Yuendumu Social Club Inc v Day

[2010] NTSC 22

Yuendumu Social Club Inc v Day & Anor [2010] NTSC 22

PARTIES:	YUENDUMU SOCIAL CLUB INC
v
SANDRA MAY DAY
&
JULIAN JOHNSON
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	21013644
DELIVERED:	12 May 2010
HEARING DATES:	04 May 2010
JUDGMENT OF:	BLOKLAND J
CATCHWORDS:

ADMINISTRATIVE LAW--JUDICIAL REVIEW--CERTIORARI--
JURISDICTIONAL ERROR

Application for judicial review of a decision of a Judicial Registrar sitting as the Work Health Court - whether Judicial Registrar had jurisdiction to hear and make an order allowing interim payments of worker compensation within the period in which a prior application for interim benefits had been sought and refused - previous application for interim benefits amounted to an ‘interim determination’ - no error - application dismissed.

Workers Rehabilitation and Compensation Act (NT) s 64, s 65, s 107(3), s
107(4), s 107(5), s 107(6)
Brenchley v Lynn (1852) 2 Rob Eccl 441
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Craig v South Australia (1995) 184 CLR 163
Day v Yuendumu Social Club Inc & Anor [2010] NTSC 07
Foresight Pty Ltd (trading as Bridgestone Tyre Services) v Maddick (1991)
79 NTR 17
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1
Loizos v Carlton and United (1994) 94 NTR 31
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335

REPRESENTATION:

Counsel:

Plaintiff:	M Crawley
Defendant:	Mr O’Laughlin

Solicitors:

Plaintiff:	Cridlands MB Lawyers
Defendant:	Priestelys, Barristers & Solicitors

Judgment category classification: C

Judgment ID Number:	BLO1002
Number of pages:	15
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Yuendumu Social Club Inc v Day & Anor [2010] NTSC 22

No. 21013644

BETWEEN:

YUENDUMU SOCIAL CLUB INC

Plaintiff

AND:

SANDRA MARY DAY

First Defendant

AND:

JULIAN JOHNSON

Second Defendant

CORAM:  BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 12 May 2010)

1. This is an application for judicial review of a decision of the Work Health

   Court Judicial Registrar on 12 April 2010 granting interim benefits to the

   First Defendant. The Plaintiff Employer argues the Judicial Registrar (the

   Second Defendant in these proceedings), was not authorized as a matter of

   law to make the order. It is alleged the Order was outside of the limits of

   the functions of the Judicial Registrar or that the Judicial Registrar lacked

the power to make the Order giving rise to jurisdictional error. The
application seeks an Order in the nature of certiorari quashing the Order of
the Second Defendant.

History of the Proceedings

1. Some history is required for an understanding of the reasons that follow[1]. It

   is not in dispute the Defendant claims she suffered an injury during the

course of her employment with the Plaintiff on or about 28 December 2007.
She made a claim for Worker’s Compensation under the Workers

Rehabilitation And Compensation Act (NT) (“the Act”) on 1 April 2008.

The claim was accepted by the Plaintiff Employer on 15 April 2008.

Benefits, including compensation for incapacity under ss 64 and 65 of the

Act were paid by the Plaintiff Employer to the Defendant Worker.

1. In July 2009 the Plaintiff Employer received a medical report containing an

opinion that the Defendant Worker’s incapacity was not caused by the injury
sustained in the course of her employment. On 11 December 2009 the
Plaintiff Employer’s insurer advised the Defendant Worker that benefits

would cease in 14 days. The Defendant Worker, (who it appears was unrepresented at that stage), requested mediation of the dispute. The mediation was unsuccessful and weekly benefits ceased at the end of December 2009 in accordance with the Plaintiff Employer’s notice.

1. On 29 January 2010 the Defendant Worker filed an application in the Work

   Health Court seeking a determination pursuant to s 107 of the Act that she

was entitled to the payment of interim benefits. She filed medical material
relevant to the issue of causation and possible return to work on restricted
duties. The Plaintiff Employer presented a medical opinion that any

symptoms experienced by the Defendant Worker and incapacity existing as a
result of those symptoms were due to the natural progression of her pre-
existing condition that was not causally linked to the work related accident.
The Plaintiff Employer’s medical opinion was the Defendant Worker could

perform sedentary duties for 40 hours per week.

