Quartuccio v The State of South Australia - [2013] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
QUARTUCCIO v THE STATE OF SOUTH AUSTRALIA
[2013] SASC 167
Judgment of The Honourable Justice Stanley
8 November 2013
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - GENERALLY
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
Application for judicial review.
The application seeks review of a purported determination by the defendant made pursuant to s 53 of the Workers Rehabilitation and Commpensation Act 1986 (SA) ("the Act") of 11 October 2011 to reject her claim for compensation and a declaration that the purported determination is void.
The basis of the application is the plaintiff's contention that the purported determination of 11 October 2011 is void because the defendant had previously made a determination accepting her claim for compensation by letter dated 13 September 2011.
The issue on the application is whether the defendant determined the plaintiff's claim for compensation by the letter of 13 September 2011. The defendant submits that the letter of 13 September 2011 was issued by mistake. It was not a determination to accept the plaintiff's claim for compensation pursaunt to s 53 of the Act.
Held:
1. The letter of 13 September 2013 constituted a determination by the defendant of the plaintiff's claim for compensation. [41].
2. Section 53(5) of the Workers Rehabilitation and Compensation Act 1986 (SA) can be construed by characterising the letter as the determination. By sending the letter to the plaintiff, the defendant gave the plaintiff notice in writing of the determination. [41].
Workers Rehabilitation and Compensation Act 1986 (SA) s 2, s 30, s 32, s 32A, s 34, s 35, s 43, s 43A, s 43B, s 44, s 45A, s 45B, s 45C, s 50B, s 50G, s 51, s 52, s 53, s 61, s 89A, s 90, s 90A, s 97, Part 4, Part 6A, referred to.
Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131; Workers' Rehabilitation and Compensation Authority v Thuy Thi Vu (1988) 49 SASR 585, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Determination"

QUARTUCCIO v THE STATE OF SOUTH AUSTRALIA
[2013] SASC 167
Civil
STANLEY J
Introduction

This is an application for judicial review.
The application seeks review of a purported determination by the defendant made pursuant to s 53 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”) of 11 October 2011 to reject her claim for compensation pursuant to the Act and a declaration that the purported determination is void.
The basis of the application is the plaintiff’s contention that the purported determination of 11 October 2011 is void because the defendant had previously made a determination accepting her claim for compensation by letter dated 13 September 2011.
The issue on the application is whether the defendant determined the plaintiff’s claim for compensation by the letter of 13 September 2011.
The application for judicial review was out of time. The plaintiff applied for an extension of time. There was no opposition to an extension of time which Sulan J granted on 30 August 2013.
The facts
Since July 2010 the plaintiff has been employed by the defendant in the Child and Family Health Service. On 1 August 2011 she submitted a claim for compensation pursuant to s 52 of the Act. On 15 August 2011 the defendant wrote to the plaintiff advising her that it had been unable to determine her claim within seven calendar days of its notification and, accordingly, it had determined to accept her claim on a provisional basis pursuant to s 50B and/or s 32A of the Act.
On 13 September 2011 the defendant wrote to the plaintiff. Given the significance of this letter to the outcome of the application for judicial review, I set out its contents in full:
Dear Ms Quartuccio
Date of Injury:               4 April, 2011
Nature of Disability:        Adjustment disorder with anxious / depressed mood
Claim Number:               104830/01
SA Health is a self insured employer within the meaning of the Workers Rehabilitation and Compensation Act, 1986 as amended (“the Act”) and has delegated powers pursuant to Section 61 of the Act.
The claim referred to above has been accepted as a compensable disability and you have received weekly payments pursuant to section 35 of the Act.
You commenced receiving weekly payments in respect to incapacity sustained by you as of 1 August, 2011.
You have accordingly received weekly payments, which will in 14 days’ time constitute an aggregate period of 13 weeks. This is based on an assumption as to the further incapacity that you will sustain during the notice period referred to, namely 14 days from the date of this notice.
