Workers' Compensation and Rehabilitation Act 1981 (WA), s 57A, s 57B, s 60, s 61, s 62, s 71

Anchor Donaldson Ltd v Crossland [1929] AC 297

Blair & Anor v Curran [1939] HCA 23; (1939) 62 CLR 464

Colour Craft Painting Service v Nightingale [1999] WASCA 167

Mayne Nickless Ltd trading as Wards Express v Mayne, unreported; SCt of WA; Library No 960736

Mitchell v Canal Rocks Beach Resort [2002] WASCA 331

Ocean Coal Co Ltd v Davies [1927] AC 271

Re Alcan Australia Ltd; Ex parte FIMEE [1994] HCA 34; (1994) 181 CLR 96

Re Croser; Ex parte Rutherford & Anor [2001] WASCA 422; (2001) 25 WAR 170

Sadler v Fenfield Pty Ltd trading as Ultra Care Drycleaners, unreported; SCt of WA; Library No 9047; 11 September 1991

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Summit Homes v Lucev, unreported; SCt of WA; Library No 960182; 3 April 1996

1 MURRAY J: The respondent is employed as a driver and loader of aircraft by the appellant. On 18 May 2001 he suffered a disability within the meaning of the Workers Compensation and Rehabilitation Act 1981 (WA), an injury to his right groin and foot. He was in receipt of weekly payments of workers' compensation. Ultimately he commenced new employment with the appellant on a trial basis, but it is accepted that that did not constitute a formal return to work within the meaning of the Act.

2 On 24 April 2002, pursuant to the statutory procedures, the worker notified the Conciliation and Review Directorate that there was a dispute with his employer in respect of vocational rehabilitation assistance. Conciliation conferences were held, but the matter was not resolved. On 18 September 2002, the worker, by his solicitors, sought leave to amend his application to include an application for orders under s 61 of the Act on the ground that the employer had unlawfully discontinued weekly payments of compensation as from 12 June 2001. The application was amended accordingly by an order of the Review Officer made on 18 October 2002.

3 The review hearing proceeded on 2 December 2002 when it was conceded by the employer that the compensation payments had been terminated on 12 June 2001 without prior notification to the worker and that the worker had not returned to work, although, of course, he had been in receipt of wages during the trial of different work with the same employer. I would accept what we were told on behalf of the worker, that his objective was to be reinstated as a worker in receipt of weekly payments with an entitlement to participate in vocational rehabilitation assistance provided under the Act. The worker would, we were told, have no objection to an amendment being made to the order in his favour, which would be designed to preclude any capacity for double recovery.

4 At the review hearing the Review Officer ordered the reinstatement of the weekly payments of compensation for total incapacity as from 12 June 2001, with liberty to apply, inter alia, "as to quantification" and liberty to apply as to vocational rehabilitation assistance.

5 The employer appealed to a Compensation Magistrate against that order. The grounds raised alleged errors of law in relation to so much of the order as was concerned with the retrospective reinstatement of the payments of compensation. That appeal was unsuccessful and from the decision of the Compensation Magistrate given on 24 June 2003, an appeal is brought by leave to this Court, essentially relying upon the same alleged errors of law as were argued before the Compensation Magistrate.

6 The worker's application having been brought under s 61 of the Act, the employer's argument is that the Compensation Magistrate erred in declining to hold that the Review Officer had erred in relation to the proper construction of s 61. The argument is that upon an application by the worker under that section, it is not sufficient to simply conclude that the employer had unlawfully terminated the payments of compensation, but their reinstatement depends upon a consideration of the substantial merits of the worker's entitlement to weekly payments.

7 It is convenient to go immediately to the terms of s 61. So far as material, they are as follows:

"(1) Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of the Directorate unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the disability and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application to the Directorate under subsection (3).

(2) ...

(3) A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as the Directorate may allow from the day on which the weekly payments were discontinued or reduced, apply to the Directorate for an order that the weekly payment shall not be discontinued or reduced.

(4) Upon the hearing of an application referred to in subsection (3) the Directorate shall --

(a) adjourn the application on such terms as it thinks fit;

(b) dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or

(c) make an order as to weekly payments by the employer to the worker on such terms as it thinks fit.

(4a) ...

(5) Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.

