L v Dohnt and Co Pty Ltd v Macdonald (Intervener)
[2014] WASCA 149
•15 AUGUST 2014
L V DOHNT & CO PTY LTD -v- MACDONALD (Intervener) [2014] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 149 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:104/2013 | 19 JUNE 2014 | |
| Coram: | McLURE P NEWNES JA EDELMAN J | 15/08/14 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Orders made by primary judge set aside Writ of certiorari issued | ||
| A | |||
| PDF Version |
| Parties: | L V DOHNT & CO PTY LTD OWEN JOHN MACDONALD (Intervener) |
Catchwords: | Workers' compensation Meaning of 'notify' in Workers' Compensation and Injury Management Act 1981 (WA), s 93O Application of Interpretation Act 1984 (WA), s 75 and s 76 |
Legislation: | Acts Interpretation Act 1901 (Cth), s 28A Acts Interpretation Acts 1954 (Qld), s 39(1) Corporations Act 2001 (Cth), s 109X Hire Purchase Act 1959 (Qld), s 42(1)(c) Interpretation Act 1978 (UK), s 7 Interpretation Act 1889 (UK), s 26 Interpretation Act 1984 (WA), s 3(1)(b), s 75, s 76 Sale of Land Act 1970 (WA), s 6(1) Workers' Compensation and Injury Management Act 1981 (WA), s 24B(3), s 31I(2), s 48(3), s 57A, s 57B, s 57BA(4)(c), s 57C, s 59(3), s 61, s 84AB, s 92, s 93D, s 93EA(5), s 93EB(5), s 93EC, s 93K(4), s 93L(4), s 93M, s 93O, s 96(5)(a), s 109(2a), s 146R(4),s 154(2), s 155A(4), s 155E(a), s 158F(1), s 160(3a), s 174AD, s 175G, s 179, s 182C(2), s 182ZR(2), s 293(4)(a), s 314, s 325(2), sch 1 cl 1C(4)(a), sch 1 cl 18A(4), sch 5 cl 5(3) Workers' Compensation and Injury Management Regulations 1982 (WA), reg 19P, reg 25 Workers' Compensation Reform Act 2004 (WA) |
Case References: | A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314 Australasian Correctional Management v Francis [2002] WASCA 74 Beer v Davies [1958] 2 QB 187 Bishop v Helps (1845) 135 ER 857 Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342 Clyne v Director of Public Prosecutions (Cth) [1984] HCA 56; (1984) 154 CLR 640 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Gidden v Chief Constable of Humberside [2009] EWHC 2924 Jones v Superannuation Complaints Tribunal [2011] FCA 1255; (2011) 198 FCR 71 R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 Re Gasbourne Pty Ltd [1984] VR 801 Re Keziah Holdsworth; Ex parte L V Dohnt & Co Pty Ltd [2013] WASC 322 Re Monger; Ex parte Browne [2003] WASCA 281 Re Rustic Homes Pty Ltd (1988) 49 SASR 41 Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226 Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 Thorpe v Capper,unreported Full Court of Supreme Court of Western Australia, 6 December 1996, page 15 Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 Woodgate v Garard Pty Ltd (2010) 78 ACSR 468 Xiao v Perpetual Trustee Co Ltd [2008] VSC 412 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : L V DOHNT & CO PTY LTD -v- MACDONALD (Intervener) [2014] WASCA 149 CORAM : McLURE P
- NEWNES JA
EDELMAN J
- Appellant
AND
OWEN JOHN MACDONALD (Intervener)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : RE KEZIAH HOLDSWORTH; EX PARTE L V DOHNT & CO PTY LTD [2013] WASC 322
File No : CIV 1429 of 2013
Catchwords:
Workers' compensation - Meaning of 'notify' in Workers' Compensation and Injury Management Act 1981 (WA), s 93O - Application of Interpretation Act 1984 (WA), s 75 and s 76
Legislation:
Acts Interpretation Act 1901 (Cth), s 28A
Acts Interpretation Acts 1954 (Qld), s 39(1)
Corporations Act 2001 (Cth), s 109X
Hire Purchase Act 1959 (Qld), s 42(1)(c)
Interpretation Act 1978 (UK), s 7
Interpretation Act 1889 (UK), s 26
Interpretation Act 1984 (WA), s 3(1)(b), s 75, s 76
Sale of Land Act 1970 (WA), s 6(1)
Workers' Compensation and Injury Management Act 1981 (WA), s 24B(3), s 31I(2), s 48(3), s 57A, s 57B, s 57BA(4)(c), s 57C, s 59(3), s 61, s 84AB, s 92, s 93D, s 93EA(5), s 93EB(5), s 93EC, s 93K(4), s 93L(4), s 93M, s 93O, s 96(5)(a), s 109(2a), s 146R(4),s 154(2), s 155A(4), s 155E(a), s 158F(1), s 160(3a), s 174AD, s 175G, s 179, s 182C(2), s 182ZR(2), s 293(4)(a), s 314, s 325(2), sch 1 cl 1C(4)(a), sch 1 cl 18A(4), sch 5 cl 5(3)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 19P, reg 25
Workers' Compensation Reform Act 2004 (WA)
Result:
Appeal allowed
Orders made by primary judge set aside
Writ of certiorari issued
Category: A
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr B J R Brooksby
Solicitors:
Appellant : CCS Insurance Law
Respondent : Haynes Robinson Lawyers
Case(s) referred to in judgment(s):
A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314
Australasian Correctional Management v Francis [2002] WASCA 74
Beer v Davies [1958] 2 QB 187
Bishop v Helps (1845) 135 ER 857
Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298
Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342
Clyne v Director of Public Prosecutions (Cth) [1984] HCA 56; (1984) 154 CLR 640
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Gidden v Chief Constable of Humberside [2009] EWHC 2924
Jones v Superannuation Complaints Tribunal [2011] FCA 1255; (2011) 198 FCR 71
R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682
Re Gasbourne Pty Ltd [1984] VR 801
Re Keziah Holdsworth; Ex parte L V Dohnt & Co Pty Ltd [2013] WASC 322
Re Monger; Ex parte Browne [2003] WASCA 281
Re Rustic Homes Pty Ltd (1988) 49 SASR 41
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107
Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226
Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574
Thorpe v Capper,unreported Full Court of Supreme Court of Western Australia, 6 December 1996, page 15
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Woodgate v Garard Pty Ltd (2010) 78 ACSR 468
Xiao v Perpetual Trustee Co Ltd [2008] VSC 412
1 McLURE P: This appeal concerns the proper construction of s 93O of the Workers' Compensation and Injury Management Act 1981 (WA) (the Workers' Compensation Act) and its relationship with s 75 and s 76 of the Interpretation Act 1984 (WA) (Interpretation Act).
2 In 2011 the respondent sustained an injury in the course of his employment with the appellant. The appellant, by its employer indemnity insurer, accepted liability to pay compensation to the respondent by way of weekly payments under the Workers' Compensation Act.
3 Part IV div 2 of the Workers' Compensation Act imposes restraints on the award of common law damages. The restraints applicable to the respondent were introduced by the Workers' Compensation Reform Act 2004 (WA) (the 2004 amendments).
4 An entitlement to common law damages in respect of an injury to which the Workers' Compensation Act applies requires that, inter alia, a worker elect to retain the right to seek damages (s 93K(4)).
5 If a claim for compensation by way of weekly payments has been made with respect to the injury concerned, an election cannot be made after the termination day (s 93L(4)).
6 The expression 'termination day' is defined in s 93M to mean the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by, relevantly, s 93M(4).
7 Section 93M(4) relevantly provides:
(4) The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
…
(b) the Director is satisfied that the employer has failed to comply with section 93O[.]
9 Section 93O provides:
(1) At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations -
(a) of the day that would be the termination day if no later day were to be fixed under section 93M(4); and
(b) that about 6 months remains before the termination day; and
(c) of the significance of the termination day for the worker’s ability to seek damages; and
(d) of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker’s degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.
(2) The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).