Pursuant to section 35 of the Act, a worker is entitled to weekly payments during the first entitlement period, namely incapacity for an aggregate period not exceeding 13 weeks equal to 100% of their notional weekly earnings for any period where the worker has no current work capacity and 100% of the difference between the worker’s notional weekly earnings and the worker’s designated weekly earnings for any period when the worker has a current work capacity.
As of 31 October, 2011 your aggregate period of entitlement based on your incapacity to date will exceed 13 weeks. Accordingly for any further period of incapacity after that date, and pursuant to section 36(2)(d) of the Act, your entitlement to weekly payments will be reduced to 90% of your notional weekly earnings for any period where you have no current work capacity or 90% of the difference between your notional weekly earnings where you have a current work capacity.
Your weekly payments will accordingly reduce as follows:
Notional weekly earnings:     $1409.79
90% of your earnings          $1268.81
If any of the circumstances mentioned above change so as to affect the date from which your weekly payments can be reduced, please contact me to discuss this. For example, if in any week between the date of this decision and the date the decision takes effect you do not have an entitlement to compensation on account of your incapacity the reduction may be delayed. Please advise us of this type of change immediately so that we may amend your entitlement accordingly.
Pursuant to sections 90 and 90A of the Act, you are entitled to dispute this reviewable decision by lodging a Notice of Dispute with the Workers Compensation Tribunal. Such Notice of Dispute must be made in the prescribed manner and form and in accordance with the Regulations. A Notice of Dispute must be lodged within one month of the date that you receive this decision, unless the Workers Compensation Tribunal allows an extension of time pursuant to the provisions of section 90A.
A Notice of Dispute may be lodged by delivering or posting the said Notice of Disupte to the Workers Compensation Tribunal, Level 6, Riverside Centre, North Terrace, Adelaide SA 5000.
If you have any questions regarding this letter, please call the undersigned.
Yours Sincerely,
[Signed].
On 11 October 2011 the defendant wrote to the plaintiff advising that it had completed its investigation into her claim and on the basis of those investigations her claim for compensation was rejected.
On 18 October 2011 the plaintiff’s solicitors wrote to the defendant challenging the defendant’s purported determination of 11 October 2011 and asserting that it was unlawful and invalid because the plaintiff’s claim had been previously accepted by the defendant by its determination of 13 September 2011.
The Legislation
The Act provides a scheme for the payment of compensation benefits to workers who suffer compensable disability arising from employment.[1] The objects of the Act are set out in s 2. These include the reduction of litigation and adversarial contests to the greatest possible extent. Part 4 of the Act prescribes rights to claim compensation for medical expenses,[2] property damage,[3] income maintenance,[4] lump sums for non-economic loss,[5] and weekly payments,[6] lump sums,[7] funeral benefits[8] and counselling services[9] where workers die as a result of a compensable disability.
[1] Section 30 of the Act.
[2] Section 32 of the Act.
[3] Section 34 of the Act.
[4] Section 35 of the Act.
[5] Section 43 of the Act.
[6] Section 44 of the Act.
[7] Section 45A of the Act.
[8] Section 45B of the Act.
[9] Section 45C of the Act.
Compensation is payable by the compensating authority, which under the Act, is either the WorkCover Corporation (“the Corporation”) or a self-insured employer. Pursuant to s 61(1) of the Act the defendant is deemed to be registered as a self‑insured employer under the Act.
Division 8 of Part 4 of the Act prescribes a scheme for making claims for compensation. Section 51 provides for the giving of notice of injury by a worker. Section 52 provides for the making of a claim. It imposes a requirement that a claim for compensation must include prescribed information. It confers power on the compensating authority to obtain information relevant to the determination of a claim from an employer. Section 53 of the Act provides for the determination of claims. It empowers the compensating authority to make investigations and inquiries for that purpose. These powers include the ability of the compensating authority to require a worker to submit to an expert medical examination. It empowers the compensating authority to reject a claim where a worker fails to furnish information reasonably required by the compensating authority or to submit to a medical examination. Section 53(4) requires the compensating authority to determine claims for compensation as expeditiously as reasonably practicable. Section 53(5) provides that as soon as practicable after determining a claim for compensation the compensating authority should give notice in writing of the determination. Section 53(6) requires that where a claim is rejected, the notice must inform the claimant of the grounds of rejection and his or her review rights. Section 53(7) provides that the compensating authority may re-determine a claim in an appropriate case. Section 53(7a) provides, inter alia, that appropriate cases include where:
…
(b)     the claimant deliberately withheld information that should have been supplied to the Corporation and the original determination was, in consequence, based on inadequate information; or
(c)     the redetermination is appropriate by reason of new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made; or
…
(d)     the original determination was made as the result of an administrative error and the redetermination is made within two weeks of the making of the original determination; or
…
Section 50A to s 50I provide for the making of provisional payments of compensation to a worker pending the determination of a worker’s claim.
