Re Monger; Ex parte TNT Australia Pty Ltd - [2002] WASCA 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MONGER; EX PARTE TNT AUSTRALIA PTY LTD [2002] WASCA 223

CORAM: WALLWORK J
ANDERSON J
STEYTLER J

HEARD: 26 JULY 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: CIV 2270 of 2000

MATTER :Application for Writ of Certiorari and Writ of Mandamus against ROSS MONGER Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
TNT AUSTRALIA PTY LTD
Applicant

Catchwords:

Prerogative Writ - Certiorari - Workers' compensation - Election to retain right to common law damages - Election made out of time - Validity

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 84I, s 93C, s 93D, s 93E

Workers' Compensation and Rehabilitation Regulations 1982, reg 19K, reg 19M

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant: Mr G W Nutt
Contradictor : Mr B L Nugawela

Solicitors:

Applicant: Jackson McDonald
Contradictor : D'Angelo & Partners

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

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dimasi v ABB EPT Constructions Pty Ltd (1995) 14 WAR 497
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Case(s) also cited:

Re Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321

WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J.
ANDERSON J: This is the return of an order nisi for writs of certiorari and mandamus granted by Murray J on 15 November 2000. The order nisi called on Mr Ross Monger, the Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against him to quash his decision firstly to accept and register a form 25 (an election to retain the right to seek damages at common law) and secondly to notify the applicant employer that the form 25 had been registered. The order nisi also called upon Mr Monger to show cause before the Full Court why a writ of mandamus should not issue against him commanding him to reject and refuse to register the form 25.

Background

The applicant is an employer (a) who is liable to make payments of workers' compensation under the Act in respect of injury sustained by a worker in the course of his employment, and (b) against whom the worker may wish to bring proceedings at common law to recover damages in respect to his injury. We have no information before us as to the alleged accident save that the worker, Mr Bennett, claimed to have suffered a left wrist injury on 8 May 1998. I think we can take it that the worker submitted a claim for weekly payments of compensation in the prescribed form (form 2B) satisfying the requirements of s 84I.

Legislative scheme

The effect of amendments made to the Workers' Compensation and Rehabilitation Act in October 1999 is that courts in Western Australia may not award damages in work accident cases contrary to the provisions of Div 2 of Pt IV of the Act which provide, amongst other things, that damages can only be awarded if it is agreed or determined that the degree of disability of the worker is not less than 30 per cent, or the worker has a "significant disability" (defined by s 93E(4) as a degree of disability agreed to be or determined to be not less than 16 per cent) and the worker has elected, in the prescribed manner, to retain the right to seek damages. The case before us concerns the provisions in the Act and regulations relating to the election to retain the right to seek damages. They have

been amended from time to time. At the relevant time, they were in the following terms:
"93C. Limit on powers of courts
If this Division applies [ie Div 2 of Pt IV] a court is not to award damages to a person contrary to this Division.
…
93DAssessment of disability
(1)In this section ‑
'relevant level', in relation to a question as to the degree of disability of the worker, means ‑
(a)if the question arises for the purposes of section 93E(3)(a), (9) or (12), a degree of disability of 30%; or
(b)if the question arises for the purposes of section 93E(4), a degree of disability of 16%.

…
(5)If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.
…
(7)As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.
(8)If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part IIIA.
…
(10)Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2).

93E. Restrictions on awarding of damages and payment of compensation
(1)In this section —
termination day'' means the day that is 6 months after the day on which weekly payments commenced.

…
(3) Damages can only be awarded if —
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.
(5)Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.
(6)Despite subsection (5), if —
(a)medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and
(b)a dispute arising under section 93D(h) has not been resolved before the termination day,

an election can be made under subsection (3)(b) within 7 days after the dispute is resolved."

It can be seen from these provisions that s 93E(5) places a time limit on the election to retain the right to claim common law damages. Unless s 93E(6) applies, the election to retain the right "cannot be made … after the termination day", that is, the day that is six months after the day on which weekly payments commenced.
The following regulations may also be relevant:
"19K. Agreement as to degree of disability
(1)An agreement as to the degree of disability for the purposes of section 93E(3)(a), (4) or (9) of the Act is to be made in the form of Form 24 in Appendix I and lodged with the Director.
(2)On receipt of the agreement the Director is to ‑
(a)record the agreement in a register kept for that purpose;
(b)complete the relevant section of the agreement form and give a copy of it to the worker and the employer.
…
19MElection to retain right to seek common law damages
(1)An election under section 93E(3)(b) of the Act ‑
(a)is to be made in the form of Form 25 in Appendix 1 (the 'election form') and lodged with the Director; and
(b)cannot be made unless ‑
(i)it is agreed that the degree of disability is not less than 16%; or
(ii)it is determined that the degree of disability is not less than 16%.
(2)If it is agreed that the degree of disability is not less than 16% the election form is to be accompanied by Form 24 in Appendix 1 unless an agreement as to the degree of disability for the purposes of section 93E(3)(a), (4) or (9) of the Act was recorded under regulation 19K before the lodgment of the election form.
(3)If it is determined that the degree of disability is not less than 16% the election form is to be accompanied by evidence of the determination unless a determination of a dispute as to the degree of disability was recorded under regulation 19L before the lodgment of the election form.
(4)Subject to subregulation (5), on the day on which the Director receives the election form the Director is to ‑
(a) record ‑
(i)under regulation 19K(2)(a) the agreement (if any) accompanying the election form; or
(ii)under regulation 19L(2)(a) the determination (if any) accompanying the election form;
(b)register the election in a register kept for that purpose; and
(c)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(5)The Director may decline to register an election if the Director is satisfied that the worker does not fully understand the consequences of the registration of the election."

