Ansett Australia v Van Nieuwmans [1999] NTCA 138; 9 NTLR 125

employer to the respondent worker pursuant to s69 of the Work Health Act

were "ineffectual in cancelling the entitlements of the worker". His

Worship ordered that the employer pay compensation to the worker and

The grounds of appeal raise a number of issues including a challenge to the

Chief Justice's disposition of the appeal on the basis that the proceedings in

the Work Health Court were an appeal under s69 of the Act. The appellant

contends that the worker did not restrict his claim to such an appeal and that

wider issues were to be determined by the Court. If this contention is

correct, the appellant seeks to challenge a number of findings made by the

learned Magistrate on the basis that his Worship was wrong in law. In what

appears to have been an alternative submission, the appellant challenges the

findings below as to the effectiveness of the notices given by the emplo yer

terminating or reducing the worker's entitlements to receive weekly

The respondent has sought to raise by a Notice of Contention a question

concerning the time at which the interest ordered to be paid is to commence

In my opinion, it is clear that the proceedings in the Work Health Court

were at all times dealt with by the learned Magistrate as an appeal by the

worker pursuant to s69 of the Act. Counsel for the worker, on a number of

occasions, told his Worship that the matter before him was restricted to such

an appeal. In the course of dealing with an application by the employer to

It is apparent from the foregoing that the employer's argument that

this is in fact a full hearing to the worker's entitlement is wrong. The

sole issues are whether or not the employer was justified in stopping

Further, his Worship commenced his written reasons for judgment as

This is an appeal by the worker under s104 of the Work Health Act

(the "Act") against three notices of cancellation and/or reduction of

The appellant's contention is that the issues before the learned Magistrate

were wider than that. I do not consider that the learned Magistrate was

wrong to restrict the issues to be resolved by him in the manner in which he

did. The worker's statement of claim pleaded the employment, the injury,

the admission of his claim for compensation, the fact that payments were

made, the fact that the worker was made redundant after having returned to

work doing light clerical duties, and that the employer's insurer paid

compensation according to the difference between the amount he was paid in

the pre-accident employment and the amount he was paid doing light clerical

duties. In paragraphs 9-12 the worker pleaded that he obtained temporary

employment with TAFE Centralian College as an administrative assistant on

11 December 1995; that three days later he was unable to continue due to his

injury which lead to an anxiety attack and caused him to resign that position

on 15 December, and that the temporary work led to anxiety and depression.

In paragraphs 13-19, the worker pleads that he has since then received th ree

Form 5 notices cancelling or reducing his compensation on various grounds

therein specified and that these grounds are denied. In paragraph 20 it was

pleaded that he continues to suffer from his back injury and its

consequences, including anxiety and depression. In paragraph 21 it is

pleaded that "The worker has been totally incapacitated for work since 15

December 1995 to date and continues to be totally incapacitated for work at

this stage". In paragraph 22, the worker pleads the amount of compensation

paid, and that he seeks weekly compensation since 15 December 1995 and

interest. Although paragraphs 20 and 21 of the statement of claim appear to

raise a case that the worker has a continuing disability, going beyond the

circumstances at the time of the notices, on looking at the pleading as a

whole, I think that it is tolerably clear that the worker intended to appeal the

employer's decision to terminate or reduce his payments. If the appeal

succeeded, the worker would have been entitled to an order restoring his

weekly payments, and in the absence of a further notice or a claim brought

by the employer to cease or reduce his payments, the effect of such an order

would have been to restore his weekly payments until the date of judgment

and continuing, unless the employer thereafter took further steps to cease or

reduce his payments. In other words, I do not consider that, in the

circumstances of this case, paragraphs 20 and 21 added anything to the

worker's claim or widened the scope of the applicati on from a mere appeal.

No facts were raised by either the worker or the employer to suggest that

there was any change of circumstances which had occurred after the giving

of the notices. This may be contrasted with the situation in Disability

Services of Central Australia v Regan [1998] NTCA 77; (1998) 8 NTLR 73 where the

pleadings raised the question as to whether or not, after the giving of the

relevant notices, the worker either ceased to be incapacitated or remained

partially incapacitated. Further, in that case, the worker sought benefits

under s78 of the Act, whereas appeals under s69 are restricted to weekly

payments. The worker's pleading in this case is closer in form to that

considered by the Court of Appeal in Ju Ju Nominees Pty Ltd ((1999) NTSC

20, but otherwise unreported). In that case, as in this, counsel for the worker

made it clear that the worker's claim was limited to an appeal under s69.