Penalty: $2 000.

(6) A conviction for an offence that is a contravention of subsection (5) shall not affect any liability for the making of weekly payments of compensation under this Act.

(7) ...

(8) ..."

8 The section has a quite considerable lineage in this Act and its predecessors. Such a provision, substantially in the form which s 61 now bears, has existed since at least 1973. The section, as it was at that time, provided an interim entitlement to weekly payments of compensation pending the determination of an application to establish a worker's final entitlement to compensation: Vurlow v Leighton Nursing Home [1978] WAR 15.

9 There are obiter observations to that effect in cases decided when this legislation was first enacted, when the provision in question became s 61, eg, Zarkovic v J Gadsden Pty Ltd, unreported; SCt of WA; Library No 5369; 23 May 1983.

10 In Heat Containment Industries v Kimberley (1990) 2 WAR 47 there had been a breach of the requirements of s 61(1), followed by an application by the worker under s 61(3). The contention of the employer was that once that application was made the sufficiency of the notice or, in other words, the fact of the breach of s 61(1), ceased to be relevant and the application of the worker was to be considered on its merits without regard to the breach of s 61(1). The Workers' Compensation Board, as the dispute resolution body under the Act then was, rejected that contention and the Full Court upheld that view. Vurlow was applied. The Court held that while the employer was in breach of s 61(1), the consideration to be given to an application under s 61(3) was properly to be regarded, in the words of Malcolm CJ, at 49, as being "interlocutory in nature and is intended to prevent arbitrary discontinuance or diminution of payments by an employer."

11 Rowland J, who wrote the principal reasons of the Court with which Malcolm CJ and Ipp J agreed, was at some pains to thoroughly review the earlier authorities in the context of the history of legislative change. While noting those changes and that it was the Court's obligation to construe s 61 in the context of the general scheme of the Act, his Honour expressed the view that the purpose or object of the section had not changed (57). In the general discussion of the operation of the section which followed, at 57-58, his Honour made clear the view that in a case where s 61(1) had not been complied with, the inquiry on an application under s 61(3) would be directed on an interlocutory basis to deal swiftly with the employer's breach and that might be the only issue to be litigated. A finding of breach would entitle the worker to an order under s 61(4)(c) that the relevant payments be continued. In my view, that construction of the section was a part of the ratio of the Heat Containment decision.

12 The question of the proper interpretation of s 61 next arose in Department of Education v Kenworthy (1990) 3 WAR 1, but there the section was discussed principally in connection with the meaning of the phrase "the worker has returned to work" in s 61(1). Heat Containment, which had been decided just 3 months earlier, does not appear to have been cited to the Court in Kenworthy and the case is not referred to in their Honours' judgments. In the course of his judgment, Nicholson J, at 19, considered that if the employer had breached s 61(1), the worker would be precluded from making an application pursuant to s 61(3) to contest the discontinuance of payments on a summary basis. His Honour thought the worker's remedy would be an application under s 62 of the Act for restoration of the payments. In my view, this observation was strictly obiter and it was not taken up by Malcolm CJ or Seaman J, the other members of the Court.

13 The appellant argues that Heat Containment is to be distinguished and should be held to have no application to s 61 following the very substantial amendments made by the Amending Act No 48 of 1993, which, inter alia, introduced Part IIIA into the Act. I need not discuss the changes made because, in my opinion, Heat Containment is not properly distinguishable upon the basis that the dispute resolution procedures under the Act have now been changed. I do not consider that the decision depends for its reasoning upon characterising an application under s 61(3) as interlocutory or summary. That such is the case is the result of the view expressed by the Court that in a case where there has been a breach of s 61(1) the worker is entitled to the reinstatement of the weekly payments.

14 Nor do I think that the fact that under s 84ZA(3) a Review Officer seized of the matter "is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent", advances the appellant's argument. If it is right to say that in a case like the present the only issue which need be addressed is whether the employer has unlawfully discontinued the payment, then to focus upon the resolution of that issue will be to act according to the substantial merits of the case without regard to technicalities.

