McGowan v Castrum Pty Ltd

[2006] HCATrans 259

[2006] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P57 of 2005

B e t w e e n -

JOHN HENRY McGOWAN

Applicant

and

CASTRUM PTY LTD

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 1.30 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please the Court, I appear for the applicant.  (instructed by CLP Lawyers)

MR J.A. THOMSON:   May it please the Court, I appear for the respondent.  (instructed by Jackson McDonald)

KIRBY J:   Yes, Mr Nugawela.

MR NUGAWELA:   Thank you, your Honours.  Lurking within the factual intricacies of this matter we say lie fundamental ‑ ‑ ‑

KIRBY J:   Lurking there?  Well, that is one way to describe this legislation.

MR NUGAWELA:   It is, your Honour.

KIRBY J:   Unfortunately, we have had to lurk in its midst as well.

MR NUGAWELA:   Well, hopefully not for too long, your Honour – we say lie fundamental questions of public importance to the operation of the workers compensation scheme, which, as your Honours know, affect about 40,000 workers annually, such as to manifest a point of sufficient public importance to attract the special leave jurisdiction of the High Court sitting at the apex of the Western Australian judicial hierarchy.  Your Honours, can I start with the words of section 57A and these appear in ‑ ‑ ‑

KIRBY J:   Can I just get a factual matter clear?

MR NUGAWELA:   Certainly, your Honour.

KIRBY J:   Is the factual matter that one of the points turns on the fact that the doctor, your client’s doctor, did not in a certificate say that your client was unfit for work, but ticked, the client having undergone a spinal operation, a box which said he would be fit for restricted duties from a certain date and no one was prepared to infer from that certificate that until that date he was unfit for work.  Is that a correct factual sequence of events?

MR NUGAWELA:   That is how the Court of Appeal interpreted the content of the certificate completed by the doctor and we say that discloses error in at least three respects which I was hoping to elaborate to your Honours very briefly.  But, in essence, that is how the Court of Appeal saw the issues.

KIRBY J:   Yes, well, you proceed and try to show that there is some matter of general principle here because this Court would not normally get involved in the intricacies of the Workers’ Compensation and Injury Management Act (WA).

MR NUGAWELA:   Yes, your Honours.  Starting at section 57A one clearly sees in subsection (1)(a) that the starting point of a claims procedure for an original injury – and this is not a case of original injury – but for an original injury is the filing of a claim form.  This is 57A(1)(a).  That is not this case.  This is a case that concerns the subsequent recurrence.  So attention then diverts to subsection (1)(b) and subsection (1)(b) provides that:

the worker suffering the disability has served on the employer a certificate signed by a medical practitioner –

I can tell your Honours to neglect (i) because that is, again, not the situation here.  The situation here is agitated by (ii) which says:

to the effect that the worker is unfit for work because of a recurrence of a disability –

Now, the section does not say totally unfit for work or partially unfit for work.  It just says “unfit for work” and, in our submission, this is cogent to one of the errors which we say that that Court of Appeal made.  One then can conveniently jump, your Honours, to subsection (3) which provides that:

Upon an employer making a claim as mentioned in subsection (2) –

and I can pause to inform your Honours that that was not an issue in any of the courts below.  In fact, it was assumed that the employer had made a claim.  So one proceeds:

the insurer shall, before the expiration of 14 days after the claim was made by the employer –

do one of three things, (a), that alternative does not apply because the insurer, as hindsight has it, did not accept the claim; (b), if it wanted to dispute the claim it had to notify both the employer and the worker and in this case, of course, there is no evidence that it notified the employer, simply notified the worker; and (c), if it is not in a position to make a decision it must notify three entities, the director of WorkCover, the employer and the worker and that was not done in this either.  Now, the consequences of failure on the part of the insurer are described in subsection (5) which provides that:

Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply to the Directorate for a determination under subsection (6).

So there is a presumptive entitlement by force of the section but which also places an onus on the employer to make application to vary that statutory presumption.  As your Honour Justice Kirby put to me, the relevant certificate provided the following things.  The certificate was dated 19 October 1999.

HAYNE J:   Where do we most conveniently find the text or substance of the text of the certificate?

