The Salvation Army v Jarvis [2016] VSC 34

1 The respondent, Brett Jarvis ('the worker'), was employed as a truck driver by the appellant, The Salvation Army Southern Territory ('the employer'). On 27 February 2015, the Magistrates' Court at Melbourne set aside a notice issued on 9 August 2012 by Allianz Australia Workers' Compensation (Victoria) Limited ('the insurer'), as agent for the Victorian WorkCover Authority ('the Authority'), of its determination pursuant to s 114(2A) of the Accident Compensation Act 1985 ('the Act') not to pay compensation in the form of weekly payments to the worker.[1] The employer appeals the judgment of the Magistrates' Court pursuant to s 109 of the Magistrates' Court Act 1989.

(a) The nature of the inquiry before the Magistrate was a hearing de novo.

(b) The Magistrate erred in setting aside the decision of the insurer on the basis that, in making the determination, it took into account an irrelevant consideration; and not proceeding to exercise the discretion under s 114(2A) of the Act on the basis of the evidence before the court and in accordance with law.

(c) The discretion conferred on the insurer under s 114(2A) of the Act was in the nature of an entitlement not to resume payments if the preconditions to the exercise of the discretion under the section had been satisfied.

(i) there was no issue that the preconditions set out in s 114(2A) had been satisfied; and

(ii) the insurer had exercised its discretion not to resume weekly payments,

there was no basis on which the court could properly re-exercise the discretion, pursuant to ss 39 and 43 of the Act, to resume weekly payments.

3 On 20 April 2011, the worker lodged a claim for weekly payments of compensation and medical expenses following an injury to his left knee on 19 April 2011 while moving furniture during the course of employment. The worker's claim was accepted by the Authority.

4 On 25 May 2011, the worker started receiving weekly payments of compensation.

5 In due course, the worker returned to full-time work with the employer. However, he performed modified work duties on account of his injury. During this time, the worker was not entitled to weekly payments because of the amount of his weekly earnings.

6 By letter dated 22 May 2012, the employer notified the worker that he was dismissed from employment effective immediately because of 'theft of Salvos Stores property' ('the dismissal letter'). The dismissal letter recounted the incident of theft as follows:

It was reported that on Friday 18th May 2012 you:

• drove the Salvos Stores truck to Ferntree Gully to collect donations.
• refused a donation of two punching bags and a punching bag stand.
• later returned to the house at Ferntree Gully and collected the declined donations.
• drove the company truck to your home.
• delivered said goods (two punching bags and a punching bag stand) to your home.

7 By letter dated 9 August 2012 to the worker, the insurer gave notice of its determination that the worker's weekly payments of compensation would not be reinstated from 21 May 2012 because of his termination from employment due to misconduct ('the Notice'). The relevant extracts from the Notice are as follows:

A review of your entitlement to weekly payments was based on the available information including:

• Worker's Injury Claim form dated 20th April 2011
• Termination Letter dated 22nd May 2012

...

Reasons for this decision

The reasons for our decision are as follows:

1. On 20 April 2011 you lodged a Workers Injury Claim form in relation to a right knee [sic] injury suffered during the course of your employment on 19 April 2011. Your claim was accepted and payments commenced.
2. You returned to work on full time modified duties with The Salvation Army Australia Southern Territory. Due to the amount of money you were earning from working you did not have an entitlement to weekly compensation.

1. You were given a letter dated 22 May 2012 from The Salvation Army Australia that stated the following:
   • There were alleged misconduct issues during the course of your employment on Friday 18 May 2012.
   • The alleged misconduct was fully investigated by The Salvation Army Australia.
   • You were interviewed on Monday 21 May 2012 with the alleged misconduct put to you.
   • You admitted to the misconduct during the meeting on 21 May 2012.
   • Due to this your employment was terminated effective immediately.

1. Section 114(2A) of the Act relevantly provides that, if the current weekly earnings of a worker are reduced because the worker's employment was terminated because of the worker's misconduct, [the Authority] may determine not to pay compensation in the form of weekly payments.

8 On 20 November 2012, the worker issued a complaint in the Magistrates' Court. The accompanying statement of claim sought an order pursuant to s 93 of the Act for weekly payments from 21 May 2012 for a period of 130 weeks.[2] At the conclusion of the second day of the hearing on 27 February 2015, the Magistrate set aside the Notice.[3]

9 In making the orders, the Magistrate was exercising the jurisdiction conferred by ss 39 and 43 of the Act, which at the time in question relevantly provided as follows:[4]

(1) Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under this Act arising after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992, out of -

(a) any decision of the Authority, employer or a self-insurer; ...

(1AA) If the County Court is exercising the jurisdiction conferred by sub-section (1) in a proceeding relating to the entitlement of a worker to weekly payments, the County Court has the jurisdiction in the proceeding to inquire into, hear and determine any question or matter under this Act relating to any termination or alteration of any entitlement to weekly payments by virtue of this Act.

...

(1) If -

(a) the County Court would have had jurisdiction under this Act or the Workers Compensation Act 1958 to inquire into, hear and determine any question or matter; and

(b) the question or matter is in respect of a decision, recommendation or direction for or in respect of a sum or matter the amount or value of which does not exceed $40 000 or is in respect of the payment of weekly payments -

the Magistrates' Court has a like jurisdiction.

10 Section 114(2A) of the Act provides as follows:

(2A) If the current weekly earnings of a worker who -

(a) has an incapacity for work resulting from, or materially contributed to by, an injury; and

(b) is receiving, or but for the worker's current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments -

are reduced because -

(c) the worker no longer resides in Victoria; or

(d) the worker's employment was terminated because of the worker's misconduct; or

(e) the worker -

(i) has resigned; or

(ii) reduced the hours worked otherwise than in the circumstances referred in section 93CDA -

for reasons unrelated to the worker's incapacity -

the Authority or a self-insurer may determine -

(f) not to alter the amount of compensation in the form of weekly payments paid to the worker; or

(g) not to pay compensation in the form of weekly payments.

11 By notice of appeal dated 24 March 2015, the questions of law on appeal to this Court are as follows:

(a) Whether the learned Magistrate erred in law in construing the Magistrates' Court's jurisdiction given by ss 39 and 43 of the Act to review a determination not to reinstate weekly payments of compensation in accordance with sub-sections 114(2A)(d) and (g) of the Act?

