Mogensen v Premium Grain Handlers Pty Ltd - [2008] WASC 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MOGENSEN -v- PREMIUM GRAIN HANDLERS PTY LTD [2008] WASC 145

CORAM: SIMMONDS J

HEARD: 4 JUNE 2008

DELIVERED : 17 JULY 2008

FILE NO/S: CIV 1355 of 2008

MATTER :Application under Section 76 of the District Court of Western Australia Act

BETWEEN: KNUD BIRKLUND MOGENSEN
Plaintiff
AND
PREMIUM GRAIN HANDLERS PTY LTD
First Defendant
THE DIRECTOR OF THE DISPUTE RESOLUTION DIRECTORATE
Second Defendant
STEVEN JOHN BLYTH
DAVID MORGAN LEWIS
Third Defendants

Catchwords:

Whether written notification of registration of worker's election to retain the right to seek damages given within the meaning of Workers' Compensation and Injury Management Act 1981 (WA) s 93K(4)(c)(i) - Written notification by letter sent to a post office box address of worker's solicitor as shown on their letterhead - Whether sufficient that as a result of such posting worker obtained a copy of the letter

Legislation:

Interpretation Act 1984 (WA), s 3, s 75, s 76
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 93K, s 93L, s 93M, s 146H
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 21, reg 22, reg 23

Result:

Application by plaintiff for declaration of invalidity dismissed
Application by first defendant for declaration of validity granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr B G Bradley
First Defendant              :     Mr J A Thomson
Second Defendant         :     No appearance
Third Defendants           :     Mr G P Bourhill

Solicitors:

Plaintiff:     Bradley Bayly Legal
First Defendant              :     D G Price & Co
Second Defendant         :     No appearance
Third Defendants           :     Lavan Legal

Case(s) referred to in judgment(s):

Biotech International Ltd v Peptech Ltd [2000] WASC 120
Commonwealth v Verwayen (1990) 170 CLR 394
De Robillard v Carver [2007] FCAFC 73
Drake v Stanton [1999] FCA 1635
Grayprop Pty Ltd v Maharaj International Pty Ltd [2001] QSC 387
Hope v Hope (1854) 4 De G M & G 328
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Italiano v Carbone [2005] NSWCA 177
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1
Pino v Prosser [1967] VR 835
Polstar Pty Ltd v Agnew [2007] NSWSC 114
Repatriation Commission v Gordon (1990) 26 FCR 569
Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262
Young v Lamb [2001] NSWCA 225

SIMMONDS J:

Introduction

These are competing applications for declarations, of invalidity and validity respectively, in respect of the giving of a notice in writing of registration of an election to seek common law damages. The election is for the purposes of Workers' Compensation & Injury Management Act 1981 (WA) (WCIM Act) s 93K(4)(c)(i). If that notice has been given validly, it is common ground that proceedings commenced by the plaintiff against the first defendant in the District Court claiming compensation for personal injury are susceptible to an order for summary judgment for the first defendant in those proceedings on the basis they were commenced out of time. If that notice has not been given validly, the effect on those proceedings is less clear. However, it appears to me that the proceedings might be liable to be dismissed on the basis they were premature, although it is not necessary for me so to determine. In any event, if those proceedings were premature, again it appears to me, without it being necessary for me to so determine, new proceedings might in due course be commenced.
As will be seen, the written notice in question was addressed to the plaintiff care of one of the post office box addresses of his then solicitors, the third defendants. They in turn passed on that written notice to him, not long after the date the written notice bore.
I begin this judgment by setting out WCIM Act s 93K(4) and certain provisions in the Interpretation Act 1984 (WA) (Interpretation Act) to which reference was made in submissions to and argument before me. I then review the facts in this case as they are agreed by the parties or that otherwise appear to be common ground, and describe the present proceedings. I then consider the arguments for the parties. The final section of these reasons is my conclusions and orders.

WCIM Act s 93K(4) and Interpretation Act s 75 and s 76

WCIM Act s 93K(4) reads as follows:
(4)Damages in respect of an injury can only be awarded if -
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages;
(b)the Director registers the election in accordance with the regulations;
(c)court proceedings seeking the damages are commenced within ‑
(i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or
(ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;
and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
WCIM Act s 5(1) defines 'Director' as 'the officer of WorkCover WA approved under s 288(2) as the Director Dispute Resolution'. The current holder of that office is the second defendant.
WCIM Act s 93M(1) ‑ (3) provides for the last day of the fixed periods there described to be the 'termination day' for the election under s 93K(4)(a), unless the Director has extended the termination day under s 93M(4).
WCIM Act s 93L(2) provides that a worker can only make an election under s 93K(4) if one or other of two sets of conditions as to the extent of the worker's 'degree of permanent whole of person impairment' is met, and the Director has, at the written request of the worker, made the relevant record in accordance with the regulations. One of the two sets is that the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%. WCIM Act s 146H provides for an 'approved medical specialist' to give a report and a certificate as there described, for the purposes of, among other provisions, s 93L(2).
It is common ground that s 93K(4)(c)(i), concerning the giving of written notice, should be read with Interpretation Act s 75 and s 76. An aspect of the principal issue in this case is how those provisions are to be read.
Interpretation Act s 75 and s 76 read as follows:
75. Service of documents 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.
76. Service of documents generally
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 posting 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.
The principal issue in this case, as emerged from the submissions made to me, is how the words 'the Director gives the worker written notice' in WCIM Act s 93K(4)(c)(i) should be construed and applied.

