Watkins Ltd v Renata, W

WATKINS LTD. v. RENATA (1985) 8 FCR 65
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(2) and Morling(1) JJ.

CATCHWORDS

Workers' Compensation - "Loss of capacity for work" - Relevant considerations - Redemption - Whether based on gross weekly earnings or after tax earnings - Application for redemption made by workman - No injustice to workman - Whether Tribunal bound to accede to application - Retrospective increase in weekly rates following judgment of court below - Whether Federal Court can vary order of court below to take account of increase - Role of Federal Court in appeal from Supreme Court - Workmen's Compensation Act 1981 (NT), s 7(1), cll (1B), (12), (12A) of Sched 2 - Federal Court of Australia Act 1976 (Cth), s 28.

HEADNOTE

Held: (1) The expression "loss of capacity for work" in cl (1B) of Sched 2 to the Workmen's Compensation Act 1981 means physical incapacity for actually doing work in the labour market in which the worker works or may reasonably be expected to work. It is not physical incapacity resulting in actual economic loss.

Arnotts Snack Products Pty. Ltd. v. Yacob (1985) 59 ALJR 215, applied.

(2) A relevant consideration in determining loss of capacity for work is the restriction of opportunities open to a person who is disabled by reason of his injuries.

Ball v. William Hunt & Sons Pty. Ltd. (1912) AC 496; Clark v. Gas Light and Coke Co. (1905) 21 TLR 184, followed.

(3) The lump sum payable by way of redemption of weekly payments should be based upon the workman's gross weekly earnings before tax, not after-tax earnings. This follows from the terms of the Act as a whole, but particularly cl (12) of Sched 2 where the reference to redemption of "the liability for that weekly payment" is a reference to the redemption of the employer's liability to make the payment.

Michaelis, Hallenstein and Co. Pty. Ltd. v. Lewis (1944) 68 CLR 613, per Starke J. at 625, referred to.

(4) Per Toohey and Morling JJ., (McGregor J. dissenting) - When a workman applies for redemption in circumstances which meet the requirements of the Act, the Workmen's Compensation Tribunal is bound to accede to the application, unless it would be unjust to the workman to do so.

Kendall & Gent Ltd. v. Pennington (1912) 5 BWCC 335; Elliott Ltd. v. Hobbs (1929) 22 BWCC 509; Michaelis Hallenstein and Co. Pty. Ltd. v. Lewis (1944) 68 CLR 613; Harrington v. Harrington (1981) 55 ALJR 566 at 569 per Gibbs C.J.; Clawley v. Carlton Main Colliery Co. Ltd. (1918) AC 744 at 569 per Gibbs C.J., applied.

(5) Per Toohey and Morling JJ. - Once the primary judge ordered redemption, the employer's liability to the workman was merged in the judgment and was unaffected by a subsequent regulation which retrospectively increased the weekly rates of compensation. This appeal was an appeal in the strict sense and not by way of rehearing, and therefore it was not open to the Federal Court to uphold the primary judge in respect of the amount ordered by way of redemption but vary that order by reason only of the subsequent retrospective regulation. In this case, however, since the court had decided to set aside the order on other grounds having regard to s 28 of the Federal Court of Australia Act 1976 (Cth), it could then proceed to assess an appropriate sum taking into account the increased rates of compensation.

HEARING

1985, April 30; May 1; June 14. #DATE 14:6:1985
APPEAL

Appeal and cross appeal from judgment and orders of the Supreme Court of the Northern Territory pursuant to the provisions of the Workmen's Compensation Act (NT).

G K Downes QC and K M Curnow, for the appellant.

G E Hiley, for the respondent.

Cur adv. vult

Solicitors for the appellant: Mildren Silvester & Partners.

Solicitor for the respondent: P D McQueen.

FPC

JUDGE1

14 June 1985
TOOHEY AND MORLING JJ. This appeal concerns the proper construction of certain provisions of the Workmen's Compensation Act 1981 (NT).

The respondent workman is a steel fixer by occupation. On 29 January 1981, while working on the construction of a car park in Darwin, he suffered a back strain injury. His claim for compensation was heard by the Workmen's Compensation Tribunal. The Tribunal made various orders in his favour. Two of those orders, one a declaration of entitlement to weekly payments and the other, a finding that the appellant was liable to pay hospital and medical expenses related to the accident, are not in issue. The respondent also sought a lump sum for partial and permanent loss of efficient use of his left leg and redemption of weekly payments for partial incapacity. Those matters were dealt with by the Tribunal and were the subject of appeal to the Supreme Court. The appellant employer challenged a number of findings of the learned primary judge in relation to those matters. Two grounds of appeal were abandoned. There is a cross appeal by the respondent.
The Workmen's Compensation Act 1981 presents the usual difficulties that seem to bedevil legislation of this kind. The case presented to the Tribunal on behalf of the respondent was that he was totally, or alternatively partially, incapacitated for work from the date of his injury. As his Honour said:

"The Tribunal found that the workman was entitled to weekly payments in accordance with Clause (1B) of Schedule 2, a finding which necessarily implies a prior finding that Mr Renata is partially incapacitated for work."

There was no appeal to this Court from that finding.
In the case of partial incapacity a workman is entitled to weekly payments under s 5 of the Act, read with Sched 2, and to a lump sum payment pursuant to Sched 3 in the event of one or more specified disabilities. In appropriate circumstances, application may be made to the Tribunal for the redemption of weekly payments pursuant to cl (12) of Sched 2.
This appeal is concerned with findings of the Supreme Court in regard to the amount of compensation properly payable for partial incapacity, the entitlement of the respondent to a redemption of those payments and the proper assessment of the amount due for a percentage loss of the left leg. The loss in question is loss of efficient use, not deprivation of the limb.
To understand the issues relating to weekly payments for partial incapacity, it is necessary to refer to certain parts of cl (1B) of Sched 2. They read:

"(1B) Where the workman is partially incapacitated for work by the injury, the amount of compensation is -

. . .

(b) in respect of a period, being a period after the expiration of the 26 weeks referred to in sub-paragraph (a) -

(i) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business is less than the amount per week that would be payable to him under paragraph (1A)(b)(i) if he had been totally incapacitated; or

(ii) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business, is less than the workman's normal weekly earnings.

whichever is the greater, but so that the amount payable does not exceed the proportion of the amount that would have been payable to the workman under paragraph (1A)(b)(i) had he been totally incapacitated for work that his loss of capacity for work bears to what would have been his full capacity to work had he not been injured."

