Eastern Australia Airlines Pty Ltd v McLennan

[2009] VSCA 293

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3780 of 2009

EASTERN AUSTRALIA AIRLINES PTY LTD	Applicant
	v
BRIDIE McLENNAN	Respondent

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APPLICATION ON SUMMONS

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JUDGES	DODDS-STREETON JA and BYRNE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 October 2009
DATE OF JUDGMENT	11 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 293
JUDGMENT APPEALED FROM	[2009] VCC 0546 (Judge O'Neil)

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ACCIDENT COMPENSATION – Whether application under s 134AB(4) of Accident Compensation Act 1985 received by self-insurer for the purposes of s 134AB(7) of the Act – Whether application by employee of subsidiary of self-insurer required to be served pursuant to Ministerial Directions and if so on which entity – Whether lacuna in Ministerial Directions – Applicant wholly owned subsidiary of Part V self-insurer – Where conceded that service validly effected on Applicant – Ministerial Directions – Interaction with statutory requirements for service – Whether open on the evidence that application received by self-insurer.

PRACTICE AND PROCEDURE – Leave to Appeal – Whether decision attended by sufficient doubt – Whether substantial injustice – Application dismissed.

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Appearances	Counsel	Solicitors
For the Applicant	Mr R P Gorton QC	Sparke Helmore
Mr J P Gorton
For the Respondent	Mr P H Solomon	Holding Redlich

DODDS-STREETON JA:

1. The applicant, Eastern Australia Airlines Pty Ltd (‘Eastern’) by a summons dated 12 June 2009 sought leave to appeal from the decision of his Honour Judge O’Neill, who, on 25 May 2009 in the County Court, dismissed with costs its application to strike out the respondent’s proceedings to recover damages for pain and suffering and loss of earning capacity arising from an injury she sustained in November 2004 while employed by Eastern. 

1. The application for leave to appeal was listed for hearing with the appeal, should leave be granted.  For the reasons discussed below, I consider that leave should be refused.  Because the submissions of counsel exposed drafting deficiencies in the relevant Ministerial Directions, I discuss them in some detail.

1. The applicant contended that the primary judge erred in holding that the respondent’s application under s 134AB(4) of the Accident Compensation Act 1985 (‘the Act’), was on 30 May 2008 validly served on, received by, or came to the attention of, Qantas Airways Ltd (‘Qantas’), its parent company (and the relevant approved self-insurer liable to compensate the applicant’s employees under the Act). Section 134AB(7) of the Act requires a self-insurer to respond to a s 134AB(4) application within 120 days of receipt, failing which, by s 134AB(9) of the Act, the worker is deemed to have suffered a serious injury.

1. Although it was not disputed that Qantas did not respond to the application within 120 days of 30 May 2008, in the applicant’s submission, Qantas did not receive it until 29 September 2008 and thereafter responded within the time prescribed.  If that were correct, the respondent should not have been deemed to have suffered a serious injury and consequently was not entitled to issue her proceeding.

1. The decision below was interlocutory in character, in that it did not finally dispose of the rights of the parties and did not ‘of its own force put an end to the action of proceeding between the parties’.[1]

   [1]Licul v Corney (1976) 180 CLR 213, 219 (Barwick CJ); [1976] HCA 6. See s 35(1)(a) Judiciary Act 1903 (Cth).

1. The applicant therefore requires leave to appeal and must establish the cumulative requirements that: 

(a) the decision below was wrong or attended by sufficient doubt to warrant a grant of leave;  and

(b)      substantial injustice would result if the decision below were permitted to stand.[2]

[2]I recently summarised the applicable principles in Vellar v Spandideas [2008] VSCA 139 (Pagone AJA agreeing).

Relevant legislation

1. Section 134AB(7) of the Act provides:

(7) The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing—

(a)       that the worker is deemed to have a serious injury; or

(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a).

1. Section 134AB(9) of the Act provides:

(9) If the Authority or self-insurer fails to advise the worker in writing within the period referred to in subsection (7) as required by subsection (7), the worker is deemed to have suffered a serious injury.

1. Section 134AF of the Act relevantly provides:

(1) For the purposes of section 134AB, the Minister may issue directions for or with respect to procedures under that section.

