Ansett Australia v Mackay

[2000] VSC 92

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

Not Restricted

No. 7935 of 1999

ANSETT AUSTRALIA	Appellant
V
ASHLEY MACKAY	Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2000
DATE OF JUDGMENT:	23 March 2000
CASE MAY BE CITED AS:	Ansett Australia v Mackay
MEDIA NEUTRAL CITATION:	[2000] VSC 92

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Workers’ Compensation – Appeal from Magistrates’ Court – Written notice of rejection of claim given out of time – Effect of s 109(1) Accident Compensation Act 1985.

Accident Compensation Act 1985; ss 103(1), 109(1)

Coates v Commissioner for Railways (1961) 78 WN (NSW) 377
FAI Workers’ Compensation (Vic) Pty Ltd v Brewster [1999] VSC 388
Fyffe v Victorian Workcover Authority (County Court of Victoria, Rendit J, 31/10/94)
Gray v Accident Compensation Commission (1994) VACR 73-388
Muller v Dalgety & Co Ltd (1909) 9 CLR 693

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Fleming	Gadens Lawyers
For the Respondent	Mr N Moshinsky QC with Mr P Coish	Maurice Blackburn Cashman

HER HONOUR:

1. This proceeding is an appeal pursuant to section 109 of the Magistrates’ Court Act 1989, which provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court, on a question of law, from a final order of the Magistrates’ Court in that proceeding.

1. The facts in this matter are not in dispute.   On or about 14 December 1998 the respondent, who was then employed by the appellant, lodged a claim under the Accident Compensation Act 1985 (“the Act”) for weekly payments of compensation and medical and like expenses. The date of lodging is shown on the claim form as 4 December, and it would appear that the affidavit of the respondent’s solicitor is in error in giving the date as 14 December. However, nothing turns on this. On or about 17 March 1999, after the occurrence of some events which are not relevant for present purposes, QBE, the authorised insurer of the appellant, gave written notice of a decision to reject the claim. The matter came before the Magistrates’ Court at Melbourne, constituted by Mr T M O’Dwyer, Magistrate. At the hearing before the Magistrate, counsel for the appellant conceded that the notice was given outside the time prescribed by section 109(1) of the Act, which reads as follows:

109.(1) If the Authority or a self-insurer does not give written notice of a decision to accept or reject a claim for weekly payments within 28 days of receiving the claim –

(a)the claim is deemed to have been accepted;     and

(b)the Authority or self-insurer must pay weekly payments to the worker subject to and in accordance with this Part.

1. At the conclusion of the hearing on 25 November 1999, the Magistrate said that the effect of section 109 was to establish a scheme whereby, if the Authority did not act expeditiously in terms of that provision, the worker’s claim would be deemed to have been accepted. He heard no oral evidence. He had before him a claim form filled out and attested by the respondent in accordance with section 103(1)(a) of the Act and a certificate under section 105 (“the medical certificate”) in the prescribed form signed by a medical practitioner, that being a document which is required by section 103(1)(b) to accompany the claim form.

1. The Magistrate found that the combination of the claim form and the medical certificate presented a prima facie case for compensation.   On that basis the appellant had an obligation to commence weekly payments of compensation immediately.   Accordingly, he made the final order the subject of this appeal to the effect that:

(a)The appellant pay to the respondent weekly payments of compensation from 26 November 1998 to date and to continue according to law;

(b)the appellant pay the respondent’s reasonable medical and like expenses pursuant to section 99 of the Act;

(c)the appellant pay the respondent’s costs on scale “E” (together with certification for counsel).

1. By Order made on 17 December 1999 Master Wheeler found that the two questions of law shown by the appellant to be raised by the appeal were:

(a)Whether the learned Magistrate erred in law in holding that, because the rejection notice served in purported pursuance of section 109 of [the Act] was served out of time, the Court was obliged to make an order for arrears of weekly payments, and continuing, without the Respondent being first obliged to establish his entitlement to such compensation in accordance with [the Act].

(b)Whether the learned Magistrate erred in law [in] holding that the Respondent’s claim for compensation constituted sufficient evidence, or sufficient prima facie evidence, of the Respondent’s entitlements to compensation to justify making [an] order for compensation.

1. In FAI Workers Compensation (Vic) Pty Ltd v Brewster [1999] VSC 388, Smith J found a purported notice of rejection under section 109 to be invalid. That being so, the authorised insurer had failed to give the requisite notice within the specified time and the claim was therefore deemed to have been accepted by virtue of section 109. His Honour said at paragraphs 49 and 50:

Counsel for FAI submitted that if the notice and reasons were invalid, Ms Brewster, nonetheless, was obliged to establish her entitlement to compensation.

Counsel submitted that this is a consequence of the phrase “subject to and in accordance with this Part” in s.109(1)(b). I am not persuaded that that is so. I have referred to this issue above. Those words appear in the context of the obligation imposed upon the Authority or a self-insurer to pay weekly payments. That obligation is described to be “subject to and in accordance with this Part”. The quoted words do not qualify the question of whether the claim is deemed to have been accepted. They do not purport to affect the question of the right of the worker to compensation but rather spell out the consequences of that right. Among other things it would make the entitlement to weekly payments subject to the power to terminate in s.114. They would also refer to the sections in the Part which spell out the quantum of the compensation (see for example s.93A and s.93B). To accept the contrary argument would be to deny any sensible operation to s.109(1)(a) in my view.