The expression "normal weekly earnings" is dealt with in cll (4) and (4A) of Sched 2. In broad terms the expression refers to remuneration for the workman's normal weekly number of hours of work, calculated at his ordinary time rate of pay. Clause (4A) includes in a workman's pay or remuneration any over-award payment, industry allowance, district allowance or the like but does not include any other allowance for payment in respect of overtime. That clause also identifies remuneration as remuneration at the date of the injury. But, where the rate of remuneration of workmen of the same class is subsequently varied by competent authority or following upon a variation in the cost of living, the rate of remuneration is the rate as so varied. By reason of subcl (4A)(c), where no such competent authority exists, the rate is "the rate of remuneration of a workman of the same class who works for the same employer or in the same district".
Ground (i) of the notice of appeal contended that his Honour erred in finding that over-award payments should be taken into account in the calculation of compensation under cl (1B) of Sched 2. Although that ground of appeal was abandoned, counsel made submissions as to the amount that should be regarded as the respondent's normal weekly earnings. Because of the view we have taken of the operation of the proviso to subcl (1B)(b) of Sched 2, it is unnecessary to make any finding on that matter.
Before the proviso comes into play, it is necessary to apply pars (i) and (ii) of the subclause to see which provides the greater amount. That amount is payable unless it exceeds an amount calculated in accordance with the proviso. The proviso sets a ceiling above which the weekly payment may not rise.
In order to deal with the proviso the primary judge found it necessary to determine the workman's "full capacity to work" had he not been injured and his "loss of capacity to work". The evidence showed, his Honour said, that the respondent had over the years demonstrated a capacity to earn a high level of wages as a steel fixer from time to time and that, in between such periods, he had demonstrated a capacity to do other work of a varied nature at a lower wage level. As a result of his injury his capacity to earn as a steel fixer had been destroyed and many other avenues of employment previously open to him were now closed. His Honour's conclusion was expressed in these words:

"It appears to me that his loss of capacity to work is severe. In making an estimation of loss in relation to a workman such as Mr Renata, it appears to me a fairly broad brush must be used. On the evidence it appears to me that a fair estimate is that he has lost 80 per cent of his full capacity to work."

That conclusion was challenged by the appellant. In the appellant's submission the proviso to subcl (1B)(b) requires "a relationship between the loss of capacity to earn in actual terms and the proportion as referred to in the Second Schedule (1B)(b)". It was the appellant's argument that, in terms of the proviso, loss of capacity to work is loss of capacity to earn income, not incapacity to perform physical actions. On this basis, said the appellant's counsel, the proper way to approach the proviso in the present case was as follows. The respondent's earnings at the time of the accident were $360 a week. He could now earn between $200 and $240 a week. Taking each end of the range and applying the difference to the figure of $360, the percentage resulting was said to be 40 per cent or 33 1/3 per cent. Thus the ceiling imposed by the proviso was 40 per cent or 33 1/3 per cent of $161, the weekly amount payable for total incapacity. The percentages are not strictly accurate but nothing turns on that for present purposes.
The respondent rejected this approach. In his submission, loss of capacity to work means physical incapacity for actually doing work in the labour market in which the worker works or may reasonably be expected to work. It is not physical incapacity resulting in actual economic loss.
In our view the respondent's submission should succeed. The matter is now the subject of authority by reason of the recent decision of the High Court in Arnotts Snack Products Pty. Ltd. v. Yacob (1985) 59 ALJR 215. The court was there concerned with the Workers' Compensation Act 1926 (NSW). While that Act has no precise counterpart to the proviso to subcl (1B)(b) of Sched 2 to the Workmen's Compensation Act 1981 (NT), the High Court was concerned to determine whether the concept of incapacity for work in the New South Wales Act meant physical incapacity for actually doing work in the labour market in which the employee works or may reasonably be expected to work or whether it means physical incapacity resulting in actual economic loss. In the view of the majority (Mason, Wilson, Deane and Dawson JJ), incapacity for work "means a physical incapacity for actually doing work, resulting from injury (or disease) and . . . compensation is awarded for that incapacity where it reduces the employee's ability to sell his labour in the open market . . ." (at 217). The majority accepted the approach taken to the concept in Williams v. Metropolitan Coal Co. Ltd. (1948) 76 CLR 431 and Thompson v. Armstrong and Royse Pty. Ltd. (1950) 81 CLR 585. Referring with approval to the judgment of Starke J. and Dixon J. in Williams, the majority said (at 217):

"Central to these statements especially that of Dixon J. is the view that incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though this incapacity may not necessarily attract compensation under s 11(1) because it results in no loss of earning power."

In Williams at 444 Starke J. expressed the matter in this way:

"Compensation is not payable for the injury but for the loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury. The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury."

A relevant consideration is the restriction of opportunities open to a person who is disabled by reason of his injuries. Ball v. William Hunt & Sons Pty. Ltd. (1912) AC 496; Clark v. Gas Light and Coke Co. (1905) 21 TLR 184. We have already referred to his Honour's assessment of the respondent's capacity to earn before the accident and to his finding that many avenues of employment previously open to the respondent were closed by reason of his injury. The respondent had no training for clerical work and his opportunities for re-employment were limited. His Honour did refer to rates of pay noted by the Tribunal for a shop assistant, bar attendant and head barman and he said that "it is correct to treat these forms of employment as representing the widest reasonable spread of employment in which Mr Renata may be able to be employed". But, in view of the evidence, it is unlikely that the respondent will be able to secure any of these jobs or, if he does secure one, be able to work at it for any length of time. At the time of the hearing in the Supreme Court he was unemployed. Thus while the primary judge, as he said, used a fairly broad brush, an assessment of loss of capacity to work of 80 per cent was justified. Indeed the respondent contended that the assessment was too low though he did not seek by cross appeal to disturb that finding.
Counsel for the parties put forward various figures as relevant to "the workman's normal weekly earnings" for the purposes of par (1B)(b)(ii). But since it is common ground that whichever set of figures was adopted, the proviso would operate, it is unnecessary to mention those figures or resolve any differences between them.
On the question of redemption the Tribunal found that the respondent was entitled to apply for an order for redemption pursuant to cl (12) of Sched 2 and ordered redemption in accordance with an actuarial statement tendered in evidence. On that matter his Honour said:

"It was submitted that the Tribunal had erred in permitting redemption in light of its finding that Mr Renata had at that time just started to seek employment, and the monetary measure of his incapacity was not capable of measurement. I reject that submission. I consider that a workman has a right to redeem, and that the necessary conditions for jurisdiction were satisfied."

