Re Monger
[2003] WASC 113
RE MONGER; EX PARTE ATANASOSKA [2003] WASC 113
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 113 | |
| Case No: | CIV:2392/2002 | 6 JUNE 2003 | |
| Coram: | ROBERTS-SMITH J | 12/06/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | CEVENTANKA ATANASOSKA INGHAMS PTY LTD |
Catchwords: | Workers' compensation Worker's election for damages at common law Production to Director, Workcover Conciliation and Review, of Referral of Question of Degree of Disability Whether produced within time Calculation of statutory time limit Statutory interpretation Time limits Whether common law "corresponding date rule" applies or whether superseded by Interpretation Act 1984 (WA) Calculation of time Principles |
Legislation: | Interpretation Act 1984 (WA), s 61, s 62 Workers Compensation and Rehabilitation Act 1981 (WA), s 93E |
Case References: | Dodds v Walker [1981] 2 All ER 609; 1 WLR 1027 Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19 Re Monger; Ex parte WMC Resources & Anor [2002] WASCA 129 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
CEVENTANKA ATANASOSKA
Applicant
Catchwords:
Workers' compensation - Worker's election for damages at common law - Production to Director, Workcover Conciliation and Review, of Referral of Question of Degree of Disability - Whether produced within time - Calculation of statutory time limit
Statutory interpretation - Time limits - Whether common law "corresponding date rule" applies or whether superseded by Interpretation Act 1984 (WA) - Calculation of time - Principles
Legislation:
Interpretation Act 1984 (WA), s 61, s 62
Workers Compensation and Rehabilitation Act 1981 (WA), s 93E
(Page 2)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Mr L Gandini
Intervener : Mr P S Bates
Solicitors:
Applicant : Chapmans Lawyers
Intervener : Downings Legal
Case(s) referred to in judgment(s):
Dodds v Walker [1981] 2 All ER 609; 1 WLR 1027
Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex parte WMC Resources & Anor [2002] WASCA 129
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: This case ultimately concerns a short point about time.
2 The applicant's solicitors filed a form called "Referral of Question of Degree of Disability" ("the referral") with the Director, Workcover Conciliation and Review, on 10 September 2001. By the referral the applicant sought a determination of her percentage disability for the purposes of her worker's compensation claim. The Director refused to accept it. He said it was out of time. The question for me is whether he was right about that.
3 The application for writs of certiorari and mandamus was filed on 8 October 2002. It sought an extension of time (to the extent that might be necessary) under O 56 r 11 of the Rules of the Supreme Court 1971 (WA) ("RSC") and writs of certiorari and mandamus to quash the Director's decision not to accept the referral and to compel him to do so.
4 The application was supported by an affidavit of Rebecca Jane McGinty sworn 9 September 2002 and filed on 8 October 2002.
5 I granted an order nisi on 8 November 2002.
6 On 13 January 2003, Ingham's Enterprises Pty Ltd ("Inghams") gave notice of its intention to appear at the hearing of, and oppose, the application. Inghams is the applicant's employer and self-insured for its liabilities under the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Workers Compensation Act").
7 On 16 January 2003 the Director filed a notice of intention abide the Court's decision save as to costs.
8 At the hearing before me on 6 June 2003, Mr Bates appeared as counsel for Inghams as intervener.
9 The essential facts are not in dispute.
10 The applicant alleges that she was injured at work in late 1999 or early 2000. Weekly payments commenced on 28 March 2001. The referral was filed on Monday 10 September 2001.
11 By letter dated 11 September 2001 the Director informed the applicant that her application had not been filed within the statutory time limit and could not therefore be processed. The Director referred to the decision of Parker J in Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19, and particularly to [26] which reads:
(Page 4)
- "In my view, in a case where a worker with a significant disability seeks to retain the right to seek damages, it is the scheme of the Act that the worker may only refer the question to the Director pursuant to s 93D(5) and so, in the absence of agreement, utilise the dispute resolution procedure provided by s 93D(10), where the election can be registered prior to the termination date or within an extended election period as provided by s 93E(6) or s 93E(7)".