…

(4) A person to whom a direction under this section applies, and the legal representatives and agents of such a person, must comply with the direction.

(5)The directions may specify that a failure to comply with a particular provision of the directions has the effect of altering a period applicable under that section.

1. Direction 6 of the Ministerial Directions (issued pursuant to s 134AF and s 20C[3] of the Act provides:

   [3]20C       Accountability of the Authority

   (1)The Authority shall exercise its powers and perform its functions under this Act, the Accident Compensation (WorkCover Insurance) Act 1993, the Occupational Health and Safety Act 2004, the Equipment (Public Safety) Act 1994, the Dangerous Goods Act 1985 and the Mines Act 1958 subject to—

   (a)the general direction and control of the Minister; and

   (b)any specific written directions given by the Minister in relation to a matter or class of matter specified in the directions.

   (2)Where the Authority has been given a written direction under subsection (1)(b), the Authority—

   (a)may cause that direction to be published in the Government Gazette; and

   (b)shall publish that direction in its next annual report.

   (3)A direction under subsection (1)(b) must not relate to a specific person.

6.1Where the injury or injuries the subject of the application were sustained by the worker in his or her employment with an employer who is not a self-insurer, the application and supporting documents must be:

(a)addressed to the Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne; and

(b)served either by registered mail, or by hand delivery during business hours to the Victorian WorkCover Authority, at the reception, Level 24, 222 Exhibition Street, Melbourne.

6.2 Where the injury or injuries the subject of the application were sustained by the worker in his or her employment with an employer who is a self-insurer, the application and supporting documents must be:

(a)    addressed to the self-insurer at the address the self-insurer has notified to the Authority as its address for service in the State of Victoria; and

(b)   served either by registered mail or by hand delivery during business hours at that address.

6.3 The Authority must keep an up to date register of the address for service of each self-insurer and provide details of that address to the worker or the worker’s legal representative on request.

6.4 In the event that a self-insurer wishes to alter its address for service such alteration will be effectively made upon receipt by the Authority of written notification addressed to the Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne.

1. Section 134AB(5A) of the Act, provides:

(5A) A copy of any claim under section 104B referred to in subsection (3) and of an application under subsection (4) must be served on each person against whom the applicant claims to have a cause of action.

1. Section 134AB(5A) was introduced in 2004. The Explanatory Memorandum stated that the amendment introducing s 134AB(5A) was ‘necessary to ensure that third parties to potential proceedings are put on notice of the matter and are not disadvantaged by the suspension of the limitation period provided for in section 9 [of the amending Act]’.[4] 

   [4]Accident Compensation Legislation (Amendment) Act 2004, Explanatory Memorandum, Section 7.

Facts and Evidence

1. The applicant is a wholly-owned subsidiary of Qantas, which is the approved self-insurer under Part V of the Act for, inter alia, the s 134AB(4) claims of Eastern’s employees under the Act. Pursuant to s 143 of the Act, Qantas was also liable to pay compensation to which the respondent may be entitled under the Act.

1. As at 27 May 2008, the registered office of Eastern was C/- Qantas Airways Limited, Level 9, Building A, 203 Coward Street, Mascot NSW 2020 (‘the Mascot address’).  The Mascot address was also the corporate and registered office of Qantas.    Qantas also operated a compensation section at a different address, namely ‘Locked Bag 26, Tullamarine Vic 3043’ (‘the Tullamarine address’). 

1. Following receipt of instructions to act, the respondent’s solicitor initially corresponded with Qantas at the Tullamarine address.  At the relevant time, the Victorian WorkCover Authority (‘VWA’) maintained a Self Insurer Contact List, although it did not state an address for service for Qantas.  The register included a list of various Qantas contact persons, including (at the top of the list) Ms Nicole Brummer, whose address was the Worker’s Compensation Department, Level 3, Airport Central Tower, at 23 Coward Street, Mascot.

1. On 12 May 2008, Ms Jodie Singarella (Qantas Airways Workers’ Compensation Claims Manager) sent Ms Sue Cracknell (a Business Analyst in the Self Insurance Division at the VWA) the following email:

Hi Sue,

Is it possible for Qantas Airways Limited to alter its address for service in Victoria under Ministerial Direction (Under s.134AB) 6.2(a) to:

Qantas Airways Ltd
Workers Compensation Department
Locked Bag 26
Tullamarine VIC 3043

Thanks & Regards

Jodie Singarella[5]

[5]Exhibit JS5 to the affidavit of Jodie Singarella, sworn 19 March 2009.