10 Regulation 25 of the Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations) provides:
The notice that an employer is required by section 93O(1) of the Act to give to a worker has to be given by sending the worker a document in the form of Form 36 in Appendix I.
11 The respondent did not make an election under s 93K(4) before the termination day. He sought and obtained from the Director's delegate (the Delegate) an extension of the termination day on the basis that the Delegate was satisfied that the appellant had failed to comply with s 93O.
12 The appellant obtained an order nisi that the Delegate show cause before a single judge why a writ of certiorari should not be issued quashing her decision. The matter came before Le Miere J who refused to issue a writ of certiorari and discharged the order nisi.
13 It appears the primary judge accepted that, within the time required under s 93O, the appellant, by its insurer, posted to the respondent a document in the form of Form 36 in Appendix I of the Regulations (the Notice). Further, it was accepted by the parties and the primary judge that the letter containing the Notice was properly addressed and sent by pre-paid post to the last known address of the respondent in accordance with the requirements of s 75 of the Interpretation Act. The respondent's address was 'U16 Valley View Motel, Mt Barker'.
14 Section 75 of the Interpretation Act relevantly provides:
(1) 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, and, 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.
15 The Workers' Compensation Act does not authorise or require the Notice to be served by post. The only gateway to s 75 of the Interpretation Act in this case is through s 76 of the Interpretation Act which relevantly provides:
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; or
(d) in the case of a corporation … by delivering or leaving the document or posting it as a letter, addressed in each case to the corporation … at its principal place of business or principal office in the State.
16 Section 75(1) applies unless the contrary intention appears (s 75(3)). Section 76 is silent on that subject. However, by s 3(1)(b) of the Interpretation Act, its provisions apply to every written law unless, relevantly, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application. In the absence of submissions from the parties on the subject, I will assume there is no material difference in effect between s 3(1)(b) and the expression 'unless the contrary intention appears': Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 [68]; Clyne v Director of Public Prosecutions (Cth) (1984) 154 CLR 640, 660.
17 The primary judge held that there was evidence before the Delegate that was capable of sustaining a finding that the respondent did not receive the Notice and that it did not come to his attention [17]; that 'notify' in s 93O(1) means to make known and that the requirement to give the worker notice of certain things requires that the notice reach the worker unless the statute provides otherwise [10]; that reg 25 would be beyond power if it purported to provide that a worker will be deemed to have been notified of the prescribed matters even if the notice has not reached the worker and the worker has not been informed of the things of which he is required to be notified [11]; and that the presumption of service at a stated time after the date on which a document was posted in s 75(1) is rebutted by proof that the document was not received by the person to whom it was addressed [12].
18 The primary judge continued:
The result is that if the employer proves that it sent the notice by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the worker, it will be deemed to have been sent to the worker unless the worker proves that he did not receive it [13].
19 The appellant relies on three related grounds of appeal. They are to the effect that s 93O of the Workers' Compensation Act does not require a worker to receive actual notice of the prescribed matters (ground 1); that s 75(1) of the Interpretation Act applies (ground 2); and that the rebuttal of the s 75(1) presumption applies only to the date of service not the fact of service (ground 3).
The authorities
20 The expression 'unless the contrary is proved' in s 75(1) of the Interpretation Act gives rise to a rebuttable presumption of fact, the scope of which is in issue in these proceedings. The wider issue is whether the rebuttable presumption applies to the fact of service or just to the date of service. The narrower issue is the scope of the word 'delivered' and its relationship with 'receipt'.
21 The primary judge's conclusion that the presumption as to the date of service is rebutted by evidence of non-receipt is, prima facie, inconsistent with the leading High Court decision in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 on what was the then Queensland equivalent of s 75(1) of the Interpretation Act. In that case the respondent gave notice under s 42(1)(c) of the Hire Purchase Act 1959 (Qld) (HP Act) for the repossession of equipment the subject of hire purchase agreements with the appellants. Section 42(1)(c) provided that a notice that is to be served on or given to a hirer under the HP Act may be served or given (inter alia) by posting it addressed to him at his last known place of abode or business.
22 Former s 39(1) of the Acts Interpretation Acts 1954 (Qld) (the service by post provision) was in materially the same terms as s 75(1). Notices were posted to the appellants care of 'Post Office, Sapphire, Queensland'. The appellants denied receipt of the notices. However, there was no evidence of non-delivery in the unusual circumstances pertaining to the appellants' last known address. The High Court said:
As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery. It follows that the application of s 39(1) … in no way affects the proof of service of the notices in this case (97).
23 Thus, the presumption in s 75(1) can only be rebutted by proof of non-delivery. However, Fancourt is not authority for the proposition that non-receipt can never be relevant to proof of non-delivery for the purpose of s 75(1).
24 As the HP Act authorised service by post, there could be no suggestion of any contrary intention in that Act to displace the service by post provision.
25 Without determining its correctness, the High Court in Fancourt referred to a line of English authority (commencing with R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682, 697) in which it has been held that proof of non-delivery for the purpose of the English service by post provision (formerly s 26 of the Interpretation Act 1889 (UK), now s 7 of the Interpretation Act 1978 (UK)) means that service cannot be deemed to have taken place at the time of delivery in the ordinary course of post or at all. As stated by the High Court:
The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed (96).
26 The English line of authority has been followed in Australia. See the cases discussed in Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321 [19] - [23]. In summary, the weight of authority establishes that the rebuttable presumption in s 75(1) extends to the fact of service (non-delivery means non-service) and requires proof of non-delivery, not non-receipt. This conclusion is, for the reasons discussed below, consistent with the effect of s 76 of the Interpretation Act. I would dismiss ground 3.
27 Having regard to the evidence as a whole in this case, a finding of non-receipt of the Notice did not permit a factual inference of non-delivery to the respondent's address at the Valley View Motel. The evidence is that the mail delivery system at the motel was not always reliable. The interposition of the motel between Australia Post and the appellant left no room to infer non-delivery of the letter to the motel.
28 The central issue in this case is whether s 93O reveals a contrary intention for the purpose of s 76 or s 75 of the Interpretation Act and if so, the extent and effect of any inconsistency. As I read the primary judge's reasons, his conclusion is that 'notify' in s 93O requires actual receipt of the Notice by the addressee and that s 75(1) continues to apply, save that the presumption is rebutted by proof of non-receipt as distinct from non-delivery. This approach is dependent upon acceptance of the English line of authority that proof by the addressee of non-delivery (in this case non-receipt) prevents a conclusion that the document has been served at all.
29 The facts in this case are much closer to those considered by the High Court in Capper v Thorpe (1998) 194 CLR 342 than in Fancourt. In Capper, the purchaser under a terms contract for the sale of land failed to pay the balance of the price on the due date. On 6 September the vendor sent a notice in writing requiring the purchaser to remedy the default within 28 days after service. The notice was sent by certified mail to the purchaser at his address stated in the contract. By then the purchaser had moved to a new address without notifying the vendor until 19 September. In mid-September the purchaser was notified by the post office that an item was held there for collection. He did not collect the notice from the post office until 3 October. However, he received a copy of the notice some time between 15 and 19 September. On 9 October the vendor served a notice of termination of the contract for failure to rectify the default.
30 Section 6(1) of the Sale of Land Act 1970 (WA) (SLA) required a vendor, before terminating a terms contract for breach, to serve on the purchaser a notice in writing specifying the breach and requiring the purchaser to remedy it within a stipulated date not less than 28 days from the date of service of the notice. The High Court said that the ordinary meaning of 'served on the purchaser … in writing' in s 6 of the SLA requires service in fact of the notice [22]. That is, the statutory requirement that a document be served is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served [21]. The High Court continued:
However in Western Australia, as elsewhere in Australia, the Legislature by enacting ss 75 and 76 of the 1984 Act has extended the meaning of the term 'serve'. In cases falling within the provisions of those sections, a document may be served although it is not in fact received by the person who has to be served (a reference to Fancourt) [23].
