McLennan v Eastern Australia Airlines Pty Ltd
[2009] VCC 546
•25 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
GENERAL DIVISION
Case No. CI-09-00691
| BRIDIE McLENNAN | Plaintiff |
| v | |
| EASTERN AUSTRALIA AIRLINES PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 May 2009 |
| DATE OF RULING: | 25 May 2009 |
| CASE MAY BE CITED AS: | McLennan v Eastern Australia Airlines Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0546 |
RULING
---
Catchwords: Strikeout application – validity of service of Application pursuant to s.134AB(4)
Accident Compensation Act 1985 – Ministerial Directions pursuant to s.134AF of the Act.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Respondent (plaintiff) | Mr J F Carmody | Holding Redlich |
| For the Applicant (defendant) | Ms A M Magee | Sparke Helmore |
| HIS HONOUR: |
1 This is an application by summons brought by the defendant (as applicant) seeking orders that the proceeding be struck out with consequent costs orders. In support of the application were affidavits of Kit Rankin, sworn 17 March 2009, James Alexander Johnson, sworn 20 March 2009, and Jodie Singarella, sworn 19 March 2009.
2 On behalf of the plaintiff (as respondent), an affidavit of Lisa Maynard, sworn 30 April 2009, was filed.
3 This matter concerns the validity of the service on behalf of the plaintiff of an Application pursuant to s.134AB(4) of the Accident Compensation Act 1985 (“the Act”).
4 It is accepted by the parties that at the time of the plaintiff’s injury she was employed by the defendant. It is further accepted that the defendant is a wholly-owned subsidiary of Qantas Airways Ltd (“QAL”). Further, as a subsidiary, all claims pursuant to the Act by employees of the defendant are made to QAL. QAL is a self-insurer for the purposes of the Act.
5 According to the affidavit of Ms Maynard, she received instructions to act on behalf of the plaintiff in April 2007 in relation to an injury sustained on 11 November 2004 in the course of her employment with the defendant. In July 2007, Ms Maynard, for the purpose of further investigating the injury, wrote to QAL on two occasions[1] seeking various details in relation to the claim for compensation which the plaintiff had made. Each of these letters was addressed to:
“Qantas Airways Ltd
Compensation Section,
Locked Bag 26Tullamarine Vic 3043.”[1] Exhibits JS1 and JS2 to affidavit of Ms Singarella
6 Ms Maynard deposes that she was then instructed to pursue a serious injury application on behalf of the plaintiff. She says she searched the internet to obtain information as to the defendant and discovered it was a wholly-owned entity of QAL. S.134AB(5) of the Act requires any application pursuant to sub- section (4) to be accompanied by various materials. By sub-section (5A), the application must be served upon “each person against whom the applicant claims to have a cause of action”. In this case, the person against whom the applicant claimed to have a cause of action was the defendant, Eastern Australia Airlines Pty Ltd. By letter dated 27 May 2008,[2] the Application and additional documents were sent by registered mail addressed to:
“Eastern Australian Airlines
C/- Qantas
203 Coward Street
Mascot NSW 2020.”(emphasis added)[2] Exhibit LJM2 to the affidavit of Ms Maynard
7 The letter quoted the name of the plaintiff and “Claim No: V05167”. I am satisfied the Application and associated documents were sent by registered post, and received at the Qantas office at 203 Coward Street, Mascot, New South Wales at some time after the 27 May 2008.[3] In the course of cross- examination, Ms Singarella identified this address as a corporate office of QAL. It is not clear from the affidavit of Ms Maynard how she knew this address was the registered office of the defendant, although it is clear from a company search of the defendant,[4] that as at May 2008, the registered office was:
“C/- Qantas Airways Limited
Level 9, Building A
Qantas Centre
203 Coward StreetMascot NSW 2020.”[3] See Exhibit JAJ7 to the affidavit of Mr Johnson
[4] Exhibit LJM1 to the affidavit of Ms Maynard
8 Ms Maynard heard nothing from the defendant nor its solicitors, and on 3 September 2008, sent another letter to the same address[5] which noted the earlier service of the documents and reminded the defendant that a response was required by 25 September 2008. The letter exhibited to the affidavit of Ms Singarella has a date stamp: “10 Sep” affixed. In cross-examination, Ms Singarella accepted that it was likely that was the date stamp of Qantas when the letter was received.