Part 6A of the Act prescribes a scheme by which disputes in relation to a determination made pursuant to, inter alia, s 53 are resolved by the Workers Compensation Tribunal. Section 89A of the Act defines those decisions which are reviewable pursuant to the scheme of dispute resolution established by Part 6A. A determination of a claim for compensation pursuant to s 53 is a decision within the meaning of s 89A and therefore Part 6A.
Submissions of the parties
The plaintiff contends that the letter to her from the defendant dated 13 September 2011 constituted the determination of her claim pursuant to s 53 of the Act. A “determination” for the purpose of s 53 is a decision about a worker’s entitlement made by the compensating authority as expeditiously as reasonably practicable and communicated in writing. Beyond the requirement that it be in writing the determination is not required to be in any particular form. It is sufficient for the written notice of the determination to convey the compensating authority’s decision as to the worker’s entitlement to compensation. In this case the determination was made when the letter of 13 September 2011 was signed. In conformity with the terms of s 53(5) the letter was then sent to the worker giving her notice in writing of the determination. The plaintiff submits that the terms of s 53(7a)(d) contraindicates any suggestion that where a notice of purported determination results from an administrative error there is no determination for the purposes of s 53. If that were so the provision providing for redetermination in circumstances where the original determination was made as a result of an administrative error would be rendered otiose.
The defendant submits that the letter of 13 September 2011 sent to the plaintiff mistakenly referred to a determination having been made in her favour. In fact, no determination had been made at that time. The misstatement in the letter cannot prevail over the requirements of the Act which obliges the compensating authority to make a determination of a claim for compensation. That did not occur in this case prior to 11 October 2011, when the defendant made a determination rejecting the plaintiff’s claim. The Act requires that the determination of a claim involves more than the mere sending of correspondence. It requires the decision‑maker to arrive at a mental state of satisfaction about the appropriate resolution of a claim. This approach does not render otiose the capacity of the compensating authority to re-determine a claim where the original determination was made as the result of administrative error. It is easy to envisage circumstances where a determination, in the sense of a decision being made, may be flawed by virtue of administrative error. Section 53(7a)(d) can only operate where there has been an original determination. In this case there was no decision constituting a determination within the meaning of s 53 until 11 October 2011.
Consideration
This application gives rise to a difficult question of construction.
The High Court has restated the relevant principles of statutory construction most recently in Certain Lloyd’s Underwriters v Cross.[10]The objective of statutory construction is the ascertainment of the legislature’s intention. The starting point is a consideration of the text viewed as a whole. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text, but such materials may elucidate the meaning of the text. Accordingly, the meaning of the text may be determined having regard to matters of context, including the general purpose and policy of a provision, and the mischief it seeks to remedy. Occasionally the meaning the legislature intended will not correspond with the grammatical meaning of the provision. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of the statutory provision to be read in a way which does not correspond with the literal or grammatical meaning.
[10] [2012] HCA 56, (2012) 87 ALJR 131 per French CJ and Hayne J at [23] – [32], Crennan and Bell JJ at [68] – [70] and Kiefel J at [88] – [89].
The evidence establishes that as at 13 September 2011 the person responsible for managing and determining the plaintiff’s claim for compensation had not made a decision to accept or reject the plaintiff’s claim. It was not until 11 October 2011 that she decided to reject the plaintiff’s claim.[11]
[11] Affidavit of Kathryn Jean Flanegan sworn 20 September 2013.
