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[2008] SAWCT 48
General information, not legal advice.
Workers Compensation Tribunal (SA)
2008-09-04
President Judge P, Mr J
Original judgment source is linked above.
1
In this jurisdiction, in which pleadings are rarely used, it is essential that the parties adhere to the trial orders that are made when the matter is listed for trial. Otherwise, there is the potential for trial by ambush, and for the orderly conduct of the proceedings at trial to be compromised, as this case demonstrates.
2
The learned Trial Judge had before her a series of Notices of Dispute, all of which concerned the central question as to the whether the appellant, Ken McNeil (the worker), had an entitlement to ongoing weekly payments of income maintenance from about 14 December 2006.
3
The worker injured his lower back on 5 May 2006. A claim for compensation made the following day was accepted by the respondent GM Holden Limited (the employer). The worker remained off work until 24 August 2006 when he returned to work on modified duties.
4
Upon his return to work the worker commenced to participate in a series of rehabilitation and return to work plans, which provided for a gradual build up of days and the number of hours he worked. The plans commenced with him working for three hours per day, three days per week. By 6 December 2006 he was working six hours per day, five days a week.
5
For those hours that he worked over this period, the worker was ostensibly paid wages. Otherwise, he was paid income maintenance or sick leave.
6
On 5 December 2006, at which time he was working five hours per day, five days per week, the employer issued a notice of discontinuance pursuant to s 36(1)(c) of the (the Act). That provision enables a compensating authority to discontinue weekly payments of income maintenance where "the worker has returned to work". This determination was disputed and eventually, by agreement, was set aside.
7
On 14 December 2006 the worker experienced chest pain and stopped work. On 7 February 2007 he submitted a notice of work related injury and compensation alleging that he had sustained a heart attack and mental injuries. The claim was rejected by determination dated 19 October 2007. The rejection was disputed. In a Notice of Dispute filed on 22 October 2007, amongst other things, the worker contended that he had suffered mental injuries as sequelae to his compensable disability and that this in turn had caused his heart attack.[1]
8
Independently of this, by notice dated 20 February 2007, the employer issued a redetermination in purported reliance upon s 53(7) of the Act which, through s 53(7a), permits a compensating authority to make a redetermination in prescribed circumstances. It contended that it became aware of new information that was not available and could not reasonably have been discovered by it by due enquiry at the time the original determination was made. The employer claimed not to be aware of the fact that the worker had received a prior redemption lump sum in respect of weekly payments. It contended that pursuant to s 35(6a) of the Act the worker was deemed to be receiving an ongoing weekly payment of $517.59 per week.
9
The redetermination was in the following terms:
"By determination dated 12 May 2006 we advised your claim for back injury was accepted and that you were entitled to compensation by way of income maintenance from 8 May 2006. Your notional weekly earnings (NWE) were determined at $1013.86 and your weekly payments were determined at that amount less earnings from employment.
For the period from 8 May 2006 to 11 December 2006 you were paid weekly payments calculated on the basis of NWE less your actual earnings from GM Holden Ltd.
In the Claim for Compensation dated 9 May 2006 you failed to advise in Section 7 that you had suffered similar injury previously, that you had made a workers compensation claim previously and that you had had a workers compensation claim redeemed in South Australia.
GM Holden Ltd has received information from WorkCover that you previously have been paid compensation for a number of injuries sustained on 22 June 1993. Those injuries included a lower back disability for which you were paid compensation for a 10% permanent impairment. The amount paid to you also included redemption of liability to make weekly payments and an agreed Section 35(6a) figure of $517.59.
GM Holden Ltd has decided to re-determine your claim under Section 53(7) of the Act.
GM Holden Ltd considers that the re-determination is appropriate on the basis that you deliberately withheld information that should have been supplied namely that you previously had made a workers compensation claim for injuries that you previously had suffered a back injury and that you had had a workers compensation claim redeemed. As a consequence the original determination was based on inadequate information and the determination of weekly payments did not take into account the amount of $517.59 you were taken to be receiving under Section 35(6a) of the Act.
The re-determination replaces the determination dated 12 May 2006 as is follows:
1. Your claim is accepted with respect to medical and like expenses pursuant to Section 32 of the Act.
2. You are entitled to compensation by way of income maintenance as follows:
2.1
For total incapacity for work during the period from 8 May 2006 to 23 August 2006 inclusive.
2.2
For partial incapacity for work during the period from 24 August 2006.
