Associated Pulp & Paper Mills v Sharples [2002] NSWCC 11

Reported Decision : (2002) 23 NSWCCR 364

Compensation Court of New South Wales

CITATION : Associated Pulp & Paper Mills v Sharples [2002] NSWCC 11 Associated Pulp & Paper Mills PARTIES : v Sidney Laurence Sharples MATTER NUMBER(S) : 12593 of 2002 JUDGMENT OF: Neilson J at 1 :- Redemptions only available during period when Court could approve commutations. WCA 1987 Sch 6 Pt 4 cl 6 CATCHWORDS: Sch 6 Pt 18C cl 11(5) s 87E s 87EA(5). Redemption itself abolished otherwise and commutation under Pt 3 Div 9 only available to employer. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 04/04/02 EX TEMPORE JUDGMENT DATE : 04/04/2002

FOR APPLICANT: LEGAL REPRESENTATIVES: Mr D Scarlett of Messrs Hunt & Hunt appeared for the applicant. FOR RESPONDENT: No appearance by, or on behalf of, the respondent.

JUDGMENT: 1. On 27 March 2002, Australian Pulp & Paper Mills Ltd filed an application for determination in this Court seeking a redemption of its liability under an award made in Matter No 5581 of 1987 by his Honour Judge Davidson. His Honour had entered an award in favour of the worker at the rate of $80 per week on a continuing basis pursuant to s 11(1) of the Workers Compensation Act 1926. The sum proposed for redemption of the employer's liability is $20,000. 2. The matter came on for hearing before me at Parramatta on Maundy Thursday, 28 March 2002 at 4.00 pm. I raised with the representatives of the parties the question as to whether the Court had jurisdiction to grant the relief claimed. The applicant employer was represented by Mr Kettle, an employee of Messrs Hunt & Hunt, who was not aware of the jurisdictional problem. A telephone conference followed at which the representatives of the parties were present in my chambers and the matter was discussed with Mr David Scarlett, a partner of Messrs Hunt & Hunt, who advanced a prima facie argument that the Court had jurisdiction to grant the relief sought. That argument did not require that the Court consider the redemption application prior to 31 March 2002 and the matter was then adjourned to today for argument on the jurisdictional issue. Mr Scarlett has appeared before me this morning and advanced the argument in a manner which greatly exceeded that of any competent Counsel appearing regularly in this Court. 3. Under the Workers Compensation Act 1926, a liability of an employer to make weekly payments of compensation could be redeemed in whole or in part by the payment of a lump sum. By s 15(1A) of the 1926 statute, where the Court determined a lump sum for redemption the employer's liability to make weekly payments and the worker agreed that payment of that lump sum should also redeem any liability to make any payments under s 10 or s 16 of that Act in respect of the injury in question, payment of the lump sum also redeemed that liability. 4. The Workers Compensation Act 1926 was repealed by the Workers Compensation Act 1987. Pursuant to Sch 6 Pt 2 of the Workers Compensation Act 1987, the 1987 Act applied whether the injury in question was received before or after the commencement of the 1987 Act, namely 4.00 pm on 30 June 1987, subject to the provisions of Sch 6 of the 1987 Act. It is well-known that the scheme of the 1987 Act was to apply its provisions instead of those of the 1926 Act except insofar as those were applied pursuant to Sch 6 of the 1987 Act. See for example John Lysaght (Australia) Ltd v Cox (1990) 6 NSWCCR 311 at 315 per Clarke J A and United Dairies Ltd v Felletti (1992) 8 NSWCCR 74 at 80 per Kirby P (as he then was). 5. Sch 6 Pt 4 cl 6 of the 1987 Act provided this: Redemptions under Former Act for existing injuries (1) Section 15 of the former Act continues to apply to a liability in respect of a weekly payment of compensation for a period of incapacity for work resulting from an injury received before the commencement of Division 2 of Part 3 of this Act. (2) (Repealed) (3) Section 15(1A) of the former Act also applies to a liability under Division 3 or 4 of Part 3 of this Act. (4) Section 18C (27) - (29) of the former Act continues to apply to a liability referred to in subclause (1). 6. The questions which I must consider are whether Sch 6 Pt 4 cl 6 survives to enable a redemption under s 15 of the 1926 Act to be granted and whether this Court has jurisdiction to grant that relief. Substantive changes were made to the Workers Compensation Act 1987 in 2001 by two Acts. The first is the Workers Compensation Legislation Amendment Act 2001, No 61 of 2001 and the second is the Workers Compensation Legislation Further Amendment Act 2001, No 94 of 2001. Those Acts commenced on 1 January 2002. 