Workers Compensation - Cessation of payments - Procedure - Form of notice of intention to terminate - Notice given in form prescribed at the time of the injury but not in form prescribed at the time the notice is given - Whether sufficient. Workers Rehabilitation and Compensation Act 1988 (Tas), s86(3A). Workers Rehabilitation and Compensation Reform Act 1995 (Tas), s92(1), Sch2, par19. Maxwell v Murphy (1956 - [1957] HCA 7; 1957) 96 CLR 261, applied. Robertson v Smith (1974) Tas SR 50; Abbott v Minister for Lands (1895) AC 425, referred to.

ZEEMAN J In February 1995 the appellant suffered a back injury in the course of his employment with the respondents. By reason of those injuries the appellant suffered an incapacity for work. He made a claim for compensation and the respondents commenced to make a weekly payment of compensation. On 1 February 1996 the respondents caused to be served upon the appellant a notice of intention to terminate the weekly payment. That notice was accompanied by five typewritten sheets of paper. The respondents rely on those sheets of paper as constituting a certificate in the terms of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(1)(c). The notice of intention to terminate did not comply with s86(3A). Having been served with these documents, the appellant referred the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal").

2. On the matter being referred to it, the initial function of the Tribunal was to determine whether there had been compliance with the procedural requirements of s86 which must be observed by an employer before being entitled to terminate or reduce a weekly payment on the basis of a certificate under s86(1)(c). If the respondents did not comply with those provisions the appellant was entitled to succeed. If satisfied that they had complied with them, the Tribunal was required to consider the correctness of the opinion expressed in the certificate and of the facts upon which the opinion was based. That two stage procedure has been held to be appropriate in a number of cases (Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246, Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35; (1993) 3 Tas R 19; Guthrie Pty Ltd v Sheriff [1994] TASSC 25; (1994) 3 Tas R 399).

3. By agreement between the parties, the reference came before the Tribunal in order that it might determine whether the procedural requirements of s86 had been complied with. It was agreed that if the Tribunal were to determine that they had not been complied with, the reference should be determined in favour of the appellant and that if it were to determine to the contrary, the further hearing of the reference would be adjourned to a subsequent date. The Tribunal determined the preliminary issue in favour of the respondents and accordingly adjourned the further hearing of the reference sine die. The appellant has appealed against the making of that order on the basis that, as a matter of law, the undisputed facts before the Tribunal required a determination that the statutory prerequisites for the determination of the weekly payment had not been satisfied so that the proper order was one which determined the reference in favour of the appellant.

"1 The learned Commissioner erred in fact and/or law in ruling

that the certificate served on the worker pursuant to Section 86

(1)(c) of the Act was capable of being rearranged so as to be

intelligible and that once rearranged it satisfied the statutory

requirements.

2 The learned Commissioner erred in law and in fact that the

certificate served purportedly in compliance with Section 86

(1)(c) of the Act satisfied the requirements of Section 86 (1)

(c) of the Act.

3 The learned Commissioner erred in fact and in law in finding

that the certificate was capable of being repositioned so that

the pages would be in a correct order so that the document

complied with the formal requirements of Section 86 (1) (c) when

there was no evidence as to the order that the pages would need

to be repositioned into so that they would be in the correct

order.

4 The learned Commissioner erred in law in not upholding the

appellant's reference when on the evidence he was required to

conclude that no notice of intention to terminate the weekly

payment complying with the Act had been served on the

appellant."

5. It must be said that the matter sought to be agitated by ground 4 was not raised before the Tribunal. This ground was added to the notice of appeal by way of amendment during the course of the hearing after I had raised with counsel the apparent failure of the notice of intention to terminate to comply with the Act, s86(3A). That subsection requires that a notice of intention to terminate or reduce a weekly payment "contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination". No such statement is contained in the notice which was served on the appellant. The respondents accept that the notice does not comply with s86(3A) but submit that the subsection has no application to the present case.

6. The first three grounds of appeal may be dealt with together. They raise the question whether, as a matter of law, the documents accompanying the notice of intention to terminate were capable of constituting a certificate complying with the requirements of s86(1)(c) and (2). It is accepted by the respondents that when the five un-numbered sheets of paper were delivered to the appellant they were stapled together but not in the order in which they were intended to be read. The appellant accepts that an appropriate re-arrangement of the order in which the pages appear results in a document which satisfies the requirements of s86(1)(c). On the other hand, a reading of the pages in the order in which they were received by the appellant is confusing to say the least. The large amount of irrelevant material contained in them adds to the confusion. Those responsible for preparing certificates for the purposes of s86(1)(c) should bear in mind what the law requires of such a certificate and refrain from including irrelevant material resulting in the certificate containing much more than a statement of an opinion and the reasons for the opinion.