2.3
While totally incapacitated, your weekly payments are calculated on your notional weekly earnings (NWE) figure of $1,013.86 (including any overtime component) for a 38 hour week, less $517.59 which you are taken to be receiving under section 35(6a) of the Act in consequence of a redemption agreement relating to injuries suffered on 22 June 1993. Weekly payments for that period are $496.27 ($1,013.86 - $517.59).
2.4
While partially incapacitated your weekly payments are calculated on your NWE less $517.59 which you are taken to be receiving under s 35(6a) of the Act in consequence of a redemption agreement relating to injuries suffered on 22 June 1993 and less your actual earnings or the earnings you could earn in suitable employment.
2.5
You have been certified capable of performing suitable employment duties for
(a) 3 hours 3 days per week from 24 August 2006 to 13 September 2006 inclusive:
(b) 4 hours 3 days per week from 13 September to 27 September 2006 inclusive:
(c) 4 hours 5 days per week from 27 September 2006 to 8 November 2006 inclusive:
(d) 5 hours 5 days per week from 8 November 2006 to 6 December 2006 inclusive:
(e) 6 hours 5 days per week from 6 December 2006 to 18 December 2006 inclusive:
2.6
You have undertaken the certified suitable employment duties for the periods referred to in 2.5(a) to (d) and from 6 December 2006 to 15 December 2006 when you were certified totally incapacitated due to chest pain disability. GM Holden Ltd has at all times had and continues to have available to you suitable employment duties complying with restrictions imposed as a result of your back disability.
2.7
Taking into account the matters referred to in paragraphs 2.4, 2.5 and 2.6 above as well as section 35 of the Act, your weekly payments for periods of partial incapacity are:
(a) 24 August 2006 to 13 September 2006 - $256.15 ($1,013.86-$517.59- (9hrs per week x $26.68 hourly rate))
(b) 13 September 2006 to 8 November 2006 - $176.11 ($1,013.86-$517.59- (12hrs per week x $26.68 hourly rate))
(c) 8 November 2006 to 6 December 2006 - Nil ($1,013.86-$517.59- (25hrs per week x $26.68 hourly rate))
(d) From 6 December 2006 - Nil ($1,013.86-$517.59- (30hrs per week x $26.68 hourly rate))
2.8
Payments of income maintenance and/or reimbursement of medical, chemist, travelling or other expenses will be paid into your nominated bank account, or paid by cheque and posted to your last known address.
2.9
If you wish to claim weekly payments for any future period of incapacity arising from your compensable disability, then please note that you will be required to submit a further prescribed medical certificate. Upon receipt of this information, we will issue a further determination if there is any entitlement to income maintenance.
Pursuant to Sections 90 and 90A of the Act, you are entitled to dispute this reviewable decision by lodging a Notice of Dispute with the Workers Compensation Tribunal. Such Notice of Dispute must be made in the prescribed manner and form in accordance with the Regulations. A Notice of Dispute must be lodged within one month of the date that you receive this decision, unless the Workers Compensation Tribunal allows an extension of time pursuant to the provisions of Section 90A."
10
The worker conceded that this was new information that was not available and could not reasonably have been discovered by the employer by due inquiry at the time of its determination of 12 May 2006. However he disputed the employer's determination. Amongst other things, he contended that he was totally incapacitated for work as a result of the accepted compensable disability and that the employer could not rely upon s 53(7) because of the lapse of time[2]. This Notice of Dispute was filed on 7 March 2007.
11
It was plain that the worker was aware that his weekly payments had been discontinued. This is apparent because of a further Notice of Dispute that was filed on 5 April 2007 wherein the worker identified what he described as an "unwritten decision of the exempt employer to discontinue [his] ...entitlement to weekly payments"[3].
12
By a confirmation dated 19 April 2007 the employer refuted the allegation that it had made an unwritten decision to discontinue. It contended that the disputed decision related to its redetermination[4].
13
Trial orders were made on 23 May 2007 and it was foreshadowed that the issues to be determined might extend beyond those identified in the Notice of Dispute filed on 7 March. This is evidenced by records that various medical witnesses were to be called, including psychiatrists. It is important that the trial orders make no mention of any preliminary point being raised.
14
At a further directions hearing on 30 July 2007 the Notice of Dispute filed on 5 April was formally joined.
15
At a compliance conference on 9 October 2007 the trial orders were amended to make provision for the calling of further medical and lay evidence. Again no reference was made to any preliminary point being raised.
16
A further directions hearing was conducted on 22 October at which time it was noted that further witnesses would be called and that some who were planned to be called were unavailable. Again, no reference was made to any preliminary point being raised.