7. S 51 of the Workers Compensation Act 1987 was repealed. The former s 51 provided for commutation of the employer's liability. The Workers Compensation Act 1987, as amended, commencing on 1 January 2002 has a new regime for commutations that is provided by Pt 3 Div 9 between s 87D and s 87K. S 87E provides: Compensation that may be commuted (1) A liability in respect of any of the following kinds of compensation under this Act or the former Act may be commuted to a lump sum as provided by this Division (and not otherwise): (a) weekly payments of compensation, (b) compensation under Division 3 (compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act or section 10 of the former Act. (2) Such liability cannot be commuted to a lump sum by an order or award of the Commission (but this section this does not affect the operation of s 87G). 8. S 87EA contains preconditions to commutation. Subs (5) of that section provides that those preconditions do not apply to a commutation of a liability in respect of compensation under "the former Act". "The former Act" is, of course, the Workers Compensation Act 1926. S 87F provides for commutation by agreement which agreement must be registered with the Registrar of the Workers Compensation Commission. It must be noted that the Workers Compensation Commission which was established by the Workers Compensation Act 1987, as amended, ought not be confused with the Workers Compensation Commission of New South Wales which is the predecessor of this Court. The Workers Compensation Commission of New South Wales was a court of record. The Workers Compensation Commission recently established is not a court at all. 9. S 87F provides that a commutation agreement is not subject to review or challenge before the Workers Compensation Commission or any Court. The only role of the Workers Compensation Commission is the approval of a commutation where a worker is legally incapacitated. It is clear from the terms of s 87E and s 87EA that the new regime for commutation applies to a liability under the 1926 Act that remains as at 1 January 2001. Applying the principle of construction that expressio unius est exclusio alterius one would think that redemptions ceased to exist as at 1 January 2002 and that an equivalent relief could only be provided by commutation pursuant to Pt 3 Div 9 of the Workers Compensation Act 1987. However, as Mr Scarlett has pointed out, there are significant differences. For example, a redemption would be effective to redeem liability under s16 of the former Act but such liability is not removed by commutation under Pt 3 Div 9. Equally, redemption under s 15 of the Workers Compensation Act 1926 as preserved by Sch 6 Pt 4 cl 6 required the Court to consider any matter of compromise but a fair reading of Pt 3 Div 9 indicates that the liability that can be commuted is one that is established in law and compromise is not taken into account. Mr Scarlett, for the employer, has argued that this becomes a burden on employers and their insurers under the 1926 Act and one can readily see that burden. 10. However, the question remains does redemption persist after the 1 January 2002? The two Acts enacted in 2001 do not repeal Sch 6 Pt 4 cl 6. However, those Acts duly insert a Pt 18C which is headed "Provisions Consequent on Enactment of the 2001 Amending Acts". The relevant provision of Sch 6 Pt 18C is cl 11 which I have had to consider earlier in Bradshaw v Trazmet (NSW) Pty Ltd, Franklins Ltd v Richards, and McGaw v Lowrie. Sch 6 Pt 18C cl 11 is in the following terms: Commutations (1) Section 51 (Exit payments by commutation of weekly payments) is taken to have been repealed on the commencement of this clause. (2) Section 51 continues to apply, as if it had not been repealed, to the commutation of a liability if: (a) an application for a determination under that section in respect of the liability is pending immediately before the commencement of this clause, but only so as to authorise the determination of such an application before 31 March 2002, or (b) an application for determination of a dispute in respect of the liability is pending before the Compensation Court immediately before the commencement of this clause, but only so as to authorise the commutation of a