7. After referring to Burgess v Umina Park Home for the Aged (supra) and Gibsons Ltd v Jeffrey (1993) 2 Tas R 375 as authority for the proposition that a certificate pursuant to s86(1)(c) must be unambiguous and permit the worker and those advising the worker to know the basis of the intended termination, the learned Commissioner who constituted the Tribunal dealt with the question of the purported certificate in the following terms:

"In my opinion this is not a case where the contents of the

certificate were such that it did not satisfy these

requirements. The certificate in this case, when the pages are

placed in the order endorsed on them by the worker's solicitor,

does read sensibly and does provide details of the Doctor's

examination, his findings, his unequivocal statement as to the

worker's recovery and his reasons or grounds for that opinion.

Accordingly the information required by law to be available to

the worker and his advisors (sic) has been provided and the

worker can properly consider his attitude to the proposed

termination.

Given that this result can be and in fact was achieved with the

document, I do not consider that the obvious clerical

mismanagement in not forwarding the pages of the certificate in

the correct order should mean that it can not be a certificate

for the purposes of Section 86(1)(c). It is the content of the

document not its format that is determinative of this issue.

Counsel for the worker says that there is no evidence that the

document was placed in the correct order by him, but if one

reads the document as re-arranged it clearly becomes a

meaningful certificate by the Doctor. This was a matter of form

which was capable of and was corrected on behalf of the worker.

Once this was done the contents and effect of the certificate

satisfies the requirements of Section 86(1)(c) and counsel for

the worker did not submit to the contrary.

I am therefore satisfied that the document was capable of being

re-arranged so as to be intelligible and that once re-arranged

it satisfies the statutory requirements. I do not accept that

it should be assessed in the form that it was delivered to the

worker. The form was a defect that was capable of being

corrected by the worker and it did not go to the actual content

of the document."

8. The Tribunal was required to determine whether the respondents had served on the appellant a copy of a certificate which satisfied the requirements of s86(1)(c) and (2). The learned Commissioner did not direct his mind to that question. He determined that the statutory requirements had been satisfied, not because the appellant had been served with a copy of a certificate under s86(1)(c), but because he had been served with a document which, once re-arranged, was a copy of such a certificate. The learned Commissioner posed the wrong legal question for himself. The question which he was required to answer was whether that which was served on the appellant was, at the moment of service, a certificate which satisfied the statutory requirements. The way in which the sheets of paper had been stapled together was not necessarily determinative of that question.

9. A certificate consisting of two sheets of paper, one of which commences with a statement of the name and description of the person gi ving the certificate and the other of which is signed at the end thereof by that person, pinned together so that the latter sheet appears first, clearly would constitute a certificate if it satisfies the content requirements of s86(1)(c) and (2). The order in which the pages should be read would be apparent on the face of such a document. On the other hand, the delivery to a worker of various pieces of paper which, if placed in the correct order, would amount to a form of certificate, does not necessarily satisfy the statutory requirements. It is all a matter of degree. The Tribunal was required to determine whether, as a matter of law and fact, what was delivered to the appellant then constituted a copy of a certificate which satisfied the statutory requirements. This it failed to do and that failure amounts to legal error.

10. Although the appellant argued that the Tribunal had made this error, it is not specifically the subject of any of grounds 1, 2 and 3. Grounds 1 and 2 proceed upon the basis that the approach adopted by the Tribunal was a permissible approach. Clearly it is not. Ground 2 proceeds upon the basis that the Tribunal held that the certificate, when served, satisfied the requirements of s86(1)(c). The Tribunal did not so hold and gave no consideration to that question. The conclusion which I have reached in relation to ground 4, makes it unnecessary to pursue further the question of the purported certificate. In particular it is unnecessary to afford the appellant the opportunity of making an application to amend the grounds of appeal and, in the event of an amendment being made, to consider whether what was served satisfied the statutory requirements or to remit the reference to the Tribunal so that it might consider that question.

11. Ground 4 concerns the Act, s86(3A). As I have said, the respondents accept that the notice served on the appellant does not comply with the requirements of that subsection. The question is whether it had any application to that notice. Section 86(3A) was inserted by the Workers Rehabilitation and Compensation Reform Act 1995 ("the Reform Act"), s60(d). Save for an irrelevant exception, the Reform Act commenced on 16 August 1995. The appellant suffered his injury prior to that date. All other relevant events occurred subsequent to that date. The certificate (if it is a certificate) was given on 9 January 1996. Reading it in the sequence which the parties accept as being appropriate, the reasons for the opinion expressed in it are based on an examination of the appellant carried out on 16 November 1995. The notice of intention to terminate was served on 1 February 1996.