1. Ms Cracknell sent an email in reply, which was also sent to a Mr Sam Paterson, of the VWA.  The email stated:

That’s fine Jodie.

Sam, please update on our list that this is address for service of documents.[6]

[6]Ibid.

1. The Qantas email did not comply with the stated requirements of Ministerial Direction 6.4 for a notification of change of address for service.  It was not directed to the prescribed officer at the prescribed address.  Despite the responsive email indicating that the recipient would act upon the request, the VWA (due, apparently, to administrative oversight) did not amend its register to show the Tullamarine address as Qantas’ address for service until 6 April 2009.

1. On about 2 May 2008, the respondent’s solicitor searched the internet, including the website of the VWA, in order to obtain details, but could not find any reference to Eastern or an address for service for Qantas.  Indeed, the VWA website did not display a list of addresses for self-insurers.

1. On 27 May 2008, the respondent’s solicitor by registered post sent the application and supporting documents with a letter addressed as follows:

Eastern Australian Airlines

c/- Qantas
203 Coward Street
Mascot  NSW  2020

(It is not disputed that the applicant’s correct name was Eastern Australia Airlines, but nothing is said to turn on the typographical error in the letter of 27 May 2008.)

1. The letter stated that a response was anticipated within 120 days, as prescribed by s 134AB(7) of the Act.

1. An Australia Post Signature Proof showed that the letter of 27 May 2008 was delivered to the Mascot address at 6.32am on 30 May 2008 and was signed for by one ‘M Chris’.

1. The respondent’s solicitor (having heard nothing in relation to the application) on 3 September 2008 again sent a letter addressed to Eastern Australian Airlines c/- Qantas to the Mascot address, referring to the earlier service by post on 30 May 2008 and stating that a response was required by 25 September 2008.

1. Before the primary judge, two employees of Qantas gave evidence relating to the receipt of the application.  Mr Kit Rankin, a Qantas workers’ compensation claim analyst working at the Tullamarine address, gave evidence that on 10 September 2008 he received correspondence from QantasLink (which he described as the former name of the applicant) referring to the purported service of the application on 30 May 2008.  He telephoned the respondent’s solicitor on 25 September 2008 (the date asserted in the correspondence to be the deadline) and advised her that Qantas had not received the application. 

1. Mr Rankin deposed that on 10 September 2008 the respondent’s solicitor sent a copy of the application by facsimile to the Tullamarine address, together with a letter reiterating that 25 September was the deadline for response.  Mr Rankin received the material.  He deposed that the copy of the application was incomplete.

1. Ms Singarella, a Qantas claims manager (who worked at the Tullamarine address) deposed that she had received the respondent’s personnel file at a date after 25 September 2008, and did not see the application before that date, although she was aware prior to 25 September that the respondent’s solicitor asserted it to be the final date for a response.  Ms Singarella nevertheless accepted that the respondent’s application was served on Qantas at a date prior to 25 September. 

1. In contrast to Mr Rankin’s assertion, Ms Singarella in cross-examination stated that QantasLink was a collective group with Qantas’ Regional Airlines, of which the applicant was one.  QantasLink was ‘an umbrella organisation for Regional Airlines’.  Ms Singarella was unsure whether QantasLink was a corporate entity, but agreed that the applicant was one of a number of separate legal entities, which were ‘all under QantasLink’.

1. In cross-examination, Ms Singarella stated that when she obtained the application, it was contained in the respondent’s personnel file.  She was not sure when she obtained the personnel file and had no relevant file note.  She was not sure whether she received the personnel file before or after 25 September 2008, and made no attempt to check that.

1. Ms Singarella testified that in an effort to establish when the application was first received at Qantas in the personnel file she ‘spoke to people at QantasLink, at Eastern in Sydney, and sent emails asking whether they received the documents’.  Ms Singarella did not know the dates of her emails nor the dates of emails in response.  She was unaware of any ‘paper trail’ recording the transfer of documents between Qantas and its subsidiaries or departments.

