Antonio Rosiaio Oliveira v Peter Favetti & Sons Pty Limited [2001] NSWCC 179 (15 August 2001)

Last Updated: 12 June 2002

NEW SOUTH WALES COMPENSATION COURT

CITATION: Antonio Rosiaio Oliveira v Peter Favetti & Sons Pty Limited [2001] NSWCC 179


PARTIES:
Antonio Rosiaio Oliveira
Peter Favetti & Sons Pty Limited


CASE NUMBER: 43386 of 1998 of 2002.00


CATCH WORDS: Miscellaneous Matters


LEGISLATION CITED:
Workers Compensation Act 1987
Workers Injury Management Act

CORAM: Campbell CJ

DATES OF HEARING: 15 August 2001

DECISION DATE: 15/08/2001


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr R P Linegar instructed by Taylor & Scott. appeared for the applicant


FOR RESPONDENT:
Mr D Scarlett (solicitor) instructed by Hunt & Hunt appeared for the respondent


JUDGMENT:

1. This is a claim for interest upon awards made in favour of the applicant by me on 21 December 1999. At the time of making the award I granted liberty to the parties to apply should they be unable to agree upon the amount of interest to be paid. They have been unable to so agree.

2. Mr Linegar of counsel appeared for the applicant and Mr Scarlett, solicitor for the respondent. Counsels’ submissions have been recorded and transcribed and it is therefore unnecessary for me to refer to each submission merely to ensure that it is noted. The recording and transcription of the addresses also allows me not to deal in this short judgment with a number of issues which were raised during debate but expressly not pursued.

3. The matter which has led to the dispute between the parties is that the applicant’s initial proceedings in matter number 2829 of 1995 were struck out on 28 April 1997, the applicant having determined to commence common law proceedings. In the event the common law proceedings were not pursued and the present proceedings were commenced on 20 October 1998. As I understand Mr Scarlett he did not argue that, absent the statutory provisions to which I shall refer, it would not be appropriate to award interest even though the applicant had in effect discontinued from 28 April 1997 to 28 October 1998. If I be wrong in that I would nonetheless hold that I should, absent those provisions, make such an order. There is no dispute as to the rates of interest. Whilst the order is discretionary the principles discussed in Faulkner v Burke (1992 19 NSWLR 574, especially per Priestley JA at 576 and Perry v Favell No.2 BC 9505 403 lead me to conclude that on the facts of the case, absent the statutory provisions, the correct discretionary decision would be to award interest. I should mention that when Moffat P in Bennett v Jones (1997) 2 NSWLR 353 at 371 spoke of deliberate delaying tactics as a discretionary ground for refusal of interest he coupled it with it appearing likely to be to the financial detriment of the other party. There is no evidence to suggest such a likelihood in this case.

4. The first statutory matter that Mr Scarlett relied upon was Sch 6.11.1(a) of the Workers Compensation Act 1987. The clause relevantly provides:

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 was duly made before the commencement of 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 the compensation claimed.

5. Mr Scarlett then went to the facts of the case to argue that particulars of the relevant sort were not delivered before 27 August 1999. However, I accept Mr Linegar’s submission that the provision offers alternatives and that the first alternative was necessarily satisfied by the findings I made in my judgment that claims had been duly made at a time which destroys this limb of Mr Scarlett’s argument.

6. Mr Scarlett then referred to s 109(2)(c) of the Workers Injury Management Act. That subsection came into effect on 1 August 1998, 80 days before my award. The subsection relevantly provides:

Interest cannot be awarded under this section on any compensation payable under this Act for any period during which proceedings before the Court were adjourned on the application of the claimant for the compensation or pursuant to s 102.

7. Mr Scarlett conceded that the prohibition did not apply in terms, but argued that the introduction of this provision had introduced a concept of delay by the applicant which should, as a matter of discretion, be applied in respect of delay occasioned by the act of the applicant in having the proceedings struck out. The extent to which changes in statutory law may be used to support or prompt changes in common law are discussed at length in Esso Australian Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 60 to 63 and at 86. However I do not need to go to those judgments as what has occurred here is an increase in the weight to be given to an already existing discretionary factor resulting from the adoption by the legislature of a provision based upon similar, although not identical, characteristics.

8. It is clear that, as from 1 August 1998, the aspect that the applicant had not had the use of the money is to be overridden by the statute, where there is an adjournment on the application of the applicant. To my mind such a situation lends weight to the discretionary factor that the applicant had had the matter struck out. The present case is a matter of discretion and I consider that the period for which interest is to be allowed should be reduced by at least 80 days.

9. Mr Scarlett argued that it should be more than that period and relied upon s 113(2) of the Workers Compensation Act, the relevant interest provision prior to 1 August 1998. That section relevantly provides:

Interest cannot be ordered under this section on any compensation payable under this Act for any period during which proceedings before the court were adjourned on the application of the claimant for the compensation or pursuant to section 106E.

10. At first sight, the view I have expressed above would still apply, however the relevant transitional provision, which is Sch 6.11.1 provides:

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.

11. As the legislature expressly provides that the limitation does not apply in respect of an injury before the introduction of the provision and the injury in this matter is such an injury, it would be inconsistent with the foundation upon which I gave greater weight to the delay factor to give it such greater weight in this case. Therefore, I do not consider that the period of deduction should be more than 80 days.

12. I should mention that the transitional provisions do apply another limitation to cases such as the present, namely interest must not be ordered on any compensation payable under this Act for any period before a claim for the compensation was duly made. However, it was not put to me that this provision introduced an element of time or delay so as to have the effect I have attributed to the adjournment provision. In the absence of such an argument I am inclined to the view that the limitation setting a starting point is of a somewhat different character.

13. In the event I consider that I should allow the applicant’s claim subject to the deduction in respect of a period of 80 days. That on the agreed figures produces an award for interest in the sum of $20,407 which award I duly make.

14. I order that the respondent pay the applicant’s costs of the motion and certify that it is a matter appropriate for counsel. The long established law was that interest would be payable despite delays of this character. Mr Scarlett introduced the concept that an amendment, which in terms did not apply, could be said to support the introduction of a discretionary aspect. That is a proposition which is relatively novel and one that I think it is not inappropriate that counsel should be retained to deal with. Whilst I did not find it necessary to go to the judgments in the Esso case the fact is there was, in that case, much discussion relating to the way in which legislative amendments can affect principles of common law and, this is an analogous situation. In my view it was a case proper for the retention of counsel. I should add that the amount at issue was not inconsiderable.
Mr R P Linegar instructed by Taylor & Scott. appeared for the applicant
Mr D Scarlett (solicitor) instructed by Hunt & Hunt appeared for the respondent