Barkla v G4S Custodial Services Pty Ltd [No 2]
[2012] WADC 78
•6 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BARKLA -v- G4S CUSTODIAL SERVICES [No 2] [2012] WADC 78
CORAM: COMMISSIONER GETHING
HEARD: 21 MAY 2012
DELIVERED : 6 JUNE 2012
FILE NO/S: APP 6 of 2012
BETWEEN: GEOFF BARKLA
Appellant
AND
G4S CUSTODIAL SERVICES
Respondent
Catchwords:
WorkCover appeal
Legislation:
Workers Compensation and Injury Management Act 1981 (WA)
Workers Compensation and Injury Management Regulations 1982 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Mr M J Civitella
Solicitors:
Appellant: Not applicable
Respondent: CCS Insurance Law
Case(s) referred to in judgment(s):
Attorney-General (WA) v Schoombee [2012] WASCA 29
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Barkla v G4S Custodial Services [2012] WADC 67
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
House v R [1936] HCA 40; (1936) 55 CLR 499
McGowan v Castrum Pty Ltd [2005] WASCA 198
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Sinclair v Bickford WA C5-2011, 11 March 2011, unreported, Commissioner McCann
Sotico Pty Ltd v Wilson [2007] WASCA 112
COMMISSIONER GETHING: By appeal notice dated 25 January 2012, the appellant commenced an appeal from a decision of Registrar Melville (arbitrator) on 20 January 2012. In the decision under appeal, the arbitrator refused what was in effect a summary judgment application by the appellant seeking an entitlement to weekly payments pursuant to Workers Compensation and Injury Management Act 1981 (WCIMA) s 57A(5) as a result of the respondent's failure to comply with the notification provisions in WCIMA s 57A(3). The appellant contends that the arbitrator erred in law, failed to address the appellant's submissions and failed to address the WICMA and Workers Compensation and Injury Management Regulations 1982 (WA) (WCIMR).
On 28 February 2012, the respondent lodged a notice of respondent's intention in which it stated that it would argue that the arbitrator's decision should be upheld on the grounds relied by the arbitrator.
On 13 March 2012, a registrar directed that the appeal and the issue of leave to appeal be listed before a judge for hearing.
On 16 April 2012, the appellant filed an application in the appeal seeking orders that the following people give evidence at the hearing of the appeal: Robb Moffat, Elisha Alker, Jaqui Clark, Joe Isherwood, Mr York, Ross Paprone and Paul Brooks. The first three of these people are employees of Allianz. Allianz is the respondent's insurer. The remaining four people are employees of WorkCover Western Australia. I heard that application on 1 May 2012 and dismissed it. My reasons are reported as Barkla v G4S Custodial Services [2012] WADC 67. The appeal thus proceeded on the basis of the evidence before the arbitrator pursuant to WCIMA s 247(6).
Background facts
The appellant was employed by the respondent as a custodial services officer.
In January 2010 the appellant was asked by one of his superiors to go to Geraldton as the acting supervisor. The respondent had a contract to provide custodial and court security services for the Geraldton Court.
On 1 April 2010 whilst working the appellant says he was verbally abused by one of his subordinates. He made a complaint about this behaviour to the respondent.
In July 2010 the appellant was offered a contract position as the supervisor in Geraldton until 11 February 2011.
On 24 September 2010 the appellant says he was again verbally abused by the same subordinate. The appellant again raised his concerns with the management of the respondent.
In the course of what appears to have been an extensive series of email correspondence, the appellant advised the respondent of how stressful the situation was becoming. On 8 October 2010 the appellant obtained a medical certificate from this doctor for that day due to stress.
Over the course of the following week the appellant continued to raise his concerns with his superiors at the respondent. On 13 October 2010 the appellant was notified that his secondment as the supervisor at Geraldton would finish on 22 October 2010 and that he would be transferred to the Perth pool of employees.
The appellant has not worked since 13 October 2010.
A First Medical Certificate was issued in respect of his injury on or about 13 October 2010 by his general practitioner, Dr James‑Wallace. The certificate referred to the appellant's description of the injury as 'workplace stress' and contained a diagnosis of 'anxiety'.