31 Thus, s 76 is facultative not exhaustive and the word 'served' in the SLA had both its natural and ordinary meaning and its extended meaning under s 75 and s 76. In Capper, the provisions of s 75 and s 76 of the Interpretation Act did not assist because the purchaser proved that the notice was not delivered to his last known address. However, service was effected for the purpose of s 6 of the SLA because the purchaser had received a copy of the notice.
32 In Capper, as in this case, the route to s 75(1) was not direct because the SLA did not authorise or require service of the notice by post; the route to s 75(1) was indirect, through s 76(b). Moreover, there is no suggestion in Capper that the term in the SLA connoting actual notice (to serve) reflected an intention that the service by post provision did not apply.
33 It has been accepted in this jurisdiction that the word 'notify' in the Workers' Compensation Act does not necessarily manifest a contrary intention for the purpose of s 75 and s 76 of the Interpretation Act. In Australasian Correctional Management v Francis [2002] WASCA 74, the Full Court considered the meaning of the word 'notify' in s 57A(3) of the Workers' Compensation Act (as it then stood). That section sets out the claims procedure where an employer who has received a claim for compensation by way of weekly payments is insured. Under s 57A(3), before the expiration of 14 days after a claim was made by the employer on its insurer, the insurer was obliged to notify the worker and employer that liability was accepted, or notify the worker and employer that liability was disputed, or notify the Director, the employer and the worker that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed. Where an insurer failed to comply with s 57A(3), the worker who made the claim was, by force of s 57A(5), entitled to the weekly payments.
34 The 14-day period in s 57A(3) expired at midnight on 16 July 2000. A letter containing notification that a decision could not be made within the time allowed was not posted by the insurer until that day. There was uncontradicted evidence for the purpose of s 75(1) that, in the ordinary course of post, the notice would have been delivered on 17 July. The worker's evidence was that he received the notification on 18 July. The appellant contended that the requirement to notify was satisfied on posting. The Full Court said:
The starting-point is that, prima facie, the word 'notify' has its ordinary meaning in the subsection and according to its ordinary meaning the mere posting of a notice is not enough. Putting a notice in the post cannot of itself constitute notification of its contents. Leaving to one side the effect of the provisions of s 75(1) and s 76(b) of the Interpretation Act 1984, notification would not be effected until the form of notice actually reached the person to whom it was addressed. This is qualified by the provisions of the Interpretation Act referred to and it may be accepted for present purposes that those provisions would deem the notice to have been received at the time when it would have been delivered in the ordinary course of post [5].
35 The Court continued that s 57A(3):
[M]eans only that the insurer must take appropriate steps within the 14 days to effect actual notification, or put the notification into the post in time to ensure that, in virtue of s 75(1) and s 76(b) of the Interpretation Act, it will be deemed as a matter of law to have been received before the expiration of that time [9].
36 In Re Monger; Ex parte Browne [2003] WASCA 281, counsel for the applicant conceded that the requirement in s 93D(8) of the Workers' Compensation Act that the employer 'notifies the Director in accordance with the regulations' without any direction that the relevant form be served in any particular manner meant s 76 (and thus s 75(1)) of the Interpretation Act was applicable [12]. The court was considering the '1993 scheme' which is in pt IV div 2, subdiv 2 of the Workers' Compensation Act. In broad outline, if the worker and the employer cannot agree on the degree of disability as being not less than a specified level, the worker may refer the question to the Director (s 93D(5)). As soon as practicable after receiving the referral under s 93D(5), the Director is required to notify the employer in accordance with the regulations (s 93D(7)). If, within 21 days after being notified, the employer notifies the Director in accordance with the regulations that it considers that the degree of disability is less than the relevant level, a dispute arises for consideration by the Director in consultation with the parties (s 93D(8)). Absent an employer notifying the Director within the stated time, the employer is regarded as having agreed that the degree of disability is not less than the specified level (s 93D(12)).
37 The evidence established that the employer's insurer posted the relevant form to the Director within the 21 days referred to in s 93D(8) but that it never found its way to the Director. There was no suggestion that s 314 (under which WorkCover WA may specify the form of sending information) affected the outcome. The court agreed with the concession made by counsel that s 76 and s 75(1) of the Interpretation Act applied and with the Director's decision that he had been notified within the time specified in s 93D(8). I remain of the view that the concession was correctly made.
38 However, in a different statutory context the result may well be different. The word 'notify' in a statute has been held to indicate an intention that a service by post provision is not intended to apply: Xiao v Perpetual Trustee Co Ltd [2008] VSC 412 [58] - [66] (landlords' statutory obligation to notify the tenant in writing of date of expiry of option to renew a retail tenancy). See also Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574, 581. It has been suggested that a contrary intention is more likely to be manifested where a person's rights will be adversely affected: Secretary,Department of Social Security v Garratt (1992) 109 ALR 149, 157. Moreover, that outcome may be almost inevitable if the notification requirement relates to proceedings that attract the rules of procedural fairness: Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298.
The Workers' Compensation Act - broad contextual considerations
39 It is significant that the words 'notify', 'notified' and 'notification' are used throughout the Workers' Compensation Act. As to the word 'notify', see s 24B(3), s 31I(2), s 48(3), s 57B(2b), s 57BA(4)(c), s 59(3), s 84AB, s 93D(7) and (8), s 93EA(5), s 93EB(5), s 93EC(a) and (b), s 155E(a), s 158F(1), s 160(3a), sch 1 cl 1C(4)(a) and cl 18A(4)(a) and (b), and sch 5 cl 5(3). The parties did not refer to these other provisions, preferring to focus on s 93O in isolation. For present purposes it is sufficient to note that the obligation 'to notify' is variously placed on a worker, employer, insurer, medical practitioner and WorkCover. Some of the obligations to notify contemplate a time limited response to the notification that directly affects rights. Section 93O is not in that category. In some cases, the breach of the obligation to notify constitutes an offence.
40 The Workers' Compensation Act also imposes obligations on persons (including variously an employer, insurer and WorkCover) to give notice to another (including s 57A(3), s 57B(2), s 61, s 84AB, s 93O(2), s 109(2a), s 154(2), s 174AD, s 175G) or send or serve notice or notification to another (including s 57C, s 92(f)(iv)).
41 With two exceptions, the Workers' Compensation Act does not direct that the notices or notifications be given in a particular manner. The exceptions are s 92, which provides for service by the Director of a notice by pre-paid post to the address of a party set out in a settlement agreement or their last known address, and s 179, which provides that notice of an injury may be served by delivery at, or sending it by registered post to, the residential or business address of the employer.
42 There is no power in the Workers' Compensation Act or regulations to extend the time in which to notify or give notice nor is there a power to order substituted service.
43 The giving and receiving of information in writing is the skeleton on which the workplace accident compulsory insurance legislative scheme is built. It must be construed so as to maintain systemic coherence and workability and have as much certainty in application as language permits. To do otherwise would have an adverse effect on the administrative and other costs of the workers' compensation system and potentially endanger the system itself.
44 The Workers' Compensation Act makes occasional express reference to the Interpretation Act to confirm an Interpretation Act meaning (s 96(5)(a)); to extend the application of the Interpretation Act provisions relating to regulations to directions and codes of practice (s 146R(4), s 155A(4)), its provisions relating to appointments to designations (s 182C(2), s 182ZR(2)), and its provisions relating to rules of court to conciliation and arbitration rules under the Workers' Compensation Act (s 293(4)(a)); and to confirm the application of the Interpretation Act to the repeal, savings, and transitional provisions in pt XX of the Workers' Compensation Act (s 325(2)). It cannot be inferred from these express references that the Interpretation Act has no application to any other provisions of the Workers' Compensation Act.
