Ogilvie v Jl Smith Engineering Pty Ltd [1996] NSWCC 1; (1996) 12 NSWCCR 623 (2 February 1996)

[1996] NSWCC 1; (1996) 12 NSWCCR 623 (6297/95)

OGILVIE v. JL SMITH ENGINEERING PTY LTD

Compensation Court of New South Wales: Neilson J

29 January 1996 (H)

2 February 1996 (J)

Proceedings to obtain compensation - Determination of claims - The award - Interest - Power to order repealed - New power inserted in another statute - Transitional provisions re proceedings pending - Conflicting provisions - Resolution applying statutory interpretation maxim - "Generalia specialibus non derogant" - WorkCover Legislation Amendment Act 1995, Schedule 1 [60], [108]; Schedule 3 [5], [29] - Workers Compensation Act 1987, section 113 and Schedule 6, Part 11, clause 1 - Compensation Court Act 1984, section 19 and Schedule 4, Part 4, clause 7

Statutes - Interpretation - Repeal - Power to order interest on amount in compensation award repealed - New power inserted in another statute - Transitional provisions re proceedings pending - Conflicting provisions - Resolution applying statutory interpretation maxim - "Generalia specialibus non derogant" - WorkCover Legislation Amendment Act 1995, Schedule 1 [60], [108]; Schedule 3 [5], [29] - Workers Compensation Act 1987, section 113 and Schedule 6, Part 11, clause 1 - Compensation Court Act 1984, section 19 and Schedule 4, Part 4, clause 7

Words, phrases and maxims - "supporting medical report" - Workers Compensation Act 1987, Schedule 6, Part 11, clause 1(a)

G.I. Egan (Solicitor), for the applicant

T.M. Wardell, for the respondent

Ex tempore

NEILSON J: In this matter, I made an award on 29 January 1996 but no provision was made for interest on that award because of uncertainty as to the appropriate law to be applied. The matter was stood over for further submissions today on the question of interest.

The issue concerns the proper interpretation of the WorkCover Legislation Amendment Act 1995 which received the Royal Assent on 20 December 1995. Schedule 1 to that Act, which I shall refer to as the "Amendment Act", makes certain amendments to the Workers Compensation Act 1987 and Schedule 3 to the Amendment Act makes certain amendments to the Compensation Court Act 1984. Prior to 1 January 1996, the awarding of interest by this Court was governed by section 19 of the Compensation Court Act 1984.

Section 19 was repealed by item [5] of Schedule 3 to the Amendment Act. By proclamation dated 20 December 1995, published in the Government Gazette of that day, the repeal of section 19 became effective on 1 January 1996.

Item [29] of Schedule 3 to the Amendment Act also inserts a transitional provision into Schedule 4 to the Compensation Court Act 1984. The new provision in Schedule 4 is a Part 4, the relevant provision of which is as follows:

"7 Application of amendments to pending proceedings

(1) An amendment made to this Act by the WorkCover Legislation Amendment Act 1995 (the 1995 Act) does not apply to proceedings in the Court commenced before the commencement of the amendment (except as provided by subclause (2)) but applies to proceedings commenced after the commencement of the amendment whenever the cause of action arose."

Subclause (2) only applies to appeals from judges of this Court to the Court of Appeal.

The intriguing thing about the transitional provision inserted into Schedule 4 to the Compensation Court Act 1984 is that, by the same proclamation to which I have referred, it commenced on 1 February 1996, leaving prima facie a lacuna of one month. That lacuna might be thought to be cured by section 29 of the Interpretation Act 1987 which is in the following terms:

"If an Act or statutory rule repeals some or all of the provisions of some other Act or statutory rule and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence."

Section 30 of the Interpretation Act 1987 relevantly provides:

"(1) The amendment or repeal of an Act or statutory rule does not:

...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, ...

and any such ... remedy may be ... enforced, as if the Act or statutory rule had not been amended or repealed."

The general transitional provision inserted into the Compensation Court Act 1984, Schedule 4 and the provisions of the Interpretation Act suggest that in cases which were pending before this Court as at 1 January 1996, such as the present case, the provisions of the old section 19 should be continued.

However, the Amendment Act makes new provisions for the awarding of interest. Item [60] of Schedule 1 inserts a new section 113 into the Workers Compensation Act 1987 which gives this Court power to award interest before judgment but a much more limited right than that provided by the former section 19 of the Compensation Court Act.

Item [108] of the same Schedule to the Amendment Act inserts new transitional provisions into the Workers Compensation Act by adding Part 11 to Schedule 6, clause (1) of which is as follows:

"Section 113 (2) (as inserted by the WorkCover Legislation Amendment Act 1995) does not apply to the ordering of interest on compensation for injuries received before the insertion of that provision, but the following provisions do apply to the ordering of that interest:

(a) interest must not be ordered on any compensation payable under this Act for any period before a claim for the compensation was duly made or (where no such claim is duly made before the commencement of the proceedings in the Court) for any period before the worker gave the employer particulars (including, in the case of a claim for compensation under section 66, a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of compensation claimed,

(b) the provisions of paragraph (a) extend to proceedings pending at that commencement but do not affect any order for interest made before that commencement."

Clearly, there is a conflict between the general transitional provisions in the Compensation Court Act 1984 following upon the Amendment Act and the transitional provisions in the Workers Compensation Act 1987 following upon the Amendment Act.

The transitional provisions of the Compensation Court Act are general but the transitional provision in the Workers Compensation Act which I have just cited is specific, so far as interest is concerned.

It appears to me that I should apply the principle of statutory interpretation that generalia specialibus non derogant. Therefore in my view in the resolution of the current issue, I should apply the specific provisions relating to interest enacted by item [108] of Schedule 1 to the Amendment Act modifying the general provisions of item [29] of Schedule 3 to the same Act.