1. Ms Singarella then stated that she ‘somehow’ received the personnel file from QantasLink after 25 September, by which time she also had her own copy of it.

1. The following exchange occurred:

HIS HONOUR:  You weren’t able to ascertain when it had been received onto the personnel file? - - - Not at all, no.

Or from whom? - - - No.  It was – the personnel file was held in archiving in Sydney and that’s where it was retrieved from and sent down to us, and I was unable to find out who had put the – who had filed the document with archiving.

Are you able to say whether it would have been before September 08? - - - No, I couldn’t.  I would have no idea when we received it.

Don’t know.  Where’s the personnel file now? - - - I’m not sure.  It’s either with us or possibility with our lawyers.

Yes

1. Ms Singarella acknowledged that the letter of 3 September 2008 (sent to the same address as the letter of 27 May 2008) was date stamped, apparently by Qantas, as received on 10 September 2008.

1. The following exchange occurred:

COUNSEL:  So in summary, is it correct to say that whilst you have seen the original application of what is said to be served on 27 or 30 May 2008 – you’ve seen it in that personnel file, you’ve got no idea when it first of all went into the personnel file.  Is that right? - - - That’s right.

Secondly, you’ve got no idea when you first saw it yourself?  - - - No.

Well, what I put to you is this:  that it’s been within Qantas prior to then – prior to September?  - - - Sorry, could you just - - -

Yes.  It’s been in there prior to September 08, within Qantas.  What do you say to that? - - - Yes, it has been.

I suggest to you that it’s been there since 30 May 2008 at least? - - - I can’t confirm that.

No.  That’s different from saying it wasn’t there, isn’t it? - - - Yes, it’s different.

1. Ms Singarella acknowledged that she made no direct inquiries to Qantas to ascertain the identity of ‘M Chris’ who had signed for the receipt of the application on 30 May 2009.  His Honour found Ms Singarella to be an unimpressive witness.[7]

   [7][2009] VCC 0546, [14].

1. The applicant’s solicitor gave evidence that he was also aware of the situation by 25 September 2008, and spoke to the respondent’s solicitor in relation to it.

1. Nevertheless, there was no response to the respondent’s application by 25 September 2008.

1. Qantas received a letter attaching the application at the Tullamarine address on 29 September 2008.

1. The applicants solicitors responded to the application by a letter to the respondent’s solicitors dated 23 January 2009.

The judgment below

1. His Honour, having set out the facts, analysed the relevant provisions of the Act and the Ministerial Direction. He also referred to the service provisions of the Corporations Act2001 (Cth) (ss 109X and 601CX).

1. His Honour found that the letter of 27 May 2008 was defective, in that:

(a) [T]he letter of 27 May 2008 described the defendant as “Eastern Australian Airlines” and not “Eastern Australia Airlines”.

(b)[T]he same letter was addressed to the defendant “C/- Qantas”, rather than “C/- Qantas Airways Limited”, the correct corporate entity.

(c) [T]he letter was addressed to “203 Coward Street, Mascot NSW 2020” rather than “Level 9, Building A, Qantas Centre, 203 Coward Street, Mascot NSW 2020” which was the defendant’s correct registered office according to Corporate Affairs’ records.

(d) [T]he letter was not addressed to “Qantas, Level 3, Airport Central Tower, 203 Coward Street, Mascot NSW 2020”, the address which the Authority subsequently stated was the address on the Self-Insurer Register kept by the Authority before amendment.

(e) [T]he notification by Ms Singarella to the Authority of the change of address on 12 May 2008 did not precisely follow the requirement of Direction 6.4, in that it was an email addressed to Ms Cracknell, rather than to the “Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne”.[8]

His Honour concluded that the defects were relatively trifling and did not render the service of the application ineffective.

[8]Ibid [35].

1. His Honour also found that, despite its non-compliance with the requirements of Direction 6.4, the Qantas email of 12 May 2008 to Ms Cracknell constituted an effective notification of its change of address.  From that it followed that the respondent had failed technically to comply with Ministerial Direction 6.2, in that the letter of 27 May 2008 was not sent to Qantas’ Tullamarine address.