(b) Whether the learned Magistrate erred in law in construing the Magistrates' Court's jurisdiction given by ss 39 and 43 of the Act to review a determination not to reinstate weekly payments of compensation in accordance with sub-sections 114(2A)(d) and (g) of the Act, by holding that the Court was bound in law to determine the review in accordance with a two-stage test, viz, first, whether a reasonable employer in the position of the appellant could have made the determination that there was misconduct on behalf of the respondent justifying dismissal for misconduct, and then, if so found, second, whether the insurer had in fact lawfully exercised its statutory discretion not to reinstate weekly payments of compensation by having regard to lawfully relevant considerations (as stated by the learned Magistrate)?

(c) Whether the learned Magistrate erred in law by not holding that the Magistrates' Court's review jurisdiction required only that the Court be satisfied that the respondent's employment was terminated because of his misconduct (alternatively, required only that the Court be satisfied that in all the circumstances it was reasonable for the appellant to have terminated the respondent's employment because of his misconduct)?

(d) Whether the learned Magistrate, having found that the respondent's employment had been terminated for misconduct and that a reasonable employer in the position of the appellant could have properly made the determination that there was misconduct justifying dismissal for misconduct, then erred in law by not holding that, because of those findings, the respondent's application to set aside the Notice dated 9 August 2012 not to reinstate weekly payments of compensation was bound to be dismissed?

(e) Whether the learned Magistrate erred in law by misunderstanding the Magistrates' Court's jurisdiction given by ss 39 and 43 of the Act in ordering that the Notice dated 9 August 2012 be set aside as purportedly invalid because the insurer making the determination so notified had, so the Court found, had regard to considerations it was bound to ignore, and had failed to take into account considerations it was bound to have had regard to?

12 The Magistrate first considered the construction of s 114(2A) in light of ss 39 and 43 of the Act and concluded that an insurer, once the relevant preconditions in sub-ss 114(2A)(a)-(e) are satisfied, has a discretion as to whether it determines not to alter or pay the weekly payments to a worker. The Magistrate then considered that s 114(2A) involved the resolution of two questions, which he broadly stated as follows.

(a) Whether a reasonable employer in the position of the employer could have made the determination that there was misconduct justifying dismissal ('the first question')?

(b) Whether the insurer lawfully exercised its statutory discretion by not reinstating the worker's weekly payments of compensation ('the second question')?

The second question was formulated by the Magistrate in the course of submissions by counsel. In the course of this discussion, the Magistrate made certain statements indicating that the court would consider the question of whether to resume weekly payments on a hearing de novo basis. However, on the basis of the Magistrate's ultimate reasons for setting aside the Notice, I have inferred that he formulated the second question as expressed above.

13 As to the formulation of the first question, the Magistrate initially said during argument:

When you review something you might do one of two things. You might examine all the facts de novo as it were and make your own determination, or you might examine the decision of the employer in the light of the facts known to the employer.

...

And the facts, indeed, known to the plaintiff or the worker. And ask yourself, "Well, could a reasonable person in the position of the employer determine that there was misconduct?" Right? I tend to favour the view that it's the latter one.

...

You look at the conduct concerned, and you ask yourself, "Well, that was what was said to the worker, that was what was agreed, that's the policy". In the light of what's happened, could an employer reasonably have come to a decision that this constituted misconduct? That is the approach I take.

14 Later the Magistrate described the first question in this way:

What the court then enquires upon when it's asked to review a decision - not of the employer because it's not the employer's decision that's being reviewed here, it's the insurer's decision. When it's asked to review it, it looks necessarily by opinion at all of the circumstances of the worker's employment and termination. In order to determine whether a reasonable employer in the position of this employer, could have made the determination that there was misconduct justifying dismissal or misconduct. All right?

15 The Magistrate also said the following with respect to the first question:

(a) 'I am not putting myself in the place of the employer... I do not believe that's what I should do. I look at all the facts. I look at the contract of employment. I look at the conduct of the employer.'

(b) 'If there was no material upon which a reasonable employer could have terminated, that would be the end of it...'

16 The Magistrate particularly noted that the word 'misconduct' in s 114(2A) was not defined in the Act; and considered that, to constitute 'misconduct', more was required than a breach of the worker's contract of employment. He said as follows:

I don't think Parliament intended an employee who was in breach of his contract of employment for any reason whatsoever and could therefore fall within the sweeping definition of misconduct should, as a matter without review and without the exercise of any other factors, be deprived of otherwise justifiable entitlements. I don't think they intended that. It was supposed to be remedial legislation. I don't accept that.

17 The Magistrate did not accept that, once the preconditions to s 114(2A) had been satisfied, the insurer had a discretion to refuse compensation payments which could not be reviewed by the court under the Act. He stated:

I just don't accept that all this court can do is to look at the facts which led an employer to say there has been misconduct. I don't accept that's the width of the review at all.

...

This court [has] the power to review a decision made by an insurer in the exercise of its discretion if it affects the entitlements and rights of a worker. I think that is also well established and fairly trite.

Now, you are saying that discretion can't be reviewed by this court. I think you're wrong, I think it can.

19 During the hearing, the Magistrate considered the bounds of the discretion conferred on the insurer. Relevantly, he said the following:

It must be borne in mind that the decision that the insurer makes can have very serious consequences for the worker ... It affects his entitlement to receive, on one view, any benefits whatsoever to which he would otherwise be entitled, on account of work-related incapacity. Therefore, it's not a discretion that can be exercised arbitrarily, and nor can it be exercised lightly. It must be done on good reason and after full and proper consideration of all the facts which it had in its possession or reasonably to have had in its possession at the time it makes the decision. That appears to me to be fairly trite.

...

If an insurer takes the view that it need proceed only on what it has in its possession at the time, then the insurer takes the risk. It takes the risk of being reviewed. There is no statutory obligation cast upon the insurer in the Act to make further enquiry but given the consequences of exercising a discretion to the detriment of the worker, it is only, in my opinion, common sense and practical and indeed prudent for an insurer to at least make fundamental enquiries.

...

While I don't put myself in the place of the employer... I think I do put myself in place of the insurer...because that is the ultimate decision that is taken under that section. That is what I review.

20 With respect to the facts that the court should take into account in reviewing the insurer's decision, the Magistrate said as follows:

When the court is reviewing the discretion, what it comes down to ultimately is that the court reviews the decision by the insurer in the light of what was known to the insurer, ---

...

And it looks at exactly what the insurer looks at and says, "All right, these are the facts. What would a just exercise of discretion be?"

