B.W. ESLER SERVICES PTY. LIMITED v. DULHUNTY [2000] NSWCA 349

B.W. ESLER SERVICES PTY. LIMITED v. DULHUNTY [2000] NSWCA 349 - NSWCA 2000 case summary — Zoe

[10]

6 POWELL JA: The Appellant purports to appeal as of right from a Judgment delivered, and Award made, by Davidson CCJ on 7 December 1999 when dealing with a further Amended Application for Determination which had been filed on behalf of the Respondent in the Compensation Court on 20 August 1999. In that further Amended Application the Respondent sought an Award of lump sum compensation pursuant to the provisions of s.66 of the Workers Compensation Act 1987 ("the Act") in respect of what he claimed were permanent impairments to his back and neck, lump sum compensation pursuant to the provisions of s.67 of the Act, weekly compensation in respect of what he claimed was his total incapacity pursuant to the provisions of ss. 33, 37, 39 and 40 of the Act, s. 60 expenses and interest. 7 In the event, Davidson CCJ, in addition to making awards pursuant to the provisions of ss. 66 and 67 of the Act in favour of the Respondent and ordering the Appellant to pay the Respondent's s.60 expenses, ordered the Appellant to pay to the Respondent, on the basis of partial incapacity, weekly compensation at the rate of $200.00 from 24 August 1999, the relevance of which date will shortly appear. It is only in respect of his Honour's award of weekly compensation that the Appellant claims the right to appeal. 8 The Respondent, who is now 52 years of age, commenced employment with the Appellant in 1974 in the capacity of a survey technician and continued in that employment until February 1996 when he ceased work claiming to be incapacitated as the result of the sequelae of injuries which he claimed to have sustained while in the employ of the Appellant - put shortly, the injuries which the Respondent claimed to have sustained were a degenerative condition of his lumbar spine said to have been caused by the conditions of his employment over the years, which condition first manifested itself in the form of lower lumbar pain in about 1988 or 1989, and an injury to his neck sustained in June 1992 when, while he was driving a motor vehicle in the course of his employment, the vehicle lost traction and he hit the top of his head on the roof of the cabin a number of times. 9 As I have earlier recorded, the Respondent ceased work in February 1996. The Amended Schedule of Earnings provided by each of the Respondent (RAB 27) and the Appellant (RAB 31) record that the Respondent was paid weekly compensation at the rate of $605.75 - that seemingly being his rate of pay at the time when he ceased work - from 16 February 1996 to 7 November 1996 - a period of some 38 weeks - and at various lesser rates from 8 November 1996 to 4 July 1999 - those rates being agreed upon by the parties - the Respondent seemingly claiming that he did not receive any payment of weekly compensation thereafter while the Appellant claimed - and that claim seems to have been accepted by Davidson CCJ (RAB 34) - that payments of weekly compensation continued until 24 August 1999. 10 The WorkCover Legislation Amendment Act 1996 ("the WorkCover Act"), which was assented to on 3 December 1996 and, so far as is relevant, came into operation on 12 January 1997, inserted into the body of the Act s.52A which, relevantly, provided as follows: "52A. DISCONTINUATION OF WEEKLY PAYMENTS AFTER 2 YEARS (1) Weekly payments of compensation in respect of incapacity for work are not payable for any period beyond the first 104 weeks of incapacity for work (whether total or partial, or a combination of both) in respect of which the worker has received or is entitled to receive weekly payments of compensation but only if one or more of the following paragraphs applies to the worker: (a) the worker is partially incapacitated for work, is not suitably employed (within the meaning of s.43A), and has not yet exhausted his or her entitlement to compensation under s.38 and is not seeking suitable employment (as determined in accordance with s.38A). ……… (2) Weekly payments of compensation do not cease to be payable pursuant to this section until the person liable to make the payments has given the worker at least 12 weeks notice (a payment discontinuation notice ) of the person's intention to discontinue the payments under this section (even if this would result in the worker receiving the payments for more than 104 weeks). The regulations may provide that the requirements of this sub-section do not apply in specified cases or classes of case. ………"

