Zinc Corp v WorkCover - [1999] NSWSC 111

CITATION: Zinc Corp v WorkCover [1999] NSWSC 111

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 13330 of 1997

HEARING DATE(S): 19/02/99

JUDGMENT DATE:
24 February 1999

PARTIES :

Zinc Corporation Ltd (plaintiff)
New Broken Hill Consolidated Limited (plaintiff)
WorkCover Authority of NSW (defendant)

JUDGMENT OF: Hidden J at 1

COUNSEL : W. P Kearns (plaintiffs)
A. J. Candy (defendant)

SOLICITORS: Austen Brown, Thompson (plaintiffs)
Nick Vrabac, WorkCover Authority

CATCHWORDS: Compensation Court Act 1984 - s38(4) recovery of weekly payments following successful appeal by employer: Zinc Corp v WorkCover (Hidden J, SC, unreported 9 Dec 1998) - whether interest paid by employer recoverable - meaning of weekly payments.

ACTS CITED: Compensation Court Act 1984
Workers Compensation Act 1987
Supreme Court Act 1970

DECISION: Judgment for plaintiffs

- 5 -
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
Wednesday 24th February 1999

No: 13330 of 1997 The Zinc Corporation Ltd & Anor v WorkCover Authority
Reasons for judgment
1 On 9 December 1998 I gave a judgment in which I determined that the plaintiffs were entitled to an order that the Uninsured Liability and Indemnity Scheme, administered by the defendant, should meet the whole of their liability to make weekly payments to a worker, following their successful appeal against an award of compensation to that worker under the Workers Compensation Act 1987. Provision for such an order is made by s38(4) of the Compensation Court Act 1984. On 19 February 1999, I heard argument about the orders which should be made to give effect to my decision.
2 For the plaintiffs, it was argued that I should order the Scheme to bear not only the weekly payments specified in paragraph 1 of the award, but also the interest provided for in paragraph 2. That interest was ordered pursuant to s19 (since repealed) of the Compensation Court Act. The total amount of weekly payments paid under paragraph 1 of the award is $135,649.66. The amount of interest paid pursuant to paragraph 2 is $43,776.64.
3 Counsel for the defendant opposed any order in respect of the interest. It is true that the interest formed part of the compensation awarded under the Workers Compensation Act: Westpac Banking Corporation v Tomassian (1992) 32 NSWLR 207, per Mahoney JA at 217 and Meagher JA at 220. However, the critical question is whether it is embraced by the expression “weekly payments of compensation” in s38(4) of the Compensation Court Act. I am persuaded by the submission of counsel for the defendant that it is not.
4 The terms “weekly payment” and “compensation” are not defined in the Compensation Court Act. In the Workers Compensation Act, “compensation” is defined to include “any monetary benefit under this Act” and “weekly payment”, in relation to compensation, is defined as “a weekly payment of compensation under Division 2 of Part 3 in respect of a period of total or partial incapacity for work”. Division 2 of Part 3 is headed “Weekly compensation…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Zinc Corp v WorkCover

Details

AGLC: Zinc Corp v WorkCover [1999] NSWSC 111
Case: [1999] NSWSC 111
Decision Date: 24 February 1999

CaseChat Overview and Summary

Zinc Corp and WorkCover appeared before the court in a dispute concerning the recovery of weekly payments following a successful appeal by the employer. The primary issue was whether interest paid by the employer to the employee during the period of appeal was recoverable under the Compensation Court Act 1984. The court had to interpret the meaning of "weekly payments" and whether this included interest paid by the employer during the appeal process.

The court examined the statutory language of section 38(4) of the Compensation Court Act 1984, which addresses the recovery of weekly payments upon the success of an appeal by the employer. The key question was whether the term "weekly payments" should be construed broadly to include interest payments made by the employer during the pendency of the appeal, or narrowly to exclude such payments. The court also considered the legislative intent behind the provision and the broader context of workers' compensation law.

In its reasoning, the court held that the term "weekly payments" in section 38(4) of the Compensation Court Act 1984 should be interpreted narrowly. The court found that the statutory language did not encompass interest payments made by the employer during the appeal process, and thus these payments were not recoverable. The court emphasised the importance of adhering to the plain meaning of the statutory language unless it led to an absurd or unjust result, which was not the case here.

The final orders of the court were that Zinc Corp was not entitled to recover the interest payments made to the employee during the appeal period. The court's decision was based on a narrow interpretation of the term "weekly payments" in the Compensation Court Act 1984, and it confirmed that such interest payments were not recoverable by the employer upon the success of an appeal.

Orders