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Yang v WorkCover Queensland[2021] QSC 274

Yang v WorkCover Queensland[2021] QSC 274

SUPREME COURT OF QUEENSLAND

CITATION:

Yang v WorkCover Queensland [2021] QSC 274

PARTIES:

CHANG MO YANG

(applicant)

v

WORKCOVER QUEENSLAND

(ABN 40 577 162 756)

(respondent)

FILE NO/S:

BS 7710 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court in Brisbane

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2021

JUDGE:

Applegarth J

ORDER:

  1. The respondent’s decision made on 10 June 2021 to terminate the applicant’s entitlement to workers’ compensation be set aside.
  2. The respondent pay the applicant’s costs of and incidental to the application to be assessed if not agreed.

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – DISCONTINUATION OF PAYMENTS – GENERALLY – where the applicant suffered a stroke at work – where, following a review, the Workers’ Compensation Regulator accepted the applicant’s application for workers’ compensation – where WorkCover made further inquiries and obtained another opinion – where a representative of WorkCover purported to terminate the applicant’s entitlement to workers’ compensation under s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the decision was authorised under s 168 – whether the words of s 168 should be given their ordinary or a different meaning

Acts Interpretation Act 1954 (Qld), s 14A, s 23, s 24AA

Judicial Review Act 1991(Qld), s 20

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s  5, s  6, s 32, s 108, s 131, s 132, s 134, s 144, s 144A, s 144B, s 168, s 190, s  208, s 220, ss 533-537, s 540, s 541

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, cited

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, cited

Carr v Western Australia (2007) 232 CLR 138, cited

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, cited

Export Development Grants Board v E M I (Australia) Ltd (1985) 61 ALR 115, cited

Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26; [2000] QSC 159, cited

Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, cited

Re 56 Denton Road, Twickenham [1953] 1 Ch 51, cited

Shelley v Board of Professional Engineers Queensland & Anor [2020] QSC 38, cited

SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81; [2018] QCA 296, cited

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, cited

Thompson v Goold & Co [1910] AC 409, cited

Wentworth Securities Ltd v Jones [1980] AC 74, cited

COUNSEL:

M Grant-Taylor QC and P M Nolan for the applicant

M A Eade for the respondent

SOLICITORS:

Littles Lawyers for the applicant

Hall & Wilcox for the respondent

  1. [1]
    This application concerns the proper interpretation of s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).
  2. [2]
    The applicant suffered a stroke at work.  He applied for workers’ compensation on the basis that the stress he experienced at work was a significant contributing factor to his stroke.  The respondent insurer (WorkCover) rejected his application.  However, following a review, the Workers’ Compensation Regulator set aside WorkCover’s decision and substituted a new decision to accept the application in accordance with s 32 of the Act.  It preferred the expert opinion of a doctor who had examined the applicant twice to the opinion of a doctor who had not personally examined him. 
  3. [3]
    The applicant then began to receive weekly workers’ compensation payments.
  4. [4]
    WorkCover made further inquiries and obtained the opinion of a new doctor who stated: “I do not think the cerebral haemorrhage is secondary to hypertension caused by work stress.”

The decision

  1. [5]
    Two days after the opinion was given a representative of WorkCover purported to terminate the applicant’s entitlement to workers’ compensation.  The reasons for her decision stated that s 168 allows WorkCover to review the payment of compensation.  She stated that ss 144A and 144B outline when:
  • weekly payments of compensation stop; and
  • payment of medical treatment, hospitalisation and expenses stop. 
  1. [6]
    The reasons informed the applicant “I have reviewed your claim and in light of new medical information the decision has been made to cease your claim …”.  She advised that she had accepted the medical opinion that the stroke was not related to the applicant’s employment but was due to pre-existing, untreated hypertension.  She advised that WorkCover would be “ceasing” the applicant’s claim and that no further weekly payments or medical expenses would be payable by WorkCover.
  2. [7]
    Oddly and inconsistently with a finding that there had not been a work-related injury, the reasons added:

“After a careful review, I confirm your work-related injury will not improve with further treatment and no longer prevents you from working.”

