Australasian Correctional Management v Francis

[2002] WASCA 74

AUSTRALASIAN CORRECTIONAL MANAGEMENT -v- FRANCIS [2002] WASCA 74

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 74
Court:	THE FULL COURT (WA)
Case No:	FUL:25/2002	Heard:	20 MARCH 2002
Coram:	ANDERSON J WHEELER J MILLER J	Delivered:	8/04/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal dismised
Category:	A
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Parties:	AUSTRALASIAN CORRECTIONAL MANAGEMENT TODD FRANCIS
Catchwords:	Workers' compensation Requirement to "notify" within 14 days Meaning Whether posting within 14 days sufficient Words and phrases "notify"
Legislation:	Interpretation Act 1984, s 75, s 76 Workers' Compensation and Rehabilitation Act 1981, s 57A
Case References:	Nil Capper v Thorpe (1998) 194 CLR 342 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : AUSTRALASIAN CORRECTIONAL MANAGEMENT -v- FRANCIS [2002] WASCA 74 CORAM : ANDERSON J

WHEELER J
MILLER J

HEARD : 20 MARCH 2002 DELIVERED : 8 APRIL 2002 FILE NO/S : FUL 25 of 2002 BETWEEN : AUSTRALASIAN CORRECTIONAL MANAGEMENT

Appellant

AND

TODD FRANCIS
Respondent

Catchwords:

Workers' compensation - Requirement to "notify" within 14 days - Meaning - Whether posting within 14 days sufficient

Words and phrases - "notify"

Legislation:

Interpretation Act 1984, s 75, s 76

Workers' Compensation and Rehabilitation Act 1981, s 57A

(Page 2)

Result:

Appeal dismised

Category: A

Representation:

Counsel:

Appellant : Mr M W Odes QC & Mr J L Ludlow
Respondent : Mr B L Nugawela

Solicitors:

Appellant : McAuliffe Williams & Co
Respondent : S C Nigam & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Capper v Thorpe (1998) 194 CLR 342
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

(Page 3)

1 JUDGMENT OF THE COURT: This is an expedited appeal from the Compensation Magistrate's court which dismissed an appeal from an order of a compensation review officer made on 14 November 2001 in which he ordered the appellant to commence weekly payments of compensation to the respondent in virtue of the provisions of s 57A of the Workers' Compensation and Rehabilitation Act 1981. That section is in Div 5 of Part III of the Act which provides for the commencement, review, suspension, and cessation of workers' compensation payments. The relevant provisions of s 57A are as follows, with emphasis supplied to the words with which this case is principally concerned:

"57A. Claims procedure — insured employer

(1) This section applies where —


(a) a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 84I(1)(b); and

(b) the worker suffering the disability has served on the employer a certificate signed by a medical practitioner —


(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or

(ii) to the effect that the worker is unfit for work because of a recurrence of a disability in respect of which a certificate as referred to in subparagraph (i) has previously been served,

and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed.

…

(3) Upon an employer making a claim as mentioned in subsection (2), the insurer shall, before the expiration of 14 days after the claim was made by the employer —

(Page 4)

(a) notify the worker to whom the claim relates and the employer that liability is accepted in respect of the weekly payments claimed;

(b) subject to section 75, notify the employer and the worker that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed, subject to the insurer not being prejudiced in any subsequent proceedings relating to the claim by the reasons stated in the notice; or

(c) notify the Director, the employer and the worker that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection and of the reasons why the decision is not able to be so made,

…

(5) Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply to the Directorate for a determination under subsection (6)."

2 The reference to "an employer making a claim" in subs (3) is a reference to the employer's claim for indemnity under his policy of insurance.

3 For the purposes of the appeal, the facts can be taken to be that the worker, that is, Mr Francis, the respondent in this appeal, did make a claim for compensation as contemplated by s 57A(1) and the employer, that is, Australian Correctional Management Pty Ltd, the appellant, did make a claim for indemnity under its policy of insurance with its workers' compensation insurer, Royal & Sun Alliance Insurance Australia Ltd and the insurer did give a notification under s 57A(3)(c). It is common ground that the employer's policy claim was received by the insurer on 2 July 2000. The period of 14 days within which the worker was to be notified

(Page 5)

under s 57A(3)(c) expired at midnight on 16 July 2000. The form of notification was not posted by the insurer until that day. There was uncontradicted evidence that, in the ordinary course of post, it would have reached the worker on 17 July. The worker's evidence was that he did not actually receive the notification in the post until 18 July.

4 The question therefore is whether, on these facts, the insurer had succeeded in notifying the worker in the time prescribed, that is, 14 days from 2 July. Senior counsel for the appellant accepted that, unless the posting of the notification was the relevant act of notification, it was out of time. This depends on the meaning that is to be given to the word "notify" in s 57A(3).

5 The starting-point is that, prima facie, the word "notify" has its ordinary meaning in the subsection and according to its ordinary meaning the mere posting of a notice is not enough. Putting a notice in the post cannot of itself constitute notification of its contents. Leaving to one side the effect of the provisions of s 75(1) and s 76(b) of the Interpretation Act 1984, notification would not be effected until the form of notice actually reached the person to whom it was addressed. This is qualified by the provisions of the Interpretation Act referred to and it may be accepted for present purposes that those provisions would deem the notice to have been received at the time when it would have been delivered in the ordinary course of post. In this case, that was 17 July - still one day late.

6 Senior counsel for the appellant submitted that an examination of this part of Div 3 of the Workers' Compensation and Rehabilitation Act reveals an intention on the part of the legislature that "notify" in s 57A(3) means sending by post. We can see nothing in the Act which supports that conclusion. On the contrary, as Wheeler J pointed out to counsel during argument, there is at least one provision which very clearly indicates that it is receipt of the notification which is critical.

7 This is the subsection of s 57A which stipulates when the employer must make the first of the weekly payments. It provides:

(7) An employer shall make the first of the weekly payments as soon as practicable after —

(a) he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer … "

(Page 6)

8 It is quite clear from this subsection that the requirement to notify within 14 days is a requirement to cause that notification to be received within 14 days.

9 We do not see that this interpretation of the word "notify" produces such an inconvenient or absurd result that it could not have been intended by the legislature. It means only that the insurer must take appropriate steps within the 14 days to effect actual notification, or put the notification into the post in time to ensure that, in virtue of s 75(1) and s 76(b) of the Interpretation Act, it will be deemed as a matter of law to have been received before the expiration of that time.

10 The appeal must be dismissed.