Victorian Workcover Authority v Vitoratos - [2005] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3729 of 2004

VICTORIAN WORKCOVER AUTHORITY
	v.
CHRISTINA VITORATOS

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JUDGES:	CALLAWAY, BUCHANAN and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 August 2005
DATE OF JUDGMENT:	16 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 261

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Accident compensation – Interest on outstanding weekly payments – Interest is to be calculated on the entire amount of outstanding weekly payments from the date of incapacity to the date of the decision of the Magistrates’ Court or the County Court - Income tax and the amount of Centrelink payments are not to be deducted before interest is calculated – Accident Compensation Act 1985, s.114E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.P. Gorton, Q.C. with Mr D. Masel	Dibbs Abbott Stillman
For the Respondent	Mr T.J. Casey, Q.C. with Mr. D.R. Gibson	Ellis Palmos & Co

CALLAWAY, J.A.:

The statutory provisions on which this appeal turns are set out in the reasons for judgment prepared by the other members of the Court. Those reasons should be read first.

As Buchanan, J.A. explains, the learned primary judge rejected two contentions advanced by the appellant: first, that interest should be calculated on each weekly payment from the date on which it accrued until the date of the decision; and, secondly, that interest should be calculated on the amount of each weekly payment which was paid to the respondent after the appellant had deducted income tax and allowances paid to the worker by Centrelink. As I understand their reasons, both my brethren agree with his Honour that the second contention should be rejected. So do I. There is no warrant for it in the statute.

The more difficult question, on which Buchanan, J.A. and Nettle, J.A. are divided, relates to the first contention. Should interest be calculated on each weekly payment despite the fact that s.114E(1) of the Accident Compensation Act 1985 speaks of “[t]he amount of outstanding weekly payments and interest at the prescribed rate on that amount” and, if so, should interest be calculated on each weekly payment from the date on which it accrued until the date of the decision despite the fact that s.114E(1)(b) prescribes a single period where a decision to reject a claim for weekly payments is set aside by the Magistrates’ Court or the County Court, namely from the day on which the incapacity commenced (not the day on which any payment accrued in the sense of becoming payable[1]) until the day on which the decision is set aside?
[1]Compare the old s.120(2)(b), set out below at [14].

The form in which I have posed the question indicates the intractability of the language. It is not sufficient to substitute “Each” for “The”, and even that change is deceptively simple: it alters the meaning of the next 14 words. The period in respect of which interest is payable also has to be changed. I do not agree with Nettle, J.A. that that may be achieved by construing the words…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] VSCA 261
Decision Date: 16 November 2005

CaseChat Overview and Summary

The Victorian Workcover Authority sought to recover interest on outstanding weekly payments made to the appellant, Vitoratos, under the Accident Compensation Act 1985. Vitoratos had suffered an injury that led to incapacity, resulting in entitlement to weekly payments. The dispute centred around the calculation of interest on these payments from the date of incapacity to the date of the court's decision. The primary issue was whether income tax and Centrelink payments should be deducted from the weekly payments before calculating interest.

The court examined the statutory provision, section 114E of the Accident Compensation Act 1985, which specifies the calculation of interest on outstanding weekly payments. The court determined that the interest should be calculated on the full amount of outstanding weekly payments without any deductions for income tax or Centrelink payments. The statutory language did not permit such deductions, and therefore, they could not be made before calculating interest. The court emphasised that the purpose of the statutory interest was to compensate for the delay in payment, and any deductions would undermine this purpose.

Based on the statutory interpretation, the court ruled that the interest was to be calculated on the entire amount of outstanding weekly payments from the date of incapacity until the date of the decision. The court found that the deductions for income tax and Centrelink payments were not permissible under the Act. Consequently, the court dismissed the Workcover Authority's claim for interest calculated on a reduced amount. The decision underscored the importance of adhering to the statutory framework in calculating interest on outstanding weekly payments.

Orders