Construction analysis
45 The first issue is the meaning of the word 'notify'. Its natural and ordinary (that is, dictionary) meaning is 'to give notice to'. The natural and ordinary meaning of 'notice' in this context means knowledge of the existence of the relevant information; that is, actual notice of the information. However, reasonableness suggests there would be a limited role for constructive notice, such as where an addressee deliberately avoids actual knowledge by refusing to read the contents of the letter or has actual knowledge of sufficient facts to require him to inquire as to the content of the letter. For example, in this case the respondent had limited literacy so when he received correspondence relating to his workers' compensation matter he arranged for it to be read to him. Accordingly, for most purposes, 'receipt' of a document by the addressee personally can be regarded as constituting actual notice.
46 Thus the term 'notify' has the same natural and ordinary meaning as that given to the term 'serve' by the High Court in Capper. The effect of s 76 of the Interpretation Act is to extend, not replace, the natural and ordinary meaning of 'notify'.
47 Moreover, the natural and ordinary meaning of the obligation 'to notify' in s 93O and in the many other provisions of the Workers' Compensation Act is synonymous with the natural and ordinary meaning of the obligations in that Act to give or send notice to a specified person.
48 The equivalence between the concepts of notify and notice is made express in the terms of s 93O itself. Section 93O(1) requires the employer to notify the worker in writing and s 93O(2) says '[t]he notice is required to be given' within the nominated period. This is also confirmed in the explanatory memorandum for the 2004 amendments which refers to the proposed s 93P (which became s 93O) as strengthening the existing reg 19P requirement 'for employers to notify workers' about the election requirements (31). Regulation 19P is in terms a requirement to give written notice.
49 The interchangeability of the obligations to notify and give notice is also evident in s 57A(3) and (4). Section 57A(3) requires the giving of notices. The notice required by s 57A(3)(c) is described in s 57A(4) as a 'notification'. See also s 57B(2) and (3).
50 Further, it follows from the analysis in Capper that the natural and ordinary meaning of the word 'notify' cannot itself indicate a contrary intention (that is, that s 75(1) and/or s 76 do not apply). If it did, every notice obligation in the Workers' Compensation Act would be affected. Something more is required.
51 The second issue is whether the s 76(b) gateway is available in relation to the obligation to notify the worker in writing under s 93O. If, as I have concluded, 'to notify in writing' is synonymous with 'to give notice in writing', the answer is unequivocally in the affirmative. More fundamentally, this result is dictated by Capper. Section 76 is concerned with service of documents, however described. The natural and ordinary meaning of the term 'serve', like that of 'notify' and 'give notice', connotes actual notice or receipt of the document.
52 The third issue is whether the methods of service in s 76 are presumptive in the sense that they can be rebutted by evidence of non-receipt or whether service by the nominated means is taken to be good service and cannot be rebutted by evidence to the contrary. There is surprisingly little judicial consideration of s 76 (or its equivalent in s 28A of the Acts Interpretation Act 1901 (Cth)). However, without expressly addressing that specific issue, the reasoning in both Fancourt and Capper supports the latter. The focus in each of pars (b), (c) and (d) of s 76 is on delivery of a document to the (or an) address of the addressee. Non-delivery under pars (b), (c) and (d) of s 76 means non-service. Moreover, as non-receipt does not displace service under s 75(1), it should not do so under s 76(c) or s 76(d). Indeed, it has been held that a document served in accordance with one of the modes of service specified in the analogous provision (s 109X) of the Corporations Act 2001 (Cth) is validly served and that once such service is proved, it cannot be challenged on the basis of non-receipt. See Woodgate v Garard Pty Ltd (2010) 78 ACSR 468 [44].
53 The fourth issue is the legal and practical consequences of excluding s 75(1) of the Interpretation Act, either in whole or in part.
54 If s 75(1) is not intended to apply at all, s 76(b) must also cease to apply, in which event service of the Form 36 by post is positively excluded as an authorised mode of service. If an obligation to notify is inconsistent with service by post, it must also be inconsistent with the modes of service by delivery to an address in s 76(c) and s 76(d). The only remaining authorised mode of service would be personal service under s 76(a). The obligor would have to prove that the addressee actually received the statutory notice. I will assume without deciding that, if receipt is proven, the use of a positively excluded means of delivery will be irrelevant. However, experience in the judicial system, particularly with unrepresented litigants, is that non-receipt of a notice is easy to assert and difficult to challenge and inevitably results in significant delays, inefficiencies and wasted costs. Further, to exclude posting as an authorised alternative would deprive the participants in the workers' compensation arena from reliance on an ordinarily efficient and reliable postal service in the administration of the statutory scheme. In a State this size, that is a very significant call. The costs, time and timing involved in personal service can be both substantial and unpredictable.
55 The High Court in Fancourt noted the observations of Tindal CJ in Bishop v Helps (1845) 135 ER 857, 862 that although leaving notices at a place of abode or sending them through the post involved the possibility of non-receipt by the intended recipient:
It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it.
56 Perhaps aware of the practical implications of a complete ouster of the service by post provisions in the Interpretation Act, the primary judge preferred a hybrid scenario whereby the presumption that service has been effected at the time when the letter would have been delivered in the ordinary course of post is rebutted by proof (the onus of which is on the addressee) of something different, namely that the document was not received by the person to whom it was addressed. However, that approach is inconsistent with the text of s 75(1) and Fancourt. The only option in this case is a complete ouster of s 75(1) and s 76(b) with the flow on ouster of s 76(c) and (d).
57 Against that background, I turn to the final issue which is whether s 93O, on its proper construction, evinces an intention to exclude s 75(1) of the Interpretation Act. Having regard to the text, context and purpose of s 93O, I am satisfied that is not the legislative intention for the following reasons. First, for the reasons given above, the use of the term 'notify', in isolation, is neutral. Second, as confirmed by the text of s 93O(2), the obligation in s 93O(1) 'to notify' the worker is synonymous with 'to give notice to' the worker. Third, the relatively small 14-day window in s 93O for notifying the worker points strongly to the need for certainty in the time at which service of the notification is effected.
58 Fourth, the Worker's Compensation Act regulates the rights and obligations inter se of workers, employers and insurers in an interlocking administrative framework involving notice obligations on all. There is no justification for singling out s 93O obligations from many if not most of the other notice obligations. Section 93O performs an advisory function that is protective in nature but it does not directly create or destroy substantive statutory rights. The adverse consequences, legal and practical, of ousting s 75 and s 76(b), (c) and (d) of the Interpretation Act would extend well beyond s 93O.
59 A too ready acceptance of a contrary intention makes statutory interpretation more difficult for those whose conduct is closely regulated by it and the resulting uncertainty in application is highly undesirable for everyone, except perhaps the legal profession.
60 For these reasons, I would uphold grounds 1 and 2, dismiss ground 3, allow the appeal, set aside the orders made by the primary judge and in lieu thereof issue a writ of certiorari quashing the decision of the Delegate dated 12 March 2013 extending the termination date.
61 NEWNES JA: I agree with McLure P.
62 EDELMAN J:
Introduction and background
63 This appeal concerns the meaning and operation of ss 93M(4)(b) and 93O of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), including their interaction with ss 75 and 76 of the Interpretation Act 1984 (WA).
64 The respondent (the worker) was injured in the course of his employment. The indemnity insurer for the appellant employer accepted liability to compensate the worker. The Act required the worker to make an election to retain the right to seek damages by a 'termination day'. There was no dispute that the termination day in this case was 21 April 2012. The worker did not make an election by this date.
65 On 20 February 2013, the worker lodged with WorkCover WA an application to extend the termination day. The Director Conciliation of WorkCover (the Director) had power to extend the termination day under s 93M(4)(b) if the Director 'is satisfied that the employer has failed to comply with s 93O', which imposes particular requirements for the employer to 'notify ' the worker of various information in accordance with the regulations. The worker relied on s 93O in his application for an extension. He provided evidence upon which he relied for the claim that there had been non-compliance with s 93O.
66 The employer provided evidence upon which it relied for its claim that it had complied with s 93O. The employer provided evidence that its insurer, on its behalf, had sent the relevant information and required Form (described as its 'Notice') on 11 October 2011.
