Secretary, Department of Communities and Justice v Stewart

Background

1. Since 2007, Mr Stewart has been employed by the Secretary, Department of Communities and Justice (the "Secretary"), working within Corrective Services New South Wales. As at 1 February 2021, Mr Stewart was a Senior Prison Officer with a salary of $106,866.24 per annum.
2. On 20 November 2020, Mr Stewart suffered a workplace injury to his shoulder sustained whilst working at Cooma Correctional Centre (the "earlier injury"). This caused him to be totally incapacitated for work from 20 November 2020 until 1 February 2021. Liability for this injury under the Compensation Act was accepted by the Secretary. Thus, for the period 20 November 2020 to 1 February 2021, Mr Stewart received weekly payments of compensation pursuant to s 33 of the Compensation Act. For the purposes of the earlier injury, his pre-injury average weekly earnings were calculated to be $4,119.72 gross per fortnight.
3. On 1 February 2021, Mr Stewart lodged a claim for post-traumatic stress disorder resulting from the nature and conditions of his employment over a number of years (the "later injury"). Liability for the later injury was also accepted by the Secretary. Mr Stewart remained totally incapacitated for work on account of his later injury as at 8 February 2022, when he prepared his witness statement.
4. By letter of 25 February 2021, Mr Stewart was notified by QBE, whom the Court was told was "contracted to perform the insurance function, administering and so on" under the Compensation Act, that his pre-injury average weekly earnings figure for the later injury, for the purpose of the Compensation Act, was $1,565.68. This was based upon gross earnings of $81,415.30 averaged over the 52 weeks from 3 February 2020 to 31 January 2021. The figure of $81,415.30 did not include any of the compensation payments made under the Compensation Act in respect of the earlier injury (consistent with cl 6(2)(c) of Sch 3 to the Compensation Act). However, whilst the amounts of compensation paid under the Compensation Act were ignored when calculating Mr Stewart's pre-injury average weekly earnings, the period during which compensation was paid was taken into account in the averaging calculation. This meant that Mr Stewart's earnings over a period of 41 weeks and 4 days (that is, 52 weeks, less the 10 weeks and 3 days when he was incapacitated from the earlier injury) were divided by 52 to reach the figure that was determined to be his pre-injury average weekly earnings for the purposes of determining compensation payable under the Compensation Act for the later injury.
5. As Mr Stewart was then in the first entitlement period (being the first thirteen weeks post-injury pursuant to ss 32A and 36 of the Compensation Act), he was thus entitled to be paid $1,487.40 per week, being 95% of his pre-injury average weekly earnings of $1,565.68.
6. Despite representations from Mr Stewart's solicitor, including with support from an advice prepared by Mr Fraser Doak, a barrister, QBE maintained that Mr Stewart's pre-injury average weekly earnings in respect of the later injury had been correctly calculated.
7. In these circumstances, on 9 February 2022, Mr Stewart filed an application in the Personal Injury Commission. The claim came before Member Burge on 30 May 2022. Relying upon reg 8D of the 2016 Regulation (set out below at [48]), on 28 June 2022, Member Burge determined: "(1) The relevant earning period for the calculation of pre-injury average weekly earnings should be adjusted to exclude the period where the applicant was paid workers' compensation benefits for an unrelated injury. (2) The relevant earning period for the calculation of pre-injury average earnings should therefore be adjusted to 1 February 2020 to 19 November 2020."
8. Pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "Management Act"), the Secretary filed an appeal against the decision of Member Burge on 26 July 2022.