The claim included paragraphs similar to paragraphs 20 and 21 herein.

Martin CJ said, at para [16] that, subject to the question of prejudice to the

other side, there was no reason why the worker should not clarify a

statement of claim and the relief sought so as to make it clear that the

worker is limiting the issue to an appeal under s69. Thomas J considered

that the worker's claim was limited to an appeal against s69 (see para 57),

Bailey J agreed with both Martin CJ and Thomas J (see para 79).

In the Court below, Martin CJ repeated what he had said in Ju Ju Nominees

Pty Ltd. After referring to the worker's counsel having made it plain at the

trial that he was only appealing under s69, and that that was the intention of

the pleadings, his Honour observed that there was no reason why, prejudice

not having been raised by the employer, that could not have been done. I

agree. If the employer had reason to expect the claim was more than a mere

appeal, the employer could have sought an adjournment to enable it to bring

its own claim, and to have the two claims heard together. I note that the

employer in its amended answer, sought an order pursuant to s69(2)(d) of

the Act based on the allegations contained in paragraph 19, viz., that the

injury sustained on 11 July 1992 was a soft tissue injury which recovered

over a period of four weeks. If the statement of claim was limited to an

appeal under s69, this could not have been raised by way of defence; and as

there was at the time no provision for a counter-claim in the Work Health

Rules, could not be raised at all. However, no objection was taken to this

because the matters therein pleaded went to the substance of one of the Form

5 notices. Nevertheless, the issue had practical significance because if the

employer was permitted to raise paragraph 19 and to rely on it to the fullest

extent, no notice under s69 was required to raise the issue and perhaps the

employer could have obtained repayment of any compensation overpaid.

However, this issue was formally adjourned by the Court (AB403) which

adjourned paragraph 20 of the employer's answer (which sought to provide

the remedy upon which paragraph 19 was predicated). That order has since

been taken out by the Registrar. Mr Parker, counsel for the appellant,

submitted that on the true construction of the Work Health Court's order,

that issue was still alive. There are several answers to this. First, the order

is clear in its terms. Even if the order was made by mistake, the order still

stands until it is corrected, and it has not been corrected. Secondly, it would

be inconsistent with the Court's ruling that the claim was limited to an

appeal under s69 and with rulings of this Court, to allow the employer to

agitate that issue in an appeal under s69. Thirdly, although his Worship

considered the factual basis for the giving of the notice relating to this issue

(and thereby the factual basis for paragraph 19 of the amended answer), it is

plain that his Worship only did so in case his ruling that the notice was

invalid, was wrong. There is nothing to indicate that his Worship

considered himself as hearing anything else other than an appeal under s69,

which is consistent with the order he made. Further, on the facts, his

Worship found against the employer, and if the employer has any hope of

success, the employer would have to show that not only was the notice in

fact valid, but that his Worship's decision on the facts was wrong in law.

The ground of appeal relating to whether or not his Worship erred in this

respect, does not allege any error of law. His Worship's reasons indicate

that he accepted the evidence of the worker and his medical specialist in

preference to that of the evidence called by the employer. This was a

question of fact for his Worship to decide. Mr Parker submitted that his

Worship erred because there was no evidence from the worker to support the

opinion of his specialist, but I consider that that ground is not made out.

Further, Mr Parker submitted that his Worship erred in taking into account,

in accepting the worker's evidence, his observations of the worker in Court

and whilst giving evidence in the witness box. It was submitted that his

Worship could not rely on the worker's demeanour in Court, except whilst

giving evidence. Reliance was placed on a number of authorities, including

Minagall v Ayres (1966) SASR 151, Stead v State Government Insurance

Commission [1986] HCA 54; (1986) 161 CLR 141, and Government Insurance Office of New

South Wales v Bailey (1992) 27 NSWLR 304, per Kirby P at pps 309-316.

In this case, the learned Magistrate did not record what it was that he noted

about the appellant when in Court but whilst not giving evidence, and which

may or may not have been observed by counsel, which assisted him to

accept the respondent's evidence. I would have expected anything of real

significance to be specifically mentioned. The modern rule, as stat ed by the

Full Court in Jobst v Inglis (1986) 41 SASR 399, and adopted by the Court

of Appeal in G.I.O. of N.S.W. v Bailey, supra, is that a judge is not required

to draw to the attention of counsel every observation he makes, if it merely

confirms impressions formed whilst the witness gave evidence, or if there

was nothing of real significance to be attached to what was observed. Here

there is nothing to show that the learned Magistrate's observations went

beyond that which, as a matter of fairness, requi red him to draw whatever he

saw to the attention of counsel. I would therefore dismiss this ground of

The next submission related to the validity of what I shall call the first

notice. In fact three notices were served on the worker on the same day.

