Theoret v Aces Incorporated [2021] NSWCA 3

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Theoret v Aces Incorporated [2021] NSWCA 3 Hearing dates: 1 September 2020 Decision date: 02 February 2021 Before: Leeming JA at [1]; McCallum JA at [2]; Garling J at [49]. Decision: (1) Allow the appeal. (2) Set aside the judgment of the court below. (3) Remit the matter to the Workers Compensation Commission to be determined according to law. (4) Respondent to pay the appellant's costs. Catchwords: STATUTORY INTERPRETATION — Amendment — where appellant's entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012 Legislation Cited: Interpretation Act 1987 (NSW), ss 39, 45C Workers Compensation Act 1987 (NSW), ss 33, 36, 37, 38, 43(1), 44C, 66, 79, 80, 82, 82A, Sch 3 Workers Compensation Legislation Amendment Act 2012 (NSW) Workers Compensation Legislation Amendment Act 2018 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 353 Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 Fisher v Hebburn Ltd (1960) 105 CLR 188; [1960] HCA 80 Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Thompson v ATN Channel 7 Pty Ltd (No 2) [2017] NSWWCC 269 Category: Principal judgment Parties: Patricia Theoret (Appellant) Aces Incorporated (Respondent) Representation: Counsel: D Hooke SC, B McManamey (Appellant) M Allars SC, A Combe (Respondent)