Law v Australian Nursing Federation (Tasmanian Branch)
[1999] TASSC 103
•6 October 1999
[1999] TASSC 103
CITATION: Law v Australian Nursing Federation (Tasmanian Branch) [1999] TASSC 103
PARTIES: LAW, Roger
v
AUSTRALIAN NURSING FEDERATION
(TASMANIAN BRANCH)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 49/1999
DELIVERED ON: 6 October 1999
DELIVERED AT: Hobart
HEARING DATE: 17 September 1999
JUDGMENT OF: Evans J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Service - Workers compensation - Whether envelope containing claim form was "properly addressed" and delivered in the "ordinary course of post" within the meaning of the Acts Interpretation Act 1931, s30(1).
Workers Rehabilitation and Compensation Act1988, (Tas), ss25(1), 81A(1);
Acts Interpretation Act 1931 (Tas), s30(1).
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87; Deputy Commission of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167, followed.
Aust Dig Procedure [268]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell
Respondent: S R Worsley
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Abetz Curtis & Worsley
Judgment Number: [1999] TASSC 103
Number of paragraphs: 13
Serial No 103/1999
File No LCA 49/1999
ROGER LAW v AUSTRALIAN NURSING FEDERATION
(TASMANIAN BRANCH)
REASONS FOR JUDGMENT EVANS J
6 October 1999
The issue raised by this appeal is whether the appellant worker's claim for workers compensation was received by the respondent employer on or before 13 April 1999. If so, the respondent failed to serve the appellant with written notice disputing liability to pay him compensation within fourteen days of receiving the claim, as is required by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A(1). In result, the Workers Rehabilitation and Compensation Tribunal would not have jurisdiction to consider a reference to it by the respondent of the appellant's claim for workers compensation.
Ms Wilcox, an employee of the respondent, sent a workers compensation claim form to the appellant for completion. She also sent him an envelope in which to return the claim. The appellant said he posted his claim to the respondent on Sunday, 11 April 1999 by posting it in a post box at New Norfolk in the envelope which had been provided. The envelope was addressed as follows:
"Attention: Donna Wilcox
ANF Tas Branch
Reply Paid 51
182 Macquarie StHOBART 7000
private + confidential"
As delivered, the envelope had been stamped by Australia Post: "6pm 12 April Hobart". The appellant said that consistent with his experience, after the New Norfolk post box had been cleared, the mail was taken to Hobart and stamped by Australia Post before delivery.
Ms Wilcox gave evidence to the Tribunal that while she was at work at the respondent's Hobart office on Wednesday, 14 April 1999, the respondent's Office Manager brought her the abovementioned envelope. It was unopened as it was marked "private and confidential". She opened the envelope and it contained the appellant's claim for workers compensation. She had been in Sydney on Tuesday, 13 April 1999. She could not refute the possibility that the envelope had been delivered to the respondent's address prior to 14 April 1999.
The appellant was entitled to serve his claim for compensation on the respondent by post. The Act, s35(1) provides:
"35 ¾ (1) A claim for compensation may be given ¾
(a)to the employer of a worker or, if there is more than one employer, to one of the employers of a worker by ¾
(i) delivering it personally to the employer or one of the employers; or
(ii) by placing it in a properly addressed envelope and sending it by post to the employer, or one of the employers, at the employer’s usual or last-known place of business or residence; and
(b)to the person designated for the purpose by the employer, by delivering it personally to that person."
As to when service was effected, the appellant relies on the Acts Interpretation Act 1931, s30(1), which provides:
"30 ¾ (1) Where any Act, including this Act, authorizes or requires any notice or other document to be given, sent, served, or delivered by post, such giving, sending, serving, or delivery shall be deemed to be effected by properly addressing, prepaying, and posting the document as a letter, and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post."
The Act, s35(1)(a)(ii) allows for service by post to the employer's address, as distinct from direct or personal service on the employer. The Acts Interpretation Act 1931, s30(1) takes this a step further by deeming service of the contents of a letter to have been effected at the time when the letter would be delivered in the ordinary course of post. These provisions contemplate the possibility that service can be effected where there has been something less than actual receipt of the document by the addressee, that is, delivery to the address; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 96, 97. Whilst the provisions contemplate the possibility that service can be achieved by something less than actual receipt by the addressee, a prime objective of the provisions is to maximise the likelihood of the addressee receiving the contents of the letter. To that end, the provisions require that the letter be properly addressed. Two decisions which deal with that requirement, but have no direct application to the facts of this case, are the decisions in Wilson v Union Insurance Co reported in (1992) NTSC 107 and (1994) NTSC 5. To my mind, obvious aspects of the requirement that the letter be properly addressed are that the address on the envelope should sufficiently identify the intended recipient and that it should do so in a manner which indicates an intention that the letter be opened by that entity.