[W]hen [the] decision [of the insurer] is reviewed, all facts found by the court on review to be facts are going to be deemed to be facts in the possession of the insurer when it made the decision.

22 In addition, the Magistrate considered that an insurer, in exercising its discretion, should take into account certain 'relevant and proper matters'. He opined that the following may be examples of such matters:

(a) the nature of the misconduct that led to the worker's termination;

(e) the effect upon the worker of ceasing the weekly payments; and

23 With respect to the first question, the Magistrate found that the facts were sufficient for a reasonable employer to determine that there was misconduct and, accordingly, it was reasonable for the employer to terminate the worker's contract of employment.[5]

24 With respect to the second question, the Magistrate concluded that there was a miscarriage of the insurer's discretion based on the following reasons.

(a) The dismissal letter was inaccurate as a matter of fact and law. The taking of the punching bags by the worker was not theft and the employer ought never to have characterised it as theft. No reasonable person could have come to the conclusion that the worker had committed theft.

(b) There was no evidence to conclude whether or not the insurer had considered any material other than the dismissal letter. The Magistrate said 'We don't know because there was no evidence that it had, in its possession, anything other than that.'

(c) The insurer had the dismissal letter and, 'If it took into account a consideration that the plaintiff was a thief, it is something which ought not to have taken into account. That, on one view alone, would be sufficient to set aside this discretionary decision by the insurer because it is certainly an almost inescapable inference that that assertion influenced this decision.'

25 The Magistrate referred to other circumstances, which he considered the insurer 'almost certainly did not take into account', namely:

(a) There was no evidence of written acknowledgment from the worker that he understood the employer's policy. The evidence did not suggest that the policy was put to the worker in writing.

(b) There was no evidence of any signs or warnings in the employer's store regarding the taking of donations by employees.

(c) Evidence from the worker that a co-worker had acquiesced to the worker's conduct. This led the Magistrate to query whether 'this [was] something which happened from time to time in the workplace'.

(d) The incident was isolated and did not cause any serious or significant loss to the employer. However, the Magistrate did understand that the employer needed to protect its business by not allowing employees 'to take account of information coming into their possession'.

(e) There was no evidence that the conduct was serious and ongoing and therefore some leniency should be allowed.

Insofar as [the insurer] took [the allegation of theft] into account or can reasonably be supposed to have taken that into account, in my opinion, that caused the discretion to miscarry.

The other matters are matters which are on a proper view taken into account, but are of less serious nature, in my opinion. As I said, if an insurer chooses to act upon the basis of what it knows, it may, but it runs the risk upon review it will be fixed with the knowledge of what in fact occurred in all material respects and, on that basis, this court can exercise its powers to review the discretion and a decision taken by the insurer. In my opinion, that decision should be set aside.

27 The Magistrate then ordered that the Notice be set aside.

28 Mr Fleming QC on behalf the employer contended as follows:

(a) The proper reading of s 114(2A) was (relevantly) if the current weekly earnings of a worker, who:

(i) has a work related incapacity, and but for current weekly earnings,

(ii) would have been entitled to receive weekly payments;

are reduced because the worker's employment was terminated for misconduct, the Authority or a self-insurer may (pursuant to s 114(2A)(g)) determine not to pay weekly payments.

The power under s 114(2A)(g) to determine not to alter weekly payments did not apply to this case because it is only applicable if the worker was receiving partial weekly payments prior to the termination for misconduct (or some other disentitling event).

(b) Each of the preconditions to the exercise of the power to terminate the weekly payments under s 114(2A)(g) were satisfied; and, in particular, the Magistrate accepted that the worker's employment was terminated because of the worker's misconduct. Accordingly, the provision that the Authority or self-insurer may determine not to pay weekly payments was a facultative provision and should not be interpreted as a general discretion subject to administrative law considerations.

(c) The 'may' in s 114(2A) conferred on the Authority or a self-insurer the same right to terminate as was conferred by s 114(2)(b), where the Authority or self-insurer may terminate weekly payments on the ground that the worker is no longer entitled to weekly payments.

(d) The Magistrates' Court has no residual discretion to review the exercise of s 114(2A), once the preconditions of that sub-section are satisfied. This is similar to the position of the court being required to adopt an opinion of a Medical Panel. That is, such an opinion leaves 'the court with no relevant function but to give effect to [the Medical Panel's opinions regarding the question of entitlement] in money terms'.[6]

(e) The proposition that the Authority or a self-insurer was under a duty in exercising its discretion to act in good faith towards the worker was contrary to the decision of McDonald J in Gimson v Victorian WorkCover Authority,[7] in which it was held that the Authority owed no duty to act in good faith in dealing with a worker claimant under the Act. His Honour concluded:

Accordingly, the conclusion that I have reached is that the plaintiff's claim in so far as it is reliant upon the allegation that the defendants or one of them owed to the plaintiff a duty to deal fairly and in good faith with him in processing and paying his claim for compensation which duty is alleged to have been breached by one or other or both of them, has no good foundation in law and discloses no cause of action.[8]

29 Mr Horner, on behalf of the worker, contended as follows:

(a) The reading of s 114(2A) referred to in paragraph 28(a) above, as put on behalf of the employer, was accepted.

(b) The nature of the inquiry under ss 39 and 43 of the Act is a de novo hearing.

(c) Even if the preconditions in s 114(2A) were satisfied, the insurer had a discretion not to refuse to pay weekly payments; and therefore the court has the same discretion.

(d) The Magistrate in exercising the discretion took into account that the relevant conduct of the worker did not constitute theft; and the employer's policy had only been communicated to the worker orally. Accordingly, although the Magistrate found there was misconduct by the worker, it was at the lower end of the 'spectrum' of misconduct.

(e) The court in exercising its discretion would be obliged to look at all the circumstances of the particular case. The ultimate consideration would be fairness, taking into account that the object of the Act is to provide just compensation to workers; and s 114(2A) has a punitive element.

30 At the relevant time, s 39 of the Act provided that the County Court has 'exclusive jurisdiction to inquire into, hear and determine any question or matter' under the Act arising out of, amongst other things, any decision of the Authority, employer or a self-insurer. By virtue of s 43(1) of the Act, the Magistrates' Court has a like jurisdiction. Although counsel for both parties ultimately agreed that the nature of such an inquiry, hearing and determination is a de novo hearing, as it currently stands there is conflicting authority on this question particularly with respect to decisions to terminate weekly payments pursuant to s 114 of the Act.