MR NUGAWELA:   I had hoped, your Honour Justice Hayne, that by reference to the certificate in my summaries the actual document would have found its way in the application book.  Unfortunately it has not.  So the best place to find it without demurrer on the part of the respondent is what we say in our summary of argument in the factual background in paragraph 2.1 on page 46 of the application book.

KIRBY J:   But was that in the record below?  Would the Court, if special leave were granted, be in possession of that document?

MR NUGAWELA:   It certainly would, as were the ‑ ‑ ‑

KIRBY J:   Yes, very well, 46.

MR NUGAWELA:   It was, your Honour Justice Kirby, as were indeed exhibits 3 and 5 which are referred to in the summary of argument again for the same reason in the hope that the two substantive ‑ ‑ ‑

KIRBY J:   Yes.  We are very used to getting every document except the most important, but do not worry, press on - page 46.  We do not have a lot of time so you have to press on.

MR NUGAWELA:   I apologise for that, your Honour.  Yes.  Your Honours, the certificate provided these things.  Firstly, it was dated 19 October 1999 and it stated that this worker:

had a “re‑operation of L5/S1 disc on 24 July 1999” -

Secondly, it provided:

that he was fit for “restricted return to work” with effect from 1 September 1999.

We say the approach of the Full Court discloses four errors and it discloses four errors notwithstanding that the Full Court, ipse dixit, or expressly, I suppose, said that it is not taking the penal approach to the construction of section 57A but it certainly did in four instances at least take a contra proferentum approach and the reasons why we say that are as follows.  Firstly, your Honours know that the certificate clearly evidenced partial incapacity from 1 September 1999 and continuing.  That was an express reference in the certificate.

HAYNE J:   I am sorry, you say there is an express reference in the certificate to that effect.  Where do I see that?  At the moment I see that a certificate speaks of restricted return to work with effect from a date before the date of the certificate.

MR NUGAWELA:   That is right.

HAYNE J:   It is with effect from 1 September and the certificate is tendered or was sent on 19 October.

MR NUGAWELA:   Yes.

HAYNE J:   You said the certificate said something more.  What more does it say?

MR NUGAWELA:   It says that - in hindsight, because the certificate is dated 19 October - “with effect from 1 September” this worker is not fit for his pre‑accident employment in terms of section 57A ‑ ‑ ‑

KIRBY J:   Let me get clearly what you are saying.  What you are saying is that the certificate, on its face, shows partial incapacity after 1 September?

MR NUGAWELA:   It does.

KIRBY J:   Does it say anything, in your submission, by way of inference or proper derivation from the words about incapacity before 1 September?

MR NUGAWELA:   I would say yes it does but that is one of the ‑ ‑ ‑

KIRBY J:   Do you have to have that?

MR NUGAWELA:   No, you do not.

KIRBY J:   Is it your submission that it is enough that it shows partial incapacity from 1 September?

MR NUGAWELA:   Absolutely, your Honour Justice Kirby.

KIRBY J:   All right, press on.

MR NUGAWELA:   Absolutely, because of the words of 57A(1)(b)(ii).  The unfitness for work can either be partial or it can be total.

KIRBY J:   Does it say that it is required by that paragraph to be because of the “recurrence of a disability”?  Where is the aetiology expressed in the certificate?  This is the unfairness of this legislation that it really burdens the worker with the administrative defects of a doctor who may not have at his elbow section 57A of the Act.  We cannot cure that if that is the defect in the facts.

MR NUGAWELA:   No, I accept that.  The question of the aetiology – I am not sure if it arose from the certificate itself, your Honours, but there was no dispute below that this was a case that arose out of the recurrence of an injury because of a claim form that was filed at the same time as the Full Court referred to ‑ ‑ ‑

KIRBY J:   All right, well if there is no dispute about that move on.

MR NUGAWELA:   Thank you, your Honours.  How the Full Court dealt with this issue of partial incapacity from 1 September onwards is seen at paragraphs 29 and 30 of their reasons at page 36 of the book.  At 30 her Honour Justice Wheeler said:

However, the purpose of the certificate, under s57A, is to enable the ascertainment of what are ‑ ‑ ‑

KIRBY J:   You have not read:

So far as the period after 1 September 1999 is concerned, it is my view that the certificate does not relevantly certify incapacity.

MR NUGAWELA:   Correct.

