Judith Davison v Totalizator Administration Board [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Gallop J.
• Judgment Date: 24 August 1988
• Docket Number: No. A 274 of 1988
• Date: 24 August 1988

(1988) 56 NTR 8

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Gallop J.

No. A 274 of 1988

Judith Davison

and

Totalizator Administration Board

Counsel for the Worker: G. Hiley QC

Counsel for the Employer: T. Riley

Case considered:-

Western Australian Coastal Shipping Commission and Stevedoring Employers of Australia Ltd v Wallner (1979) 26 ALR 591

Case followed:-

Sargood Bros v The Commonwealth (1910) 11 CLR 258

Cases referred:-

Truswell v Woods (1898) 24 VLR 742

Attorney-General v Sillem (1864) 10 HLC 724

Edgar v Pennell (1958) VR 450

Thiess Bros Pty Ltd v Carbone and Anor (1976) 15 ACTR 15

Anchor Donaldson Limited v Crossland (1929) AC 297

Statutes:-

Work Health Act 1986, ss.64, 65, 67, 69, 80, 82, 84, 85(2), 85(3), 85(9), 87, 91, 95, 104, 111, 112, 115, 118

Work Health Court Rules r.13, 14

Worker's Compensation Ordinance 1949, s.7A (repealed)

Workers' Compensation — cancellation or reduction of weekly payments — right of appeal to the Work Health Court — avenue of appeal.

Practice and Procedure — stated case — limits to the questions of law to be raised by stated case — refusal to express an abstract opinion on questions not squarely arising.

ORDER

Orders are the employer pay the worker's costs of the proceedings in the Work Health Court and the costs of the stated case in this Court.

JUDGE1

1 This is a special case stated from the Work Health Court pursuant to s.115 of the Work Health Act 1986 (the Act). The terms of the special case as amended are:

1. The worker was employed by the employer as an operations supervisor from 22nd October 1985.

2. On 7 April 1987 the worker was certified as being unfit for work by Dr. Richard Giese.

3. By letter from the insurer of the employer dated 13 May 1987 the worker was advised that the employer accepted liability for the payment of weekly benefits under the Work Health Act (‘the Act’).

4. Some short time after 13 May 1987 the employer commenced to pay weekly benefits under the Act.

5. On 28 May 1987 the worker was examined by Dr. A.F. Bromwich who provided a medical report dated 29 May 1987 to the employer's insurer.

6. On 23 July 1987 the worker was examined by Dr. A.F. Bromwich who provided a medical report dated 24 July 1987.

7. On 19 August 1987 the worker was examined in Brisbane by Dr. Martin Devereaux who provided a medical report dated 9 November 1987.

8. On 5 November 1987 the worker was examined by Dr. A.F. Bromwich who provided a medical report dated 6 November 1987.

9. By letter dated 10 November 1987 and by notice under regulation 13 of the Regulations under the Act, the employer purported to cancel the weekly payments paid to the worker. The said cancellation was purportedly made pursuant to s.69 of the Act.

10. On 25 November 1987 the worker was examined in Brisbane by Dr. Martin Devereaux who provided a medical report dated 17 December 1987.

11. On 26 November 1987 the worker was examined in Brisbane by Dr. S. Coleman who provided a medical report dated 7 December 1987.

12. The worker, by her solicitors, made an application dated 2 December 1987 to the Work Health Court pursuant to ss.69 and 111 of the Act. The said application was returnable before the Work Health Court on 30 December 1987.

13. No answer was filed or served in response to the said application.

14. On 30 December 1987 the application came on before the Work Health Court. The appeal (sic) was allowed pursuant to Rule 14 of the said Rules.

2 The Court ordered as follows:-

(1) The appeal (sic) be allowed. The respondent to pay compensation payments in the sum of $333–00 gross per week commencing on and from 28/11/87 and continuing.

(2) The respondent pay section 73 expenses in the sum of $2,224–45.

(3) Applicant to have her costs, those costs to be as taxed or agreed. Certified the matter was proper for the attendance of Counsel.

15. By application dated 15 January 1988 to the Work Health Court the employer sought to have the determination of 30 December 1987 set aside pursuant to Rule 17 of the Work Health Rules.

16. The said application was served on the worker's solicitors on 27 January 1988 and made returnable on 28 January 1988.