  1. [8]
    Despite the decision-maker’s purported reliance upon ss 144A and 144B, in this proceeding WorkCover acknowledges that ss 144A and 144B did not authorise the purported decision.  This is because s 144A states, among other things, that the entitlement to weekly payment stops when “the incapacity because of the work-related injury stops”.  Section 144B states that medical treatment only stops when the weekly payments stop and the injury is not likely to improve with further treatment or hospitalisation.
  2. [9]
    WorkCover did not decide that an incapacity because of a work-related injury had stopped.  On the contrary, it decided that the applicant never had a work-related injury. 
  3. [10]
    To resist the application for judicial review of its decision, WorkCover must succeed on an argument about the meaning of s 168.

The parties’ submissions on the issue of construction

  1. [11]
    Section 168 provides: 

Review of compensation

  1. (1)
    If an insurer considers a person’s entitlement to compensation under this Act may have changed, the insurer may review the person’s entitlement to compensation under this Act.
  1. (2)
    On the review, the insurer may terminate, suspend, decrease or increase the person’s entitlement to compensation under this Act.”
  1. [12]
    The applicant submits that s 168 only allows termination when an insurer considers a person’s “entitlement to compensation under this Act may have changed”.  It is premised upon the existence of an entitlement to compensation, such as weekly payments for a certain period.  The “entitlement” either exists or it does not.
  2. [13]
    According to the applicant, s 168 is intended to address situations where a change in circumstances following the acceptance of a claim results in a claimant no longer having an incapacity because of a work-related injury or the incapacity from the work-related injury increases or decreases.  If, for example, the incapacity “stops” then the entitlement to weekly payments of compensation stops.  This is how s 144A(1)(a) operates.  If an insurer considers that a person’s entitlement to compensation “may have changed” in such a way, then it may review the entitlement under s 168(1) and, on the review, exercise the powers conferred by s 168(2).
  3. [14]
    The applicant submits that this is not a case in which there was a change in entitlement or that WorkCover considered that an existing entitlement may have changed.  Instead, upon obtaining additional records and a new medical opinion, it decided that the initial claim should not have been accepted and that the Regulator’s decision to accept the claim should cease to operate.
  4. [15]
    According to the applicant, s 168 was not intended to allow the insurer to revisit, in an unqualified fashion, subject matters that already have been considered in determining to accept a claim.
  5. [16]
    WorkCover favours a broader view of s 168 so as to allow it to revisit a statutory entitlement and terminate it when there has been a change in circumstances, such as further information or a new opinion.  It argues that unless s 168 is given a broad construction so as to allow an insurer to revisit “the statutory threshold”, it is difficult to see what work the provision would have to do in relation to the termination of a person’s entitlement to compensation. WorkCover submits that its preferred construction is supported by the purpose of the Act and that the section should be construed as allowing it to conduct a reassessment as to whether an applicant for compensation ever met the statutory threshold.  It argues that the section should be construed so as to permit a review whenever there has been a “change in circumstances”.

The issue

  1. [17]
    Section 168 is premised on the existence of a person’s entitlement to compensation.  The ordinary meaning of the section is that the insurer’s power to review and then to terminate, suspend, decrease or increase the person’s entitlement to compensation only arises if:
    1. (a)
      there is, in fact, an entitlement to compensation; and
    2. (b)
      the insurer considers that the entitlement “may have changed”. 
  2. [18]
    WorkCover’s preferred construction tends to interpret s 168(1) as if the power arises in respect of a claimed entitlement.  WorkCover’s approach requires s 168 to be given an expansive interpretation as if certain words were read into it.  In effect, WorkCover would have s 168 apply as if it read:

“If an insurer considers the circumstances which founded a claimed a person’s entitlement to compensation under this Act may have changed, the insurer may review a finding that the person’s has an entitlement to compensation under this Act.”

  1. [19]
    Should the words of s 168 be given their ordinary meaning or the meaning urged by WorkCover?