It is true that one might draw, from ‑ ‑ ‑

KIRBY J:   That is a bit of a difficult finding, I would have thought:

It is true that one might draw, from the ticking of the box relating to “restricted” return to work, an inference that there was some work of which the worker was incapable.

What more does the doctor have to say?  Restricted” return to work.

MR NUGAWELA:   Precisely, your Honour.

KIRBY J:   Anyway, move on.  I just wonder if Justice Wheeler has taken too antagonistic a view and not a facultative view of this legislation.

MR NUGAWELA:   In our respectful submission, that is one instance where the court took that contra proferentum approach.  May I move on to the second instance.

KIRBY J:   There is this talk about it being a penalty provision.  I do not think that is a correct approach to it, either.  It is supposed to work in a fair way to the rendering of claims by workers who are injured.  Move on.  What do you get out of paragraph 30?

MR NUGAWELA:   We get out of paragraph 30 from line 50 onwards:

As I have noted earlier, the claim which is made pursuant to s84I, and which is referred to in s 57A(1)(a), does not assist in that task, so the section must contemplate that it is from the medical certificate that one gleans an indication, not of the precise amount of compensation payable by way of weekly payments, but of the manner in which those payments can be calculated.

That is the contra proferentum approach that we complain of.  Her Honour had earlier noted at paragraph 2 about the lacuna in the regulatory scheme and yet judicially filled in that lacuna by making presumptions as to what did not exist, either in the Act or in the prescribed form.  Dwelling upon that one step further, if, hypothetically, the certificate had stipulated that the worker was only fit for one hour’s work a day what good would that do if the employer were to take issue with that and adduce its own expert evidence to the contrary.  The scheme of the Act does not fix liability in a certain amount simply because it is nominated in the four corners of a prescribed form.

The second approach or issue arises out of paragraph 31 of the Full Court’s reasons and that is this - at page 37:

In relation to the period between 24 July 1999 and 1 September 1999, in my view, the certificate would be adequate if, read fairly and read, if necessary, together with the claim form provided pursuant to s 57A(1)(a), there was a clear certification that, during a defined period in respect of which compensation was claimed, the worker was totally unfit for work . . . Where, read fairly, there is an ambiguity in the certificate, in my view, it cannot be relied upon to found any automatic entitlement to payments in respect of total incapacity.

The Act does not refer to total incapacity, it refers to a degree of unfitness for work, be it total or partial.  The third piece of evidence, I suppose, which evidences the contra proferentum approach is this notion of the anticipatory letter of 29 September 1999.

KIRBY J:   Can I just ask is the certificate that the doctor ticked, is that in any way prescribed under the Act or is it prepared by the insurer or is it simply a certificate that the doctor has in his own practice?

MR NUGAWELA:   It is a certificate which is not prescribed under the Act, your Honour Justice Kirby.

KIRBY J:   Not prescribed.

MR NUGAWELA:   It is not.

KIRBY J:   Is that not the problem that the doctor is ticking some form of his own and not responding to the particular issues which are raised by this rather harsh legislation and is not that the difficulty that the High Court would face that we are trying to deal with a matter of general principle on a factual base that is peculiar to the facts of your client and which has not really addressed the mind of the doctor to the issues that are presented by the Act?  What good can we do by going into that and dealing with the particular facts of the case when the only real proper basis of the High Court intervening would be if it is a matter of general principle?

MR NUGAWELA:   Yes.  We say that, on the contrary, your Honour, there is no prescribed certificate for a situation like this and it can be written on a piece of paper, it can be written on a piece of blank paper.  The question is, does the content of what is written satisfy the statute and the only ‑ ‑ ‑

KIRBY J:   I suppose the best point that you have is that the Court of Appeal has taken an approach to what is done by doctors in ticking their own forms or filling out their own forms which is not sufficiently facultative for the proper operation of this Act in genuine claims for compensation.

MR NUGAWELA:   We go one step further, we say ‑ ‑ ‑

KIRBY J:   It has taken an approach which has treated the matter as a penalty on workers instead of as a matter of the administration of the Act in a fair way that provides compensation where people have a fair entitlement and denies it when they have not.

CRENNAN J:   One test, I suppose, of whether the certificate is satisfactory is to ask what sort of payments of compensation could have been commenced on the basis of a certificate that a person was fit for restricted return to work from a particular date?

