[oO - Workmen's compensation - Discontinuance of weekly payments -— Application to Tribunal - Disputed claim - Liability to make interim payments of compensation - Evidence of acceptance of liability. Statutory interpretation - Relevance of legislative history - Penal provision ~ Creation of civil raght - Meaning of "due under this Ordinance" ~ Workmen's Compensation Ordinance (N.T.). The Western Australian Coastal Shipping Commission and Stevedoring Employers of Australia Limited v- Alphonse Wallner. No. 3 of 1979. Coram : Brennan,Gailop and Lockhart JJ. Date : 4 October 1979. Canberra, IN THE TEDSRAL COURT NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION OF AUSTRALTA No. 3 of 1979 ee ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA THE WESTERN AUSTRALIAN COASTAL SHIPPING COMMISSION AND STEVEDORING EMPLOYERS OF AUSTRALIA LIMITED Appellants (Plaintiffs) BETWEEN ALPHONSE WALLNER Respondent (Defendant) AND ORDER JUDGES MAKING ORDER DATE OF ORDER WHERE MADE Brennan, Gallop and Lockhart JJ. 4 October 1979. Canberra. THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs of the appeal. ~~ IN THE FRDEVAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) Wo. 3 of 1979 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BE'TWEEN THE WESTERN AUSTRALIAN COASTAL SHIPPING COMMISSION AND STEVEDORING EMPLOYERS OF AUSTRALIA LIMITED Appellants (Plaintiffs) ALPHONSE WALLNER Respondent (Defendant) AND CORAM : Brennan, Gallop and Lockhart JJ. 4 October 1979 REASONS FOR JUDGMENT BRENNAN J: The appellants (whom I shall call the employers) were the respondent parties to a claim made by the respondent (whom I shall call the workman) for compensation under the Workmen's Compensation Ordinance(N.T.). The claim was commenced on 11 October 1978 by filing an application with the Registrar of the Workmen's Compensation Tribunal in accordance with the Tribunal's Rules. The Statement of 2/2 a Claim alleged inter alia that at all matecial times the workman was employed by the employers as a wharf labourer, and that he sustained personal injury by accident whilst in the course of his employment on 28 March 1974, The employers' Answer to the Statement of Claim put these allegations in issue. In November 1978, the workman took out an interlocutory summons calling upon the Western Australian Coastal Shipping Commission to appear before the Tribunal or a member in chambers on an application which the workman intended to make. Whether this procedure, which accorded with Rule 25 of the Tribunal's Rules, was the appropriate way to invoke the Tribunal's jurisdiction is by no means clear, but the parties concurred in it. The resultant order was described and accepted as having been made by the Tribunal. Although the summons was directed to but one of the employers, both appeared by counsel and the order was made against both. Counsel for the employers disavows any objection to the proceedings in respect of the joinder of parties. The workman sought an order that the first employer "pay weekly payments of compensation to the applicant worker at the rates set out in the Workmen's Compensation Ordinance 1949 as amended from the date when it discontinued weekly payments 15th September 1978 until the date of the hearing of this matter" and an order for costs of his application. --/3 a3 Ia support of his application, he filed an affidavit and deposed: "2. I received weekly payments under the Workmen's Compensation Ordinance from the first respondent from the 28th day of March, 1974 until the 15th day of September, 1978. 3. The first respondent discontinued the said weekly payments on or about the 15th day of September, 1978 and to the best of my knowledge, information and belief such discontinuance was not in accordance with the said Ordinance, an Act or determination of the Tribunal." The terms of this affidavit reflect the terms of s.7A of the Ordinance, upon which the workman based his application. That section was the foundation for the submissions made on his behalf before the Tribunal, on appeal before the Supreme Court of the Northern Territory, and before this Court. The section reads: "7A. (1) An employer shall not, except in accordance with this Ordinance, an Act or determination of the Tribunal, discontinue, withhold or diminish a weekly or other payment due under this Ordinance to a person. Penalty: 100 dollars. (2) The onus of proving that a weekly or other payment was discontinued, withheld or diminished in accordance with this Ordinance, an Act or a determination of the Tribunal shall be on the employer. " On 17 November 1978 the Tribunal, accepting the substance of the workman's submissions, made "an interim award of compensation in favour of the applicant" and it ordered: ee /4 ~ ae sere "1. that the respondents pay weekly payments of compensation pursuant to the provisions of the Workmen's Compensation Ordinance 1949 (as amended) to the applicant ALPHONSE WALLNER from the 15th day September 1978 to the date of this interim award and thereafter from week to seek until further order; 2. that payment of arrears be made within 7 days of today; " Despite