On 5 November 2010, the appellant lodged a claim for compensation with the respondent. The nature of the injury cited was 'stress'. It was not in issue in the appeal that the appellant made a claim for compensation by way of weekly payments for a total or partial incapacity in compliance with WCIMA s 57A(1), s 57A(2A) and s 57A(2). WCIMA s 57A sets out the claims procedure to be used when the employer is insured, as in the present case.
By notice dated 8 November 2010, the respondent's insurer Allianz gave the appellant notice pursuant to WCIMA s 57A(3)(c) that it was not able to make a decision as to whether or not to accept liability within the timeframe set out in that subsection. This notice was in the form of WCIMR Form 3C.
In response to a section in the Form 3C headed 'the reasons why the decision was not able to be made are as follows', the Allianz stated:
Further medical and factual information is required to ascertain if the claimant has sustained an injury in the course of his employment or whilst acting under the employer's instructions.
Allianz also stated in the Form 3C that a 'full report has been requested from the treating GP' and that '[p]revious wage earnings to be provided by the Insured'. It reserved the right to have the appellant undergo an independent medical examination with a provider of their choice.
In a covering letter to the 8 November 2010 notice, of the same date, Allianz stated:
Allianz reserves the right to make a decision on liability until further information is obtained, including a medical report from your treating GP as well as a statement from yourself. An assessor will contact you directly to arrange a suitable time to obtain a statement from you in relation to your allegations.
On 17 November 2010, the appellant's general practitioner, Dr James‑Wallace provided a report to Allianz in which he confirmed that the appellant was suffering from 'major depression with co-existing anxiety'. Dr James‑Wallace stated that, in his view, the appellant's employment 'has contributed significantly to the disability' and that the appellant would not be fit for work for the following three months.
On 31 January 2011, the appellant filed an application pursuant to WCIMA pt XII to the (now defunct) dispute resolution directorate of WorkCover seeking interim weekly payments pursuant to WCIMA s 231 (now repealed). The respondent opposed the grant of interim relief. On 11 February 2011 orders were made in the appellant's favour.
On 23 February 2011 the appellant was reviewed by Dr Mander, a psychiatrist, at the request of the respondent. Dr Mander provided a report dated 24 February 2011 to Allianz.
On 14 March 2011, the appellant filed a second application pursuant to WCIMA pt XII seeking further interim weekly payments. The application was refused. The arbitrator made an order pursuant to WCIMA s 229 (also now repealed) that the matter be dealt with as a substantive dispute, that is, it proceed as if it were a WCIMA pt XI dispute.
The medical information filed by the appellant is to the effect that he presently suffers from an adjustment disorder with associated depression and anxiety, and has done so since the incident in September 2010.
The respondent disputes liability under WCIMA, and has obtained medical evidence supporting its position. Its position is set out in detail in Form 6 Notice of Consent or Dispute pt XII filed 21 March 2011.
Throughout the remainder of 2011 the dispute proceeded through the interlocutory and conciliation processes. The substantive dispute is yet to be determined before a WorkCover arbitrator.
By interlocutory application dated 5 January 2012, the appellant sought orders confirming that he had an entitlement to weekly payments pursuant to WCIMA s 57A(5) as a result of the respondent's failure to comply with the notification provisions in WCIMA s 57A(3).
The appellant's contention is that, in certain circumstances as arise in the present case, an employer who has given a notice under WCIMA s 57A(3)(c) is also obliged to give a notice under WCIMA s 57A(3)(b) if it wishes to dispute liability. The failure to do so triggered a liability to pay weekly payments pursuant to WCIMA s 57A(5).
Decision of Registrar Melville
In reasons delivered on 20 January 2012, the arbitrator disagreed with the appellant's interpretation and dismissed the application. The arbitrator's comments above the mischief to which WCIMA s 57A is directed are instructive to quote in their entirety:
…
6.In my opinion the provisions of Section 57A cannot be interpreted in a manner that gives rise to that result. It seems to me the principle purpose of Section 57A(3) is to give a worker notice of where he stands as soon as practicable so that he can make decisions about whether the insurer's decision should be challenged or whether he should bring proceedings for the commencement of weekly payments pursuant to Section 58 of the Act or otherwise.
