with respect to costs was misplaced. The general discretion as to costs conferred by s 78(1) of the County Court Act 1958 is overridden by s 50(3) of the [Accident Compensation] Act. In Colac Otway Workforce Pty Ltd v Dwyer, this Court agreed with the judge at first instance that it was plain that s 50(3) confines a plaintiff’s costs to the Magistrates’ Court scale where the outcome of the proceeding could have been achieved within the jurisdiction of the Magistrates’ Court.”
Accordingly in circumstances where the Plaintiff obtains, either by judgement or compromise, an award for a monetary amount which is within the jurisdictional ambit of the Magistrates’ Court, the costs to be awarded must be on the appropriate Magistrates Court scale for that monetary amount.
In Victorian Workcover Authority v Goodman Fielder Consumer Foods Pty Ltd [2014] VCC 1722 His Honour Judge Murphy accepted the correctness of the above analysis in determining that the Magistrates Court Scale of Costs was the appropriate scale by which costs were to be assessed, even in claims brought in this Court. It is respectfully submitted that His Honour was plainly correct in that decision, which as a matter of comity should be followed by this Court.
Annexure B
PLAINTIFF’S SUBMISSIONS AS TO COSTS
Introduction
1. This proceeding was listed to be heard following the worker’s (Richter) damages action. By consent of the parties, an order was made that the evidence in the worker’s proceeding be evidence in this proceeding.[56] Following the conclusion of evidence, addresses and charge the jury delivered a verdict in favour of Mr Richter, awarding him $200,000 for non pecuniary damages and determining the contribution of each of the two defendants at 50%. On 1st April this proceeding resolved in the sum of $109,000 plus payment of costs. The appropriate costs order is not agreed, the plaintiff seeks costs on County Court scale. The defendant proposes it pay costs on the appropriate Magistrates Court scale.
[56]T31.12, T32.11
2. The plaintiff brings this claim in the County Court and seeks here, as it ordinarily would upon successful conclusion of the proceeding in its favour, an order for costs on the appropriate County Court scale by exercise of the Court’s discretion.
3. The defendant maintains that s.50(3) Accident Compensation Act (‘the Act”) is to be applied by this Court which must order costs on the Magistrates Court scale.
4. The plaintiff does not concede that s50(3) applies. Even if it may apply to s138 recovery proceedings, the plaintiff submits that the defendant has not demonstrated in this case that the judgement could have been achieved by a judgement made by the Magistrates’ Court. Therefore it is submitted, this court is not bound to award costs on Magistrates Court scale and should not in the exercise of its discretion do so.
Does s50(3) of the Act apply to this plaintiff?
5. Section 50 (3) states
“Costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgement or decision is a judgement or decision that could have been made by the Magistrates’ Court, had the proceedings been brought in the Magistrates Court, must be awarded as if the scale of costs applicable in the Magistrates Court applied”.
The question raised is whether the Victorian Workcover Authority (‘VWA’) a claimant within the meaning of s50(3).
6. Section 50 sets out a regime for the awarding of costs that, where it applies, displaces the discretion of the Court. Section 50(1) refers to proceedings brought by a person “other than the Authority, employer or self insurer”. Section 50(2) confirms that nothing in subsection (1) applies to proceedings brought by the Authority, employer or self insurer. Section 50(1) refers to “the party” and “the representative of a worker”
7. Section 50(3) applies to proceedings brought by a “worker or claimant”. Worker is well defined by the Act. Claimant is not defined and rarely used in the legislation. “Claim” is used on occasion to refer to persons seeking to exercise an entitlement to compensation under the Act. It is not used interchangeably in the legislation to refer to the Victorian Workcover Authority. Reading section 50 in its entirety, leads to an interpretation that “claimant” refers to persons other than workers seeking to enforce an entitlement to be paid compensation. It cannot be said that the VWA is a claimant under the legislation.
