Re Keziah Holdsworth; Ex Parte L v Dohnt & Co Pty Ltd
[2013] WASC 322
•28 AUGUST 2013
RE KEZIAH HOLDSWORTH; EX PARTE L V DOHNT & CO PTY LTD [2013] WASC 322
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 322 | |
| Case No: | CIV:1429/2013 | 15 AUGUST 2013 | |
| Coram: | LE MIERE J | 28/08/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for writ of certiorari refused Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | L V DOHNT & CO PTY LTD |
Catchwords: | Prerogative writ Certiorari Order nisi Workers' Compensation and Injury Management Act 1981 (WA) |
Legislation: | Interpretation Act 1984 (WA), s 75, s 76 Workers' Compensation and Injury Management Act 1981 (WA), s 93L(1), s 93M, s 93O Workers' Compensation and Injury Management Regulations 1982 (WA), reg 25 |
Case References: | Brennan v New South Wales Land and Housing Corp [2011] NSWCA 298 Capper v Thorpe (1998) 194 CLR 342 Ex Parte Portingell [1892] 1 QB 15 Holloway v Coster [1897] 1 QB 346 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
L V DOHNT & CO PTY LTD
Applicant
Catchwords:
Prerogative writ - Certiorari - Order nisi - Workers' Compensation and Injury Management Act 1981 (WA)
Legislation:
Interpretation Act 1984 (WA), s 75, s 76
Workers' Compensation and Injury Management Act 1981 (WA), s 93L(1), s 93M, s 93O
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 25
Result:
Application for writ of certiorari refused
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Mr D R Clyne
Intervener : Mr J Brooksby
Solicitors:
Applicant : CCS Insurance Law
Intervener : Haynes Robinson Lawyers
Case(s) referred to in judgment(s):
Brennan v New South Wales Land and Housing Corp [2011] NSWCA 298
Capper v Thorpe (1998) 194 CLR 342
Ex Parte Portingell [1892] 1 QB 15
Holloway v Coster [1897] 1 QB 346
1 LE MIERE J: On 19 April 2011 Owen MacDonald (the worker) sustained an injury in the course of his employment with the applicant. The applicant's employer's indemnity insurer, Allianz Australia Insurance Ltd, on behalf of the applicant accepted liability to pay compensation under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
2 On 20 February 2013 the worker lodged with WorkCover WA (WorkCover) an application to extend the termination day. The termination day is defined by s 93L(1) and s 93M of the Act. It prescribes the day by which an injured worker must elect to pursue a claim for damages at common law against their employer for negligence. An election cannot be made after the termination day and in the absence of an election being made damages cannot be awarded against the employer in respect of the injury. The establishment of the termination day for any particular injury is set according to the statutory formula contained in s 93M(1) – (3) of the Act. In the present case the termination day for the injuries sustained by the worker was 21 April 2012.
3 Under s 93O of the Act an employer is required to notify the worker in writing in accordance with the regulations of certain things including the date of the termination day and the significance of the termination day for the worker's ability to seek damages. Section 93M(4) of the Act empowers the Director, Conciliation of WorkCover (the Director) to extend the termination day if, amongst other things, the Director is satisfied that the employer has failed to comply with s 93O.
4 The Director informed the applicant of the worker's application for an extension of the termination day on the ground that he was not notified of the termination day in accordance with s 93O of the Act and requested a response from the applicant. The applicant provided a response and evidence that Allianz on behalf of the applicant had sent the notice of the termination date in accordance with s 93O (the Notice) to the worker by post. The Director's delegate (the Delegate) granted an extension of the termination day until 19 April 2013. It is common ground that the Director lawfully delegated the power to grant an extension of the termination day to the Delegate.
5 The applicant applied for an order nisi that the Delegate show cause why a writ of certiorari should not be issued against her to quash her decision to extend the termination day. A judge of this court ordered that the Delegate show cause before a single judge why a writ of certiorari should not be issued against her for the purpose of quashing her decision of 12 March 2013 to extend the termination day and register an election by the worker to retain the right to seek damages against the applicant. It is common ground that the decision to register an election by the worker to retain the right to seek damages against the applicant should be quashed if the decision to extend the termination day is quashed. The judge who granted the order nisi ordered that the order nisi be served on the worker. The worker filed an affidavit in opposition to the orders sought and appeared by counsel on the return of the order nisi.
