CZYSNOK v JAQUES LTD [1993] NSWCA 80

CZYSNOK v JAQUES LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 17 August 1993, 17 September 1993

[1993] NSWCA 80

WORKERS' COMPENSATION — recovery of over payment — weekly payments made under Workers' Compensation Act 1926 — order of refund sought under Workers Compensation Act 1987, s58(1) — whether retrospective operation — Compensation Court Judge (Thompson CCJ) orders repayment — whether award sustained by transitional provisions of Schedule 6 to the 1987 Act —

held (Mahoney JA; Kirby P and Meagher JA concurring): (1) By the terms of s58 of the Workers Compensation Act 1987 the refund is limited to weekly payments to which the worker is "not entitled under this Act", ie the 1987 Act; (2) Neither by the transitional provisions nor the general principles governing retrospective operation of statutes could s58 be given a retroactive operation. Baker v Australian Asbestos Insulations Pty Ltd and Ors (1985) 3 NSWLR 280 (CA) applied; (3) The Compensation Court did not otherwise have power to order repayment. Miller v CSR Ltd, Court of Appeal, unreported, 12 March 1993; (1993) NSWJB 18 applied; (4) Award ordering repayment set aside. Workers' Compensation Act 1926. Interpretation Act 1987, s30(1)(b). Workers Compensation Act 1987, s58(1); Schedule 6.

Kirby P I agree with Mahoney JA. If the drafter of the new legislation had considered the problem now analysed by this Court, I entertain little doubt that provision would have been made to permit s58 of the Workers Compensation Act 1987 to operate in such a way as to permit the Compensation Court to order a refund of overpayments of weekly payments made under the now repealed Workers' Compensation Act 1926.

However, there are three impediments to construing s58 in that way. The first is that a pre condition to the section's operation is that the worker is "not entitled under this Act", ie the 1987 Act, to the weekly payments in question. The second is that the transitional provisions do not, or do not clearly, apply s58 to the payments made under the repealed Act. The third is that it is a most important principle of statutory construction that legislation should not ordinarily be given a retroactive operation. Such operation, imposing liabilities which did not exist at the time of the transactions in question, can sometimes work great injustices. If Parliament wishes to give legislation retroactive effect, it must do so in clear terms. The courts should not bend this rule, even in a worthy case, for it is defensive of a most important principle relevant to basic civic rights.