Cram Fluid Power Pty Ltd v Green

Court of Appeal (NSW)|2015-06-30|Before: Beazley ACJ, Emmett JA, Gleeson JA

The applicant's submissions

The focus of the applicant's submissions was on demonstrating by reference to the legislative scheme, that Mr Green's 2013 Claim has a separate identity from his 2010 Claim, with the consequence that the 2013 Claim is a "claim" within cl 15 of Pt 19H of Sch 6 to the 1987 Act. Accordingly it is said that s 66(1A) applies to the 2013 Claim.
The applicant submitted that the words "a claim for compensation made" in cl 15 must be given a meaning consonant with the 1987 Act and the 1998 Act read congruently as a whole. This required the conclusion, it was said, that multiple claims of permanent impairment compensation are separate and distinct from each other and not properly characterised as parts or aspects of a single claim, although there may be a single injury.
In support of its argument, the applicant pointed to the use of the distinct concepts of "injury", "compensation", "entitlement" and "claim" for the purposes of the 1987 Act and the 1998 Act. The applicant also pointed to the use of the term "claim" in various provisions of the 1998 Act in a manner consistent with multiple claims for permanent impairment being treated as separate and distinct claims. Reference was made to ss 260, 261 and 263 of the 1998 Act. It is unnecessary to refer to the detail of these provisions in view of the concession made by counsel for Mr Green which is noted below.

The applicant's response

The applicant disputed that cl 11 of Sch 8 to the 2010 Regulations was the operative provision in this case. The applicant contended that cl 11 does not confer an immunity on the claimant or worker, Mr Green, from the application of s 66(1A) to his 2013 Claim. Rather cl 11 is directed to exempting certain "claims" for compensation (as distinct from "claimants" or "workers") from the one claim limitation in s 66(1A), if the claim answers the description of a claim made before 19 June 2012 which "specifically sought lump sum compensation". It was emphasised that Mr Green's 2013 Claim did not satisfy that temporal requirement which was necessary to engage the exemption from the new s 66(1A) provided by cl 11.
As to Mr Green's reliance upon s 66A(3)(c) with respect to deterioration in his impairment since entering into the complying agreement in 2010, the applicant accepted that there was some tension between ss 66 (as amended) and 66A(3)(c).
Nonetheless the applicant contended that these provisions could be read together and given a harmonious operation without rendering s 66A(3)(c) superfluous. It was submitted that s 66A(3)(c) should be given a limited operation with respect to those further claims for permanent impairment compensation based on deterioration in a claimant's permanent impairment since entering into a complying agreement, but only where such further claim for permanent impairment compensation had been made before 19 June 2012.

