Imalenowa v Goodman Fielder Ltd
[2013] VCC 1569
•1 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted |
Case No. CI-13-04632
| PETER IMALENOWA | Plaintiff |
| v | |
| GOODMAN FIELDER LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2013 | |
DATE OF JUDGMENT: | 1 November 2013 | |
CASE MAY BE CITED AS: | Imalenowa v Goodman Fielder Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1569 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Ministerial Directions made pursuant to s134AF – where worker’s application under s134AB(4) did not comply with Ministerial Directions – whether notice served by employer upon worker complied with Ministerial Direction 15 – whether the period referred to in s134AB(7) had ceased to run - whether the Authority had failed to advise the worker in writing within 120 days of receiving an application that the worker was deemed to have a serious injury or, if the worker was not deemed to have a serious injury, whether or not the Authority would issue a certificate pursuant to s134AB(16)(a) – whether, pursuant to s134AB(9) the worker was deemed to have a serious injury.
Legislation Cited: Accident Compensation Act 1985, s134AB, s134AF
Cases Cited:Victorian WorkCover Authority v Brewster & Ors [2001] 3 VR 72; Adams v Lambert (2006) 225 ALR 396.
Judgment: The Originating Motion issued by the plaintiff on 10 September 2013 is struck out.
The plaintiff’s Summons dated 29 October 2013 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone & Co |
| For the Defendant | Mr M Carey | Sparke Helmore |
HIS HONOUR:
1 The plaintiff alleges that, in the course of his employment with the defendant, he suffered various injuries.
2 He alleges that his injuries, or at least some of them, are serious injuries as that term is defined in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). He wishes to issue a proceeding claiming damages in respect of those injuries.
3 His right to recover damages in respect of such injuries is governed by the provisions of s134AB of the Act. He must demonstrate that one or more of his injuries is a serious injury.
4 On 12 April 2013, the plaintiff, through his solicitors, Nowicki Carbone & Co, lawyers, served an application for serious injury pursuant to s134AB(4) of the Act, seeking a serious injury certificate from the defendant in respect of his injuries.[1]
[1]Exhibit ICS-1 to the affidavit of Ilona Carmen Strong sworn on 25 September 2013
5 Section 134AB(7) provides that the Authority or a self insurer must, within 120 days of receiving the application, advise the worker in writing as to whether the worker is deemed to have a serious injury or, if not, whether or not the Authority or self insurer will issue a certificate under ss(16)(a) indicating that it is satisfied that the injury is a serious injury as defined.
6 Section 134AB(9) provides that if the Authority or self insurer fails to advise the worker in writing within the period referred to in ss(7), the worker is deemed to have suffered a serious injury. Counsel for the plaintiff conceded that it followed that if the plaintiff was deemed to have a serious injury by reason of ss(9), it would not be necessary for him to bring an application by way of Originating Motion to the Court pursuant to s134AB(16)(b).
7 Section 134AB(5) provides that such an application under ss(4) shall be in a form approved by the Authority and be accompanied by specified medical reports and affidavits.
8 Section 134AF of the Act provides as follows:
“134AF Directions
(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.”
9 Pursuant to s134AF of the Act, Ministerial Directions have been issued with respect to procedures under s134AB (“the Directions”).[2]
[2]Exhibit A
10 Direction 1 provides that, pursuant to the provisions of the Act, employers, the Authority, authorised agents, self insurers, workers and the legal representatives of each must comply with the Directions.
11 Directions 5.4 and 5.6 set out a number of requirements for an application under s134AB(4). It is not necessary to set these out. The defendant alleges and the plaintiff does not dispute that his application under s134AB(4) did not fully comply with the requirements of Direction 5. Briefly, required particulars of his claim were not set out as required by that Direction.
12 The purpose of Direction 5 is plainly to enable the Authority to assess a worker’s application and to make an early decision as to whether or not to grant the application without further costs being incurred. Provision of the particulars specified in Directions 5.4 and 5.6 would enable it to do so.
13 Direction 15 provides as follows:
“15Failure to comply with these Directions
15.1Where, within 21 days of receiving the application and supporting documents, the Authority or self insurer (or their legal representatives) give notice to the worker or worker’s legal representative that any part of the application and supporting documents do not comply with Direction 5 above, the period referred to in s134AB(7) of the Act is altered so that time ceases to run until the Direction has been complied with.