[5] Exhibit JS3 to the affidavit of Ms Singarella
9 It is contended on behalf of the plaintiff that this service of the Application in accordance with s.134AB(5A) was proper and effective service within the meaning of that sub-section.
10 On 25 September 2008, Ms Maynard received a telephone call from Mr Kit Rankin of Qantas who admitted to be a claims analyst, and stated that although he had received the letter of the 8 September 2008 on the 10 September 2008,[6] he had not received the Application. On that same day, Ms Maynard sent by facsimile a further Application and associated documents (which he claims were incomplete), again noting that a response to the Application was required on that day.[7]
[6] Affidavit of Mr Rankin, at para 2
[7] Exhibit KR2 to the affidavit of Mr Rankin
11 Despite the various entreaties of Ms Maynard, no response was received. S.134AB(7) requires the Victorian WorkCover Authority (“the Authority”) or self-insurer, within 120 days of receipt of an Application, to advise the worker whether or not he or she is deemed to have a serious injury. S.134AB(9) provides that if the Authority or self-insurer fails to advise the worker within the period referred to in sub-section 7, the worker is deemed to have a serious injury.
12 No doubt as a matter of caution, Ms Maynard again served the Application and associated documents, and QAL, as I understand it, responded in accordance with sub-section (7) to that Application.
13 Ms Singarella attended and was cross-examined. She acknowledged “Eastern Australia Airlines Pty Ltd” was a separate corporate entity from QAL. She confirmed she worked at the Tullamarine Domestic Airport and that the offices at 203 Coward Street, Mascot were Qantas’ corporate offices.
14 Ms Singarella confirmed that she first became aware of the Application which had been sent in May 2008 when she discovered it upon the plaintiff’s personnel file when that file was provided to her. She stated she first received the file after 25 September 2008[8] although she was unable to say how long after. She accepted[9] that it was likely that QAL had been served with the Application at an earlier time. Her evidence was unimpressive about the steps she took to determine when and how the Application had reached the personnel file and what if any steps had been taken by any QAL employees thereafter in relation to the Application. Ms Singarella acknowledged[10] that on 25 September, the solicitor for the plaintiff had advised that the 120-day period expired on that same day and that Ms Singarella could have refused the serious injury certificate. I accept that by reason of her position within Qantas as an injury claims manager, that she had sufficient knowledge of the procedures required under s.134AB to know the consequences of not responding to the Application within the prescribed time. I accept that as a matter of course, she would usually obtain the advice of the company’s solicitors before so doing, but nonetheless it was open to her to respond.
[8] Transcript (“T”) 30
[9] T 30
[10] T 33
15 I further note that by the same date, that is 25 September 2008, Mr Johnson, partner in the firm Spark Helmore, the solicitors for the defendant, had been apprised of the situation, and on that date communicated with Ms Maynard.[11] While he disputed the proper service of the original Application, he nonetheless apparently took no steps to respond on that day.
[11] See Exhibit JAJ1 to the affidavit of Mr Johnson
16 In fact, according to the evidence of Ms Singarella,[12] she was aware before 25 September 2008 that Ms Maynard was asserting that the final day for a response was that day.
[12] T 36
17 S.134AF of the Act provides:
“(1) For the purposes of section 134AB, the Minister may issue
directions for or with respect to procedures under that section.. . . (4)
A person to whom a direction under this section applies, and the legal representatives and agents of such a person, must comply with the direction.”
(emphasis added).
18 S.134AB(5A) of the Act provides:
“ A copy of any claim under section 104B referred to in subsection (3) and of an application under subsection (4) must be served on each person against whom the applicant claims to have a cause of action.”
19 I was provided by the parties with a copy of the Ministerial Directions (“the Directions”) said to be applicable at the relevant time and made pursuant to s.134AF. In the preamble, there is stated:
“Pursuant to the provisions of the Act employers, the Authority, authorised agents, self-insurers, workers and the legal representatives of each must comply with these directions.”