7.It seems to me the mischief this provision sought to alleviate was to prevent a worker from being left in limbo in anticipation of a decision to accept the claim being made. Historically, and indeed even presently, it is observed that some workers would sit passively awaiting the time at which it was expected the insurer would make a decision on accepting liability. This was not unreasonable given the unpalatable thought of the alternative, namely to litigate.
8.When the day of anticipated decision arrived it not uncommonly arrived with the advice from the insurer that more time was required before a decision could be made. The reason could be varied, from an inability to locate a witness, the awaiting of a signed statement or medical report, the need for clarification of information, and so on.
9.This process could be continued multiple times whilst the worker continued to wait in a state of hopeful anticipation, all the while his financial situation deteriorating to the point where it was irretrievable and even to the point he was unable to muster the resources to pay for a medical report in order to be able to properly litigate his claim.
10.The introduction of Section 57(3a) by 'deeming' the existance [sic] of a dispute put the worker on notice and was, in my opinion, intended to signal to a worker the time had arrived to lodge an application for resolution of the dispute if that was his desire.
Appeal framework
The present appeal is pursuant to WCIMA s 247, which provides:
247.Appeal against arbitrator's decision made under Part XI:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213 (3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
The present appeal is one in which an amount of compensation is in issue, namely the appellant's entitlement to weekly compensation pursuant to WCIMA s 57A(5). The appellant claimed weekly compensation at the rate of $1,401.19. It was not disputed that the amount of the compensation in issue exceeds $5,000. The appellant must also establish that the appeal 'involves' a question of law before the jurisdiction to grant leave to appeal is enlivened.
There is no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16]. However, an appeal will not 'involve' an error of law merely because someone asserts that it does: Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [14]; BHP Billiton[1], [15], [19]. A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton[1], [15], [19].
By WCIMA s 247(5) the appeal is a 'review' as opposed to, say, the criminal injuries compensation jurisdiction in which the court is to decide the application 'afresh': Criminal Injuries Compensation Act 2003 (WA) s 56(1).
As to the scope of the 'review', if some question of law is 'involved', the whole decision appealed from is open to review, and not merely the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18], [30], [31]. The review is not a hearing de novo: Pacific Industrial [20], [30, [31]. Once a question of law is identified, and the jurisdiction enlivened, the review is not limited to pure questions of law: Pacific Industrial [18], [30], [31]. As Wheeler JA observed in Pacific Industrial, the correction of errors of law was the commissioner's (and is now the courts) 'principal, but not only, task': [25], [30], [31].
Within the constraints marked out by the nature of the appellate process, the review in WCIMA s 247 is a 'real review': Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25]; Aziz v Tempo Services Ltd [2010] WASCA 39 [40], [42]; Sotico Pty Ltd v Wilson [2007] WASCA 112 [46]; Pacific Industrial [22] ‑ [24], [30], [31]. The appellant must show some 'proper basis' within an appellate process for disturbing the decision under challenge, such as an error of 'fact, law or logic': Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, 586; Pacific Industrial [26], [30], [31]. It is not sufficient that the court undertaking the review would have come to a different conclusion on the facts to that of the arbitrator: House v R [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 ‑ 519. Unless the 'review' persuades the court that the arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand: Boston Clothing, 586; Pacific Industrial [20] ‑ [26], [30], [31].
Statutory framework
The dispute centres on the interpretation of WCIMA s 57A(3), which sets out the initial claims handling procedure where the employer is insured. It is necessary to set out this provision in its entirety:
(1)This section applies where —
(a)a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba)the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b)the worker suffering the injury serves 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 an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
(2A)In the circumstances mentioned in subsection (1), before the expiration of 5 full working days the employer must claim under and in accordance with his or her policy of insurance in respect of liability to pay the compensation claimed.
Penalty: a fine of $1 000.
(2)Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 5 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 5 working days for which weekly payments are claimed by the worker.
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, 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.
Penalty: $1 000.
(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
(4)Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine‑readable form so specified, the information contained in the notification.