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13 On 1 July 1999, there was filed on behalf of the Respondent the first Amended Application for Determination (RAB 11), in which Amended Application the nature of the Respondent's injury was described as "injury to neck, shoulder, back and right knee" and, in addition to ascribing the cause of those injuries to the incident in June 1992 to which I have earlier referred, also ascribed the cause as "the nature and condition of the applicant's employment or in the alternative, aggravation of a disease of gradual onset". As was the case with the original Application, the first Amended Application did not contain a claim for an award of weekly compensation. 14 On or about 14 July 1999, the Appellant's workers compensation insurer forwarded to the Respondent a letter which so far as is relevant was as follows (Blue AB 75): " NOTICE UNDER SECTION 54 OF INTENTION TO DISCONTINUE PAYMENT OF COMPENSATION PURSUANT TO SECTION 52A WORKERS COMPENSATION ACT 1987 We have carefully considered your claim for on-going weekly compensation benefits. Section 52A(1) of the Worker (sic) Compensation Act 1987 states that weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity if the worker - (a) is not suitably employed and is not seeking suitable employment, (b) is not suitably employed, and has previously unreasonably rejected suitable employment, or (c) has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker's injury). We have decided that s.52A(1)(a)(c) applies to you and therefore you will not receive weekly workers compensation benefits from 24/08/99. However, we will still pay any reasonable and necessary hospital, medical and associated expenses related to your workers compensation claim. Conciliation If you want to appeal against our decision, you can apply to the Workers Compensation Resolution Service (WCRS). To do this you have to fill out the form attached. The service will consider the material made available and determine whether or not to hold a conciliation conference. You have to apply for conciliation before you can start any Compensation Court action. What to do to appeal against this decision Fill out the attached Request for Conciliation Form. Send the completed form, together with any other documents required to accompany the Request, to the Principal Conciliator at WCRS. The address, phone number and fax number, is on the form. Note that you have to apply for conciliation before you can start any Compensation Court action. Follow the instructions WCRS sends you for conciliation. If you want to discuss this decision or need some advice or assistance on workers compensation, you can contact: · WorkCover New South Wales Call them toll free on 131050, or post your queries to: Locked Bag 10 Clarence Street SYDNEY NSW 2000 · Your trade Union · Your Solicitor."

[18]

