Richard Alexander v Gorey & Cole Holdings Pty Ltd [NTCA]

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Martin CJ,Mildren,Bailey JJ
• Judgment Date: 02 October 2002
• Date: 02 October 2002
• Docket Number: FILE NO: AP10 2001

[2002] NTCA 7

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Martin CJ, Mildren & Bailey JJ

FILE NO: AP10 2001

Between:

Richard Alexander

Appellant

and

Gorey & Cole Holdings Pty Ltd

Respondent

REPRESENTATION:

Counsel:

Appellant: JB Waters QC

Respondent: PM Barr

REASONS FOR JUDGMENT

(Delivered 2 October 2002)

THE COURT:

1 The appellant commenced employment with the respondent in July 1993. He was employed as a driller's offsider. In August 1993, the appellant sustained an injury to his lower back whilst in the course of his employment with the respondent. The appellant made a claim for compensation in accordance with the provisions of the Work Health Act (the Act) in September 1993. The appellant's claim was accepted by the respondent and the appellant was paid compensation on the basis that he was totally unfit for any employment.

2 On 6 May 1997, the appellant recommenced employment with the respondent under a workplace based return to work program established pursuant to s 75B of the Act. On 27 May 1997, the appellant advised the respondent's representative that he would not continue with that program. On the same day, the employer's insurer served on the appellant a Form 5 Notice in purported compliance with s 69(1)(a) of the Act, cancelling the appellant's weekly benefits on the basis that the appellant was no longer totally incapacitated for work as the result of his injury, and on the further basis that the appellant had unreasonably failed to participate in the work based return to work program which would have enabled him to return to fulltime duties.

3 Thereafter, the appellant commenced proceedings in the Work Health Court (proceeding No 9714757) appealing the respondent's decision to cancel his benefit. The respondent filed an answer to the worker's appeal as well as a ‘cross — application’ in which the respondent sought an order that the appellant ceased to be totally incapacitated for work since at least May 1996, a declaration that the service of the Form 5 Notice ‘was a valid cessation of weekly payments’ and an order to the effect that the appellant ceased to be entitled to payments of compensation ‘at least at the time of service of the Form 5 Notice dated 27 May 1997’.

4 On 19 April 1999, the appellant's application was amended but did not raise any new issues. On 2 June 1998, the respondent filed an amended answer and an amended cross — application. In the amended answer and proposed amended cross — application, the respondent sought to raise the failure of the appellant to participate in the workplace based return to work program and the deeming provisions of s 75B(2) of the Act. The learned Magistrate refused to allow the proposed amended answer and cross–claim with the result that the original answer and cross–claim remained on foot. It is to be noted that prior to 1 August 1999 the Work Health Court's Rules did not permit the filing of a cross–claim.

5 On 4 June 1999, the respondent lodged a separate application of its own in the Work Health Court in which the subject of the failure to participate in the workplace based return to work claim was addressed. That application was purportedly filed in proceeding No. 9714757.

6 On 15 June 1999 the hearing of the appellant's appeal in proceeding No 9714757 commenced. The Court disallowed the respondent's cross–claim and refused to hear the respondent's claim purportedly filed in the same proceedings. The hearing of the appellant's appeal continued until 17 June 1999 when it was adjourned on the application of counsel for the respondent due to the late discovery of the appellant's diary for 1997.

7 On 14 July 1999, the respondent lodged a second application in proceeding No 9916566. In this application the respondent raised again the question of the workplace based return to work program and reliance was placed upon s 75B(2) of the Act. The relief sought in that proceeding was as follows:

18. The employer seeks a ruling under s 104(1) Work Health Act read with s 94(1)(a) Work Health Act to the effect that the worker is deemed by s 75B(2) Work Health Act to be able to undertake permanent light duties employment with the employer earning not less than $500.00 per week, on the ground that he unreasonably failed to participate in the workplace based return to work program provided by the respondent.

19. The employer seeks a further ruling under s 104(1) Work Health Act read with s 94(1)(a) Work Health Act to the effect that the cancellation of compensation pleaded in paragraph 17 hereof was valid.