17
At the commencement of the hearing before the learned Trial Judge on 24 October 2007, Mr Warren, counsel for the worker, announced that he was contending that the redetermination was invalid. He contended that insofar as the redetermination purported to reduce or discontinue weekly payments it was void. Not surprisingly, the learned Trial Judge, who had been conducting the various directions hearings to which I have referred, was clearly troubled by the belated notice of a technical challenge as to the validity of the redetermination. She said:
"Now would you like to tell me how it is that in the course of our discussions in chambers - not you, because you weren't there as counsel, but your instructing solicitor was present, as was Mr Sargent - that this question about the validity of the redetermination has not been raised up until this moment"[5].
18
After some further exchanges, the learned Trial Judge said:
"It's just very, very annoying to have this matter arise in this way, this morning, when it hasn't been foreshadowed in any of the discussions we've had in chambers. The reason it's annoying is that the matter has been listed on the basis that it's proceeding for the hearing of evidence of the various witnesses. The parties have prepared the matter on that basis. Then at the last minute because, I suspect, someone hasn't paid sufficient attention to what the issues were - and I'm not casting aspersions at anyone and directing that at anyone in particular I'm just saying: this happens when the parties do not address the issues at the time when they are required to, by the orders."[6]
19
Then later, after further discussion with counsel, the learned Trial Judge said:
"There is this difficulty that when you have an anticipation that a matter is going to proceed in a certain way, you know, that's the way you think it is going to go and it doesn't feel comfortable to do something else ... I'm attracted to the idea of trying to resolve it by some preliminary issue that would resolve it, but I accept that there are difficulties in respect of making sure that I have a proper factual foundation. If I'm going to hear evidence that relates to that perhaps I should hear the evidence of the lay witnesses... Maybe I should consider, after I've heard the lay evidence, whether or not I'm going to deal with that argument as a preliminary argument."[7]
20
Eventually the learned Trial Judge agreed to stand the matter over to the following day to enable the parties to attempt to reach agreement as to a statement of issues.
21
On the following day that matter was reconvened and the learned Trial Judge heard further submissions from the parties. This led to the following statement by the learned Trial Judge:
"There was some reference to it in the notice of dispute, but because the parties had not addressed their minds to the issues in a timely fashion we were met yesterday with the proposal that the matter be dealt with on a preliminary issue when the expectation was that the matter was going to proceed on all substantive issues. My position yesterday was based largely on a consideration of your view [ie Mr Sargent] in respect of the matter, in that you come along to deal with the matter on the basis of all of the issues.
My concern was that there were factual matters that might impact on dealing with this redetermination in a preliminary way, and that was why I directed that I would proceed to hear the matter and, if I considered at some point that it was appropriate, that I'd put the parties on notice that I would deal with the redetermination as a primary issue. But on the basis of the submissions that have been put this morning, I'm quite content to proceed on the basis that it should be dealt with in a preliminary fashion, subject only to the appropriate chronology of events being agreed in terms of presentation of medical certificates and the cessation of weekly payments and any other factual matters that would impact on the sequence of events in terms of the issuing of the various determinations."[8]
22
The learned Trial Judge then left the bench to enable the parties to attempt to reach agreement as to the relevant facts. Having been informed that the parties required more time she then stood the matter over to the following day.
23
The next day a chronology of events and statement of issues were tendered and the learned Trial Judge heard submissions from the parties.
24
As the submissions unfolded, it emerged that on some issues, there was not complete agreement. For example, Mr Warren was contending that between the period from 6 to 14 December 2006 the worker was working only six hours per day five days a week. Mr Sargent in reply said: "Not on my instructions, your Honour. My instructions were that he presented for eight hours a day for that period"[9].
25
These factual disputes were not particularly pertinent to the worker's case. As Mr Warren said: "The worker says you cannot redetermine a claim when your limited basis is a 36(6a) to take into account reductions or discontinuance of weekly payments unless you do so by way of a notice of discontinuance. You can't include within a redetermination those factors"[10].
26
The employer's case was that because at the time it made the redetermination on the facts of the case there was no entitlement to weekly payments of income maintenance, it was obliged to spell out that fact[11]. Mr Sargent said: "Hence, the redetermination was introduced to reflect what took place over that previous nine months and then, subject to agreement on some facts on this issue, the worker made some elections, we would say, about entitlements to sick leave for another particular matter that is now the subject of a claim. So if we are right in the way we approach the redemption, we couldn't possibly have issued any other subsequent determinations under 36 or 38 because there was no entitlement to income maintenance as of, we would argue, early December"[12].