The decision of the Deputy President

1. On 23 June 2023 Deputy President Wood confirmed order 1 made by Member Burge but amended order 2 to read: "The relevant earning period for the calculation of the pre-injury average weekly earnings is adjusted to 1 February 2020 to 19 November 2020 pursuant to regulation 8E of the Workers Compensation Regulation 2016."
2. The Deputy President found that Member Burge had erred in finding that reg 8D of the 2016 Regulation applied in the circumstances. Having found error, the Deputy President redetermined the matter pursuant to s 352(6A) of the Management Act. The Deputy President rejected contentions made on behalf of Mr Stewart that: 1. the period of 52 weeks in cl 2(2) of Sch 3 to the Compensation Act should be read as a maximum period, and not a prescriptive period, for the purpose of calculating pre-injury average weekly earnings: at [79]-[80]; and 2. because cl 6(2)(c) of Sch 3 to the Compensation Act excludes weekly compensation payments from being "earnings", the clause should be read as also excluding the period during which such payments were made from the 52 week period used to calculate pre-injury average weekly earnings: at [85].
3. The Deputy President found (at [96]), however, that during the period of incapacity from the earlier injury, Mr Stewart was on "unpaid leave" within the meaning of reg 8E of the 2016 Regulation (set out at [48] below). Thus, the relevant earning period should be amended effectively to exclude that period of incapacity. Neither party before the Deputy President relied upon reg 8E of the 2016 Regulation but both were given the opportunity to make submissions as to whether it applied.
4. The Deputy President found (at [94]) that an unjust outcome would result if a narrow view were taken of the term "unpaid leave" in reg 8E of the 2016 Regulation. Such an outcome would be "contrary to the intention of legislation, which was clearly to apply fairness to the calculation of the pre-injury average weekly earnings." Further, the Deputy President found (at [96]) that Mr Stewart's absence from employment on account of the earlier injury fell within the ambit of "unpaid leave" in circumstances in which any payments of compensation were excluded from the calculation of "earnings".

Notice of appeal

1. Pursuant to s 353(1) of the Management Act, the Secretary appeals on a point of law from the whole of the decision of the Deputy President.
2. The single ground of appeal pressed by the Secretary is that the Deputy President erred in law in construing a "period of unpaid leave" in reg 8E of the 2016 Regulation to include, or as capable of including, a period of absence from work by reason of incapacity due to an injury for which a worker is being paid workers compensation.

Notice of contention

1. By a document styled as a notice of contention and dated 15 February 2024, which Mr Stewart was permitted to rely upon as a notice of contention, Mr Stewart contends that the decision of the Deputy President should be upheld on the following grounds: "1. The Deputy President erred in rejecting the Respondent's submission that the interpretation of clause 2(2) of Schedule 3 of the Workers Compensation Act 1987 (NSW) (1987 Act) should be read to mean "a maximum of 52 weeks." 2. The Deputy President erred in finding that relevant period for the calculation of the Worker's pre-injury average weekly earnings under clause 2(2) of Schedule 3 could not be reduced from 52 weeks other than by the operation of Division 2 of Part 4 of the Workers Compensation Regulation 2016 (NSW) (2016 Regulation). 3. The Deputy President erred in failing to find that the relevant period for the calculation of the Worker's pre-injury average weekly earnings was reduced to exclude the period in which he was receiving payments of weekly benefits compensation during which the Worker was not receiving "earnings" as defined by clause 6(1) of Schedule 3 of the 1987 Act." (Emphasis in original).

The legislative scheme at the time of Mr Stewart's injury

1. The relevant legislative scheme for the purposes of this appeal includes the Compensation Act, the Management Act and the 2016 Regulation. Under s 2A of the Compensation Act, the Compensation Act and the Management Act are to be construed together, with the Management Act prevailing in the event of any inconsistency.
2. Section 3 of the Management Act provides: 3 System objectives The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives - (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury, (b) to provide - • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible, (c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses, (d) to be fair, affordable, and financially viable, (e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work, (f) to deliver the above objectives efficiently and effectively.
3. The payment of compensation to workers for injuries arising out of or in the course of their employment is provided for in s 9, read together with the definition of "injury" in s 4, of the Compensation Act. The circumstances in which an employer is liable to compensate a worker for injury are dealt with in Pt 2 of the Compensation Act.
4. Part 3 of the Compensation Act sets out what benefits will be provided to workers in circumstances where an employer is liable to compensate them for injuries or death. Division 2 of Pt 3 of the Compensation Act was substantially amended by the Workers Compensation Legislation Amendment Act 2018 (NSW) (the "2018 Amendment Act") with effect from 21 October 2019. Within Div 2 of Pt 3 of the Compensation Act, s 33 provides for the payment of weekly compensation during a period of total or partial incapacity. Section 36 of the Compensation Act, read together with the definitions in s 32A, provides that, subject to a weekly maximum, for the first thirteen weeks a worker who has no current work capacity is entitled to compensation at the rate of 95% of the worker's pre-injury average weekly earnings.

