Workers Rehabilitation and Compensation Corporation v James

[1992] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1992

B e t w e e n -

WORKERS REHABILITATION AND

COMPENSATION CORPORATION

Applicant

and

SIMON JAMES

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J'.

MCHUGH J

Workers 1 24/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 24 JUNE 1992, AT 2.59 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MRS J. GRUNDY, for the

applicant. (instructed by Thomson Simmons & Co)

MR T.M. McRAE: If the Court pleases, I appear for the

respondent, with my	learned friend,
MR P.J. HUMPHRIES.	(instructed by Reilly Downs &
Humphries)

DEANE J:	Mr Jackson?
MR JACKSON:	Your Honours, the issue which merits the

grant of special leave in this case concerns the

factors to be taken into account in the assessment

of compensation by way of income maintenance is, as

it is described, pursuant to section 35(1)(b)(ii)

of the Workers Compensation and Rehabilitation Act

1986 of South Australia.

Your Honours, the issue applies or arises in

cases of partial incapacity for work and in respect

of the period after the first two years of

incapacity. Your Honours, the importance of the

issue, if I could deal with that first, is apparent

from two matters. May I give Your Honours a

reference to the observation of Mr Justice Mullighan

at first instance, at page 15 about point 3, where

he refers to the fact that the present application

was one of about 400 similar applications awaiting

hearing. If Your Honours go through the remainder

of the paragraph, he refers to the number of other

cases that fall into the category.

Now, Your Honours, could I refer also to

paragraph 12.4 of the affidavit in support of the

~pplication at page 125. Your Honours, I should

say in passing, in relation to the importance of

the matter, that it is a case where, of course, if

the Court were otherwise minded to grant special leave, our side would pay the costs of the matter.	So we would submit on the issue of importance the
case is one which would merit the grant of special leave.

May I turn then, Your Honours, to the issue in

the case, and as I said it concerns the

application of section 35 of the Act, and it

concerns the relationship between

section 35(l)(b)(ii) and the several provisions of

section 35(2). Your Honours should have a volume

which contains as the first document in

it section 35.

Your Honours, may I go to the opening words of

section 35(1), and Your Honours will see that it

creates an entitlement to weekly payments where a

Workers 2 24/6/92

worker has received a compensable disability, and

the opening words of section 35(l)(a) relate to the

period of up to a year from the date of injury.

And Your Honours will see from section 35(l)(a)

that subparagraph (i) refers to the case of total

incapacity and subparagraph (ii) refers to the case

of partial incapacity. In the former case the

worker is entitled to, what is described as "the

worker's notional weekly earnings". That is a

concept, Your Honours, which is defined in

section 3. Your Honours, I do not really take you

to it for present purposes.

In the case of partial incapacity in the

period referred to in section 35(1)(a), it is the

difference between that figure and the weekly

earnings that the worker is earning or could earn

in suitable employment. May I ask Your Honours to

note that for just a moment.

Your Honours, section 35(l)(a)(ii) is subject

also to the operation of section 35(2)(a). May I

mentioned that, Your Honours, and then return to

it. Your Honours section 35(l)(b) deals with the

situation after the expiration of the first year.

It retains, as Your Honours will see, the

distinction between total and partial incapacity

but it reduces the maximum to 80 per cent of

notional weekly earnings.

Now, Your Honours, in the case of partial

incapacity, which is the aspect with which

Your Honours are concerned, the figure to be subtracted if the worker is not in actual

employment is the amount which the worker could

earn in what is described as suitable employment

that the worker has a reasonable prospect of

obtaining.

Now, Your Honours, the fundamental issue, if I

might pause at that point, concerns, essentially,
what is meant by that phrase.	Does it refer, as

has been held in the courts in South Australia, to

the work which is available or, as we would

contend, does it refer only to the work which the

worker is physically capable of doing? Now,

Your Honours, may I say one thing immediately and

it is this: if section 35(1)(b)(ii) stood alone,

the terminology used would tend in favour of the

view that has been adopted below because of the use

of the words that the worker has a reasonable
prospect of obtaining, but section 35(1)(b)(ii)

does not stand alone, and the provisions of

section 35(2) also fall to be considered and,

Your Honours, they are provisions from which

tautology is not entirely absent.

Workers 3 24/6/92

Your Honours, the first thing is that

section 35(2)(a) is a provision which has a

relevant application directly only to the first two

years. It is, in a sense, an onus of proof

provision and what it says is that:

For the purposes of section (1) -

(a) a partial incapacity for work over a

particular period shall be treated as a total

incapacity ..... unless the Corporation

establishes that suitable employment for which

the worker is fit is reasonably available to

the worker in respect of that period -

and then Your Honours will see that the words in

parentheses exclude its operation, though perhaps

not its relevance in terms of interpretation in

respect of the period after the first two years.

Your Honours, one comes then to

section 35(2)(b). It uses the language or part of

the language of the concluding words of

section 35(l)(b)(ii). It says that:

the following factors shall be considered, and

given such weight as may be fair and

reasonable, in making an assessment of the

prospects of a worker to obtain employment -

and then it lists four matters.

Now, Your Honours, the issue which arises in

relation to section 35(2)(b) is whether factors

other than those referred to in the provision may

be-taken into account and, Your Honours, our

submission is that section 35(2)(b) sets out an

exhaustive list of the considerations and that they

all relate to the worker's c~pacity. Your Honours,

what is notable, for example, about

section 35(2)(b) is that it says nothing about such

matters as the location of the work or its

availability, the legislative intent being, it is

submitted, that the worker has the advantage of the

presumption in section 35(2)(a) during the first

two years which does deal, of course, with the

availability of work.