67 The worker's evidence included the following. He had, and has, very limited reading and writing skills. He was assisted by a friend, Ms Burgess, who helped him by reading aloud to him documents that arrived in the post relating to his claim. Mail that went to his mother in Victoria would also be read aloud to him by his mother. The worker said that if he received the Notice he would have taken it straight to Ms Burgess to read to him. After having a copy of it read to him for the purposes of his application he said that Ms Burgess had never read the document to him. He also said that he had kept every piece of mail in relation to his claim. He said that he was later shown the notice that the employer said was sent to him and he did not recognise it. The worker also said that he has lived 'for some years' in the local motel called 'The Valley Views'. He said that he had 'had a number of pieces of mail not arrive at the motel. It is not a reliable mail service'.
68 Ms Burgess provided evidence in support of the worker's application which was consistent with the worker's evidence.
69 The Director, by a Delegate,1 granted an extension of the termination day until 19 April 2013. No reasons were given. An order was made for the Director to show cause why the decision should not be quashed. The matter then came before the primary judge who refused the application for a writ of certiorari and discharged the show cause order. This is an appeal from that decision. For the reasons below, the appeal should be allowed.
The relevant provisions of the Act
70 Section 93K(4)(a) of the Act provides that damages in respect of an injury can only be awarded if the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages.
71 Section 93L provides that in relation to the claim for compensation brought by the worker in this case, an election cannot be made after the termination day.
72 Section 93M(1) fixes the date of the termination day. In this case, that date was 21 April 2012. One exception to this fixing of a date is in s 93M(1) which provides for a later day to be fixed by s 93M(4).
73 Section 93M(4)(b) provides that the Director may, in accordance with the regulations, extend the termination day, if the Director is 'satisfied that the employer has failed to comply with s 93O'.
74 Section 93O of the Act is at the heart of this appeal. It provides as follows:
(1) At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations
(a) of the day that would be the termination day if no later day were to be fixed under section 93M(4); and
(b) that about six months remains before the termination day; and
(c) of the significance of the termination day for the worker’s ability to seek damages; and
(d) of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker’s degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.
(2) The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).
75 The relevant regulation is reg 25 which provides:2
The notice that an employer is required by s 93O(1) of the Act to give to a worker has to be given by sending the worker a document in the form of Form 36 in Appendix I.
76 Form 36 is in Appendix I. It is set out in full below because of its relevance to one of the primary arguments made by the employer.
Form 36
[r. 25]
Workers’ Compensation and Injury Management Act 1981
NOTICE TO WORKER ABOUT TERMINATION DAY FOR ELECTION[under section 93O of the Act]
Date on which notice given (insert date)
(Insert name of worker)
(Insert address of worker)
WorkCover claim number (WCCN) (insert number)
Date of injury (insert date)
Date when claim for compensation made on employer: (insert date)
Section 93O of the Workers’ Compensation and Injury Management Act 1981 entitles you to notice of certain things that may affect the damages you could recover in court.
If your cause of action arises on or after 14 November 2005, a court will not be able to award damages for your injury if you do not elect under section 93K of the Act to retain the right to seek damages and have the election registered by WorkCover’s Director.
On the other hand, registering your election may affect your entitlement to statutory compensation. You should seek advice on whether or not to make an election.
One rule about electing is that, if you claim compensation by way of weekly payments because of your injury, you cannot elect after the termination day (there are exceptions to this rule for AIDS and specified industrial diseases).
Your termination day for this injury is.............. (specify date), which is about 6 months away.
You may be able to apply for the termination day to be extended but an extension can only be given in limited circumstances (see section 93M(4) and (8) of the Act).
Also, before you can elect, an agreement (between you and your employer) or assessment (by an approved medical specialist you select — see the register kept by the Director) about the level of your degree of permanent whole of person impairment has to be made and recorded by the Director. The level agreed or assessed has to be 15% or more.
If you request an assessment, the approved medical specialist can reasonably be expected to take 6 weeks from when you make the request to give you the documents about the outcome of the assessment. In some cases 7 weeks is relevant (see section 93M(4)(d)(ii) of the Act). You need to allow for this time.
This notice is a standard document and is not meant to be relied on instead of obtaining appropriate advice.
Employer’s details
Name
Address
Postcode
Telephone no. Workcover number (WCN)
Contact person
Title Telephone no.
The decision of the primary judge
77 Following an order nisi to show cause, the employer raised three grounds in support of its application before the primary judge to quash the decision of the Director. They were as follows:
(1) The Delegate had regard to an irrelevant matter, that is whether the worker received the Notice, when he should have considered whether the employer failed to send it.
(2) The Delegate failed to have regard to the provisions of s 75 of the Interpretation Act1984 (WA). The employer argued that there was no evidence that the worker did not receive the Notice and s 75(1) of the Interpretation Act required a finding that the employer complied with s 93O of the Act by notifying the worker of the things prescribed in s 93O(1).
(3) The Delegate failed to identify any basis upon which the Director could be satisfied that the employer failed to comply with s 93O.
78 The primary judge rejected each of these grounds.
79 As to (1), the primary judge said that the meaning of notify is to 'make known'. He said that the requirement in s 93O that the employer give the worker notice of certain things requires that the notice reach the worker unless the statute provides otherwise.3 The primary judge supported this conclusion by reference to the purpose of the provision as protective of the worker's common law rights. Hence, whether the worker received the Notice was relevant to determining whether the employer notified the worker of the things in the Notice.
80 The primary judge's conclusion about the meaning of s 93O meant, as his Honour explained, that reg 25 provides only a means for sending a document to the worker and does not provide for any consequences of failing to do so; his Honour said that the regulation would be beyond power if it purported to provide that a worker will be deemed to have been notified of the prescribed matters even if the notice had not reached the worker and the worker had not been informed of the things of which he is required to be notified.
81 As to (2), the primary judge held that the effect of ss 75 and 76 of the Interpretation Act is that if the employer proves that it sent the notice by properly addressing and posting (by prepaid post) the document as a letter to the last known address of the worker, the Notice will be deemed to have been sent to the worker unless the worker proves that he did not receive it. However, the primary judge held that the witness statements from the worker and Ms Burgess were evidence capable of giving rise to a finding that the worker did not receive the Notice and that it had not come to his attention.
82 As to (3), the primary judge held that the employer did not argue that there was a general duty to give reasons when making a decision to extend the termination date. He rejected ground 3 because the witness statements of the worker and Ms Burgess were a basis upon which the Director (by the Delegate) could have been satisfied that the Notice was not received by the worker, as required by s 93O.
The grounds of appeal
83 There are three grounds of appeal.
84 The first ground essentially asserts that the primary judge erred in law in considering that the issue before the Delegate was whether or not the worker had received the Notice when the issue was whether the employer had failed to comply with s 93O which, by virtue of reg 25, was whether the employer had sent the notice.
85 The second ground asserts that the learned Judge erred in holding that reg 25 would be beyond power if it purported to provide that a worker will be deemed to have been notified of the prescribed matters even if the notice did not reach the worker. This ground relies on s 318 of the Act and ss 3 and 75 of the Interpretation Act.
86 The third ground is that the learned judge was wrong in his application of s 75 of the Interpretation Act. The employer says that the correct construction of that section is that it deems service to have been effected by properly addressing and posting (by pre-paid post) the document.
87 Each of the three grounds concerns the construction of s 93O of the Act and the interpretative rules of ss 75 and 76 of the Interpretation Act.
The meaning of s 93O
88 Section 93O was part of a substantially altered scheme introduced in 2004,4 and broadly described above. The predecessor scheme, retained in Subdivision 2 of Pt 4 of the Act under the description '1993 scheme', does not contain an equivalent provision.
89 The 1993 scheme is significantly different from the 2004 scheme of which s 93O is a part. In particular, the 1993 scheme involves the following features that were introduced by s 32(5) of the Workers' Compensation and Rehabilitation Act 1999 (WA).
(1) Section 93E(1) defines 'termination day' as 'the day that is 6 months after the day on which weekly payments commenced'.