A non-issue

  1. [20]
    The present application does not concern any issue as to whether the Act expressly or by implication confers a power on WorkCover to revoke its own decision or the decision of the Regulator (which stands in its shoes) to accept an application.  The Act confers no such express power upon the insurer.  WorkCover does not contend that it exercised any power to successively exercise the power to allow or reject an application.
  2. [21]
    Section 134 of the Act requires the insurer to allow or reject the application in the first instance.  Section 23 of the Acts Interpretation Act 1954 (Qld) provides for a power to be exercised as occasion arises and s 24AA confers a power to amend or repeal a decision.  But those implied powers are subject to a contrary intention in the Act.[1]  Because WorkCover does not seek to rely on any power that is said to be implied by the Acts Interpretation Act, I need not decide if such a power exists in respect of allowing or rejecting an application for workers’ compensation.

Principles of statutory interpretation

  1. [22]
    The task of statutory construction begins with a consideration of the text itself.[2]  The language which has actually been employed in the text of legislation “is the surest guide to legislative intention”.[3]  The meaning of a provision must be determined in context and by reference to the language of the Act viewed as a whole.[4]  Consideration of context includes the general purpose and policy of a provision.[5]  Consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.[6]  The interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[7]

Text and context

  1. [23]
    As quoted above, s 168 speaks of “a person’s entitlement to compensation under this Act”. The section is premised on the person in fact having an entitlement to compensation, not simply that the person has been found to have such an entitlement, a finding which may prove in the fullness of time to be wrong.
  2. [24]
    Section 108(1) defines when a person is entitled to compensation.  It provides that compensation is payable under the Act “for an injury sustained by a worker”.  The word “injury” is defined by s 32 as follows:

“An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”[8]

  1. [25]
    Section 132 requires an application for compensation made in an approved form to be lodged with the insurer and accompanied by certain information.  Once the claim is lodged it must be allowed or rejected in the first instance by the insurer.[9]  Subject to certain limited exceptions, the application must be lodged within six months after the entitlement to compensation for the injury arises[10] and must be allowed or rejected by the insurer within 20 business days after the application is made.[11]
  2. [26]
    A claimant, worker or employer aggrieved by a decision to allow or reject an application for compensation may apply to the Regulator for review.[12]  On such a review the Regulator “stands in the shoes” of the decision-maker.
  3. [27]
    If an application for compensation is accepted, either by the insurer in the first instance or upon review by the Regulator, then compensation is payable. Chapter 3, Part 9 provides for weekly payments of compensation for a certain period during the period of incapacity and up to a maximum amount.  Chapter 3, Part 10 provides compensation for permanent impairment.  Chapter 4 provides for appropriate medical treatment, hospitalisation and rehabilitation of the worker.  That chapter applies “if a worker sustains an injury for which compensation under chapter 3 is payable”.[13] 
  4. [28]
    The workers’ compensation scheme established by the Act exists to:
  • provide benefits for workers who sustain injury in their employment, for dependents if the worker’s injury results in the worker’s death, for persons other than workers and for other benefits; and
  • encourage improved health and safety performance by employers.[14]
  1. [29]
    Section 5(2) identifies the main provisions of the scheme for injury sustained by workers in their employment.  They include provisions for compensation and the management of compensation claims by insurers.[15]  The scheme is intended to maintain a balance between:
  • providing fair and appropriate benefits for injured workers, their dependents and persons other than workers; and
  • ensuring reasonable cost levels for employers.[16]
  1. [30]
    Section 6 states that the Act provides for “the efficient administration of the scheme” through the establishment of the office of the Workers’ Compensation Regulator and WorkCover.
  2. [31]
    An interpretation that best serves the purposes of the Act is to be preferred.  However, that general rule of interpretation may be of little assistance where a statutory provision strikes a balance between competing interests.[17]
  3. [32]
    The Act seeks to ensure that benefits are paid to workers who are incapacitated due to a work-related injury and not to others who are not entitled to compensation. However, that purpose is not achieved at all costs.  As Gleeson CJ stated in Carr v Western Australia:

“Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem.”[18]