The first notice was in the following terms (omitting formal parts):

You are hereby advised that your employer ANSETT AUSTRALIA

Cancels payment of weekly benefits to you pursuant to s69 of

On 14 December 1995, as a result of a medical examination

performed on 8 December 1995, Dr Joseph T Black stated in his

"In relation to the incident on 11 July 1992, it is probable th at

effects of any muscular and/or fibro ligamentous strain would have

resolved and the effects of any aggravation of any pre-existing

The learned Magistrate found that this notice did not comply with the Act

because it did not have attached to it a medical certificate as required by

s69(3), and that compliance with the Act in that respect was mandatory.

Martin CJ held that his Worship was correct, and that Collins Radio

Constructors Inc v. Day [1998] NTCA 15; (1998) 143 FLR 425 was directly on point. In that

case, this Court held that, to be valid, a notice must strictly comply with the

requirements of s69. In the Court below, Mr Parker sought to raise an

argument not raised in the Work Health Court, i.e., that the notice in this

case did not require to have attached to it a medical certificate. The learned

Chief Justice declined to deal with that argument, relying on University of

Wollongong v. Metwally (No 2) (1985) 59 ALJR 481. Given that the issue

sought to be raised was a question of law only, I consider that his Honour

ought to have allowed the appellant to raise this point: see Water Board v.

Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497. However, I consider there is no

substance to this submission. The notice clearly failed to comply with s69

in a number of respects. First, I consider that it failed to comply with s69(4)

provide sufficient detail to enable the worker...to understand fully

why the amount of compensation is being cancelled or reduced.

The notice does not specify when the effects would have ceased. It is

accompanied by two other notices, one of which purports to reduce his

compensation. This apparent inconsistency is not explained. The notice

does not give fourteen days' notice of cancellation as required by the Act,

but purports to cancel the payment forthwith: see Collins Radio

Constructors v. Day, supra, at 431. Further, I reject the submission that no

medical certificate was required. Mr Parker submitted that the notice only

went to causation; it was not disputed by the notice that the worker was

incapacitated for work � what was disputed was whether that incapacity was

caused by the injury. He submitted therefore that s69(3) did not apply.

Where compensation is to be cancelled for the reason that the worker

to whom it is paid has ceased to be incapacitated for work, the

statement under subsection (1) shall be accompanied by the medical

certificate of the medical practitioner certifying that the person has

Clearly, where s69(3) refers to incapacity for work, it means incapacity for

work because of the injury. S3(1) of the Act defines "incapacity" to mean

"an inability or limited ability to undertake unpaid w ork because of an

injury". There is no reason why the word "incapacity" in s69(3) should not

receive its defined meaning, and every reason why it should. Clearly, the

critical question is always whether the worker is incapacitated for work

because of an injury: see ss53, 64 and 65. I would dismiss this ground of

The next issue relates to the second and third notices given under s69. The

You are hereby advised that your employer ANSETT AUSTRALIA

Varies the amount of weekly benefits payable to you pursuant

to section 69 of the Work Health Act to the sum of $259.38 per week.

On Monday, 11 December 1995, you commenced employment

with TAFE Centralian College in the position of enrolment officer on

a salary of $504.00 gross per week. On or about 14 December 1995,

in breach of 75B (sic) of the Work Health Act, you resigned that

employment. Pursuant to section 75B of the Work Health Act, you

are deemed to be able to undertake employment of enrolment officer

with TAFE and your weekly compensation is reduced to $259.38.

You are hereby advised that your employer ANSETT AUSTRALIA

Cancels payment of weekly benefits to you pursuant to s69 of

Pursuant to section 75B(2) of the Work Health Act, you have

unreasonably failed to undertake rehabilitation treatment or to

participate in rehabilitation training or a workplace base (sic) return

to work program which could enable you to undertake more

profitable employment; accordingly, you are deemed to be able to

undertake such employment and your compensation is cancelled.

The learned Magistrate held that the employment obtained by the worker

was found by himself; it was not offered to him by his employer, the

employer's insurer or the employer's rehabilitation consultant.