The notice of appeal contends that his Honour erred in finding that the respondent had "an absolute right to redeem" (though the term "absolute" was not used by his Honour) and that he further erred in failing to find that the Tribunal had a discretion to redeem the entitlement to future payments of weekly compensation on such terms as it deemed just and equitable in the circumstances.
Because the submissions of counsel focused very much on the language of the redemption provisions of Sched 2, it is desirable to set them out in full.

"(12). Subject to paragraph (12A), where, in a case of total and permanent incapacity or partial and permanent incapacity, a workman or former workman, as the case may be, is receiving or entitled to receive a weekly payment application may be made to the Tribunal by or on behalf of -

(a) the workman or former workman, as the case may be; or

(b) the employer or former employer, as the case may be, and with the consent of the workman or former workman, as the case may be,

to redeem the liability for that weekly payment by the payment of a lump sum.

(12A). Where an application is made under paragraph (12), the Tribunal may order such amount, as may be determined by the Tribunal, to be paid or invested or otherwise applied for the benefit of the workman or former workman, as the case may be, and the dependants, if any, of the workman or former workman, as the case may be.

(12B). Nothing in paragraph (12) or (12A) prevents an agreement, subject to section 6N, being made for the redemption of a weekly payment by a lump sum."

When the primary judge said that "the necessary conditions for jurisdiction were satisfied", presumably that was a reference to cl (12) which requires, as a condition for the exercise of the Tribunal's power to order redemption, a situation in which there is total or partial permanent incapacity and the receipt or entitlement to receipt of a weekly payment. The appellant contended that no express finding had been made that the respondent had a partial and permanent incapacity. That is true but the order of the Tribunal and the judgment of the primary judge proceeded on the basis that there was a partial permanent incapacity. Neither order nor judgment is explicable on any other basis. And although the appellant submitted that there was doubt that the extent of the partial incapacity could be finally determined with any real degree of accuracy, that submission seems to us to be not in point so far as redemption is concerned. What cl (12) requires is that there be a partial and permanent incapacity (which undoubtedly was the case) and the receipt or entitlement to receipt of a weekly payment (which also was undoubtedly the case). What is redeemed is the employer's liability for that weekly payment by the payment of a lump sum. In Perry Engineering Co. Ltd. v. Mermingis (1964) 112 CLR 468 at 477 Kitto J. said of another provision for redemption:

"In general no harm is done by speaking as if the liability to be redeemed were the future liability to make weekly payments; but that, as I have said, is not in fact the liability to which the section refers. It speaks . . . of the whole liability for the weekly payment (singular)."

The words are apposite here. Once the weekly payment is known, the assessment of an appropriate sum by way of redemption is a matter for the Tribunal. Before these matters are reached it is necessary to deal with an issue raised by the appeal, namely whether a workman has a right or absolute right to redemption. In express terms neither cll (12) nor (12A) confers on a workman an absolute right to redemption. It is arguable that such a right may be inferred from the fact that an employer cannot apply to redeem his liability, except with the consent of the workman but that a workman may apply without the consent of his employer. However, in terms, that limitation goes to entitlement to make an application, not to the granting of an application. In the case of a workman applicant, the only condition for the exercise of the Tribunal's power to redeem is the existence of a situation in which there is total or partial permanent incapacity and the receipt or entitlement to receipt of a weekly payment. So far as we are aware there is no decision precisely in point on a provision in terms identical with or closely similar to cl (12). Earlier English authorities were concerned with legislation which permitted an employer to seek redemption where a weekly payment had been continued for not less than six months. In those circumstances it was held that the employer had an absolute right to redeem once the requirement of six months payments had been met: see Kendall & Gent Ltd. v. Pennington (1912) 5 BWCC 335; Elliott Ltd. v. Hobbs (1929) 22 BWCC 509. In Michaelis, Hallenstein and Co. Pty. Ltd. v. Lewis (1944) 68 CLR 613 the High Court accepted the correctness of those decisions and held that, under a provision: "Where any weekly payment has been continued for not less than six months, the liability therefor may, on application by or on behalf of the employer or the worker, be redeemed by the payment of a lump sum of such an amount as may in default of agreement accepted by the Board be settled by the Board . . .", the worker had a right to redeem. In Harrington v. Harrington (1981) 55 ALJR 566 at 569 Gibbs C.J. referred to Michaelis in these terms:

"Nevertheless, all the members of the court recognised that it was open to the board (which under the legislation there in question performed the functions which in South Australia are performed by the court) to make a declaration of liability rather than a redemption order; see at 622, 623, 626. . . . In spite of the repetition by some members of the court of the statement that there is a right to redeem, it is clear that the court rejected the notion that the board was bound to make a redemption order when it would be unjust to do so."