Consideration

The scheme of the transitional provisions has been outlined above at [39]-[47]. As already indicated, the focus of the parties' submissions was on whether cl 15 of Pt 19H of Sch 6 to the 1987 Act, or cl 11 of Sch 8 to the 2010 Regulations was the operative provision in the present case.
The starting position is that, cl 15 relevantly provides that the 2012 amendments extend to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date. However, as the High Court stated in Goudappel (at [13]), although cl 15 protected entitlements the subject of claims made before 19 June 2012 from the disentitling effect of the new s 66(1), in particular s 66(1A), that protection was liable to be affected by regulation.
Clause 11 of Sch 8 to the 2010 Regulations is such a regulation which varies the operation of cl 15 of the transitional provisions. Clause 11 does so by extending the operation of the 2012 amendments to claims for compensation made before 19 June 2012, subject to one exception. The exception is limited to those claims made before 19 June 2012 "that specifically sought compensation under section 66 or 67 of the 1987 Act."
It is to be observed that the exemption provided by cl 11 from the new s 66(1A), is directed to those "claims" for compensation which answer the relevant description, not the "claimant" or "worker", nor the "injury" to the worker.
Mr Green's 2013 Claim answers the description of a "claim for compensation" made after 19 June 2012. Counsel for Mr Green conceded so much in oral argument. If the operative provision were cl 15, that conclusion would result in the first issue being answered favourably to the applicant. Keating P took a different view. He held that notwithstanding that the 2010 Claim had been made and resolved, the 2013 Claim was not a "new claim" in respect of the same injury and thereby caught by the amendments to s 66. His Honour considered (at [78]) that the High Court's decision in Goudappel (at [36]) required that view to be taken of the 2013 Claim. Counsel for Mr Green did not seek to support his Honour's reasoning. He was correct not to do so.
Nothing in the High Court's decision in Goudappel supports the meaning of "claim" favoured by his Honour. The question of what is meant by a "claim" for compensation was not in issue before the High Court. The issue before the High Court was the validity of cl 11 of Sch 8 to the 2010 Regulations. So much is clear from [3] and [9] of the reasons in Goudappel.
At [9] of the High Court's reasons, it was noted that the conclusion in this Court concerning Mr Goudappel's claim for permanent impairment compensation being subsumed in his original claim for compensation made prior to the 2012 amendments was not in issue: see Goudappel v ADCO Constructions Pty Ltd at [1], [2], [16]. As will be seen, this Court's decision concerning the worker's "claim" in Goudappel v ADCO Constructions Pty Ltd does not assist Mr Green, because Mr Green did not contend that his 2010 Claim (which had been resolved) could be taken as subsuming his 2013 Claim.
Keating P erred, with respect, in treating the High Court's answer to the question of the validity of the regulation as addressing the meaning of "claim" for the purposes of s 66 and the transitional provisions.
Accepting that the 2013 Claim answers to the description in cl 15 of a claim for compensation made after 19 June 2012, one turns to the contention of Mr Green that the effect of cl 11 of Sch 8 to the 2010 Regulations is that if a worker had specifically sought a s 66 entitlement to lump sum compensation for permanent impairment before 19 June 2012 (as Mr Green had done in 2010), then the operation of the 2012 amending provisions did not apply to that claimant or worker, so that the worker could make a further claim for lump sum compensation after that date (tcpt, CA at 31, lines 18-29).
Counsel for Mr Green accepted that the construction of cl 11 contended for required reading cl 11 as having the effect of providing that the 2012 amendments do not extend to a claim for s 66 compensation made after 19 June 2012, if there has been a previous claim for s 66 compensation before that date (tcpt, CA at 30, lines 31-36). The difficulty with this construction, as pointed out in debate during oral argument, is that those words were not used in cl 11.
Counsel for Mr Green sought to meet this difficulty by contending that if one reverses the order in which the two parts of cl 11 are expressed, the meaning is the same as the construction contended for by Mr Green (tcpt, CA at 30, lines 41-42). This submission should be rejected. Whichever order in which cl 11 is read, Mr Green's construction involves reading additional words into the clause. Counsel for Mr Green was reluctant to accept that this was so, but that reluctance cannot obscure the effect of Mr Green's construction (tcpt, CA at 30, lines 44-46).
A number of further observations should be made. First, the clear object of cl 11 of Sch 8 to the 2010 Regulations was to extend the 2012 amendments to claims made before 19 June 2012, except where the "claim" specifically sought lump sum compensation. The regulation went no further.
Secondly, no attempt was made in Mr Green's submissions to justify reading cl 11 as if it contained additional words with the effect of expanding its field of operation: see Taylor v The Owner - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 at [38]-[40] in the context of statutory construction. It was not suggested that cl 11 should be read as it if contained additional words because of simple, grammatical, drafting errors which if uncorrected would defeat the object of the regulation.
Thirdly, counsel for Mr Green did not point to any contextual or other basis for reading cl 11 in the manner contended for.
Fourthly, cl 11 does not purport to vary the operation of cl 15 of Pt 19H with respect to claims for compensation made on or after 19 June 2012. The language of cl 11 cannot be tortured in the way Mr Green suggests to apply to a different subject matter. Clause 11 says nothing about claims for compensation made on or after 19 June 2012.