27
Having reserved her decision and considered the documentary material that had been placed before her, the learned Trial Judge noted in her reasons the following:
"Trial orders were made on the basis that all Notices of Dispute would be heard and determined jointly. However on the morning of trial Mr Warren, counsel for the worker, applied to have a preliminary ruling as to the validity of a redetermination made by the exempt employer on 20 February 2007. After initial objection, Mr Sargent, counsel for the exempt employer, agreed that it might save time and costs if this issue was resolved first. The parties tendered an agreed chronology and then put their submissions".[13]
"The questions to be determined at this stage of the proceedings are:-
•
What is the purpose and effect of the notice dated 20 February 2007?
•
Does the notice contravene the relevant provisions of the Act such that it is rendered invalid entitling the worker to a summary order for weekly payments from 15 December 2006?
•
Has the exempt employer correctly calculated the worker's entitlement to weekly payments from August to December 2006 and if not what are the consequences?"[14]
29
She found that the primary purpose of the notice of redetermination was to put the worker on notice as to the consequences of the prior redemption. She then found that the redetermination had a secondary effect of giving the worker valid notice under s 36(3a) of the Act reflecting consent reductions of the worker's weekly payments of income maintenance. She made a finding that the worker had consented to those reductions in agreeing to the graduated return to work in accordance with the rehabilitation and return to work plans from August 2006. She suggested that following his absence from work from 15 December 2006 and his submission of a claim for sick leave it might be inferred that the worker consented to his residual entitlement to weekly payments being discontinued. I pause to note that if Mr Sargent's instructions regarding the hours worked by the worker in the period immediately prior to 15 December are correct, the worker arguably would not have then had any entitlement to weekly payments because he had returned to full-time work. The learned Trial Judge then said that in any event, because the worker was asserting total incapacity from 15 December, he needed to lodge a fresh claim and in part that was what was explained in the redetermination.
30
On appeal the worker challenged these conclusions and contended that he was entitled to summary relief. Mr Warren advanced various arguments as to why the learned Trial Judge erred in failing to grant the relief sought. In doing so he referred to "findings" the learned Trial Judge made and he disputed most of these. On reflection, these submissions caused me some concern because reference to attacks upon findings seemed to me to be inconsistent with the notion of summary relief. It is worth bearing in mind the legal principles that govern such applications. They were described by Mason CJ and Deane and Dawson JJ in Webster v Lampard as follows:
"The power to order summary judgment must be exercised with 'exceptional caution': General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 C.L.R. 125 at p.129 and 'should never be exercised unless it is clear that there is no real question to be tried': Fancourt v. Mercantile Credits Ltd [1983] HCA 25; (1983) 154 C.L.R. 87 at p.99. As Dixon J. commented in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62 at p.91;
'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process'.
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that 'great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 C.L.R. at p.130, see also, Church of Scientology Inc. v. Woodward [1982] HCA 78; (1982) 154 C.L.R. 25 at p.31.' " [15]
31
It follows that it is not appropriate to make findings on contested issues of fact in the context of an application for summary relief.
32
This confusion about the nature of the application before the Trial Judge was raised on appeal and led to the following response from the worker's counsel:
"It is in these circumstances, in my respectful submission, your Honour: that the redetermination itself would not fall on the argument that was presented by the worker. That is, the redetermination will be on foot from 20 February 2007 and the redetermination will be effective to introduce the section 35(6a) figure to the quantum of the entitlement. So if on the preliminary argument, insofar as the redetermination went further to effect a section 36 reduction and discontinuance, it's invalid, then the finding ought to have been, we would say, 'The notice is invalid in that regard and is set aside,' and in those circumstances the reason why it is a summary judgment is that the worker would then be entitled pursuant to that determination of 20 February 2007 to weekly payments of notional weekly earnings less the section 35(6a) figure. That is, on the materials, if the section 36 notice is not effective, then the worker is entitled to relief on that redetermination."[16]
33
It would appear from this that it was the intention of the worker to conduct a hearing on a limited issue on the basis that a favourable ruling would dispose of the case. However, if indeed it was the worker's intention to have a full hearing on this single issue, the determination of that issue required more than an evolving argument and tendering of material through that process. It required a proper structure so that the issues and how they were to be addressed could be appropriately considered.