12 The Director advised that an election for the applicant could not be registered prior to termination day or within an extended period as provided by s 93E(6) or (7) of the Workers Compensation Act and accordingly as the matter could not be progressed he had closed his file.
13 By letter dated 19 September 2001 the applicant's solicitors wrote to the Director. They commented he seemed to be suggesting that the last date for the applicant to lodge the referral was 7 September 2001. They drew attention to the fact that 7 September 2001 was a Friday and 10 September 2001 was the first working day thereafter. They requested the Director re-examine the legislation to determine whether or not he had calculated the time period correctly.
14 There was further correspondence between the solicitors and the Director but both adhered to their differing views of the legislation.
15 To understand the submissions advanced, it is necessary first to set out the terms of the relevant statutory provisions.
16 Division 2 of Pt IV of the Workers Compensation Act imposes certain statutory constraints on awards of common law damages in respect of injuries suffered by workers.
17 Section 93E deals with restrictions on the awarding of damages and payment of compensation. By s 93E(3) damages can only be awarded if there is agreement or a determination that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations, or alternatively the worker has a significant disability and elects in the prescribed manner, to retain the right to seek damages and that election is registered in accordance with the regulations.
18 By s 93E(6) an election can be made under subs (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination has been recorded, if:
(Page 5)
- "(a) medical evidence complying with section 93D(6) was produced to the Director not less than 21 days beforethe termination day; and …" (My emphasis)
19 "Termination day" is defined in s 93E(1) as meaning:
"the day that is 6 months after the day on which weekly payments commenced."
20 Mr Gandini, counsel for the applicant, put two arguments in the alternative. The first was that s 61 of the Interpretation Act 1984 (WA) ("the Interpretation Act") does not exclude the common law and as the Workers Compensation Act is beneficial legislation and application of the common law rule would be more favourable to the applicant than s 61 of the Interpretation Act, the common law rule should be applied.
21 Counsel for the applicant proffered no authority stating what the common law rule is, but asserted it to be the "corresponding date rule", whereby in the calculation of time, the commencing date is not included.
22 I take counsel to be referring to the corresponding date rule as stated by the House of Lords in Dodds v Walker [1981] 2 All ER 609; 1 WLR 1027.
23 The general rule, as explained in Dodds, is that in calculating the period of a month or a specified number of months that have elapsed after the happening of the specified event, the period ends on the corresponding date in the appropriate subsequent month, irrespective of whether some months in the period are longer than others.
24 The particular phrase under consideration in Dodds was that an application had to be made "not less than two nor more than four months after the giving of the landlord's notice".
25 The landlords notice had been given on 30 September 1978. The application for a new tenancy was made on 31 January 1979. The issue was whether that was one day too late. In the opinion of their Lordships, the Court of Appeal had been right to hold it was.
26 Lord Diplock explained the general rule as follows (at 610):
"… reference to a 'month' in a statute is to be understood as a calendar month. The Interpretation Act 1978 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves 248, [1804-13] All
(Page 6)
- ER Rep 436 that, in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or a specified number of months after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, ie the day of the month that bears the same number as the day of the earlier month on which the notice was given."
27 His Lordship went on to explain the supplementary rule which applies to those exceptional cases in which the subsequent month does not have a corresponding date. In that circumstances the period ends on the last day of the appropriate month. He added (at 611) that he did not:
"… personally derive assistance from pursuing metaphysical arguments about attributing to the one day or the other the punctum temporis between 2400 hrs on 30 September and 0000 hrs on 1 October at which time began to run against the tenant. These seem to me quite inappropriate to the determination of the meaning of a statute which regulates the mutual rights of landlords and tenants of all business premises and is intended to be understood and acted on by them."