the delphic terms in which the order was made, the employers sufficiently understood the order to require them to make certain payments to the workman thereafter, and they did so. They appealed against the order to the Supreme Court of the Northern Territory where Forster C.J. dismissed the appeal wath costs, and they now appeal to this Court against his Honour's order. After the appeal to this Court was instituted, but before it was heard, the workman's claim for compensation was heard and determined by the Tribunal. It is common ground that the Tribunal made a determination in favour of the workman, awarding him compensation both retrospective and for the future, covering the period referred to in the order of 17 November 1978 ("the November order"), and awarding compensation 1n an amount greater than the amount paid to him by the employers consequent upon the making of the November order. An appeal against the award has been instituted and is pending. Apart from the orders for costs made against the employers (which they seek to have set aside in this 22/5 appeal), the effect of the November order may, on one view, be merged in the Tribunal's later award. So long as that award stands, the resolution of this appeal cannot affect the workman's entitlement to retain the moneys paid to him consequent upon the November order, but if that award should be set aside, a question might arise as to whether the November order affects the workman's entitlement to retain those moneys. It would not be appropriate to determine at this stage an appeal against the November order if the determination of the appeal would not affect the rights and liabialaties of the parties (see Sun Life Assurance Co. of Canada v. Jervis [1944] A.c.111) but the determination of this appeal will determine the entitlement of the workman to the costs ordered to be paid to him and that is sufficient to warrant the hearing and determination of the appeal. Section 7A is a penal provision. The employer is prohibited, under penalty, from engaging in the conduct which sub-section (1) specifies. It does not in terms create a civil liability enforceable for the beneFit and at the suit of a workman. Its terms may be contrasted with the sections of the Ordinance which impose upon an employer a liability to pay compensation, and which confer upon a workman a reciprocal right to receive 1+ (cf. ss. 7, 8, 9 and 11). It is nevertheless a provision - -/6 which is calculated to ensure that an employer pay money to a workman, and it is a question of legislative intent, to be inferred from the section in the light of all its surrounding circumstances whether a corresponding civil right is conferred upon the workman. (Sovar v. Henry Lane Pty.Ltd. (1967) 116 C.L.R.397 at pp.404,405; Atkinson v. Newcastle Waterworks Co. [1877] 2 Ex.D.441 at p.448). At first sight, s.7A appears to confer upon the workman (or other beneficiary) a right to the payments which the section requires the employer to make. In the employers' submission, however, s.7A does not give rise to a civil right to the payments therein mentioned. The employers' submission would find the employers' civil liabilaty to make those payments in other provisions of the Ordinance; and their submission is that the workman must rely on those other provisions alone as the charter of his rights. This submission rests upon the phrase "payment due under this Ordinance to a person" which is said to limit the operation of s.7A toa payments which an employer is required to make pursuant to other provisions of the Ordinance. This construction would deny any effect to s.7A save the imposition of a criminal penalty as a sanction to secure the payment of moneys due to a workman under other provisions of the Ordinance. The section, thus eee/7 ~ construed, would have some work to do: it would enhance the remedies to protect the workman's rights, though it would not extend those rights. The question in issue in this appeal is whether s.7A extends the workman's rights, as well as protecting them. This was the effect judicially accorded to the statutory antecedents of s.7A, in the United Kingdom and in Victoria, and the workman submits that it is the effect which ought to be accorded to s.7A, having regard not only to its textual similarities to sections in the United Kingdom and Victorian Acts, but also to its legislative history in the Ordinance itself. In the United Kingdom, s.14 of the Workmen's Compensation Act 1923 and s.12 of the Workmen's Compensation Act 1925 each provided: "an employer shall not be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment" except in certain specified cases, including a case where the workman returned to work and a case where it was established that the incapacity due to his compensable injury had ceased. It was held that this provision entitled the workman to continue to receive the weekly payment which he had been receiving even though it is subsequently ascertained that he was not so entitled. The purpose of these provisions was stated by Lord Buckmaster in Anchor Donaldson,Ld. v. Crossland [1929] A.C.297 at p.302: ---/8 "Its purpose is, to my mind, plain. Lt is to secure that 1f weekly payments are, in fact, being made to a workman, they shall not be ended apart from agreement or arbitration except in the cases that are specified." His Lordship referred to the judgment in Ocean Coal Co. v. Davies [1927] A.c.271 showing that the workman's rights were extended by this provision during the period when the workman's entitlement to compensation remained in dispute and undetermined. He said (at p.303): "The basis of this judgment was that there was no obligation to pay after incapacity had admittedly ceased, but it does not affect the question of the liability to pay during the period when the question as to incapacity is in dispute. Lord Wrenbury, in his judgment, stated (p.294) that the rights under s.14 were as follows: 'It creates in the employer an obligation to pay de facto whether he is de jure liable or not until the liability de jure 1s determined.' And Lord Carson said (on p.297): "Pending an agreement or an arbitration, an employer is not entitled to end weekly payments under the Act of 1906, and probably 1f£ the employer, contrary to the section, did end such payments the workman would be entitled to put the law in motion to recover such payments, and the Courts would have power to insist upon such payments, either to the workman or, if the anterests of justice so required, into Court, pending the determination of the arbitration.' " The Victorian provision, s.14 of the Workers Compensation Act 1953 was accorded a like operation in Edgar v. Pennell [1958] V.R.450. The Victorian section --./9 s provided a penalty, yet its effect was similar to the English sections. O'Bryan J. said at p.454: " Although clause 7 is not couched in precisely the same language as the English s.i2 and although there are other differences in the two Acts I think I should hold in accordance with these decisions that the obligation cast upon the employer to continue weekly payments (except as provided by paragraph (1) of clause 7) is an obligation which can be enforced not only by the penal provisions of paragraph (2) but also if the worker commences proceedings for an award under the Act, by an interim award for the continuance of the weekly payments pending the determination of the claim, if the Board sees fit to make such an interim avard. The presence of the penal provisions in paragraph (2) of clause 7 does not in my Opinion lead to the conclusion that the obligation cast on the employer to continue weekly payments does not carry with it a co-relative right in the worker to their continuance. " These cases would arguably apply to s.7A in the form in which it stood when it was first introduced in 1970. Section 7A(1) then read: "An employer shall not, except in accordance with this Ordinance or a determination of the Tribunal, discontinue or diminish a weekly payment of compensation to an injured workman. Penalty: One hundred dollars. " But in 1974 the present provision was substituted for the original s.7A. The amendment appears, clearly enough, be designed to extend the ambit of s.7A: 1t is made to apply to payments other than weekly payments, it proscribes --./10 ~ 10. the withholding of payments as well as the discontinuance or diminution of payments, and it is made to apply to Payments due to persons other than an injured workman. While extending the ambit of the section, however, the 1974 amendment antroduced a concept which 1s not expressed in the English or Victorian provisions — the concept that the payment which is not to be discontinued, withheld or diminished 1s "due under" the Ordinance. These words are not to be found in any of the statutory antecedents of S.7A, and the construction which the courts placed upon the provisions of the 1923 Act (U.K.) treated the reference to weekly payments as a reference to payments which were claimed to be due, and which might turn out not to have been due at all, as Lord Sherrington pointed out in Lindsay v. Glasgow Iron and Steel Co.1925 $.C.287 at p.295: "Although section 14 of the Act of 1923 does not use the word 'compensation', but refers only to 'weekly payments', it is, I think, clear that the weekly payments which the employer is thereby prohibited from discontinuing are regarded as being of the same nature as the weekly payments which the workman received prior to such discontinuance. In short, they are payments which the workman claims to be due to him as compensation under the Workmen's Compensation Acts, 1906 to 1923. Such being their character, I see no good reason why the workman's claim to receive these payments should not form the subject of an award by an arbitrator acting under the authority of section 1 (3) of the principal Act, or why the workman's claim, if sustained by the arbitrator, should not be enforced by the procedure appropriate in the case of any other award. " -.