Penalty: $1 000.
(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 for a determination under subsection (6).
(6)On an application under subsection (5) an arbitrator may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined but without affecting his entitlement under subsection (5) in respect of the period before that determination.
(7)An employer shall make the first of the weekly payments not later than 14 days 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; or
(b)on an application made under section 58, an arbitrator has ordered the commencement of weekly payments under this subsection,
and subsequent weekly payments shall be made on the employer’s usual pay days.
(8A)An employer who fails to make a weekly payment by the due date under subsection (7) commits an offence.
Penalty for each weekly payment not made when due: a fine of $2 000.
(8)An employer who having received a payment from an insurer in respect of the employer’s liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.
Penalty: $2 000.
Where there is a dispute pursuant to WCIMA s 57A, the worker may apply to an arbitrator for a determination of the employer's liability to make weekly payments pursuant to WCIMA s 58 (1). That subsection provides:
(1)Where, in the circumstances mentioned in section 57A(1) —
(a)a period of 19 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or
(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the insurer —
(i)under section 57A(3)(b) or 57A(3a)(b), that liability is disputed; or
(ii)under section 57A(3)(c), that a decision as to liability is not able to be made within the time allowed,
an arbitrator may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.
Respondent's submissions
It is convenient to deal first with the respondent's submissions.
The respondent submitted that WCIMA s 57A and WCIMA s 58 provide a clear mechanism for the swift determination of claims for worker's compensation. A notice is filed pursuant to WCIMA s 57A(3)(c) if a decision as to whether or not to accept liability in respect of weekly payments cannot be made within the 14 days time period prescribed in the opening paragraph of WCIMA s 57A(3). WCIMA s57A(3a) gives the employer a further 10 days in which to notify the worker and the director that liability is either accepted or disputed, and if disputed, the reasons why it is disputed. If this further notice is not given within 10 days, the 'claim by the worker is deemed to be disputed': WCIMA s 57A(3a).
Where the claim by the worker is disputed, the worker may commence proceedings pursuant to WCIMA pt XI to have an arbitrator hear and determine the question of liability to make weekly payments: WCIMA s 58. The application may be made once a period of 19 days has elapsed since the claim was made or immediately upon receipt of a notice pursuant to either WCIMA s 57A(3)(b), WCIMA s 57A(3a)(b) or WCIMA s 57A(3)(c): WCIMA s 58(1).
The respondent's submission is that there is nothing in WCIMA that requires an employer to give a notice pursuant to WCIMA s 57A(3)(a) or WCIMA s 57A(3)(b) once any inquiries set out in a notice pursuant to WCIMA s 57A(3)(c) have been carried out. Rather, WCIMA s 57A sets out the processes for the initial claims notification. As soon as it is clear there is a dispute, including a deemed dispute, the worker may commence proceedings to have the dispute determined.
Appellant's submissions
The appellant submitted that in the present case the notice issued pursuant to WCIMA s 57A(3)(c) contained three of grounds or reasons why Allianz could not make a decision as to whether or not liability would be accepted within the time limit allowed by that subsection:
(a)the requirement to obtain a report from the appellant's GP;
(b)the requirement to receive further information from the respondent; and
(c) the requirement for the appellant to undergo an independent medical examination by a provider of the respondent's choice.
The requirement in (a) above was satisfied by the report for Dr James‑Wallace on 17 November 2010. The requirement in (b) above could be satisfied by respondent at any time. The requirement in (c) above was satisfied in the review undertaken by Dr Mander on 23 February 2011. The appellant then submitted that within a reasonable period of these requirements being met, the respondent was required to file a notice pursuant to either WCIMA s 57A(3)(a) (if it accepted liability) or WCIMA s 57A(3)(b) (if it disputed liability). A reasonable period in the appellant's submission was 21 days. He submitted that the outstanding issues in the Form 3C were clearly met by him no later than 15 March 2011. The failure to file one of these two notices within this reasonable period meant that the respondent failed to comply with WCIMA s 57A(3). This gave the appellant an entitlement to weekly payments pursuant to WCIMA s 57A(5).