The facts in this case

The plaintiff was at all material times an employee of the first defendant.
By letter dated 6 September 2006, sent by facsimile and post and addressed to 'WorkCover Western Australia', the third defendants requested an extension for the purposes of WCIM Act s 93K(4)(a) (the third defendants' letter of 6 September 2006). The third defendants' letter of 6 September 2006 bore the heading 'Our client ‑ Knud Mogensen date of injury ‑ 12 January 2006', and the extension sought was to '2 years post injury (ie 12 January 2008)'.
By letter dated 20 September 2006, sent by post and addressed to the third defendants as I will indicate, 'M Boon Director Dispute Resolution Directorate' set out certain matters which needed to be 'attended to' before an application for such an extension could receive 'further consideration' (the Boon letter of 20 September 2006). The Boon letter of 20 September 2006 referred to those matters as a completed application on the Form 35 (see Workers' Compensation and Injury Management Regulations 1982 (WA) (WCIM Regulations) reg 23(2)(a)), and a copy of a recommendation from an approved medical specialist of a day until which the termination day should be extended (reg 23(3)(a)(ii)) and certain further documents from such a person (reg 23(3)(a)(i) and (iii)).
I note that the Boon letter of 20 September 2006 was addressed to the third defendants as follows:
Lewis Blythe [sic Blyth] & Hooper
PO Box 1240
BOORAGOON 6954
That Booragoon post office box address was shown for the third defendants on the third defendants' letter of 6 September 2006. It will also be noted that the Boon letter of 20 September 2006 was addressed to the third defendants, not to the plaintiff.
By letter dated 30 November 2006, sent by facsimile and post and addressed to 'Tessa Martins WorkCover Dispute Directorate', the third defendants, under the heading 'Our client ‑ Kevin (Knud) Birklund Mogensen', provided a Form 35 and certain documents signed by a Mr Craig Smith as an 'approved medical specialist' (the third defendants' letter of 30 November 2006). The Form 35 bore alongside the entry 'signature of the worker' what seems to have been accepted before me was the signature of the plaintiff, and was dated 30 November 2006 (the Form 35 of 30 November 2006). The Form 35 of 30 November 2006 showed under the heading 'Worker's details', subheading 'Address', an address for the plaintiff which it is accepted before me was at all material times his residential address. This was also the address shown for the plaintiff on the documents from Mr Craig Smith, which were dated 26 November 2006 (the Smith documents of 26 November 2006). One of the Smith documents of 26 November 2006 bore the recommendation that the termination day be extended to 1 July 2007.
By letter dated 1 December 2006, sent by post and addressed to the plaintiff as I will indicate, 'M Boon Director Dispute Resolution Directorate' referring to WCIM Act s 93M(4) granted the application for an extension of time to 1 July 2007 (the Boon letter of 1 December 2006). The Boon letter of 1 December 2006 stated that attached to it was 'the endorsed copy of the application', those attachments being copies of the Form 35 of 30 November 2006 and the Smith documents of 26 November 2006 bearing in each case a Directorate stamp.
The Boon letter of 1 December 2006 was addressed to the plaintiff as follows:
Mr Knud Mogensen
C/- Lewis Blyth & Hooper
PO Box 653
GOSNELLS WA 6990
That Gosnells post office box address was shown for the third defendants at the foot of each of the third defendants' letter of 6 September 2006 and the third defendants' letter of 30 November 2006.
By letter dated 27 April 2007, sent by facsimile and post and addressed to 'Tessa Martins WorkCover Dispute Directorate', the third defendants, under the heading 'Our client ‑ Kevin (Knud) Birklund Mogensen', stated they wished to apply under WCIM Act s 93M(4)(a) for an extension of the termination day (the third defendants' letter of 27 April 2007). The defendants' letter of 27 April 2007 stated that with it was provided a Form 35 together with documents from a Dr Kennedy. I do not have a copy of that Form 35 or any of those documents.
By letter dated 30 April 2007, sent by post and addressed to the plaintiff as I will indicate, 'Dave Whitford-Harvey Directors' Delegate' granted the application for an extension of time to 12 January 2008 (the Whitford-Harvey letter of 30 April 2007). The Whitford-Harvey letter of 30 April 2007 stated that attached to it was 'an endorsed copy of the application'. I was not provided with that attachment.
The Whitford-Harvey letter of 30 April 2007 was addressed to the plaintiff as follows:
Mr Knud Mogensen
C/- Lewis Blyth & Hooper
PO Box 1240
Booragoon WA 6154
That Booragoon post office box address was the same as that used on the Boon letter of 20 September 2006, except for the post code. The third defendants' letter of 27 April 2007 bore the same Booragoon post office box address for the third defendants as their previous letters, including its post code. As will be seen the post code used in the Whitford-Harvey letter of 30 April 2007 coincided with that for the Booragoon building address for the third defendants shown on all of those letters of theirs.
By a letter dated 5 December 2007, sent by facsimile and post and addressed to 'Tessa Martins WorkCover Western Australia', the third defendants, under the heading 'Our client - Kevin (Knud) Birklund Mogensen', stated they provided certain documents and asked that the addressee contact 'the writer to discuss this matter at your earliest convenience' (the third defendants' letter of 5 December 2007). Those documents were a 'Form AMS5' headed 'Report on Evaluation of the Degree of Permanent Impairment', signed by a Dr David Kennedy as an 'approved medical specialist' and dated 4 December 2007 (the Kennedy Form AMS5) and a 'Form AMS6' headed 'Certificate of Degree of Permanent Impairment', signed by Dr Kennedy as such a specialist and also dated 4 December 2007 (the Kennedy Form AMS6). Both the Kennedy Form AMS5 and the Kennedy Form AMS6 referred to the degree of permanent whole of person impairment as 32%, and at the head of each document showed the following (layout, bolding and underlining as in the original), with the exception for the Kennedy Form AMS 6 noted:
For              LEWIS BLYTH & HOOPER
                   PO BOX 1240 – BOORAGOON 6954
                   Knud (Kevin) Mogensen
Address        32 Strawberry Drive
                   ARMADALE WA Postcode 6112 [a postcode did
not appear on the Kennedy Form AMS6]
By a letter dated 6 December 2007, sent by facsimile and post and addressed to 'Tessa Martins WorkCover Western Australia', the third defendants, under the heading 'Our client ‑ Knud (Kevin) Mogensen', stated they provided a 'Form 34 ‑ Election to Retain Right to Seek Damages' and sought confirmation 'that our client's Form 34 has [been] positively processed and that his election to retain the right to seek common law damages has been recorded by WorkCover' (the third defendants' letter of 6 December 2007). It appears to have been common ground that Form 34 was the form by which under WCIM Regulations reg 22(1) an election under WCIM Act s 93K(4)(a) was to be made. The Form 34 provided with the third defendants' letter of 6 December 2007 bore alongside the entry 'signature of the worker' what it appears not to have been in contest before me was an endorsement by the third defendants, and was dated 6 December 2007 (the Form 34). The Form 34 showed under the heading 'Worker's details', among other things, under a sub-heading 'Address', the following address
C/- Lewis Blyth & Hooper
4^th Floor, Garden City House, Garden City, BOORAGOON, WA 6154.
This was the Booragoon building address shown for the third defendants on their previous letters.
By letter dated 7 December 2007, sent by post and addressed to the plaintiff as I will indicate, 'Mark Sputore Director's Delegate' acknowledged receipt of the third defendants' letter of 5 December 2007, the Kennedy Form AMS5 and the Kennedy Form AMS6 (the Sputore letter of 7 December 2007). The Sputore letter of 7 December 2007 appears to have been written before receipt of the third defendants' letter of 6 December 2007. The Sputore letter of 7 December 2007 stated, among other things, that the 'assessment provided by Dr Kennedy has been recorded in accordance with the provisions of [WCIM Act s 93L(2)]', and enclosed an 'endorsed copy of a Form 33 - Assessment of Degree of Permanent Whole Person Impairment' and a 'sealed copy of the Form AMS6'. It appears not to have been in contest that Form 33 was the form in which the Director's record for the purposes of WCIM Act s 93L(2) was to be made under WCIM Regulations reg 21(2). The Form 33 provided with the Sputore letter of 7 December 2007 bore a stamp of the Dispute Resolution Directorate and showed, under the heading 'Worker's details', subheading 'Address', the plaintiff's residential address. The copy of the Kennedy Form AMS6 provided under the Sputore letter of 7 December 2007 also bore a Directorate stamp.
By letter dated 13 December 2007, sent by post and addressed to the plaintiff as I will indicate, 'Mark Sputore Director's Delegate' wrote the letter which it is common ground was the only document which could qualify as 'written notice' for the purposes of WCIM Act s 93K(4)(c)(i) (the Sputore letter of 13 December 2007). I set out the material terms of that letter as follows:
Dear Mr Mogensen
Election to Retain Right to Seek Damages – Form 34
Worker:  Knud (Kevin) Mogensen
Employer:  Premium Grain Handlers
Date of injury:  12 January 2006
Degree of PWPI:  32%
I acknowledge receipt of the Form 34 ‑ Election to Retain to Seek Damages in regards to your workers' compensation claim, which was lodged with the Directorate on 6 December 2007.
Your election to retain the right to seek damages has been registered with effect from 13 December 2007.
Please find enclosed an endorsed copy of the completed election form. …
The Sputore letter of 13 December 2007 was addressed to the plaintiff as follows:
Mr Knud (Kevin) Mogensen
C/- Lewis Blyth & Hooper
Barristers & Solicitors
PO Box 1240
BOORAGOON WA 6954
It will be noted that the address for the third defendants was their Booragoon post office box address as used in the Boon letter of 20 September 2006 and as used in the Whitford-Harvey letter of 30 April 2007 where it appeared with a different post code. That address with the post code 6954 was as shown in all of the third defendants' letters, including the third defendants' letter of 6 December 2007.
It is agreed by the parties that the third defendants received the Sputore letter of 13 December 2007 on 19 December 2007.
It further appears that by letter dated 19 December 2007 addressed to the plaintiff at his residential address (the third defendants' letter of 19 December 2007) the third defendants said this, under the heading 'Work injury ‑ 12 January 2006':
We refer to previous correspondence and provide herewith a letter from the Dispute Resolution Directorate (WorkCover) dated 13 December 2007, and a copy of the endorsed 'Form 34' referred to therein.
As is evident your election to retain the right to seek damages has been registered with effect from 13 December 2007.
Should you have any queries or concerns please contact the writer, otherwise, we refer to our letter to you dated 18 December 2007 and request that you contact the writer with respect to the issues raised therein.

