Peake v WorkCover Queensland

[2024] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

Peake v WorkCover Queensland [2024] QCA 38

PARTIES:

JASON DEREK PEAKE
(appellant)
v
WORKCOVER QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 13234 of 2023
SC No 8434 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 22 September 2023 (Crowley J)

DELIVERED ON:

22 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2024

JUDGES:

Bond and Boddice JJA and Burns J

ORDERS:

1.   The appeal be dismissed.

2.   The appellant pay the respondent’s costs of the appeal, to be assessed on the standard basis.

CATCHWORDS:

WORKERS’ COMPENSATION – INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where the primary judge dismissed the appellant’s application for a declaration that a notice of claim for damages was a complying notice of claim pursuant to s 278(4) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the primary judge erred in the proper construction of s 278(2)(d) – whether the notice of non-compliance issued by the respondent, pursuant to s 278(2), was invalid because it failed to allow for non-compliance to be remedied – whether it was open to the primary judge to conclude that the written notice, given to the appellant by the respondent, was not invalid for non-compliance with s 278(2)(d)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 275, s 278, s 278(2), s 278(3), s 278(4)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, applied

COUNSEL:

G W Diehm KC for the appellant
R M Treston KC, with A S Mellick, for the respondent

SOLICITORS:

Turner Freeman Lawyers for the appellant
BT Lawyers for the respondent

1. BOND JA:  I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.

2. BODDICE JA: On 22 September 2023, the primary judge dismissed the appellant’s application for a declaration that a notice of claim for damages given to the respondent on 29 December 2022, was a complying notice of claim pursuant to s 278(4) of the Workers’ Compensation and Rehabilitation Act2003 (Qld) (“the WCRA”).

3. The appellant appeals that dismissal. At issue is whether the notice issued by the respondent, pursuant to s 278(2) of the WCRA, was invalid because it did not, by its terms, allow the appellant to address an alleged non-compliance, by satisfying the respondent that he had complied with the notice of claim requirements.

   Facts

4. On 25 February 2019, the appellant was working for Energex Limited as a high voltage linesman.

5. In his notice of claim, given on 29 December 2022, the appellant claimed to have suffered injuries to his spine and shoulder, as well as a psychiatric injury and a traumatic brain injury as a consequence of an object falling from above and striking him on the head and shoulder, whilst undertaking his duties of employment on 25 February 2019.

6. On 31 December 2022, the respondent gave the appellant written notice confirming receipt of the notice of claim for an injury allegedly sustained on 25 February 2019.

7. In that written notice, under the heading “Compliance”, there appeared the following:

   “We confirm pursuant to s 278 of the WCRA that:

   (1)The Notice of Claim is not compliant because:

   (a)Your client has not provided details of earnings for the period 1 July [2021] to date;

   (b)Your client has not disclosed his Income Tax Notice of Assessment, Individual Tax Return or Income [Statement] for the 2022 financial year;

   (c)Your client has not disclosed [documents] evidencing earnings or receipt of benefits from 1 July 2022 to date.

   (2)WorkCover does not waive the non-compliance;

   (3)WorkCover requires your client to address the non-compliance within 20 business days by:

   (a)Providing a further response to question 52 by way of statutory declaration;

   (b)Providing copies of the documents identified at paragraph 1(b).”[1]

   [1]AB 163.

   Legislative regime

8. Under the WCRA a claimant must, before starting a proceeding in a court for damages, give notice under s 275 of the WCRA within a specified period. The notice must be in the approved form and be given to the insurer, or if the worker’s employer is not a self-insurer, to the worker’s employer. The notice must also contain specified particulars.

9. An insurer, given a notice of claim under the WCRA, is required to respond pursuant to s 278 of the WCRA. It is in the following terms:

   “(1)This section applies if a notice of claim is given to an insurer.

   (2)The insurer must, within 10 business days after receiving the notice, give the claimant written notice—

   (a)stating whether the insurer is satisfied that the notice of claim is a complying notice of claim; and

   (b)if there is an urgent need to start a proceeding—stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276; and

   (c)if the insurer is not so satisfied—identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and

   (d)if the insurer does not waive compliance with the requirements—allowing the claimant a reasonable period of at least 10 business days either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance; and

   (e)stating whether the insurer is prepared, without admitting liability on the claim, to meet the cost of the claimant’s reasonable and appropriate rehabilitation.

   (3)If the insurer is not prepared to waive compliance with the requirements in the first instance, the insurer must, within 10 business days after the end of the period specified in subsection (2)(d), give the claimant written notice stating that—

   (a)the insurer—

   (i)      is satisfied the claimant has complied with the relevant requirements; or

   (ii)     is satisfied with the action taken by the claimant to remedy the noncompliance; or

   (iii)     waives the noncompliance; or

   (b)the insurer is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, with full particulars of the noncompliance and the claimant’s failure to remedy it.