In short, the 2013 Claim which Mr Green sought to pursue before the Commission does not answer the description in cl 11 of a claim that "specifically sought compensation under s 66 … made before 19 June 2012". The fact that the 2010 Claim may have answered that description is not to the point. Once it is accepted, as it must be, that the 2013 Claim although arising out of the same injury was a different claim to the 2010 Claim, the effect of cl 15 of Pt 19H is that Mr Green's 2013 Claim is subject to the operation of the amending provisions, including the one claim limitation in s 66(1A).
This is sufficient to dispose of the first argument raised by Mr Green. It is unnecessary to address the other criticisms of the reasoning of Keating P advanced by the applicant.
For completeness however, reference should be made to two authorities which the parties placed reliance upon.
First, the applicant referred to the following statement by Basten JA (with whom Beech-Jones J agreed) in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 at [106] as supporting its construction of cl 11: The effect of cl 11 was to preclude reliance on the old form of s 66 with respect to a claim made prior to 19 June 2012, unless the claim specifically sought lump sum compensation. The 1996 claim fell within the exception. However, that did not assist the applicant because, not only had that claim been disposed of, but it could not give rise to an entitlement to compensation for loss of hearing after August 1996. It followed that the 2012 Amendment Act applied to the only extant claim, namely that made on 19 June 2012. [Emphasis added.]
The applicant contended that the above statement is consistent with the applicant's argument that Mr Green's 2010 Claim and his 2013 Claim were distinct. So much may be accepted, but it must be recognised that the meaning of "injury" for the purpose of a "claim" in Sukkar v Adonis Electrics Pty Ltd turned on the deeming provisions applicable to hearing loss claims, which do not apply to the present case.
Under s 17 of the 1987 Act, where an injury from a loss or further loss of hearing is caused by a gradual process, the injury is deemed to have happened at the time when a notice is given to the employer or insurer. Notice had been given by Mr Sukkar in 1996 and that claim had been resolved. Further notice had been given by Mr Sukkar on 19 June 2012 and the issue was whether the 2012 amendments applied to that latter claim, which s 17 required to be treated as a deemed "injury", separate to the injury the subject of the 1996 claim. That is different from the present case, which involves only one injury, but two claims.
Next, the applicant was on firmer ground insofar as it pointed to the observation of Beech-Jones J (at [123]) that the "immunity" argument is misconceived. In Sukkar v Adonis Electrics Pty Ltd, Mr Sukkar had contended that cl 11 of Sch 8 to the 2010 Regulations conferred some form of immunity from the 2012 amendments, if the worker just happened to have previously made a claim for lump sum compensation prior to the critical date of 19 June 2012. This was, in effect, the same argument as Mr Green relied upon here.
Beech-Jones J explained, correctly in my view, that the reference to "claim" in cl 15 of Pt 19H of Sch 6 to the 1987 Act and cl 11 of Sch 8 to the 2010 Regulations is clearly directed to the claim under consideration which in that case, like the present, was a claim made on or after 19 June 2012. Basten JA expressed a similar view at [113]: A claim for lump sum compensation for permanent impairment made on or after 19 June 2012 is a claim to which the 2012 Amending Act applies by virtue of the transitional provision in cl 15, Pt 19H, Sch 6 to the 1987 Act. If there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 Amending Act will not apply to it.
Finally, in written submissions, Mr Green pointed to the statement in this Court by Basten JA in Goudappel v ADCO Constructions Pty Ltd at [11]. There his Honour, referring to the meaning of the words "claim", "compensation" and "lump sum compensation" under the 1987 and 1998 Acts, said that: "[h]ad it been intended to require an extant claim for lump sum compensation as at the specified date, cl 15 could have so stated, but it did not".
That statement however was directed to a different circumstance than the present case.
Goudappel v ADCO Constructions Pty Ltd involved a worker who had lodged a claim for compensation in April 2010, but had not specifically sought any permanent impairment compensation under s 66 until 20 June 2010, being after the critical date for the application of the 2012 amendments. The worker's claim for permanent impairment compensation was below the 10% threshold now required under s 66(1). Accordingly, the claim under s 66 could be maintained only if the 2012 Amending Act did not apply to the worker's claim.
In this Court, Basten JA held that the 2012 amendments did not apply to Mr Goudappel's claim under s 66. His Honour reasoned that a worker was not required under the 1987 Act to make a "separate claim" for lump sum compensation payments: see at [11]-[17]. Accordingly, his Honour concluded that an extant general claim for compensation made before 19 June 2012, subsumes a later specific claim under s 66. That however is not the present case. His Honour was not called on to consider the relationship between two specific claims (one resolved) each for permanent impairment compensation.
Insofar as the applicant challenged aspects of the reasoning of Basten JA concerning a "claim", it is unnecessary to address those matters here. There is no issue that Mr Green relevantly made a claim for lump sum compensation before 19 June 2012, and that claim had been resolved before that critical date. Unlike the injured worker in Goudappel v ADCO Constructions Pty Ltd, Mr Green did not seek to escape the operation of the 2012 Amending Act by relying upon an extant general claim for compensation made before 19 June 2012 as subsuming a specific claim for lump sum compensation first advanced after 19 June 2012.

