Tanya Maree Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35;

Tanya Maree Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35; - TASSC 1993 case summary — Zoe

[20]

12. As a preliminary matter I will consider whether s86 is to be construed as prohibiting the termination of a weekly payment at a time when there remains on foot a reference under s86(4) which has not been determined by the Commissioner. I do so because whether or not s86 is to be so construed is relevant to a consideration of the nature and ambit of the "matter" referred to in s86(4). Section 86(1) is expressed to be subject to the other provisions of s86. It follows that an employer is not entitled to terminate upon any of the grounds set forth in s86(1) unless the employer has done what is required by s86(3) and that the period of ten days, required to be specified by the notice, has expired. Section 86 is silent on the question of whether, where a worker has referred the matter pursuant to the provisions of s86(4), the employer is entitled to terminate the weekly payment at the expiration of the period of ten days even though the reference has not then been determined. In other jurisdictions specific provision is made whereby the weekly payment may not be terminated until such time as the relevant application made by the worker has been determined. The previous legislation, the Worker's Compensation Act 1927, s21(4), made specific provision as to what was to occur in relation to the payment of a weekly payment pending resolution of a dispute such as the present. It is therefore surprising to find that Parliament has not seen fit to make any specific provision as to this matter in the Act. The provisions of s86 are of similar import to the provisions of the Workmen's Compensation Act 1971 (SA), s52 and it may be thought that the draftsman of the Act used the South Australian section as a model. It is difficult to understand why the draftsman did not see fit to make express provision, as was done in South Australia and elsewhere, as to whether an employer is entitled to terminate a weekly payment under s86 whilst a reference under s86(4) remains undetermined.

[35]

"I turn now to an examination of the section in itself and

in its relationship with other parts of the Act. The

section operates on a factual situation in which the

employer is making weekly payments to the workman pursuant

to s 51. He may be doing this in voluntary discharge of his

obligations, or because an application that s 53(1) does not

apply has not been made in time or has been refused, or

pursuant to an order of the Court made on an application

under s 39. The section prohibits discontinuance or

diminution of the payments except under specified

conditions, and makes discontinuance or diminution otherwise

than in accordance with the section an offence carrying a

fine. The entitlement to discontinuance or diminish under

the specified conditions is spoken of in sub-s (2) as a

'right'. If the workman disputes that 'right' he may apply

to the Court. If the application is dismissed the payments

may be discontinued or diminished. The Court may 'make such

order as to the continuance of the weekly payments as it

thinks fit'. The application must be dealt with in the

summary list. The conditions which give rise to the 'right'

to discontinue or diminish are two in number. The first is

the return of the workman to work. The second is

certification by a medical practitioner that the workman has

wholly or partially recovered or that the incapacity is no

longer a result of the injury and service on the workman of

a copy of the certificate including the grounds for the

opinion, together with twenty-one days notice of intention

to diminish or discontinue the payments. On a strictly

literal reading of the section as it stood prior to the 1979

amendment it could be argued that the second condition is

not fulfilled if the workman makes application to the Court

within the twenty-one day period. I think, however, that

such a reading would carry literalness too far. I do not

think that failure to make application is an ingredient of

the second condition giving rise to the 'right'. The

intention is simply to ensure that the payments are not

discontinued or diminished in fact until the Court has

adjudicated upon the workman's challenge to the right.

Although it is not permissible to use the 1979 amendment as

an aid to the construction of the section as it stood prior

to the amendment, it is interesting to note that this

meaning is made clear by that amendment. The reference to

the application by the workman is removed from sub-s (1)

which specifies the conditions which found the 'right' and

appears in a new sub-s (2a), which provides directly that

where the workman takes out the application the payments

shall not be discontinued or diminished pending

determination of the application. Section 52 immediately

follows the section which fixes the amount of compensation

as a weekly payment during incapacity. It immediately

precedes the section which obliges the employer to commence

weekly payments upon receipt of evidence of the workman's

compensable incapacity unless the Court considers that a

genuine dispute as to liability exists. The section is by

its terms limited in its scope to the discontinuance or

diminution of payments on grounds of recovery. Its

procedures cannot be used to discontinue payments on other

grounds. Issues such as whether the recipient of the

payments was a workman, or whether he suffered an injury, or

whether the injury occurred in the course of or arising out

of the employment cannot be resolved under s 52. Issues

which could be raised in s 53 proceedings cannot be raised

in proceedings under s 52.