20. In the alternative to paragraph 19 hereof, the employer seeks an order under s 104(1) Work Health Act read with s 94(1)(a) Work Health Act for cancellation or reduction of the worker's compensation for the purposes of s 69(1)(d) Work Health Act.

21. Further, or in the alternative, the employer seeks a ruling as to the extent of the worker's incapacity (if any) from 10 June 1997 to the present and ongoing and consequential orders as to cancellation or reduction as the case may be of compensation payable to the worker.

8 On 27 October 1999, the appellant filed an answer to proceeding No 916566. In addition to joining issue with the substantive allegations of fact raised in the Statement of Claim the appellant pleaded:

13. The Worker denies that the Employer is entitled to the relief claimed at paragraphs 18, 19, 20 and 21 of the Statement of Claim and in particular, in the absence of the Employer's compliance with section 69 of the Work Health Act.

14. The Worker says that he, at all times, has been totally incapacitated for work as defined in section 65 of the Act. Should that not be found to be so, then the Worker alleges that he has been partially incapacitated from some time prior to May 1997 and that such partial incapacity rendered him, by virtue of the factors as set out in section 68 of the Work Health Act, totally incapacitated.

15. The Worker further says that in the event that the Employer is entitled to bring this further Application (which is denied) that any orders that could be made would be subject to the Employer's obligation to comply with the provisions of section 69(1) of the Work Health Act and in any event, could not apply retrospectively to payments made to the Worker or to which he would otherwise be entitled.

16. The Worker seeks that the Application be dismissed and the Employer pay his costs of and incidental to these proceedings.

9 On 27 October 1999, the Work Health Court ordered that proceedings 9714757 and 9916566 be ‘joined and heard at the same time’.

10 The hearing of both matters commenced, or recommenced, in the Work Health Court on 6 December 1999. It appears that by consent of the parties, the evidence of the witnesses previously given in proceeding 9714757 was treated as if it had been given in respect of both proceedings. At the conclusion of the hearing, the learned Magistrate reserved her decisions.

11 On 29 September 2000, the learned Magistrate pronounced judgment in both matters and published separate reasons for decision. In relation to the appellant's appeal in proceeding 9714757, her Worship found that the employer had established that it was entitled to cancel the appellant's weekly compensation payments because:

• (a) she found that, despite his disabilities, the appellant was capable of earning more than $420 per week ($412.50 was the indexed normal weekly earnings of the appellant as at the relevant date) in employment with another employer during the period 6 August to 15 August 1997; that he was capable of doing that work on a permanent basis and that his reason for leaving it was because of a conflict with his new employers ‘as regards the conditions of employment and the hours he was working rather than any physical difficulty …’. These findings were based on the appellant's 1997 diary which had not been disclosed to the respondent until the hearing in June 1999.

• (b) she found that the appellant failed to participate in the return to work program; that his failure was unreasonable and that s 75B(2) of the Act deemed him to be capable of undertaking the potential employment which the program had in mind for him. Her Worship held that the Form 5 Notice was validly given and therefore she dismissed the appeal.

12 In relation to the employer's application in proceeding 9916566, her Worship referred to her findings in relation to proceeding 9714757. As to the findings relating to the diary, she said that she was satisfied that the appellant was not totally incapacitated. There is no finding as to the level of the worker's partial incapacity (if any). Further, the learned Magistrate found that by reason of the worker's unreasonable cessation in participating in the workplace based return to work program, the compensation payable to the appellant was nil.

13 It does not appear whether or not there were any orders taken out by the Registrar of the Work Health Court following the judgments delivered by her Worship, but it is asserted that they were not and the respondent did not deny this assertion.

14 On 15 November 2000, a consent order relating to the costs of the proceedings in the Work Health Court was made as follows:

• 1. In relation to proceedings numbered 9714757 the worker to pay the employer's costs of and incidental to the proceeding to be agreed or taxed.

• 2. In relation to proceedings numbered 9916566 the parties bear their own costs.

15 The appellant appealed to the Supreme Court from both decisions given by the learned Magistrate. Although there were a large number of grounds at the hearing of the appeal, as best as we can deduce from the judgment appealed from, the grounds were limited to the following (which we have paraphrased):

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