18 The Respondent's Application came on for hearing before Davidson CCJ in Albury on 30 November 1999, thereafter being adjourned part-heard to 6 December 1999 in Melbourne and determined by his Honour on 7 December 1999. 19 Although, as I have earlier recorded, the Respondent sought and was awarded lump sum compensation pursuant to the provisions of s.66 and 67 of the Act and an Award for s.60 expenses, the Award made by his Honour in that respect is not the subject of the appeal which the Appellant seeks to maintain in these proceedings. For that reason, I record here only so much of his Honour's Judgment as relates to the Award for weekly compensation which was made by his Honour. So far as is relevant, his Honour's Judgment was as follows: "1. This case has been extensively and thoroughly litigated. The issues have been well delineated and the evidence clearly enunciates the facts of the matter. I do not intend to review the facts. During addresses it was agreed between the parties that there are 3 issues for my determination: firstly, as to whether or not the applicant is either totally or partially incapacitated for work; secondly, if he is partially incapacitated, whether or not s.52A should be applied; and, thirdly, the quantification of entitlements under s.66 and s.67." (RAB 33) ……… "7. The applicant was paid compensation from the time he gave up work in February 1996 until August of 1999 when it is said by the respondent that s.52A provisions were brought into play. The applicant seems to have had a significant increase in symptomatology in May 1996 after he was assisting to do some mowing, as I recall it, for one of his neighbours. It was from that time that he did not work again for the respondent. Nevertheless I am satisfied that for some considerable time, probably from about 1988, his low back was causing him trouble and that with the passage of time and the increase of symptomatology, no doubt as a result of the nature and conditions of his employment up until he ceased in 1996, he had a partial incapacity for work on the open labour market, although he remained in the employ of the respondent. 8. The same could be said about his neck condition from the injury in June 1992. I am satisfied that he continued to have symptoms from that time of a significant nature. Although, as Mr. Flett accentuated in his cross-examination of the applicant, he did not find it necessary to seek any medical treatment, but appears to have taken pain killers throughout the period up until he finally ceased in February 1996. Whilst it is a bit difficult for the respondent, as was conceded, to argue now that there was a novus actus so far as the neck is concerned, whilst the applicant was carrying out the mowing in February 1996, nevertheless it has been submitted that when I come to the point of assessing the applicant's resultant incapacity for work and his entitlement under s.66 for the neck, I should discount the degree of that incapacity and impairment because of the superadded incident. It does not seem to me when the whole of the case is weighed that I should adopt that submission. ……… 10. I find, therefore, that the applicant, firstly, with regard to his neck, was partially incapacitated as a result of employment injury when he ceased work in February 1996 and has continued to be so since the cessation of payments of compensation on 24 August 1999. That degree of partial incapacity I believe is relatively significant, particularly when compared to that which I also find results from injury to his back. ……… 12. The awards which I will make for percentage losses and impairments of the back and the neck will reflect, I believe, the degree of incapacity from each of those conditions. I am not satisfied that the applicant is totally incapacitated. I believe all of the physical medicine, as opposed to what one could perhaps call the psychological medicine, is agreed as to that. The applicant believes he is virtually unemployable. Relevant to the consideration of s.52A I further find that the applicant is not suitably employed, and is not seeking suitable employment. There may have been some argument that he was seeking suitable employment by looking at advertisements, however his own answers in cross-examination establish he is not really interested in finding work. As I have said, he regards himself as unemployable, even though that is not the fact as I have found it." ( RAB 34-36). 20 Having earlier (RAB 36) expressed the opinion that the Respondent was entitled to an Award under s.40 of the Act, that Award to be at the rate of $200.00 per week from 24 August 1999 and continuing (RAB 38), Davidson CCJ continued: "36. I turn now to the respondent's submission that the applicant is not entitled to the award for weekly payments which I have made. Mr. Flett, on behalf of the respondent, has conveniently provided me with his written submissions and has made submissions orally. I have also reviewed Mr. Judd's oral submission as to this question. Judge Bishop of this Court on 3 November 1999, in the matter of Royal Society of Welfare for Mothers and Babies v Michele Mary Bowers , delivered a judgment in matter no 33443 of 1998, which is not reported, but which has been made available to me in printed form. It is referred to in Mr. Flett's written submissions. Judge Bishop has also, I am told by counsel, further considered the question in Vockins v. North Broken Hill Ltd & Ors in matter no 18704 of 1997, an unreported judgment on 10 November 1999. 37. Exhibit H (sic) in these proceedings was the notice under s. 4 (sic) of an intention to discontinue payment of compensation pursuant to s.52A of the Workers Compensation Act 1987 - the date of the letter being 14 July 1999. In response to the respondent's case that the weekly payments are defined (sic) by s 52A, the applicant submitted that the respondent has not complied with the transitional provisions which are to be found in Sch 6 Pt 4 cl 14. It is argued by the applicant that it is incumbent upon the respondent to serve two notices. In counter to that, the respondent's argument can be seen in the written submissions, which I need not reiterate. They are noted and have been traversed in oral argument. 38. In further oral argument Mr. Flett says that the only purpose of cl 14 was to give validity to notices given between the first introduction of s 52A in January 1997, and the second provision in August 1998. Mr. Flett submitted that the second s 52A replaced, rather than amended, the first s52A and only requires one notice, that is the one under s 54, to bring it into effect. It appears quite clear that Judge Bishop in Bowers considered otherwise. However, Mr. Flett says that Bowers ' case should be distinguished, at least on the basis that it was a case in which an award of this Court was in existence, whereas in this case, at the time of the serving of the notice, there was no award of the Court. That is covered partly on page 2 of the written submissions. The respondent further makes submissions, which I noted in the oral argument, at page 6 of Mr. Flett's submissions. ……… 41. In the written submissions, particularly at page 6 and 7, he submitted that the only reason cl 14 was retained was to give effect to notices which might have been given between the insertion of s 52A in the first instance in January 1997 and in the second instance in August 1998. He submits that the statements in Vokins' (sic) case must therefore only be obiter, and I am not bound by them. He further raises the question of whether there may be a distinction between a case in which an injured worker may not have had the benefit of legal advice to whom the early notice would be appropriate and one where it would not where the worker had legal representation. I further record that submission. 42. I am somewhat attracted to the argument of the respondent in this instance, particularly that which is set forth at page 6 of Mr. Flett's submission. The question then arises as to why did the Parliament leave in cl 14 Pt 4 of Sch 6. At page 7, as I have already mentioned, Mr. Flett sets out the most likely explanation was to cover those cases between the two of those insertions of s.52A. Nevertheless, I intend, as a matter of comity, to adopt the decisions of Judge Bishop in Bowers and Vokins (sic), each of which I believe is on appeal. The consequence is that I believe the respondent has not complied with the necessary provisions in this instance and therefore s 52A does not apply."