20 Direction 6 is entitled:
“Service of the Application and Supporting Documents.”
and provides:
“6.1
Where the injury or injuries the subject of the application were sustained by the worker in his or her employment with an employer who is not a self-insurer, the application and supporting documents must be:
(a)
addressed to the Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne; and
(b)
served either by registered mail, or by hand delivery during business hours to the Victorian WorkCover Authority, at the reception, Level 24, 222 Exhibition Street, Melbourne.
6.2
Where the injury or injuries the subject of the application were sustained by the worker in his or her employment with an employer who is a self-insurer, the application and supporting documents must be:
(a)
addressed to the self-insurer at the address the self-insurer has notified to the Authority as its address for service in the State of Victoria; and
(b)
served either by registered mail or by hand delivery during business hours at that address.
6.3
The Authority must keep an up to date register of the address for service of each self-insurer and provide details of that address to the worker or the worker’s legal representative on request.
6.4
In the event that a self-insurer wishes to alter its address for service such alteration will be effectively made upon receipt by the Authority of written notification addressed to the Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne.
… .”
21 Subsequent enquiries by Ms Maynard to the Authority reveal that it did keep a “Self-Insurer Contact List” as at 26 May 2008.[13] That list, despite the requirement of Ministerial Direction 6.3, did not refer to an address for service on Qantas as a self-insurer, although it did refer to various contact persons, including Ms Singarella, and at the top of the list, Ms Nicole Brummer, whose address is said to be:
“Workers’ Compensation Department
Level 3, Airport Central Tower
203 Coward StreetMascot NSW 2020.”[13] Exhibit LJM8 to the affidavit of Ms Maynard
22 Ms Maynard made a subsequent enquiry to the Authority as to its Self-Insurer Contact List as at 6 April 2009[14] which revealed “service details” as:
“Workers’ Compensation Department
Locked Bag 26Tullamarine Vic 3043.”[14] Exhibit LJM7 to the affidavit of Ms Maynard
23 In her affidavit, Ms Singarella noted that on 12 May 2008, that is, a short time before the service of the Application, she notified the Authority by email of a changed address for service.[15] The email was addressed to Ms Sue Cracknell, who appears to be a business analyst in the self-insurance division of the Authority. The email notified the Authority of the change of address for service to:
“Qantas Airways Limited
Workers’ Compensation Department
Locked Bag 26Tullamarine Vic 3043.”[15] Exhibit JS5 to the affidavit of Ms Singarella
24 The same document appears to provide a response from Ms Cracknell to Ms Singarella, noting:
“That’s fine Jodie.”
25 When Ms Maynard made subsequent enquiries of the Authority,[16] the address for service of Qantas as at 27 May 2008 was said to be “Level 3, Airport Central Tower, 203 Coward Street, Mascot NSW 2020”, although it is noted that this is not clear from the contact list. Further, the Authority acknowledged that that address was changed on 6 April 2009 to Locked Bag 26, Tullamarine Vic 3043 in accordance with the request from Ms Singarella of 12 May 2008. The delay in updating this record was an administrative error by the Authority.
[16] Exhibit LJM9 to the affidavit of Ms Maynard
26 It is clear:
(a) in the Register which existed as at 26 May 2008, and despite the requirement of Ministerial Direction 6.3, that the Authority did not keep a Register which clearly noted Qantas’ address for service; (b) when notified by Ms Singarella of the proposed change of address for service on 12 May 2008, the Authority failed to amend the register. 27 Ms Maynard deposes[17] that she searched the website of the Authority and was not able to obtain an address for service for Qantas. That was because there was no address for service clearly indicated.
[17] paragraph 4 of the affidavit of Ms Maynard
28 Part 5 of the Act makes provision for self-insurers. In s.139, a “subsidiary” is defined as a wholly-owned subsidiary of another corporation within the meaning of the Corporations Law of Victoria. There is no issue that the defendant is a wholly-owned subsidiary of QAL. In the Self-Insurer Contact List kept by the Authority, the relevant self-insurer is referred to as “Qantas”, and not QAL. However, nothing turns on the issue.
29 S.141 of the Act provides:
“(1) An employer that is a body corporate … may make application in
writing to the Authority for approval as a self-insurer for—(a) …
(b) if it is a holding company—workers employed by each of its subsidiaries … … .”