15 The appellant further argues that Heat Containment should be held to have no continuing application to the proper interpretation of s 61 because, since it was decided, the Act has been amended by the addition of s 57A and s 57B,which provisions deal with a particular form of procedure in respect of a worker's claim for weekly payments. Section 57A(5) and s 57B(4) provide that upon a failure to comply with the statutory procedure by an insurer and employer, respectively, the worker has a statutory entitlement to the weekly payments claimed.

16 No such provision appears in s 61 and the appellant argues that without it, s 61 should not be interpreted to have that effect and it would follow, so it is argued, that upon the worker's application, the merits of the asserted entitlement to weekly payments must be canvassed. Again, I disagree. In my opinion, the clear words of s 61 and the policy behind the section, a policy unchanged since a provision of this kind was first introduced into this legislation, must be given their full force and effect.

17 Heat Containment was referred to by this Court, with evident approval, in Glenn-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122 at 128 - 129. That case, however, was concerned with a different point, whether, in a case where s 61(1) has been complied with, a full range of evidence as to the merits of the worker's claim for compensation might be adduced. Nonetheless, it is well-settled that this Court will not depart from a previous decision unless convinced it is wrong or where there is some other compelling reason to do so: Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354. However, in my opinion, the question is not whether we would be entitled to depart from the decision on Heat Containment. I respectfully consider that case to be rightly decided.

18 Section 61 finds its place among provisions which are designed to ensure that a worker in receipt of weekly payments of compensation has some guarantee of their continuance, except in the limited circumstances to which s 61(7) and (8) refer, or where it is determined that there is no continuing entitlement to them. As to that, the clear purpose of s 61(1) is to limit the circumstances in which the employer may unilaterally discontinue or reduce the payments without the consent of the worker or an order of the Directorate. If the statutory procedure is followed by both the employer and the worker the result, on the hearing of a s 61(3) application, pursuant to s 61(4) and (4a), will be that there will be a capacity to examine the merits of the worker's entitlement to compensation.

19 In addition, under s 60, the employer may apply at any time for an order that the weekly payments be discontinued or reduced, or alternatively, under s 62, an application may be made to review the weekly payments. Where under s 60(2) the employer is seen to be genuinely in dispute as to the liability to pay compensation or the amount of such payments, then the payment may be suspended, in which case under s 63 no compensation is payable, or the payments may be reduced in amount. There is, in my opinion, under the statutory scheme, ample capacity for the employer to protect its position where a genuine dispute exists. Alternatively, if the worker consents, then, as has been seen, the employer may act unilaterally without the benefit of an order to discontinue or reduce the payments.

20 The purpose of the s 61(3) application is to enable the worker to get expeditiously before the Directorate to obtain an order that the weekly payments shall not be discontinued or reduced. The proper interpretation of that provision is that such an application may be made where the employer is in breach of s 61(1), as well as when that is not the case. The fact that the breach of s 61(1) constitutes an offence for which a penalty may be imposed under s 61(5) has nothing to do with the resolution of the

question which arises as to the liability to make weekly payments of compensation, as s 61(6) makes clear.

21 In my opinion, the statutory scheme is clear. The worker is entitled to the continuation without reduction of the weekly payments except in the limited circumstances and by the procedures available to the employer under the provisions discussed above. It follows, in my view, that in a case like this case where the employer is in breach of its obligations under s 61(1) the worker's entitlement to the reinstatement of weekly payments retrospectively from the date of their discontinuance or reduction may be enforced on the mere proof of the breach and the unlawful discontinuance or reduction of the payments. There is ample power under s 61(4)(c) to tailor such an order in a case such as this so as to prevent any injustice to the employer in the way of double dipping, or the like, by the worker.

22 As I have said, we were informed that the worker would consent to any amendment to the orders made which was thought to be necessary in that regard, but in this case, in my opinion, this Court should simply order that the appeal be dismissed. The order made by the Review Officer, as I have mentioned, reserved liberty to apply, not only as to the commencement date but also as to "quantification" of the order for the reinstatement of the weekly payments of compensation for total incapacity. Any further qualification to the order which is required could be obtained by pursuing that liberty to apply.

23 ROBERTS-SMITH J: I have read the reasons to be published by Murray J. I agree with those reasons and have nothing to add.

24 MCLURE J: I have had the advantage of reading in draft form the reasons for decision of Murray J. I agree that the appeal be dismissed for the reasons given by Murray J.