31 The form of the wording conferring exclusive jurisdiction has been virtually identical since at least the Workers Compensation Act 1958, which provided that the Workers Compensation Board, as it then was, had powers and duties 'to act as a tribunal with exclusive jurisdiction to inquire into hear and determine all matters and questions arising out of claims under this Act'.[9]

32 In fact, a determination of the Workers Compensation Board was a final determination and such determination was not 'liable to be challenged appealed against reviewed quashed or called in question by any court on any account whatsoever'.[10] The fact that the Board was 'the only duly constituted tribunal to consider the evidence, to draw the inferences therefrom, and to find the ultimate facts to be determined in order to decide whether or not liability exists under the Act',[11] demonstrates that the Workers Compensation Board was to hear evidence and consider matters afresh.

33 In 1985, the Act established the Accident Compensation Tribunal ('the Tribunal') and granted the Tribunal exclusive jurisdiction to, amongst other things:

...inquire into, hear and determine any question or matter -

(i) in relation to the administration of the Workers Compensation Act 1958;

(ii) relating to liability to pay compensation under the Workers Compensation Act 1958;

(iii) with respect to claims for compensation under the Workers Compensation Act 1958 or this Act;

(iv) arising out of any decision of the Commission under Part IV or VII or a self-insurer under Part IV in respect of which this Act does not provide for a right of appeal or review by any other body or tribunal;

(v) in respect of which jurisdiction is conferred by any other Act; and

(vi) in relation to whether an insurer is, or two or more insurers are, liable to indemnify an employer under a policy of insurance or indemnity issued under the Workers Compensation Act 1958[.][12]

34 In Peter Isaacson Publications Pty Ltd v Victorian WorkCover Authority,[13] the Court of Appeal considered the extent of the jurisdiction of the Tribunal under s 51 of the Act which at that time provided as follows:

(1) The function of the Tribunal is to act as a court -

...

(b) with exclusive jurisdiction to enquire into, hear and determine any question or matter arising out of any decision of the Commission or a self insurer which has not been reviewed by the Appeals Board, where this Act so provides; and

...

(e) with exclusive jurisdiction to inquire into, hear and determine any question or matter in respect of which the jurisdiction is conferred on the Tribunal by this Act, the Workers Compensation Act 1958 or any other Act.

(2) Subject to this Act, the Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its function.

35 In that case, the employer applied on 6 September 1991 to the Authority for reclassification of two areas on which levies were imposed under the Act. The employer sought reclassification because it operated businesses in each of these areas. On 25 June 1992, the Authority decided to reclassify one area, and back-dated reclassification to 1 October 1991; but did not reclassify the other area. The employer appealed to the Tribunal about the refusal to reclassify the other area, and also sought retrospective reclassification of that area, which had not been the subject of the original decision of the Authority. Accordingly, one issue for determination was whether the Tribunal could determine issues outside those considered by the Authority (which is not relevant in this case).

36 Smith J (with whom Brooking and Ashley JJ agreed) found that the power to hear and determine any question or matter arising out of any decision did not extend beyond matters ancillary to any decision actually made by the Authority.[14] However, relevantly for present purposes, Smith J referred to the fact that the Tribunal 'must have reached its own decision and, in doing so, it could have heard fresh evidence and arguments not before [the Authority] so long as they related to the ultimate issues that were before [the Authority].'[15] Accordingly, it would appear that the Court of Appeal contemplated that the hearing before the Tribunal would be a de novo hearing.

37 The Accident Compensation (WorkCover) Act 1992 substantially amended the 1985 version of the Act and substituted Part III with a new dispute resolution scheme which abolished the Tribunal and granted exclusive jurisdiction to the County Court under s 39 of the Act.

38 Since then, there have been conflicting views as to the nature of the exclusive jurisdiction conferred on the County Court under s 39. In Spiteri v FAI Workers' Compensation (Vic) Pty Ltd, Judge Strong considered the jurisdiction to be of a de novo nature, stating:

Section 39 permits this Court to review and determine de novo any question arising out of the decision of the Authority or authorised insurer. The Court is not confined to the material placed before the original decision maker, but may have regard to facts and circumstances which have emerged since the original decision was made. The power is analogous to that exercised by this Court in appeals against sentences imposed in Magistrates' Courts. The judge is not obliged to place himself, or herself, in the position of the magistrate who imposed the sentence. The judge must decide the issue on the material then before the Court, and in the circumstances which then prevail.[16]

39 In Siggins v B.T. & W.A. Wood & Sons Pty Ltd, Judge Lewis endorsed the broad approach stating:

In my view s.39 should be interpreted to enable the Court to be able to give relief to the parties who appear in the case before it in as ample a manner as is reasonably open on the legislation which confers jurisdiction.[17]

40 In Jackson v City of Caulfield,[18] Judge Higgins considered that the inquiry was similar to appeals by way of rehearing to the County Court under s 20 of the Commonwealth Employees' Compensation Act 1930-1959 (Cth) which provided for an appeal by way of rehearing to the County Court against any determination or action of the commissioner. In Phillips v The Commonwealth, the High Court made it plain that such an appeal was de novo stating that 'upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it'.[19]

41 A conflicting view of the nature of the exclusive jurisdiction was expressed by Judge Rendit in Drobis v Victorian WorkCover Authority.[20] The authorised insurer had served a notice purporting to terminate weekly payments pursuant to a decision made under s 111A of the Act (the forerunner to s 114(2) currently under consideration), which provided that the Accident Compensation Commission or a self-insurer 'may ... increase or reduce weekly payments on the ground that there is not, or is no longer, an entitlement to weekly payments of the existing amount'. His Honour found that the decision of the authorised insurer under s 111A to terminate payments was not a decision subject to judicial review. His Honour said:

The question becomes whether the power or right conferred upon the authorised insurer under s 111A of the Act involves the exercise of a power or duty of a public nature. Certainly persons who have been invested by statute with authority to affect the legal rights of others, have prima facie, the legal duty of acting judicially. However, if the statute indicates that the body conferred with that power or right has uncontrolled discretion to act, then the rules of natural justice will not apply and such persons will be at liberty to act as they see fit: see In re Gosling [1943] NSWStRp 20; 43 SR(NSW) 312, 316 (Jordan CJA). If the principles of natural justice do not apply then there is no separate and analogous duty to act fairly: see Gardiner v Dairy Industry Authority of New South Wales (1977) 1 NSWLR 505: ...