"Unjust" here is, we think, a reference to injustice to the workman not to the employer. See Clawley v. Carlton Main Colliery Co. Ltd. (1918) AC 744, referred to by Gibbs C.J. at 569.
In our view the principle to be derived from these authorities is that where a statute permits an employer to apply for redemption of weekly payments, unless otherwise provided the relevant Tribunal may decline to order redemption if it would be unjust to the workman to do so and instead may make a declaratory or suspensory award. The emphasis in these cases is on protection of the workman. But in the case now under appeal it was the workman who sought redemption and it was the employer who opposed it. Consistent with the authorities and having regard to the language of cl (12) of Sched 2, we are of the opinion that once the respondent sought redemption the Tribunal was required to accede to the application unless it thought that it was against his interests to do so. There was no suggestion that it was against the interests of the respondent to order redemption; it was the appellant who argued that the court should not grant redemption because of the respondent's stated intention to seek employment and because the respondent had enrolled with the Commonwealth Employment Service only a short time before the hearing of the application.
Now these may be considerations for the Tribunal to take into account in deciding what sum was appropriate by way of redemption. But in the circumstances of the present case, since it was the workman who sought redemption in circumstances which met the requirements of cl (12), and there being no suggestion that it would be unjust to the workman to order redemption, we are of the opinion that the Tribunal was bound to accede to the application. While the primary judge did not deal with the matter quite in this way, we are satisfied that there was no error on his Honour's part in upholding the respondent's entitlement to redeem.
A question before the primary judge was whether the determination of a lump sum by way of redemption should be on the basis of what his Honour described as "gross weekly amounts, or amounts nett of tax". He concluded that "the after-tax amount of the weekly payment is the figure upon which calculations should be based". That approach was challenged by the respondent in his cross appeal.
In our respectful view the primary judge erred in looking to the nett weekly earnings of the respondent as the basis upon which the amount payable by way of redemption should be calculated. We were referred at some length by counsel for the respondent to various principles that had emerged from recent decisions in regard to the concept of damages for loss of earning capacity. We have not found those decisions helpful. In our view the question is to be answered by reference to the terms of the Act, in particular cl (12). That clause provides, as already mentioned, that in the case of total or partial permanent incapacity a workman receiving or entitled to receive weekly payment may apply to the Tribunal "to redeem the liability for that weekly payment by the payment of a lump sum". It is the employer's liability for that weekly payment that is to be redeemed.
Section 7(1) of the Act provides that if personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, the employer shall be liable to pay compensation in accordance with Sched 2, in addition to any other compensation payable under the Act. It is this liability to which cl (12) directs its attention. The compensation provided by Sched 2, in the case of total or partial incapacity, is expressed in terms of weekly payments and an employer's liability under the Act is to make those payments. As it happens, because of the provisions of the Income Tax Assessment Act 1936 (Cth), an employer is obliged to deduct from those weekly payments amounts due in respect of income tax. But his liability to the workman is not a liability to pay the amount prescribed by the Act less an amount by way of income tax; it is a liability to pay the amount provided. Whether a workman is subject to income tax in respect of a lump sum paid by way of redemption is not, in our view, to the point; there is no doubt of his liability to pay income tax on weekly payments of compensation. In Michaelis Starke J. said at 625: "Now that which is to be redeemed . . . is the liability for the weekly payment (the full equivalent of the compensation) payable under the Act . . . ."
The appellant argued that cl (12) speaks of the redemption of the employer's liability "for that weekly payment" being a weekly payment which the workman is receiving or entitled to receive. The argument was that the amount which, at any rate in the present case, the workman received was an amount from which income tax had been deducted and that therefore it was the net weekly payment that was to be redeemed. We do not accept this submission. While it is true that cl (12) speaks of a weekly payment that the workman is receiving or entitled to receive, that is no more than a convenient reference to the payment prescribed by Sched 2. The amount prescribed does not cease to be a weekly payment received because the employer deducts therefrom, in discharge of his obligation under a federal statute, an amount in satisfaction of the workman's liability to income tax.
It was further argued by the appellant that in any event the primary judge had power to take into account under cl (12A) amounts retained by way of income tax. But there is nothing in the clause to lend any support to that proposition. Although cl (12A) speaks of "such amount, as may be determined by the Tribunal", there is nothing in the clause or elsewhere in the Act to justify a determination of a sum by way of redemption, except by reference to the liability of the employer to make a weekly payment. That is not to say that certain contingencies may not properly be taken into account but a determination of a sum by way of redemption in terms of a workman's net weekly earnings constitutes, in our view, an error of law.
It follows that the sum ordered by the primary judge by way of redemption should be set aside. To remit the matter to the Supreme Court would lead to unnecessary time and expense in a matter that has already been on foot for some time unless, for other reasons, there had to be a remission. This Court has been provided with figures which permit it to make a calculation, on an actuarial basis, of the amount properly payable by way of redemption. His Honour adverted to various contingencies, favourable and unfavourable which he thought cancelled out each other. We find no error in that conclusion so that the actuarial approach is appropriate.
The matter is complicated by the cross appeal of the respondent which argues that his Honour should have taken into account that by reg No 60 of 1984, made under the provisions of the Workmen's Compensation Act 1981, the weekly rate applicable under par (1A)(b)(i) was increased from $161 a week to $174 as from 1 July 1984. In saying that his Honour should have taken the increase into account, the respondent recognised that the regulation was not made until some months after judgment was delivered though retrospective in its operation. Once the Supreme Court ordered redemption, the appellant's liability to the respondent was merged in the judgment of the court. An appeal to this Court is an appeal in the strict sense and not an appeal by way of rehearing: see Duralla Pty. Ltd. v. Plant (1984) 2 FCR 342. We do not think it would be open to us to uphold the primary judge in respect of the amount he ordered by way of redemption but vary that order by reason only of subsequent increase. In principle the employer's liability has ceased or at any rate has merged in the judgment of the court; in practice such an approach would mean that amounts ordered by way of redemption would be liable constantly to revision by reason of increases in the amount of weekly payments. But this Court has set aside the order for redemption and, having regard to the terms of s 28 of the Federal Court of Australia Act 1976, it may now proceed to assess an appropriate sum. It may give such judgment or make such order as might be given or made by the primary judge if the matter went back to him. In those circumstances that sum should be calculated in accordance with the weekly payment due as from 1 July 1984. That would be the case if the matter were remitted to the Supreme Court. The respondent's counsel provided us with the relevant figures. Accepting the respondent's loss of capacity to work to be 80 per cent, as we do, his maximum weekly entitlement is 80 per cent of $174, that is, $139.20. On the basis of actuarial evidence tendered, the appropriate multiplier is 1103, resulting in a redemption figure of $153,437.50. That is the figure we would substitute.
The appellant also attacked the finding by the primary judge that the respondent "suffered a total loss of the use of his left leg". This is not what his Honour found; he found that there was a total loss in terms of the item in Sched 3 "Loss of leg at or above knee", an assessment which in terms of the Schedule entitled the respondent to 75 per cent of the compensation specified by s 10(1) of the Act.
The respondent did not suffer an injury to his leg. But, by reason of the injury to his back, he had constant pain in his lower back and left leg going down to his knee. It was on that basis that the Tribunal and the primary judge found that there had been a loss of use of the leg at or above the knee. In the light of several decisions of the Supreme Court of the Northern Territory, the appellant accepted that referred pain of this type might produce a loss in terms of Sched 3 even though the limb itself had not been injured. In view of the concession, it is unnecessary to say anything about that particular matter. The primary judge's conclusion was as follows:

"The Tribunal, in my opinion, formed a correct judgment on the evidence on the extent of the loss of use of the leg. It is clear, I think, that as a practical matter the pain in his leg as well as the pain in his back prevent him from doing the work of a steel fixer. It is unrealistic to attempt to split up segments of that work."