1. His Honour concluded that technical non-compliance with the Ministerial Directions on service was not necessarily fatal, as (although s 134AF(5) of the Act provided that a direction could specify that a period applicable under s 134AB would be altered by non-compliance) there was (in contrast to another Ministerial Direction) no such specification in relation to non-compliance with Ministerial Direction 6. Further, no sanction or penalty was imposed for non-compliance. Nor was a consequence, such as suspension of the 120 day time limit, stipulated.

1. His Honour observed that the Act itself did not indicate that failure to comply with the service provisions of the Ministerial Directions would (necessarily) render service invalid. He considered that whether the service of an application would be invalidated by a breach of a condition specified in a Ministerial Direction depended on the relevant statutory objectives.

1. His Honour observed that the objectives of the Act included:

(a)to provide adequate and just compensation to injured workers;  and

(b)to establish incentives that are conducive to efficiency and discourage abuse.[9]

His Honour stated:

A finding that service of the Application was valid, is not inconsistent with these objectives. While it may be said that s.134AB is in part intended to provide a formula for the assessment of serious injury applications on the merits, it also provides for strict time limits to be complied with and consequences if they are not adhered to, including the deeming of an application if the Authority or self-insurer does not respond.[10]

[9]See s 3 of the Act.

[10]Ibid [41].

1. His Honour also considered that ‘the application sent by letter dated 27 May 2008 was served upon the defendant’s registered office in accordance with the Corporations Act’.[11]

   [11]Ibid [45].

1. His Honour concluded:

I am satisfied that the sending of the Application by registered mail did achieve the purpose of bringing the Application to the attention of the defendant. In fact, the Application somehow, and at some time came to be upon the plaintiff’s personnel file. In that sense, it came to the defendant’s attention. It was the fact that the Application was overlooked or in some other way misplaced that caused the failure of the defendant to respond to the Application as required by s.134AB(7), and not any defect in service. The problem was compounded when Mr Rankin, Ms Singarella, and QAL’s solicitors failed to act on 25 September 2008 even although there was little time to make a comprehensive response.

In these circumstances, I am of the view that service was properly effected and given the defendant failed to respond and determine whether or not a serious injury ought be granted pursuant to s.134AB(7), s.134AB(9) applies and the serious injury is deemed granted.[12]

[12]Ibid [46]-[47].

Proposed notice of appeal

1. The applicant seeks to appeal on the following grounds:

1. The County Court proceedings are barred by s.134AB of the Accident Compensation Act 1985 (“the Act”) as the Respondent did not serve an application under s.134AB(4) on Qantas Airways Ltd (Qantas) and did not prior to the issue of the proceedings have a deemed serious injury or a certificate issued by Qantas under s.134AB(16)(a) or leave of a Court under s.134AB(16)(b) to bring the proceedings.

2.The Respondent did not serve her Application under s.134AB(4) on Qantas as required by the Act and/or the relevant Ministerial Directions.

3. Service of the Respondent’s application on the Eastern Australia Airlines Pty Ltd in 2008, in circumstances where the application did not come to the attention of Qantas, did not constitute service on Qantas so as to mark the commencement of the period of 120 days referred to in s.134AB(7).

The parties’ contentions

1. Before the primary judge, the argument was largely directed to whether there was compliance with Ministerial Direction 6 (which was assumed to apply in the circumstances of this case) and the implications for the operation of ss 134AB(7) and (9). His Honour accordingly concentrated on whether Qantas had effectively notified the VWA of its changed address for service and whether the respondent had effectively served the application in the circumstances, including the VWA’s failure to keep an up to date register of Qantas’ address for service.

1. Before us, however, the focus of the submissions was somewhat different.

1. The applicant primarily submitted that the primary judge erred in holding that Qantas was served on 30 May 2009, which resulted in substantial injustice, as the opportunity to assess the respondent’s claim was lost.  The applicant submitted that, on the better construction,  Direction 6.2 applied (albeit not expressly) to the case of a worker employed by a subsidiary of the self-insurer.  If Ministerial Direction 6.1 applied instead, an employee of a subsidiary of a self-insurer would be required to serve the VWA rather than the self-insurer which would serve no rational purpose.  If neither Ministerial Direction 6.1 nor 6.2 applied in the present case, it followed that there was a lacuna in Direction 6.