1. A hearing of the application for a determination of interim benefits was

conducted before the Judicial Registrar. Both causation and the extent of
the Defendant Worker’s incapacity were in issue.

1. On 8 February 2010 the Judicial Registrar heard the application but declined

   to make an order for interim benefits and dismissed the application. It is

   important to note this application sought an interim determination for the

   period from 21 December 2009 until 3 May 2010.

2. An application by the Defendant Worker for judicial review of the Order

   dismissing the application was unsuccessful[2]. His Honour the Chief Justice

   found the Judicial Registrar had made an error of fact which led to an

incorrect decision that by its nature could not be the subject of judicial
review. His Honour made the observation that even if the recent decision of
Kirk v Industrial Relations Commission of New South Wales[3] expanded the

operation of the supervisory jurisdiction of the Court, it had not been
expanded to include correction of an error of fact of the type committed by
the Judicial Registrar in a judicial capacity.

1. The factual error made by the Judicial Registrar concerned the assessment of

   the most profitable employment identified and the loss of earning capacity

   for the purposes of assessing compensation payable under s 65(2) of the Act.

   The Chief Justice’s view was that if the Judicial Registrar concluded that

   little or no compensation was at stake, that conclusion was reached as a

   consequence of misunderstanding the evidence or an error in calculations[4].

2. His Honour further noted that given the significance of the error it was

   regrettable the Court was unable to exercise the supervisory jurisdiction but that it was always open to the Defendant Worker to make a further claim for

   interim payments in the light of the reasons for judgment.[5]

3. The Worker brought a further application for interim benefits. The Judicial

   Registrar made a determination granting interim benefits on 12 April 2010.

   In the decision of 12 April 2010 (“the Second Decision”) the Judicial

   Registrar determined he had jurisdiction to entertain the application for the

period of interim benefits sought by the Defendant Worker. The error
alleged by the Plaintiff Employer in these proceedings is the Judicial
Registrar had no jurisdiction to hear and make an order that substantially

overlapped with the period of interim benefits sought and refused in the first
application and decision.

1. In the hearing before the Judicial Registrar the Plaintiff Employer had

submitted that by virtue of the operation of s 107(4) of the Act the Worker
was precluded from making further application for an interim determination
until 3 May 2010; that is 12 weeks post the date of the hearing of the first
application. Further, it was argued s 107(5) and (6) should have been
complied with prior to making a further determination. The Judicial
Registrar summarised the argument and his view in the second decision[6]:

“This, it was said was the effect of s 107(4) of the Act because the
Court can only revoke an interim determination in the circumstances
provided in sub paragraphs (a) or (b), neither of which apply in this
case. This argument can, of course only be sustained if the dismissal
of an application for an interim determination is consubstantial with
the making of an interim determination. If that be the case, so the
argument goes, any dismissal of an application for an interim
determination remains in force for the period of time sought by the
terms of the application (in this case 12 weeks from 8 February 2010)
unless overtaken by the circumstances described in sub-paragraphs

(a) or (b).

Whilst I accept that there is some logic in the Employer’s
submission, I cannot accept that to be the result intended by the
legislature. As Counsel for the Worker points out, there is much
sound authority for the proposition that the Act is beneficial and
should not be interpreted in an overly technical or restrictive way so
as to defeat the legitimate expectations of an injured Worker (see, for
example, the discussion in Paspaley Pearls Pty Ltd v Johnston
[1995] NTSC 63 at paragraphs 57 to 59). I do not think, for example,
that if a Worker’s application for an interim determination was
dismissed on the basis that it was deficient in form or content that he
or she should, thereby, be precluded from making further application
for the prospective period of interim determination sought in his or
her application. True it is that such an approach may result in
multiple applications until the Worker “gets it right”, but I think that
is answered by the beneficial intention of the Act and, in any event,
such an interpretation may well result in the same multiplicity of
applications if conservative Worker’s only apply for an interim
determination for short periods of time against the possibility that if
there (sic) application is initially dismissed they will be precluded
from further application for a significant period.
On balance I do not believe the Employer’s second preliminary
argument turns on the interpretation of section 107(6). [The Judicial
Registrar set out the section which is re-produced below.]

