Bouwman v Westralian Finance Company Pty Ltd
[2016] WADC 49
•8 APRIL 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOUWMAN -v- WESTRALIAN FINANCE COMPANY PTY LTD [2016] WADC 49
CORAM: WAGER DCJ
HEARD: 4 APRIL 2016
DELIVERED : 8 APRIL 2016
FILE NO/S: APP 61 of 2015
BETWEEN: RONALD JACOBUS JOHANNES BOUWMAN
Appellant
AND
WESTRALIAN FINANCE COMPANY PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram :ARBITRATOR S NUNN
Citation :A13483
Catchwords:
WorkCover WA appeal - Preliminary issue - Party making the application - Time reasons for decision given to the party - No discretion to extend time period
Legislation:
Interpretation Act 1984
Workers' Compensation and Injury Management Arbitration Act 1981
Workers' Compensation and Injury Management Arbitration Rules 2011
Rules of the District Court 2005
Result:
The appeal is not made within time
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Bowman v Durham Holdings (1973) 131 CLR 8; [1973] HCA 55
Project Blue Sky v ABC (1998) 135 ALR 490
Saliba v Town of Bassendean [2013] WASC 93
WAGER DCJ: This matter was listed for the determination of the preliminary issue of whether Mr Bouwman's appeal is made within time and within the jurisdiction of this court.
Arbitrator Nunn of the Workers' Compensation Arbitration Service delivered his decision and reasons in respect of Mr Bouwman's arbitration hearing on 16 June 2015. Mr Bouwman seeks to appeal Arbitrator Nunn's decision. The notice of appeal against the decision was filed on 6 August 2015.
The Workers' Compensation and Injury Management Arbitration Act 1981 (the Act) sets out the right to appeal against an arbitrator's decision in pt XIII Appeals to District Court. Section 247 relevantly provides:
(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.
…
(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 the District Court.
I need to determine:
1.Were the written reasons for decision given to the party making the application for leave to appeal?
2.If so, when were the reasons for the decision appealed against given to the party?
3.If the application for leave to appeal was made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party, does this court have the discretion to extend the appeal period?
Were the written reasons for decision given to the party?
Mr Bouwman commenced the arbitration process by arranging for a form 150 application for arbitration to be filed with the Workers' Compensation Arbitration Service WorkCover WA. Relevantly the application for arbitration set out:
1.Mr Bouwman was the applicant.
2.The form was lodged by the worker's representative.
3.The worker's representative's details that included the company name (Perth City Legal), the contact person (D Chesworth/ T Sleight), the reference number, telephone, fax number and email address for the contact person and the firm.
4.The document was signed by Ms Chesworth and dated 22 May 2014.
The rules for serving documents relevant to the arbitration process are set out in the Workers' Compensation and Injury Management Arbitration Rules 2011 (the Rules). Relevantly r 16 provides:
(1)If these rules require a document to be served on a person, the document must be served –
…
(i)if a postal address has been provided under rule 17 to that address …
(2)Nothing in these rules prevents a person from consenting to being served with a document in a manner other than in accordance with this rule.
Rule 17 provides:
(2)If the person lodging the document is represented by a legal practitioner or a registered agent, the person lodging the document –
(a)must specify on the document –
(i)the name of the legal practitioner or agent; and
(ii)the address where the legal practitioner conducts business as a legal practitioner or agent; and
(iii)the practitioner's postal address;
and
(b)with the legal practitioner's or agent's consent, may state any or both of the following –
(i)one fax number;
(ii)the details of a document exchange approved by the Registrar,
that can be used to serve documents on the legal practitioner or agent.
(3)If a party's address for service changes, the party must lodge with the Registrar a notice of change of address not more than 3 working days after the change occurs.
(4)If a document specifies a fax number of a person, the person is to be taken to have consented to being served with documents by fax at that fax number.
There is no evidence that Mr Bouwman notified the registrar of a change of address. Accordingly, consistent with the Rules, Mr Bouwman's address for service was Ms Chesworth at Perth City Legal.
Section 213(3) of the Act provides:
The reasons for a decision of an Arbitrator are to be given in writing to a party to a proceeding if –
(a)the arbitration rules state that the reasons are to be given in writing to that party; or
(b)within 14 days after the Arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.
The date and circumstance in which Mr Bouwman's representative was provided with the arbitrator's reasons was clarified by Registrar Ekanayake by letter to the principal registrar of this court dated 13 October 2015 sent pursuant to the District Court Rules 2005 (WA) (DCR) r 52(3). Registrar Ekanayake said:
I refer to your letter dated 7 October 2015 and the request of confirmation as to when the appellant was given a copy of the Arbitrator's reasons for decision.
Please see the attached copy of Arbitrator Nunn's reasons for decision with a copy of our 'Copy of Arbitrator's Reasons sent to' stamp on the back page. The reasons for decision were sent by mail to both the Applicant's Representative and the Respondent's Representative on 16/6/2015.
Ms Chesworth of Perth City Legal was the worker's representative at the time when the arbitrator's reason for decision was sent by mail on 16 June 2015. I find that by posting the written reasons for decision to Ms Chesworth the reasons were given to the party.
When were the reasons for decision appealed against given to the party?
There is no requirement that the reasons be posted by registered post. The requirement is that the written reasons for decision appealed against be given to the party making the application. The word 'give' in the context of service of documents is clarified by s 75 and s 76 of the Interpretation Act 1984. Section 76 provides:
Service of documents generally
Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served –
(a)by delivering the document to him personally; or
(b)by post in accordance with section 75(1); or
(c)by leaving it for him at his usual or last known place of abode, or if he is a principal of a business at his usual or last known place of business.