(2) Section 93E(3) provides that damages could only be awarded if (a) the degree of disability was '30%', or (b) the worker had a significant disability and elected to retain the right to seek damages.
(3) Section 93E(5) provides that if weekly payments of compensation have commenced, then an election cannot be made under s 93E(3)(b) after the termination day.
(4) Section 93E(7) provides for an exception to subsection (5), providing that the Director may, in such circumstances as set out in the regulations, extend the period in which an election can be made until a day to be fixed by the Director, by notice in writing to the worker. Under r 19N(2) of the Regulations, the circumstances in which the Director may extend the period of time are limited to circumstances related to the worker's health or injury, or a need for time to obtain a specialist report. Regulation 19N provided for application for extensions of time falling within the various grounds to be made by using Form 26 and Form 27, and has since been amended to include Form 28.
(5) Section 93G provides that 'regulations may provide for' matters including the notification to be given to workers of the effect of the provisions of this division. Regulation 19P provided that
(1) The employer of a worker who has an unfinalised claim for compensation under the Act is to give the worker written notice of
(a) the requirement under section 93E(3)(b) of the Act for the worker to elect to retain the right to seek damages; and
(b) the date by which the election is to be made.
(2) The employer is to give the notice mentioned in subregulation (1)
(a) if a dispute resolution authority orders that weekly payments of compensation are to commence, within 7 days of the day of the order; or
(b) in any other case, 3 and 5 months from the day on which weekly payments commenced.
91 The essence of this appeal concerns the meaning of the following words in s 93O (set out in full above): 'At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations [of the following matters]...'.
92 The employer relied upon ss 75 and 76 of the Interpretation Act 1984 (WA) as having extended the meaning of s 93O. Section 76 provides as follows:
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; or
(d) in the case of a corporation or of an association of persons (whether incorporated or not), by delivering or leaving the document or positing it as a letter, addressed in each case to the corporation or association, at its principal place of business or principal office in the State.
93 Section 75 provides for the rule in relation to service by post.
(1) 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, and, 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.
(2) Where a written law authorises or requires a document to be served by registered post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, then, if the document is eligible and acceptable for transmission as certified mail, the service of the document may be effected either by registered post or by certified mail.
(3) Subsections (1) and (2) apply unless the contrary intention appears and subsection (2) does not apply where a written law requires the production of an acknowledgment signed by a person to whom a document was addressed to the effect that the document was delivered to that person.
94 The effect of these provisions is that if s 76 applies then s 93O of the Act will have an 'extended meaning'5 so that notification can be effected by post and, unless the contrary legislative intention appears, that service by post can be effected in the manner provided in s 75(1) and subject to the provisions in that section.
95 In order to determine whether ss 75 and 76 apply, two questions are
(1) whether 'notify the worker in writing' in the context of s 93O is a requirement that a document be 'served' (including whether 'notify' is a 'similar word' to 'serve', 'give', 'deliver', or 'send') within s 76 of the Interpretation Act, and, if so,
(2) whether a 'contrary intention appears' from the Act (s 75(b) Interpretation Act).
'Notify the worker in writing' is a requirement that a document be 'served'
96 On this issue, for the reasons below, I conclude that the meaning of 'notify the worker in writing' in s 93O of the Act is a requirement that a document be served within s 76 of the Interpretation Act and that 'notify' in the phrase 'notify in writing' is a 'similar word' to 'serve'. The effect of this conclusion is that, unless a contrary intent appears, by s 75(b) of the Interpretation Act a facilitative mechanism of notification is provided: notification may be effected on the employee by post in accordance with section 75(1).
97 As the primary judge explained, the ordinary meaning of the word 'notify' (from the Latin root notificare - making known) is to 'make known'.6 However, as the examples given by Vickery J in Xiao v Perpetual Trustee Company Ltd7show, the word 'notify' can take on different meanings in different legal contexts. In law, the concept of notice, and when information is 'known', has been held to potentially include matters other than (i) subjective knowledge. These matters are sometimes put on a scale of (ii) to (v), ranging from (ii) wilfully shutting one's eyes to the obvious to (v) knowledge of circumstances which would put an honest and reasonable man on inquiry.8
98 It is not necessary in this case to determine the precise content of the word 'notify' in s 93O. It is sufficient to say that 'notify' in s 93O does not impose an obligation upon the employer to ensure that the employee has subjective knowledge of the information. It could not reasonably be said, for example, that if an employee chose not to read one paragraph of the notice provided by the employer, explaining one of the matters contained in s 93O(1) to (4), then the employer would have failed to 'notify in writing' the employee of this matter. It would be enough in that circumstance that the employee is aware of the contents of the document even if the employee chose not to read part of it.
99 The word 'serve' has a similar meaning to this meaning of 'notify'. In Capper v Thorpe,9 the High Court considered the meaning and operation of s 6 of the Sale of Land Act 1970 (WA) which required a vendor of a terms contract to have 'served on the purchaser a notice in writing specifying the breach complained of and requiring the purchaser to remedy the breach within the time mentioned in subsection (2)'. In a joint judgment, the Court described the effect of a statutory provision, such as s 6, that requires a document to be 'served'. The Court said that (footnotes omitted)10
... the statutory command ['served'] is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served. However, unless the statute says so, a document may be 'served' although it is not personally served. Thus, it may be served by posting it to the person required to be served. In many statutory contexts, a document may also be 'served' when it is brought to the notice of the person who has to be served. At all events, it will be 'served' in such contexts if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document. Thus, in Ex parte Portingell, the English Court of Appeal held that a notice of objection had been 'served on' the applicant for renewal of a licence when it was handed to a boy of fourteen on the licensed premises and the magistrates inferred that 'the notice had in fact come to the hands of the applicant'.
100 In summary, and following the approach taken to the meaning of 'serve' in Capper,'notify' in s 93O is a similar word to 'serve' (as well as 'give' or 'deliver'), as each conveys the meaning that the contents of the document must be delivered including by the person to be served becoming aware of the contents of the document or the writing being 'brought to the [person's] attention' by the efforts of the employer or those acting on his or her behalf.11 The requirement of notification in writing is a requirement that a document be served.
101 This conclusion is also reinforced by the language of s 93O(2) which describes the obligation to notify as a notice to be 'given' ('the notice is required to be given ...').
102 Although, as I explain later in these reasons, the meaning of 'notify' elsewhere in the Act will be dependent upon each context in which the word is used, this conclusion that notification is similar to service is consistent with the approach taken to the meaning of 'notify' in other provisions of the Act.
103 The Full Court of the Supreme Court of Western Australia considered the meaning of 'notify' in a different provision of the Act in Australasian Correctional Management v Francis.12 In that case, the Court considered s 57A(3) of the Act which concerns obligations of the insurer to notify the Director, the employer, or the worker of various matters. That sub-section is concerned with the consequences of an employer's claim for indemnity under a policy of insurance. The insurer is required, within 14 days, to notify the worker, the employer or the Director concerning matters relating to its decision about whether liability is accepted. For the purposes of the appeal, the facts were that the notification was required to be made by midnight on 16 July 2000. If it had been sent in the ordinary course of the post it would have been received on 17 July 2000. The worker's evidence was that he did not actually receive it until 18 July 2000.13 The Court held that the starting point was that 'notify' has its ordinary meaning and that mere posting of a notice is not enough to constitute notification of its contents.14 Their Honours said that there was 'nothing in the Act which supports [the] conclusion' that 'notify' means 'sending by post', referring to 'at least one provision which very clearly indicates that it is the receipt of the notification which is critical'.15 However, it was accepted 'for present purposes' that the provisions of the Interpretation Act applied. This made no difference to the result because the notification still occurred one day late, in the ordinary course of the post.