Grounds for application
6 In its motion for an order nisi for a writ of certiorari the applicant sets out the grounds on which it seeks relief by way of certiorari. The first five paragraphs recite the relevant terms of s 93M(4)(b) of the Act, reg 25 of the Workers' Compensation and Injury Management Regulations 1982 (WA) (the Regulations) and the evidentiary material that was before the Delegate. The evidence relied upon by the worker in support of his application for an extension of the termination day consisted of witness statements by the worker and Vikky Burgess. The grounds recite that the witness statements were not in the form required by the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) and were therefore not properly declared or affirmed and ought not to have been regarded as evidence for the purpose of the Director determining the worker's application. However, that matter was not pursued on the return of the order nisi and the parties proceeded on the basis that the witness statements of the worker, Mr MacDonald, and Ms Burgess were evidence before the Delegate. Paragraph 5 of the grounds states that the witness statements were to the effect that the receipt of the Notice and reading of the Notice could not be recollected, which is irrelevant since the Act contains no requirement that an employer ensures that a worker to whom a notice is sent actually receives it. The errors said to have been made by the Delegate are that the Delegate:
a. has had regard to irrelevant matters, such as whether the worker received the Notice, when the question relevant to the exercise of the power was whether the employer failed to send it;
b. failed to have regard to the provisions of section 75 of the Interpretation Act 1984 pursuant to which service can be effected by properly addressing and posting, by prepaid post, a document to the last known address of the person to be served, and unless the contrary is proved service is taken to have been effected at the time when the letter would have been delivered in the ordinary course of the mail; and
c. failed to identify at the time of making the decision any basis upon which the Director could be satisfied that the employer 'failed to comply' with section 93O.
The statutory provisions
7 Section 93M(4) of the Act relevantly provides that the Director may extend the termination day if the Director is satisfied that the employer has failed to comply with s 93O. Section 93O relevantly provides that at the specified time the employer is required to notify the worker in writing in accordance with the regulations of certain things including the day that would be the termination day if no later day would be fixed under s 93M(4) and the significance of the termination day for the worker's liability to seek damages. The relevant regulation is reg 25 which provides:
The notice that an employer is required by s 93O(1) of the Act to give to a worker has to be given by sending the worker a document in the form of Form 36 in Appendix I.
Ground (a) – irrelevant matters
8 Ground (a) is that the Delegate had regard to an irrelevant matter, that is whether the worker received the Notice. The applicant says that the question relevant to the exercise of the power was whether the employer failed to send it. The power of the Director to extend the termination day is relevantly conditioned by the Director being satisfied that the employer has failed to comply with s 93O. Section 93O(1) provides that at the time prescribed in s 93O(2) the employer is required to notify the worker of the things there prescribed in accordance with the regulations. Section 93O(2) provides that the notice is required to be given within a certain period. Thus, the employer is required to notify the worker of certain things by giving notice within a specified period of those things.
9 In considering the construction of s 93O(1) of the Act the court should keep in mind the objects of the provision. Those objects appear from the relevant provisions of the Act. A worker loses his common law right to pursue a claim for damages at common law against his employer for negligence if he does not elect to do so before the termination day. The requirement that the employer give the worker notice of the termination day and the significance of the termination day for the worker's ability to seek damages is to ensure that the worker knows that if he wishes to pursue a claim for common law damages he must elect to do so before a certain date and that he knows what that date is. The provision is a protective one. It should not be construed in a way that would undermine or frustrate the legislative purpose. A construction of s 93O(1) that would extinguish the worker's right to pursue a claim for common law damages when it was established that he had not received the requisite notice from his employer would undermine the legislative purpose.
10 The ordinary meaning of 'notify' is to make known – see Macquarie Dictionary and Oxford English Dictionary. The requirement that the employer give the worker notice of certain things requires that the notice reach the worker unless the statute provides otherwise: see Capper v Thorpe (1998) 194 CLR 342; Holloway v Coster [1897] 1 QB 346; Ex Parte Portingell [1892] 1 QB 15.
11 Regulation 25 provides that the notice has to be given by sending the worker a document in the prescribed form. Regulation 25 provides for a means of notifying a worker but does not identify the consequence of sending the worker a document in the prescribed form. Furthermore, the regulation would be beyond power if it purported to provide that a worker will be deemed to have been notified of the prescribed matters even if the notice has not reached the worker and the worker has not been informed of the things of which he is required to be notified: see Brennan v New South Wales Land and Housing Corp [2011] NSWCA 298.