The address on the letter, which is the subject of this dispute, is set out in par 2 above. Whilst the letter bears the postal address of the respondent, it is specified to be for the attention of Donna Wilcox and is marked "private and confidential". I am quite unpersuaded that the letter is properly addressed to the respondent. Upon the delivery of the letter to the respondent's postal address, anyone who examined it would have understood that it was not for the respondent, but for Donna Wilcox. It was for her private and confidential attention. Had she been away from the respondent's address, it is likely that the letter would have been on-forwarded to her or retained until she returned. The letter is not addressed in a manner which made it likely that it would be opened for the respondent upon its delivery.
As the letter was not properly addressed to the respondent, the appellant cannot rely on the provisions which have been referred to in order to establish the service of its contents on the respondent. For this reason I will dismiss the appeal. However, before doing so, I turn to another issue that was raised in the course of the appeal.
The respondent contends that even if the letter was properly addressed, the evidence before the Tribunal was not sufficient to establish that it would have been delivered in the ordinary course of post on or prior to 13 April 1999. The onus is on the appellant to prove, on the balance of probabilities, when the letter would be delivered in the ordinary course of post; Deputy Commission of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167.
The evidence before the Tribunal in relation to the delivery of mail was:
(a) The following note of a conversation Ms Wilcox had with an employee of Australia Post:
"6 May 1999. I spoke to Casey, who was not happy to give her surname, from Australia Post Customer Service Centre, telephone number 131318. I asked her the question, if a letter is postmarked Hobart 6.00 pm on one day when should one expect this letter to be delivered to a street address in Hobart. Casey replied that the letter should be delivered the following day but there are no guarantees on the delivery on that day. She also said that often this was not the case in practice and that letters were delivered later than the following day all the time. She advised that the only way to guarantee next day delivery was by posting an item express post."
(b) The following affidavit:
"I, DAYNE EMIL JOHNSON of 59 Harrington Street, Hobart in Tasmania, apprentice-at-law make oath and say as follows:
1 I telephoned the delivery centre of the Hobart branch of Australia Post on the 17th day of May 1999.
2 I spoke to an employee of Australia Post named Casey Byrne.
3 I asked when a letter posted from New Norfolk Post Office at 9:00am on a Monday would arrive at a Hobart address in the normal course of post.
4 I was informed that in the normal course of post it would arrive on the next business day."
The manner in which this evidence was provided to the Tribunal could have been greatly improved on and the content of the evidence is sparse. It was insufficient to satisfy the Tribunal that at or about the relevant time in the ordinary course of post, a letter posted at New Norfolk would have been delivered to a Hobart address on the next business day. The Tribunal's attention was not drawn to the Australian Postal Corporation (Performance Standards) Regulations 1998, reg6. That regulation obliges Australia Post to deliver at least 94 per cent of letters which come within the category which covers the appellant's letter by the next delivery day after the day of posting. When this obligation is added to the evidence before the Tribunal as to when the letter would have been delivered, in my view the only conclusion reasonably open is that it is probable that in the ordinary course of post the letter would have been delivered on the next business day after it was posted. It had been posted by Monday 12 April 1999 at the latest as it was in the Hobart Exchange of Australia Post by 6pm on that day. In the ordinary course of post, the letter would have been delivered by the next day Tuesday 13 April 1999. In the circumstances, I am persuaded that the Tribunal's finding on this matter amounts to an error of law which could be rectified on appeal; TGIO v McLeod B37/1991. In view of my finding in relation to the inadequacy of the address on the envelope, it is not necessary to take this aspect of the matter any further.
Due to inadequacy of the address on the envelope, I am not satisfied that the Acts Interpretation Act, s30(1), applied to deem that the letter had been served at the time when it would have been delivered in the ordinary course of post. The appeal is dismissed.
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