8. In bringing proceedings under s138, the VWA exercises a statutory entitlement to recover compensation that has been paid or is payable to workers and claimants. This right of recovery is sui generis, a statutory right that is neither damages nor debt.[57] The cause of action is one given by the statute but it is wrong to equate this with the Authority being a claimant under the statutory scheme. Rather the statutory right, as Winneke P makes clear, is one given to spread the cost impact of claims made on statutory scheme by injured workers.
[57]Esso Australia Ltd v VWA & Anor [2000] VSCA 74
9. The decision of Murphy J[58] interpreting claimant as any person who brings a claim should not be followed. If “claimant” is taken to mean all plaintiffs who bring claims pursuant to the Accident Compensation Act, then the distinction between claimant and worker in the section is rendered meaningless. The interpretation should not be followed.
[58]Victorian WorkCover Authority v Goodman Fielder Consumer Foods Pty Ltd [2014] VCC 1722
The County Court jurisdiction to hear s138 claims
10. The jurisdiction of the County Court to hear claims pursuant to s138 of the Act derives from s37(1) of the County Court Act 1958.
Section 37(1)(a) provides:
“all applications, claims disputes and civil proceedings regardless of the type of relief sought or the subject matter as are not by this or any other Act excluded from Jurisdiction”.
11. This proceeding is properly brought within the jurisdiction of the County Court. Further, a number of procedural matters are relevant to the plaintiff bringing its claim in this court. They are
a.The worker (Richter) commenced his claim for damages in this Court on 4 June 2013. Both the Worker in his original writ and the first defendant requested a trial by jury.
b.This proceeding was issued 13 October 2013.
c.On 23 January 2014 all parties in both proceedings filed consent orders that this cause be listed with the jury action subject to any contrary order by the trial judge (See consent orders attached)
d.On 3 March 2014 Misso J formally pronounced those orders.
e.On 11 August 2014, O’Neill J again ordered that the cause and the jury remain listed together
f.At the commencement of the worker’s jury action, orders were sought, without opposition that the evidence in the worker’s action be evidence in the cause. ( see T31.11 and T32.10)
g.Central to the success or otherwise of this action was whether the circumstances in which the worker was injured created a liability in a third party to pay damages. In the situation of this case, that factor was established by the verdict of the jury.
12. The worker’s claim, with which this proceeding was listed was not one that fell within the jurisdiction of the Magistrates’ Court. This was because of both the request for a trial by jury and by reason of the quantum of the claim which exceeded the jurisdictional limit of the Magistrates’ Court. Procedurally, the outcome achieved through the course of adoption by the parties of hearing the claims together, led to an outcome that could not have been achieved by the Magistrates’ Court. The defendant has not demonstrated that in the circumstances of this case, the outcome was one that could have been made by the Magistrates’ Court.
13. In addition to the general grant of jurisdiction conferred by the County Court Act, exclusive jurisdiction is given to the County Court pursuant to s39 of the Act for certain matters. They are
“to hear and determine any question or matter under this Act arising…..out of
(a) Any decision of the Authority, employer or a self insurer; or
(b) Any recommendation or direction of a conciliation officer.
14. Importantly, s39 does not confer any jurisdiction to hear claims pursuant to s138 of the Act.
15. The jurisdiction of the Magistrates Court, as granted by the Accident Compensation Act, is found at s43. It provides
S43(1) If the County Court would have had jurisdiction under this Act or the Workers Compensation Act 1958 to inquire into, hear and determine any question or matter, the Magistrates Court has a like jurisdiction unless expressly excluded by this Act.
16. The jurisdiction conferred by the Accident Compensation Act is no broader than the jurisdiction conferred on the County Court pursuant to the Accident Compensation Act. It is a “like” jurisdiction to that conferred by s39 of the Act.