The Employer’s argument is that this being the second application for an interim determination by the Worker, she needs to clear the additional hurdle prescribed by sub-paragraph (a) or sub-paragraph

(b) of section 107(6). Again, this argument turns on whether
dismissal of an application for an interim determination is
consubstantial with the making of an interim determination as
discussed in paragraph 2 above. As I have said, I do not believe, on
balance, that to be the intention of section 107(4) of the Act nor, for
similar reasons, do I believe it to be the intention of section 107(6)
of the Act. To find so would be to impose an additional hurdle upon
a Worker who had failed in a previous application by virtue only of
such failure. Objectively that does not appear to me to be the
intention of section 107(6). Rather, I believe that the additional
hurdle prescribed is to apply in circumstances where a Worker has
already had the benefit of an initial interim determination for a
potentially allowable period of up to 22 weeks (section 107(3) of the

Act).

Consideration of the Alleged Errors in the Second Decision

1. As noted, the alleged errors said to go to jurisdictional error are that the

   Judicial Registrar had no jurisdiction to make a further determination

covering any part of the period determined. The argument submitted that
would render much of the earlier determination inoperative and thereby
amount to a prohibited revocation under section 107(4). Additionally it was
submitted the jurisdiction to make a further determination was conditional
on the provisions of section 107(6) being satisfied.[7]

[13] Section 107 of the Act provides:

107      Interim determination

(1) Subject to this section, the Court may make, vary or revoke an

interim determination of a party’s entitlement to compensation.

(2) The making or refusal to make an interim determination is not to
be taken to be a finding in respect of a party’s entitlement to or

liability for compensation.

(3) A party is entitled to compensation for the period specified in the

interim determination, being a period-

(a) commencing within 10 weeks before the determination is made

and

(b) ending within 12 weeks after the order is made.

(4)

The Court may only revoke an interim determination:

(a)	on the making by the Court of a formal finding in respect of liability; or
(b)	with the consent of the parties.

(5) The Court may make more than one interim determination of a

party’s entitlement to compensation.

(6) The Court may only make a further determination under
subsection (5) if satisfied that –

(a) the party would suffer undue hardship if the further determination
were not made; or

(b) the circumstances are otherwise exceptional.

is ambiguity, the interpretation of s 107 requires, a beneficial interpretation. (7) Nothing in this section is to be taken to affect the power of the party’s entitlement to compensation, the repayment of all or part of the amount paid under an interim determination.

1. Consistent with the history of the judicial approach to the Act, where there

   More importantly, it “is a remedial statute, and accordingly its provisions

should be interpreted in a benign and liberal manner, and a construction
most favourable to the worker is to be preferred where any ambiguity
exists”.[8] Consistent also with the accepted approach to statutory
interpretation, the context in its broadest sense should be considered as

suggested by the majority in CIC Insurance Ltd v Bankstown Football Club
Ltd:

“The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses

‘context’ in its widest sense to include such things as the existing in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”[9]

state of the law and the mischief which…one may discern the statute
was intended to remedy. Instances of general further words of a
statute being so constrained by their context are numerous. …

1. Further, it is important to bear in mind background concepts and practices,

   rights and duties as noted by McHugh J:

   “The true meaning of a legal text almost always depends on a
   background of concepts, principles, practices, facts, rights and duties
   which the authors of the texts took for granted or understood without
   conscious advertence by reason of their common language or
   culture.”[10]

2. Here it is important to recall the Act provides, amongst other functions, is a

   legislative scheme to provide compensation for Workers who have suffered

an injury out of or in the course of employment. Interim benefits under
section 107 may be determined and paid pending the final resolution
whether by consent or by hearing. A contested case will by necessity take
some time to be tried and completed. The determination of interim benefits
takes place in an environment that by its nature will not be static, having

implications for all affected parties depending on the length of time the

matter takes to resolve, the medical and other information available to the
parties and different times and changes in the circumstances generally of the

Worker including capacity to work and income. Section 107 is applied in an

environment with significant variables and changing circumstances. Added
to that is the place of s 107 in a legal regime that does not allow for appeals,

whether it is a Judicial Registrar or a Magistrate who has made the
determination of interim benefits.[11] The jurisdiction of Judicial Registrars

in the Work Health Court has with respect been dealt with comprehensively

by the Chief Justice in Day v Yuendumu Social Club Inc & Anor[12] and I

respectfully adopt and agree with His Honour’s observations.