  1. [33]
    The purpose that compensation be paid only to workers who are incapacitated due to a work-related injury (thereby ensuring reasonable cost levels for employers) is sought to be achieved by a scheme which is efficiently administered with decisions on applications for compensation being made within 20 working days of the application being lodged.  The statutory goal of providing weekly benefits for injured workers through the efficient administration of the scheme may come at the expense of other goals.  Prompt decisions on the basis of the information which is available at the time of decision may lead to decisions being made that are different to the those that would have been made with more information and in the fullness of time.
  2. [34]
    The statutory command to decide an application for compensation within a relatively short time achieves a degree of efficiency and enables claimants to know where they stand.  The scheme contemplates that decisions, possibly erroneous decisions, will be made in the interests of efficiency in circumstances in which allowing more time to assemble further information might have allowed different and better decisions to be made. 
  3. [35]
    If in a difficult case a decision-maker is not satisfied that an application should be allowed due to the insufficiency of information, then a decision may be made to reject the application, subject to the claimant’s review rights.  One would imagine that such cases will be rare and that most applications can be simply accepted or rejected on the basis of the information given to the insurer or which the insurer assembles within 20 working days after the application is received.
  4. [36]
    The Act advances the purpose of providing compensation in a certain amount for a certain period for individuals who are injured and unable to work.  The goal of providing benefits after a decision is made and some certainty to injured workers that they can rely on regular weekly payments for a period might be undermined by interpreting s 168 as permitting an insurer to change its mind in the light of further information or further reflection.  The objects of the Act, including the efficient administration of the scheme, may be said to make the commitment to make weekly payments for a certain period a price that is to be paid in circumstances in which it is easy to imagine that further information and new opinions might incline the decision-maker to change its mind about whether an entitlement exists.
  5. [37]
    That position is to be contrasted with the case of an application that is made fraudulently or on the basis of information which is false or misleading.  Specific sections address those matters including the ending of an entitlement upon conviction for certain offences and repayment of compensation.[19]
  6. [38]
    Where Parliament confers on an entity, such as WorkCover, the duty of deciding applications for compensation, and those decisions are not expressly described as preliminary or provisional, then a power to alter or withdraw that decision so as to affect the right to continue to receive the compensation to which the person has been found to be entitled, should be reasonably clear.  If a power to terminate such a benefit was to be inferred to arise simply in circumstances in which the decision-maker obtained further information or a new opinion then it may introduce “a lamentable measure of uncertainty”[20] and disturb the welfare of injured persons who have honestly and successfully advanced an application for compensation. 
  7. [39]
    The suggested power in s 168 to reconsider a decision that a person has an entitlement to compensation under the Act is said to arise despite the fact that the decision grants what might be described as “a final and not a provisional legal entitlement”. [21]  In the context of a statutory entitlement to be paid certain amounts for a defined period, the existence of the suggested power to revisit a decision should be reasonably apparent from the text of the provision viewed in its statutory context.
  8. [40]
    Similar interpretative considerations that apply in determining whether the legislature intended to displace a power that otherwise would be implied by the Acts Interpretation Act[22] arise in this context.  The context is legislation that confers entitlements to compensation in the form of weekly payments.  Decisions that a person has such an entitlement are not described in the Act as provisional and are not subject to an express power to alter, amend or revoke that decision.  Section 168 does not speak in terms of a power to revisit an erroneous decision.  A power in s 168 to reassess whether an entitlement to compensation ever existed should not be lightly inferred.

Does the applicant’s interpretation leave s 168 with no work to do?

  1. [41]
    WorkCover argues that, properly construed, s 168 permits it to reassess a “person’s entitlement to compensation” even where a person does not in fact have an entitlement to compensation because, for example, the claimant was not a worker or the injury that the worker sustained is not an “injury” as defined by s 32 of the Act.  It submits that s 168 is not limited to cases in which a worker has sustained an “injury” within the meaning of the Act but by reason of some subsequent event, compensation is no longer required at all or for a period of time or is required to be increased or decreased.  An example of such a subsequent event would be successful medical treatment that ends the impairment.  According to WorkCover, s 168 extends to circumstances in which it considers the threshold for compensation under s 108 did not exist in the first place. 
  2. [42]
    In support of this argument WorkCover argues that it is difficult to see what work s 168 would have to do in relation to the termination of a person’s entitlement to compensation if it did not allow the insurer to revisit the statutory threshold.  It observes that ss 144A, 144B and 190(2) (which applies to a worker who has been given a notice of assessment) operate “automatically” without any review or intervention by the insurer. 
  3. [43]
    Sections 144A and 144B provide as follows:

