Anthony Paul Schell v Northern Territory Football League [NTLR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Martin CJ,Mildren,Thomas JJ
• Judgment Date: 03 May 1995
• Docket Number: No. AP5 and AP6 of 1995
• Date: 03 May 1995

Anthony Paul Schell

and

Northern Territory Football League

Northern Territory Football League

and

Anthony Paul Schell

(1995) 5 NTLR 1

Martin CJ, Mildren and Thomas JJ

No. AP5 and AP6 of 1995

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Workers' compensation — Work Health Act s 87

ORDER

Special case questions re-answered.

JUDGE1

1 Martin CJ, Mildren and Thomas JJThe appeal and cross-appeal in this matter raise for consideration of this Court the proper interpretation to be given to s.87 of the Work Health Act. Following an amendment to that section by Act No. 78 of 1993, the section now reads:

‘87. FAILURE TO DECIDE WITHIN SPECIFIED PERIOD. Where, within the times specified in Section 85, an employer does not comply with that section, the employer shall, until such time as the Court orders otherwise, be deemed to have accepted liability for the compensation claimed in so far as the claim is in respect of compensation payable under Subdivisions B and D of Division 3.’

2 The matter originally came before a single judge of this Court, Kearney J, as a special case pursuant to s.115 of the Act.

3 The facts and legal consequences giving rise to the questions of law may be summarised as follows. The worker, Schell, was employed by the employer, Northern Territory Football League, as an umpire at various times between 1981 to 1992. On 18 February 1994, the worker submitted a claim form for worker's compensation to the employer. On 8 March 1994, the worker submitted a workers compensation medical certificate in the prescribed form to the employer. Consequently, the worker was deemed by s.82(2) of the Act to have made his claim for compensation on 8 March 1994. The employer failed to either accept, defer acceptance or dispute liability within 10 working days thereafter as required by s.85(1) and was therefore deemed by s.87 to have accepted liability for the compensation claimed. The employer purported to reject the claim on 21 April on the grounds that the injury did not arise out of or in the course of the worker's employment. On 23 May 1994 the worker lodged an application to the Work Health Court for weekly benefits, and medical, hospital, surgical and rehabilitation costs. On 10 June 1994 the employer lodged an application for an order that the employer no longer be deemed to have accepted liability for the compensation claimed. This application was supported by various affidavits, the precise nature of which has not been explained, but which presumably raised the factual grounds upon which the employer intended to rely in support of its application. On or about 29 June 1994 at a preliminary conference held pursuant to s.106 of the Act, the court ordered that the employer's application be joined with the worker's application, and the employer's application was to be set down for hearing at a date to be fixed by the list clerk. The list clerk fixed the employer's application for hearing on 16 August 1994. At the hearing, counsel for the employer submitted that the deemed admission of liability could be set aside by the court at that hearing based on the affidavit evidence. Counsel for the worker submitted that no such order could be made until the employer established at a substantive hearing, the burden being on it, that it was not liable to pay the worker the compensation claimed. In order to resolve that question the learned magistrate submitted a special case, which Kearney J answered as follows:

QUESTION 1

Does the Work Health Court, pursuant to Section 87 (as amended) of the Work Health Act, have the power to order that an Employer may deliver a Form 5 notice disputing liability pursuant to Section 85(1)(c) after the time limits specified in Section 85 have expired.

ANSWER

NO

QUESTION 2(a)

Does Section 87 of the Work Health Act give the Employer a right to make an application to the Work Health Court for an order under that Section permitting it to deliver a Form 5 notice after the time limits specified in Section 85 have expired and if so under what section of the Work Health Act may the Employer bring such an application and how is such an application made.

ANSWER

NO

QUESTION 2(b)

Can the application be dealt with as a preliminary issue supported by affidavit evidence or must it be dealt with at a substantive hearing.

ANSWER

NO — The application must be dealt with at a substantive hearing of the worker's claim.

QUESTION 3

If yes to question 1, what factors should influence the exercise of the Court's power in so permitting an Employer to deliver a Form 5 notice after the time limits specified in Section 85 have expired.

ANSWER

Not Applicable.

QUESTION 4

Can the Employer rebut the deeming effect of Section 87 (as amended) by establishing that:

(a) there is a serious question to be tried;

(b) the balance of convenience is in favour of the Employer not making payment of compensation pending the hearing of a claim to be made by the Worker;

(c) its failure to comply with s.85 was due to inadvertence or mistake?

ANSWER

NO

The matters relevant to the exercise of the Court's discretion to ‘order otherwise’ under s.87 will vary from case to case.

QUESTION 5

For an Employee (sic Employer) to rebut the deeming effect of s.87 is it necessary for an Employer to prove on the balance of probabilities that, subject to the deeming provision of s.87, he is not liable for the claim? That is, must the Employer prove that the basis on which liability would have been rejected had liability been disputed to s.85 excludes him from liability.

ANSWER

NO

QUESTION 6

What is the meaning of the words ‘until such time as the court orders otherwise’ appearing in s.87 as amended of the Work Health Act?

ANSWER

They have the effect that an employer deemed to have accepted liability for compensation under s.87 remains liable until it succeeds in an application under s.104(1) of the Act, to be heard as a preliminary issue in a hearing of the worker's claim for compensation, in obtaining an order from the Court that it is now no longer deemed to be so liable; if the employer's application succeeds the hearing...