Western Australian Coastal Shipping Commission v Wallner [1980] HCA 22

High Court of Australia Gibbs, Mason, Murphy, Aickin and Wilson JJ. Western Australian Coastal Shipping Commission v Wallner [1980] HCA 22

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 24 Gibbs J.

I have had the advantage of reading the reasons for judgment prepared by my brothers Mason, Murphy and Wilson and agree with them. It is clear that s. 7A of the Workmen's Compensation Ordinance 1949 N.T., as originally enacted, gave to a workman who had been receiving from his employer weekly payments of compensation the right to continue to receive those payments until the question of his entitlement was determined; he would however receive them provisionally only, and was liable to return them if it was ultimately held that he was not entitled. Although the amendments made to s. 7A in 1974—particularly the insertion of the words "due under this Ordinance"—give rise to considerable difficulty of interpretation, it seems to me that if the legislature had intended to deprive the workman of this valuable right it would have done so expressly, and not obscurely and indirectly. A consideration of the amended Ordinance in the light of the pre-existing law leads to the conclusion that where weekly payments of compensation have been regularly made by an employer they should be regarded, prima facie, as payments due under the Ordinance within the meaning of s. 7A.

I would accordingly dismiss the appeal.

Mason, Murphy and Wilson JJ.

The outcome of this appeal turns on the proper construction of the provisions of s. 7A of the Workmen's Compensation Ordinance 1949 N.T., as amended. That section reads as follows:

(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.