1. The applicant conceded that service was effected on Eastern on 30 May 2008 by the letter of 27 May 2008, but contended that did not constitute effective service on Qantas pursuant to Direction 6.2, which had the evident objective that ‘applications be the subject of quality decision making by self-insurers’.[13]

   [13]Applicant’s outline of submissions, filed 22 June 2009, [11].

1. The applicant contended that (as the associated Explanatory Memorandum made clear) the obligation to serve parties such as the employer (introduced by s 134AB(5A)) merely supplemented the longstanding, independent requirement that the worker ‘get the application to the self-insurer’, the service of the application on Eastern was therefore no substitute for its service on, or receipt by, Qantas for the purposes of s 134AB(7).

1. The applicant alternatively submitted that his Honour erred in failing to address the crucial question, viz, whether Qantas was also served with, or at least received, the application on 30 May 2008.  Instead, the reasons indicated that the primary judge erroneously considered only the question whether Eastern was served.  Further, the evidence did not support a finding that Qantas received the application.  The letter of 27 May 2008 was addressed to Eastern and the reference to ‘Qantas’ merely formed part of the address. 

1. The applicant conceded that if (contrary to its submission) Qantas was properly found to have received the application on 30 May 2008, nothing turned on deficiencies in service or the fact that only one application was sent to the Mascot address.

1. The respondent submitted that (although the loss of opportunity to consider the respondent’s claim would constitute substantial injustice) leave to appeal should be refused, because the decision below was not attended by sufficient doubt. The respondent submitted that Ministerial Direction 6 did not apply in this case, as Ministerial Direction 6 was not ‘for or with respect to procedures’ under [s 134AB’] and therefore could not apply by force of s 134AF(1). There was no ‘procedure’ in s 134AB(7) which could properly be the subject of a Ministerial Direction.

1. The respondent submitted that on a proper construction of the reasons, his Honour found that Qantas received the application on 30 May 2008, and on the evidence he was entitled to do so.  Any deficiencies in fulfilling any applicable service requirements were therefore irrelevant.  Alternatively, the respondent submitted that, irrespective of any flaws in the reasoning of the primary judge, sufficient doubt did not attend the determination that Qantas received the application on 30 May 2008.  

1. The respondent principally relied, in that context, on all the evidence, including:  the address for Qantas maintained by the VWA as at 27 May 2008;  that the application was on a file retrieved from Qantas archiving;  that Ms Singarella conceded that it had been in Qantas’ possession prior to September 2008 and that she could neither confirm nor deny that the application and the file had been within Qantas since 30 May 2008;  Qantas’s failure to make effective enquiries as to the date of its receipt of the application or to call Sydney witnesses;  the evidence of that of ‘QantasLink’ was an ‘umbrella’ organisation including a number of entities;  and Qantas’ subsequent receipt of correspondence sent to Eastern at the Mascot address. 

Discussion

1. It is was common ground that service on Eastern, required by s 134AB(5A), was duly effected by the letter of 27 May 2008 (despite the misspelling of its name). Neither s 134AB nor any other provision of the Act expressly requires service of the application on a self-insurer such as Qantas. Section 134AB(7) nevertheless requires receipt by a self-insurer as a precondition of the 120 days (or other specified period) commencing to run. While s 134AB(7) may therefore implicitly require a claimant to take steps to achieve such receipt, it does not impose an obligation to do so. Nor does it prescribe any particular method or procedures for providing the application to the self-insurer.

1. In contrast, the Ministerial Directions (if applicable pursuant to s 134AF(1) of the Act) expressly require service of the application on the self-insurer (in some circumstances at least) and prescribe the methods (registered post or hand delivery) and the required address (which may differ from a self-insurer’s registered or other corporate office).

1. Section 134AF(4) states that ‘[a] person to whom a direction under this section applies … must comply with the direction’. By s 134AF(1), such directions are to be made ‘for or with respect to procedures’ under s 134AB which in my view, contrary to the respondent’s submission, would comprehend the establishment or imposition of procedures for s 134AB(7), rather than being limited to directions in relation to procedures already established thereunder.

1. The application of Direction 6 to a worker employed by a subsidiary of a self-insurer nevertheless poses significant difficulties. Neither Ministerial Direction 6.1 nor 6.2 clearly covers such a case. Ministerial Direction 6.2 refers expressly only to the self-insurer, but other provisions of the Act do not treat the self-insurer as inclusive of its subsidiaries. On the other hand, while Ministerial Direction 6.1 (which refers to an ‘employer who is not a self-insurer’) might literally apply to the case of a worker employed by a subsidiary of a self-insurer, it would require service on the VWA, rather than the self-insurer.