His Honour had earlier said at paragraphs 32 and 33, in considering the decision of His Honour Judge Rendit in Gray v Accident Compensation Commission (1994) VACR 73-388:

.  .  .  central to his Honour's reasoning in Gray was his construction of the phrase “subject to and in accordance with this Part” in s.109(11) of the Act In his reasons, a number of points are made supporting an interpretation of that phrase which would require, inter alia, that it was demonstrated that there was a primary entitlement even where there was a deemed acceptance under the section. This construction is relied upon by counsel for FAI on this appeal (see below). A difficulty I have with such a construction is that it would seem to deny the deeming provision of any real effect. His Honour's view should be distinguished in any event because of the form of the relevant subsection at the time. Section 109 (11) provided;

“(11) If the authorised insurer or a self-insurer does not accept or reject a claim within the relevant periods specified in this section, the claim shall be deemed to have been accepted and the authorised insurer or self-insurer must pay weekly payments to the worker subject to and in accordance with this Part.”

The drafting of the sub-section lent itself to an argument that the deemed acceptance was also “subject to ... this Part.” The present equivalent makes it clear that the phrase applies to the payment of weekly payments not the deemed acceptance.

For myself, I see no difficulty in practical terms with the narrower construction of the words “subject to and in accordance with this part of the Act” because of the powers that the Authority and self-insurer have under the Act to terminate payments and recover monies paid and the issue will arise only if the Authority or self-insurer fails to serve a notice of rejection within 28 days - a circumstance under their control.

1. Mr Fleming, for the appellant, conceded rightly that, while I was not bound by the decision in Brewster, as it was made by another judge of this Court, as a matter of judicial comity, I should follow it unless I was convinced that it was clearly wrong.   See the remarks of Blackburn CJ in Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32; of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204; and of Lindgren J in Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627.

1. He sought to persuade me that the judgment in Brewster was clearly wrong, by reference to two decisions in the County Court of His Honour Judge Rendit, namely Gray, referred to in paragraph 6 above, and Fyffe v Victorian WorkCover Authority, decided on 31 October 1994, which was apparently not cited to Smith J.   His principal submission was that, entitlement being in issue between the parties, the Magistrate should have required the respondent to prove his case in the usual way, despite the rejection notice being out of time.

1. Section 109(1)(a) provides that in the events there set out “the claim is deemed to have been accepted”. In Coates v Commissioner for Railways (1961) 78 WN (NSW) 377 Kinsella and Collins JJ in the Full Court of the Supreme Court of New South Wales pointed out that where a statute provides that something is to be deemed to be a fact, it is implicit in such a provision that the assumption shall be made, if necessary, contrary to the fact. Thus where a statute provided that an injury was to be deemed to have occurred at a certain point of time, it was not open to a worker to seek to establish that he had in fact received the injury before that time. Their Honours referred to the description of such a provision as creating “a statutory fiction”, an expression which was employed by James LJ in Ex parte Walton.  In re Levy (1881) 17 Ch D 746 at 756. Griffith CJ in Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 referred to the same expression used by James LJ and Lord Cairns LC in Hill v East and West India Dock Co (1884) 9 App Cas 448 at 456.

1. Thus no question arises as to the proof of the respondent’s entitlement. For the section to have any operation, a claim must have been made; and that claim being in existence, the effect of the section is that a failure to give notice within the prescribed time means that it is not open to the employer to treat the claim as other than having been accepted. As the Magistrate pointed out, the deeming provision of section 109 cannot turn a worthless claim into a valid claim; but by virtue of section 109(1)(b), upon failure to give notice within the prescribed time the weekly payments must nevertheless commence.

1. The operation of section 109(1) does not permanently alter the position of the employer. As Smith J pointed out in Brewster and the Magistrate pointed out in his formal decision, that acceptance is, like any other acceptance of a claim, no bar to the employer’s taking action under section 114, which reads, so far as relevant:

114.(1) The Authority or self-insurer may in accordance with this Act terminate a worker’s entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated…

I note the submission of Mr Moshinsky, for the respondent, that in this way the Act provides a balance between the interests of the employer and the worker. If the employer is dilatory in dealing with the claim, the worker will receive weekly payments which will meet living expenses until the matter in issue is resolved as a result of action taken by the employer under section 114.

1. It will be apparent from the foregoing that I am in entire agreement with the decision of Smith J in Brewster.   His comments as to Gray are equally applicable to Fyffe.   That being so, I find the answer to the first question in the Master’s Order (see paragraph 5 above) to be No.

1. As to the second question in the Master’s Order, the first finding of the Magistrate in his formal decision was that the combination of the claim form and the medical certificate “presents a prima facie entitlement to compensation”.   This statement was in effect no more than a recognition of what is said in paragraph 10 above.   Accordingly, the answer to the second question must be No.

1. In view of the findings I have reached it is not necessary for me to consider the submission of Mr Moshinsky that the questions in the Master’s Order were not questions of law, and I do not do so.

1. For the reasons given, the appeal will be dismissed.   Counsel may wish to make submissions as to costs.