Nonetheless, on 13 September 2011, the defendant gave notice to the plaintiff of a purported determination accepting the plaintiff’s claim.
The letter of 13 September 2011 exhibits all the features of a valid determination to accept a claim pursuant to s 53. It refers to the change to the quantum of weekly payments that will occur if and when the worker’s incapacity exceeds 13 weeks. It refers to the provisions of s 90 and s 90A of the Act and advises the plaintiff that she is entitled to dispute “this reviewable decision” by lodging a notice of dispute with the Workers Compensation Tribunal.
Yet the terms of s 53(5) provide that the determination of a claim for compensation by the compensating authority must precede the giving of notice of that determination to a claimant and to any employer who may be directly affected. This points strongly to the conclusion that the determination and the notice of the determination are separate and distinct.
While logic and the terms of s 53(5) supports the defendant’s submission that the letter of 13 September 2011, giving notice of a determination that had not in fact been made, cannot constitute the determination as a matter of law, I am persuaded that this is not the correct conclusion. I reach this conclusion on the basis of previous authority of the Full Court and a consideration of the scheme and purpose of the Act and its practical operation.
In Workers’ Rehabilitation and Compensation Corporation v Thuy Thi Vu,[12] Prior J, with whom White and Cox JJ agreed, appeared to equate the letter from the Corporation giving notice of a determination pursuant to s 53 with the determination itself. At that time s 53(5) was in precisely the same terms as it is now. Prior J cited with approval the reasoning of the Workers Compensation Appeal Tribunal to the effect that the letter of notice constituted the determination pursuant to s 53.[13] Prior J went on to agree with submissions put to the Full Court by counsel for the Corporation that, by its letter notifying the worker of its determination, the Corporation made a determination of a claim.[14]
[12] (1988) 49 SASR 585.
[13] (1988) 49 SASR 585 at 590.
[14] (1988) 49 SASR 585 at 591.
The scheme and purpose of the Act depends upon certainty as to the making of a determination. For example, the operation of s 32A(1), s 50G(2), s 52(3), s 53(7a)(d) and s 97 of the Act and Clause 10 of Schedule 1 of the Transitional Provisions of the Scheme Review Amending Act[15] all depend upon the making of a determination pursuant to s 53.
[15] Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA).
Section 32A(1) provides:
A worker may, by application made to the Corporation in the designated manner and the designated form, apply to the Corporation for the payment of costs within the ambit of section 32 before the determination of a claim under Division 8.
The application contemplated by s 32A(1) must be made before the determination of the worker’s claim pursuant to s 53. If the determination, for the purposes of this provision is not the notice required by s 53(5), the worker cannot know whether a determination has been made which would preclude the worker from bringing the application.
Section 50G(2) provides:
If the period for making payment of provisional weekly payments ends before the determination of a claim under Division 8, an employer or the Corporation may (but need not), subject to any provision made by the Provisional Payment Guidelines, continue to make weekly payments under this Division until the determination of the claim or until otherwise determined by the employer or the Corporation (before the determination of the claim).
If the determination for the purposes of this provision is not the notice required by s 53(5), neither the worker or an affected employer will know whether there has been a determination of the claim pursuant to s 53.

Section 52(3) provides:
(3) Notwithstanding subsections (1) and (2)—
(a) the absence of, or a defect in, a notice of injury is not a bar to the making of a claim if—
(i) the proper determination of the claim has not been substantially prejudiced; or
(ii) the failure to give the notice, or the defect in the notice, was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause; and
(b) a failure to make a claim within the prescribed period is not a bar to the making of a claim if—
(i)the proper determination of the claim has not been substantially prejudiced; or
(ii)the failure to make the claim within the prescribed period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause.
If the determination for the purposes of this provision is not the notice required by s 53(5), neither the worker, an affected employer or the Tribunal will be able to assess whether the proper determination of the claim has been substantially prejudiced by the absence of or a defect in a notice of injury or a failure to make a claim within the prescribed period.
As I have noted, s 53(7a)(d) provides that the compensating authority can make a redetermination within two weeks of the original determination where the original determination was made as a result of an administrative error. If the original determination, for the purposes of this provision, is not the notice required by s 53(5), a worker cannot know whether the redetermination was made within two weeks of the original determination.