Consequently, the employment was not "reasonable medical , surgical (or)

rehabilitation treatment" or "rehabilitation training" or a "workplace based

return to work program" within the meaning of s75B of the Act.

Consequently, the employer failed on the second and third notices.

I note in addition, that both notices fail to comply with the strict provisions

of s69. Neither notice gives fourteen days' notice of intention to cancel or

reduce the compensation, but purport to reduce or cancel the compensation

forthwith. This is fatal to the validity of the notices . Further, the third

notice is so lacking in particularity that it does not comply with s69(4) of

The Chief Justice upheld the learned Magistrate's decision, holding that the

finding that the worker found the job for himself took him outside the

provisions of s75B and that this employment was not part of a workbased

return to work program as it was not part of a plan implemented in the

workplace and devised by the employer to assist the worker to return to

I consider that the learned Magistrate and the Chief Justice were plainly

correct. S75B is contained in Division 4 of Part V of the Act dealing with

"Rehabilitation and Other Compensation". S75(1) provides that the purpose

of the Division is to ensure the rehabilitation of injured workers . S75A

places an obligation on employers to take reasonable steps to find

employment for injured members and, as far as practicable, to participate in

efforts to retrain workers. S75B(1) requires the worker to engage in

reasonable medical, surgical and rehabilitation treatment, or participate in

rehabilitation training, or in workplace based return to work programs at the

employer's expense. S75B(2) provides that where a worker unreasonably

fails to undertake medical, surgical and rehabilitation treatmen t or to

participate in rehabilitation training or a workplace based return to work

program which would enable him to undertake more profitable employment,

he is deemed to be undertaking such employment and his compensation may,

subject to s69, be reduced accordingly. The appellant's contention was that

the work at TAFE found by the worker was part of a workplace based return

to work program. In my opinion that argument must be rejected. In order

for the employer to succeed the employer must show first th at there was a

program of some kind, and in my view this means a program devised by the

employer. Secondly, the work must be part of that program. There was no

finding (and no evidence) to support either of these contentions. Mr Parker

submitted that if this employment was not part of a program, the worker

could resign with impunity. This is not so; the worker is under a duty to

mitigate his loss: Fazlic v. Milingimbi Community Inc. [1982] HCA 3; (1982) 150 CLR 345

at 353-4. However this was not the ground relied upon in the s69 notice,

and the appellant is limited to such grounds at the hearing in the Work

Health Court. This ground of appeal must therefore be dismissed.

The respondent has filed a notice of contention seeking an order that the

appellant pay interest from 5 January 1996 when the appellant ceased

making weekly payments to the respondent. Mr Parker submitted that it is

inappropriate for this Court to deal with the matter. The Work Health

Court's order does not state when the interest is to run. Ther efore this

question should be resolved by that Court. Alternatively, Mr Parker

submitted that the point was decided by the decision of this Court in

Passmore v Plewright [1997] NTCA 140; (1997) 118 NTR 28. In that case, the learned Chief

Magistrate had held that the employer, which had ceased to make payments

to the worker pursuant to a notice given under s69 of the Act, was not

justified in cancelling the worker's weekly payments. The learned Chief

Magistrate ordered interest to be paid on weekly payments due for payment

on or after 4 November 1994, the date of the Court's finding that the

cancellation made on 16 November 1988 was not justified. On appeal,

Martin CJ held that this was incorrect, but on further appeal to this Court,

the order of the learned Chief Magistrate was restored. In that case, no

question of the validity of the s69 notice was in issue. Mr Reeves QC for

the worker submitted that in cases where the notices are invalid, there is no

statutory authority to stop or reduce the payments; whereas in the case of a

valid notice, s69 authorises the cessation or reduction of the payments,

The point raised by Mr Reeves QC was not considered in Passmore v.

Plewright, although there is guidance therein to be found at page 35 where

the Court observed that the issue is when was the employer "required" to

make a weekly payment of compensation within the meaning of s89 of the

Act? However, as that matter has not been determined by the Work Health

Court which has granted liberty to apply, I do not consider that this Court

has jurisdiction under s116 of the Act to entertain the point at this time.

In conclusion, I would dismiss the appeal with costs.

I have read the draft reasons for judgment prepared by Mildren J. I agree

I have had the advantage of considering the judgment of Mildren J in draft.

I agree that the appeal should be dismissed with costs for the reasons stated