Section 66A(3)(c)

Section 66A(3)(c) contemplates that where a worker who has received an injury enters into a complying agreement, there may be an increase in the degree of permanent impairment beyond that which is the subject of the agreement. In such event, the Commission may award additional compensation notwithstanding the earlier agreement as to the compensation payable to the worker.
In this respect, the "one claim" limitation in the new s 66(1A) may be seen to conflict with the assumption underlying the Commission's power to award additional lump sum compensation under s 66A(3). The question which arises is how should seemingly conflicting provisions be reconciled. Two observations may be made.
First, there is a general presumption against surplusage in statutes: Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403 at [121] (Leeming JA).
Secondly, as the High Court explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70], citing Institute of Patent Agents v Lockwood [1894] AC 347 at 360 (Lord Herschell LC), reconciling conflicting provisions will often require the Court to determine which is the leading provision and which the subordinate provision, and which must give way to the other. The High Court continued (at [70]) "only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme".
Here, giving effect to the purpose and language of the 2012 amendments while maintaining the unity of the statutory scheme, requires that the one claim limitation in the new s 66(1A) be taken to be the leading provision and the Commission's power under s 66A(3) must give way to it. This is because the Commission's power to award additional compensation under s 66A(3)(c) is not independent of a worker's entitlement to receive compensation under s 66. So much was accepted by counsel for Mr Green (tcpt, CA at 34, lines 29-47).
It should be accepted, as the applicant contended, that following the introduction of s 66(1A), s 66A(3) only has a limited operation with respect to claims for lump sum compensation additional to that payable under a complying agreement, where the further claim is made before 19 June 2012. Such a claim would answer the description in cl 11 of a claim that specifically sought lump sum compensation before 19 June 2012 and thus would be exempted from the one-claim limitation in the new s 66(1A).
It follows that s 66A(3)(c) does not assist Mr Green because his further claim for lump sum compensation, based on his deterioration since the 2010 complying agreement, was not made before 19 June 2012.

Second issue: Meaning of "only one claim" in s 66(1A)

The Commission's reasons

In the Commission, Keating P identified the second issue as whether s 66(1A) is to be read prospectively, so that a worker is only restricted to "one claim" after the commencement of the 2012 Amending Act, or whether it applies retrospectively by construing s 66(1A) as extending to claims made before its commencement: at [99].
In the circumstances of the present case, his Honour noted that when Mr Green made his claim in 2010 he was entitled to make subsequent claims if his level of impairment increased. His Honour considered that if the applicant's arguments were accepted, the accrued right of Mr Green would be extinguished by the making of his 2010 Claim: at [100]. He concluded that this was not the statutory intention of the 2012 Amending Act.
His Honour's essential reasoning is expressed at [104]-[107] as follows: 104. The High Court held that the contrary intention was clear in Mr Goudappel's circumstances, namely, where he had not previously sought compensation under s 66 or s 67. However, there is no clear statement in either the text or context of the legislation, nor the transitional provisions in Pt 19H and cl 11 of Sch 8 of the 2010 Regulation, to support the proposition that it was intended that the one claim referred to in s 66(1A) is intended to refer to a claim or claims made before 19 June 2012. 105. That s 66(1A) is not intended to have retrospective effect is evidenced by the fact that the clear words of cl 15 of Pt 19H which expressly provides that an amendment introduced by Sch 2 of the amending Act, which includes s 66(1A), extends to claims for compensation made on or after 19 June 2012, but not to such a claim made before that date. It follows that the "one claim" referred to in s 66(1A) cannot be a reference to a claim or claims made before 19 June 2012. 106. This conclusion is reinforced by cl 11 of Sch 8 of the 2010 Regulation. As I have discussed with respect to ground one, cl 11 clearly provides that the amendments introduced by the amending Act, including s 66(1A) and the one claim limitation, do not apply to claims that specifically sought lump sum compensation under s 66 or s 67 before 19 June 2012. 107. It must follow from the plain reading of these provisions that the one claim limitation referred to in s 66(1A) is a limitation that applies to claims for lump sum compensation made on or after 19 June 2012. That is, the provision applies prospectively to claims made on or after 19 June 2012 and claims made under s 66 or s 67 are not counted as the one claim for the purposes of the amended provision.