Section 97(1) provides:
A worker or employer who believes there has been undue delay in deciding a claim or other matter affecting the worker or employer may apply to the Tribunal, in the manner and form prescribed by regulation, for expedited determination of the matter.
Unless the notice required by s 53(5) is treated as the decision on a claim, neither the worker or an affected employer can know whether a claim has been decided for the purposes of this provision.
Clause 10 of Schedule 1 of the Transitional Provisions of the Scheme Review Amending Act provides:
Sections 43, 43A and 43B of the principal Act, as enacted by this Act, extend to any case where the Corporation or a self-insured employer (as the case requires) has not, before the relevant day, made a determination of the compensation payable in the particular case under s 43 of the principal Act, as in existence immediately before the substitution of that section under s 24 of this Act (in respect of a compensable disability occurring before the relevant day).
If the determination for the purposes of this provision is not the notice required by s 53(5), neither the worker or an affected employer will know whether a determination pursuant to s 53 of the compensation payable pursuant to s 43 has been made before the relevant day, enlivening an entitlement pursuant to the amended sections 43, 43A and 43B of the Act.
In addition, the rights of a claimant and an affected employer to dispute a reviewable decision pursuant to Part 6A depend on the making of a determination pursuant to s 53. This is reflected in part by the terms of s 53(6), which requires that the notice referred to in s 53(5) must include such information as the regulations may require as to the grounds on which a claim is rejected. The whole scheme of dispute resolution in Part 6A proceeds from the fact of a determination pursuant to s 53.
The requisite certainty must be derived from the terms of the notice required to be given pursuant to section 53(5). If the notice prima facie evidences a determination having been made by the compensating authority I consider that notice must be treated as conclusive. The notice objectively establishes the anterior fact of a determination. The operation of the scheme and the Act would be rendered unworkable if the claimant and any employer directly affected, having received the notice of a purported determination, was required to look behind that notice in order to enquire whether the notice accurately recorded the subjective process of reasoning of the decision‑maker. It would not only necessitate an inquiry into whether a determination had been made in fact, but also an inquiry into the terms of the determination and, in some circumstances, the date of the actual determination. That result is so absurd as to provide a cogent reason to reject the construction on which it is founded.
I am reinforced in this view by the terms of s 53(7a)(d). While I accept the submission of the defendant that the operation of s 53(7a)(d) would not be rendered otiose if it were accepted that a purported determination issued in error is, by reason of that error alone, no determination at all. That is because there would still be work for s 53(7a)(d) to perform in circumstances where there was an original determination made, albeit as the result of an administrative error. This is to be contrasted with the present situation where there was no determination made and the notice was the result of an administrative error. However, the operation of the Act depends upon evidence of the fact that a determination has been made. The notice is the evidence of that fact. The notice, in my view, is conclusive evidence of that fact whatever the true position might be. The enactment of s 53(7a)(d) lends support to this construction because it permits a compensating authority to remedy the position where the notice, constituting the conclusive evidence of the fact of the determination, has been issued as a result of an administrative error.
Finally, I consider that the object of the Act found in s 2(1)(f), “to reduce litigation and adversarial contests to the greatest possible extent”, weighs against acceptance of the defendant’s construction. Acceptance of the defendant’s construction would lead to workers having to institute proceedings in this Court in the nature of judicial review or for declaratory relief if they found themselves in the position of the plaintiff rather than availing themselves of the dispute resolution provisions in Part 6A of the Act. I do not consider that result reflects the legislature’s intention.
Accordingly, in my view, the letter of 13 September 2011 constituted the determination by the defendant of the plaintiff’s claim for compensation. Section 53(5) can be construed, without great strain being imposed on the text, by characterising the letter as the determination. By sending the letter to the plaintiff, the defendant gave the plaintiff notice in writing of the determination.
Conclusion
In accordance with these reasons I would make a declaration that on 13 September 2011 the defendant accepted the plaintiff’s claim for compensation dated 1 August 2011. I would hear the parties as to costs.