144A When weekly payments of compensation stop

  1. (1)
    The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—
  1. (a)
    the incapacity because of the work related injury stops;
  1. (b)
    the worker has received weekly payments for the incapacity for 5 years;
  1. (c)
    compensation under this part reaches the maximum amount under part 6.
  1. (2)
    If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.
  1. (3)
    Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.
  1. (4)
    This section does not limit another provision of this Act that stops weekly payments.

144B When payment of medical treatment, hospitalisation and expenses stops

  1. (1)
    The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when—
  1. (a)
    the entitlement of the worker to weekly payments of compensation under part 9 stops; and
  1. (b)
    medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.
  1. (2)
    Subsection (1) does not apply in relation to section 220 or part 5A.”
  1. [44]
    In a case in which s 144A is engaged (for example where the incapacity because of the work related injury stops) the entitlement of a worker to weekly payments of compensation stops.  WorkCover argues that it is difficult to see in what circumstances other than as enumerated in ss 144A(1), 144B(1) and 190(2) a person’s entitlement to compensation could or should stop so as to give the right to terminate in s 168 a separate and distinct operation.  The argument is that unless s 168 is interpreted as permitting what WorkCover’s submissions describe as “a re-assessment of the s 108 statutory threshold” it has no work to do.
  2. [45]
    I am unable to agree.  WorkCover is correct to point out that a section such as s 144A automatically stops the entitlement of a worker to compensation.  Under s 168(2) the insurer may terminate or suspend the person’s entitlement to compensation if the insurer considers a person’s entitlement to compensation under the Act “may have changed” and it conducts a review.
  3. [46]
    The power under s 168 to terminate is not confined to a case in which the entitlement to compensation has in fact stopped by virtue of a provision such as s 144A.  It is available for a case in which the insurer considers that the entitlement may have changed.  For example, the insurer may have some evidence that the incapacity that was caused by the work-related injury has stopped, but the position is not clear.  In order to terminate a person’s entitlement in such a case, WorkCover is not required to prove that the incapacity has in fact stopped.  It is sufficient for it to exercise the power under s 168(2) to terminate or suspend if it considers that the incapacity may have stopped and the entitlement to compensation under the Act thereby “may have changed” as a result of the automatic operation of s 144A.
  4. [47]
    One objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[23]  The interpretation favoured by the applicant gives s 168 work to do in the case of the termination of a person’s existing entitlement to compensation.  That interpretation permits WorkCover to terminate an entitlement to compensation in a case in which it considers that a person’s entitlement to compensation may have changed but did not in fact change. 
  5. [48]
    A simple example is an apparently successful operation which, on one view of the evidence or on the basis of information then available to WorkCover, suggests that the relevant incapacity has stopped.  In such a case where the position is uncertain, the efficient administration of the scheme favours WorkCover being able to terminate or suspend a person’s entitlement to compensation in an appropriate case rather than continue to make weekly payments and then seek to recover overpaid compensation after it becomes clear that the incapacity did in fact stop when WorkCover suspected this to be the case. 
  6. [49]
    The ordinary meaning of s 168 makes the power to review contingent on the existence of an actual “entitlement to compensation under the Act”.  On such an interpretation, s 168 has work to do in relation to termination of a person’s existing entitlement.