I was not provided with a copy of the letter dated 18 December 2007 there referred to.
The third defendants' letter of 19 December 2007 forms an annexure (annexure K) to the affidavit of Brian George Bradley, the present solicitor for the plaintiff, of 16 April 2008, and is referred to in that affidavit at [2(i)] as follows:
I have been recently informed by the Plaintiff and do verily believe that he received in the course of the post a letter from the Third Defendants dated 19 December 2007 in which he was advised that his election to retain the right to seek damages had been registered with effect from 13 December 2007. A copy of the said letter is annexed hereto and marked with the letter 'K'.
Finally, by writ of summons dated 21 February 2008 the plaintiff commenced proceedings in District Court 382 of 2008 (the District Court proceedings) against the first defendant in the present proceedings. The indorsement of claim states that the claim is
for loss and damage arising from personal injury suffered by the Plaintiff on the 12^th day of January 2006 due to the negligence of the Defendant.
I note that it is expressly agreed by the parties that for the letters just referred to (except for the third defendants' letter of 19 December 2007) they were received at the addresses shown in them at the times indicated by the parties in the statement of agreed facts filed 30 May 2008 or otherwise in the ordinary course of post and for facsimile transmissions they were received by the addressees in the ordinary course of facsimile transmission. I have already referred to the date at which the parties agreed the third defendants received the Sputore letter of 13 December 2007.
Finally, I note that it is agreed by the parties that the plaintiff did not personally send any correspondence to the second defendant, and that the second defendant did not send any correspondence to the plaintiff at his residential address after the third defendants commenced to act for the plaintiff on or about 6 September 2006.