MR NUGAWELA:   It is one indicia, Justice Crennan, but not the only test which the statute prescribes.  The statute is silent, entirely, in terms of the operation or the self‑execution of section 57A.  It is entirely silent on the question of quantification.  It speaks very loudly in volumes on the question of liability.  Quantification is a step that will come afterwards in the event there is a dispute.  The decision in Kuligowski makes that clear.

Can I come back to the other piece of evidence that shows that the Full Court did not only take a facultative approach but it took approach that was contra proferentum because it is said that employers can issue anticipatory letters of rejection to defeat claims.  So, in anticipation of a claim being made, employers can just issue blanket letters of rejection and circumvent the strict provisions of section 57A.  Why?  We say because the Full Court thought that this was a penal provision, as did the learned compensation magistrate.

KIRBY J:   I see the word “penalty” is used in paragraph 27 quoting the compensation magistrate and that may be what is infecting the approach to this legislation that it is regarded as a penalty provision, which it is not.

HAYNE J:   Though her Honour goes on in paragraph 28 to deny such an approach explicitly.

MR NUGAWELA:   Which we say is ipse dixit but for the four reasons that we have been submitting to your Honours.  When one looks at the actual determination of the Court of Appeal it certainly manifests a contra proferentum approach, if not a penalty approach.  The fourth and final reason, your Honour is this, that certainly on the day of issue of the first medical certificate when the worker was undergoing an operation to his disc at L5/S1 on 24 July 1999 nobody could say that he was not totally incapacitated for work.

KIRBY J:   So long as aetiology – there was a question here, was there not, that he had had some ancient injury and then a subsequent injury and then

an aggravation of the subsequent injury, but there may be a question of aetiology.  You say that question has not been contested.

MR NUGAWELA:   It did not arise in this case.  I assure your Honours the aetiology did not arise in this case.  So that on the face of the certificate alone the worker was entitled to one day’s payments of workers compensation.  The only response my learned friend has to that is, well, the Act refers to weekly payments of compensation, so unless a worker is incapacitated for one week he or she will get no payments.  There is no authority for that proposition.

KIRBY J:   I think your time is up, Mr Nugawela.

MR NUGAWELA:   May it please your Honours.

KIRBY J:   What do you say about that, Mr Thomson, this marvellous piece of legislation of your State?

MR THOMSON:   Can I begin by emphasising that there are three key dates in this case.  The first is 4 August 1999 when the certificate was completed, the second is 20 September 1999 when the insurer wrote to the applicant not accepting liability and the third key date is 14 October 1999 when the first medical certificate which was supposed to be coupled with the recurrence of the disability claim form from 4 August was sent to the insurer.  There is a large gap of over two months between the recurrence of the disability claim form being submitted and then the associated medical certificate.  In the intervening period the insurer had in fact not accepted liability pursuant to the terms of section 57A.

KIRBY J:   What was the basis of the denial of liability?  Is that known?

MR THOMSON:   Yes, it is.  It is set out in the judgment of Justice Wheeler at page 33 of the application book in paragraph 17.

KIRBY J:   Yes.

MR THOMSON:   The letter is set out in its terms:

“We refer to the recurrence form submitted and note that the recurrence of your disability did not arise in the course of your employment.

Accordingly, in view of the above and that other incidents had occurred prior to and subsequent to the 20/9/95 incident, we are unable to accept liability for the recent recurrence of your disability.”

KIRBY J:   So the issue of aetiology was in issue between the insurer and the applicant, is that correct?

MR THOMSON:   Clearly it was, that is right.  While we are dealing with matters of what was actually corresponded, can I just show your Honours the nature of the certificate?  If your Honours go to page 7 of the application book you will see the relevant parts of the certificate generally reproduced there.

KIRBY J:   Yes.

MR THOMSON:   The relevant box for these purposes was the third box down – “Fit for restricted return to work from” and in this case there was after that put “1 September 1999” but there were no further entries in “restricted hours’, “restricted days” or “restricted duties”.  Can I take you back to page 33 just to show you that ‑ ‑ ‑

HAYNE J:   Just before you leave 7 was there anything done with the boxes under the heading, “Work restrictions”?