It was not shown that his Honour's finding that the pain in the leg as well as the pain in the back prevented the respondent from doing the work of a steel fixer was in error. There was evidence to this effect. Although the appellant argued that the respondent's return to work for a few weeks following the accident (work which he was compelled to give up because of an eye injury) demonstrated that the pain in his back did not prevent him from working as a steel fixer, this argument cannot be accepted. The respondent returned to work on light duties and there is no justification for holding that he was able to carry out work as a steel fixer. The significance of these matters is that, by reason of s 10(6) of the Act, the loss of a specified part of the body includes:

"(a) the permanent loss of the use of that part; and

(b) the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of the injury."

Thus a workman may recover under Sched 3 for loss of the use of a part of his body in functional terms or in terms of the effect on his employment. The relevant authorities are noted by Muirhead J. in Waycott v. Kofler (unreported, 28 June 1984). In Barclay Bros Pty. Ltd. v. Buch (unreported, 17 June 1982) a Full Court of this Court said:

"In our view his Honour's assessment did not have sufficient regard to the extent to which the respondent's injury has resulted in the efficient loss of the use of the right leg, more accurately that part at or above the knee. In particular he gave insufficient weight to the fact that for all practical purposes the respondent was unable to carry out his previous employment with the degree of sustained effort that work as a carpenter would require. What is required is an exercise of judgment and not an easy one."

The court placed emphasis on the degree of sustained effort the workman's pre-injury employment would require.

In the light of the evidence, we are not persuaded that his Honour's assessment of total loss of the use of the left leg at or above the knee for the purposes of the respondent's employment at the date of the injury was in error. The notice of appeal included a challenge to the figure of $50,000 to which his Honour applied the amount of 75 per cent. The amount had substantially increased since the matter was before the Tribunal. But that particular ground of appeal was abandoned at the hearing of this appeal.
The respondent's cross appeal includes an attack on an order made by the primary judge that the respondent pay his own costs of the appeal to the Supreme Court. The respondent submits that he was "substantially successful in that appeal". An award of costs is essentially an exercise of judicial discretion. The present appellant's appeal to the Supreme Court was on a number of grounds. It failed on all grounds except that his Honour upheld its contention that the Tribunal had failed to apply the proviso to subcl (1B)(b) of Sched 2. In the event the workman recovered more by way of redemption than he had from the Tribunal; but this was because of amendments to the legislation. His Honour's order on the question of costs was designed to give effect to the outcome of the issues involved in the appeal. In our view this Court should not interfere with that order.
The appellant has failed in the present appeal and the respondent has been successful on the cross appeal on the issue of the relevance of income tax to redemption. He has failed in attacking the order on the question of costs but the time consumed in argument on that point was not great. Justice would be done, we think, if the appellant were ordered to pay the respondent's costs of the appeal and to pay 75 per cent of the respondent's costs of the cross appeal.

JUDGE2

MCGREGOR J. Watkins Ltd. (employer) has appealed against a decision of a judge of the Supreme Court of the Northern Territory given on 13 June 1984 and 2 July 1984 in an appeal brought by it pursuant to s 26(1) of the Workmen's Compensation Act 1981 (NT) against the decision of the Workmen's Compensation Tribunal established by s 6A of that Act. The Tribunal made certain orders for compensation, to be referred to later in more detail, in favour of Wiremu Renata formerly employed by the employer as a steel fixer. He has lodged a cross appeal and by leave an amended notice of cross appeal has been filed.

Liability arose out of an industrial accident on 29 January 1981 at a construction site in Darwin. The entitlement of Mr Renata to receive compensation is not in dispute but the amounts to be awarded have been the subject of contention.
The injuries received by Mr Renata and consequent incapacity are generally in the area of his back but with referred pain said to cause incapacity to his left leg.
Mr Renata was born in New Zealand on 27 April 1947, had some secondary education and completed a five year apprenticeship as a panel beater. He came to Australia in 1970 and has been employed in various labouring and semi-skilled occupations here.
The appeal from the Tribunal to the Supreme Court provided by s 26(1) of the Act, is by way of rehearing. The determination of the Tribunal was varied. Though no formal order has been taken out, his Honour at the conclusion of his reasons, made the following order:

"The (employer) shall pay to Mr Renata the sum of $155,624, made up as follows: -

(1) in respect of his application under Clause (12) of Schedule 2, a redemption lump sum in the amount of $130,760.

(2) in respect of his claim under s 10(5) of the Act, the sum of $21,000; and

(3) by consent, in respect of arrears of weekly payments due to him, the sum of $3,864."

At a later stage he ordered that each party pay its own costs.

At one stage it seems the Nominal Insurer was a party to these proceedings. We are told that it is now not proposing to take part in the appeal.
Sections of the Workmen's Compensation Act 1981 (the Act) to which reference has been made include:

"7.(1) If personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to this Act, be liable to pay, in addition to any other compensation payable under this Act, compensation in accordance with Schedule 2 . . . .

. . .

10.(5) Where a workman sustains, by accident arising out of or in the course of his employment, an injury which causes partial and permanent loss of the efficient use of a part of the body specified in Schedule 3 in and for the purposes of his employment at the date of the injury, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the percentage of the diminution of the efficient use of that part.

(6) For the purposes of this section and of Schedule 3, the loss of a specified part of the body shall be deemed to include -

(a) the permanent loss of the use of that part; and

(b) the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of the injury."

And in Schedule 2:

"(1B) Where the workman is partially incapacitated for work by the injury, the amount of compensation is -

(a) . . .