Section 130 of the Fair Work Act 2009 (Cth)

1. As the Secretary relies, in his written submissions, upon s 130 of the Fair Work Act 2009 (Cth), it is convenient to set this out here. It provides: 130 Restriction on taking or accruing leave or absence while receiving workers' compensation (1) An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers' compensation. (2) Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law. (3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.
2. "This Part" as referred to in s 130(1) above, is Part 2-2 of the Fair Work Act, which sets out the National Employment Standards. As regards leave, those standards set out a minimum entitlement of an employee to whom the Fair Work Act applies to parental leave (Div 5), paid and unpaid no safe job leave (ss 81A and 82A), annual leave (Div 6), various forms of personal leave (Div 7), community service leave (Div 8), long service leave (Div 9) and an entitlement to be absent from employment on public holidays (Div 10).
3. The distinction between leave and absence in the Fair Work Act is also demonstrable in s 525, which relevantly provides: 525 Employee not stood down during a period of authorised leave or absence An employee is not taken to be stood down under subsection 524(1) during a period when the employee: (a) is taking paid or unpaid leave that is authorised by the employer; or (b) is otherwise authorised to be absent from his or her employment. Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under subsection 524(1).

Legislative history

1. As originally passed, s 36(1) of the Compensation Act provided for weekly compensation of injured workers by reference to the worker's "current weekly wage rate." The worker's "current weekly wage rate" was determined by reference to the worker's weekly wage immediately before being incapacitated (if remunerated under an award, employed by the Crown or within a prescribed class of workers) or was otherwise a fixed weekly rate pursuant to s 42 of the Compensation Act (as passed).
2. Section 35 of the Compensation Act (which was inserted from October 2012 by the Workers Compensation Legislation Amendment Act 2012 (NSW) and later repealed by the 2018 Amendment Act) provided that the amount to be paid by weekly payments was to be determined by a calculation which took into account the worker's pre-injury average weekly earnings, non-pecuniary benefits provided to the worker by the employer, the worker's earnings after the injury and the statutory maximum weekly compensation amount. "Pre-injury average weekly earnings" was, at that time, defined in s 44C (also inserted from October 2012 and later repealed by the 2018 Amendment Act): 44C Definition - pre-injury average weekly earnings (1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of: (a) the average of the worker's ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and (b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable). (2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to: (a) the average of the worker's ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and (b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable). (3) If a worker: (a) was not a full time worker immediately before the injury, and (b) at the time of the injury was seeking full time employment, and (c) had been predominantly a full time worker during the period of 78 weeks immediately before the injury, pre-injury average weekly earnings, in relation to that worker, means the sum of: (d) the average of the worker's ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) (the qualifying period), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and (e) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable). (4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3 [none of which are relevant to Mr Stewart], pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum. (5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if: (a) the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and (b) the worker would, but for the worker's injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance. (6) The amount of an overtime and shift allowance payment that is permitted to be included is to be calculated in accordance with the following formula: A B where: A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period. B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave. (7) If the amount of a worker's pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker's pre-injury average weekly earnings is deemed to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.