MR THOMSON:   No.  Paragraph 18 on page 33 tells you what was in the actual form in this case.  If you go to paragraph 18 it refers to the certificate and it says:

It gave the “date of injury” as September 1995 (the date of the original fall from the cray boat), gave the medical assessment as “re‑exacerbation of old injury”, and ticked the box “fit for restricted return to work from”, filling in the date 1 September 1999.  The nature of the restriction was not specified at all.  In the space provided to note “other treatment”, Mr Wong wrote, “Had the operation to L5/S1 disc on 24.7.99.  He is under the care of Dr Francis now”.

Can I just then mention what is attempted by this application in circumstances where the insurer has in fact not accepted liability?  What is attempted is to impose the entirety of workers compensation payable for the period referred to in the Act, which I think is two years, upon the insurer by reference to a failure to comply with section 57A(3).

KIRBY J:   Before you get too self‑righteous about it, what is imposed on you is a nil liability, as I understand it, simply because a doctor did not fill in the form correctly.

MR THOMSON:   Yes.  The point that I was seeking to make is that there is no ability now that this point in time has been reached many years after this whole episode for workers compensation to be reassessed in accordance with the nature of the injury and the restriction on the worker’s ability to carry out work.

KIRBY J:   Yes, but can I ask, does that mean that because of this form that this worker, though he had a spinal difficulty before, he had a spinal operation and he was certified as fit to go back to work at a certain point, that he ends up with nil, zero, nothing, and there is nothing he can do about it?  Is that correct?

MR THOMSON:   No, he could have made an application ‑ ‑ ‑

KIRBY J:   If that were correct that would be wrong.

MR THOMSON:   That is right.  What is before the Court at the moment is an attempt to place reliance on a provision to make automatic payments which was designed to take place during an interim period prior to – if the insurer had not accepted liability within the timeframe specified and it was contemplated that if there had been no acceptance or disputation of liability within a short timeframe then the automatic payments would be required to commence and then the insurer could make an application to vary the compensation in accordance with the true nature of the restrictions upon the disability.

Can I make several other points?  The first is that the question of penal provisions was one - and the correct nature of interpreting these provisions was one which was expressly disavowed by the respondent for the Court of Appeal and that is recorded in paragraph 28 of the judgment of Justice Wheeler to which your Honour Justice Hayne referred.  It was a concession which was expressly made:

It is conceded, in my view rightly, by the respondent that s 57A should simply be construed according to its terms, without adopting either a beneficial or penal approach –

Can I say that there is no issue of public importance involved in this case for numerous reasons.  Those are among the fact that there is no equivalent legislation in any other Australian jurisdictions.  Also, it is simply a question of construing a procedural type provision and there is no special principle of statutory construction involved in relation to that process of construction.

It is said against the respondent that the consequence of the interpretation that has been placed upon this legislation is that it only applies in relation to those who are totally incapacitated.  Can I take you, though, to what Justice Wheeler said at paragraph 30 of the judgment?

KIRBY J:   Yes.

MR THOMSON:   If you go to the fourth or fifth line down she says:

It is necessary, before s 57A(5) can be invoked, for it to be possible to ascertain from the medical certificate how those weekly payments are to be calculated.  That can only be done where, in a case of partial incapacity, there is some indication of the nature of the incapacity for work (either in terms of a restriction upon the hours which can be worked, or restriction of duty, or  both), so as to enable that calculation to be made.

Her Honour is not saying that this provision only applies where there is total incapacity.  She is saying that where there is partial incapacity because the provision is concerned with the making of automatic payments there must be a means for properly calculating those payments and therefore there must be some indication of the nature of the restriction.  That is all that her Honour is saying and that is what is missing in this case.  There was absolutely no indication of the nature of the restriction.

Might I say in relation to your Honour Justice Kirby’s point that there may be some difficulty because a doctor is sitting there in his office and does not have an appropriate form handy that the legislation particularly puts the obligation to submit the correct type of information upon the worker and there is no prescribed form but the type of information to be submitted is set out in section 57A(1)(b).

KIRBY J:   Could you tell me this, though you say, and it seems to be the case, that if 57A does not apply the worker does not have the benefit of the automatic right under the statute to the payment of weekly amounts, does he, nonetheless, have a right under the statute to go to the compensation magistrate, or somebody else, to dispute this and to contest the refusal, or is that it?