These proceedings

These proceedings were commenced by originating summons dated 8 April 2008. By that process the plaintiff seeks a declaration that the written notice 'was not validly given under Section 93K(4)(c)(i) of the [WCIM Act]'.
By a document styled 'Summons for Alternative Declaration' dated 29 May 2008 the first defendant seeks a declaration the written notice 'was a notice to the Plaintiff validly given under section 93K(4)(c)(i) of the [WCIM Act]'.
There are thus competing applications before me. No objection has been taken by the plaintiff or the first defendant to the form of the other's application. The second defendant has filed a notice of intention to abide by the court's decision in relation to these proceedings, and has been notified of the summons for alternative declaration. The third defendants have consented to the hearing of the two applications together.
The first defendant has made an application for the court to waive the operation of Rules of the Supreme Court 1971 (WA) O 59 r 9(1), which requires before an order may be made on an application in chambers (such as the present proceedings) a memorandum of conferral to have been filed. The requirement may be waived but 'only … in unusual circumstances upon [the court] being satisfied that there is good reason to do so': Kendall C and Curthoys J, Civil Procedure in Western Australia (at 11 July 2008) [59.9.2]. The first defendant relies on the competing characters of the applications as the basis for the waiver it seeks.
I am satisfied it is appropriate to waive compliance in this case. The parties have narrowed the issues to the principal one I have identified. The competing applications indicate that conferral as required by the rule would be meaningless.
On the parties' submissions to and arguments before me, I was asked to consider whether the words in WCIM Act s 93K(4)(c)(i) 'the Director gives the worker written notice' should be construed as requiring that notice by post be given only to the worker at a personal address for him, or the words allow for the giving of notice by post to an agent with authority to receive the notice on the worker's behalf. If it were concluded notice by post to such an agent is allowed, it should be asked whether or not those words allow for the giving of written notice by post to such an agent by post to a post office box as 'the last known address' of such a person within Interpretation Act s 75(1). Then, if it is concluded the answer to each of the first two questions is yes, it should be asked whether or not there was a giving of written notice by the posting of the Sputore letter of 13 December 2007 effected at the time when in the ordinary course of the post the letter would have been delivered to the post office box.
As will become apparent, I do not consider I need to reach a final view on those three questions. However, as they were the subject of substantial submissions and argument before me, I will indicate my preliminary views on them.
I do not consider I need to reach a final view as to the answers to the three questions referred to because in my view the present case may be resolved by answering two further questions that were raised on the parties' submissions and arguments before me. The first of those questions is whether or not the words 'the Director gives the worker written notice' should be construed so as to allow for the use of any method for the giving of written notice which brings the notice to the attention of the worker. Then, if those words so allow, it should be asked whether or not there was the use of such a method in this case.
I will note that a further question might be asked if the words do not allow for the use of any method for the giving of written notice which brings the notice to the attention of the worker. That question is whether or not it has been shown that by his conduct the worker waived or renounced his right to be given written notice by the method or methods WCIM s 93K(4)(c)(i) required or should be prevented from asserting that right. However, on the conclusions I have reached in this case, it is apparent that it is unnecessary for me to go into that matter.