1. On what is perhaps the preferable construction, there is a lacuna in Ministerial Direction 6. It fails to provide for service by an employee of a subsidiary of a self-insurer. It is at least unclear which entity such an employee must serve. Both the worker and the self-insurer are therefore exposed to potential uncertainty and prejudice. If Ministerial Direction 6.2 does apply, the worker’s ability to obtain the benefit of s 134AB(9) may depend on the VWA’s maintenance of an up to date register, because the self-insurer’s address for service is that notified to the VWA. The specification in s 134AB(7) that the 120 day period runs from the date of receipt of the application by the VWA or the self-insurer compounds the potential for uncertainty.

1. While greater clarity in drafting is desirable, it is unnecessary in order to determine the present application to decide whether and if so how Ministerial Direction 6 applied.

1. His Honour’s conclusions that the letter of 27 May 2008 constituted effective

service on Qantas both under the Corporations Act 2001 (Cth) and Ministerial Direction 6.2 (assuming it applied) nevertheless appear, with respect, doubtful. The respondent’s submission that service on the subsidiary constituted service on the parent is also unpersuasive. The conclusion that Qantas’ notification of change of its address for service was effective, despite non-compliance with the requirements of Ministerial Direction 6, is likewise, in my view, doubtful.

1. I am persuaded, however, on a fair reading of the reasons as a whole that his Honour considered whether Qantas was served with and received the application on 30 May 2008, and concluded that it was.

1. If read in isolation, his Honour’s reference to ‘the defendant’ in paragraphs 46 and 47 of the reasons would suggest that he merely concluded that Eastern, rather than Qantas, was served with or received the application. His Honour was, however, clearly alive to the distinct requirements of service on the employer under s 134AB(5A) and (it was assumed) on the self-insurer under the Ministerial Directions. He recognised that the self-insurer must receive the application for the purposes of s 134AB(7). His detailed discussion of the evidence of Ms Singarella, Mr Rankin and the self-insurer’s solicitor was directed to that issue.

1. His Honour thus found that the application was received by or brought to the attention of the self-insurer on 30 May 2008 by the sending of the registered mail on 27 May 2008.  In my opinion, that conclusion was open on the evidence.

1. The application for leave to appeal should be dismissed, as the decision below is not attended by sufficient doubt.

BYRNE AJA:

1. I agree with the judgment proposed by Dodds-Streeton JA and with her reasons.

1. I would add only one observation. The 120 day period prescribed in s 134AB(7) within which the self-insurer must respond, begins to run from receipt of

the application under s 134AB(4). There are many ways in which the self-insurer might receive the application. As lawyers, we are accustomed to speak of the service of an application such as this rather than of its receipt, because this provides a convenient method of proof of receipt and it puts beyond doubt the fact and time of receipt. Indeed, s 134AB(5A) speaks in terms of the service of this application upon each person against whom the worker claims to have a cause of action. It is significant that s 134AB contains no requirement of service, as such, upon the self-insurer.

1. The Minister, in his Direction 6, has sought to remove the uncertainties attending receipt.  As her Honour the presiding judge points out, Directions 6.1 and 6.2 do not, in terms, deal with the case of a self-insurer who is not the employer of the worker.  To my mind, there is much to be said for construing the expression in Direction 6.2, ‘an employer who is a self-insurer’ as meaning ‘an employer who is covered by a self-insurer regime’.  But it is not necessary that I reach any conclusion upon this;  the appeal was argued on the basis that Direction 6.2 was applicable to this case.

1. Direction 6.1 uses the mandatory ‘must’ but, as her Honour points out, no consequence of non-compliance is spelt out.  I would interpret this as an enabling provision so that compliance with it would put beyond argument the fact and time of receipt.  It does not preclude the application’s having been received by the self-insurer in some other way.

1. This is what the primary judge in this case found to have been the case, so that time ran from 30 May 2008 when the application documents are recorded as having been received at the Mascot address.

1. I would therefore dismiss the application for leave to appeal.

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