30 S.142 provides:
“(1) Where an application is made by a body corporate under section
141, the Authority may—
(a) approve the body corporate as a self-insurer for— (i) …
(ii) if it is a holding company—workers employed by it and workers employed by each of its subsidiaries—
… .”
31 S.143 provides:
“Where a worker … [is] entitled to compensation under this Act and the
worker's employer was, at the time of the injury—
(a) a body corporate that was at that time a self-insurer; or (b)
a body corporate that was at that time a subsidiary of a self- insurer—
the first-mentioned body corporate is, subject to section 151, liable to
pay the compensation.”
32 Therefore, pursuant to this last section, Qantas is liable to pay compensation pursuant to the Act to the plaintiff, notwithstanding her employer at the time was the defendant.
33 Ms Magee, for the defendant, makes the following submissions:
(1)
The original letter enclosing the Application[18] was addressed to Eastern Australian Airlines. As at the date of injury and the date of the letter, the plaintiff’s employer was Eastern Australia Airlines.
(2)
The letter enclosing the Application ought to have been addressed to Qantas or QAL at the address in Victoria which the self-insurer had notified the Authority as its address for service, as required by Direction 6.2(a). That address, as notified on 12 May 2008, was:
[18] Exhibit LJM2 to the affidavit of Ms Maynard
“Qantas Airways Limited
Workers’ Compensation Department
Locked Bag 26Tullamarine Vic 3043.”
(3) If there was an error on the Authority’s Register, that has occurred
through no fault of the defendant or Qantas.(4) There is no loss to the plaintiff, in that a determination on the merits
can be made on the basis of the subsequently served Application.(5) To uphold the validity of service of the Application would be to interpret
the Act and the Directions contrary to the objectives of the Act.(6)
The intention of s.134AB is to provide a regime for the assessment on the merits of a worker’s claim to have suffered a serious injury in the course of employment and to regulate any common law proceedings which follow. To uphold service of the Application as the plaintiff contends would have the assessment of the claim made by default rather than on the merits.
34 Mr Carmody, on behalf of the plaintiff, submits:
(1)
It was appropriate the Application sent on 27 May 2008 was addressed to Qantas rather than QAL as that was the name on the Authority’s Register.
(2) The Application was properly served as:
(a) the document was sent by registered post to the defendant’s registered office. (b) the document was sent to the address which appeared on the Authority’s Register as at that date.[19] It is not material that the address was outside Victoria given that was the address on the Register.
[19] See Exhibit LJM9 to the affidavit of Ms Maynard
(3)
Given the purpose of service is to bring the process to the notice of the party upon whom service is intended, that was done when the Application was sent by registered mail to the New South Wales address.
(4)
The documents were received by QAL as they were subsequently discovered on the personnel file. They became somehow “lost in the system”.
(5)
Even when it had the opportunity to do so, either through Mr Rankin, Ms Singarella or QAL’s solicitors, on 25 September 2008, nothing was done.
(6)
The notice said to have been sent by Ms Singarella to amend the Register[20] was not effective as it was not addressed to “the Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne”, as was required by Direction 6.4.
[20] Exhibit JS5 to the affidavit of Ms Singarella
35 I am of the view that nothing turns on the following minor inaccuracies in the documentation exhibited to the various affidavits:
(a) That the letter of 27 May 2008 described the defendant as “Eastern Australian Airlines” and not “Eastern Australia Airlines”. (b) That the same letter was addressed to the defendant “C/- Qantas”, rather than “C/- Qantas Airways Limited”, the correct corporate entity. (c) That the letter was addressed to “203 Coward Street, Mascot NSW 2020” rather than “Level 9, Building A, Qantas Centre, 203 Coward Street, Mascot NSW 2020” which was the defendant’s correct registered office according to Corporate Affairs’ records. (d) That the letter was not addressed to “Qantas, Level 3, Airport Central Tower, 203 Coward Street, Mascot NSW 2020”, the address which the Authority subsequently stated was the address on the Self-Insurer Register kept by the Authority before amendment. (e) That the notification by Ms Singarella to the Authority of the change of address on 12 May 2008 did not precisely follow the requirement of Direction 6.4, in that it was an email addressed to Ms Cracknell, rather than to the “Director, Common Law, Impairment and Dispute Management Division, Victorian WorkCover Authority, 222 Exhibition Street, Melbourne”.