Extrinsic materials

1. The 2018 Amendment Act was introduced by the Workers Compensation Legislation Amendment Bill 2018 (NSW) (the "2018 Bill"). The Explanatory Note to the 2018 Bill, as introduced into Parliament, confirms that the object of the 2018 Bill was to make changes including "with respect to the calculation of the pre-injury average weekly earnings of a worker for the purpose of determining the worker's entitlement to weekly payments of compensation".
2. As regards the proposed new Sch 3 to the Compensation Act, the Explanatory Note to the 2018 Bill identified that Sch 3 made: "… the following significant changes relating to earnings for the purposes of the calculation of weekly payments of compensation: (a) Clause 2 defines pre-injury average weekly earnings as the weekly average of the gross pre-injury earnings received by the worker during the period of 52 weeks before the injury for work in any employment in which the worker was engaged at the time of the injury. Regulations may provide for the adjustment of the 52-week period to reflect any change in earnings circumstances of the worker or to align the period with the regular pay period of the worker. The regulations may also specify a minimum amount of pre-injury average weekly earnings that is to apply in respect of a class of worker. (b) Clause 3 establishes a mechanism for a worker and the employer to agree as to the amount of pre-injury average weekly earnings that is to apply for the purposes of the calculation of weekly payments of compensation. (c) Clause 6 defines earnings by reference to the actual amount of weekly income of the worker earned in any employment, rather than by reference to ordinary earnings (which currently exclude overtime and shift allowances)."
3. As is apparent, the "significant changes" set out do not include any reference as to whether periods of incapacity in respect of which payments are made under the Compensation Act are to be included for the purpose of calculating pre-injury average weekly earnings.
4. To the extent that the second reading speeches in the New South Wales Legislative Council and Assembly cast light on the purpose behind the changes in the 2018 Amendment Act to the calculation of pre-injury average weekly earnings, these speeches suggest that the aim was to simplify the system for calculation of the relevant figure. Thus, in the Legislative Council, Mr MacDonald, who introduced the 2018 Bill, explained that the reforms therein were "designed to simplify the dispute resolution process for injured workers who are required to navigate the workers compensation scheme", and that: "… Schedule 3 to the bill provides for a simplified approach to establish the various factors that determine an injured worker's pre-injury average weekly earnings [PIAWE] that are used to inform the amount of weekly payment compensation payable to a worker. The bill addresses concerns with the complexity and inflexibility of the current PIAWE provisions. It establishes a dedicated PIAWE schedule with a definition of earnings that aligns more closely with the actual earnings of a worker over a defined relevant earning period, which is usually 52 weeks. The new PIAWE definitions align more closely to the Motor Accident Injuries Act 2017 by including all earnings of workers in their capacity as workers, such as overtime, shift and other allowances, and loading. In doing so, it removes the routine need for reference to a worker's ordinary earnings under a relevant award or fair work instrument. Consequently, the bill does not exclude shift and overtime allowances from PIAWE after 52 weeks of payments. Importantly, the new schedule 3 to the Act introduced by the bill provides for a simple and clear method of determining PIAWE. The bill also includes a provision to amend the schedule by regulation. This provides flexibility to keep pace with the changes in the way that workers earnings are determined. This regulation-making power mirrors a similar power introduced in the Motor Accident Injuries Act 2017. Consistent with this adaptable and flexible approach is a regulation-making power to adjust the relevant earning period to accommodate changes in the worker's earnings circumstances and the ability to align the calculation of weekly payments with an injured worker's normal pay cycles. The regulations may also provide for the adjustment of weekly payments following a work capacity decision if required."

Relevant principles of statutory construction

1. Ultimately, the task of the Court in applying accepted principles of statutory construction is to discern what Parliament is taken to have intended: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]. In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320; [1981] HCA 26, Mason and Wilson JJ, partially quoting DC Pearce, stated that: "… The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole … The rules [of statutory construction] … are no more than rules of common sense, designed to achieve this object."
2. It is now orthodox that context is to be considered in the first instance, not merely after ambiguity is identified: see eg K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48; Project Blue Sky at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 ("CIC Insurance"). As the High Court confirmed in CIC Insurance (at 408), "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance." Moreover, in CIC Insurance the High Court confirmed (at 408) that "context" is to be understood in its "widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy." Relevant context may include legislative history and extrinsic materials, albeit that such material cannot displace the meaning of the statutory text: Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
3. The purpose (or purposes, for there may be a number) of any particular statute may be expressly stated, may be discerned only by inference upon examination of the legislation as a whole, or may be revealed from the nature and context of a particular statute's enactment: Saraswati v The Queen (1991) 172 CLR 1 at 21; [1991] HCA 21 (McHugh J). As Gageler J (as his Honour then was) explained in SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [41]: "… statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means." (Footnotes omitted).