(b) in respect of a period, being a period after the expiration of the 26 weeks referred to in sub-paragraph (a) -

(i) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business is less than the amount per week that would be payable to him under paragraph (1A)(b)(i) if he had been totally incapacitated; or

(ii) the amount, if any, per week by which the weekly amount that he is earning, or is able to earn in some suitable employment or business, is less than the workman's normal weekly earnings,

whichever is the greater, but so that the amount payable does not exceed the proportion of the amount that would have been payable to the workman under paragraph (1A)(b)(i)* had he been totally incapacitated for work that his loss of capacity for work bears to what would have been his full capacity to work had he not been injured.

. . .

*(Emphasis is mine; this phrase is referred to later.)

(12) Subject to paragraph (12A), where, in a case of total and permanent incapacity or partial and permanent incapacity, a workman or former workman, as the case may be, is receiving or entitled to receive a weekly payment, application may be made to the Tribunal by or on behalf of -

(a) the workman or former workman, as the case may be; or

(b) the employer or former employer, as the case may be, and with the consent of the workman or former workman, as the case may be,

to redeem the liability for that weekly payment by the payment of a lump sum.

(12A) Where an application is made under paragraph (12), the Tribunal may order such amount, as may be determined by the Tribunal, to be paid or invested or otherwise applied for the benefit of the workman or former workman, as the case may be, and the dependants, if any, of the workman or former workman, as the case may be.

. . ."

At the time of the hearing "the amount that would have been payable under paragraph (1A)(b)(i)" of Sched 2 was $161 per week. By reg No 60 of 1984 of 19 October 1984 this was increased to $174 to operate retrospectively from 1 July 1984, that being the day before his Honour delivered his final reasons for judgment; though, of course, the case had been conducted on the basis that the figure was $161. This is a matter of significance in the results reached by the primary judge.
It will be convenient to refer to the grounds of appeal as argued. They included:

"(ii) His Honour erred in finding for the purposes of a calculation pursuant to paragraph (1B) of the Workmen's Compensation Act that the workman suffered an 80% loss of his capacity to work and that such finding was against the weight of the evidence.

(iii) His Honour erred in failing to take into account in a calculation pursuant to paragraph (1B) of the Second Schedule that the Respondent was able to earn between $200.00 and $240.00 per week in suitable employment.

(iv) His Honour erred in finding that the Respondent has an absolute right to redeem his entitlement to future payments of weekly compensation.

(v) His Honour erred in failing to find that the Workmen's Compensation Tribunal has a discretion to redeem the entitlement to future payments of weekly compensation on such terms as it deems just and equitable in the circumstances. (vi) His Honour erred in finding that the workman had suffered a total loss of the use of his left leg and further that such finding was against the weight of the evidence."

Counsel for the employer sought to support grounds (ii) and (iii) of the notice of appeal. He argued that there must be a relationship between the loss of capacity to earn in actual terms (not an objectively considered physical incapacity) and the proportion referred to in Sched 2 subcl (1B)(c); Mr Renata could now earn $200 to $240 per week as opposed to $360 when injured; having regard to findings of fact, 80 per cent loss of capacity to work was excessive. He referred to evidence.
In support of grounds (iv) and (v) counsel for the employer submitted that a workman had a right to make application to redeem; what was at issue was a discretion to order redemption in the circumstances. The primary judge had approached the matter as if Mr Renata had an absolute right to redeem. No express finding was made that any partial incapacity of Mr Renata was or is permanent; in view of the findings made in the Tribunal and by his Honour the extent of the partial incapacity could not be determined with any real degree of accuracy. The "partial incapacity" was, he said, the loss of the ability to sell part of the workman's labour. Given there was a right to redeem in the circumstances of this case, it was submitted that the court should not have exercised its discretion in favour of redemption because Mr Renata had indicated in evidence that as soon as the matter was concluded he intended to seek employment.
As to ground (vi), it was submitted that 100 per cent loss of use of the left leg should not have been found because it was contrary to s 10(5) of the Act read in conjunction with Sched 3. This was an injury, it was submitted, not to a part of the body per se, but what has been termed "a referred disability"; on the evidence the award was excessive bearing in mind there was a return to work albeit for a short period and the worker suffered from an injury to his back causing pain in his leg; that leg pain only prevented him from performing certain duties as a steel fixer. He referred to evidence. He submitted the appeal should be upheld and the matter remitted to the primary judge for further consideration.
Counsel for Mr Renata in reply to submissions referable to grounds (ii) and (iii) made on behalf of the employer argued that the primary judge had correctly interpreted Sched 2 cl (1B); in particular the proviso to subcl (b) that "loss of capacity to work" referred to a state of accident-caused physical incapacity for actually doing work in the relevant labour market; not the particular economic loss resulting from that physical incapacity. He referred to Arnotts Snack Products Pty. Ltd. v. Yacob (1985) 59 ALJR 215 (Yacob). He submitted that on the evidence Mr Renata's loss of capacity was at least 80 per cent; a higher percentage was supportable on the evidence to which he referred.
As to grounds (iv) and (v), he submitted that the primary judge's approach was correct, that is, that a workman has the right to redeem where the conditions precedent to the application of cl 12 had, as here, been satisfied, provided the redemption order was not otherwise unjust to the workman by depriving him of a right to compensation to which he might otherwise be entitled. He referred to Michaelis, Hallenstein and Co. Pty. Ltd. v. Lewis (1944) 68 CLR 613 (Michaelis) per Latham C.J., per Rich J. at 623, per Starke J. at 625; Harrington v. Harrington (1981) 55 ALJR 566 (Harrington) per Gibbs C.J. at 569, per Wilson J. at 571; Willis's Workmen's Compensation Acts, 34th ed (1942), pp 400-401. He submitted the Tribunal (and the judge in rehearing) did not have the discretion claimed in the notice of appeal (to order redemption) on such terms as it deemed "just and equitable" in the circumstances; that the primary judge exercised a kind of discretion in working out the terms upon which the redemption order should be made; that this Court should not interfere with this exercise. He referred to House v. The King (1935) 55 CLR 499.
As to ground (vi) he submitted, referring to evidence, that this Court should be reluctant to interfere with the Tribunal's (and then the judge's) assessment based upon evidence: see Attorney-General v. Vernazza (1960) AC 965; R. v. Unger (1977) 2 NSWLR 990.