The appellant submitted that WCIMA s 57A(3)(c) provides a mechanism for an extension of time to allow an insurer to gain information so that a decision on liability can be made. That decision, once made, has to be notified in either a Form 3A (if liability is accepted) or a Form 3B (if liability is disputed).
The appellant submitted that the reason for requiring an employer who filed a notice pursuant to WCIMA s 57A(3)(c) to subsequently file a notice pursuant to WCIMA s 57A(3)(b) if it wished to dispute liability is that the contents of the notice tell the worker the basis on which liability is disputed.
The form of a notice pursuant to WCIMA s 57A(3)(b) is set in WCIMR reg 6C as being Form 3B in Appendix 1. Form 3B requires the employer to provide the following information:
(a)the reasons why liability is disputed;
(b)if a reason is that the applicant is not a worker, the grounds upon which this assertion is made;
(c)if a reason is that the applicant did not suffer an injury as defined in WCIMA s 5(1), the grounds upon which this assertion is made;
(d)if a reason is that the injury was not suffered in the course of employment, the grounds upon which this assertion is made; and
(e)the provisions of WCIMA relied on to dispute liability.
The appellant submitted that he has been denied natural justice in relation to the dispute proceeding to arbitration as he has not been provided with this information.
Determination of the appeal
The general principles of statutory construction are summarised in the judgment of Martin CJ (with whom Newnes and Murphy JJA agreed) in Attorney-General (WA) v Schoombee[2012] WASCA 29 [29] ‑ [30]:
The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby & Hayne JJ); Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The legislative intention to which reference is made in this context is not the ascertainment of the mental state of the legislators at the time the legislation was passed, either collectively or individually: see Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446, [28]; Lacy [43]. Rather, the ascertainment of legislative intention is a statement of compliance with the established rules of construction known to parliamentary drafters and to the courts and which govern the relationships between the arms of government in a system of representative democracy (see Zheng v Cai and Lacy.
The Chief Justice continued that 'one of the well-established rules of statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute' [31].
The interpretation of WCIMA s 57A was considered by Wheeler JA (with whom Steytler P and Pullin JA agreed) in McGowan v Castrum Pty Ltd [2005] WASCA 198 [4]. Her Honour stated that the purpose of WCIMA s 57A 'in broad terms appears to be to ensure that there is speedy processing of workers' compensation claims'. Her Honour also accepted a concession by the respondent that WCIMA s 57A should simply be construed according to its terms, without adopting either a beneficial or a penal approach [28].
In Sinclair v Bickford WA C5-2011, 11 March 2011, unreported, Commissioner McCann stated of WCIMA s 57A [32]:
The primary purpose of the giving of notices contemplated by WCIMA s 57A(3) (such as the form 3A) is to create certainty and expedition in respect of the handling of a worker's claim. It is irrelevant for that purpose what kind of notice is given to the worker provided that one of the three forms of notice contemplated by subs(3) is given. Once that is done the worker has the right to prove his entitlement pursuant to s 58(1) provided that 17 days have elapsed since the making of a claim.
In my view there are four reasons why the interpretation of WCIMA s 57A(3) proposed by the respondent is to be preferred.
The first is that the natural and ordinary meaning of the words in WCIMA s 57A does not expressly create an obligation on an insurer (or an employer) to file a notice pursuant to WCIMA s 57A(3)(a) or WCIMA s 57A(3)(b) once the reasons preventing a decision being made identified in the Form 3C filed pursuant to WCIMA s 57A(3)(c) have been attended to. If there is an obligation is would need to be implied.
The second reason is that WCIMA s 57A(3a) expressly deals with the scenario in which an insurer has filed a notice WCIMA s 57A(3)(c) and subsequently decides to either accept or dispute liability. It is to notify the worker of its decision pursuant to WCIMA s57A(3a)(a) (if it accepts liability) or WCIMA s 57A(3a)(b) (if it disputes liability). Where it disputes liability, there is no prescribed form for notification pursuant to WCIMA s 57A(3a)(b). In particular, there is no requirement on the insurer in WCIMA s 57A(3a)(b) to file a Form 3B, though the insurer has to notify the worker, the employer and the director of the reasons why it disputes liability. If the insurer does not notify the worker of whether it accepts or disputes liability within 10 days after notifying the director within WCIMA s 57A(3)(c), then liability is deemed to be disputed.