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25 However, as no objection to the competency of the appeal has been raised by the Respondent (see SCR Pt 51 r 25), I proceed on the basis that the appeal is competent. 26 As Davidson CCJ had recorded in para. 42 of his Judgment, the respondent employer lodged an appeal from the Judgment of Bishop CCJ in Royal Society of Welfare for Mothers and Babies v. Bowers (which Judgment, although unreported, is reproduced at Black AB 83-97). That appeal was heard by a Court comprising Priestley and Stein JJA and Clarke AJA on 22 June 2000, the Court's Judgment ([2000] NSWCA 212) being delivered on 11 August 2000. The argument which was advanced in that case on behalf of the Appellant is reproduced in the Judgment of Clarke AJA, in whose Judgment each of Priestley JA and Stein JA concurred, as follows: "18. The employer's argument is succinctly expressed in clauses 10 to 13 of its written submissions which read: '10. it is submitted that Schedule 6 Part 4 Clause 14 relates only to s.52A as inserted by the 1996 amendment and has no application to s.52A in the form it was inserted in 1998. In this regard, clause 14 was impliedly repealed by the Workers Compensation Legislation Amendment Act 1998 (i.e. the 1998 amendments). 11. The new form of s.52A entirely replaced the old form. It is submitted that clause 14 applies only in circumstances where the old form of s.52A has been invoked. In support of this argument are the words of the clause itself. Clause 14(1) refers to s.52A 'as inserted by the WorkCover Legislation Amendment Act 1996' (i.e. the 1996 amendments). 12. The appellant submits that the new form of s.52A is designed to cover injuries occurring before its commencement. There were less than 104 weeks between the commencement of the 1996 section and the 1998 amendments. Thus clause 14 has only been left in the Act for the situation where a discontinuation notice has been given under the old s.52A. 13. Therefore it would not have been intended by the legislature that Schedule 6, Part 4 clause 14 should apply to a notice of discontinuation of payments served pursuant to the new form of s.52A."

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28 In the event the Court allowed the appeal, set aside the orders made by Bishop CCJ and remitted the matter to the Compensation Court for determination in accordance with the decision of the Court. 29 Not surprisingly, the Written Submissions which were prepared on behalf of the present Appellant by Mr. B.R. Ferrari of counsel, who had appeared for the successful Appellant in Royal Society of Welfare for Mothers and Babies v. Bowers (supra), adopted a similar approach to that which had been advanced on behalf of the Appellant, and which were accepted by the Court, in that case. 30 In the Written Submissions which were filed - but not until the afternoon before the hearing of the appeal (cp SCR 51 rr 44A, 47A) - the Respondent accepted that, in the light of this Court's decision in Royal Society of Welfare for Mothers and Babies v. Bowers (supra), Davidson CCJ was to be regarded as having erred in holding that, there having been no prior payment discontinuation notice, the notice given on 14 July 1999 was ineffective to terminate the Respondent's right to continue to receive payments of weekly compensation. Despite this, and notwithstanding that no such submission was advanced on the hearing before Davidson CCJ, and no Notice of Contention to that effect had been filed on his behalf, the Respondent submitted that the notice given on 14 July 1999 was nonetheless ineffective as it did not comply with the provisions of cl 15(1)(a),(b),(c) of the Workers Compensation (General) Regulation 1995 ("the Regulation"). The Respondent's entitlement to advance that submission on the hearing of the appeal was, on the hearing of the appeal, challenged by the Appellant. 31 Notwithstanding that the point was not argued below, and that no Notice of Contention has been filed, it seems to me that, as the submission based upon the provisions of cl 15(1)(a) is one of law requiring the interpretation of the provisions of clause 15, and the interpretation of the notice given on 14 July 1999, and as, even if raised at trial, it would not have required the giving of additional evidence, this is one of those cases in which this Court should entertain the submission (see, for example, Coulton v. Holcombe (1986) 162 CLR 1); however, as it seems to me that, if the submissions based on cl 15(1)(b),(c) had been raised at trial, they could have been met by evidence, I am not prepared to entertain them on this appeal. 32 Before turning to deal with the submission based upon the provisions of cl 15(1)(a) I need to record some further information as to the legislative background. 33 As is apparent from what I have earlier (para. 7 (above)) recorded, s.52A requires the giving of a notice under s. 54 of the Act of intention to discontinue payment of compensation. So far as is relevant, s.54 provides as follows: " 54 Notice required before termination or reduction of payment of weekly compensation (1) If a worker: (a) has received weekly payments of compensation for a continuous period of at least 12 weeks, and (b) has provided the worker's employer, or the employer's insurer, with a certificate by a medical practitioner specifying the expected duration of the worker's incapacity. the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation. Maximum penalty: 50 penalty units (2) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that: (a) if no period of notice has been given - is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or (b) if less than the prescribed period of notice has been given - is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced. (3) The prescribed period of notice referred to in this section is: (a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year - 2 weeks, or (b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more - 6 weeks. (4) The notice referred to in this section shall: (a) be given to the worker personally or by post, and (b) if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations." 34 When the Regulation was first promulgated on the coming into force of the amendments to the Act introduced by the Workers Compensation Legislation Amendment Act 1995 ("the 1995 Amendment Act"), cl 15 of the Regulation provided: "NOTICE OF INTENTION TO DISCONTINUE OR REDUCE WEEKLY PAYMENTS