-/il " li. Untess the nev stacucory phrase "dus under this Ordinance" can properly be read as equivalent to "claimed to be due under this Ordinance", the section must have a different meaning from that of its statutory antecedents. The quoted phrase was introduced by the same amendment as that which extended the ambit of s.7A to the withholding of payments other than weekly payments. It is not possible to read "due under" as meaning merely "claimed to be due under" when that phrase is applied to the withholding of payments other than weekly payments. The amendment could not have been intended to require an employer who, on valid grounds, disputes a claimant's entitlement to a payment other than a weekly payment, to make the payment so soon as the claim is made. It could not have been intended that criminal liability should attach to an employer who, being under no liability to a claimant, never having made a payment consistent with liability to the claimant, and disputing the claimant's entitlement to payment, fails to pay either a weekly or other payment according to the exigencies of the claim made. On the other hand, a literal construction of the phrase "due under this Ordinance" cannot be accepted. Apart from sweeping away the workman's protection which provisions of this kind have been designed to confer ~ .-/12 12. a result vhich would be inevitable if the statutocy language were intractable (see, for example, Rank Xerox Ltd. v. Lane [1978] 3 W.L.R.643) -~ a literal construction of the phrase would give rise to an antithesis within s.7A: the sectron would be construed as providing that payments which are due under the Ordinance might be discontinued withheld or diminished "in accordance with [the] Ordinance" which makes them due, or "in accordance with [a] determination of the Tribunal" which is bound to enforce the Ordinance. Conversely, if a payment referred to in s.7A fell within an excliusory provision in the Ordinance, it could not be said to be "due under this Ordinance"; and if the Tribunal determined to grant exemption from a payment referred to in s.7A, that payment could not be said to be "due under this Ordinance". Section 7A must therefore relate to more extensive classes of payments than those which are, in the literal sense, due under the Ordinance, The true meaning of the phrase and the purpose of the section are to be ascertained by reference to the history of the provision and its present structure. The history of the provision shows that its antecedents were intended to secure to a workman a payment which, although it may ultimately prove not to have been payable, is nevertheless expected to be paid in the ordinary course of making payments the liability for which has ---/13 13. b if en accepced by the employer. Tle structure of the section shows that, although the liability to make the payment in question must be referable to the Ordinance, the operation of the section extends to payments beyond those which other sections of the Ordinance make payable. A purpose of s.7A 1s to preclude the employer from departing unilaterally from an agreement or arrangement which was sought by the workman (or other beneficiary) and accepted by the employer, or which was offered by the employer and accepted by the workman (or other beneficiary), and which would result in a payment by the employer referable to the provisions af the Ordinance. In my opinion, the section extends to a payment where the liability upon which the workman (or other beneficiary) relies to make it payable is a liability accepted or admitted by the employer, whether the payment is in truth due or not, and whether or not the payment is ultimately held to have been due. If an employer wishes to resile from or qualify his acceptance or admission of liability, the section requires him to seek the approval of the Tribunal, or to be able to invoke the protection of an Act, or to be within an exemption which overrides the statutory obligation which s.7A superimposes upon the employer's acceptance or admission of liability. In the present case, there is evidence as to the employers' acceptance or admission of liability, and no evidence that any of the exceptions applied. [In his affidavit, the workman deposed that he had been ~ --/14 14. receiving "weekly payments under the...Ordinance" from 28 March 1974 unti1 15 September 1978. Payment by an employer of weekly compensation payments 1s evidence of his acceptance or admission of liability under the Ordinance in respect of the injury for which the workman claims, though the acceptance or admission does not bind the employer when the claim is finally litigated. There was sufficient evidence in the workman's affidavit to support the making of an order for the continuance of the weekly payments which, prior to 15 September 1978, the employers had been paying. The employers called no evidence in denial of their liability under s.7A, but merely put the efficacy of s.7A to the test. The employers failed before the Tribunal, and before the Supreme Court on appeal. Forster C.J. was right in dismissing the apveal, and in my judgment the ' appeal to this Court from his judgment and order fails. I would dismiss the appeal with costs. I certify that this and the /3 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice ~~ fotboy Cooney . Datedt 4 Ochh.