1. Reading s 107 as a whole and bearing in mind the context, I have come to

   the conclusion the making of the second Order that overlaps with the period

of the Order dismissing the application cannot be regarded as a revocation
prohibited by s 107(4). The Judicial Registrar did not make an order

revoking the previous dismissal, or, if put more precisely in the terms of the
Act, the Judicial Registrar did not revoke the “interim determination”.

Nothing the Judicial Registrar has done in the second application or

determination has changed the status of the outcome of the first application.

The first application remained dismissed. Both parties agree and I accept

the first Order was for the purposes of the Act an “Interim Determination”.

1. On behalf of the Plaintiff Employer the second Order has been spoken of as

an “effective revocation” or “in effect a revocation” of the interim
determination. Counsel relied on a definition which I have no reason to

doubt is still good law of Brenchley v Lynn (1852) 2 Rob Eccl 441 at 462 as

noted in Words and Phrases Legally Defined:

“The word revocation has two meanings – the one, if I may use such
an expression, in the probate sense, that is, where one instrument
revokes another originally entitled to probate – the other I will call
the Chancery sense, that is, where a subsequent paper renders an
earlier paper inoperative wholly or partly, though both papers may
have received probate.”

The extract considered confirms this is in the context of probate so its utility

within the statutory framework being considered here is questionable.

Balanced against this view of revocation is the counter argument that the

dismissal of the first application or the first interim determination still

stands as against that application. The second application was brought and
determined on its merits.

1. Once again, it is context and the words of the whole section that are

   important. Section 107(3) regulates time periods during which persons who

are “entitled to compensation” may receive interim benefits. There are
limits as one would expect on the availability of retrospective payments (10

weeks), and protection effectively up to 12 weeks after. The time periods
which allow for the interim compensation payments to be made do not make
sense when attempting to apply them to a determination where no
compensation is ordered. It follows therefore, s 107 (3) does not prohibit
bringing a further application that may cover the same or overlapping period

as a previous application. It is also important to note there is no express
prohibition on bringing a second application that overlaps with a time period

specified in a previous application.

1. Once again in the context of the Act and section 107 as a whole, and to

properly have regard to the remedial nature of the Act, ss 107 (3) and (4)
should be understood to apply to protect those interim determinations where
it concerns a ‘party entitled to compensation.” To interpret those sections to

allow them to operate in a manner that excludes the bringing of an
application is not consistent with the history of the interpretation of the Act.

1. Once again, consistent with the reasoning that s 107 provides and regulates

   the granting of interim benefits in a particular context, on one view s 107(5) and (6) provide a further step or hurdle to bringing a subsequent application, however, this should in my view should be interpreted to mean a step which

must be taken for Workers or conceivably Employers where the Worker
already has a compensation order pursuant to 107(3). It strikes me the
legislature intended to regulate for change of circumstances within the time

periods established by s 107(3). Those periods refer only to those who are

“entitled to compensation”, otherwise, there is no mechanism to have regard

to exceptional circumstances or other undue hardship within those periods

that may be up to 22 weeks. Those who are not in receipt of compensation

but who have had a previous order refusing an interim determination

compensation are not stopped in any formal or express way from bringing a
fresh application.

1. A strong submission based on sound legal policy grounds was put on behalf

of the Plaintiff Employer, which was that the ruling of the Judicial Registrar
would mean that multiple failed applications could go before the Work
Health Court thus diminishing the principle of finality. I have considered

this principle but against that argument is the indirect regulation of this
possible abuse brought by the power to impose costs. There is also the flip-

side of that argument to consider that was raised by the Judicial Registrar in
the quote above at para 12 that without an appeal mechanism workers may

seek shorter periods under s 107 to enable them to bring applications again.