I cannot see any warrant in the section, in its relationship

with other parts of the Act, or in legal principle, for the

view which had apparently taken root in the Industrial Court

that the question in an application under the section is

whether it is inappropriate that payments should be

discontinued or diminished and that if the evidence as to

incapacity is finely poised it is inappropriate. What must

be established by the workman on such an application is not

that it is inappropriate that payments be discontinued or

diminished because the evidence is at least finely poised,

but whether the conditions necessary to found the 'right' of

the employer to discontinue or diminish exist. It is

necessary to consider what those conditions are.

As the Full Industrial Court saw it, the section, in

addition to prohibiting under penalty arbitrary

discontinuance or diminution of payments, provides the

machinery for determining finally the issue whether

incapacity continues and in consequence whether the

workman's right to weekly payments under s 51 continues. In

my opinion, this construction faces some formidable

difficulties. The foremost of these difficulties is that no

such indication is to be found in the words of the section.

The full Industrial Court considered that the question for

the Court is 'whether the workman had recovered either

wholly or partially from the injury or whether the

incapacity is no longer a result of it depending upon the

tenor of the relevant certificate of the medical

practitioner'. No such question can be gathered from the

language of the section. Sub-section (1) prescribes the

conditions which give rise to the right to discontinue or

diminish payments and the relevant condition relates to

notification and service of the certificate and notice. The

question for the Court relates to the existence of that

right. A further difficulty is that the section is not apt

to deal with the final resolution of the right to

discontinue payments. This right may depend upon issues as

to liability for compensation which do not come within the

scope of this section at all. Moreover the summary

procedure prescribed by the section cannot have been

intended for the final determination of contentious issues

as to the continued existence of work caused incapacity,

which are always of the utmost importance and sometimes of

considerable complexity. The provision that a s 52

application must be dealt with in the summary list and

cannot be removed from it is a strong indication against the

Full Industrial Court's construction."

[50]

"I think the correct approach to s 12B, is to look at it as

if it was part of a scheme set up by s 12A. I believe that

the words in sub-s (1) reading 'where weekly payments of

compensation for total or partial incapacity are made to a

worker under this Act', refer to the weekly payments for

total or partial incapacity paid pursuant to s 12A. The

scheme of the section is to make unlawful a discontinuance

of those payments, unless one or more of three circumstances

apply, firstly, unless the worker has consented to their

discontinuance or diminution, or secondly, the worker has

returned to work, or thirdly, a medical practitioner

registered under the Medical Act has certified that the

worker has wholly or partially recovered, or that the

incapacity is no longer a result of the injury and a copy of

the certificate, together with at least 21 clear day's prior

notice of the intention of the employer to discontinue the

weekly payments or to diminish them, has been served by the

employer upon the worker. Sub-section (2) provides as

follows: 'A worker who disputes the right of his employer to

discontinue or diminish the weekly payments referred to in

subsection (1) of this section may within the period of

twenty-one days referred to in that subsection make an

application to the Board for an order that the weekly

payments shall not be discontinued or diminished and the

application shall be heard and determined as an

interlocutory proceeding.'

In my view, this sub-section is only dealing with the third

method by which an employer might seek to discontinue or

diminish the weekly payments he has been making pursuant to

s 12A. What the worker disputes is the right of the

employer to discontinue or diminish these payments by reason

of having obtained and served upon the worker the stipulated

medical certificate, and given him 21 days' notice of prior

intention to discontinue or diminish payments. The

application by the worker disputing this right is heard as

an interlocutory proceeding because it is an interlocutory

proceeding in relation to a claim for compensation commenced

by reason of compliance by the worker with the provisions of

s 12. On this interpretation, therefore, it would be

reasonable I think, to say that the concern of the Board

hearing an application under sub-s (2), is to be satisfied

that the employer has complied with the requirements of sub-s

(1). With some hesitation I have reached the conclusion

that the Board would be entitled to receive evidence which

goes to challenge the certificate, but only so far as is

consistent with the proceeding remaining interlocutory. On

this sort of application it is not the function of the Board

to determine liability."

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Tanya Maree Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35; (1993) 3 Tas R 19 (21 April 1993)

Parties

Legislation Cited (6)

Cases Cited (4)