36 These matters, in my view, are relatively trifling and do not render ineffective either service of the Application, on the one hand, nor the validity of the notice to change the address of Qantas on the other.
37 Technically then, service of the Application in May 2008 did not comply with Direction 6.2, in that it was not addressed to the self-insurer at the address which the self-insurer had notified to the Authority as its address for service. By that time the self-insurer had notified the Authority of the Tullamarine address. It is arguable there was further non compliance by service being effected at an address outside Victoria. Ms Maynard could be excused for this as she was misled by the inaccuracy of the Register.
38 What then is the consequence of those defects?
39 S.134AF(5) provides that the Directions may specify that a failure to comply with a particular provision of the Directions has the effect of altering a period applicable under s.134AB. Direction 15 does specify that if the Application or supporting documents do not comply with Direction 5, the response period in s.134AB(7) is suspended until the Direction is complied with. There is no specification in the Directions to deal with a failure to comply with the service requirements of Direction 6. There is no sanction, nor penalty, nor provision that the period in s.134AB(7) is suspended in the event of service outside the requirements of Direction 6. The failure of the Directions to so provide leads me to conclude that a failure to strictly observe the service provisions does not render the service, in a case such as this, invalid. Further, there is nothing in the Act to suggest that any failure to abide the service provisions of the Directions likewise would render service invalid.
40 An act done in breach of a condition regulating the exercise of a statutory provision is not necessarily invalid and of no effect.[21] Whether it is will depend upon whether there is a distinct legislative purpose to invalidate any act that fails to comply. Regard should be had to the language of the statute, its subject matter and objects. The objects of the Act include:
[21] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, at 388-9
“. . .
[22] S.3 of the Act
(d) to provide adequate and just compensation to injured workers… . . . (f) to establish incentives that are conducive to efficiency and discourage abuse…”[22]
41 A finding that service of the Application was valid, is not inconsistent with these objectives. While it may be said that s.134AB is in part intended to provide a formula for the assessment of serious injury applications on the merits, it also provides for strict time limits to be complied with and consequences if they are not adhered to, including the deeming of an application if the Authority or self-insurer does not respond.
42 There is nothing in the Act specifically as to service of documents required to be served, save sections 246 and 247 which provide for service of documents by the Authority or a self-insurer, and on the Authority, respectively. Neither provision is relevant.
43 Rule 6 of the Rules of Civil Procedure provides for service. However, that Rule is concerned with the service of any document required or permitted to be served in a proceeding. The Application pursuant to s.134AB(4) and (5) is not a document required to be served in a proceeding, but rather a procedural requirement of the Act.
44 In Hope v Hope,[23] Lord Cranworth LC stated that the rationale of service as:
“The object of all service is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.”[24]
[23] (1854) 43 ER 534
[24] see further cases referred to in Williams-Civil Procedure, R6.01.20
45 Pursuant to the Corporations Act 2001 (Cth),[25] service of a document “for the purposes of any law” may be effected by posting it to the company’s registered office. I am satisfied that the Application sent by letter dated 27 May 2008 was served upon the defendant’s registered office in accordance with the Corporations Act.
[25] s.109X, s601CX
46 I am satisfied that the sending of the Application by registered mail did achieve the purpose of bringing the Application to the attention of the defendant. In fact, the Application somehow, and at some time came to be upon the plaintiff’s personnel file. In that sense, it came to the defendant’s attention. It was the fact that the Application was overlooked or in some other way misplaced that caused the failure of the defendant to respond to the Application as required by s.134AB(7), and not any defect in service. The problem was compounded when Mr Rankin, Ms Singarella, and QAL’s solicitors failed to act on 25 September 2008 even although there was little time to make a comprehensive response.
47 In these circumstances, I am of the view that service was properly effected and given the defendant failed to respond and determine whether or not a serious injury ought be granted pursuant to s.134AB(7), s.134AB(9) applies and the serious injury is deemed granted.
48 I shall hear further from the parties as to the appropriate orders and as to costs.
- - -
0
1
0