Re Monger; Ex Parte Browne - [2003] WASCA 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RE MONGER; EX PARTE BROWNE [2003] WASCA 281

CORAM: STEYTLER J
MCLURE J
JOHNSON J

HEARD: 24 OCTOBER 2003

DELIVERED : 27 NOVEMBER 2003

FILE NO/S: CIV 1107 of 2003

MATTER :An application for a Writ of Certiorari against ROSS MONGER, DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE constituted under the Workers' Compensation & Rehabilitation Act 1981

EX PARTE
DEBORAH JOY BROWNE
Applicant

Catchwords:

Workers' compensation - Whether Director had been notified under s 93D(8) where evidence that notification sent but never received

Words and phrases - "Notifies"

Legislation:

Interpretation Act 1984, s 75, s 76

Workers' Compensation and Rehabilitation Act 1981, s 93D(5), s 93D(6), s 93D(7), s 93D(8), s 93D(9), s 93D(12), s 93E(3), s 93E(4)

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J(3), reg 19M

Result:

Order nisi discharged

Category: B

Representation:

Counsel:

Applicant: Mr I Weldon
Image International Pty Ltd (Employer) : Ms F C E Davis

Solicitors:

Applicant: Hoffmans
Image International Pty Ltd (Employer) : Phillips Fox

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Capper v Thorpe (1998) 194 CLR 342
Coates v Commissioner for Railways (1960) 78 WN (NSW) 377
Hatton v Beaumont [1977] 2 NSWLR 211
Hewitt v Benale (2002) 27 WAR 91
Hollis v Shellharbour City Council [2002] NSWLEC 83
IW v City of Perth (1997) 191 CLR 1
Lombard Australia Ltd v Mohrwinkel (1973) 1 ACTR 57
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490