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(e) include the address and fax number for the Senior Conciliation Officer or Principal Conciliator (whichever officer is nominated in the statement under para. (c))." 39 On 20 March 1998, cl. 15 of the Regulation was further amended by inserting after cl. 15(1) the following: "(2) In the case of a discontinuation of weekly payments of compensation pursuant to s.52A (discontinuation of weekly payments after 2 years) of the Act the notice referred to in section 54 of the Act is to be in the form of the payment discontinuation notice required by section 52A of the Act." 40 On 28 August 1998, following the coming into operation of the form of s. 52A of the Act, substituted by the 1988 Amendment Act, cl. 15 of the Regulation was further amended by omitting sub-cl. 2. 41 At the same time, the provisions of Pt 4 Compensation - Claims and Proceedings of the Act - which part included Divisions 2 and 3, the provisions of which, as I have earlier noted, included reference to conciliation - were omitted from the Act. Similar, although not identical, provisions to those contained in Pt. 4 of the Act are now to be found in Part 2 Compensation - Claims and Proceedings of the Work Place Injury Management and Workers Compensation Act 1998. Division 3 Conciliation and Disputes by Conciliator and Division 4 - Special Provisions with Respect to Weekly Payments of Compensation reproduce in substance the relevant provisions of Divisions 2 and 3 of Pt 4 of the Act - s.76 replaces the former s.95, s.78 replaces the former s.97, s.92 replaces the former s.101 and s. 95 replaces the former s.104. 42 Section 80 of the Interpretation Act 1987 provides as follows: - " Compliance with forms (1) If an Act or statutory rule prescribes a form, strict compliance with the form is not necessary but substantial compliance is sufficient. (2) If a form prescribed by an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in the manner and unless it includes, or has attached to or furnished with it, that information."