28 Lord Russell said it was common ground that the period of four months did not begin to run until the end of the date of the relevant service on 30 September - that is at midnight on 30 September-1 October. His Lordship gave an example of an application of the corresponding date rule, namely that in a four month period, when service of the relevant notice was on 28 September, time would begin to run at midnight on 28-29 September and would end at midnight on 28-29 January, a period embracing four calendar months. He agreed the corresponding date rule was applicable to the case before the House and that the four month period expired at midnight on 30-31 January. The application made on 31 January was therefore out of time and could not be entertained.
29 At this point reference should be made to certain provisions of the Interpretation Act.
30 Section 61 provides:
"61. (1) In computing time for the purposes of a written law -
(Page 7)
- (a) where a period of time is expressed to begin at, on, or with a specified day, that day shall be included in the period;
(b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period;
(c) …
(d) …
(e) where the time limited for the doing of a thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day;
(f) where there is a reference to a number of clear days or 'at least' or 'not less than' a number of days between 2 events, in calculating that number of days both the days on which the events happen shall be excluded;
(g) where there is a reference to a number of days not expressed to be clear days or 'at least" or 'not less than' a number of days between 2 events, in calculating the number of days there shall be excluded the day on which the first event happens and there shall be included the day on which the second event happens;
(h) where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.
- (2) For the purposes of this section, 'excluded day' means Saturday, Sunday, public service holiday, and a bank holiday or public holiday throughout the State or in that part of the State which is relevant to the event, act, thing or proceeding concerned."
(Page 8)
31 Section 62 sets out how months are to be reckoned. It provides:
"62. (1) In a written law, 'month' means a calendar month, that is to say, a month reckoned according to the calendar.
(2) If a period of one month indicated in a written law begins on any date other than the first day of any of the 12 months of the calendar, it shall be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or, if there is no corresponding date, to the last day of that month.
For example: a month beginning on 15 January ends on 14 February and a month beginning on 30 or 31 January ends on 28 February (or 29 February in a leap year).
(3) If a period indicated in a written law is of 2, 3 or more months, it shall be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third, or other successive month thereafter or, if there is no such corresponding date, to the last day of the latter month.
For example: a period of 6 months beginning on 15 August ends on 14 February and a period of 6 months beginning on 30 or 31 August ends on 28 February (or 29 February in a leap year)."
32 Counsel for the applicant submitted that as the "termination day" is the day which is six months after the day on which weekly payments commenced, that period commenced to run on 29 March 2001 and according to the corresponding date rule it would end at midnight on 29-30 September.
33 The period in s 93E(6)(a) is not less than 21 days before 29 September. As it must be "before" the termination day, that date itself cannot be included. The period of 21 days before 29 September thus commenced to run on Saturday 8 September 2001.
34 The applicant's argument then was that as the time has to be "not less than" 21 days, the last day for producing the referral to the Director was 8 September - because that was 21 days, not less than that time, and because that was a Saturday. That day and Sunday 9 September were "excluded days" under s 61(2) of the Interpretation Act and the referral could be lodged on Monday 10 September 2001, which it was.
(Page 9)
35 The alternative submission advanced by Mr Gandini was that the six month period under s 63E(1) should be taken as having commenced at midnight on 29-30 September 2001. The reasoning is that that construction of both s 93E of the Workers Compensation Act and s 61 of the Interpretation Act is open and as it is more favourable to the applicant, the Workers Compensation Act being intended to be beneficial to workers, it should be adopted.
36 I do not accept that submission. A day comprises the 24 hours from the first moment after midnight at which it begins, until the last moment before midnight on which it ends. The submission seems to be the sort of "metaphysical argument" of which Lord Diplock was critical in Dodds.
37 A similar conclusion must be reached about the further submission made on behalf of the applicant, to the effect that if s 62 of the Interpretation Act does apply here, the 21 day period should be taken as commencing at midnight on 7-8 September; but as that was a Friday night, the first day was 8 September which was a Saturday, and an "excluded day".