15.2A notice served under Direction 15.1 above must:
(i) specify why that part of the application and supporting documents do not comply with Direction 5; and
(ii) state that the period within which the application is to be dealt with ceases to run from the date of the notice, and that time under s134AB(7) will commence to run from the date the authority or self insurer (or their legal representatives) gives notice in writing that it is satisfied that Direction 5 above has been complied with.
15.3Except where the notice served under Direction 15.1 above is served by the Authority, a copy of any notice served must be provided to the Authority within 7 days, addressed in the manner specified in Direction 6.1(a) above.”
14 By letter dated 7 May 2013 (within 21 days of receipt of the plaintiff’s application and supporting documents), the defendant’s solicitors wrote to the plaintiff’s solicitors in the following terms:
“We refer to your client’s serious injury application dated 10 April 2013, which was served under cover of your correspondence dated 12 April 2103 and received by our client on 17 April 2013.
We advise that we are instructed by Goodman Fielder Ltd to act on their behalf in respect of the application.
We further advise that we are instructed to notify you of our client’s decision to suspend your client’s application pursuant to Ministerial Direction 15.2 and advise that the period referred to in s134AB(7) of the Accident Compensation Act 1985 (Act) is altered so that time ceases to run effective immediately until such time as we give notice in writing that our client is satisfied that Direction 5 has been complied with.
The application is non-compliant for the following reasons:
1 Ministerial Direction 5.4(c) requires the applicant to attached a Statement of Claim that contains particulars required by Rule 13.10 of the County Court Rules. County Court Rule 13.10(4)(a) requires your client to provide particulars, with dates and amounts, of all earnings lost in consequence of the injury complained of.
County Court Rule 13.10(4)(b) requires your client to provide particulars of any loss of earning capacity resulting from injury.
The Statement of Claim does not satisfy the above. Can you please provide us with a Statement of Claim that particularises past and future loss of earning?
2 Ministerial Direction 5.4(d) requires your client to attach complete copies of his taxation returns, along with returns of each partnership, corporation or trust in which the Worker has a material interest, or other proof of income where such returns are unavailable and cannot be obtained, for the period of three years prior to each injury or injuries relied upon in the application to the date of the application.
Taxation returns have only been provided to June 2011. We would appreciate you supplying us with a taxation return for June 2013 and/or proof of income from June 2011 to the date of the application, namely April 2013.
3 Ministerial Direction 5.6(f) requires your client’s affidavit to contain, in respect of each behavioural disturbance or disorder or on which reliance is placed, the nature and extent of the pain and suffering, loss of amenity of life or loss of enjoyment of life suffered by the Worker resulting from the behavioural disturbance or disorder including, if applicable, an explanation of the effect of the behavioural disturbance or disorder on the Worker’s ability to engage in hobbies, recreation, sporting pursuits and domestic activities undertaken prior to the behaviour disturbance or disorder.
The affidavit does not make any reference to same. Please supply our office with an affidavit that contains this information.
4 Ministerial Direction 5.6(g) also requires your client to provide particulars of his past and future economic loss and loss of earning capacity in his affidavit.
This has not been provided. Can you please provide us with an affidavit that particularises past and future loss of earnings and loss of earning capacity?
5 Ministerial Direction 5.6(l) requires your client to provide details of any attempts by the worker to obtain alternative employment or further or additional employment.
6 Please confirm whether your client has made attempts to obtain employment following the cessation of his employment.
In accordance with Ministerial Direction 15.2 we confirm that the period within which the application is to be dealt with ceases to run from the date of this notice and that time under s134AB(7) of the Act will commence to run from the date that we give notice in writing that our client is satisfied that Direction 5 above has been complied with.
We look forward to receipt of the above information.
Yours faithfully …”
15 Shortly following that letter, the plaintiff’s solicitors provided a further income tax return of the worker in respect of the year ending 30 June 2012 and requested that the suspension be removed.[3]
[3]Exhibit C
16 By letter dated 10 May 2013, the defendant’s solicitors acknowledged the receipt of the additional income tax return but advised the plaintiff’s solicitors that in all other respects, the defects notified in paragraphs 1, 3, 4 and 5 of the notice of 7 May 2013 remained to be dealt with and that the suspension remained in effect.[4]
[4]Exhibit D
17 By letter dated 20 May 2013, the plaintiff’s solicitors advised the defendant’s solicitors that they considered that the Ministerial Directions had been complied with and that, failing a response from the defendant within 120 days of the application, the plaintiff would consider that the injury was deemed to be a serious injury.[5]
[5]Exhibit E
18 On 10 September 2013, the plaintiff filed an Originating Motion seeking orders that he be granted leave pursuant to s134AB of the Act to commence common law proceedings against the defendant. That application was made pursuant to s134AB(4)(b) of the Act.