- /979 of 1N THE FEDERAL COURT OF AUSTRALIA . VOKTHERN TeRkRITORY DISTRICT Kka&ciSTRy ho, 3 of 1973 Ne Ne Se GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : THE WESTERN AUSTRALIAN COASTAL SHIPPING COMMISSION AND STEVEDORING: . ENPLOYERS OF AUSTRALIA LIMITED Appellants (Plaintiffs) AND; ALPHONSE WALLNER Respondent (Defendant) CORAM: Brennan, Gallop & Lockharr JJ. 4 October 1979 REASONS FOR JUDGMENT GALLOP J, :; In this appeal the appeliant employers appeal against a decision of the Chief Judge dismissing an appeal from a decision of the Workmen's Compensation Tribunal delivered on 17 Noveimbec 1978. The respoadent worker had been in receipt of workmen's compensation under the Workmen's Compensation Ordinence from the Western Australian Shipping Commission from 28 March 1974 until 15 September 1978. On or about 15 September 1978 the said wn f i] Coumiscion divcontinuea veekly Laymeats umnces che wredinane:. The present respondent thereupon applied to the Workmen's Compensation Tribunal for a determination of the liability and the amount of compensation payable by the appellants by application dated 11 October 1978. In short the worker alleged that he had sustained personal injury by accident arising in the + course of his employment on or about 28 March 1974. By answer dated 24 October 1978 the employer put in issue the question of employment and the worker's incapacity for work. The worker then applied by interlocutory summons returnable on 7 November 1978 and supported by an affidavit of 9 November 1978 for an interim award of weekly payments of compensation from 15 September 1978 until the hearing of the substantive application. The summons was heard on 15 and 17 November, and on the later date the Tribunal ordered an interim award of compensation in favour of the worker by way of weekly payments pursuant to the Ordinance from 15 September 1978 until further order, and certain other orders. The employer appealed to the Supreme Court of the Northern Territory by notice of appeal dated 24 November 1978 and the Chief Judge delivered his reasons for judgment on that appeal on 12 March 1979. The Chief Judge dismissed the appeal with costs. It was disclosed in argument that the substantive application ; dated 11 October 1978 has been heard and determined by the Tribunal, = and resulted in an avard being made 1m savour of the worker .or weekly payments at total incapacity rates as from 15 September } 1978 and certain other payments pursuant to the Ordinance which he had been underpaid in respect of the period prior to 15 September 1978. It was further disclosed that the employer has appealed to the Supreme Court of the Northern Territory against this detexmination and that that appeal is still pending. In these circumstances the question arose whether we should have continued the hearing of this appeal against the interlocutory order or whether we should have deferred any further consider- ation of the present appeal until such time as the appeal by the employer against the Tribunal's determination of the substantive application shall have been determined by the Supreme Court of the Northern Territory. If the worker is successful in the appeal instituted by the employer against the Tribunal's decision on the substantive application, his rights will not be affected by the determination of this appeal. He will have received and be entitled to continue to receive weekly payments of compensation as from 15 September 1978. If, on the other hand, he is not successful, then the determination of this appeal may have some effect. The deter- mination of this appeal will in any event determine the entitlement of the worker to the costs ordered to be paid to Him by the Tribunal and by the Supreme Court in its appellate jurisdiction. This is sufficient to warrant determination of this appeal at this stage. The affidavit of 9 November 1978 in support of the appli- cation made by interlocutory summons was in the follawing terms: . "1, I am the applicant in the above action. 2. 1 received weekly payments under the Workmen's Compensation Ordinance from the first respondent from the 28th day of March, 1974 until the 15th day of September, 1978. 3. The First respondent discontinued the said weekly payments on or about the 15th day of September, 1978 and to the best of my knowledge, information and belief such discontinuance was not in accordance with the said Ordinance, an Act or determination of the Tribunal." There is no provision in the Ordinance or the Rules made there- under for interlocutory applications. However, the employer concurred in the procedure which the worker adopted, and there- fore we should proceed to determine the matter putting aside all procedural defects and irregularities. No injustice to the parties is caused by adoption of this course. The affidavit of the worker was couched in terms appropriate to invoke the court's jurisdiction, if any, to make an award in his favour under s.7A of the Ordinance. It reads: "7A. (1) An employer shall not, except in accordance with this Ordinance, an Act or determination of the Tribunal, discontinue, withhold