34
With respect, the learned Trial Judge, before entertaining the application should have reflected upon what the Full Bench of the Tribunal said in Rundle v WorkCover Corporation/Vero Workers Compensation SA) Ltd (P&O Transport Australia (SA) Pty Ltd)[17]. There, at para 43 the Full Bench said:
"To entertain a belated challenge based upon an alleged procedural irregularity on the morning of trial without any prior notice or application to seek leave to amend the notice of dispute, the trial orders or the statement of issues ordered in connection therewith would amongst right thinking people bring the Tribunal into disrepute. Those theoretical bystanders would conclude that to allow a party on an issue such as this to ride roughshod over procedural requirements plainly intended to prevent the prosecution of preliminary points at the eleventh hour would indicate that the Tribunal was not serious about its management of cases and the responsible use of its limited resources. They would expect that if the Tribunal was serious about these things it would insist upon the party seeking leave to amend the trial orders and for that application to be determined having regard to matters of the type alluded to by Kirby J in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 167 - 172."
35
Having failed to do so, with respect, what followed was the predictable uncertainty that results when matters are argued without the appropriate framework being set.
36
Stripped to its essentials, the issue that the worker sought to argue was that insofar as the redetermination purported to be a notice of discontinuance under s 36 of the Act, it should be set aside because of a procedural irregularity.
37
Had that issued been flagged at the time when trial orders were made, the parties would have given consideration as to how that issue should be ventilated. In conformity with Rundle, they would have appreciated that a procedural irregularity does not automatically result in an order declaring the notice invalid, because ultimately, the Tribunal in deciding whether or not to grant it, needs to be guided by equity, good conscience and the substantial merits.
38
That consideration would have led to an amendment to the trial orders, reflecting what evidence would be called by the worker and others. This would have ensured that a proper evidentiary basis was established from which findings could be made about matters such as whether the worker had returned to work or had consented to a discontinuance of his weekly payments, and upon issues relevant to the Tribunal's discretion to grant the relief sought.
39
As it was, the evidence led was incomplete. Much of it was said to be agreed but on some key issues, such as whether consent to reduce or discontinue weekly payments was given or whether there had been a return to full duties there was in fact no agreement.
40
With respect, I think the learned Trial Judge was right not to grant the worker the relief that he sought. However, I do not agree with the process by which she reached that conclusion. She should have declined the application because it was not preceded by an application for an amendment to the trial orders. In light of the instruction given in Rundle, the learned Trial Judge made an error of law in entertaining the application in the form in which it was made. The worker's apparent consent was not to the point. If an application had been made to adjourn the trial to permit an application to amend the trial orders that consent would have been relevant. It did not, however, cure the fundamental defect, and that is the lack of consideration by the parties as to how this issue was to be dealt with. That could only be achieved by allowing the parties appropriate time to consider what trial orders should be made. That is why the practice of the Tribunal is to give parties time before trial orders are made. It is why the Workers Compensation Tribunal Rules encourage the retention of counsel in complex matters prior to the pre-hearing conference[18].
41
It is notable that in the course of submissions before the learned Trial Judge no reference was made to Rundle and there were no submissions as to whether equity, good conscience and the substantial merits of the case commanded a conclusion that the purported s 36 notice be declared void. Assuming, without deciding, that there was a procedural irregularity in the purported s 36 determination that might justify a conclusion that the determination should be declared void, in light of the decisions of the Full Supreme Court in Francis v WorkCover[19] and Moody v WorkCover [20] the worker's appreciation as at 5 April 2007 that
his weekly payments had been discontinued might be relevant to the grant of that relief. So might other factors. For example, were there any discussions about ongoing entitlements when the rehabilitation and return to work plans were formulated? If the worker had in fact returned to full time duties prior to 15 December were there any discussions about weekly payments? If the worker was told that they were being stopped and knew or was told that if he had a problem with that he needed to lodge a Notice of Dispute, these might be factors relevant to the exercise of the Tribunal's discretion to declare the purported s 36 notice void.
42
None of these matters may have amounted to anything, but the point is they might have, and due process compelled the opportunity for both parties to consider their positions. As it was, the employer was ambushed on the morning of trial and there was no structure to set a framework within which the issues were to be determined. In my respectful opinion, the whole process miscarried.
43
I would confirm the learned Trial Judge's dismissal of the application and remit the matter to her to hear the substantive case. If the worker wishes to make a formal application to amend the trial orders he may do so. It will then be a matter for the learned Trial Judge to rule upon that application and if it succeeds, to amend the trial orders as appropriate, to identify precisely what issue is to be determined and in particular whether it is a genuine preliminary point or an application for summary judgment, and how it is to be determined.