19 Shortly thereafter the defendant’s solicitors advised the plaintiff’s solicitors that it was their view that the application remained suspended and that the worker could not issue proceedings by way of an Originating Motion until that suspension had been lifted. The defendant’s solicitors requested that the Originating Motion be withdrawn. It was not withdrawn at that time, or since.
20 The defendant’s solicitors filed a conditional appearance to the Originating Motion.
21 The defendant now seeks an Order that the Originating Motion be struck out.
22 Counsel for the plaintiff did not attempt to argue that the plaintiff’s application complied with Direction 5. Having viewed the application, I find that it did not comply with the Direction for the reasons set out in the letter from the defendant’s solicitors to the plaintiff’s solicitors dated 7 May 2013.
23 Counsel for the plaintiff submitted that notwithstanding the plaintiff’s non-compliance with Direction 5, the application brought by him was valid and was one that was required to be addressed by the defendant pursuant to the terms of s134AB. He submitted that:
· The letter of the defendant’s solicitors dated 7 May 2013 was not a valid notice pursuant to Direction 15;
· That time under s134AB(7) had not ceased to run;
· That the defendant had not responded pursuant to the application within 120 days of its service;
· That, by reason of s134AB(9), the plaintiff was deemed to have a serious injury.
24 During the course of submissions by counsel for the plaintiff, he conceded that the plaintiff sought a declaration by the Court that, pursuant to s134AB(9) of the Act, the plaintiff was deemed to have suffered a serious injury in the course of his employment with the defendant. He agreed that it would be appropriate for the plaintiff to issue a Summons formally seeking such declaration. On the basis of counsel’s assurance that the application would be brought on the basis of documents before the Court and with no additional evidence, counsel for the defendant did not oppose leave being granted for such Summons to be issued. Accordingly, I gave leave to the plaintiff to issue such Summons. Such Summons, dated 29 October 2013, has been filed with the Court.
25 I indicated that I would reserve my decision in respect of both Summonses.
26 I have come to the conclusion, for the reasons set out below, that:
(a)The application and supporting documents did not comply with Direction 5.4(c) and (d) and 5.6(f), (g) and (l).
(b) Within 21 days of receiving the application and supporting documents, the defendant gave valid notice to the plaintiff’s legal representative that the plaintiff’s application and supporting documents did not comply with Direction 5.
(c)Accordingly, the period referred to in s134AB(7) was altered so that time ceased to run until the Direction had been complied with.
(d)Direction 5 has not, to this date, been complied with by the plaintiff.
(e)The period of 120 days referred to in s134AB(7) has not expired.
(f)The worker is not deemed to have suffered a serious injury pursuant to s134AB(9).
(g)The Originating Motion should be struck out.
27 Notwithstanding the common ground between the parties that the plaintiff’s application under s134AB(4) did not comply or at least fully comply with Direction 5, the defendant did not submit that the application was a nullity or one that could be ignored. Rather, it submitted that the notice, given by its solicitors to the plaintiff’s solicitors dated 7 May 2013, complied with Direction 15.
28 In order to obtain the benefit of Direction 15, the defendant was required to notify the plaintiff (or his solicitors) that the application and supporting documents did not comply with Direction 5. Further, it was required to give notice that the period referred to in s134AB(7) of the Act is altered so that time ceases to run until the Direction had been complied with. I consider that the defendant complied with both requirements.
29 Direction 15.2 sets out in some detail what was required to be provided with such notice. I am satisfied those requirements were complied with.
30 Counsel for the plaintiff submitted that the defendant’s letter of 7 September 2013 referred twice to Ministerial Direction 15.2 but not to Direction 15.1. In particular, he emphasised that the letter purported to notify the plaintiff of the defendant’s decision to suspend the application “pursuant to Ministerial Direction 15.2 …”. Later in the letter, counsel referred to the defendant’s confirmation that the period within which the application is to be dealt with ceases to run “in accordance with Ministerial Direction 15.2”.