or diminish a weekly or other payment due under this Ordinance to a person. Penalty: 100 dollars. ~ (2) The onus of proving that a weekly or other payment was discontinued, withheld or diminished in accordance with this Ordinance, an Act or a deter- mination of the Tribunal shall be on the employer." The section is penal in terms and the question whether it also confers a civil right on the worker and other persons is a question of construction of the Ordinance (Sovar v. Henry Lane Pty. Ltd. (1967) 116 C.L.R. 397 at p.405; Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex.D. 441 at p.448). It is necessary to consider the whole purview of the Ordinance to see whether any right of action is intended to be taken away. In Cutler v. Wandsworth Stadium Ltd. (1949) A.C. 398 Lord Simonds said: "The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the cir- cumstances including the pre-existing law in which it was enacted." The pre-existing law to s.7A was as introduced in 1970 in the following form: "7A, An employer shall not, except in accordance with this Ordinance or a determination of the Tribunal, discontinue or diminish a weekly payment of compensation to an injured workman. Penalty: One hundred dollars." The present s.7A was substituted in 1974. Its effect was to extend the ambit of the section so as to include payments under the Ordinance other than weekly payments, e.g. medical expenses, and to embrace persons other than workers, e.g. dependants. It also created an alternative offence of withholding payments due * vader the Ordiuance in aldition co che offences af dis. varimsag or diminishing payments due under the Ordinance. The employer argued that although the section may have conferred a right to continuance of weekly payments in its 1970 form, the effect of the amendment in 1974 has been such as to take away such right and to restrict the section to a penal operation only. The worker on the other hand contends that the effect of the amendment was to expand its penal operation to payments other than weekly payments and, as a necessary corollary, to embrace persons other than the worker, but not to take away the enforceable statutory right which the section in the 1970 form contained. It seems clear that in the 1970 form the section did confer an enforceable right to continuance of compensation. In the United Ringdom and the State of Victoria comparable provisions have been so construed. In the United Kingdom s.14 of the Workmen's Compensation Act 1923 and s.12 of the Workmen's Compensation Act 1925 provided: NEE NOSIS enna OOOO evn en "An employer shall not be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment except" in certain specified cases, including a case where the workman returned to work and a case where it was established that the incapacity due to his compensable injury had ceased. It was held that this provision entitled the worker to continue to receive the ~ x weekly cayimenc "hich he nad bacn cec2aiving even Though 3b nay rs) subsequently turn out that he was not entitled to that weekly payment. Lord Buckmaster said in Anchor Donaldson Ltd, v. Crossland (1929) A.C. 297 at 302: "Its purpose is, to my mind plain, it is to secure that if weekly payments are in fact being made to a workman they shall not be ended apart from agree~ ment or arbitration except in the cases which are specified." His Lordship went on to quote Lord Wrenbury in Ocean Coal Go. v. Davies (1927) A.C. 271 at 294 where his Lordship said that the rights under the section created in the employer an obligation to pay de facto whether he is de jure liable or not umcil the liability de jure is determined. In Edgar v. Penell (1958) V.R. 450C' Bryan J. in construing the Victorian section said: "Although clause 7 is not couched in precisely the same language as the English section 12, and although there are other differences in the two acts, I think I should hold in accordance with these decisions that the obligation cast upon the employer to continue weekly payments (except as provided by paragraph i of clause 7) is an obligation which can be enforced not only by the penal provisions of paragraph (2) but also if the worker commences proceedings for an award under the Act by an interim award For the continuance of the weekly payments pending the determination of the claim if the Board sees fit to make such an interim award. The presence of the penal provisions in paragraph (2) of clause 7 does not in my opinion lead to the conclusion that the obligation cast on the employer to continue weekly payments does not carry with it a co-relative right in the worker to their continuance." "s 8. I cespsccfully agree wich the aoproech of O'Syyan J. in Beare , v. Penell (supra). it seems plain to me that the 1970 section conferred a right in the worker to the continuance of weekly payments. The extended operation of the section is, in my view, to preserve the pattern of weekly or other payments being made under the Ordinance until they are properly terminated in accordance with the Ordinance, an Act, or determination of the Tribunal. The payments may be