History of election process

It is not in dispute that workers' compensation payments to this worker commenced, or are to be taken to have commenced, on the day he sustained his injury, 8 May 1998. The amending Act which introduced s 93E into the Workers' Compensation and Rehabilitation Act in October 1999 contained transitional provisions and those provisions extended the termination day beyond the six months stipulated in s 93E(1) in cases such as this, where the injury by accident had been sustained and weekly payments of compensation had commenced before the new provisions came into effect. We do not have sufficient information to calculate the extended termination day ourselves, but counsel for the applicant informed us that it should be taken to be 5 January 2000. This was not disputed by counsel for the worker. Accordingly, the worker's election had to be made by 5 January 2000 in order to meet the deadline prescribed by s 93E(5) unless the matter came within s 93E(6). It is common ground that s 93E(6) did apply because there was a "dispute" within the meaning of s 93D(8) which had to be resolved before the election could be made. The dispute arose in this way. On 14 December 1999, the worker lodged a "referral of question of degree of disability" with the Directorate (form 22) in which he claimed a degree of disability by reason of his wrist injury, nominating 18 per cent as the level of disability. This was a claim to a relevant level of disability of "not less than 16%". The applicant employer's insurer, MMI Insurance Group, initially disputed that the worker's degree of disability was at the level of 18 per cent. This brought the matter under s 93E(6) so that the time for the making of an election was extended as provided for in that subsection. Ultimately, the insurer agreed that Mr Bennett's degree of disability was of the level of 18 per cent. Accordingly, pursuant to reg 19K, the worker's solicitors lodged a "degree of disability agreement" (form 24) to the effect that the worker and the employer had agreed upon a degree of disability of 18 per cent. This being a "significant disability" (that is, a disability of not less than 16 per cent), the worker was entitled to elect to retain the right to seek damages: s 93E(3)(b).
A dispute may be resolved by determination under the dispute resolution provisions in Pt IIIA of the Act or by agreement: s 93D(10). The time limit within which an election may be made in a case in which a dispute is resolved by agreement is seven days and runs from the day the dispute is resolved: s 93E(6). The agreement in this case was executed by the applicant (employer) on 4 February 2000 and by the worker on 15 February 2000. Accordingly, the agreement was made on 15 February 2000. It was lodged at the Directorate on 17 February 2000. It was recorded under reg 19K(2)(a) on 22 February 2000 "with effect from 17 February 2000", according to the Director. See his letter of 22 February 2000 reproduced in the application book at page 43.

When did the seven days begin to run?

