Theoret v Aces Incorporated [2021] NSWCA 3

Theoret v Aces Incorporated [2021] NSWCA 3

Section 82A(1) of the Workers Compensation Act 1987 (NSW) is capable of giving effect to indexation of pre-injury average weekly earnings of its own force. The appellant's construction did not make s 82A operate retrospectively because it applied only to payments after commencement, while allowing the historical earnings figure used in those payments to be indexed from the relevant entitlement date. The Authority's failure to publish numbers for review dates before 1 April 2013 did not alter the construction of s 82A, because s 82A(4) is procedural or mechanical and has utility as a published reference, and s 82A(5) indicates that historical indexation is not inconsistent with the...

Jurisdiction
Australia
Judgment Date
02 February 2021
Procedural Posture
Appeal From Workers Compensation Commission / Court of Appeal Decision
Outcome
Appeal allowed; judgment below set aside; matter remitted to the Workers Compensation Commission; respondent ordered to pay the appellant's costs.
Legal Topics
['indexation of Weekly Compensation Payments' 'pre Injury Average Weekly Earnings' 'transitional Application of 2012 Amendments' 'prospective and Retrospective Operation of Legislation']
['workers Compensation' 'statutory Interpretation'] ['indexation of Weekly Compensation Payments' 'pre Injury Average Weekly Earnings' 'transitional Application of 2012 Amendments' 'prospective and Retrospective Operation of Legislation']

Case Brief

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Procedural Posture

Appeal From Workers Compensation Commission / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether s 82A of the Workers Compensation Act 1987 (NSW) entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the 2012 amendments came into force.' 'Whether the absence of a published Authority declaration for review dates before 1 April 2013 prevents historical indexation under s 82A.' 'What factual date must be determined as the day on which the worker became entitled to weekly payments in respect of the relevant injury for the purposes of s 82A.']

Ratio Decidendi

Section 82A(1) of the Workers Compensation Act 1987 (NSW) is capable of giving effect to indexation of pre-injury average weekly earnings of its own force. The appellant's construction did not make s 82A operate retrospectively because it applied only to payments after commencement, while allowing the historical earnings figure used in those payments to be indexed from the relevant entitlement date. The Authority's failure to publish numbers for review dates before 1 April 2013 did not alter the construction of s 82A, because s 82A(4) is procedural or mechanical and has utility as a published reference, and s 82A(5) indicates that historical indexation is not inconsistent with the...

Court Disposition

Appeal allowed; judgment below set aside; matter remitted to the Workers Compensation Commission; respondent ordered to pay the appellant's costs.

Orders

  • ['Allow the appeal.' 'Set aside the judgment of the court below.' 'Remit the matter to the Workers Compensation Commission to be determined according to law.' "Respondent to pay the appellant's costs."]