properly terminated in a number of ways, for example, by agreement (i.e. in accordance with the Ordinance on the basis of incapacity having ceased), because of refusal of the worker to submit himself to a medical examination (Second Schedule - paragraphs 5, 10 & 15), by review and determination (Second Schedule paragraph 11), by redemption (Second Schedule paragraph 12), or the workman ceasing to reside in the Territory (Second Schedule paragraph 13). It was contended by the employers that the worker's inter- pretation in this case would lead to a result whereby the employer would be required to pay at the rate claimed by a worker at the time of an initial claim for compensation, or run the risk of prosecution for withholding a payment "due under thisOrdinance™. Such an argument involves an interpretation of the words "due under thisOrdinance" which would be synonymous with the words } "claimed to be due under thisOrdinance". Certainly this was the construction given to the U.K. legislation in Lindsay v. Glasgow ~ my fay je (a tron & Steal Co, (1925) 8.C, 287 hese Lord Shercsngcon s at p.295: "although section 14 of the Act of 1923 does not use. the word 'compensation' but refers only to 'weekly payments' it is I think clear that the weekly payments which the employer is thereby prohibited from continuing are regarded as being of the same nature as the weekly payments which the workman received prior to such discontinuance, In short they are payments which the worker claims to be due to him as compensation under Workmen's Compensation Acts 1906-1923. Such being their character I see no good reason why a workman's claim to receive these payments should not form the subject of an award by an Arbitrator acting under the authority of seccion 1(3) of the principal Act, or why the workman's claim if sustained by the Arbitrator should not be enforced by the procedure appropriate in the case and any other award." In my view s.7A is not directed to the situation where the worker makes an initial claim for compensation and the employer, on valid grounds, wishes to dispute the worker's enticlement to a weekly payment. It cannot mean that in such a situation the employer is obliged to make payments immediately. If he refused to make a payment, this would not amount to a withholding of a payment, it would merely be a refusal. The words "discontinue, withhold or diminish" connote continuity, not refusal of a weekly or other payment, the liability for which has never been accepted by the employer or determined by the Tribunal. In this case there had been a pattern of weekly payments for over four years. In my view it is consonant with principle and 10. in accordance with proper construction principles to interpret the words of s.7A "due under this Ordinance" as meaning "accepted | P y t as due" or "awarded and therefore due". Acopting this meaning to the words of s.7A the employer has on the evidence discontinued or withheld weekly payments due under the Ordinance and has not done so in accordance with the Ordinance, an Act or determination of the Tribunal. I would dismiss the appeal. T certify that this and the 7 } preceding pases are a true covy of the Reasons for Judgment herein of his Honour Mr. Justice Gotu Athy Comaph wZ hesomeate " Datea: & Octh /979 IN THE FEDERAE COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY ) No. 3 of 1979 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : THE WESTERN TSS ND COASTAL NG COMMISSLON STEVEDORING EMPLOYERS Sr ° AUSTRALIA TIMTTED Appellants (Plaintiffs) AND: ALPHONSE WALLNER Respondent (Defendant) CORAM: BREWNAN, GALLOP AND LOCKHART JJ Ue de BLE 4979 REASONS FOR JUDGIENT LOCKHART J. In the United Kingdom the precursor of 8, 7A, se 14 of the Workmen's Compensation Act 1923 and™s, 12 of the Workmen's Compensation Act 1925, have been construed by English Courts, including the House of Lords, to be provisions entitling workmen to continue receiving weekly payments which they had been receiving albeit that it is subsequently ascertained that they were not so entitled. 00/2 Lord Buckmaster said in Anchor Donaldson Limited v. Crossland 1929 A.C. 297 at p. 302:- "Tts purpose is, to my mind, plain. It is to secure that if weekly payments are, in fact, being made to a workman, they shall not be ended apart from agreement or arbitration except in the cases that are specified." Although the language is not precisely the same, s. 14 of the Workers Compensation Act 1953 (Victoria) has been similarly construed by O'Bryan J, in Edgar v. Pennell 1958 V.R. 450 notwithstanding the presence of a penal provision in the section, Section 7A was first introduced into-the Workers Compensation Ordinance.