   (4)If the insurer does not give the written notice mentioned in subsection (2) within 10 business days after receiving the notice of claim, the notice of claim is taken to be a complying notice of claim.

   (5)The insurer must, within 5 business days after receiving a complying notice of claim or waiving noncompliance with the requirements of section 275, advise the employer or employers against whom negligence is alleged.”

   Primary decision

10. The primary judge identified the critical issue for consideration on the application as what, on its proper construction, s 278(2)(d) requires for written notice responding to a notice of claim given to an insurer.

11. After recording that the appellant’s submission below was that both parts of the composite phrase are required to be specified in the notice, the primary judge held that s 278(2)(d) did not prescribe “any invitation, offer or options for a response to the insurer’s preliminary view that must be stated in the written notice such that the failure to refer to both parts of that composite phrase in s 278(2)(d) renders the notice invalid or non-compliant”.[2]

    [2]AB 14/41-44.

12. In reaching that conclusion, the primary judge noted that sub-s (d) did not expressly employ the word “stating”; it used the word “allowing”. Further, the purpose of s 278(2)(d) was to put the claimant on notice that the insurer’s preliminary view was the claim was not accepted because it was not compliant and to identify why that view had been reached. If a claimant believed that he or she had complied, that was a response that could be provided to the insurer.

13. Finally, the primary judge found that it would not advance the purpose or object of the legislative provision to require those matters to be expressly stated in the notice and there was no contrary interpretation in s 278(3) when read as a whole.

    Consideration

14. The principles for construction of a statute are not in dispute. The construction is to be informed by a plain reading of the words of the legislative provision, in the context of a reading of the WCRA as a whole, having regard to its purpose and language.[3]

    [3]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69].

15. The appellant submits that a consideration of the context and purpose of the court procedures in Part 5 of the WCRA, supports a conclusion that the plain reading of the words in s 278 required the respondent, in order to comply with s 278(2)(d) of the WCRA, to specify that the relevant period given was either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the non-compliance.

16. However, a consideration of the words contained in s 278, in the context of the purpose of the WCRA and a reading of the provisions as a whole, supports a conclusion that the primary judge’s interpretation was correct.

17. First, that interpretation is consistent with a plain and ordinary meaning of the words used in s 278(2) of the WCRA. Relevantly, those words require the insurer to give the claimant written notice “stating” whether the insurer is satisfied that the notice is a complying notice of claim and, if not so satisfied, “identifying” the non-compliance and “stating” whether the insurer waives compliance with the requirements. Further, in the event the insurer does not waive compliance, “allowing” the claimant a reasonable period of at least 10 business days, either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the non-compliance.

18. Nothing in the words of s 278(2) requires the “allowing” of that reasonable period to either satisfy the insurer of compliance or to take reasonable action, to be stated in those express terms.

19. Second, that interpretation is consistent with a reading of the WCRA as a whole, including the provisions in ss 297 and 298, which allow for a claimant to seek a declaration from the court about non-compliance of a notice of claim, or to seek the leave of the court to commence a proceeding not withstanding non-compliance.

20. Third, an interpretation which required the written notice to expressly state those matters in those terms is inconsistent with the object of Part 5 of the WCRA which is to “facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”.[4] It is also inconsistent with the requirements under s 274 that Part 5 be applied by the parties “to avoid undue delay, expense and technicality and to facilitate the object”.[5]

    [4]Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 273.

    [5]Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 274(1).

21. Once it is concluded that the written notice required to be given by the insurer under s 278 does not require a specific statement that the claimant is allowed the specified period “either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance”,[6] it was open to the primary judge to conclude that the written notice, given to the appellant, was not invalid for non-compliance with s 278(2)(d) of the WCRA.

    [6]Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 278(2)(d).

22. A proper reading of that written notice establishes that the respondent, as required under s 278:

    (a)stated, as required by sub-s (a), whether the insurer was satisfied that the notice of claim was a complying notice of claim;

    (b)identified, as required by sub-s (c), the non-compliance and stated whether the insurer waived compliance with the requirements; and

    (c)allowed the claimant a reasonable period of at least 10 business days (20 business days was specified), either to satisfy the insurer that the claimant had complied with the requirements or to take reasonable action to render the non-compliance.  The express statement that the notice was not compliant allowed for a response by the complainant to the contrary.

23. That conclusion particularly follows from the fact that the letter not only stated that the insurer was not satisfied that the notice of claim was a complying notice of claim and that it did not waive that non-compliance, it stated that those matters were made “pursuant to s 278 of the WCRA”.[7]

    [7]AB 163.

    Conclusion

24. There was no error of law, in the construction of s 278 of the WCRA.

    Orders

25. I would order:

    1.   The appeal be dismissed.

    2.   The appellant pay the respondent’s costs of the appeal, to be assessed on the standard basis.

26. BURNS J:  I agree with Boddice JA.