STEYTLER J: This is the return of an order nisi. It involves only one issue, being that of whether the respondent, which is the applicant's employer, gave to the Director of Conciliation and Review appointed under Division 1A of Pt V of the Workers' Compensation and Rehabilitation Act 1981 notice of the kind mentioned in s 93D(8) of that Act.
Under s 93E(3) of the Act common law damages can only be awarded if it is agreed or determined that the worker's degree of disability is not less than 30 per cent, and that agreement or determination is recorded in accordance with regulations made under the Act (the Workers' Compensation and Rehabilitation Regulations 1982), or if the worker has a significant disability (defined by s 93E(4) to mean a disability which is agreed or determined to be not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations) and elects, in the prescribed manner, to retain the right to seek damages and that election is registered in accordance with the regulations.
By s 93D(5), if the worker and the employer cannot agree on whether the degree of disability is not less than 30 per cent, or 16 per cent, as the case may be, the worker may, if he or she produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level, refer the question to the Director: s 93D(5) and s 93D(6).
As soon as practicable after receiving a referral under s 93D(5) the Director is required by s 93D(7) to notify the employer accordingly in accordance with the regulations. If, within 21 days after being notified accordingly, the employer notifies the Director in accordance with the regulations that it considers that the degree of disability is less than the relevant level, a dispute arises for consideration by the Director in consultation with the parties: s 93D(8) and s 93D(9). By s 93D(12), unless notification is given by the employer under subs (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level.
What happened in this case was that, on 21 November 2002, the applicant, by means of a document commonly referred to as a "Form 22", referred the question of her degree of disability to the Director under s 93D(5). She sought a determination that her degree of disability, arising from an accident on 27 November 2001, was not less than 16 per cent. The Director, having received that referral, notified the employer in accordance with the regulations. That notification found its way to the employer's insurer which, exercising its right of subrogation, completed, in accordance with the regulations, a "Form 23" and signed that document before posting it to the Director in order to notify him that the employer considered that the degree of disability was less than the relevant level. There is affidavit evidence before the Court to the effect that the Form 23, and a covering letter, were placed in the mail collection tray at the insurer's office on 18 December 2002 and that, on that day, the tray was collected at around 3.30 pm and taken to the insurer's mail room, where the letter was franked and placed in an Australia Post mailbag. The mailbag was collected at around 4.30 pm on that day (as happens on every working day) and delivered to the Cloisters Square Post Office. Notwithstanding that a letter lodged on 18 December 2002 should, in the ordinary course of post, have been delivered by 19 December 2002 (according to the affidavit of an acting manager of Australia Post), the letter never found its way to the Director.
On 31 December 2002 the Director wrote to the applicant advising her that the employer had not provided any notification under s 93D(8) within the specified period, with the result that it was deemed to have agreed that the applicant's level of disability was not less than 16 per cent, as claimed by her. She was asked to consider whether she intended to make an election to retain the right to seek common law damages. On 10 January 2003 the applicant notified the Director of her election to retain that right.
However, the Director did not register the applicant's election. That was because he had, in the interim, been told by the employer's insurer that it "strongly dispute[d]" that it had failed to notify him under s 93D(8) within the specified 21‑day period and said that the notice had been posted to him on 18 December 2002. The Director, having considered what was said to him by the insurer (which had provided him with an affidavit), informed the parties that he considered that the requisite notification had been provided within the 21‑day time limit specified by s 93D(8) and that a dispute had consequently arisen which he was required to consider. He said that he was consequently "unable" to register the applicant's election.
Aggrieved by this, the applicant applied for an order that the Director show cause before this Court why a writ of certiorari should not be issued against him for the purpose of quashing his decision to decline to register the applicant's election and to regard himself as having been given the notice referred to in s 93D(8) within the stated period. The application relied upon three grounds, expressed as follows:
"1.Pursuant to s 93D(12) and the Respondent's failure to submit a Form 23 within the statutory time limit, the Director correctly recorded an agreement that, for the purposes of the Act, the Applicant's degree of relevant disability was not less than 16%.
2.By virtue of regulation 19M(4) of the Workers' Compensation and Rehabilitation Regulations 1982 ('the Regulation') the Director was then required, upon receiving the Applicant's Form 25 on 10 January 2003, to register the Applicant's 'Election to Retain the Right to Seek Damages'.
3.The Director, having recorded the agreement of relevant disability pursuant to s 93D(12) of the Act, was thereafter functus officio and should not have subsequently accepted the Respondents [sic] Form 23."
Notwithstanding the existence of these three grounds of application, counsel for the applicant accepted, at the hearing before us, that there is only one point in issue, being that of whether or not the Director was right in his decision that he had been notified by the employer under s 93D(8) within the specified period of 21 days. He submitted that the fact that the Director had not received the notification meant that there had been none for the purposes of the section, regardless of whether or not it had been posted.
The position seems to me to be regulated by s 75 and s 76 of the Interpretation Act 1984.
Section 76 of that Act provides, relevantly, that:
"Where a written law authorizes 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 -
…
(b)by post in accordance with section 75(1);
…".
Section 93D(8) requires the employer to notify the Director "in accordance with the regulations". The applicable regulation is reg 19J(3), which provides only that a notification under s 93D(8) of the Act "is to be … made in the form of Form 23" in Appendix 1 to those regulations. However, as was very properly conceded by counsel for the applicant, the requirement, in s 93D(8), that the employer "notifies" the Director in accordance with the regulations is a means of requiring the Form 23 to be served upon the Director in circumstances in which there is no direction that the Form 23 be served in any particular manner and s 76 of the Interpretation Act is consequently applicable. That being so, the employer (or its insurer) was entitled to post the Form 23 to the Director.
That, in turn, raises the question whether or not the Form 23 was posted "in accordance with section 75(1)" of the Interpretation Act. That section reads as follows:
"(1)Where a written law authorizes 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."
Counsel for the applicant contended that, in this case, while the Form 23 must be accepted as having been properly addressed and posted, by pre‑paid post, as a letter to the last known address of the Director, service could not be deemed to have been effected because "the contrary is proved" by evidence that the Director never received it.
In my opinion, that proposition is not sustainable. The phrase "unless the contrary is proved", in s 75(1), refers to the time of delivery and not to the fact of delivery. So much is apparent from an ordinary reading of the words of the section. That phrase appears after the word "and" and clearly qualifies only the words which follow it.
The contention is, in any event, foreclosed by the decision of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. There, the appellants entered into hire purchase agreements with the respondent in respect of a loader and a grader. The appellants fell into arrears in the payment of instalments and the respondent repossessed its goods. Section 13 of the Hire Purchase Act 1959 (Qld) required the respondent, within 30 days of having taken possession of the goods, to serve on the hirers a notice in writing informing them of specified rights which they had. Under s 42(1)(c) of that Act the notice might be served by posting it, addressed to the hirers at their last known place of abode or business. The notices were posted to the address given to the respondent by the hirers, being care of "Post Office, Sapphire in the State of Queensland". However, the hirers denied receipt of them.
The respondent relied upon the provisions of s 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld), which are relevantly similar in effect to s 75(1) of the Interpretation Act and which provided that:
"(1)Where any Act authorises or requires any document to be given, sent, served, or delivered by post, then, unless the contrary intention appears, such giving, sending, serving or delivery shall be deemed -
(a)To be effected by properly addressing, prepaying, and posting a letter or packet containing such document; and
(b)Unless the contrary is proved, to have been effected at the time when the letter or packet would be delivered in the ordinary course of post."
The notices had not been returned undelivered and there had been no other circumstances which suggested that they did not reach their destination. Consequently, the Court (Mason, Murphy, Wilson, Deane and Dawson JJ) held (page 95) that service was deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post. The Court said, at page 97, that:
"As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non‑receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post."
Counsel for the applicant sought to distinguish Fancourt upon the basis that, while the hirers in that case swore that they did not receive the notices, they did not contend (as has been done in this case) that this amounted to proof that they were not served with them. However, a contention of that kind is not sustainable in circumstances in which s 75(1) of the Interpretation Act applies and there is no evidence that the Form 23 was not delivered as addressed. So much is plain from the terms of s 75(1) itself and from what was said by the Court in Fancourt, at page 95, as regards a possible contention, in that case, that proof of non‑receipt equated to proof of non‑service. Their Honours said that:
"Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that s 42(1) [of the Hire Purchase Act 1959 (Qld)] clearly contemplates … service other than personal service."
I have already mentioned that in that case the Court said (ibid) that, there having been no circumstances which suggested that the notices did not reach their destination, service was deemed, under s 39(1)(b) of the Acts Interpretation Acts, to have been effected at the time when the notices would have been delivered in the ordinary course of the post.
Counsel for the applicant also contended that Fancourt is distinguishable upon the basis that, there, the address was merely a post office, with the consequence that it was quite possible that the notice had reached the post office, but had not found its way from there to the hirers. That, in my opinion, provides no basis for any distinction. It is equally possible, in this case, that the respondent's Form 23 found its way to the Directorate of Conciliation and Review, but not to the Director himself.
It follows that in my opinion the Director was right in his conclusion that he had received notification from the respondent in accordance with the regulations for the purposes of s 93D(8) and that no basis has been shown for quashing his decision. I would consequently discharge the order nisi.

MCLURE J: I have had the advantage of reading, in draft, the reasons to be published by Steytler J. I agree with those reasons and have nothing to add.
JOHNSON J: I have had the advantage of reading the reasons for decision of Steytler J. I agree entirely with them. There is nothing further I wish to add.