17. The jurisdiction of the Magistrates’ Court is set out at s100 of the Magistrates’ Court Act. That jurisdiction is set out as:
(1)The Court has jurisdiction, subject to subsection (2)—
(a)to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limit, and
(b)to hear and determine any claim for equitable relief if the value of the relief sought is within the jurisdictional limit; and
(c)to hear and determine, with the consent in writing of the parties—
(i) any cause of action for damages or a debt or a liquidated demand, irrespective of the amount claimed; and
(ii) any claim for equitable relief, irrespective of the value of the relief sought; and
(d) to hear and determine any other cause of action if the Court is given jurisdiction to do so by or under any Act other than this Act.
18. Section 100(1)(d) provides the basis for jurisdiction to hear and determine causes of action where the Court is given jurisdiction to do so by or under any Act other than this Act…”. This provides the basis for jurisdiction to hear matters otherwise within the parameters of s39 of the Act, but is not a basis to provide jurisdiction to hear other matters including s138 matters.
19. This proceeding is properly brought within the jurisdiction of the County Court. It is for the defendant to successfully challenge this assessment by the plaintiff. As Nettle JA makes clear in his judgment[59] the defendant must discharge its burden of demonstrating that the plaintiff could have brought its proceeding in the limited jurisdiction of the lower court. If the defendant fails to do this, then it is not possible or appropriate for this higher court to rule that s50 applies.
[59]Colac Otway Workforce Pty Ltd v Dwyer [2005] VSCA 230 at [17]
20. Central to recovery action was establishing that there existed a liability of the third party in negligence to the worker. That liability was, in this case, one determined by a jury.
21. By so linking the conduct of the two proceedings and by adoption of the evidence in the worker’s proceeding as evidence in the recovery proceeding, the outcome of the recovery proceeding was not one that could stand alone in the Magistrates Court. Once evidence commenced in the worker’s action and the trial Judge became seized of that evidence for the purpose of application of the formula to determine the outcome of the recovery proceeding, the decision to be made was not one that the Magistrates’ Court could have made. In proceeding in this way, it is clear that when tied to a worker’s damages proceeding, both procedurally and evidentially, the outcome of the s138 is not an outcome that could have been achieved by bringing the proceeding in the lower court. As such s50(3) cannot be applied.
22. This situation can be distinguished from that facing Murphy J, where there was no worker’s damages claim relevant to the recovery proceeding. The determination of liability relevant to the s138 proceeding, would, in those circumstances necessarily involve a theoretical consideration of liability by the judge hearing the case and the evidence would only be evidence brought in the recovery case.
23. The Magistrates’ Court can and does hear s138 proceedings from time to time. As was said by Nettle J the Magistrates Court is entitled to make assumptions about its s43 jurisdiction but it does not follow that a judge of the County Court is bound to accept those assumptions.[60]
[60]See reference by Nettle to the approach of Byrne J in Victorian WorkCover Authority v Taylor [1995] Vic ACR 73
To the contrary, as I see it, where as here a plaintiff brings his or her proceeding in the higher court, the plaintiff is seen to have made an assessment that the matter is properly to be dealt with by the higher court, and the higher court may ordinarily assume that the plaintiff's assessment is accurate unless and until that assessment is successfully challenged. At [16]
24. As was also said by Nettle JA, at [10] if a party
“wishes to challenge that assessment [of a plaintiff], it may do so at the outset of the proceeding, although if it delays its challenge until a later stage of the proceeding, the challenge is likely to be refused.”
25. There has been no challenge by the defendant in this case until the settlement of the action. This challenge should not succeed.
26. For the reasons set out above, the plaintiff submits that s50(3) has no application to this proceeding and the Court retains a discretion as to costs.
27. In the exercise of that discretion the plaintiff served an Offer of Compromise on the defendant on 23 May 2014 pursuant to Order 36 County Court Civil Procedure Rules 2008. This offer of compromise was not accepted by the defendant. The plaintiff has achieved an outcome better than the offer of compromise. In accordance with Rule 26.08, it seeks costs taxed on the ordinarily applicable basis until 11.00 am on 25 May 2014, and thereafter on an indemnity basis.
0
2
0