Woolworths Ltd v Lister

[2004] NSWCA 292

CITATION:	Woolworths Ltd v Lister [2004] NSWCA 292
HEARING DATE(S):	16 July 2004
JUDGMENT DATE:	27 August 2004
JUDGMENT OF:	Handley JA at 1; Beazley JA at 36; Ipp JA at 37
DECISION:	1. Appeal allowed.; 2. Award of Compensation Court set aside and in lieu thereof order that the application for determination be dismissed.; 3. No order as to the costs of the appeal.; 4. The respondent is to have a certificate under the Suitors' Fund Act 1951.; 5. Liberty to the appellant to apply, on 7 days notice to the WorkCover Authority, for an order that the Authority reimburse it for any weekly compensation payments made under the award that accrued after it was made.
CATCHWORDS:	COSTS - appeal succeeding on point not raised below - appellant not entitled to costs of appeal - STATUTE - construction - reference to Act - Act repealed and re-enacted with modifications - Interpretation Act 1987 - reference to Act later repealed construed as reference to Act which re-enacted repealed Act with modifications
LEGISLATION CITED:	Interpretation Act 1987 s 68(3) Workers Compensation Act 1987 s 42(8)
CASES CITED:	Blue Metal Industries Ltd v Dilley [1970] AC 827 Hill v Villawood Sheet Metal Pty Ltd [1970] 2 NSWR 434 NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 Rizzi v Grazcos Co-operative Ltd (1981) 153 CLR 669 Sin Poh Amalgamated (HK) Ltd v Attorney General of Hong Kong [1965] 1 WLR 62 Stevens v The General Steam Navigation Co Ltd [1903] 1 KB 890 Vela Fishing Ltd v Commissioner of Inland Revenue [2004] 1 NZLR 313 Winter v Ministry of Transport [1972] NZLR 539
PARTIES :	Woolworths Ltd (Claimant) Ruth Ann Lister (Opponent)
FILE NUMBER(S):	CA 41126/03
COUNSEL:	R Kenzie QC/J Taylor (Claimant) P Stockley (Opponent)
SOLICITORS:	Moray & Agnew (Claimant) Kennedy & Cooke (Opponent)

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	CC 11580/02
LOWER COURT JUDICIAL OFFICER :	Armitage CCJ

CA 41126/03

HANDLEY JA
BEAZLEY JA
IPP JA

27 AUGUST 2004

WOOLWORTHS LTD v RUTH ANN LISTER

CATCHWORDS

COSTS – appeal succeeding on point not raised below – appellant not entitled to costs of appeal

STATUTE – construction – reference to Act – Act repealed and re-enacted with modifications – Interpretation Act 1987 – reference to Act later repealed construed as reference to Act which re-enacted repealed Act with modifications

FACTS

Section 42(8) of the Workers Compensation Act 1987 (the 1987 Act) defined “award” for the purposes of that section as meaning, inter alia, “an award or industrial agreement within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth”. The definition was relevant in the application of s 42(1)(a) which fixed rates of weekly compensation by reference to “an award fixing or providing for the fixing of a rate for a weekly or longer period”.

The Conciliation and Arbitration Act 1904 was repealed in 1988 and replaced by a new Act which later, by amendment, became the Workplace…