CROSS APPEAL
In calculating lump sum redemption of weekly payments, counsel for Mr Renata said, no account should have been taken of income tax that might otherwise have been payable on such payments; though such payments would have been subject to tax: see Tinkler v. Federal Commissioner of Taxation (1979) 40 FLR 116 (Tinkler); Case M85 80 ATC 618. The lump sum, he said, far from being a "capital sum" may itself be taxable as a "replacement" of income. He referred to the article by Mr C W Pincus QC (as he then was) "Taxation of Compensatory Payments and Judgments" 53 ALJ 365. He submitted that when calculating a redemption figure, pre-tax earnings only were to be taken into account; it was the employer's liability to pay, not the workman's entitlement to receive, that was being redeemed; that the workman might pay tax or would be liable to pay tax on his weekly payments was irrelevant to the employer's liability to pay the gross amount, as was the obligation imposed on the employer by s 221c (interpreted in accordance with s 221A) of the Income Tax Assessment Act 1936 (Cth) to pay tax direct to the Commissioner. There was no entitlement, he said, in the employer to retain the tax component of notional weekly payments; liabiliy, if any, to tax should be a matter between the workman and the tax authorities. He referred to Stoke-on-Trent City Council v. Wood Mitchell & Co. Ltd. (1980) 1 WLR 254 at 258- 259; (1979) 2 All ER 65 at 68-69.
He referred to reg No 60 of 1984; thereby the weekly rate applicable pursuant to Sched 2, par (1A)(b)(i) was increased from $161 per week to $174 (retrospectively) as from 1 July 1984, that is, one day before the second (and final) reasons for judgment of the learned primary judge were delivered. Thus, assuming Mr Renata's loss of capacity to be 80 per cent of $174, the first figure in the calculation of his entitlement would be $139.20. Taking a multiplier of 1103, the resultant redemption figure would (he said) be $153,437.60. (I wonder if this calculation should be $153,537.60, but I will treat the figure given by counsel as correct.) This Court, he said, was able to make the necessary correction for the redemption figure. He referred to Broers v. Forster (1981) 56 FLR 96 at 121-122.
I have not attempted fully to set out the arguments of counsel.
First, reference may be made to the employer's appeal. It seems to me that the learned primary judge correctly interpreted the expression "loss of capacity to work" as being physical incapacity for actually doing work and not an incapacity necessarily resulting in actual economic loss. Though the applicant in Yacob, to which counsel for Mr Renata referred, was seeking compensation under corresponding New South Wales legislation, the phrase "incapacity for work" and "loss of capacity for work" are common throughout this type of legislation. They might be regarded as having the same meaning in the Northern Territory legislation. The majority in Yacob having quoted the statements of Dixon J. (as he then was) in Williams v. Metropolitan Coal Co. Ltd. (1948) 76 CLR 431 said at 217:

"Central to these statements especially that of Dixon J. is the view that incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work. . . ."

See also per Brennan J. at 220.

A factor to be considered may be reduced opportunities to work due to incapacity: see Ball v. William Hunt & Sons Ltd. (1912) AC 496, which was quoted (not on that precise point) by Jacobs JA in Metropolitan Coal Co. Ltd. v. Duffy (1966) 1 NSWR 379 at 382; 67 SR (NSW) 163 at 168. The primary judge did refer to the narrowing of Mr Renata's options for employment. Further, as counsel pointed out, even on a comparison of earnings potential, it was not appropriate to compare present ability, if it was $200 to $240 per week, with the pre-accident earnings of $360 per week; that last figure could be as high as $600 on present rates.
I do not accept the argument submitted on behalf of the employer, and am not persuaded that the primary judge was not able to arrive at the figure of 80 per cent or that he was wrong, even if that figure was generous.
As to grounds (iv) and (v) I note that the learned primary judge said:

"It was submitted that the Tribunal had erred in permitting redemption in light of its finding that Mr Renata had at that time just started to seek employment, and the monetary nature of his incapacity was not capable of measurement. I reject that submission. I consider that a workman has a right to redeem, and that the necessary conditions for jurisdiction were satisfied."

His Honour was apparently referring to a criticism of the Tribunal made before him, that is, that it had allowed redemption prematurely. That last statement of his Honour appears to reflect his view that such a factual argument was not to be accepted, that there was an "absolute" (though that word was not used) right to redeem for which the necessary pre-conditions had been fulfilled. We have been referred to Michaelis at 620 and Harrington which are said to support the "absolute right" approach. Those cases were dealing with legislation in, I consider, materially different form to cl (12) and cl (12A) of Sched 2. From neither, in my opinion, can there be extracted a proposition (or a ratio) that cl 12 confers an "absolute" right to redeem or that a Tribunal is bound to order redemption upon an application by a workman where it is proven to be for his benefit. In Michaelis the questions that were answered by the Supreme Court and were the subject of appeal, did not include whether there was an absolute right to redeem. Latham C.J. in his reasons said finally at 622:

"The Board has jurisdiction to deal with the application for redemption:

it may, as it thinks proper, make an order for redemption or it may make a declaration of liability."

The case turned upon the availability of those alternatives rather than whether there was an absolute right: see, in particular, Rich J. at 623, Starke J. at 625-627. The answer which the court substituted for that of the Supreme Court, set out at 627, underlines the real issue with which the court was concerned. The South Australian legislation discussed in Harrington (in which the employer applied for redemption) allowed an application by a workman or employer for redemption of liability. None of the questions or answers under consideration were addressed to any issue of an "absolute" right of redemption. The learned Chief Justice said (at 570):

"I have reached the conclusion that the Full Court of the Industrial Court was right in taking the view that the court has the power to refuse or adjourn an application for redemption when to grant such an application would result in a workman being deprived of the full right to the compensation to which he has become entitled by virtue of an order made under s 51(4)(b)."

Mason J. was "in general agreement": see 570; and Aickin J. agreed with the Chief Justice. At 574, Brennan J. said:

"The two provisions can be given effective operation if s 72(1) is understood to permit the court to defer the making of a redemption order in conformity with s 72(2) until it is satisfied that the order would allow the workman the benefit of any order made under s 51(4)(b)."

See also the answer to Question VI at 574.

Wilson J. dissented in the result but in this area his reasons agree with those of the majority. He said (at 571):

"With reference to the appeal, I respectfully agree with his Honour's (the Chief Justice's) reasoning which leads to the conclusion that the court has a discretion to refuse or adjourn an application to redeem if to grant such an application would have the effect of depriving a worker of the full compensation by way of weekly payments to which he has become entitled."