{N.T.) in 1970 in this form:~ "(4) An employer shall not, except in accordance with this Ordinance or a determination of the Tribunal, discontinue or diminish a weekly payment of compensation to an injured workmen. Penalty: One Hundred Dollars." Probably it too had the same meaning as its English and Victorian counterparts. In 1974 the present section was substituted for the original s. 7A. It introduced the notion that the prohibition applied to the discontinuance, withholding or diminution of payments "due under this Ordinance", Although the operation of s. 7A was extended toapply to more than weekly payments, forbade the withholding of payments as well as their discontinuance or diminution, anc applied to payments due to persons other than workmen, --/3 moc one would not readily give the section a meaning different to that which it probably had from 1970 to 1974 and which its predecessors had in the United Kingdom and Victoria. However, in my opinion the language of the section inevitably leads to the conclusion that it has no operatic beyond imposing a penalty for contravention of its provisions. The section 1s cast in the language of prohibition, It does not purport to create rights. All it does is to provide a penalty for non compliance. What is prohibited is the act of the employer in discontinuing, withholding, or diminishing a weekly or other payment due under the Ordinance to a person, One must look elsewhere than to s. 7A itself to find the worker's right to payment and the employer's obligation to pay. The language is inappropriate to support the creation by the section itse. of such a right and obligation, Payments may be due under various provisions of the Ordinance. There may be a liability to make payments pursuant to a determination of the Tribunal or a memorand- of an azreement registered under s. 6N, which is enforceable as if it were a determination of the Tribunal (Section 6N (6) ). <A liability to pay compensation may b ermted by s. 7 (1), whether or not it has crystalized in the form of a determination of the Tribunal or the recording of a memorandum of an agreement under s. 6H. wee/4 a TYE Tn gd A NET ~ 74 —a ~4~ Section 7 (1) operates of its own force to impose a liability on the employer to pay compensation to a workmar who has sustained personal injury by accident arising out of or in the course of his employment by the employer. Other provisions of the Ordinance create liabilities to pay moneys to the workman. For instance, s. 11 require the employer to pay costs of medical and surgical treatme: hospital treatment, nursing services, and ambulance services incurred by reason of the relevant injury or disease, If the employer -discontinues, withholds or diminishes any of these payments, except in accordance with the Ordinance and Act or determination of the Tribunal, he commits a breach of s. 7A. Thus construed the section provides the worker with an additional weapon in his armory; but it does not extend his rights to compensation, Nor does it produce what were described in argument as possible draconian consequences to the employer, although he does run the risk of prosecution if he discontinues, withholds or diminishes payment and it is subsequently established that the payment was in fact due under the Ordinance, For the section to have additional operation necessarily involves raading the words "payment due under this Ordinance" as if they meant "claimed to be due under this Ordinance" or "accepted as due under this Ordinance". In my opinion the section cannot be so construed, - 2/5 " i £ §4 + ' -5- There is a fundamental distinction between a payment that is "claimed to be due" or "accepted as being due" and a payment that is due. In my opinion this construction of the section does not create logical inconsistencies because of the presence ofthe words "except in accordance with this Ordinance an Act or determination of the Tribunal". It is true that a payment cannot at the same point of time be both due and not due; but theexception relates to the prohibition against discontinuing, withholding or diminishing payments, not to the payments themselves being due, Construed_as I think it must be, the section means simply that if a payment due under the Ordinance should be paid today, it must be paid and, if it is not paid by unilateral act of the employer without the authority of the Ordinance, an Act or determination of the Tribunal, the employer runs the risk of prosecution. A common instance is where an employer has assumed liability to pay compensation under s. 7 (1) and there is no determination of the Tribunal or recording of a memorandum of. an agreement under s, 6N, 'The employei can be discharged from his liability as to payment if he invokes the machinery of the Ordinance to free himself from further liability. He will then be within the > exception provision of s. 7A. If he does not do so, yet ceases making payments and is ultimately held to be -.-/6 } I t | t i j l | | —~-—3—~ liable to have continued making those payments, he will be in breach of s, 7A. It may be that the section thus construed produces : result not intended by its draughtsman; "but that is not to the point. My task is to interpret the language employed in accordance with the established principles of construction. For these reasons in my opinion the appeal should be allaved. This is to certify that this and the preceding five (5) pages herein are a true copy of the reasons for judgment of his Honour Mr, Justice Lockhart . , nod 7 yy" f . Date ° Assoéiate t t