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such a way as to permit the Compensation Court to order a refund of overpayments of weekly payments made under the now repealed Workers' Compensation Act 1926.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 The second is that the transitional provisions do not, or do not clearly, apply s58 to the payments made under the repealed Act.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. No other foundation for the order of refund being established, the award must be set aside. The consequential orders proposed by Mahoney JA should be made. Mahoney JA Between | March 1982 and 16 December 1983 the worker received periodical payments of compensation totalling $10,264.52. The employer now claims that the worker was not entitled to receive these payments because, at the relevant time, the worker was engaged in employment. 2 UNREPORTED JUDGMENTS No steps were taken by the employer under the Workers' Compensation Act 1926 to recover this amount or any portion of it. The right of an employer to recover an amount overpaid as this was alleged to be was by no means clear: see, eg, Miller v CSR Ltd (Court of Appeal, 12 March 1993, not yet reported) and the cases there referred to. The Workers Compensation Act 1987 came into force relevantly on 30 June 1987. It repealed the 1926 Act. S58 authorised the making of an order for the worker to refund payments of compensation there referred to. On 18 December 1990 the employer applied to the Compensation Court under s58 for an order that the worker refund to it the payments to which I have referred. On 30 May 1991 Thompson J ordered such repayments. The worker has appealed to this Court against his Honour's order. In my opinion, s58 did not authorise the order which his Honour made. The compensation ordered to be refunded was paid under the 1926 Act and before the 1987 Act came into force. The transactions which gave rise to the payment and acceptance of the compensation were, when the 1987 Act came into force, long since completed. The award under which the payments were made was made by Gibson J on 13 November 1981. The worker, the court is informed, duly notified the employer in respect of the employment subsequently undertaken by him. On 1 December 1983 Moroney J ordered that the payments of compensation be suspended. On 25 September 1986 Thompson J terminated the worker's entitlement to compensation as from | March 1982. As far as presently appears, no repayment of any amount was then sought or ordered. In my opinion s58 does not operate to allow, as it now is, the Compensation Court to order a worker to refund amounts paid to him under an award made under the 1926 Act and paid before the commencement of the 1987 Act. It is accepted that the order could be made by the judge only if the order was authorised by s58. To construe s58 as authorising orders in respect of amounts previously paid would be to give it a retrospective effect. "Tt has been said that 'retrospective' is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute that operates on cases or facts coming into existence before its commencement, in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing': Halsbury's Laws of England, 4th ed, Vol 44, para921. The 1987 Act does not have a retrospective operation in this sense. The amendment or repeal of an Act does not affect the rights, privileges, obligations and liabilities acquired, accrued, or incurred under the repealed Act: this principle is recognised by, eg, the Interpretation Act 1987, s30(1)(b). See generally Maxwell v Murphy (1957) 96 CLR 261 at 266 to 271, esp at 267, per Dixon CJ; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at 635 to 638 per Dixon CJ. See also Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 556 to 557 per Barwick CJ, at 564 to 565 per Kitto J, at 577 to 578 per Taylor J, at 582 and 587 to 588 per Windeyer J and at 605 to 606 per Owen J; Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 at 289C to 290B per Kirby P. In the present case, the payments were made under an award made and terminated under the 1926 Act, before the 1987 Act was enacted. The 1987 Act was not intended to apply to such payments. URJ CZYSNOK v JAQUES LTD (Meagher JA) 3 There are, in my opinion, in addition indications in s58 that it is not intended to operate in respect of payments made prior to the commencement of that Act. $58(1) provides: "58(1) If because of a worker's return to employment or a change in employment that affects the worker's earnings: (a) the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker; or (b) the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act, the Compensation Court may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding two years from the date of payment." The section relates to entitlement "under this Act', ie, under the 1987 Act. The compensation paid was in discharge of his entitlement under the 1926 Act. The award in respect of which the payment was made was made only under the 1926 Act and operated only under that Act. Mr Higgs, for the employer, sought to deal with this problem by referring to the transitional provisions in Schedule 6 to the 1987 Act. The effect of that Schedule is, in general terms, that s58 "applies whether the injury was received before or after the commencement of" Div 2 of Pt3 of the Act. The practical effect of the 1987 Act has been said to be that awards made under the 1926 Act are continued in effect under the 1987 Act to the extent that, had the 1926 Act not been repealed, they would have remained in operation. It is not necessary to pursue the provisions of the Act in this regard. But, in my opinion, none of the provisions produce the result that payments made before the 1987 Act under an award previously made are payments to which the worker was entitled (or more accurately "not entitled") under the 1987 Act. In addition, it has not been suggested that, under the 1926 Act, the amounts could have been recovered by the employer. On the facts as they are before this Court and having regard to what was said in Miller vy CSR Ltd, I do not think that they could. In these circumstances, I do not think that s58, on its proper construction, authorises the recovery now sought. In my opinion, the appeal should be upheld with costs. The award should be set aside. The employer's application should be dismissed with costs. The respondent should in respect of the costs of the appeal, if otherwise so qualified, have a certificate under the Suitors' Fund Act 1951. Meagher JA I agree with Mahoney JA. The appeal is upheld with costs. The award is set aside. The employer's application is dismissed with costs. The respondent is to have, in respect of the costs of the appeal, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: GB Beauchamp Instructed by: Kencalo and Rimes Counsel for the Respondent: DJ Higgs Instructed by: Mallesons Stephen Jaques