104 In Re Monger; Ex parte Browne16the Full Court of the Supreme Court considered s 93D(8) of the Act which requires that the employer 'notifies the Director in accordance with the regulations' of various matters. Regulation 19J(3) prescribes that subject to exceptions a notification 'is to be ... made in the form of Form 23'. The Full Court proceeded on the basis that s 93D was 'a means of requiring the Form 23 to be served upon the Director in circumstances in which there is no direction that the Form 23 be served in any particular manner and s 76 of the Interpretation Act is consequently applicable.'17 However, the meaning of 'notify', and whether it fell within ss 75 and 76 of the Interpretation Act, was not argued in that case. As the Court observed, the point had been conceded by counsel.18
Does a 'contrary intention appear' from s 93O in the context of the Act?
105 Since I have concluded that, prima facie, ss 75 and 76 of the Interpretation Act apply to s 93O, the next issue is whether a 'contrary intention appears' from s 93O in the context of the Act so that the extended meaning provided by s 75(1) is negated. The contrary intent might be to exclude the operation of s 75(1) (see s 75(3)) or it might be, by implication, to exclude the operation of both s 75 and s 76.
106 The worker essentially argued that a contrary intention appeared from the Act because actual receipt was required by s 93O of the Act and it would be contrary to the intention of the Act if service were deemed to be effected by s 75(1) when it had not, in fact, been effected.19 This raises the question of the effect of the deeming provision in s 75 upon s 93O.
107 As set out above, s 75(1) has two limbs. They are concerned with (i) delivery and (ii) the timing of delivery. The first limb 'deems' service (or, here, notification) to have occurred 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. The second limb provides that, unless the contrary is proved, service (notification) is effected at the time when the letter would have been delivered in the ordinary course of post.
108 The literal meaning of the second limb of s 75(1) has the effect that the timing of delivery can be rebutted by proof to the contrary that the letter was not delivered at the time when it would have been delivered in the ordinary course of the post. That would suggest that it is possible to rebut the statutory rule about timing of delivery (the time it would be delivered in the ordinary course of post') by proving either that there was either late delivery or no delivery.
109 This approach of the second limb of s 75 stands in contrast with circumstances where the issue concerns only the first limb (the fact of service of a notice). The fact of service under the first limb cannot be disproved by evidence to the contrary. The second limb will be relevant in instances where both the fact of service and the timing of service of a notice are relevant. Section 93O is one such instance. Not only is notification required but there is also a requirement in s 93O(2) that the notice be given within the period provided.
110 There is, however, debate concerning whether the second limb of s 75(1) applies to cases of non-delivery as well as to cases of late delivery. On one (narrow) view the second limb is concerned only with circumstances in which untimely delivery has been given and not where there has been no delivery.
111 This question was left open by the High Court of Australia in Fancourt v Mercantile Credits Ltd20and by the Full Court of the Federal Court in Skalkos v T & S Recoveries Pty Ltd.21 It was not determined in Thorpe v Capper,22 because the finding was that the notice of default was not delivered 'prior to the time when it was collected by the appellant from the Post Office'. As the High Court of Australia observed in Fancourt v Mercantile Credits Ltd23 an anomaly may be that 'notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery.' In Soong v Deputy Commissioner of Taxation,24 Hodgson JA (who also did not decide this point) also remarked that 'it might be considered reasonable to place the risk of slow delivery on the giver of the notice, but the risk of complete failure of delivery on the recipient'.
112 There is a line of Australian and English authority that rejects this narrow view. In that line of authority Australian courts have adopted,25 or inclined to,26 the English27 approach to the similar provision in s 26 of the Interpretation Act 1889 (52 & 53 Vict c 63). That English approach is that absence of delivery is to be treated in the same way as late delivery.
113 This line of authority is also consistent with the antecedent Western Australian provision to s 75(1) of the Interpretation Act. That antecedent provision, prior to consolidation, was the Interpretation Act 1918 (WA) s 31. In s 31 there was no separate concept of 'deeming' of service independent of the timing of service. Section 31(1) provided that service may be effected by particular postal means, and s 31(3) provided for the only presumption which concerned timing:
In the case of service by post, whether service by post is required by the Act or not, the service shall be presumed, unless the contrary is shown, to have been effected at the time when, by the ordinary course of post, the letter would be delivered.
114 This prevailing authority should be preferred to the view that the absence of service is insufficient to prove that the letter was not delivered in the ordinary course of the post. The prevailing authority should be preferred on the basis that it is consistent with the literal meaning of s 75(1), consistent with the antecedents of that provision, and also because it avoids the anomaly that delivery given, say, a year late would be proof to the contrary but the complete absence of delivery would not.
115 The effect of this conclusion is that much of the sting is removed from the worker's submission that the application of s 75(1) is contrary to the purpose of s 93O. The terms of s 93O(2) mean that the timing of the delivery of the employer's notice is crucial, and the period is very short (a period of 14 days). Section 75(1) shifts the onus to the worker of proving late delivery, or non-delivery, of the notice but the worker retains the protection (subject to the reversed onus) if he or she can prove that the notice was not delivered.
116 The question raised by the worker is whether this protection, in relation to a provision such as s 93O which is designed to facilitate the worker's ability to preserve his or her rights, is insufficient and the intent of s 93O is to exclude the extended operation arising from ss 75 and 76 of the Interpretation Act so that the issue should always be whether the employer has proved actual receipt.
117 There is no textual basis which discloses any express intent to exclude ss 75 or 76 of the Interpretation Act. Nor can one easily be implied. The difficulty with implying any intention to exclude s 75(1) or both ss 75 and 76 of the Interpretation Act, in the absence of any express words,is that numerous provisions of the Act make express reference to the Interpretation Act. The sections of the Act which, when amended, expressly included reference to the Interpretation Act are ss 96(5)(a), 146R(4), 155A(4), 182C(2), 182ZR(2), 293(4)(a), 318, and 325(2).
118 Although I conclude that s 93O, in the context of the Act, does not manifest, expressly or impliedly, an intention to exclude the operation of s 75(1), I do not accept the submission of the employer that if notification were to require actual receipt then 'all of the intended protection of the Act is removed from the employer'.28 The example given by counsel was said to be that 'even though an insurer is able to prove it has sent a notice, a worker may do no more than say "I don't recall receiving it" [or "I don't recall it being delivered"] to reopen the gateway to common law litigation even though that may be 12 months past the time when such a termination date had expired'. The answer to this example is that it is unlikely that the rebuttable rule in s 75(1) would be so easily defeated. Even if personal service is not effected by the employer, evidence that the Form 36 has been sent by courier, or by registered mail, addressed to the worker to the address at which the worker is living may be a strong basis for an inference that it was received. Even evidence that the letter was sent in the ordinary mail to a local address at which the worker resides might usually be sufficient for an inference to be drawn that it was received, especially if there is no contrary evidence from the worker, or possibly even if the worker's evidence is limited only to saying that he or she did not recall the receipt of the letter.
The employer's construction
119 Although each of the issues of construction described above was a live issue on the appeal, the route by which I have concluded that the facilitative rule in s 75 of the Interpretation Act applies to s 93O was not the primary submission for the employer. I explain below why I do not accept the primary approach of the employer on the issue of why ss 75 and 76 apply.
120 The employer focussed upon the words of s 93O, 'in accordance with the regulations'. The employer said that reading s 93O together with reg 25 meant that the provisions of ss 75 and 76 of the Interpretation Act were enlivened. In other words, if the words of reg 25 are included with s 93O the following composite sentence is created
At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations [The notice that an employer is required by s 93O(1) of the Act to give to a worker has to be given by sending the worker a document in the form of Form 36 in Appendix I]. (Emphasis added).
121 The employer's submission was that the words from r 25, in square brackets, provide the manner in which the employer can notify the worker so that the words 'give' and 'sending' in r 25 enliven the operation of ss 75 and 76 of the Interpretation Act.
122 I do not accept this submission. The words of r 25 do not affect the meaning of 'notify' in s 93O. Regulation 25 is not, in its terms, concerned to facilitate the manner in which the employer is to 'notify' the worker. Section 93O does not say that the 'notification' is to occur in the manner prescribed by the regulations. Rather, the notification must be in accordance with the regulations. In other words, the employer is required (1) to notify the worker, and (2) to fulfil its obligation of notification 'in accordance' with the additional requirements of r 25.