The construction of s 93K(4)(c)(i): whether notice to an agent is allowed for

The position that the provision allows for notice to an agent with actual or apparent authority to receive the notice on behalf of the worker receives support, in my view, from authority on the effect of service of documents under leases on agents of the lessor.
One such authority cited to me, Young v Lamb [2001] NSWCA 225, concerned the effectiveness of a purported exercise of an option to renew a lease by fax to the lessor's managing agent. In upholding the effectiveness of that exercise, the following was said, at [36] - [38] (Stein JA), [1] (Mason P) and [63] (Hodgson JA):
What is plain about the definition of 'lessor' is that it does not preclude acceptance by the appellant's agent. It is silent on the matter. Given that the lease contains no address for the lessor, how is the lessee to effect service 'on the lessor'? It seems to me to make perfect sense to serve the letter on the lessor's duly appointed agent, Dedricks. The respondents had been notified that Dedricks had been appointed as managing agent. Dedricks wrote to the respondents on 21 April 1998 reminding them of the option. There was no evidence to suggest that the agent's authority was in any way limited. Indeed, that Dedricks had authority to accept any letter exercising the option is reflected by the course of dealings between the parties.
The relevant principle is expressed by Bowstead & Reynolds on Agency (16th Edition) as follows:
(1)A notification given to an agent is effective as such if the agent receives it within the scope of his actual or apparent authority, ...
(2)The law imputes to the principal and charges him with all notice and knowledge relating to the subject matter of the agency which his agent acquires or obtains while acting as such agent. [8 ‑ 204]
In Townsend Carriers Ltd v Pfizer Ltd (1977) 33 Prop & Comp R361 at 365, Megarry VC said:
'The same principle has been applied to the exercise of a contractual power of determination in a lease: see Re Knight and Hubbard's Underlease [1923] 1 Ch 130. These cases are, of course, decisions on the giving of notice rather than on receiving it, but I can see no reason why an agent who has power to give an effective notice should be denied the power effectually to receive a notice. I do not think that the principle that it is more blessed to give than to receive is part of the law of landlord and tenant.'
I note in that case that there was no address provided for the lessor, while here, of course, there was a residential address for the plaintiff on all of the documents concerning him provided by the third defendants to the second defendant to which I have referred.
In my view, however, that does not drain the authority of significance in the present context. That context was a pattern of exchanges between the third defendants on the plaintiff's behalf and the second defendant, culminating in the election for the purposes of WCIM Act s 93K(4)(a), a pattern which it may be inferred was approved by the plaintiff. That inference of approval may in my view be drawn from the evidence of the Form 35 of 30 November 2006 signed by the plaintiff and provided by the third defendants' letter of 30 November 2006 and the Form 34 signed by the third defendants and provided by the third defendants' letter of 6 December 2007. I note in particular that those letters bear at their foot the legend 'cc Client'. That evidence supports the inference that the plaintiff had approved the exchange showing thereby he had given the third defendants actual authority to receive communications from the office of the second defendant including communications relating to the election in WCIM Act s 93K(4)(a).
However, I also note in Young that a copy of the letter faxed was subsequently received by the lessor, which was a 'further reason why service on the lessor was established': [65] (Hodgson JA). That is also a feature of this case, and I return to it below.
Counsel for the plaintiff, as I understood his argument, put strongly against any application of the reasoning from authority such as Young to WCIM Act s 93K(4)(c)(i) the consideration of the serious consequence for the worker of the giving of written notice. That consequence was the commencement of the 30 day period referred to in WCIM Act s 93K(4)(c)(i) for the bringing of an action for damages. The application of the reasoning in question would have that period commence at a time of which the worker would not necessarily have any direct knowledge until some time thereafter.
Counsel for the third defendants put a further aspect of this matter to me, as I understood his submission. That aspect was the lack of any provision in the legislation to relieve against the consequences of a failure to commence proceedings within the 30 day period. That position might be contrasted with the provision for relief against an order for judgment in default of the filing of an appearance: see Civil Procedure in Western Australia [13.10.6].
Those considerations might also be pressed to support an argument that in any event the court should not find any authority to receive a written notification for the purposes of WCIM Act s 93K(4)(c)(i) had been conferred on an agent by the worker in the absence of a clear manifestation from the worker of the conferral of such authority.
These are weighty considerations. However, I did not understand it to be put to me that the words 'give the worker written notice' in WCIM Act s 93K(4)(c)(i) should be read as if they required personal service on the worker. That is to say it was not suggested that notification at least by the method in Interpretation Act s 76(b) read with s 75(1) was not possible. In any event I do not consider that any such suggestion could be sustained. See Repatriation Commission v Gordon (1990) 26 FCR 569, 577 (Spender J). Service by post as described in those Interpretation Act provisions would, of course, not be personal service, at least as that term is generally understood. See De Robillard v Carver [2007] FCAFC 73 [79] (Buchanan J), [1] (Moore and Conti JJ); and O 72 r 2 and r 5.
I also consider that it is not clear that the giving of written notice by post under WCIM s 93K(4)(c)(i) to the personal address of a worker who was legally represented for the purposes of the provision of the election under s 93K(4)(a) addresses the considerations referred to. It might be expected that service on the legal representative is less likely to produce delays in the taking of action on the notice than the giving of notice to the (injured) worker in person, whose capacity to understand and act upon the notice might be expected to be less than that of that representative.
Further, it seems to me that manifestations of authority by the worker do not require a statement expressing in terms the conferral of authority to receive the written notice under s 93K(4)(c)(i). I see no warrant in the language of the provision for such a requirement. In my view authority may be manifested in other ways that are sufficiently clear for this purpose. It seems to me that where there is a clear manifestation of authority conferred by the worker on his legal representative to make an election under s 93K(4)(a) on the worker's behalf that is enough. As the giving of the notice under s 93K(4)(c)(i) proceeded out of that election, it seems to me that such manifestation would be sufficiently clear in relation to that latter matter.
However, while my preliminary view is that the provision for the giving of written notice to the worker should be construed as I have indicated, I consider I do not have to reach a final view on the matter.

The construction of s 93K(4)(c)(i): whether posting to a post office box is allowed for