38 Counsel for the intervener submitted the provisions of s 61 of the Interpretation Act apply and there is no scope for the application of any common law rule. I accept that submission.
39 Section 3 of the Interpretation Act provides that the provisions of the Interpretation Act apply to every written law unless in relation to a particular written law express provision is made to the contrary or the intended object of the Act or something in the subject or context of it is inconsistent with such application.
40 The Workers Compensation Act is a "written law" as defined in s 5 of the Interpretation Act.
41 There is nothing in the salient provisions of the Workers Compensation Act which expressly excludes the Interpretation Act provisions, nor is the intent and object of the Workers Compensation Act or something in its subject or context which is inconsistent with the application of the provisions of the Interpretation Act.
42 Section 61(1)(b) of the Interpretation Act has direct application to the definition of "termination day" in s 93E(1) of the Workers Compensation Act. Accordingly, as the termination day is the day that is six months "after" the day on which weekly payments commenced, that day must be excluded from the computation of time. As 28 March 2001 is
(Page 10)
- excluded, the six month period runs from 29 March 2001 - that is from midnight on 28-29 March.
43 Then applying s 62(3) of the Interpretation Act the six month period from 29 March 2001 would end on 28 September 2001 - that is at midnight on 27-28 September.
44 It is then necessary to calculate the 21 days preceding the termination day.
45 Section 93E(6) of the Workers Compensation Act requires the referral to be produced to the Director "not less than 21 days before the termination day".
46 Section 61(1)(f) of the Interpretation Act stipulates that where there is a reference to "not less than" a number of days between two events, then in calculating the number of days both the days on which the events happened are to be excluded. The two events in issue here are the termination day and the day upon which the referral had to be lodged. Accordingly, both must be excluded from the computation of the 21 days. That is consistent with authority. The expression "not less than" a specified period of time has been held to be exclusive of both the date on which the obligation is imposed and the date for its performance (see Pearce and Geddes "Statutory Interpretation in Australia" Butterworths, 5th ed; [6.48] and the cases there cited). With 28 September 2001 excluded, the calculation of the 21 day period relates back to 7 September 2001. As that date is also excluded, the last date for the production of the referral was 6 September 2001.
47 As Mr Bates submitted, a similar result is achieved if s 61(1)(c) of the Interpretation Act is relied upon. That subsection stipulates that where anything is to be done "before" a specified date, the time shall not include that day. As the referral had to be filed 21 days before the termination day, that is 28 September 2001, that day is excluded and the calculation commences on 27 September - which again computes back to 6 September 2001.
48 6 September 2001 was a Thursday; 7 September was a Friday. Neither of them therefore were "excluded days" within the meaning of s 61(2) of the Interpretation Act.
49 It follows from the foregoing that the Director was correct to conclude that the referral was not produced to him within the time stipulated in s 63E(6). It was conceded by the applicant that if that
(Page 11)
- conclusion was right, then it would be futile for the Director to purport to refer the matter for determination and the application must fail. I so conclude.
50 Given that conclusion I can deal briefly with the further point raised by the intervenor which is that the application should in any event be refused as a matter of discretion.
51 That submission was advanced on the basis that O 56 r 11 of the RSC requires an application for certiorari to be brought within six months after the date of the decision sought to be quashed and although the Court has power to extend that six month period if the "delay is accounted for to the satisfaction of the Court" there is no basis upon which that power could be exercised in the present case.
52 It has been held that the time requirements of O 56 r 11 do not apply to determinations of the Director (see Re Monger; Ex parte WMC Resources & Anor [2002] WASCA 129 [76] - [77]). Notwithstanding that, delay is still a relevant consideration on an application of this kind even though the application may be lodged within the longer time limit.
53 Here the decision of the Director was made on 11 September 2001 but the application for certiorari and mandamus was not made until 8 October 2002. There is no explanation for the delay. That being so, I would have been minded to refuse the application in the exercise of discretion in any event.
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