17. On 28 January 1988 the said application came on for hearing before the Work Health Court. At the outset of the hearing Counsel for the employer raised an objection to the validity and existence of the worker's right to make any appeal under the Act against the employer's decision to cancel weekly payments under s.69 of the Act. Counsel for the worker raised an objection to the validity of the employer's determination to cancel weekly payments.

18. The questions raised for consideration by way of special case stated are as follows:-

(a) Do any or all of the statutory requirements of ss. 61, 68, 75 and 76 of the Act have to be complied with by an employer before the employer can cancel the worker's weekly payments? If so, which section or sections?

(b) Must the employer specify the consideration it has given to the matters outlined in ss.61, 68, 75 and 78 of the Act in the reasons it is obliged to give the worker under s.69 of the Act?

(c) Does the worker have a right to appeal against or make application to the court in respect of the decision of the employer to cancel weekly payments under s.69(c) and (d) of the Act?

(d) If the worker does have a right to appeal or apply to the Work Health Court;

(i) what is the nature of the appeal or application to the Work Health Court?

(ii) pursuant to what section of the Act may such application be made?

(iii) is there a time limit for such application?

(iv) should the application be dealt with by the court in interlocutory proceeding or final determination?

(v) should the application be dealt with by the court in a formal or informal way?

(e) In considering such an application, what factors ought to be considered by the court or in particular should the court have regard to any of the following considerations?

(i) any or all of the requirements of s.61, s.68, s.65, s.75 and s.76 of the Act;

(ii) matters subsequent to the decision by the employer to terminate or reduce payments for service of the notice or the institution of the application.

(f) If there is no appeal or application available to the worker, or such appeal or application is refused, then:

(i) is the effect of the cancellation or the refusal of the appeal a final determination of the worker's right to compensate (sic)?

(ii) if it is not a final determination, then, in the case of the refusal of an application, what right does the worker have to bring his claim for compensation before the court for a final determination?

3 It is to be noted from the special case that what gave rise to the case being stated was an application by the employer to have the determination of 30 December 1987 set aside pursuant to R.17 of the Work Health Court Rules made pursuant to s.95 of the Act.

4 As further stated in the case the worker's application came on before the Work Health Court on 30 December 1987 and in the absence of any appearance or answer filed on behalf of the employer, the application was determined against the employer pursuant to R.14 of the said Rules.

5 Rule 17 provides that a determination as the result of an application under R.14(5) may be set aside by the Work Health Court on such terms as to costs or otherwise as it thinks fit.

6 When the application to set aside the determination came on on 28 January 1988 the employer raised an objection to the validity and existence of the worker's right to make any appeal under the Act against the employer's decision to cancel weekly payments under s.69 of the Act. It was in those circumstances that the Work Health Court agreed to state the special case to this Court.

7 Section 69 of the Act reads:

‘69. BENEFITS NOT TO BE ALTERED EXCEPT AFTER NOTICE

Subject to this Subdivision, except where -

(a) the person receiving it;

(i) ceases to be incapacitated; or

(ii) dies; or

(b) the payments of compensation were obtained by fraud of the person receiving them or by other unlawful means, an amount of compensation under this Subdivision shall not be cancelled or reduced unless the worker to whom it is payable has been given -

(c) 14 days notice of the intention to cancel or reduce the compensation and, where the compensation is to be reduced, the amount to which it is to be reduced;

(d) a statement in the prescribed form setting out the reasons for the proposed cancellation or reduction and indicating that the worker has a right to appeal against the decision to cancel or reduce the compensation.’

8 Central to the questions raised by the special case is the true operation of s.69 of the Act. That this was the central issue before the Work Health Court is reflected in questions 18(c), (d) and (f) of the special case. However, the special case raises questions for consideration which arguably did not arise on the hearing of the application before the Work Health Court on 28 January 1988.

9 It is important to note that the power of the Work Health Court under s.115 of the Act to reserve a question of law for the consideration of this Court only applies to a question of law arising out of a proceeding under the Act. It is not appropriate to seek this Court's advice on questions which have not squarely arisen out of the proceeding in the Work Health Court. Indeed, there is no power under the Act to reserve a question of law for the consideration of this Court which arises otherwise than out of the proceeding in the Work Health Court.

10 In my opinion this Court should not express an abstract opinion but should only answer such questions submitted to it as are necessary to dispose of the proceeding before the Work Health Court — Truswell v Woods (1898) 24 VLR 742.

11 It is necessary to construe s.69 in its overall context. The Preamble to the Act states that it is an Act ‘to promote occupational health and safety in...