The position that the provision allows for the giving of notice to a worker or to that worker's duly authorised agent by posting to a post office box in my view derives support from Polstar Pty Ltd v Agnew [2007] NSWSC 114, 208 FLR 226 (Barrett J). There a statutory demand had been sent by post addressed to the sole director of a company at the address of a post office box in Green Valley. The question considered by the court that is relevant for my purposes was whether there had been service of the demand on the company under Corporations Act 2001 (Cth) s 459E(1) (Corporations Act). The court noted Corporations Act s 109X(a) and Acts Interpretation Act 1901 (Cth) s 28A, which are set out in the judgment, at [12] and [13] as follows:
Section 109X of the Corporations Act, dealing with the possibility that a document may be served on a company by post (being the only means potentially employed here), says:
For the purposes of any law, a document may be served on a company by:
(a)… posting it to, the company's registered office …
Section 28A of the Acts Interpretation Act, as in force at the relevant time, provided:
For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served:
…
(b)on a body corporate ‑ by … sending it by prepaid post to, the head office, a registered office or a principal office of the body corporate.
I will return to those provisions in another context below. For now, I note that the court considered the effect of them for the question relevant for my purposes and addressed a further matter at [17] ‑ [21], referring to Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1 and Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262, among other authorities, as follows:
The Corporations Act provision contemplates posting to 'the company's registered office'. The Acts Interpretation Act provision also refers to 'a registered office', as well as 'the head office' and 'a principal office'. The common theme is 'office. Provisions of the Corporations Act imposing requirements with respect to a company's 'registered office' elucidate the meaning of 'office' in the expression 'registered office'. Those provisions make it clear that such an office may only be at a location capable of being 'open to the public': see s 145(1). It must also be a location at which it is possible to display prominently the company's name (s 144(1)) and the words 'Registered Office' (s 144(2)). Furthermore, it is contemplated that there will be 'premises at the address of' the registered office (see s 143(1)) and that 'premises' will be used 'as the address of the company's registered office' (s 143(2)(a)).
In short, the Corporations Act's concept of 'office', in the references to 'registered office', is one centred on a physical location in the nature of premises (that is, a building or a room in or section of a building) to which persons may go and which can be identified by prominent display as a company's registered office. I am of the opinion that the Acts Interpretation Act reflects a similar concept of 'office' in its references to 'registered office', 'head office' and 'principal office'.
On this basis, a post office box cannot be a company's 'office' ‑ any more than it can be a place at which documents may be left by way of service (Sarikaya …; Croker v Ewen [2000] NSWCA 186) or an address for service (Quitstar Pty Ltd v Cooline Pacific Pty Ltd (2002) 168 FLR 213).
The possibility nevertheless remains that despatch by post to a post office box may in substance amount to despatch by post to a company's office. Such a possibility was recognised by the Court of Appeal in Macrae … where despatch to a post office box was held to satisfy a provision to the effect that a document might be served by being 'sent by post to … any place of business of the person'. Davies AJA (with whom Priestley JA agreed) said (at [20]):
'In my opinion, the sending of a document by post to a business person's post office box is an appropriate and possibly the most appropriate way of sending the document by post to that person's place of business.'
A significant fact in Macrae's case was that the letterhead of the hospital upon which service was to be effected carried a request that all correspondence be addressed to the nominated post office box. It may be inferred that the person attempting service in that case was aware of the request on the letterhead and had acted upon it.
There is no word or term like 'office' or 'place of business' in the provisions of concern to me to incline me to a construction that would not allow for notice to be given to a worker through an agent like a duly authorised legal representative at a post office box shown on that legal representative's letterhead.
Thus I would distinguish the authority, cited to me by the defendant and referred to in Polstar with other authorities, of Sarikaya 263 (Black CJ), on whether a post office box could be an address for service under Federal Court Rules 1979 (Cth) O7 r 6(1) as the 'address of a place … at which documents … may … be left'.
However, I also note Grayprop Pty Ltd v Maharaj International Pty Ltd [2001] QSC 387 [52] ‑ [54] (Philippides J) where Sarikaya was applied to determine that posting of the purported exercise of an option in a lease to the post office box shown on the letterhead of the plaintiff lessor could not attract the provision in the lease for deemed receipt of notices forwarded to the lessor by certified mail service and 'addressed to the lessor at the lessor's last known address or registered office in Queensland'. Grayprop was not cited to the court in Polstar, however, and in my respectful view it is difficult at first sight to reconcile with Macrae. In any event I note that in Grayprop the court found that actual receipt by the lessor of the notice had been proven which was sufficient for its purposes even if the posting of the notice of renewal of the option to the post office box was not.

However, as I have indicated, I do not consider I need to reach a final view on these matters.

The application of s 93K(4)(c)(i): whether written notice was given to the third defendants

There were two ways in which it might be contended that written notice was given to the worker by giving that notice to his duly authorised agent for the purposes of WCIM Act s 93K(4)(c)(i). One is through Interpretation Act s 75(1) as it might be said to apply to the posting of the Sputore letter of 13 December 2007 to the third defendants' Booragoon post office box. The other is by their actual receipt of that letter. For reasons I will provide below, I do not deal with that latter way in this section of my reasons.
On the preliminary view expressed in the previous section of my reasons, and to the extent there is a necessity in respect of use of a post office box to find a specific or general request to send correspondence to that post office box (Polstar [22]), I consider it is to be found in the showing of the Booragoon post office box address on the third defendants' letterhead. This showing is throughout the chain of correspondence I have referred to, including most notably the last letter from the third defendants to the office of the second defendant prior to the Sputore letter of 13 December 2007, being the third defendants' letter of 6 December 2007 providing the Form 34. This would in my view meet the standard for 'last known address' referred to in Drake v Stanton [1999] FCA 1635 (to which counsel for the plaintiff drew my attention) as an address that had been made known by the plaintiff's duly authorised agent.
It is true there were here two post office box addresses shown on the third defendants' letterhead, one in Booragoon and one in Gosnells, and the office of the second defendant had used both in previous correspondence (although with an apparent error as to the post code for the Booragoon post office address in the Whitford-Harvey letter of 30 April 2007), as I have indicated. There are also two building addresses, one in Booragoon, which the office of the second defendant had also used, and one in Gosnells, which it appears that office had not used. However, it seems to me an addressee has been requested to choose one of them for communication to the plaintiff's duly authorised agent, subject to any further instruction in the correspondence in question. There was no such instruction, in my view.
Further, it seems to me this did not prevent the Director using the plaintiff's residential address, which as counsel for the plaintiff reminded me appeared on the Form 34.
It appears to me that the fact there are multiple addresses provided for a person does not prevent each of them from being 'the last known address' of that person for the purposes of Interpretation Act s 75(1).
It is my preliminary view, then, that written notice was by virtue of Interpretation Act s 75(1) given to the plaintiff for the purposes of WCIM Act s 93K(4)(c)(i) through the posting of the Sputore letter of 13 December 2007 to the Booragoon post office box of the third defendants and the unfolding of the ordinary course of post referred to in s 75(1), in the absence of any proof to the contrary. It was not suggested there was any evidence capable of founding such proof in this case.
However, I stress that this conclusion is a preliminary one, dependent in significant part on my preliminary view with respect to the answers to the two preceding questions of construction of WCIM Act s 93K(1)(4)(c)(i). In any event it is not necessary for me to express a final view of the matter.