The applicant's submissions

The applicant contended that Keating P adopted an erroneous approach in concluding that s 66(1A) applies prospectively to claims made on and after 19 June 2012, so that a claim made before that date is not to be counted as the "one claim" that s 66(1A) permits to be made. The error was said to be that whilst notions of prospectivity and retrospectivity are relevant to determining whether s 66(1A) applies to a claim for lump sum compensation made on or after 19 June 2012, being the first issue, once it is concluded that s 66(1A) does apply, then it falls to be applied according to the natural and ordinary meaning of the text, understood in context.
The applicant further contended that the effect of the construction adopted by Keating P is that the words "only one claim" are to be read as "only one further claim". It was said that there is no warrant in the text or context for adopting that gloss on the natural and ordinary meaning of the words.
The applicant accepted that s 66(1A) operates to the detriment of a person in the position Mr Green. Nonetheless, the applicant said that this is the effect of the legislative policy of the 2012 Amending Act, which was clear in its intended, non-beneficial operation. Reference was made to the observations to this effect by the High Court in Goudappel at [29] and by Beech-Jones J in Sukkar v Adonis Electrics Pty Ltd at [132]-[133]. Reference was also made to certain extrinsic materials, including the second reading speech on 19 June 2012 and the Joint Select Committee Report on the New South Wales Workers Compensation Scheme dated 13 June 2012.

Mr Green's submissions

Mr Green did not seek to uphold Keating P's reasoning relying on notions of prospectivity and retrospectivity. In written submissions, Mr Green contended that for the purpose of s 66(1A) of the 1987 Act, his "one claim" was that made on 29 October 2013 (that is, the 2013 Claim). This submission essentially repeated Mr Green's argument with respect to the first issue. It was said that Mr Green's 2010 Claim cannot be the "one claim" to which s 66(1A) refers because the effect of cl 11 of Sch 8 to the 2010 Regulations is that the 2012 amendments do not extend to his 2010 Claim. Accordingly, it was said that the 2013 Claim is Mr Green's "one clam" for the purpose of s 66(1A).
Counsel for Mr Green did not expand upon these submissions in oral argument.

Consideration

The transitional provisions with respect to the 2012 amendments make plain that the new "one claim" limitation applies, relevantly, to claims for lump sum compensation made on or after the critical date (19 June 2012).
Once it is accepted, as it should be, that the new s 66 applies to Mr Green's 2013 Claim, it was an error, with respect, for Keating P to approach the question of the application of the new s 66 by reference to notions of "prospective" or "retrospective" operation.
It was also an error by his Honour to approach the question by reference to a consideration of accrued rights of the worker to claim compensation under s 66. The High Court acknowledged in Goudappel (at [29]) that the 2012 amendments had a non-beneficial operation. It could not be in doubt that the effect of the new s 66 operated to the detriment of workers who claimed an entitlement to lump sum compensation after 19 June 2012.
It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.
A consideration of the secondary materials does not lead to a conclusion different to that which is suggested by the plain words of the new s 66: Interpretation Act 1987 (NSW), s 34(1)(a).
The Explanatory Note to the Workers Compensation Legislation Amendment Bill 2012 (NSW) (para (d), Overview) describes the object of the Amendment Bill as including to amend the 1987 and 1998 Acts such that the scheme for lump sum compensation for permanent impairment will be changed, relevantly, that "only one claim for permanent impairment compensation will be able to be made".
The Treasurer's Second Reading Speech on 19 June 2012 announced that the amending legislation was to deliver urgently needed reforms to the New South Wales Workers Compensation Scheme. The Treasurer said that "[w]ith a deficit in excess of $4 billion, the scheme is currently unsustainable". The critical part of the Second Reading Speech for present purposes is the following statement made by the Treasurer: The amendment proposes only one assessment of the level of impairment for the purposes of permanent impairment commutation and common law work injury claims and allows workers to waive their requirement to obtain legal advice before agreeing to a lump sum. These initiatives will help to reduce disputes and reduce administration costs while allowing the scheme to focus on the more seriously injured workers.
The Joint Select Committee Report on the New South Wales Workers Compensation Scheme dated 13 June 2012 had observed in relation to the proposed one claim limitation for lump sum compensation (at [3.185]): The Committee however believes that in some isolated cases, an injustice may be done if there were a limit of one assessment where there has been a significant deterioration in a worker's condition.
The Committee had recommended (Recommendation 12) that the New South Wales Government ensure that, under the Workers Compensation Scheme, after the determination of a claim for whole person impairment, only up to two further claims be permitted and in each case only if there has been a deterioration of whole person impairment of at least 5% since the last determination. That recommendation was not adopted in the 2012 Amending Act.
Instead, Parliament has limited the entitlement to benefits provided under the 1987 Act in respect of lump sum compensation by imposing the one-claim limitation and the 10% threshold for permanent impairment. The 2012 amendments marked a legislative policy favouring cost-saving and administrative reforms to the existing scheme for lump sum compensation under the 1987 and 1998 Acts.
The construction favoured by Keating P also suffers from the difficulty identified by the applicant, that his Honour construed the new s 66 to mean that "only one further claim" after the commencement of the 2012 Amending Act can be made. That construction should not be accepted.
First, that is not what the words of the provision provide.
Secondly, in view of the plain language used and the evident purpose of the 2012 amendments there is no warrant for either adopting a gloss on those words, or reading an additional word such as "further" into s 66(1A), so as to qualify the one claim limitation: Taylor v The Owner - Strata Plan No 11564 at [38]-[40].
Thirdly, contrary to the view expressed by Keating P, the application of the new s 66 does not turn on the injustice suffered by Mr Green as a result of the 2012 amendments. To reason in this manner is to ignore that the new s 66 plainly operates to the detriment of injured workers in the position of Mr Green. The Joint Select Committee report had recognised the injustice of the proposed one claim limitation where there had been a significant deterioration in the worker's condition. The legislature could have provided that claims for lump sum compensation made prior to the critical date were not to be counted for the purpose of the amended s 66. But the legislature chose not to adopt that course.
The correct position, in my view, is that stated by Beech-Jones J in Sukkar v Adonis Electrics Pty Ltd (at [132]-[133]). His Honour said that the new s 66(1A): mandates that there shall only be one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury. … [and] may operate on facts antecedent to it coming into force including the existence of an earlier claim…
Here Mr Green has already made his one claim for lump sum compensation, being his 2010 Claim. Accordingly, the new s 66(1A) disentitles Mr Green from making his 2013 Claim for further lump sum compensation.