liability before 31 March 2002. (3) Except as provided by subclause (2) Division 9 (Commutation of Compensation) of Part 3 applies to the commutation of a liability arising in respect of an injury received before or after the commencement of that Division. (4) A liability may be commuted under Division 9 of Part 3 even if the Compensation Court refused, before the repeal of s 51, to make a determination under that section or under s 15 of the former Act. (5) Clauses 6 - 6B of Part 4 of this Schedule do not apply in respect of the commutation or redemption of a liability after the commencement of this clause (except for the purpose of the continued operation of section 51 pursuant to subclause (2). 11. Sch 6 Pt 18C cl 11 commenced at 9 am on 27 November 2001 notwithstanding the fact that the amending Act did not come into force until 1 January 2002. I have set that out in Bradshaw v Trazmet (NSW) Pty Ltd and need not go over that ground again. It appears clear to me from reading cl 11 that it was intended to affect redemptions under the former Act. That can be seen from the terms of subcl (4) and from subcl (5). 12. Subcl (5) is not well drawn. However, it appears to me that the bracketed proviso at the end of cl 5: "Except for the purposes of the continued operation of section 51 pursuant to subclause (2)" ought be read as if the matter "for the purposes of" meant "during" . 13. It appears to me that cl 11 continues the operation of Sch 6 Pt 4 cl 6 whilst this Court has jurisdiction to entertain a commutation under s 51. After 9 am on 27 November 2001, this Court only had jurisdiction to entertain a commutation if an application for determination claiming such relief was pending before the Court or there was pending before the Court an application for determination in respect of a liability for weekly payments which is the liability that is commuted pursuant to s 51. 14. It appears to me from the terms of cl 11(5) that Sch 6 Pt 4 cl 6 is pro tanto repealed as at 1 January 2002 unless this Court had jurisdiction to entertain a commutation under s 51 pursuant to subcl (2). Here, the application for determination seeking the redemption was filed on 27 March 2002 and therefore was not pending as at 9 am on 27 November 2002. It appears to me therefore that this Court has no jurisdiction to grant the relief claimed by the applicant employer and, furthermore, the relief claimed itself has been abolished. 15. Mr Scarlett has submitted that this must be by some legislative oversight. It could hardly be imagined that Parliament would remove established rights of both employers and workers under the 1926 Act when it was concerned with making amendments to the Workers Compensation legislation because of an alleged deficiency in the statutory funds created under the Workers Compensation Act 1987. However, it is clear from the terms of both s 87E and s 87EA and Sch 6 Pt 18C cl 11 that Parliament did intend the new regime under Pt 3 Div 9 to apply to a liability under the 1926 Act in lieu of the former s 15. In the course of argument I pointed out that there might be political reasons why relief under s 15 was removed. It might be that it would be an embarrassment to Her Majesty's Government if some workers could obtain lump sum settlements while other workers could not and hence the need to bring workers who were injured prior to 30 June 1987 and workers who were injured after that time under the new regime of Pt 3 Div 9. 16. In other words, whilst Mr Scarlett mounted the argument this was by oversight. One could see a countervailing argument. This only reinforces the Court's duty that in interpreting legislation, one should look at the text of the Act itself rather than extraneous policy considerations. I am constrained in my view by the terms of the Workers Compensation Act 1987 as amended by the two Acts of 2001 and by the terms of Pt 18C cl 11 to hold that this Court has no jurisdiction to entertain the relief claimed which relief is, in my view, is no longer available in any form to the applicant employer. 17. The application for determination is therefore dismissed. I order the applicant to pay the respondent's costs. 18. It is to be noted that the respondent worker's counsel did not appear this day and he is not entitled to any costs for this day. 19. I thank Mr Scarlett for his helpful submissions. Mr D Scarlett, solicitor of Messrs Hunt & Hunt appeared for the applicant. No appearance by, or on behalf of, the respondent.