The construction of s 93K(4)(c)(i): whether any method sufficient which brings the notice to the attention of the worker

There is strong authority to support the view Interpretation Act s 75 and s 76 should not be construed as an exhaustive statement of the ways in which a written notice may be given for the purposes of WCIM Act s 93K(1)(4)(c)(i), and that that provision should be construed in the way indicated in the heading.
That authority includes Hope v Hope (1854) 4 De G M & G 328; Pino v Prosser [1967] VR 835; Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; and Italiano v Carbone [2005] NSWCA 177, to all of which reference is made in Polstar. In that case, after it had been determined that service had not been properly effected by posting to the Green Valley post office box, the following appears, at [24] ‑ [26]:
These conclusions do not mean that the statutory demand was never served. The evidence shows that, as a result of the posting effected by the defendant's solicitors, the statutory demand came into the actual possession of Ms Ursino who, since 14 September 2003, had been the sole director of the plaintiff. Despatch of the document by post to the Green Valley post office box by the defendant's solicitors thus caused the statutory demand to come into the possession of the person who was, at the time, the guiding mind and will of the plaintiff company. Furthermore, that person caused that company to take action in relation to the statutory demand consistent with an acceptance of its having been served. The plaintiff made an application for an order setting aside the statutory demand. Such an application is available, in terms of s 459G(1) only in relation to 'a statutory demand served on the company'. Where a company contends that a statutory demand cannot form the basis for a presumption of insolvency because it was not served, the appropriate course is to seek declaratory relief, not an order setting the demand aside: Emhill Pty Ltd v Bonsoc Pty Ltd(2004) 50 ACSR 305.
The factual matters referred to in the immediately preceding paragraph mean that there was 'informal service' on the plaintiff company. This is because the document actually reached the sole director of the plaintiff and she dealt with it on the footing that it was a statutory demand duly served on the plaintiff. The relevant principles, as they emerge from a number of cases, are discussed in the judgment of Basten JA in Italiano … at [58] to [61]:
'A similar issue was addressed by McInerney J in the Supreme Court of Victoria in Pino …. The case involved service of a writ, requiring personal service on the husband, by handing a copy to his wife, who handed it to him on the same evening. When, two days later, the process server returned to the house to recover the writ so as to effect personal service on the husband, he was told by the wife that her husband was not at home and had taken the writ to his solicitor. McInerney J noted authority for the proposition that "service on the wife, or a known agent of the defendant is not good service": Ibid at 837 (30). His Honour continued:
"If that passage correctly states the law, the conclusion is, on the facts of this case, remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ on 28 March from his wife and instructed his solicitors on 10 April, should be held not to have been served."
His Honour referred to a comment by the Lord Chancellor in Hope … at 342 to the following effect:
"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 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, every has been done that is required."
Following that, and other authority, his Honour was satisfied that, the writ having come into the possession of the defendant on the day on which it was given to his wife, there had been good personal service.
In Guss v Magistrate's Court at Victoria [2003] VSC 365, Osborn J considered a challenge to the valid service of a summons to answer a charge. The summons had not, as required by s 34 of the Magistrate's Court Act 1989 (Vic) been delivered to the defendant personally, nor had a true copy been left at the 'most usual place of residence or of business' with a person apparently not less than 16 years of age. The business address at which the summons had in fact been left was the address of a corporation of which the plaintiff was not a director and which did not satisfy the statutory description. Nevertheless, he agreed in cross‑examination that he had been notified of receipt of the copy of the summons and had received a copy some days later. In following Pino, his Honour noted at [14]:
"It is perhaps a tribute to the plaintiff's determination to avoid a hearing on the merits that it appears that no court has previously been faced with the argument that despite sworn evidence that a person in fact received delivery of a summons left for him nevertheless such summons was not served in accordance with the Act and its predecessors."
A similar conclusion was accepted by Young J in Howship…. The defendants had sought a declaration that a summons had not been duly served on them in circumstances where, although they had received it, the mechanism by which it had come to their attention was by lodgement in a document exchange box. His Honour held (at 544B):
"The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope … Pino v..."
This approach was recently followed by Barrett J in Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252 at [16]–[18]. His Honour noted that a similar approach had been adopted in relation to service by facsimile transmission in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140 and Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305. The latter case, a decision of Mandie J in the Supreme Court of Victoria, was, in a sense, the reverse of the present case in that proof of service upon a director was found to be proof of service on the company. At [28] his Honour noted:
"Of course, proof of service of a document upon one director will not necessarily constitute proof that the document has actually come to the attention of the company of which he or she is a director. But in the present case Mr Cook is the sole director and secretary (and indeed shareholder) of the plaintiff company, and thus he is that company's directing mind and will. Not only did service of the document upon Mr Cook of necessity bring the document to the actual attention of the plaintiff company, but the evidence here is that Mr Cook expressly accepted service of the statutory demand on behalf of the plaintiff."'
The last passage quoted in this extract, being a passage in the judgment of Mandie J in Emhill Pty Ltd v Bonsoc Pty Ltd (above), applies with particular force to the present case.
In respect of Corporations Act s 109X, to which I previously referred, it is well established (by authority on its predecessor provision, Corporations Law s 109X) that it does not 'purport to be an exclusive code'. This conclusion has been rested on s 109X(6): see Biotech International Ltd v Peptech Ltd [2000] WASC 120 [37] (Owen J), referring to Howship.
Corporations Act s 109X(6) provides as follows:
This section does not affect:
(a)any other provision of this Act, or any provision of another law, that permits; or
(b)the power of a court to authorise;
a document to be served in a different way.
There is no equivalent provision in Interpretation Act s 76, which is a counterpart to the federal section. However, in my view that provision does no more than restate what would appear to hold for Interpretation Act s 76 in any event: see s 3(1)(a) and (b). Indeed in Howship there appears to be no emphasis laid on the subsection, in the following passage from 544 (Young J):
Mr Archer, who appeared for the defendants, put that s 109X of the Corporations Law which deals with service is a code and that as there had been no service within the meaning of s 109X (or in accordance with the personal service provisions of the Supreme Court Rules) there had been no service at all. However, s 109X is facultative, it is not mandatory. It will be noted that the words used in subs (1) are 'may be served'. Indeed the Drinkwater [Re Drinkwater (1929) 46 WN (NSW) 202] rule shows that s 109X could not constitute a code for service. The document could have been served under s 109X, but the mere fact that it has not been does not disqualify it from service if the document came into the possession of the addressee.
In any event, in my view it is apparent that Interpretation Act s 76 is facultative, not exclusive or mandatory. Not only does s 76 use 'may' (see Howship 544, above), which tends to even if it does not compel such a conclusion, but also the provision does not clearly allow for such forms of electronic transmission of information in writing as facsimile or email transmission. It seems unlikely in the extreme that the legislature intended not to allow for such means of making a person aware of information in writing.
With respect to the effectiveness of service by facsimile transmission in the context of Corporations Act s 109X, I note the following in Biotech [38], [39] (Owen J):
The next question is whether the document was served by a means other than those provided for in s 109X. The argument advanced by the defendant is that the notice was effectively served by the facsimile transmission of 20 April 2000. There is no dispute that a facsimile transmission can be good service. Young J held it to be so in Howship Holdings. Decisions to the same effect include Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531; 139 ALR 527; 21 ACSR 474 and NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26 ; 7 ACSR 105.
In Bank Leumi the Full Court of the Federal Court held that the giving of a secondary notice under s 717 by facsimile transmission was effective. Lehane J, with whom Lockhart and Foster JJ agreed, made it clear, at NSWLR 550, that time limits and obligations consequent on the giving of notice are enlivened, when the notice is given by fax, only upon the actual receipt of the notice in full and legible form. This is in accord with the views expressed by Young J in Howship Holdings that the document in question must come to the notice of the person for whom it is intended. There would be little point in insisting on the fax being 'full and legible' if, regardless of whether anyone actually saw it or tried to read it, mere arrival at the receiving facsimile machine completed the act of service
I further note the view taken of Acts Interpretation Act s 28A, which I also referred to above, that it like Corporations Act s 109X is not exclusive or mandatory: see Polstar [16]. However, I also note there is a counterpart to s 109X(6) in Acts Interpretation Act s 28A(2).
Further, in my view the matter is even clearer in respect of Interpretation Act s 75(1). That provision establishes the conditions for the deemed service it describes. It does not on its face prevent the establishment of service by post in some other way.
Therefore, in my view WCIM Act s 93K(4)(c)(i) should be construed so that it is sufficient the Director take steps of whatsoever kind which bring the contents of the written notice to the attention of the person to be notified.