Their Honours, as I understand their reasons, were not exhaustively discussing the extent of the rights of parties in redemption proceedings. In Christopherson v. Gosper (1984) 2 NSWLR 601 at 605, Samuels JA, one of a majority, said:

"There are differences between the terms of the South Australian (considered in Harrington) and English Workmen's Compensation Acts on the one hand, and the New South Wales Act on the other, which may affect these statements of the purpose and effect of basically equivalent provisions. But it seems clear that s 15 enables the Commission to determine a lump sum which will fairly represent the future entitlement of the worker to weekly compensation and, where appropriate, to benefits under ss 10 and 16. The section requires the Commission to give heed to any compromise which the nature of the case may entail, because it must have regard 'to any dispute as to liability to pay compensation under this Act'. Accordingly, an employer is entitled to have taken into account on his side the prospect that the worker, if he proceeds the full distance with an application for determination, will not secure a complete victory; and, similarly, disputes as to the extent of the worker's incapacity must be considered."

I would add references in this area of the debate to Marinakis v. General Motors Holdens Pty. Ltd. (1969) SASR 99; Thyer Rubber Co. Pty. Ltd. v. Tahtsis (1972) 39 SAIR 1023; Scott Bonnar Ltd. v. Halikias (1974) 41 SAIR 1002. There is a useful discussion (though in a case concerning New South Wales legislation) on the topic of redemption in Roger Changleng v. John While & Sons Pty. Ltd. (unreported, Workers' Compensation Commission (NSW), 20 December 1984).

The legislation with which the authorities quoted were concerned was different from cl (12). The only "absolute" right in cl (12) is to make an application following which, pursuant to cl (12A), "the Tribunal may order such amount, as may be determined by the Tribunal, to be paid or invested . . . ." In my view, the function then entrusted to the Tribunal and, in turn, to the primary judge does involve a discretion. Factors for and against redemption have to be weighed. I will not try to enumerate them. I do not agree that under the Workmen's Compensation Act 1981 (NT) where a workman applies for redemption then, in all circumstances, once it in shown to be to his advantage, redemption must follow automatically. There may be circumstances related to the case which would persuade a court, for example to adjourn, postpone or dismiss an application.
The primary judge has indicated in the words quoted that he did not approach the matter in that way; that he did not enter upon any discretionary exercise, making therefore no reference to factors which affected his judgment. On this ground alone it appears to me the matter could be sent back to be reconsidered by the Supreme Court. However, even if error appears, an appeal is not necessarily to be allowed. I return to this matter later.
Counsel argued that the primary judge had made no express finding of partial incapacity which was permanent. This is correct; but such a finding is implicit in his reasons.
In respect of ground (vi) the arguments submitted on behalf of the employer, if they were otherwise acceptable, do not take account of material parts of the evidence, unchallenged in cross-examination, which bear upon the extent of the disability experienced by Mr Renata in his left leg. His Honour arrived at an estimation of the loss based upon his view of the evidence. It would be inappropriate to interfere with the finding which is in the nature of a discretion, particularly when the primary judge had the advantage of seeing and hearing witnesses. This ground has not been made out.

CROSS APPEAL
First I should refer to the reduction of the redemption figure by treating the notional weekly payments component as if such payments were actually made and subject to reduction for tax. In my opinion there is no warrant for importing into a figure of weekly payments which might be material to the calculation from which the redemption figure is reached, any allowance for income tax. As counsel pointed out, it is the employer's liability to make weekly payments, not the workman's right to receive them, which is being redeemed. The effect of his Honour's orders is to reduce the workman's entitlement. I observe in passing that Mr Renata may still be liable to tax on the redemption figure, which might be said to be an operation of the "replacement" or "hole" principle; so he may be at risk twice: cf Carapark Holdings Ltd. v. Federal Commissioner of Taxation (1966) 115 CLR 653 at 663; Tinkler (supra). The proper analysis here seems to me that an employer incurs liability to its employee to pay an amount of "salary or wages" defined by s 221A(1) of the Income Tax Assessment Act 1936 to include ". . . compensation . . . in respect of incapacity for work. . . ." But it is only ". . . at the time of paying the salary or wages" that deductions are to be made "from the salary or wages" (s 221C(1A)). On redemption the workman does not receive weekly payments; tax, if it is to be taken into account in calculating the redemption figure, will not anyway be the sum of the total of such notional deductions over a defined period. In my opinion the redemption figure has been calculated by reference to an impermissible deduction referable to an incorrect interpretation of Sched 2.
Earlier I have referred to the retrospective increase in the figure of $161 to $174. The learned primary judge did not and could not have had available to him the variation in cl (1A)(b)(i) which resulted in that increase, materially bearing upon what might have been provided for redemption. Redemption has thus unfortunately been calculated by reference to an incorrect figure. It follows in my opinion that the cross appeal should be allowed. It may be, however, that by taking the amount of $130,760, awarded by the primary judge to Mr Renata, and adjusting it by adding an amount representing the deductions for notional income tax and further increasing that sub-total by reference to the amendment to cl (1A)(b)(i) referred to earlier, a redemption figure could be arrived at so that it conforms with what is suggested in these reasons as the correct interpretation of the Act and Schedules.

However, I refer again to the appeal. In my view the right to redemption was treated as, in effect, absolute. I am not confident that this Court can say what his Honour would have taken into account if he had approached the task as one involving a discretion or what his decision might have been in that circumstance. Accordingly, I would allow the appeal. For that reason the matter should be remitted for reconsideration to the primary judge so he may consider the factors which bear upon the exercise of his discretion. I would also allow the cross appeal; but as counsel for Mr Renata has indicated that he would be content to have substituted an amended figure reflecting a maximum weekly entitlement of 80 per cent of $174 I agree, with respect, that this Court should substitute the figure referred to by the majority for the sum allowed by the primary judge.
As I am aware that I am in a minority in this matter, I need not set out in more detail the orders I consider appropriate.
I have had the advantage of reading what is said by the majority in respect of costs. With respect, I agree with their reasoning that this Court should not attempt to disturb the order for costs made by the primary judge; and with the order proposed by the majority as to the costs of the cross appeal.

ORDER

Orders accordingly.

[1985] FCA 254

14 JUNE 1985