44
These proceedings arise from notices of appeal filed by both the worker Mr Ken McNeil and the exempt employer GM Holden Ltd with respect to preliminary rulings made by a learned Deputy President[21] as to the validity of a redetermination made by the exempt employer on 20 February 2007 under s 53(7) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").[22]
45
In my view both appeals should be dismissed. I agree that the hearing at first instance miscarried for the reasons explained by the learned President and that the matters the subject of the preliminary rulings must be remitted to the learned Deputy President for rehearing. I wish to add some reasons of my own for coming to this conclusion.
46
The dispute over the redetermination was one of a number of disputes listed for judicial determination before the learned Deputy President, the central question being whether the worker had an entitlement to ongoing weekly payments from about 14 December 2006.
47
The worker's claim with respect to a lower back injury on 5 May 2006 was accepted by a determination made 12 May 2006. He received weekly payments of income maintenance during total incapacity in the sum of $1,013.86 per week.
48
The worker resumed work from 24 August 2006 in accordance with certificates of partial incapacity and a series of rehabilitation and return to work plans. He gradually increased his hours of work until by December 2006 he was apparently working six hours a day five days a week. During this time the employer paid the worker what it characterised as a wage for the work done and a proportionally reducing amount by way of income maintenance. The worker ceased work on 14 December 2006 on account of chest pain and has received no payments since that date by way of income maintenance or otherwise.
49
By a redetermination made 20 February 2007 the employer reset the weekly income maintenance entitlement as from the date of injury at $496.27 for total incapacity. This had regard to a weekly payment in the sum of $517.59 which the worker was taken to be receiving under s 35(6a) of the Act following a redemption agreement made with respect to a previous injury.[23]
50
At the commencement of the hearing, the learned Deputy President acceded to the worker's request, initially opposed by the employer but ultimately consented to, that she decide certain preliminary questions, including whether the notice of redetermination was invalid with the consequence that the worker was entitled to a summary order for weekly payments from 15 December 2006.
51
For this purpose the parties agreed a comprehensive range of background facts. After hearing argument and reserving her decision, the learned Deputy President dismissed the worker's application.
52
The learned Deputy President found that the primary purpose of the notice of redetermination was to put the worker on notice as to his recalculated entitlement to weekly payments under s 35 of the Act for the period from the commencement of his incapacity to the date of redetermination having regard to the s 35(6a) amount. She found that the redetermination thus subsumed that part of the initial determination which set the worker's weekly payments, but did not purport to redetermine the existence or extent of any incapacity for work as from 6 May 2006. No complaint was raised on appeal as to this finding.
53
The worker had contended before the learned Deputy President that by the initial determination of 12 May 2006, the employer accepted an obligation to pay income maintenance on "an ongoing basis" at the amount applicable to total incapacity "less any earnings from employment".[24] Thus it was submitted that whilst the determination allowed for the quantum of the entitlement to income maintenance to vary from week to week depending upon "any earnings from employment", the increasing diminution of the weekly payment as from 24 August 2006 as the worker received an increasing level of earnings could not of itself reduce or discontinue his entitlement to receive weekly payments under the determination.
54
The outcome, in the submission of the worker, was that if he was not at work for any reason at all, as came to be the case from 15 December 2006, and was thus not in receipt of any earnings, the redetermination could not affect his entitlement to the full amount of his recalculated notional weekly earnings as weekly payments. He contended that this would remain the position unless and until there was a notice of reduction or discontinuance of weekly payments properly made in accordance with s 36 the Act.
55
The learned Deputy President found that the redetermination had the secondary effect of giving the worker valid notice under s 36(3a) of the consent reduction of the worker's weekly payments of income maintenance. She found that the worker had consented to such a reduction in the circumstances of his graduated return to work in accordance with various rehabilitation and return to work plans from 24 August 2006. Accordingly the learned Deputy President rejected the worker's contention that he was entitled to weekly payments for total incapacity from 15 December 2006. She considered that if the worker was to assert a fresh period for total incapacity from that time, he had to submit a further claim supported by a prescribed medical certificate.
56
In coming to her conclusion, the learned Deputy President reasoned that each presentation of a new certificate for increased hours constituted a claim for weekly payments on that basis, and that the consequent adjustment by the employer of the worker's weekly payments was a decision in each instance to reduce those payments. She considered that the worker's consent to such reductions was demonstrated by his performance of suitable duties under the rehabilitation and return to work plans. She further concluded that valid notice of such consent reduction was given to the worker by means of the secondary effect of the notice of redetermination.