To my mind there is a distinction to be drawn between a "power" and a "right". Power denotes authority, a legal discretion to carry out or refrain from carrying out any act and can involve a decision which affects legal rights of other persons. Further, powers are either public or private: See Jowitts Dictionary of English Law, 2nd Ed. Vol. 2, 1396. Public powers are powers conferred for a public purpose, whilst private powers are those conferred on private persons and at times so conferred by statute as opposed to private instrument.

If it is appropriate to describe the right to serve a notice of determination as a power, then I consider it to be a private power and as such not subject to procedural fairness. For my part, I prefer to describe the entitlement to serve a notice of termination conferred upon an authorised insurer by s 111A as a right to do so, as such highlights what I believe is the true nature of that entitlement, namely, the exercise of a private right as opposed to the performance of a public function.[21]

42 His Honour rejected the submission that the inquiry of the court was a de novo hearing similar to that referred to in Phillips v The Commonwealth[22] and decided that the inquiry under s 39 'may well involve whether the decision was open to the authorised insurer on the probative material at hand but not whether the Court would have come to the same decision on that material or for the Court to substitute its own decision for that of the authorised insurer'.[23]

43 In Hermitage v Ministry of Education,[24] the issue as to whether or not the inquiry by the County Court was a de novo hearing was considered by Judge Spence. His Honour noted that conflicting views had been expressed by Judges of the County Court and that 'remarkably' there was no binding authority on the issue. Ultimately, his Honour adopted the broader approach based on the facts of that case, however he said that he was 'tentatively' persuaded that the 'narrow' construction was appropriate in cases where 'an Authority or Insurer gave a Notice of Termination under s 114'.[25]

44 The starting point is, in the absence of cogent reasons, provisions conferring jurisdiction should not be read down.[26]

45 I consider that the plain meaning of the words in s 39 of the Act, the legislative history and the preponderance of authority all support the proposition that the court, in inquiring into, hearing and determining any question or matter arising out of any decision of the Authority, employer or a self-insurer, should have regard to all of the evidence available at the time of the court's inquiry (whether or not that evidence was available at the time of the decision of the Authority, employer or self-insurer). In other words, the court should conduct a de novo hearing.

46 In Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd, Mason J said:

Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect.[27]

Although ss 39 and 43 of the Act do not use the word 'rehearing', I consider the words 'inquire into, hear and determine' are of similar effect.

43 Importantly, however, I note the following statement in Dare v Dietrich from the Full Court of the Federal Court:

[A] statement that an appeal is by way of re-hearing is not, in itself, necessarily determinative of the question whether the re-hearing is a hearing de novo as distinct from a re-hearing on the record: that question is to be determined by the elicitation of the relevant legislative intent from the overall statutory provisions establishing or regulating the appeal.[28]

47 Accordingly, apart from the words used in the section and the legislative history, I note the following indicia of the legislative intent:

(a) The legislative framework is that the decision in the first instance is made by the Authority, employer or a self-insurer. As these are the entities that are obliged to make compensation payments under the Act, it would not necessarily be expected that they would make the decisions objectively or in the public interest. In other words, if a decision-making power is conferred on an entity whose interests will be affected by the decision, it is unlikely that Parliament would intend that that entity would not have regard to its own interests.

(b) There is no provision in the Act that entitles a worker to a hearing before the Authority, employer or self-insurer.[29]

(c) As was observed by Nettle JA (as his Honour then was) in Victorian WorkCover Authority v Balogh, a worker's entitlement to weekly payments 'starts and terminates when the Act says that it does; not when and if the Authority asserts that it does'.[30]

Accordingly, restricting the inquiry of the court to the grounds only available on judicial review (or to the question of whether the decision was open to the decision-maker on the probative material available) would unreasonably restrict the court's ability to assess whether the decision was properly made and the worker was receiving proper compensation in accordance with the Act.

48 In my opinion, Parliament did not intend for the inquiry by the Workers Compensation Board, the Accident Compensation Tribunal or the County Court and Magistrates' Court to be in the nature of judicial review, particularly in light of one of the functions of the Act, which is 'to ensure appropriate compensation ... is paid to injured workers'.[31]

49 As a de novo hearing, the parties may adduce relevant evidence and the Magistrates' Court is required to consider the evidence before it, make its own findings of fact and come to its own decision. In Mercer v Pharmacy Board of Victoria, Pape J said:

The duty of the Court in an appeal such as this is to inquire de novo into the questions involved and arrive at its own decision thereon upon the evidence which was given before the Board and which is now before the Court and the additional evidence which has been led in this appeal. The Court stands in place of the Board, so that it becomes the Court's satisfaction that is required, and so that the discretions which were originally exercisable by the Board have to be exercised by the Court in its place.[32]

50 However, in exercising its discretion, the court may have regard to the manner in which the decision-maker below exercised its discretion. In so doing, Gillard J in Van Lan Ha v Pharmacy Board of Victoria said 'it is not possible to lay down any particular rule save and except that the Court should accord such weight to the findings made and the penalty imposed, by the Board, as is appropriate in the particular circumstances'.[33]

51 To discern the Magistrate's approach in the present case, it is necessary to examine the exchanges with counsel in the course of submissions; and I consider the fact that the Magistrate misconceived the proper approach to the inquiry is apparent from the various comments referred to above,[34] including:

When the court is reviewing the discretion, what it comes down to ultimately is that the court reviews the decision by the insurer in light of what was known to the insurer.

52 A fair reading of the Magistrate's reasons indicate that he effectively undertook a judicial review of the insurer's decision. Accordingly, the Magistrate determined that the insurer had:

(a) wrongly taken into account an irrelevant consideration, being that the worker had been guilty of theft; and

(b) possibly failed to take into account relevant considerations, being certain specified 'relevant and proper matters'.

53 In my opinion, the Magistrate erred in this approach. He determined that by taking into account the alleged theft, the insurer's discretion had miscarried. Thus he formed the opinion that 'the [insurer's] decision should be set aside'.

54 As a de novo hearing, it was not necessary to identify error in the exercise of the insurer's discretion or set aside the decision. Rather, the Magistrate was required to consider the evidence, make the necessary factual findings and determine whether it was appropriate or not to resume weekly payments to the worker. Having taken the unnecessary step of setting aside the insurer's decision, the Magistrate did not then take the necessary step of making the determination afresh on the basis of the material before him.