MR THOMSON:   I think my understanding of the situation is that he has the right to actually submit what is required by 57A(1) and then ‑ ‑ ‑

KIRBY J:   Once and for all?

MR THOMSON:   In the case of a recurrence the worker submits information which accords with what is required by 57A(1) as now understood by the Court of Appeal and once that has occurred then the obligations in 57A come into effect so that once there is a proper submission in accordance with 57A(1) the insurer has an opportunity within a short timeframe to accept, dispute liability or to defer making a decision and this is a significant point, if, within that short timeframe, the insurer chooses to defer making a decision and then within a further short timeframe does not make a decision the insurer is deemed to have disputed the liability.

KIRBY J:   That is so.  No, but you are talking in the generality.  I am talking about this particular case.  This is the case that is before us.  You say that your client disputed liability quite early in the piece.

MR THOMSON:   Yes.

KIRBY J:   What has happened to that dispute?  Does that go off to a hearing before a compensation review officer and the magistrate, or not?

MR THOMSON:   Yes, that is right, but then this was dealt with as an interlocutory preliminary point prior to that hearing continuing.

KIRBY J:   That has not happened because these proceedings have been pending, is that correct?

MR THOMSON:   Yes, that is correct.

KIRBY J:   But in the ordinary course, the worker is not left bereft of any remedy, the worker can then proceed to ultimately the compensation officer and on points of law to the courts?

MR THOMSON:   Yes, that is right.

KIRBY J:   Yes, all right.

CRENNAN J:   What has happened is there are no automatic payments for the interim period.

MR THOMSON:   That is precisely the point and that is because in 2003 ‑ ‑ ‑

KIRBY J:   The difficulty is, and I think Justice Wheeler said of the operation of this statute, that vulnerable workers who might be people whose first language is not English, who have no experience in entitlements and are absolutely ignorant of their rights and obligations under the Act are dependent on doctors to fill in forms correctly and send them to the appropriate persons and if they do not then it is the worker who loses out in the entitlements.  It is a very unjust piece of legislation, but it does seem to be what it provides.

MR THOMSON:   Can I make this point and that is that the matter – if you go to page 3 of the application book?

KIRBY J:   Yes.

MR THOMSON:   Following the events that we have discussed, in paragraph 6 on page 3, the workers compensation magistrate records that:

On 15 February 2000 the appellant lodged an application pursuant to the Workers’Compensation & Rehabilitation Act 1981 (“the Act”) –

as it was then known –

describing the injury…

7.        During the conciliation process, the appellant’s representatives contended that the insurer had failed to comply with the provisions of s57A of the Act –

Can I say that that point was taken – if you go to page 5 in paragraph 9 – “On 2 April 2003”.  Now, the period of intervening delay is not explained but clearly the worker in 2003 made the specific choice to take this as a preliminary point.

KIRBY J:   I see.

MR THOMSON:   Can I say also that this discussion deals with the issue that was decided by Justice Wheeler in the last part of her judgment which says that on a proper construction of section 57A it is entirely appropriate for an insurer, if the insurer wishes to do so, to make an anticipatory non‑acceptance, if you like, of liability and that mirrors the point that I was making that if there is a delay or a deferral of the decision about whether to accept or not accept liability there is deemed to be a dispute.  The deemed position is not that automatic payments should be made in a case where the insurer specifically just deferred the decision.

Her Honour said that the purpose of the provision is, in effect, to get the insurer moving to make some decision one way or the other and in those circumstances, the anticipatory non‑acceptance was sufficient, particularly in a case of this nature, where the insurer had received the recurrence disability form in early August and towards the end of September did not accept liability because there had been no medical certificate provided and then subsequently the medical certificate is provided and that is made as the hinge, if you like, for the automatic payment liability for this person.

Your Honours, there are a number of other points that have been made in my friend’s submissions, particularly about previous medical reports.  We have responded to those in our submissions and they have not

been ventilated orally.  I am not proposing to detain your Honours with those, but those are the submissions we would make.

KIRBY J:   Thank you.  Yes, Mr Nugawela, in reply. 

MR NUGAWELA:   Just three brief points, your Honour.