Conclusion

For the above reasons, the appeal should be allowed. The orders I would propose are as follows:
Dismiss the respondent's notice of motion dated 30 June 2015.
Grant leave to appeal.
Direct the applicant to file a notice of appeal in the form of the draft contained within the White Book within 14 days.
Appeal allowed.
Set aside the orders in the Commission below, and in place order: (a) the appeal from the decision of the Arbitrator is upheld; (b) the decision of the Arbitrator made on 7 August 2014, and confirmed by written notice dated 8 August 2014, is revoked; (c) the Commission notes that the respondent worker (Mr Green) has no entitlement to pursue his claim for further permanent impairment compensation; (d) the respondent worker's claim filed 3 March 2014 for further permanent impairment compensation is dismissed.
The respondent to pay the appellant's costs in this Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2015

Workers Compensation Regulation 2010(NSW)

Workers Compensation Amendment (Miscellaneous) Regulation 2012(NSW)

Workers Compensation Amendment (Transitional) Regulation 2012(NSW)

Workers Compensation Act 1987(NSW)ss 2A, 4, 9, 17, 66, 66A, 67, Sch

4] AC 347 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 Moore v Greater Taree City Council [2009] NSWWCCPD 17 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403 Taylor v The Owner - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 Tjiong v Tjiong [2012] NSWCA 201 Tozanis v KU Children's Services [2010] NSWWCCPD 51 Category: Principal judgment Parties: Cram Fluid Power Pty Ltd (Applicant) Michael George Green (Respondent) Representation: Counsel: J K Kirk SC / S L Flett / B Lim (Applicant) C T Barry QC / M Boulton (Respondent)

Solicitors: Hicksons (Applicant) RMB Compensation Lawyers (Respondent) File Number(s): 2015/10256 Decision under appeal Court or tribunal: Workers Compensation Commission Citation: Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 Date of Decision: 17 December 2014 Before: Keating P File Number(s): A1-999/14