12. The respondents have submitted that s86(3A) is limited in its application to notices of intention to terminate or reduce a weekly payment being made in respect of an injury suffered by a worker after the commencement of the Reform Act. For that submission, the respondents rely upon the Reform Act, s92(1) which provides that Sch2 has effect. Schedule 2, par19 provides as follows:

"19 Except as provided in section 69a of the Workers

Rehabilitation and Compensation Act 1988, all claims for

compensation with respect to an injury which occurred before the

commencement day and not finally determined before that day are,

on and after that day, to be continued and determined under the

Workers Compensation Act 1988 as in force immediately before

that day."

13. The expression "claim for compensation" is not defined by the Reform Act. However, as Sch2 is intended to operate upon the Act in respect of matters of a transitional nature, it should be taken as being intended to operate upon claims for compensation within the meaning of the Act. It follows that, unless some contrary intention appears, the expression should be given the meaning attributed to it by the Act.

14. I had occasion to consider the meaning to be attributed to the expression "claim for compensation" in Chorley v Hazell Pty Ltd A17/1993 (unreported, available on SCALE). That was a case where a worker had been injured, the injury resulted in total incapacity, weekly compensation was paid during the period of total incapacity, the worker returned to work and subsequently claimed to be suffering from a further period of incapacity. The Workers Compensation Commissioner had stated a case for the opinion of the Court which asked whether, in the light of the decision of the Full Court in Burgess v Precise Timbers Pty Ltd [1991] TASSC 20; (1991) 3 Tas R 124, he had jurisdiction to entertain an application by the worker under the Act, s42 in its then form, for payment of weekly compensation in respect of the further period of compensation. I said, at 2:

"The starting point in a consideration of the questions asked

must be the definition of 'claim for compensation' appearing in

the Act, s3(1). That expression is defined as meaning, unless

the contrary intention appears, 'a claim for compensation under

(the) Act and (including) any matter or question arising in

connection with or incidental to such a claim.' The actual

meaning of that expression as it appears in various sections of

the Act depends upon the context. Section 32 provides for the

making of 'a claim for compensation' as a pre-condition for an

entitlement to be paid compensation at all. Such a claim for

compensation must conform to the requirements prescribed by

s34(1). The reference in s32 is to be taken as being a

reference to a claim for compensation under the Act and not to

'any matter or question arising in connection with or incidental

to such a claim'. The former s81(1) when it spoke of the

receipt of 'a claim for compensation' referred to the claim

required by s32 as otherwise the reference to its receipt would

be a nonsense. On the other hand the extended definition

contained in s3(1) ought to be applied to the reference to 'a

claim for compensation' appearing in s42(1) as no contrary

intention appears."

15. After referring to Precise Timbers Pty Ltd v Burgess (supra), I then said, at 3 - 4:

"The liability of the employer to continue making a weekly

payment once commenced without being disputed until the employer

was authorized to terminate or reduce by virtue of s86 or an

order under s88(2) falls within the definition of 'a claim for

compensation'. It was that claim for compensation that the Full

Court held to have been settled by agreement.

An application of the effect of what was held by the majority in

the Full Court to the present case leads to the following

conclusions. Once the first respondent had commenced making a

weekly payment in September 1989, without having given the

notice and effected the reference referred to in s81(2) in its

then form, its liability to continue making that weekly payment

was deemed to have been settled by agreement and it was only

entitled to terminate or reduce the weekly payment pursuant to

s86(1) or a determination of the Commissioner made under s88(2).

The payment of weekly compensation was terminated on 5 October

1989, as authorized by the Act, s86(1)(a). What was required to

be paid in respect of the claim for compensation which was

settled by agreement was paid and the reference to the

Commissioner does not seek to reopen any aspect of that.

The applicant is now asserting a right to receive further weekly

compensation based on a recurrence of his injury resulting in

further incapacity. Although the learned Commissioner refers to

a further claim having been made, it has been said in this Court

on numerous occasions that no further claim is required in such

circumstances (see Harris v TSS Pty Ltd and Sun Alliance

Insurance Group Ltd 46/1992, per Underwood J at 5).

The question which the applicant seeks to have determined by the

learned Commissioner by the reference is whether, by virtue of

the provisions of the Act, s69, further payments of weekly

compensation are due to the applicant. That question has not

been settled by any actual agreement. It has not been settled

by agreement upon the basis referred to in Precise Timbers Pty

Ltd and FAI General Insurance Co Ltd v Burgess (supra). The

matter referred to the Commissioner plainly falls within the

definition of a 'claim for compensation'. It follows that the

learned Commissioner has jurisdiction to hear and determine the

reference under the Act, s42."