The fact that WCIMA s 57A(3a) expressly provides what is to happen once an insurer files a notice pursuant to WCIMA s 57A(3)(c) means that there is no basis, need or justification to imply any additional requirements. Indeed the requirement sought to be implied is contrary to WCIMA s 57A(3a)(b). The requirement sought to be implied would require an insurer who wished to dispute liability to file a notice in the form of Form 3B where there is no specified format in WCIMA s 57A(3a)(b).
The third reason is that the interpretation proposed by the appellant would undermine the certainty and expedition of the regime in WCIMA s 57A. This is because the obligation sought to be imposed is for the insurer to file a Form 3B (or Form 3A if it accepts liability) within a reasonable time of completing the inquiries set out in the Form 3C. The imposition of a requirement to respond within a reasonable time is inconsistent with the overall regime in WCIMA pt II Div 5 which sets out precise timetables in which various steps must be taken, with consequences such as the deeming of a dispute or liability if steps are not taken within the time allowed.
The fourth reason is that there is no need to imply the requirement to file a Form 3B in order to give a worker notice of the reasons why his or her claim may be disputed. This is because as part of the procedure in the WCIMA pt XI application the worker will be given notice of the claim he or she has to meet. Specifically, in the usual course, an employer opposing a claim for weekly payments under WCIMA pt XI would have to file a reply to the application pursuant to Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 27 (replacing Workers' Compensation (DRD) Rules 2005 (WA) r 59). This rule provides that the respondent must file a reply:
(a)stating concisely, but with full particularity what parts of the application, if any, are admitted by the party;
(b)stating concisely, but with full particularity, what parts of the application, if any, are disputed by the party; and
(c)giving full particulars of the grounds on which the relevant parts of the application are disputed by the party and the issues for determination by the arbitrator.
This was not done in the present case as the substantive application was commenced as a WCIMA pt XII application. As a WCIMA pt XII application, the respondent was required to, and did, file a Form 6 Notice of Consent or Dispute which set out the basis on which it opposed the payment of weekly payments.
There is a second reason why the appeal must fail. This is because even if there was an implied obligation on an insurer who served a Form 3C to subsequently serve a Form 3B if it wished to dispute liability, the failure to file the second Form 3B would not give rise to a deemed liability for the purposes of WCIMA s 57A(5).
The respondent's insurer did not 'fail.. to comply with subsection (3)' as required by WCIMA s 57(5). It complied by giving notice in the form of a Form 3C dated 8 November 2010. Consistent with the comments of Commissioner McCann in Sinclair (see above par [50]), an insurer complies with WCIMA s 57A(3) by giving one of the three forms of notice required by that section.
The regime as to what occurs if 'within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made' is governed by WCIMA s 57A(3)(ca). If there is to be an obligation of the kind sought to be implied by the appellant, the obligation would need to be implied into s 57A(3a). If there is a breach of WCIMA s 57A(3a), the result is a deemed dispute, not deemed liability within s 57A(5). Thus, even if the respondent did breach the implied obligation, the appellant would be in the same position he is in now: able to make an application to an arbitrator for determination of the deemed dispute pursuant to WCIMA s 58(1).
Summary
I am satisfied that the appeal involves an error of law, namely the interpretation of WCIMA s 57A, and that leave to appeal ought to be granted.
However, in my view, the appellant has not established that the arbitrator made any of error of law. My review of the decision does not persuade me that it should be varied, discharged or otherwise disturbed: Boston Clothing 586; Pacific Industrial [20] – [26], [30], [31]. I agree with the decision of the arbitrator that WCIMA s 57A does not contain a requirement for an insurer to file a Form 3B pursuant to WCIMA s 57A(3)(b) where it has initially filed a Form 3C pursuant to WCIMA s 57A(3)(c) and subsequently wishes to dispute liability. Pursuant to WCIMA s 247(7) I affirm the arbitrator's decision.
The appeal should be dismissed. I will hear from the parties as to further orders.
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