1. I have concluded the Judicial Registrar did not make an error of law.

   Availability of Judicial Review

2. If I am wrong in my conclusion and the Judicial Registrar was in error, the

   next issue argued before me was whether there was jurisdictional error. I mention this briefly only in the light of the conclusion I have made. Once again, I adopt with respect all that has been said in Day v Yuendumu Social

   Club Inc and Anor [2010] NTSC 07 concerning the status of a Judicial

   Registrar as a judicial officer of the Work health Court. There is no

suggestion before me that a Judicial Registrar should be considered to be
more akin to a tribunal than a court of law.

1. Clearly the Judicial Registrar has the power to finally determine the

   question of interim payments. An error of fact or law that is within

   jurisdiction would not enliven an application for judicial review. Kirk v

   Industrial Relations Commission of New South Wales[13] referred to

statements in Craig v South Australia (1995) 184 CLR 163 identifying
errors by courts subject to the supervisory jurisdiction of the Supreme Court
that give rise to jurisdictional error. Of relevance for consideration here is
first where the Court mistakenly asserts or denies the existence of

jurisdiction of if it misapprehends or disregards the nature or limits of its

function or power and second where the court purports to act outside the

general area of its jurisdiction in the sense of entertaining a matter or

making a decision which lies outside its functions and powers. One relevant
example of the second type is the disregard of a matter that the relevant
stature requires to be taken account as a condition of jurisdiction.

1. If I am wrong and the Judicial Registrar has been wrong in asserting

   jurisdiction to hear applications and make interim payment determinations in

   the circumstances outlined here, there may well be an error going to

   jurisdiction. I have not found the error so I won’t express a final view,

   however, it seems to me on the facts on this case, there would be strong

   grounds not to exercise the discretion to grant an order in the nature of

   certiorari in any event.

2. In relation to the first decision of the Judicial Registrar His Honour the

   Chief Justice made a finding there was a factual error that led to an incorrect

   decision on the part of the Judicial Registrar. If in these proceedings

   discretion were exercised to grant relief, it would give effect to a decision

already found to be in error but there was no relief. There is also an
indication in the Judicial Registrar’s ruling that he did find hardship, “There

is now little doubt, in my opinion, on the review of the material before me
that the worker is suffering from financial hardship”[14]. There is some

uncertainly on whether this discharges s 107(6), however it now seems
likely the Defendant Worker would succeed on this ground if that be the

correct interpretation. It would in my view be undesirable to exercise the
discretion in favour of judicial review in these circumstances.

[28] The stay application has been dismissed.

1. The applications for the Order in nature of certiorari is also dismissed.

[1]  The material in this history was uncontested and is largely drawn from a combination of the

affidavits of Miles Andrew Crawley, sworn 22 April 2010, the written and oral submissions made on
behalf of the Plaintiff, the First Defendant and the decision in previous proceedings; Day v Yuendumu
Social Club Inc & Anor [2010] NTSC 07, and Day v Yuendumu Social Club Inc [2010] NTMC 028.
These judgments are annexed to the affidavit of Miles Andrew Crawley.

[2] Day v Yuendumu Social Club Inc & Anor [2010] NTSC 07

[3]  [2010] HCA1

[4] Day v Yuendumu Social Club Inc & Anor [2010] NTSC 07, paras 25 & 26.

[5] Day v Yuendumu Social Club Inc & Anor [2010] NTSC at para 44.

[6]  Para 2, Day v Yuendumu Social Club Inc NTMC 028

[7]  Submissions on behalf of the Plaintiff, 4 May 2010.

[8] Loizos v Carlton and United (1994) 94 NTR 31, at 33; Foresight Pty Ltd (trading as Bridgestone

Tyre Services) v Maddick (1991) 79 NTR 17 at 24, Mildren J applying Wilson v Wilson’s Tile Works
Pty Ltd (1960) 104 CLR 328 at 335.

[9] See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

[10] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196.

[11]  s 114A(2)

[12]  At para 32 to 39

[13]  [2010] HCA

[14]  Page 6, para 14.