123 This meaning of 'in accordance with the regulations' is consistent with the manner in which that phrase is used on numerous other occasions in the Act. In div 2 alone, the phrase is used in each of ss 93D(2)(c), 93D(8), 93E(3)(a), 93E(3)(b), 93E(4), 93E(9), 93K(4)(b), 93L(2), 93L(5), 93L(6), 93L(7), 93M(4). These provisions involve the use of the expression 'in accordance with the regulations' to describe additional duties such as when matters are to be registered or recorded (eg obligations to maintain a register and to provide copies of documents to the worker and employer). In other words, these regulations do not purport to facilitate the primary obligation (registering, recording, etc). Instead, they provide for duties when performing the primary obligation.
124 This conclusion is also supported by the considerable detail of the information in Form 36 (set out above) which is required by r 25, and the manner in which it complements the information required by s 93O. These matters are further indication that r 25 is concerned with the expression and content of the required information to be notified to the worker, rather than the manner of 'notification'. For instance, s 93O(d) requires that the worker be notified of the 'time that…a medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker's degree of permanent whole of person impairment, to give the worker the [relevant] documents'. Regulation 25 provides the further detail in Form 36, which explains that if an assessment is requested 'the approved medical specialist can reasonably be expected to take 6 weeks from when you make the request to give you the documents about the outcome of the assessment. In some cases 7 weeks is relevant (see s 93M(4)(d)(ii) of the Act).'
Disposition of the appeal grounds
125 Having dealt with these issues of construction, I turn to the disposition of the grounds of appeal.
126 The first ground essentially asserts that the primary judge erred in law in considering that the issue before the Delegate was whether or not the worker had received the Notice.
127 The appeal should be allowed on this ground, although not, as the employer submits, because the issue was simply whether the employer had sent the notice (which was plainly established). The issue was whether the worker had rebutted the rule providing for the time of delivery in s 75(1) of the Interpretation Act by proving non-delivery of the notice.
128 The second ground asserts that the learned Judge erred in holding that reg 25 would be beyond power if it had the effect that a worker will be deemed to have been notified of the prescribed matters even if the notice did not reach the worker.
129 The appeal should be allowed on this ground also. The effect of ss 75 and 76 of the Interpretation Act was to extend s 93O of the Act, and also reg 25, to deem the worker to have been notified of the prescribed matters even if the notice did not reach the worker, provided that the worker does not prove that the notice was not delivered.
130 The third ground essentially asserted that the learned judge was wrong in his application of s 75 of the Interpretation Act because the correct construction of that section is that it deems service to have been effected by properly addressing and posting (by pre-paid post) the document and because it was an error for his Honour to refer to the 'rebuttable presumption' of service.
131 This ground should be dismissed. The evidence of the worker relating to non-delivery was relevant to whether the worker had rebutted the rule that the date of service was the date that the notice would be delivered in the ordinary course of the post.
Conclusion and orders
132 The appeal should be allowed on the first two grounds. But it does not automatically follow from this conclusion that a writ of certiorari should issue. A question arising from the construction that I prefer was not addressed on this appeal. The question is whether certiorari should issue in light of the evidence of the worker concerning non-delivery of the notice. The worker's evidence was not limited to non-receipt, although the absence of receipt can be one matter relevant to whether non-delivery is proved.
133 The worker gave evidence that on other occasions mail had not been delivered to the local motel in Mount Barker (a small town approximately 350 km from Perth) where he lived. He said that he had 'had a number of pieces of mail not arrive at the motel. It is not a reliable mail service'. Proof of a negative (non-delivery) is always a difficult thing. But there was evidence from the worker that, arguably, might have been sufficient to establish non-delivery. That evidence included the following:
(i) the worker's evidence concerning non-receipt of the notice;
(ii) the worker's accommodation in a country town, where his solicitors and his employer (perhaps not uncommonly, but in contrast with him) provide their postal address as a PO Box rather than their street address;
(iii) the worker's address being a motel rather than a standard residential address;
(iv) the worker's evidence concerning other instances of non-delivery to the motel (although, as I have explained, this evidence was in very general terms); and
(v) the difference between the description of the address given by the worker in his 27 March 2013 election notice (Unit 16, Valley View Motel, 31751 Albany Highway, Mt Barker, WA 6324) and the abbreviated address on the letter accompanying the notice that was sent to him which omitted the street address of the motel where the worker lived (U16 Valley View Motel Mount Barker WA 6324).
134 In the absence of any reasons for decision by the Delegate of the Director it may be difficult to determine whether under s 93M(4)(b) the Director formed a satisfaction of non-delivery and was therefore 'satisfied that the employer has failed to comply with s 93O'. But no submissions were made on this point, nor were any submissions made in relation to the evidence concerning non-delivery. Nor were submissions made about whether despite the omission of the street address in the worker's address, the employer satisfied the requirement in s 75(1) of the Interpretation Act of 'properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served'. I would hear from the parties concerning the orders that should be made in light of the proper construction of s 93O.
1Workers' Compensation and Injury Management Act 1981 (WA) s 182D.
2 Introduced by the Workers' Compensation and Injury Management Amendment Regulations (No 2) 2005 (WA) and gazetted on 28 October 2005, and amended in 2011: Western Australia, Government Gazette, No 200 (28 October 2005) 4887 - 4893; amended in Western Australia, Government Gazette, No 220 (18 November 2011) 4825.
3Re Keziah Holdsworth; Ex parte L V Dohnt & Co Pty Ltd [2013] WASC 322 [10].
4Workers' Compensation Reform Act 2004 (WA) s 79. The 2004 scheme came into operation on 14 November 2005, as proclaimed: Western Australia, Government Gazette, No 111 (17 June 2005) 2657 (varying Western Australia, Government Gazette, No 2511 (31 December 2004) 7131.)
5Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342, 353 [26] (the Court).
6Re Keziah Holdsworth; Ex parte L V Dohnt & Co Pty Ltd [2013] WASC 322 [10]. See Oxford English Dictionary, online definition 1.
7Xiao v Perpetual Trustee Company Ltd [2008] VSC 412 [62].
8Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [174] - [177] (the Court).
9Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342.
10Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342, 351 – 352 [21].
11Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342, 353 [26].
12Australasian Correctional Management v Francis [2002] WASCA 74.
13Australasian Correctional Management v Francis [2002] WASCA 74 [3].
14Australasian Correctional Management v Francis [2002] WASCA 74 [5].
15Australasian Correctional Management v Francis [2002] WASCA 74 [6].
16Re Monger; Ex parte Browne [2003] WASCA 281.
17Re Monger; Ex parte Browne [2003] WASCA 281 [12] (Steytler J; McLure & Johnson JJ agreeing).
18Re Monger; Ex parte Browne [2003] WASCA 281 [12].
19 Written submissions of the worker [20].
20Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 96 - 97 (the Court).
21Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107, 116 [25] (the Court).
22Thorpe v Capper,unreported Full Court of Supreme Court of Western Australia, 6 December 1996, page 15. The High Court, on appeal, resolved the case on a different basis: Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342, 351 [20] (the Court).
23Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 97 (the Court).
24Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226, 228 [5] - [6].
25Re Rustic Homes Pty Ltd (1988) 49 SASR 41, 44 (von Doussa J); Re Gasbourne Pty Ltd [1984] VR 801, 857 (Nicholson J).
26Jones v Superannuation Complaints Tribunal [2011] FCA 1255; (2011) 198 FCR 71, 80 [44] (Besanko J).
27R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682, 692 (Denning LJ) 697 (Morris LJ) 700 (Parker LJ). See also Beer v Davies [1958] 2 QB 187; A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314, 320 - 321 (Lord Denning MR) 323 (Roskill LJ); Gidden v Chief Constable of Humberside [2009] EWHC 2924 [15] – [20] (Elias LJ).
28 Appellants submissions [28].
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