55 Accordingly, I consider that it was incumbent on the Magistrate to determine on the evidence whether the insurer had established the factual preconditions that enlivened the discretion not to resume weekly payments. In this case, in particular, that required a finding that 'the worker's employment was terminated because of the worker's misconduct'. Without the benefit of submissions on the point, I am inclined to the view that the inquiry would be more than a determination that the worker was dismissed on the grounds of misconduct. The language of the section indicates that what is required is that the court be satisfied that there was actual misconduct by the worker and that the misconduct was in fact the cause of the termination of the worker's employment. In other words, it is not sufficient for the insurer simply to establish to the court that the employer purported to terminate the employment on the ground of misconduct.

56 In this appeal, the finding of the Magistrate that it was the worker's misconduct that was the cause of the termination of the employment was not in issue.

57 In this case, the live issue was the nature of the 'discretion' to be exercised by the insurer, and on appeal the court, not to resume weekly payments, in circumstances where the preconditions under s 114(2A) had been met. As noted above, counsel for the employer submitted that, after satisfaction of the preconditions, the section provided the Authority or a self-insurer with an entitlement not to resume weekly payments. Accordingly, it was submitted there was no residual discretion on reconsideration by the court under ss 39 and 43 of the Act, once the insurer had exercised the right. On the other hand, counsel for the worker submitted that the court had a broad discretion to act fairly, taking into account the objects of the Act, including to provide just compensation to workers.

The nature of the discretion of the Authority or a self-insurer under s 114(2A) of the Act

58 There is no doubt that 'may' in s 114(2A) does not mean 'must' because s 45 of the Interpretation of Legislation Act 1984 provides:

(1) Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word "may" is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.

...

(3) The provisions of this section shall have effect notwithstanding any rule of construction to the contrary and any such rule is hereby abrogated with respect to this Act and any Act passed or subordinate instrument made on or after the commencement of this Act.

59 Section 114(2A) was inserted into the Act to replace the 'notional earnings' regime. Under the Act prior to 5 April 2010, 'notional earnings' were defined as including the weekly earnings that the Authority determined the injured worker could earn from employment that the worker was capable of earning despite an injury.[35] According to the then Minister for Industry and Employment, the purpose of 'notional earnings' was to incentivise workers who were able to work, despite suffering an injury in the workplace, to return to work performing modified duties.[36]

60 The Act prior to 5 April 2010 conferred a broad power on the Authority to terminate or alter weekly payments taking into account notional earnings. Section 114(2), at that time, provided as follows:

(2) In addition to other grounds under this Act for termination or alteration of weekly payments, the Authority or a self-insurer -

...

(c) may terminate or alter weekly payments on the ground that -

...

(ii) in the case of a worker who has notional earnings, the amount of the worker's notional earnings alters; or...[37]

61 The Accident Compensation Act Review of Mr Peter Hanks QC, who was commissioned in 2007 by the Government to conduct a review of the Act, was critical of the notional earnings regime.[38] The report stated that the notional earnings regime gave agents of the Authority a broad discretion to reduce weekly payments and that 'the provisions could be used capriciously or unpredictably'.[39] Accordingly, Hanks recommended that, in the interests of transparency '[i]f it is thought necessary to deal with difficult claims management situations that fall outside the current termination provisions, [the Act] should identify the types of situations that would warrant termination, suspension or reduction of payments, and make specific provision for dealing with those situations.'[40]

62 The report noted the submissions of stakeholders and, in particular, that:

Employer groups, including Ai Group and VECCI, maintain that notional earnings should be retained to reduce payments to workers in the following situations:

• where the worker moves interstate and removes herself or himself from suitable employment opportunities;
• where the worker resigns from employment;
• where the worker's employment is terminated due to misconduct or disciplinary reasons;
• where the worker becomes redundant; and
• where the employer has no suitable duties and the worker has unreasonably not sought, obtained or accepted suitable employment.[41]

63 Following the report, amendments to the Act removed the notional earnings regime and, among other amendments, inserted s 114(2A), which substantially adopted the submissions of employer groups Ai Group and the Victorian Employers' Chamber of Commerce and Industry.[42] The Explanatory Memorandum to the amending Bill stated the following regarding the relevant amendment:

Clause 45 amends section 114 of the Act to permit the Authority or self insurer not to commence or recommence weekly payments of compensation, or not to alter the weekly payments that the worker is receiving, if the worker resigns, leaves Victoria, or reduces the hours worked for reasons unrelated to his or her incapacity or whose employment has been terminated for misconduct.[43]

64 Where the context of the enactment provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion will ordinarily be implied confined only by the scope and purposes of the legislation.[44]

65 In Drobis v Victorian WorkCover Authority,[45] Judge Rendit based his decision, that the court only had a limited right to review the insurer's determination to terminate payments, on the finding that the statute indicated an intention to confer a private right on the insurer. His Honour cited In re Gosling[46] as authority for that proposition where Jordon CJ stated 'It has been held that persons who have been invested by statute with authority to determine questions affecting the legal rights of subjects have the legal duty to act judicially unless the statute conferring the authority indicates that its depositary is to be at liberty to act at his own uncontrolled discretion, or that his act is to be of a purely executive character.'[47]

66 In Neat Domestic Trading Pty Ltd v AWB Ltd,[48] the High Court considered the ability to review a refusal by AWB (International) Ltd ('AWBI') to consent to the plaintiff's applications to bulk-export wheat. Under the Wheat Marketing Act 1989 (Cth), the Wheat Marketing Authority was established to control the export of wheat; and it was not permitted to consent to the bulk export of wheat without the permission of AWBI. AWBI refused the plaintiff's applications because its policy was not to approve such requests. The plaintiff contended that the refusal to consent was of an administrative character and that it was an improper exercise because it failed to give consideration to the merits of the application. The Full Court of the Federal Court found that AWBI was entitled to consider only its own interests.

67 The plaintiff's appeal to the High Court was dismissed.[49] The plurality, consisting of McHugh, Hayne and Callinan JJ, found that the decision by AWBI to refuse the applications was not of an administrative character and public remedies did not lie for the following reasons:[50]

(a) The roles of the Wheat Marketing Authority and AWBI under the Wheat Marketing Act, and in particular the fact that AWBI's decision was not made under the Wheat Marketing Act. The Act simply prevented the Wheat Marketing Authority from approving a request unless AWBI had consented in writing.

(b) AWBI was a private company not incorporated under the Wheat Marketing Act.

(c) It is not possible to impose public law obligations on AWBI while at the same time accommodating the pursuit of its private interests.