Your Honour, section 35(2)(a), of course,

speaks directly in terms of the availability of

work and applies during the first two years. But

after two years, of course - and Your Honours I

should mention perhaps in passing that the scheme

under the Act is one which does not permit

redemption at the instance of an employer, or

redemption at the instance of anyone except for the

worker and then not for, what one might otherwise

Workers 24/6/92

regard as a full amount - after two years the

relationship to the employment in which injury was

suffered may well have dimmed and it becomes

necessary to look at the worker's capacity in a

more abstract way.

Your Honours, what we would submit is that

section 35(2)(b) in terms speaks of the factors to

be considered. They are all factors which relate

to the capacity of the employee to work; they are

the factors which are to be taken into account in

dealing with the question contemplated by

section 35(l)(b)(ii) and, Your Honours, what one

has in section 35(l)(b)(ii) is a compound concept,

in effect, namely, suitable employment that the

worker has a reasonable prospect of obtaining, and

that concept is one which is to be determined by

reference to the worker's capacity to engage in

employment.

Now, Your Honours, one sees, of course, in

section 35(l)(a)(ii) that the term used is simply

"suitable employment". It would seem very odd if,

for example, a more difficult test were applied in

respect to the first year than the test that was

applied in respect of subsequent years. The point

I seek to make, Your Honours, is that the language

of the provisions is loose rather than exact. One
sees also in section 35(2)(a) the use of the

expression "suitable employment for which the

worker is fit" and, Your Honours, that would seem

an extraordinary thing to think that suitable

employment might be employment for which the worker

was not fit. And then, Your Honours, one sees also

in 35(2)(b) that what is spoken of there is an

assessment of the prospects of the worker to obtain
employment, and then what is set out are matters

that one might think, absent any provision like
that, would be, in any event, taken into account in

determining suitability.

Now, Your Honours, that is essentially the

argument on behalf of - and it is purely a question

of statutory construction and it is an issue on

which, we would submit, the matter is open both
ways.

DEANE J: The form of the proceedings was very strange

though, Mr Jackson. You have identified, as it

were, the question that seems to apply, or that

applies to this particular worker, but the

judgments read like advisory opinions on the

interpretation of two sections of the Act.

MR JACKSON:  Your Honour, could I just say this: the way in

which the proceedings were initiated was an

endeavour to utilize the ability of the court to

Workers 24/6/92

give an opinion related to a particular case but

having an operation not limited to the particular

case, and that is the point really, the reference

to the numbers of cases involved.

Your Honour, what has happened since then, of course, is there have been fewer issues than those

which were agitated at first instance were dealt

with on appeal and Your Honours will have seen in

the reasons for judgment on appeal, where they set

out what points that were argued, that the issues

have become quite narrow.

DEANE J:  Justice Legoe did not really seem to be able to

work out exactly what it was before the Full Court.

MR JACKSON:  Your Honour, with respect, what His Honour said

in that regard rather reflects what one sometimes

sees in a degree of "judicial grumpiness", and I

use the expression in inverted commas, about the

particular form of the matter not being one the

judge really agrees with, but the members of the

court dealt with the question and the issue is one

which, we would submit, falls clearly within the

general notion of Mellifont v Reg.

GAUDRON J: 

Is the application still directed to the four

questions set out at page 129, or has it been
reduced somewhat by your submissions?

MR JACKSON: 

Your Honour, I think ..... is correct, however,

the notice of appeal perhaps puts them a little

more exactly at page 135.

GAUDRON J:	I do not go to 135.
MR JACKSON:	Your Honour, I am sorry
DEANE J:	We stop at page 130.

MR JACKSON:  I am sorry, Your Honour, I had not realized I

was so favoured. Page 127, Your Honour, perhaps I have a different copy from Your Honours I suspect.

Now, Your Honour, the critical issue is that set out in paragraph 3(a).

GAUDRON J: Yes.

MR JACKSON: That is the issue which we would - - -

GAUDRON J: But, given the nature of the proceedings, you do

have to tie it into the questions asked, do you
not?

MR JACKSON:  Yes, Your Honour, we do, however, Your Honour

the resolution of that question would provide an

answer to all the other questions that are involved

Workers 6 24/6/92

in the appeal. But, Your Honour, that is the point

that we would seek to argue on the appeal.

DEANE J:  Thank you, Mr Jackson. The Court need not trouble

you, Mr McRae.

These proceedings seek guidance about a number

of widely framed questions relating to the

construction of ss. 35 and 36 of the Workers

Rehabilitation and Compensation Act 1986

(S.A.), rather than the determination of the

precise practical issue between the applicant and the respondent in the particular circumstances of the present case. The answers to those widely
framed questions turn on the construction of the

particular provisions of the State Act and do not,

in our view, give rise to any matters of general
legal principle.

In so far as the answers which the Full Court has given to the questions are applicable to the

particular case of the present respondent, we are

not persuaded that their correctness is attended by

sufficient doubt to justify a grant of special

leave to appeal to this Court.

In these circumstances it would be

inappropriate for the Court to grant special leave
to appeal for the purpose of determining whether it

agrees with everything that is said in the

judgments of the Full Court. Accordingly, special

leave to appeal is refused.

MR McRAE:  There is no other order sought, Your Honour.

AT 3.16 PM THE MATTER WAS ADJOURNED SINE DIE

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