The application of s 93K(4)(c)(i): whether written notice was given to the plaintiff personally

On the construction of WCIM Act s 93K(4)(c)(i) that I have indicated in the previous section of these reasons I would adopt it seems to me that it is apparent that written notice was given to the plaintiff personally in this case. Indeed that conclusion would also follow, on the same construction, if the provision extended to written notice to the plaintiff's duly authorised agent, on the preliminary view I described earlier. However, I do not consider I need to pursue that aspect of the matter.
It is not in question as I have already noted that the plaintiff received the written notice of the Director for the purposes of WCIM Act s 93K(4)(c)(i) from the third defendants who received it as a result of the Sputore letter of 13 December 2007. I have referred to a number of authorities where, notwithstanding the failure of the notifying or serving party to follow the steps provided for effective notification or service in the governing law or instrument, the notification or service was effective, because as a result of the steps taken the writing in question came to the person to be notified or served. See principally among them Young; Polstar; Howship; and Grayprop. Those authorities in my view clearly establish the sufficiency of the giving of written notification for the purposes of WCIM Act s 93K(4)(c)(i) in this case.
I note that neither party called upon me to determine the date at which the Sputore letter of 13 December 2007 was received by the plaintiff from the third defendants. I understood that was because it was accepted, if such reception completed the giving of written notice for the purposes of WCIM Act s 93K(4)(c)(i), as I have determined it did, the date of the giving of that notice fell more than 30 days before the commencement of the District Court proceedings.
I note again from the Bradley affidavit of 16 April 2008 [2(i)] that the plaintiff informed him the third defendants' letter of 19 December 2007 reached him 'in the course of the post'. Were it necessary to do so, I would find the date of the giving of the written notice for the purposes of WCIM Act s 93K(4)(c)(i) to be the date when 'in the course of post' it would have been received by the plaintiff: Polstar [30]. That of course is not the date of registration under s 93K(4)(b) of the election under s 93K(4)(a). The date I would so find could not on any view I am able to take of the matter fall within 30 days of the days of dated of the commencement of the District Court proceedings, namely, 21 February 2008.

Whether the plaintiff waived any right he had to receive written notification personally

This was contended for by the counsel for the first defendant on the basis of Commonwealth v Verwayen (1990) 170 CLR 394, 404 ‑ 406 (Mason CJ), 424 ‑ 426 (Brennan J), 456 ‑ 458 (Dawson J), 468 ‑ 469 (Toohey J), 486 ‑ 487 (Gaudron J) and 496 ‑ 498 (McHugh J) and Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, 1016. The principle referred to in those authorities is that a person may by reason of their conduct waive, renounce or be prevented from asserting a statutory right, where that statutory right is not one conferred on them for reasons of public policy. Any right to receive written notification by post at a personal address for the worker would not in my view be capable of description in those last terms, and so the principle would seem capable of application in this case.
As I understood the argument for the first defendant, there was such conduct by the plaintiff here, which may be inferred from the facts that every communication on behalf of the plaintiff from 6 September 2006 was made by the third defendants and every communication to the plaintiff from that time was received by the third defendants without any intervention by the plaintiff, and with evidence (in the Form 35 of 30 November 2006 signed by him) of action taken by him to assist those communications to go forward. I was particularly asked to note that the third defendants' letter of 6 December 2007 specifically referred to the Form 34 as completed by them on behalf of the plaintiff, and that letter bore the legend 'cc Client'.
For the plaintiff it was contended there could be no question of the principle operating here, where it was not shown the plaintiff was aware of any such right at any material time.
However, I do not consider I need to enter further into the matter, in view of my conclusion in the previous section of my reasons.

Orders

It follows that I would dismiss the plaintiff's application for a declaration and grant the first defendant's application for a declaration.
I will hear from the parties as to the further orders to be made, including the order or orders as to costs, to give effect to these reasons.