57
Whilst not disputing that a redetermination under s 53(7) of the Act could also have secondary effect as a s 36 notice, the worker challenged each aspect of the learned Deputy President's reasoning as to the validity of notice of a consent reduction in this instance. In so doing, the worker's submissions highlighted the deficiency in the procedure below which caused the hearing to miscarry. The worker's argument that he continued to be entitled to payment of income maintenance upon the basis of total incapacity once he ceased to receive any earnings, notwithstanding the intervening certification as to partial incapacity and return to work, contained latent legal and factual complexities which became apparent upon the learned Deputy President deliberating on the matter and upon arguments being put on appeal.
58
Numerous questions arose which do not appear to have been adequately anticipated or dealt with by the agreed facts. This appears to be the result of the preliminary questions not having been raised and considered in a timely way in accordance with pre-trial procedures.
59
Questions such as whether there was a reduction in the income maintenance entitlement in the circumstances such that a new claim had to be made if total incapacity was alleged, or whether each presentation of a new certificate as to partial incapacity constituted a claim for compensation, can be difficult.[25] The latter question is not necessarily answered by the conclusion that presentation of a prescribed medical certificate did not constitute a "claim for an entitlement" in the context of a s 120 prosecution: Holden v Creek.[26] Evidence going beyond those factual matters agreed may have cast light on the issue.
60
The point is most clearly illustrated by the learned Deputy President's conclusion that the chain of events relating to the worker's resumption of duties indicated consent on his part to a reduction in his weekly payment entitlement, as to which notice had been validly given. The agreed facts did not refer to the issue of consent. The employer did not raise it at first instance. Further, even if there was a factual basis for a conclusion that there had been a consent reduction, and that the redetermination gave the worker notice to this effect, there was no proper consideration of the question as to whether such notice complied with the requirements of s 36 of the Act, and if not, and thus voidable, it should be held to be invalid.
61
Any notice of reduction or discontinuance under s 36 of the Act, whether to be given before a decision takes effect or not, must be given in conformity with s 36(3). The need for compliance with respect to notice of a reduction or discontinuance based on consent is not obviated by the fact that such a notice does not have to be given before the decision takes effect: Bridgestone Australia Ltd v Ezhari.[27] Thus notice must be given in writing containing the information required by the relevant regulation. The regulation requires a statement of the decision that has been made to discontinue or reduce, a reference to and a copy of the text of the provision of the Act relied upon, and information as to the general basis upon which the decision is made.[28]
62
No part of the redetermination of 20 February 2007 was couched in terms of a decision to discontinue or reduce entitlements under any provision of s 36, no reference was made to s 36 itself, the topic of consent was not referred to at all, and none of the requirements of the regulations were complied with. In the circumstances, the notice of redetermination, to the extent that it could have effect as a notice under s 36, and even if given "as soon as practicable" after the decisions to reduce payments were made, was arguably fundamentally non-compliant with the Act in accordance with the approach taken in Coca Cola Amatil v Kartsonis[29] and subsequent decisions, and thus voidable.
63
The decisions of a single member of the Tribunal in Laudonia v WorkCover Corporation[30] and Lee v Inghams Enterprises Pty Ltd[31] appear to express a contrary view to the effect that the giving of a late or defective notice, or the failure to give notice at all, will not affect a previously accrued right to discontinue where notice is not required before the decision takes effect. In my respectful view, such an approach may no longer be appropriate in light of the decisions of this Tribunal as they have evolved through to the Full Tribunal decision of Rundle v WorkCover Corporation/Vero Workers Compensation (SA) Ltd.[32] Rundle suggests that even if the decision to reduce or discontinue is based upon an event which does not require that notice be given before the decision takes effect, that decision, whilst initially valid and operative, can be rendered void if successfully challenged.[33]
64
Given the way in which the proceedings below developed, the parties
had no proper opportunity to address these matters, and in particular the question as to whether the redetermination, if it was voidable, should also be held to be invalid having regard to the principles relevant to the exercise of the discretion outlined in Rundle.[34] Evidence beyond the matters set out in the agreed facts may have been relevant to this issue.
65
Thus, I would dismiss the appeal by the worker against the order of the learned Deputy President that the application for summary relief be dismissed. I would do so on the basis that all aspects of the disputes be remitted to the learned Deputy President to hear afresh in whatever procedural format she considers to be appropriate once all relevant issues are properly identified.
66
The employer's cross-appeal related to a conclusion reached by the learned Deputy President on the quantum of the worker's weekly payment entitlement which was only relevant if certain further findings were made by her. The learned Deputy President had noted that the facts surrounding the worker's absence from work from 15 December 2006 were not agreed, and that a decision as to whether there had been a consent discontinuance of any residual entitlement to weekly payments the worker may then have, must await a determination of the facts.