The proper construction of "period of unpaid leave" in cl 2(3) of Sch 3

The parties' submissions

1. Uncontroversially, the Secretary contends that, consistent with s 11 of the Interpretation Act, the expression "unpaid leave" in reg 8E of the 2016 Regulation should be given the same meaning as in cl 2(3)(a) of Sch 3 to the Compensation Act absent any "contrary intention". So much may be accepted. No contrary intention is apparent.
2. The Secretary's first key contention on appeal is that neither the text nor purpose of cl 2(3)(a) of Sch 3 to the Compensation Act supports the construction adopted by the Deputy President. In this regard, the Secretary contends that "reasoning by reference to abstract notions of justice or fairness is unsound." In any event, the Secretary contends that the Deputy President erred in reasoning by reference to abstract notions of justice and fairness as, in doing so, she relied upon purpose without considering the means and extent to which such purpose was pursued in the particular provisions under consideration. Moreover, the Secretary contends that reasoning by reference to notions of justice or fairness is unsound given that there are many ways in which levels of compensation under the Compensation Act may be impacted by an earlier injury and the construction adopted by the Deputy President focuses upon one, arising from the circumstances of Mr Stewart, without giving any regard to others. Thus, for example, the Secretary contends that the construction adopted by the Deputy President leaves open the prospect that a worker who suffered only from partial incapacity by reason of an earlier injury will still have that period of partial incapacity taken into account in determining pre-injury average weekly earnings. That, the Secretary submits, would result in its own unfairness if the position of that worker is compared with the position of a worker, such as Mr Stewart, who suffered from a period of total incapacity.
3. Second, the Secretary contends that the terms of cl 6(2)(c) of Sch 3 to the Compensation Act, which excludes compensation payments made under the Compensation Act from the meaning of "earnings", reflect a legislative choice to fashion payments of compensation under the Compensation Act by reference to the earning capacity of the worker as at the date of the relevant injury. If the worker's earning capacity has been diminished by reason of an earlier injury, that diminution is to be reflected in payment of a lower level of compensation than would otherwise be the case.

Consideration

1. The Secretary's contentions should be rejected for the following reasons.
2. First, as the Secretary submits, in the 2018 Amendment Act, Parliament provided that adjustments to the relevant earning period for the purpose of calculating a worker's pre-injury average weekly earnings were to be dealt with by regulations. However, in cl 2(3)(a) of Sch 3 to the Compensation Act, Parliament did not simply provide that regulations could adjust the relevant period for "any … other change in the earnings circumstances in the worker's employment", a phrase which would be broad enough to include "any period of unpaid leave". Instead, Parliament expressly included in cl 2(3)(a) of Sch 3 that regulations may provide for such adjustment "to take into account any period of unpaid leave or other change in earnings circumstances of the employment" (emphasis added). In so providing, Parliament should be taken to have intended that the circumstance that a worker had had a period of unpaid leave within the 52 weeks before the relevant injury was a particular circumstance which could justify adjustment to the relevant earning period. That is apparent from the express inclusion of those words in cl 2(3)(a) of Sch 3 to the Compensation Act. In construing the words in cl 2(3)(a), and in reg 8E of the 2016 Regulation, the express inclusion of those words should be given significance.
3. Parliament should thus be taken to have envisaged, as at least a reasonable likelihood, that regulations would be made under cl 2(3)(a) of Sch 3 to the Compensation Act to provide for adjustment of the relevant earning period to take into account any period of unpaid leave. This follows from the express inclusion of those words in cl 2(3)(a) understood in the context of the scheme of the Compensation Act, as is apparent from the second reading speech (set out above) and from the text of Sch 3 when compared with the form of the Compensation Act prior to the 2018 Amendment Act, which was to omit any adjustments from the legislation leaving such matters to be dealt with by regulations.
4. Thus, notwithstanding that the scheme of cl 2(3) of Sch 3 to the Compensation Act is that adjustments were to be made by regulation, rather than by the terms of Sch 3 itself, the task of construction of cl 2(3)(a) of Sch 3 should be premised upon a parliamentary intention, subject of course to regulations being made, that periods of unpaid leave would merit an adjustment of the relevant earning period for the purpose of calculating pre-injury average weekly earnings.