Therefore, in my view, questions regarding interest for proceedings pending as at 1 January 1996 are governed by Schedule 6, Part 11, clause 1 of the Workers Compensation Act 1987, modifying the continued operation of the former section 19 of the Compensation Court Act 1984.

Mr Egan, the solicitor for the applicant, urges me to adopt a beneficial interpretation of the Act, that is an interpretation beneficial to the worker, because this is a workers compensation statute which prima facie should be interpreted to benefit those for whose protection it has been made.

However, as I said in Stokes v. Brambles Holdings Ltd [1994] NSWCC 22; (1994) 10 NSWCCR 515, it is very difficult to apply such canons of construction to amendments to the Workers Compensation Act which do not enact rights but rather limit them or take them away.

I therefore decline to apply that canon of construction in the circumstances of the current legislation which was clearly not designed to benefit workers but rather, if anything, to benefit the statutory funds of insurers.

I have just heard further submissions from Mr Egan, solicitor for the worker, but they did not persuade me to change the ruling that I have already made. Mr Egan's submission is basically that there are for pending proceedings two sources of power: one in the Compensation Court Act 1984, as amended, and one in the Workers Compensation Act 1987, as amended.

However, it appears to me that the specific provisions of Schedule 6, Part 11, clause 1, as inserted by the Amendment Act, suggest other than that it was Parliament's intention that there be two sources of power to award interest.

I glean that from the specific words of Schedule 6, Part 11, clause 1 which are:

" ... the following provisions do apply to the ordering of that interest..."

and the "that" used last in that quotation refers to the ordering of interest on compensation for injuries received before the commencement of section 113 of the Workers Compensation Act 1987. The clause clearly accepts a continuing operation of the old section 19, but modifies it.

Accordingly, I again rule that, for pending proceedings as at 1 January 1996, the provision concerning interest is Schedule 6, Part 11, clause 1 of the Workers Compensation Act 1987, as amended, modifying the continued operation of the old section 19 of the Compensation Court Act.

[There were further submissions]

In this matter, I earlier made a ruling as to the law applicable to the awarding of interest on the award pronounced by me on 29 January 1996. I have now had certain agreed facts put before me and heard further submissions on the merits of the case and the facts of the case as far as interest is concerned.

I awarded weekly payments of compensation to the applicant commencing on 10 June 1994 up until 12 September 1994 and then from 5 November 1994 to date and continuing.

The evidence at the hearing was that the applicant had returned to his pre-injury work on 26 April 1994 and performed that work up until resigning his employment on 9 June 1994. During that period he performed his normal duties, lost no time from work and required no medical treatment.

The applicant also admitted that he did not tell his employer that he was resigning his employment because of the condition of his left knee. It now transpires that the first time the worker made a claim for weekly payments of compensation was by the filing of the application for determination on 24 April 1995 and it appears to me that that is the appropriate date on which to award him interest on the arrears of weekly payments under the award.

I also made an award for the applicant in respect of 15 per cent loss of efficient use of the left leg at or above the knee. A claim for 25 per cent loss of efficient use of the left leg at or above the knee was first made on the employer by the filing and service of the application for determination on 24 April 1995.

However, a medical report supporting any entitlement to compensation under section 66 was first served by the applicant on 30 October 1995. That medical report assessed a 30 per cent loss of efficient use of the left leg at or above the knee.

Earlier, the employer had received on or about 16 September 1995 assessments from Dr Frank Harvey of a 5 per cent loss of efficient use of the left leg at or above the knee and an assessment from Dr James Bodel of a loss of efficient use of between 6 and 8 per cent of the left leg at or above the knee. Clearly the employer's medical reports were not sufficient to enable the applicant to succeed in his claim for an entitlement under section 67.

The provisions of Schedule 6, Part 11, clause 1(a), clearly place the onus on the worker to both particularise his claim and, in the case of a claim under section 66, to provide a "supporting medical report". The applicant argues today that "supporting medical report" means any medical report which may support the whole or some part of the applicant's case and is not limited to a medical report "supporting" the particulars delivered as to the extent of the claim under section 66.

However, in my view, on a proper interpretation of Schedule 6, Part 11, clause 1(a), the "supporting medical report" means a medical report supporting the particulars delivered by the worker which particulars and medical report should be sufficient to enable the employer to ascertain the nature and the amount of the compensation claimed under section 66 and therefore whether the worker be entitled to any lump sum compensation under section 67 and perhaps the extent of it.

In my view, therefore, the appropriate date in which to order interest on the lump sum awarded under section 66 and so much of the lump sum under section 67 referable to the past is from the date when the supporting medical report was served upon the employer, which was 30 October 1995.

It is not clear whether I did or did not make any formal order on 29 January 1996 to apportion the award under section 67. That award was for $16,250. The solicitor for the applicant submits that I did indicate that I thought $5,000 was appropriate compensation for the past. I cannot recollect whether I did say that or not but it appears to me that, on the merits in any event, $5,000 is the appropriate figure and therefore I probably did so.

For those reasons:

I order the respondent to pay interest on the arrears of weekly payments under this award at the rate of 3 per cent per annum from 24 April 1995.

I order the respondent to pay interest on the lump sum awarded under section 66 at the rate of 6 per cent per annum from 30 October 1995.

I order the respondent to pay interest on $5,000 of the sum awarded under section 67 at the rate of 3 per cent per annum from 30 October 1995.

I order the respondent to pay the applicant's costs of today.

Orders accordingly

Solicitors for the applicant: Mitchell Playford & Radburn

Solicitors for the respondent: PW Turk & Associates