16. The submission made by the respondents proceeded upon the basis that there has been one claim for compensation only in respect of the appellant and that everything falling within the extended definition of that expression appearing in the Act s3(1), was encompassed by that. That is not the appropriate way of approaching the definition. In respect of any particular compensable injury suffered by a worker, there may be a number of separate claims for compensation within the definition.

17. So far as is disclosed by the material before me, there have been two discrete claims for compensation within the statutory definition which relate to the compensable injury suffered by the appellant. The first was the claim pursuant to the Act, s34(1) whereby the appellant asserted incapacity giving rise to an entitlement that a weekly payment commence. The entitlement to the worker to the commencement of such a weekly payment could have been challenged by the respondents under the Act, s81A or they could, as they did in the present case, accept the obligation to make the weekly payment by commencing to make it. This claim for compensation was finally determined within the meaning of par19 upon the respondents commencing to make the weekly payment without having proceeded under s81A (see Freemasons Homes of Southern Tasmania v Greenwood A41/1996). The second claim for compensation is the matter encompassed by the service of the notice of intention to terminate and the reference of that matter by the appellant to the Tribunal.

18. Not all matters which in any way arise out of an injury suffered by the worker attract the provisions of par19. Before that paragraph applies, it is necessary to identify a claim for compensation which had not been finally determined at the time of the commencement of the Reform Act. It is implicit from par19 that it refers to a claim for compensation which exists and remains undetermined at the time of the commencement of the Reform Act. That conclusion is required by the provision that on and after the commencement date, such claims are to be continued and determined under the Act unaffected by the Reform Act. A claim for compensation which has been determined is incapable of being so continued. Paragraph 19 is of no relevance in the present case. It does not operate so as to make s86(3A) inapplicable to the notice served on the appellant by the respondents.

19. Some argument was addressed to the question of whether, apart from par19, the requirements of s86(3A) only apply where the relevant injury was suffered after the commencement of the Reform Act. The parties correctly accept that the Reform Act is an amending Act so that the Acts Interpretation Act 1931, s16(1) is of no relevance. The common law applies. The rule of common law on the subject was stated by Dixon CJ in Maxwell v Murphy (1956 - [1957] HCA 7; 1957) 96 CLR 261, at 267, in the following terms:

"The general rule of the common law is that a statute changing

the law ought not, unless the intention appears with reasonable

certainty, to be understood as applying to facts or events that

have already occurred in such a way as to confer or impose or

otherwise affect rights or liabilities which the law had defined

by reference to the past events. But, given rights and

liabilities fixed by reference to past facts, matters or events,

the law appointing or regulating the manner in which they are to

be enforced or their enjoyment is to be secured by judicial

remedy is not within the application of such a presumption.

Changes made in practice and procedure are applied to

proceedings to enforce rights and liabilities, or for that

matter to vindicate an immunity or privilege, notwithstanding

that before the change in the law was made the accrual or

establishment of the rights, liabilities, immunity or privilege

was complete and rested on events or transactions that were

otherwise past and closed. The basis of the distinction was

stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876)

3 Ch D 62. 'No suitor has any vested interest in the course of

procedure, nor any right to complain, if during the litigation

the procedure is changed, provided, of course, that no injustice

is done'."

20. That rule distinguishes between changes in the substantive law and changes in the law concerning procedure. In my view s86(3A) provides for a matter of procedure. However, it matters not whether or not that view is correct. When the Reform Act commenced, the respondents had no relevant right defined by reference to past events. The only "right" which they had was to take advantage of s86 upon there coming into existence circumstances which enabled them to exercise that right (see Robertson v Smith (1974) Tas SR 50). Those circumstances arose subsequent to the commencement of the Reform Act. Although concerned with the equivalent of s16(1), the dictum of the Judicial Committee of the Privy Council in Abbott v Minister for Lands (1895) AC 425, at 431, is as relevant to the common law rule as it is to s16(1):

"... the mere right (assuming it to be properly so called)

existing in the members of the community or any class of them

to take advantage of an enactment, without any act done by an

individual towards availing himself of that right, cannot

properly be deemed to a 'right accrued' within the meaning

of the enactment."

21. If I am correct in my view that s86(3A) is procedural in nature, then clearly it governed the notice of intention to terminate the weekly payment. A notice of intention which does not comply with s86(3A) is not a notice of intention which authorises the termination of a weekly payment. The respondents accept that if s86(3A) applies to the notice, then the notice served was incapable of giving rise to an entitlement on the part of the respondents to terminate the weekly payment. It follows from my conclusions that ground 4 succeeds. The reference must be determined in favour of the appellant.

22. In accordance with these reasons, the appeal will be allowed and the order of the Tribunal set aside. I will hear counsel as to the further orders which should be made in order to finally dispose of the reference.