Section 75(1) provides:
Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post.
The meaning of the expression in the ordinary course of post
The 'ordinary course of post' is referred to not only in s 75(1) of the Interpretation Act 1984 (WA) but also in the Rules of the Supreme Court 1971 (O 72 r 5A) and the DCR r 21A. There are also equivalent provisions in other jurisdictions.
The meaning of the expression 'in the ordinary course of post' was considered by Hall J in Saliba v Town of Bassendean [2013] WASC 93. In that case the Town of Bassendean issued a notice to Mr Saliba requiring removal of listed items from his property on the basis that it was considered untidy. The notice was dated 17 May 2012 and posted the same day. The issue did not concern the delivery of the notice but concerned an application to the State Administrative Tribunal (SAT) for a review of and objection to the notice. The application to SAT was filed nine days out of time and required an extension.
In considering the meaning of the words 'in the ordinary course of post', Hall J referred to the High Court decision in Bowman v Durham Holdings (1973) 131 CLR 8; [1973] HCA 55 where the High Court said at (15) [8]:
When cl 19(a) refers to the 'ordinary course of post' it is not, I think, concerned with the particular idiosyncrasies of a particular addressee but rather with the general delivery practices of the postal service. It does not concern itself with particular circumstances of an addressee which may, if known to the postman on his round, deter him from attempting to effect delivery to a particular addressee; for instance the fact that the postman is aware in advance that that addressee's premises will be closed so that he will be unable to effect delivery of a registered letter in accordance with appropriate regulations. As was said by Lord Esher MR in Kemp v Wanklyn (1894) 1 QB 583 at p 585, in dealing with the meaning of 'in the ordinary course of post':
'The Post Office is the authority which, under its statutory powers, determines the ordinary course of the post – that is to say, how the letters shall be carried, and at what time they shall, as a general rule, be delivered within any particular district to the persons taken as a body who reside in that district. It appears to me that all the objector has to do under s 100 is to look at the Post Office regulations, and to see whether a letter posted at the place, from which he proposes to send the notice, would, according to the ordinary course of post, be delivered to any person resident within the district to which he is posting the notice, as to whom there is no exceptional mode of delivering letters, on or before August 20. He is not bound to inquire whether within the district there may be some people who, by some special arrangement with the Post Officials there, made either with or without the authority of the Post Office, have their letters delivered in an exceptional manner. Such a special arrangement would be, not the ordinary, but an extraordinary, course of post.'
In the present case the evidence is that there was within the city of Sydney a Saturday morning delivery both for ordinary mail and for registered mail posted, as was this notice, before 5.00 pm on the preceding day.
Hall J said [11]:
The meaning of the words 'in the ordinary course of the post' are not concerned with the idiosyncrasies of a particular addressee but rather with the general delivery practice of the postal service. See Bowman v Durham Holdings (1973) 131 CLR 8. Accordingly, the address being within the metropolitan area the normal course of post would have resulted in delivery by 18 or 19 May 2012 at the latest.
The reasons for decision were sent by mail to Mr Bouwman's representative on 16 June 2015 and, consistent with the Interpretation Act, would have been delivered in the ordinary course of post.
By affidavit sworn 20 November 2015 Mr Bouwman states:
I Ronald Jacobus Johannes Bouwman did not receive the notification of the decision made by WorkCover on the 16th of June 2015 by Mr. S. Nunn. I received verbal notification on the 27th of July 2015 when I called Denise Chesworth (my lawyer) I Ronald Jacobus Johannes Bouwman was not impressed by the decision made by Mr. S. Nunn of WorkCover and have made several phone calls that lead me to the district court to have the decision reviewed. I have filed an appeal notice to the district court on the 6th August 2015 which is within the required 28 day appeal period from the date I was notified.
Although Mr Bouwman may not have been notified of the reasons for decision until a date well after 16 June 2016, the reasons would have been delivered to Perth City Legal on or about 18 June 2015. The application for leave to appeal was made 46 days after the date upon which the reasons would have been delivered.
Does this court have the discretion to extend the time period for the making of the application?
It is the duty of the court to give the words of a statutory provision the meaning that the legislature intended them to have. On occasion the meaning may require more than literal or grammatical construction. In Project Blue Sky v ABC (1998) 135 ALR 490 [78] the court said:
Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with a literal or grammatical meaning.
Section 247(5) of the Act specifically excludes pt XIII from being conducted in accordance with the DCR. Further, rules governing the commencement of an appeal in this court exclude an appeal under the Act from being the subject of application for an extension of time: DCR r 51(1)(b).
The ordinary meaning of the words of s 247(4) and s 247(5) of the Act are clear. The application cannot be made later than 28 days after the day on which the written reasons were given to the party making the application.
The Act sets out the objects of arbitration in pt XI div 4. The duties of arbitrators are set out in s 185 of the Act. These duties include:
(1)The Arbitrator to whom a dispute is allocated is to determine the matter or matters in dispute in accordance with this Act and the arbitration rules.
The Act relevantly provides in s 177(1):
1.The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that –
(a)is timely; and
(b)is successful, approachable and professional; and
(c)minimises costs to parties to disputes; and
…
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
The purpose of the statute does not provide for the legislative provision to be read in a way that does not correspond with its literal or grammatical meaning.
This court does not have the power to extend the time within which to commence an appeal under the Act.
Mr Bouwman's appeal is not made within time. It is not within the jurisdiction of this court.
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