KIRBY J:   There does seem to have been an issue of aetiology, after all.

MR NUGAWELA:   This is one of the points I am going to address your Honours on.  Insofar as the operation of section 57A was concerned and the content of the medical certificate, such as it was, there was no issue of aetiology.  In other words, there was no legal issue of aetiology.  Historically, as a matter of interest, the insurer had done its anticipatory letter of declinature and nominated a reason as aetiology.

KIRBY J:   But in fact it is not surprising that they did so given that they are in the facts.  There is a real basis for a contest as to which of the several injuries caused the incapacity and what you are seeking is on the basis of a most imperfect certificate, inferences that have to be read into that certificate, rights to automatic compensation when in the factual circumstances of a dispute as to aetiology and of the imperfection of the certificate the right way for you to go is up the ladder that leads to a contested claim and its determination on its proved merits.

MR NUGAWELA:   Can I say this in response to what your Honour Justice Kirby puts to me?  That seems to place the anticipatory letter of declinature as having some significance in the statutory scheme contemplated by 57A and it is clear that it has no significance whatsoever.  The statute does not allow an employer in responding to a claim to pre‑empt the submission of a medical certificate or else the entire operation of 57A just goes down the tube and that is why we say that that anticipatory letter, together with the content of it, did not feature in the determination of the courts below.

That is one point by way of reply, your Honours.  The second point is this, there is utility in section 57A.  It was enacted to prevent a mischief of delayed claims processing and it put a burden on employers to make the application to resist the automatic operation of the section that was the mechanism that was placed by Parliament so that employers react quickly.  Now, the onus of proof is different.  The worker does not make the application.  By force of section 57A(5) the employer makes the application to resist payments.  That has an important practical effect in a no fault jurisdiction where dealing with unrepresented workers.

The third point is this that my friend said, and took your Honours to paragraph 30 of her Honour Justice Wheeler’s reasons for decision and observed that her Honour said:

It is necessary, before s 57A(5) can be invoked, for it to be possible to ascertain from the medical certificate how those weekly payments are to be calculated.

Do I have another minute or is my time up, your Honours?

KIRBY J:   No, you have another minute.

MR NUGAWELA:   Thank you, your Honour.  Nowhere in section 57A(5) does it provide for quantification of entitlements.  Section 84B provides that there is a mechanism, subsequently, in the event of a dispute, including a dispute as to quantum, for the matter to be quantified by a review officer.  My friend said that this does not mean that her Honour shut her mind to the question of total incapacity or partial incapacity, yet, in the following paragraph at paragraph 31 in the last three lines her Honour said this:

Where, read fairly, there is an ambiguity in the certificate, in my view, it cannot be relied upon to found any automatic entitlement to payments in respect of total incapacity.

That is precisely the case here, on the day of his operation, at the very least, he could not return to work as a cray fisherman.  He had a back operation and all of that ‑ ‑ ‑

KIRBY J:   We are not going to grant special leave to appeal on a one‑day claim.  It is just completely unrealistic.

MR NUGAWELA:   I accept that.  We say that there were four matters that conditioned the honourable Court of Appeal’s contra proferentum approach.  Contrary to section 57A, as my friend said, there is no prescribed medical certificate in situations such as this.  Unless your Honours have anything for us, those are our points by way of reply.

KIRBY J:   Thank you, Mr Nugawela.  The question at issue in this application raises no point of general application.  Its disposition turns upon the particular facts and circumstances of the case.  In particular, the disposition of the matter in the courts below has rightly been seen as turning on whether the medical certificate issued by the applicant’s medical practitioner satisfied the requirements of the Workers’ Compensation and Injury Management Act 1981 (WA). It raises no point suitable for the grant of special leave.

It is important, however, to say, as Justice Wheeler said in the Court of Appeal, that it would be an error on the part of administrators or of the courts to approach section 57A of the Act as a penal provision.  It is a machinery provision to be given operation according to its terms in a facultative way, so as to achieve its purposes.  Special leave is refused. 

Do you ask for costs, Mr Thomson?

MR THOMSON:   I do, your Honour.

KIRBY J:   It must be refused with costs.  The Court will now adjourn to reconstitute and start with matter No 11, Ali.

AT 2.13 PM THE MATTER WAS CONCLUDED