Notice of Contention

1. Having regard to my conclusion as set out above, the notice of contention can be dealt with briefly. It is sufficient to observe that the proposed construction of cl 2(2) of Sch 3 to the Compensation Act advanced by Mr Stewart by way of notice of contention should be rejected as being both inconsistent with the text of that clause, and inconsistent with the apparent purpose of Sch 3 to the Compensation Act.
2. As to the former, cl 2(2) of Sch 3 to the Compensation Act defines the "relevant earning period" as the period of 52 weeks ending immediately before the date of injury. There is nothing in the language of cl 2(2) of Sch 3 that contemplates that the "relevant earning period" is a "maximum" of 52 weeks. On that basis alone, Mr Stewart's contention should be rejected.
3. However, as set out above, it would be inconsistent with Sch 3 to the Compensation Act as a whole for the "relevant earning period" to have a flexible content, constrained only by it having to be less than 52 weeks. If that were the case, the provision in cl 2(3) of Sch 3 for regulations to extend or reduce that period would make no sense. Moreover, there would be unacceptable uncertainty plaguing the calculation of pre-injury average weekly earnings if there were no clarity as to what period was to be used for the purpose of calculating either the worker's earnings, or the period over which those earnings should be averaged.
4. It necessarily follows that in my judgment the notice of contention should be dismissed.

Conclusion

1. During the hearing of the appeal the Court was informed that the parties had agreed that, whatever the outcome, there should be no order as to the costs of the appeal. In those circumstances, I would have made orders that the appeal and notice of contention be dismissed.
2. GRIFFITHS AJA: I am grateful to Stern JA for summarising the factual background and setting out the relevant legislative provisions, which need not be repeated. I agree with her Honour's reasons for rejecting the notice of contention. I respectfully disagree, however, that the appeal should be dismissed.
3. Like many difficult questions of statutory interpretation, this case presents a constructional choice. Ultimately, however, the core issue is whether the Deputy President was correct to adopt what can appropriately be described as a strained interpretation of the expression "period of unpaid leave" in reg 8E so as to avoid an outcome which the Deputy President viewed as "plainly unfair".
4. Alternatively, applying well settled principles of interpretation, should that expression be given a different and narrower meaning? If that interpretation produces unfairness, power exists to make a regulation under cl 2(3) of Sch 3 of the Workers Compensation Act 1987 (NSW) (Compensation Act), which authorises the making of an appropriate adjustment so as to address unfairness.
5. For the following reasons, I prefer the second of those approaches.
6. First, cl 2(3)(a) of Sch 3 of the Compensation Act and reg 8E of the Workers Compensation Regulation 2016 (NSW) are the only provisions in the legislation containing the expression "a" or "any" "period of unpaid leave". Subject to the manifestation of a contrary intention, they should be given the same meaning (no significance attaches to the fact that one of the two provisions is prefaced by the term "a", while the other uses "any"). There being no contrary intention here, the proper construction of "period of unpaid leave" in reg 8E turns on the meaning of that expression in cl 2(3)(a).
7. I see no reason why the expression "any period of unpaid leave" in cl 2(3)(a) should be given anything other than its ordinary meaning in this particular context. In my view, that ordinary meaning does not encompass a situation where a worker is unable to work because of incapacity and is receiving workers compensation. Such a worker is not on leave, nor is the person unpaid. I will now explain why that is so.

Conclusion

1. For these reasons, I would allow the appeal. I accept the appellant's submission that this is an appropriate case for this Court to determine the matter, rather than remit it.

Orders

1. I would make the following orders: 1. The appeal is allowed. 2. Set aside the orders made by the Deputy President on 23 June 2023. 3. In lieu thereof: 1. Revoke the Certificate of Determination dated 28 June 2022; 2. Determine that the relevant earning period for the purpose of calculating the then respondent's pre-injury average weekly earnings is from 2 February 2020 to 31 January 2021. 1. Dismiss the notice of contention. 2. There be no order as to costs.

Amendments 02 April 2024 - Removed extra space in headnote. 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: 02 April 2024