67
In case it was later found that there was not a consensual discontinuance of the worker's residual entitlement to weekly payments from this time, the learned Deputy President addressed a complaint by the worker as to the employer's method of calculation of the weekly payment entitlement between August and December 2006. On the employer's approach any residual entitlement to weekly payments ceased by 8 November 2006 given the amount the worker was then receiving by way of earnings. The learned Deputy President considered that the worker's proposed calculations were correct and in accord with the approach taken in Ryan v WorkCover/CGU (No 2),[35] meaning the worker had a residual entitlement to weekly payments as at 15 December 2006 if there had been no consent discontinuance.[36]
68
This is an issue which may or may not have to be decided upon the substantive matter being remitted to the learned Deputy President. I would dismiss the employer's cross-appeal on the basis that there has been no appealable decision at this stage for the reasons explained by Deputy President McCouaig.
69
I would dismiss the appeal for the reasons given by the learned President.
70
In relation to the subject matter of the respondent's cross-appeal, the calculation of the appellant's entitlement to weekly payments from August to December 2006, the learned Deputy President said:
"38 The remaining issue which influences the outcome of this preliminary application is the correct method of calculation of the weekly payment entitlement between August and December 2006.
39 The exempt employer's method of calculation is set out in the notice of 20 February 2007 and in Mr Sargent's further submission dated 2 November 2007. Mr Warren provided an alternative method of calculation by written submission dated 8 November 2007.
40 In my view, Mr Warren's method of calculation is correct because it accords with Ryan v WorkCover/CGU (Kellyvale (No 40) (No 2) Pty Ltd (Samech Labour)) [2000] SAWCT 196.
41 This means that there was a residual entitlement to weekly payments of $147 as at 15 December 2006. However as I have already indicated, whether the discontinuance of that residual weekly payment was consensual is not clear from the chronology and requires a finding of fact based on evidence.
42 I would adjourn consideration of the worker's entitlement to weekly payments as at 15 December 2006 or any other potential consequences of the error in calculation of the weekly payment entitlement to be dealt with as part of the substantive issues arising in the hearing of the various joined Notices of Dispute."
71
The learned Deputy President did not find, as the respondent's Notice of Appeal asserts she found, that the appellant was entitled to weekly payments of $147 as at 15 December 2006. What the learned Deputy President did do was adjourn consideration of the appellant's entitlement to weekly payments as at 15 December 2006 "to be dealt with as part of the substantive issues arising in the hearing of the various joined Notices of Dispute".
72
Any concerns the respondent may have about the learned Deputy President's reasoning on the topic of the appellant's entitlement to weekly payments as at 15 December 2006 might be raised following her determination of the appellant's entitlements, but is premature at this stage. For now, there is no "decision" on the appellant's entitlements in the sense in which that word is used in s 86(1) of the Act[37]. As there is no decision, the cross-appeal is incompetent.
73
I would dismiss both the appeal and cross-appeal.
It is the practice of this Court to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Court's usual practice.
[10] Further supplementary AB tr 48 - 49.
[13] Para 2 of the learned Trial Judge's reasons.
[14] Para 9 of the learned Trial Judge's reasons.
[15] [1993] HCA 57; (1993) 177 CLR 598 at p.602, 603.
[21] McNeil v GM Holden Limited [2008] SAWCT 7.
[22] For convenience I shall refer to the parties as "the worker" and "the employer" respectively.
[23] See the President's reasons at para [9] above for the full text of the redetermination.
[25] See the discussion in WorkCover Corporation of SA v Marina (1996) 66 SASR 241 at 246 - 247.
[27] [1993] SAWCAT 51 at pgs 306 - 307.
[28] Workers Rehabilitation and Compensation (General) Regulations 1999, Reg 7.
[30] [1998] SAWCT 78 at pgs 4 - 5.
[31] [1998] SAWCT 100 at pgs 8 - 9.
[32] [2006] SAWCT 12 at para 38.
[33] Rundle at paras [17] and [18].
[36] This was noted by the learned Deputy President to be a figure of $147 per week when the worker was performing 30 hours work per week in December 2006 - however, both parties agreed that this did not accord with the figures put to her, it being the worker's calculation that the appropriate amount in these circumstances was $213.46 per week - Appeal tr 26; Consolidated Appeal Book p 82 (CAB/82).
[37] WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Harris Scarfe Ltd) v Smith [2003] SAWCT 50.
McNeil
GM Holden Limited [2008] SAWCT 48
(1996) 66 SASR 241
(1997) 189 CLR 146
(1993) 177 CLR 598