Recent amendments to s 168

  1. [50]
    WorkCover notes that s 168 in an earlier form was the subject of obiter dicta in SS Family Pty Ltd v WorkCover Queensland.[24]  The issue in that appeal was whether WorkCover’s acceptance of a claim for workers’ compensation meant it was not entitled to subsequently deny that the claimant was a “worker” in relation to a later claim for damages.  The Court of Appeal held that WorkCover was not precluded.  In the course of discussing provisions about workers’ compensation the Court referred in passing to s 168 and to other sections that were said to be consistent with a decision to allow an application for compensation having effect only in relation to compensation, and even then, only in the absence of a review under s 168.  The Court of Appeal was not concerned with the present issue which relates to the proper meaning of s 168.  Its observations are consistent with the interpretation of s 168 for which the applicant contends. 
  2. [51]
    At the time of the circumstances giving rise to that matter s 168 was in a different form and was not confined to circumstances in which the insurer considers a person’s entitlement to compensation “may have changed”.  Instead, s 168(1) provided that an insurer “may, from time to time, review a person’s entitlement to compensation”. 
  3. [52]
    The explanatory notes to the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld) do not illuminate the reasons for the changed wording to s 168, save that the amendments were “consequential” to amendments to s 220 of the Act and were “required to improve clarity of the operation of this provision”.  Section 220(2)(c) requires an insurer to refer a worker who has stopped receiving compensation for an injury under ss 144A, 168 or 190(2) and has not returned to work because of the injury, to an accredited rehabilitation and return to work program of the insurer.  Section 220(2)(c) tends to suggest that s 168 applies in the case of the cessation of compensation for a worker’s injury that was properly the subject of an entitlement to compensation.  However, even if s 220(2)(c) might apply in other circumstances, I doubt if it provides a sufficient basis to displace the ordinary meaning of s 168.  Neither the decision in SS Family Pty Ltd nor the 2019 amendments assist in determining the present issue of interpretation.

The insurer’s limited appeal rights

  1. [53]
    WorkCover notes that it does not have a right of appeal from the Regulator’s decision in a case such as this and this is an additional reason why s 168 should apply in circumstances in which a claim has been accepted on the basis of inaccurate or incomplete material.  This argument raises in a different context the issue earlier discussed.  In essence, the applicant contends that the Act should be interpreted on the basis that it confers entitlements to compensation which are administered under a scheme which is intended to facilitate the prompt payment of compensation on the basis of information which, in some cases, may be incomplete and open to subsequent contradiction.  A decision-maker finding an entitlement to compensation in an occasional case in which a claimant is not entitled to compensation is a price that the legislature seemingly accepts in the interest of the efficient administration of the scheme for the greater good of the overwhelming majority of claimants. 
  2. [54]
    The possibility of erroneous decisions being made on the basis of incomplete information may provide a policy reason to confer an express power on an insurer like WorkCover to reopen a case and reassess, in the light of additional information, whether the statutory requirement was in fact met.  The words of the statute do not confer such a power of reassessment in the case of someone who does not in fact have an entitlement.  The policy argument that such a power should exist is one which may support an amendment to the Act.  It does not necessarily require a departure from its ordinary meaning.

Reading words into s 168

  1. [55]
    WorkCover argues that whilst “the Court does not need to determine the outer bounds of any statutory right to review on this application, the construction advanced by [WorkCover] does not permit an unqualified review without bounds but rather is pre-conditioned upon a ‘change in circumstances’ and a lawful right to terminate by reference to statutory threshold requirements”.
  2. [56]
    The difficulty with this submission is that s 168 is not pre-conditioned upon a “change in circumstances”.  WorkCover’s argument requires these words to be read into the section.  The reading of words into s 168 so as to achieve what WorkCover contends is a proper policy objective, consistent with the general objects of the Act, has some features of a legislative function.  Such an exercise of reading words into the section is not necessary to avoid an absurdity or inconsistency with the rest of the Act. 
  3. [57]
    Words should not be read into a provision simply to reach a more convenient result that seems more consistent with the apparent purpose of the provision.  To do so risks undertaking a legislative function.[25] 
  4. [58]
    Lord Diplock in Wentworth Securities Ltd v Jones[26] stated three conditions for implying words into a statute.  McHugh JA in Bermingham v Corrective Services Commission of New South Wales summarised them as follows:

“First, the court must know the mischief with which the Act was dealing.  Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.  Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”[27]

In Taylor the Court found it unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient.[28]

  1. [59]
    Lord Diplock’s third condition is that it is possible to state with certainty the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.  In Wentworth Securities Lord Diplock stated:

“Unless this third condition is fulfilled any attempt by a Court of Justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.  Such an attempt crosses the boundary between construction and legislation.”[29]

  1. [60]
    Lord Diplock’s third condition was reformulated in Inco Europe Ltd v First Choice Distribution[30] that the Court must be “abundantly sure” of the substance, although not necessarily the precise words, Parliament would have used in the provision.  The House of Lords emphasised that the power to insert words is confined to plain cases of drafting mistakes and that courts must “abstain from any course which might have the appearance of judicial legislation”.[31]
  2. [61]
    In Taylor the High Court, after referring to Lord Diplock’s three conditions, stated that “the task remains the construction of the words the legislature has created” and observed that it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme”.[32]
  3. [62]
    In Esso Australia Pty Ltd v Australian Workers’ Union[33] Kiefel CJ, Keane, Nettle and Edelman JJ stated:

“The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have.”

  1. [63]
    The respondent’s interpretation, in effect, reads words into s 168.  Earlier at [18] I have ventured with underlined, additional words one possible form of words that might be read into s 168 to achieve the outcome for which the respondent contends.  Other forms of words might be adopted to give WorkCover the power which it purports to exercise in the light of changed circumstances.
  2. [64]
    WorkCover submits that it is not necessary for this Court to determine the outer bounds of any statutory right to review.  However, the interpretation for which it contends, including any words which necessarily must be read into the section, requires some precision about the scope of the section according to that interpretation.  The respondent contemplates the words in s 168 being read to apply at least in a case in which there has been a “change in circumstances”.  However, the words which WorkCover seeks to include by implication are uncertain in their scope.  They are capable of referring to a wide range of circumstances including additional information.  Would the change in circumstances include obtaining information that could have been obtained by the insurer before the decision that it now seeks to reassess?  Are the changed circumstances limited to changes in the applicant’s personal circumstances, such as the nature and extent of an injury or impairment?  Would they extend to circumstances in which a new medical opinion comes to light?  Would the new opinion have to be material, in the sense of being likely to lead to a different finding?
  3. [65]
    I am not persuaded that it is necessary to construe s 168 in the manner for which WorkCover contends in order to give the section a workable operation, to avoid an absurdity or to avoid some manifest contradiction of the apparent purpose of the provision.  In Thompson v Goold & Co[34] Lord Mersey said “it is a strong thing to read into an Act of Parliament words that are not there, and in the absence of clear necessity it is a wrong thing to do”.  Subsequent authorities have explored the notion of necessity.
  4. [66]
    I am not persuaded that the purposive approach to statutory interpretation justifies the Court treating s 168 as if additional words were contained in it.  The authorities favour the view that it is not sufficient that the modified construction is reasonably open having regard to the statutory scheme.  The Court must be able to state with some certainty at least the substance of the provision that Parliament would have made to overcome the omission.  I am unable to state with any certainty what provision Parliament would have drafted had it been brought to its attention that s 168, according to its natural and ordinary meaning, applies only to a case in which a person has an actual entitlement to compensation.
  5. [67]
    It is not sufficient that, as a matter of policy, the interpretation of s 168 for which WorkCover contends may be said to advance the policy of the Act and is consistent with the various purposes for which the legislation was enacted.  There is a policy argument that the purpose of the Act is best achieved by payments being made on the basis of a preliminary finding about a person’s entitlement so that injured persons can promptly receive payments, but allowing WorkCover to review its finding once more information becomes available.  This, however, is not what s 168 of the Act says.  It is not evident that Parliament intended s 168 to operate as if those kind of words were read into it.
  6. [68]
    A competing policy argument is that Parliament intended the scheme to operate on the basis of findings (some of which are open to review) about a person’s entitlement to compensation and that because the finding is not described by the Act as provisional, the Act allows a person to receive weekly payments for the relevant period.  On this policy approach, the possibility of erroneous findings is something which the scheme contemplates in the interests of administrative efficiency and providing injured workers with a level of security and predictability of payment.
  7. [69]
    In circumstances in which the ordinary meaning of s 168 is supported by such a policy, a preference for the policy favoured by WorkCover’s interpretation is not sufficient to read into s 168 the kind of words which WorkCover’s interpretation requires.  It is not sufficient that the modified construction for which WorkCover contends may be consistent with the statutory scheme.