68 Gleeson CJ found that the decision to refuse was of an administrative character.[51] However, his Honour interpreted the Wheat Marketing Act as 'conferring on AWBI a right to export' and a 'practical monopoly on the bulk export of wheat, save to the extent [the Authority and it] are prepared to relax the monopoly'.[52] Accordingly, AWBI's policy of not approving any requests to export was not inconsistent with the Wheat Marketing Act. In other words, the inflexible policy of AWBI in preferring the interests of its grower shareholders to other growers was consistent with the Act under which its decision was made.

(a) the plurality found that the Wheat Marketing Act conferred a private right and therefore AWBI was not required to consider the 'merits' of the applications. Their Honours said:

once it is accepted that AWBI may consider its own commercial interests, a distinction between those interests, and what were said to be the 'merits' of an individual application for approval, cannot be drawn. As pointed out earlier, the 'merits' of an individual application are, for present purposes, those matters derived from the context of the 1989 Act and the subject matter, scope or purpose of the Act which are identified as bearing upon the decision. We have referred to these as 'public' considerations.[53]

(b) Gleeson CJ's opinion was that although the decision was reviewable, the plaintiff had failed to establish any reason why AWBI was not entitled to limit its consideration to its own interests.

70 I consider that Neat's case is authority for the proposition that, where the statutory intention can be so discerned, a power conferred by a statute can be a private right that entitles the entity or body on which the power is conferred to exercise the power in its own interests.

Conclusion on the nature of the discretion of the Authority or self-insurer

71 For the following reasons, I consider that the legislation confers on the Authority and self-insurers an entitlement not to resume weekly payments if the preconditions under s 114(2A) of the Act have been satisfied.

72 The discretion not to resume weekly payments is conferred on the Authority and self-insurers, who, as noted above, are the very entities responsible for making the weekly payments. It is doubtful that the decision of a self-insurer could be construed as being of an administrative character.[54] I consider the fact that the discretion is conferred on the Authority and a self-insurer is a strong indicator that Parliament intended to confer an entitlement. If the Parliament intended for the Authority or a self-insurer to exercise the discretion in the public interest, or balancing the interests of the worker and the insurer, it would hardly expect it to do so without regard to its own interests.

73 The words of s 114(2A), the legislative history and the Explanatory Memorandum indicate that the scope and purpose of the section is to confer on the Authority and a self-insurer an entitlement to refuse to resume weekly payments if a worker's earnings are reduced because of the circumstances specified in sub-ss 144(2A)(c), (d) or (e). In other words, the Authority or a self-insurer is not obliged to resume weekly payments in circumstances where it is the worker's conduct (as specified in the section) that causes his or her reduction in earnings.

74 This interpretation of 'may' conferring an entitlement means it should be interpreted consistently with the Authority or a self-insurer's cognate entitlement to terminate weekly payments pursuant to s 114(2), for example, when the worker is not entitled to weekly payments.

75 The legislation only provides the Authority or a self-insurer with the option of not resuming weekly payments and does not, for example, allow it to ameliorate the effect by, for example, resuming part of the worker's entitlement. I consider this is consistent with the conferring of an entitlement to refuse rather than the insurer being empowered to exercise a discretion for the purpose of reaching a 'fair' result in all the circumstances.[55]

Discretion only exercisable on satisfaction of preconditions

76 The fact that there are express preconditions to the exercise of the discretion is consistent with the legislative intention to confer a right, in this case, on the Authority or a self-insurer. This is similar to the entitlement identified in Finance Facilities Pty Ltd v Federal Commissioner of Taxation.[56] That case concerned s 46(3) of the Income Tax Assessment Act 1936-1968 (Cth), which effectively provided that the Commissioner may allow a shareholder a further rebate if the Commissioner was satisfied of certain conditions. The High Court held that, despite the use of the words 'may allow', if the Commissioner was satisfied of the pre-conditions set out in s 46(3)(a), he was obliged to allow a further rebate on the basis that, on a proper interpretation of the legislative provision, the right of the taxpayer to a rebate arising from facts 'objectively determinable is quite properly called an entitlement'.[57]

Scope of the inquiry by the Magistrates' Court under ss 39 and 43 of the Act

77 It was not suggested on behalf of the worker that, if the Authority or the self-insurer was entitled to have regard to its own interests in determining not to resume weekly payments, the court would have a residual discretion, on the hearing of an appeal under s 114(2A), to disregard those interests and reinstate weekly payments if the preconditions to the insurer's discretion to terminate had been satisfied.

78 In Finance Facilities, the entity 'entitled' to the benefit of the discretion was the taxpayer; and therefore the Commissioner, after satisfaction of the preconditions, was obliged to exercise any 'discretion' to the taxpayer's benefit. In the present case, the beneficiary of the entitlement is the insurer, which is empowered by the section to exercise the discretion. Accordingly, once the insurer exercises the discretion, the court on appeal cannot properly re-exercise the 'discretion' other than for the benefit of the insurer.

79 If the court was to reconsider the exercise of the 'discretion', the question arises as to what matters should be to be taken into account for the purpose of the reconsideration. In Finance Facilities, Windeyer J considered how the permission granted by use of the word 'may' might be circumscribed, saying:

While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given : it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. However, that general proposition is irrelevant in this case. Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?

This does not depend on the abstract meaning of the word 'may' but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events 'may' becomes a 'must'.[58]

80 To similar effect are the comments of Wilson, Deane and Gaudron JJ in Re Coldham; Ex parte Brideson, where their Honours said:

A legislative direction to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context (including the subject-matter to be decided) so necessitates as, e.g., where the context provides no positive indication of the considerations by reference to which a decision is to be made.[59]

(a) the legislative purpose of the provision was to provide the Authority or a self-insurer with the right to refuse to resume weekly payments; and

(b) the statutory preconditions to the exercise of the power have been satisfied; and

(c) the Authority or a self-insurer has decided to make the determination,

in most if not all circumstances, it would not be open to a court, on a hearing de novo, to exercise its discretion contrary to the legislative purpose.[60] The fact that 'if the circumstances are shown to exist there remains no room for the court to refuse to exercise the power at its discretion' has been well recognised by the courts.[61]

82 I should add that ss 39 and 43 of the Act do provide jurisdiction for the court to inquire into, hear and determine any question arising out of the decision of the Authority or insurer not to resume weekly payments. However, I consider that, if the preconditions are satisfied and the Authority or the self-insurer has decided to not to resume weekly payments, usually the court inquiring into the matter would only be able to properly exercise its discretion in the same manner as the Authority or a self-insurer.

