Coalcliff Collieries Ltd v Campbell [1964] HCA 53

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Coalcliff Collieries Ltd v Campbell [1964] HCA 53

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 18 Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

Notwithstanding the dissenting judgment of Macfarlan J., we agree with the judgment of the majority of the Full Court dismissing an appeal against an award made by his Honour Judge Wall increasing the respondent's weekly payments under the Workers' Compensation Act of New South Wales.

The power of the Workers' Compensation Commission pursuant to s. 60 of the Act to review a weekly payment is not subject to any express limitation although it has long been established that the power is not to afford opportunity for reconsideration of an award upon the facts as they were when it was made; rather the real object of the power so conferred is to enable a review where a change in circumstances has taken place since the award was made: see Crossfield & Sons Ltd. v. Tanian [1] , per Romer L.J. [2] and Tarr v. Cory Brothers & Co. Ltd. [3] , per Bankes L.J. [4] .

1. [1900] 2 Q.B. 629. 2. [1900] 2 Q.B., at p. 633. 3. [1917] 2 K.B. 774. 4. [1917] 2 K.B., at pp. 780, 781.

An increase or decrease in the amount that a partially incapacitated worker is earning or is able to earn is, of course, a change in circumstances which would justify the review of the weekly payment to decrease or increase it, as the case may be, but until the provision that is now s. 11 (1) (b) of the Act was introduced, a change in the basic wage made after the making of an award was not regarded as of itself changing in any relevant sense the circumstance existing when the award was made. That provision, however, operated, in effect, and for the purposes of the Act, to alter "the amount of the average weekly earnings of the worker before the injury", which is the first element to be ascertained in fixing the amount of the weekly payment to be paid for partial incapacity. The average weekly earnings are by virtue of the sub-section to be "deemed to be increased or reduced from time to time" as the basic wage is increased or reduced and the "statutory fiction" thereby erected is, in our opinion, a material matter for consideration on an application for a review. In Willis v. New Hucknall Colliery Co. Ltd. [5] , the House of Lords assumed that the introduction of a provision similar to that here under consideration did justify a review, although in that case the new provision was an addition to the section authorizing the review of weekly payments. We do not think that it makes any difference that in New South Wales the amendment was introduced in s. 11 rather than in s. 60.