12 The appellant calls in aid s 75 and s 76 of the Interpretation Act 1984 (WA). Section 76 provides relevantly that where a written law requires a document to be served, whether the word 'serve' or the word 'send' 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 by post in accordance with s 75(1). Section 75(1) provides that where a written law authorises or requires a document to be served by post, whether the word 'serve' or the word 'send' is used, service may 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. Section 75(1) raises a rebuttable presumption of service at a stated time after the date on which the document was posted. However, it permits the presumption to be rebutted by proof that it was not received by the person to whom it was addressed.
13 The result is that if the employer proves that it sent the notice by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the worker, it will be deemed to have been sent to the worker unless the worker proves that he did not receive it. Whether the worker received the Notice is relevant to determining whether the employer notified the worker of the things in the Notice. It is not irrelevant to have regard to whether the worker received the Notice. Ground (a) is not made out.
Ground (b) - Interpretation Act s 75
14 Ground (b) is that the Delegate failed to have regard to the provisions of s 75 of the Interpretation Act, which I have referred to above. The appellant submitted that there was no evidence that the worker did not receive the Notice, and hence if the Delegate had had regard to s 75(1) of the Interpretation Act, she would have found that the employer complied with s 93O of the Act by notifying the worker of the things prescribed in s 93O(1).
15 The appellant submitted that the witness statements of Mr MacDonald and Ms Burgess were to the effect that the receipt of the Notice and reading of the Notice could not be recollected by either of them. Counsel submitted that that is not evidence that the Notice was not received by the worker or did not come to his attention. I do not accept that submission. The witness statement of Mr MacDonald stated the following things. He has very poor reading and writing skills. He is unable to read or write to any great level. He can write his sister's names and read some signs but he cannot read and understand anything more complex than that. Ms Burgess has read aloud to him all documents that have arrived in the post relating to his worker's compensation claim. He has been told that a letter and notice from Allianz informed him about a cut-off date to take legal action in relation to his injuries. When he was told about such a document he could not remember ever being read that document. He has now been shown the document. It has now been read to him. He does not believe that Ms Burgess ever read that document to him. He believes that he would have remembered such a document. He has kept every piece of mail in relation to his claim. He has searched through all the mail and documents at the motel where he lives. It is not there. If he had received the document he would have taken it straight to Ms Burgess to read aloud to him. He does not believe he ever received the document. He has had a number of pieces of mail not arrive at the motel. It is not a reliable mail service.
16 Ms Burgess says that very soon after liability for Mr MacDonald's claim was accepted she became responsible for filling in any documents that required completion in relation to his claim and reading aloud to him any documents that came in the mail. She does not recall any documents that related to a termination date. She did not read aloud to Mr MacDonald any notice to him about a termination date for election.
17 The witness statements of Mr MacDonald and Ms Burgess go beyond saying that the worker cannot recollect having received or had the Notice read to him. It is evidence capable of giving rise to a finding that the worker did not receive the Notice and it did not come to his attention. It was for the Delegate to find as a fact whether the worker had received the Notice or it had come to his attention.
Ground (c) – failed to identify basis of finding
18 Ground (c) is that the Delegate failed to identify any basis upon which the Director could be satisfied that the employer failed to comply with s 93O. The applicant did not argue that there was a general duty to give reasons when making a decision to extend the termination date. The applicant's argument was that the witness statements of Mr MacDonald and Ms Burgess could not have satisfied the Delegate that Allianz, on behalf of the employer, had not sent the Notice to the worker. I reject that argument. Whether the worker received the Notice was a question of fact to be determined by the Delegate. If the worker did not receive the Notice then the applicant did not comply with s 93O notwithstanding that it posted the Notice by pre-paid post addressed to the worker's address. Secondly, the applicant submitted that there was no basis on which the Delegate could have found that the employer did not send the Notice and hence had not complied with s 93O(1). I have rejected that argument for the reasons stated. There was evidence that the worker did not receive the Notice. Ground (c) is not made out.
Conclusion
19 For the reasons stated the application for a writ of certiorari should be refused and the order nisi should be discharged.
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