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Green, an employee of Cram Fluid Power Pty Ltd (the applicant), suffered a back injury at work on 24 May 2005. It was not disputed that Mr Green made a claim for compensation against the applicant within 6 months of his injury. On 14 December 2010, Mr Green made a claim for lump sum compensation for permanent impairment under s 66 of the Workers Compensation Act 1987 (NSW) (1987 Act) (2010 Claim). The 2010 Claim was in respect of 7% whole person impairment, and was resolved when Mr Green and the applicant entered into a complying agreement under s 66A of the 1987 Act. Section 66A(3)(c) provided that the Workers Compensation Commission (Commission) may award compensation additional to that payable under a complying agreement if, since the date the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed. Section 66 and other provisions of the 1987 Act were amended by legislation commencing on 27 June 2012 (2012 Amending Act). Those amendments included a new s 66(1A) which provided that only one claim can be made under the 1987 Act for permanent impairment compensation. Clause 15 of Pt 19H of Sch 6 to the 1987 (cl 15), a transitional provision, provided that the 2012 Amending Act extends to a claim for compensation made on or after 19 June 2012 but not to such a claim made before that date. This provision was liable to be affected by regulation. A transitional regulation affecting the operation of cl 15 was inserted into the Workers Compensation Regulation 2010 (NSW) (2010 Regulation) at Sch 8, cl 11 (cl 11). Clause 11 relevantly provided that the 2012 Amending Act extends to a claim made before 19 June 2012 but not to a claim that specifically sought compensation under s 66 of the 1987 Act. Mr Green's condition deteriorated and required surgery in September 2012. On 29 October 2013, Mr Green made a further claim under s 66 for lump sum compensation (2013 Claim). This claim was for 22% whole person impairment (with credit for the amount paid in respect of the 2010 Claim). This claim was not resolved by agreement. Mr Green commenced proceedings in the Commission on 3 March 2014. An Arbitrator concluded that Mr Green was not precluded by the 2012 Amending Act from bringing his 2013 Claim, and remitted the matter for referral to an approved medical specialist. The applicant appealed. President Keating confirmed the Arbitrator's determination and found that the one claim limitation introduced by the 2012 Amending Act did not apply to Mr Green's 2013 Claim, and that s 66(1A) only applied prospectively to claims for lump sum compensation made on or after 19 June 2012. The applicant sought leave to appeal to the Court of Appeal. There were two issues on appeal. First, whether the one claim limitation in s 66(1A) applied to Mr Green's 2013 Claim. Secondly, whether the words "one claim" in s 66(1A) are to be interpreted as meaning only one further claim may be made on or after 19 June 2012. Held per Gleeson JA (Beazley ACJ [and Emmett JA] agreeing): As to the first issue: (1) The 2013 Claim was distinct from the 2010 Claim (which had been resolved) and was a "claim for compensation" made after 19 June 2012 for the purposes of cl 15. Accordingly the 2013 Claim was subject to the disentitling effect of the one claim limitation in s 66 as amended, unless the transitional cl 11 provided otherwise: [66]-[73]. Considered: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534. (2) The 2013 Claim does not answer the description in cl 11 of a claim that "specifically sought compensation under s 66 … made before 19 June 2012." Accordingly cl 11 did not apply to exclude the operation of the one claim limitation in s 66 as amended: [74]-[93]. Considered: Taylor v The Owner - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534. (3) Following the insertion of the new s 66(1A), the power of the Commission to award lump sum compensation under s 66A(3)(c) additional to that payable under a complying agreement is limited to circumstances where the further claim under s 66 is made before 19 June 2012. This is because the Commission's power under s 66A(3)(c) to award additional compensation is not independent of a worker's entitlement to receive compensation under s 66: [94]-[100]. Applied: Taheri v Vitek [2014] NSWCA 209; 87 NSWLR 403; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Institute of Patent Agents v Lockwood [1894] AC 347. As to the second issue: (4) Accepting that s 66 as amended applies to the 2013 Claim, Keating P erred by approaching the application of s 66 by reference to notions of prospectivity, retrospectivity or accrued rights. The 2012 amendments had a non-beneficial operation to the detriment of injured workers: [109]-[118]. Considered: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624. (5) A construction of s 66(1A) that only one further claim can be made after the commencement of the 2012 Amending Act requires reading in the word "further" or adopting a gloss on the language of the provision when there is no warrant for doing so. Section 66(1A) operates on facts antecedent to the 2012 Amending Act coming into force, including the existence of an earlier claim for lump sum compensation under s 66: [119]-[123]. Applied: Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459. (6) Accordingly the 2010 Claim was Mr Green's one claim for lump sum compensation and s 66(1A) disentitled him from making his 2013 Claim for further lump sum compensation: [124]. Appeal allowed with costs.