Conclusion

  1. [70]
    The applicant’s case on the proper construction of s 168 is supported by the ordinary meaning of the provision in its context.  I am not persuaded by WorkCover that it is appropriate to depart from the ordinary meaning of s 168 which is conditional upon two matters:
    1. (a)
      a person’s entitlement to compensation under the Act; and
    2. (b)
      a consideration by the insurer that the entitlement “may have changed”.
  2. [71]
    Section 168 refers to a person’s entitlement to compensation rather than the circumstances under which a person was found to have an entitlement to compensation.  It does not refer to such circumstances and it is a strong thing to interpret the section as if those words were read into it.  The section does not have to be read as if additional words appeared in it about a change in circumstances in order for the section to have work to do in the case of the termination of an entitlement.  I am not persuaded that the section should be interpreted as if those words appeared in it.
  3. [72]
    For these reasons I favour the applicant’s interpretation of s 168.  The decision being challenged in these proceedings should be set aside.  The decision was not authorised by the enactment under which it was purported to be made, namely s 168 of the Act.  In addition, it involved an error of law within the meaning of s 20(1)(f) of the Judicial Review Act 1991 (Qld). 
  4. [73]
    The appropriate remedy is to set aside the respondent’s decision dated 10 June 2021.  There seems no reason as to why costs should not follow the event.  Therefore I propose to order as follows:
  1. The respondent’s decision made on 10 June 2021 to terminate the applicant’s entitlement to workers’ compensation be set aside.
  1. The respondent pay the applicant’s costs of and incidental to the application to be assessed if not agreed.

Footnotes

[1]Shelley v Board of Professional Engineers Queensland & Anor [2020] QSC 38 at [66]-[68]; Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26 at [30]-[41]; [2000] QSC 159 at [30]-[41].

[2]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46 [47] (“Alcan”). 

[3]Ibid at 47 [47].

[4]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

[5]Alcan at 47 [47].

[6]R v A2 (2019) 93 ALJR 1106 at 1117 [32]; [2019] HCA 35 at [32].

[7]Acts Interpretation Act 1954 (Qld) s 14A.

[8]Section 32 goes on to define other matters which may be an injury including the aggravation in certain circumstances of a personal injury, a disease or a medical condition: see s 32(3)(b).  The decision under review, having accepted the new medical opinion, apparently did not consider whether, on that basis, the applicant’s employment was a significant contributing factor to the aggravation of the medical condition hypertension.

[9]The Act, s 134(1).

[10]The Act, s 131(1).

[11]The Act, s 134(2).

[12]The Act, ss 540, 541.

[13]The Act, s 208(1).

[14]The Act, s 5(1). 

[15]The Act, s 5(2)(a) and (e).

[16]The Act, s 5(4)(a).

[17]Carr v Western Australia (2007) 232 CLR 138 at 143 [5], approved in Alcan at [51].

[18]Ibid.

[19]The Act, ss 533-537.

[20]In re 56 Denton Road, Twickenham [1953] 1 Ch 51 at 56-57.

[21]Export Development Grants Board v EMI (Australia) Ltd (1985) 61 ALR 115 at 123.

[22]See the authorities cited at footnote 1.

[23]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. 

[24][2019] 3 Qd R 81; [2018] QCA 296.

[25]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 549 [40] (“Taylor”).

[26][1980] AC 74.

[27](1988) 15 NSWLR 292 at 302.

[28]Taylor at 549 [39].

[29][1980] AC 74 at 105-106.

[30][2000] 1 WLR 586 at 592.

[31]Ibid.

[32]Taylor at 549 [39].

[33](2017) 263 CLR 551 at 582 [52].

[34][1910] AC 409 at 420.

Close

Editorial Notes

  • Published Case Name:

    Yang v WorkCover Queensland

  • Shortened Case Name:

    Yang v WorkCover Queensland

  • MNC:

    [2021] QSC 274

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    22 Oct 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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