31 Counsel submitted that there was no power in Direction 15.2 for any such notice to be given. He submitted that the power to issue such a notice was only contained in Direction 15.1. He conceded that if the letter had referred to Direction 15.1 rather than 15.2, the plaintiff could have no objection concerning it.
32 Hence, the issue to be determined is whether the reference or references to Direction 15.2 in the defendant’s solicitor’s letter resulted in it not being a valid notice of the matters required by Direction 15.
33 I consider that the Directions required the defendant to do no more than advise the plaintiff or his legal representative of the matters specified in Direction 15.2. The defendant was not required to expressly state that it was a notice pursuant to Direction 15.1.
34 The direction can be contrasted with a provision such as Order 26.02 of the Rules of the Court which specifically requires that an offer of compromise must contain a statement to the effect that it is served in accordance with Order 26. The reason for such a requirement is presumably to direct the recipient of such offer to other terms of the Order and to the possible repercussions of non-acceptance of such an offer.
35 The Ministerial Directions in question contain no such requirement. I consider that the reference to Direction 15.2 in the defendant’s solicitor’s letter, whilst probably helpful in directing the plaintiff to the relevant Direction is, strictly speaking, surplusage. It would have been sufficient for the solicitors to have notified the defendant of its decision to suspend the application by reason of the failure to comply fully with Direction 5 and to have provided the particulars specified in Direction 15.2.
36 I do not consider that the statement that the notice was given pursuant to Direction 15.2, as opposed to 15.1, is of any consequence.
37 I do not consider that the reference to Direction 15.2 was in any way confusing or likely to have misled the plaintiff or his solicitors. The reference to Direction 15.2 would immediately alert the reader that it is a reference to a notice served under Direction 15 and its requirements.
38 I conclude that the plaintiff’s solicitors could have been under no misconception or misunderstanding that the defendant was notifying them that the plaintiff’s application did not comply with Direction 5 and by reason of that non-compliance, the period referred to in s134AB(7) was altered so that time ceased to run until Direction 5 had been complied with.
39 Counsel for the plaintiff did not submit that the plaintiff’s solicitors were so confused or misled. No evidence was tendered on behalf of the plaintiff to such effect.
40 It may be that the letter was intended as notice pursuant to Direction 15.1 and that, by mistake, the reference was to 15.2 which deals with the required contents of the notice rather than the power to serve it.
41 In Victorian WorkCover Authority v Brewster & Ors[6], Phillips JA considered the effect of a misdescription of an injury in a notice pursuant to s109 of the Act. He said:
“Administrative blunder it may have been, and mistake it obviously was. Taken in context, that mistake did not deprive the notice of effect; its purport and its meaning were plain beyond argument. The mistake in the document was quite simply immaterial…Therefore I think the notice of rejection was effective …”
[6](2001) 3 VR 72 at 89.
42 In Adams v Lambert[7], a similar mistake in the wording of a Bankruptcy notice was held not to have invalidated the notice.
[7](2006) 225 ALR 396. The notice contained an incorrect reference to a section of the Bankruptcy Act 1966.
43 I find that the defendant’s notice contained in the letter of 7 September 2013 constituted a notice in accordance with Direction 15. Accordingly, time ceased to run for the purposes of s134AB(7) from the date of the defendant’s notice and the plaintiff is not deemed to have suffered a serious injury pursuant to s134AB(9). Accordingly, the plaintiff’s Summons dated 29 October 2013 will be dismissed.
44 Further, I accept that the Originating Motion has been issued prematurely and should be struck out. The defendant still has the opportunity to peruse all material properly delivered pursuant to Direction 5 before making a determination as to whether or not the plaintiff has suffered a serious injury, before the commencement of a proceeding by Originating Motion.
45 The striking out of the Originating Motion will not affect the efficacy of the application brought by the plaintiff once additional particulars are provided so that the application complies with Direction 5. Time would then commence to run again pursuant to ss(7).
46 I propose to make the following Orders:
1The Originating Motion dated 10 September 2013 be struck out.
2The plaintiff pay the costs of and incidental to the defendant’s Summons dated 23 September 2013, such costs to be determined by the Costs Court in default of agreement.
3The plaintiff’s Summons dated 29 October 2013 be dismissed with no order as to costs.
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