Leave to appeal

An appeal in respect of an interlocutory decision of the Commission may be brought to this Court, only with leave: s 353(4)(a) of the 1998 Act.
In the Commission, Keating P took the view that an order by a Commission Arbitrator to remit the matter to the Registrar for referral to an approved medical specialist is interlocutory. His Honour referred to Tozanis v KU Children's Services [2010] NSWWCCPD 51 and Moore v Greater Taree City Council [2009] NSWWCCPD 17. The applicant did not challenge that view, nor suggest that the decision of Arbitrator Harris, which was the subject of the appeal before Keating P, was final rather than interlocutory.
The applicant sought leave to appeal, if leave was required on this basis and Mr Green consented to the grant of leave. Since the appeal raises a question of law which is both novel and complex, and other applications may be expected to depend upon the answer, there should be a grant of leave to appeal.
An understanding of how the "one clam" limitation arises in the present case is assisted by an outline of the legislative framework and the terms of the 2012 Amending Act.

(2) Transitional regulation

The 2010 Regulations were amended in two relevant respects following the amendments to s 66 in June 2012.
On 17 September 2012, the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (NSW) came into operation. Schedule 1, Item 3 inserted a new Sch 8 to the 2010 Regulations. Relevantly, cl 1 of Sch 8 provides: 1 Interpretation (1) Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act. (2) the provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.
Next, on 1 October 2012 the Workers Compensation Amendment (Transitional) Regulation 2012 (NSW) came into operation. Schedule 1, item 5 inserted into Sch 8 to the 2010 Regulations, relevantly: 11 Lump Sum Compensation (1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act. (2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).
In this Court in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94; 11 DDCR 534 at [22] Basten JA explained: Clause 11 purports to provide for the operation of the amending provisions, not by excepting all "claims for compensation" made before 19 June 2012 (as the Act had done), but by excepting only those claims that "specifically sought compensation under s 66 or s 67 of the 1987 Act" and were lodged before that date. As it expressly states, it varies the operation of cl 15 in Sch 6, Part 19H to the Act.

Application to adduce further evidence on appeal

By notice of motion dated 30 June 2015, Mr Green sought an order from this Court that four documents, not tendered before the Commission, now be admitted into evidence. Two of the documents (a claim form and an employer's report of injury form) related to Mr Green's initial claim made on 14 June 2005 and the other two documents (employee's recurrence claim forms) related to recurrence of Mr Green's injury on 23 May 2008. Mr Green did not submit that the evidence was not available to him at the time of the hearing before the Commission.
Under s 75A(8) of the Supreme Court Act 1970 (NSW) where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. Neither party directed any attention to whether the hearing before the Arbitrator, or the appeal before Keating P, although interlocutory in nature, was a "hearing on the merits" within the meaning of s 75A(8).
It has been said that the expression "hearing on the merits", does not on its face exclude interlocutory matters: Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 434 (Hunt J). At 435-436, Hunt J expressed the view that the phrase should be construed as meaning the hearing of any interlocutory matter in which both parties appeared and in which the issue between them in that interlocutory matter (whether of fact and/or law) was investigated by the relevant tribunal. His Honour added that there is no need for the issues between the parties in the proceedings as a whole to be investigated or determined for the hearing to be one "on the merits".
In the absence of argument to the contrary, the Court should proceed on the basis that the interlocutory hearing before the Arbitrator, and the appeal before Keating P, satisfied this threshold of a "hearing on the merits".
In oral argument the applicant modified its initial opposition to the grant of leave and neither consented nor opposed the grant of leave to Mr Green to rely upon the four documents.
Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 and cases which have followed it, such as Tjiong v Tjiong [2012] NSWCA 201 at [166], establish that, in general, three conditions need to be met to satisfy the requirement of "special grounds" in s 75A(8): 1. the evidence could not have been obtained with reasonable diligence for use at the trial; 2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and 3. the evidence must be credible.
In the present case, there is no issue as to the third condition - the proposed further evidence is credible. Mr Green did not address why he ought be excused from the first condition. The matters bearing on this question need not be addressed as, in my view, the second condition has plainly not been met. The further evidence would not have had an important influence on the result of the case because it would not have assisted Mr Green's case at all. The evidence was not required to explain nature of the claim which Mr Green ultimately made in 2010. Nor was the evidence required to establish that Mr Green had made a claim within six months of the happening of the injury. As already mentioned, there was no issue that Mr Green had satisfied the time limitation in s 261(1) of the 1998 Act. The application to admit the four documents on appeal should accordingly be rejected.

At a glance

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Legislation Cited (8)

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