83 Although I have decided that s 114(2A) of the Act confers an entitlement, I do not exclude the possibility that the discretion may be re-exercised by the court in limited circumstances. For example, intervention by the court may be appropriate where the decision not to resume weekly payments is capricious and is inconsistent with the objects and purpose of the Act.[62] An example may be where the worker is terminated for conduct which incidentally constitutes misconduct under employment terms.[63] Or, if the worker's employment would have been terminated regardless of the 'contractual misconduct', it may be arguable that not resuming weekly payments is not consistent with the object and purposes of s 114(2A). I express no concluded view because in this case the sole cause of the termination of the worker's employment was found to be his misconduct.

84 My conclusion that the Magistrate erred would normally require that the matter be sent back for reconsideration. However, as there was no issue between the parties that the preconditions of s 114(2A) of the Act had been satisfied, and the insurer has sought to exercise its entitlement, in my opinion there could be no basis for the court coming to any other conclusion but that the insurer was entitled not resume weekly payments. I will hear the parties on this question.

[1] In these reasons for judgment, I will refer to this as a determination not to resume weekly payments.

[2] These orders were sought by an amended statement of claim dated 3 December 2014.

[3] The Magistrate granted leave to the worker to further amend the amended statement of claim because those pleadings, as initially drafted, did not seek to have the Notice set aside.

[4] These sections were repealed from the Act in 2013 and are now provided for in similar terms under the Workplace Injury Rehabilitation and Compensation Act 2013.

[5] The Magistrate's finding on the first question was not challenged on this appeal.

[6] Masters v McCubbery [1995] VICSC 209; (1996) 1 VR 635, 643 (Winneke P).

[7] [1995] VicRp 14; (1995) 1 VR 209.

[9] Workers Compensation Act 1958 s 84(a) (as at 30 September 1958).

[10] Workers Compensation Act 1958 s 56(1).

[11] Bailey v Victorian Soccer Federation [1976] VicRp 2; [1976] VR 13, 16 (Gillard J) (citation omitted).

[12] Accident Compensation Act 1985 s 40(1)(a) (as at 30 July 1985).

[13] [1996] VicRp 6; [1996] 1 VR 49.

[16] [1997] VCC 38, 6 of 14.

[17] [1987] VCC 40, 11 of 37.

[18] Unreported, County Court of Victoria, Judge Higgins, 28 June 1996.

[19] Ibid 6 quoting Phillips v The Commonwealth [1964] HCA 22; (1964) 110 CLR 347, 350 (Kitto, Taylor and Owen JJ).

[24] [1996] VCC 10.

[26] Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270, 279 [17] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).

[27] [1976] HCA 62; (1976) 135 CLR 616, 621.

[28] [1979] FCA 47; (1979) 26 ALR 18, 31-2 (Deane J with whom Muirhead and Lockhart JJ agreed).

[29] See Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 621 (Mason J).

[30] [2004] VSCA 200 [15].

[31] Accident Compensation Act 1985 s 3(d).

[32] [1968] VicRp 9; [1968] VR 72, 80 quoted with approval by Gillard J in Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322 [22]-[23]. See also Georgoussis v Medical Board of Victoria [1957] VicRp 98; [1957] VR 671, 678 (Smith J).

[33] [2002] VSC 322 [78]. At [79]-[82], Gillard J quotes with approval Georgoussis v Medical Board of Victoria [1957] VicRp 98; [1957] VR 671, 679; Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62, 104 (Evatt J); Re Hodgekiss [1962] SR (NSW) 340 (Owen J). See also Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 437 [53] (Warren CJ, Maxwell P and Osborn AJA).

[35] Accident Compensation Act 1985 s 5 (as at 24 March 2010).

[36] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 1992, 309 (The Honourable P A Gude, Minister for Industry and Employment).

[37] Accident Compensation Act 1985 (version no 159C incorporating amendments as at 24 March 2010) (emphasis added).

[38] Peter Hanks QC, 'Accident Compensation Act Review - Final Report', August 2008, 207.

[39] Ibid. However, Hanks QC also noted that according to the data, the notional earnings provisions were only used in exceptional circumstances (less than 1% of workers in 2007).

[42] See Accident Compensation Amendment Act 2010 s 45(2). See also 'Government Response to Hanks Report' (17 June 2009) Accident Compensation Review, accessed at http://www.compensationreview.vic.gov.au/, recommendation 44.

[43] Explanatory Memorandum, Accident Compensation Amendment Bill 2009, 37 (emphasis added).

[44] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan and Gaudron JJ).

[46] [1943] NSWStRp 20; (1943) 43 SR (NSW) 312.

[48] [2003] HCA 35; (2003) 216 CLR 277 ('Neat's case').

[49] Gleeson CJ, McHugh, Hayne and Callinan JJ (Kirby J dissenting).

[50] Neat's case [2003] HCA 35; (2003) 216 CLR 277, 297 [51].

[54] Neat's case [2003] HCA 35; (2003) 216 CLR 277, 297 [51].

[55] See DPP v Le [2007] VSCA 18; (2007) 15 VR 352, 358 [16].

[56] [1971] HCA 12; (1971) 127 CLR 106 (Barwick CJ, Windeyer and Owen JJ; McTiernan J dissenting) ('Finance Facilities').

[59] [1989] HCA 2; (1989) 166 CLR 338, 347 (citations omitted).

[60] The conclusion that s 114(2A) of the Act confers on the Authority and self-insurers an entitlement not to resume weekly payments, if the relevant preconditions under s 114(2A) have been satisfied, in effect arrives at the same conclusion, by another means, as in the County Court decisions referred to in [41]-[43] above. Those decisions also found that the power of the court, under ss 39 and 43 of the Act, to reconsider the discretion to terminate weekly payments under s 114 of the Act was more limited than on other inquiries.

1. [61] WorkCover Authority (NSW) v Picton Truck & Trailer Repairs Pty Ltd (De-registered) [2004] NSWCA 371; (2004) 51 ACSR 102, 109 [24] (Sheller JA with Mason P and Ipp JA agreeing) referred to with approval in AMP General Insurance Ltd v Victorian WorkCover Authority [2006] VSCA 236; (2006) 15 VR 175, 179 [19] (Maxwell P and Neave JA). See also Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, 88; Liddell v Lembke (1994) 127 ALR 342, 359, 367.

[63] See, eg, Gleeson v SPI Electricity Pty Ltd [2014] VWC 19 (Magistrate Garnett).