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49 GILES JA: I have had the advantage of reading in draft the reasons of Powell JA. The material facts and legislative provisions are set out in his Honour's reasons, and I will not repeat them. 50 The respondent did not contend that the appeal was incompetent because leave was required but had not been obtained, and no argument was addressed to competency. In the circumstances, I am content to assume competency without taking up what Powell JA said in that respect. 51 The issue on appeal came down to whether purported termination of the respondent's entitlement to be paid weekly compensation was ineffective because the appellant's notice of 14 July 1999 did not comply with one or more of paras (a), (b) and (c) of cl 15(1) of the Workers' Compensation (General) Regulation 1995. Clause 15(1) is set out in para [33] of the reasons of Powell JA. The respondent had not raised that issue before Davidson CCJ, or in this Court by a notice of contention. So far as the respondent relied on non-compliance with para (b) of cl 15(1), I agree with Powell JA that he should not be permitted to rely on it in the appeal because, had it been raised at the trial, the appellant could have called evidence which might have prevented the point from succeeding: Coulton v Holcombe (1986) 162 CLR 1 at 7-8. So far as the respondent relied on non-compliance with paras (a) and (c) of cl 15(1), however, the point turns on the construction of the notice in evidence and the same can not be said: differing from Powell JA as to para (c), I consider that the respondent should be permitted to rely on those paragraphs on appeal and the need for a notice of contention should be dispensed with. 52 It is sufficient, in my view, to go to para (a) of cl 15(1). The notice of 14 July is set out in para [9] of the reasons of Powell JA, and s 54 of the Workers Compensation Act 1987 ("the Act") is set out in para [28] of his reasons. The requirements for the notice are in s 54(4), requirements as to service and as to content. Section 80 of the Interpretation Act 1987 may not apply, because strictly s 54(4) as taken up by cl 15(1) does not relevantly prescribe a form but rather prescribes that the notice contain particular information. It does not matter, because whether the notice includes "a statement of the reason for the dispute concerned together with a statement of the particulars that support the reasons" is to be determined on a common sense reading of the notice. No particular form of words is needed, and it must be asked whether the notice conveys the requisite statements to the ordinary reader. 53 It is necessary first to understand "the dispute concerned" in cl 15(1). Neither cl 15(1) nor s 54 otherwise refers to a dispute, and it is possible that a worker who receives a notice of intention to discontinue payment of compensation will not dispute that, by force of s 52A of the Act, weekly payments of compensation will be discontinued. However, from the context and the balance of cl 15(1) it appears that the presumptive dispute is over whether weekly payments of compensation should be continued, that being the relevant subject-matter and being within the scope of the Act as to conciliation, see s 104. 54 There being an actual or presumed dispute, the statement of the reason for the dispute must be something more than the fact that the employer intends to discontinue payment of compensation and the worker does not (or is presumed not to) agree. It must identify the ground for the employer's intended discontinuation within s 52A of the Act, the terms of which are set out in part in para [7] of the reasons of Powell JA. Weekly payments of compensation in respect of partial incapacity for work are not payable if one or more of the "grounds for discontinuation" applies to the worker at the time the notice is given. Only ground (a) is set out by Powell JA, but the other grounds are adequately reproduced in the paraphrase of s 52A in the notice of 14 July 1999. 55 The notice of 14 July 1999 meets the requirements of cl 15(1) in that there is a dispute (in this case it seems a specific claim for ongoing weekly compensation benefits which the employer rejects) and a statement of reasons for the dispute, namely that the employer contends that grounds (a) and (c) in s 52A apply to the worker. Clause 15(1) then calls for something more, a statement of the particulars that support the reasons. The worker is to know more in order to decide whether to request conciliation or apply to the Compensation Court. Concentrating on the ground upheld by Davidson CCJ, that the worker is not suitably employed and is not seeking suitable employment, as s 52A(1)(a) indicates suitable employment is to be determined according to the meaning found in s 43A of the Act and failure to seek suitable employment is to be determined in accordance with s 38A, and there is ample room for particulars so that the worker knows why the employer contends that the ground applies - at its most basic, the particulars should reveal the employer's allegations as to the extent of the worker's incapacity and the availability of work which the worker can undertake. 56 The notice of 14 July 1999 does not give any particulars. Respectfully differing in this respect from Powell JA, I consider that it did not comply with para (a) of cl 15(1). 57 Was the purported termination of the respondent's entitlement to be paid weekly compensation thereby ineffective? This was but touched on in argument. 58 It is true, as Powell JA says, that s 54 does not provide that a discontinuation of payment of compensation is ineffective if no notice or a non-complying notice has been given. Section 54(1) states an obligation to give a prescribed period of notice, but only when a particular medical certificate has been given, and s 54(2) confers an entitlement to compensation in respect of a discontinuation for which the prescribed period of notice was not given. But s 52A itself must be considered. It makes the notice an ingredient in the discontinuance, in that one of the grounds must apply to the worker at the relevant time and the relevant time is the time "at which the notice under s 54 of intention to discontinue payment of compensation pursuant to this section is given" (s 52A(2)). Subject to the circumstances in s 52A(8) (which is not included in para [7] of the reasons of Powell JA), an obligation to give the notice is imposed, something more than the obligation to give the prescribed period of notice and not as an obligation for breach of which a penalty is prescribed, and an earliest time for giving notice is stated (s 52A(4)). The earliest time is different from the prescribed period of notice in s 54(2), which seems to assume the giving of a notice and says what happens if there is no or an inadequate period of notice. 59 In my view the effect of the requirement in s 52A is not only that a notice must be given but also that a complying notice must be given in order that the termination be effective. It would be strange if payment of compensation could be effectively discontinued without a notice under s 54 or following the giving of a notice which was not a notice under s 54, because the worker would not be given the information which, pursuant to s 54(4), it is thought should be given in order that the worker can request conciliation or apply to the Compensation Court. Although it was not cited to us, I note that in Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR Curtis CCJ rejected what he called a s 52A defence because the notice under s 54 had not been given to the worker personally or by post, in accordance with the other requirement in s 54(4). Again respectfully differing from Powell JA, in my opinion the purported termination of the respondent's entitlement to be paid weekly compensation was ineffective. 60 The appeal should be dismissed, but because the respondent succeeded on an issue not raised in the Compensation Court no order should be made as to the costs of the appeal.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Legislation Cited (1)

Cases Cited (3)