In my opinion, the seven‑day period stipulated in s 93E(6) commenced to run from the date the agreement was made, that is, 15 February 2000, that being the date on which the dispute was "resolved" within the meaning of s 93E(6). It was the agreement which resolved the dispute. There was and is nothing in the Act which postpones commencement of the seven days beyond the making of the agreement which actually did resolve the dispute. Nor was there or is there anything in the Act which suspends the consensual effect of the agreement until it is lodged or recorded. It is not to the point that by force of s 93E(3) and (4) an award of damages could not be made until the agreement was recorded. Those provisions did not have the effect of deferring the right to elect. That right arose as soon as the dispute was resolved and the right was required to be exercised within seven days of that date.
The form 25 (election) was lodged on 25 February, which was 11 days after the agreement was made and eight days after the agreement was lodged/recorded. There was no power in the Director to extend the time within which the election could be made in this case. Limited powers to extend the time were conferred on the Director by s 93E(7), but the circumstances under which that power might have been exercised were not present.
Nevertheless, the Director has purported to accept the form 25 (election) and to register it "with effect from 30 March 2000" (AB 46). This was done apparently with the consent of the employer's insurer.
Unless some principle of statutory construction can be applied to give s 93E(6)(b) some different meaning, the unavoidable conclusion is that the right of the worker to make an election to retain his right to claim damages expired at midnight on 24 February, at the latest (actually, I think at midnight on 22 February), and was no longer available to him when he purported to exercise it some time on 25 February and the purported acceptance and registration of the election by the Director could not affect the matter.
On behalf of the worker it was submitted that the consent of the employer (insurer) to the Director's acceptance and registration of the election out of time operated as some kind of waiver or had the effect of conferring authority on the Director to register the late election or validated the election notwithstanding that it was out of time. I am not able to agree with these contentions. They seem to me to misunderstand the fundamental elements of the legislative scheme, which prohibits the Court from making an award of damages "contrary to this Division". Neither the consent of the parties nor unauthorised administrative act of the Director can overcome that prohibition. The ultimate question is whether the processes that have taken place are in compliance with Div 2 of Pt IV. If not, damages may not be awarded by the Court no matter what consensual arrangements may have been arrived at between the parties. The prohibition is directed at the Court and I am unable to see how the binding effect of that prohibition can be negated by the conduct of the parties.
Counsel for the worker also sought to rely on the principle which is to the effect that, where the literal interpretation of the section would produce an absurd, capricious or irrational result, or any result that could not have been intended by parliament, it is permissible to depart from the literal meaning of the words in order to give effect to the true intentions of parliament if that intention is sufficiently clear. This is a well‑settled principle of statutory construction: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 especially per Gibbs CJ at 304 ‑ 305, Mason and Wilson JJ at 320 ‑ 321 and Aiken J at 336 ‑ 339.
Counsel submitted that it could not have been intended that the right to make an election expired on the expiration of the seventh day after the dispute as to the level of disability was resolved. He based this submission upon the proposition that it is impossible for a worker to make an election in the case of a dispute which is resolved by agreement until the worker has been notified that the agreement is recorded pursuant to reg 19K(2); and this notification may not be received until after the expiration of the seven‑day time limit. The worker may thus lose his right of election, so it was submitted, notwithstanding that he had himself promptly and timeously complied with all the requirements of the Act. Counsel relied on Dimasi v ABB EPT Constructions Pty Ltd (1995) 14 WAR 497 to say that this is "an absurd result which could not have been intended by parliament".
In my opinion, the submission is based on a false premise, namely, that no election can be made until the worker is notified that the agreement is recorded. I am not persuaded that this is so. The Act does not require the election to be postponed until notice is given that the agreement is recorded. I think the right to elect arises and may be exercised as soon as the dispute is resolved, ie, as soon as the agreement resolving the dispute is made. Obviously, the worker would know when that took place and so would know when time had commenced to run against him.
Counsel sought to rely on reg 19M(2). He argued that, on the proper construction of that regulation, no election can be made until the agreement is recorded.
Regulation 19M(2) does not have that meaning. It does not provide that no form 25 may be lodged until the form 24 has been recorded. What it says is that the form 25 (the election form) must be accompanied by the form 24 (the agreement) unless the form 24 has already been recorded. All that reg 19M(2) means is that the worker, when lodging his form 25, need not also lodge the form 24 with the form 25 if the form 24 has already been lodged. This is a perfectly sensible regulatory arrangement. Anyway, I do not see on what principle of statutory construction regulations made under an Act can affect the meaning of the Act.
The Act, as it stood at the material time, was perfectly clear in its terms and I do not consider that in its ordinary meaning it produced results which could not have been intended. The whole purpose of providing for the making of an agreement as to the level of disability is to clear the way for the worker to make an election to retain his common law right to damages. The election is part of that process and is the culmination of it. There is nothing absurd, capricious or irrational in requiring that the election be made promptly. Whilst seven days is a short time, it is enough time.
It is true that s 93E(6) has now been amended to relax the time limits, but I see no significance in that. Those amendments do not bear in any way on the proper construction of the Act in its pre‑amended form.
Counsel for the worker also submitted that failure to observe the time limit prescribed by s 93E(6) is not fatal. He contended that the time limit was merely a procedural rather than a mandatory requirement. Whether this language still means anything in Australia is very doubtful since Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, but I take the submission to be that compliance with the requirements as to when or within what period an election is to be made does not condition either the right to seek damages at common law or the

authority of the Court to award damages. This is, of course, a matter of construction and I do not think that the Act can be so construed. The scheme of Div 2 of Pt IV is generally to prohibit courts from awarding damages in work accident cases and then to precisely define the circumstances under which the right to seek damages may be retained. There must be a certain level of disability (specified by reference to exact percentage points), there must be a positive election to retain the right, the election must be made in a prescribed manner and form and it must be made within a specified period of time, the expiration of which is expressed so as to be precisely ascertainable. In other words, if I may borrow Lord Goff's analogy in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 754, the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock.

I can see no basis for contending that a purported election made out of time under subs (6) is any more effective than would be a purported election made out of time under subs (5).
There is another matter that should be mentioned only to show that it has not been overlooked. The requirement in s 93E(3)(b) that the election must be made "in the prescribed manner" means that the election must be made in the form of Form 25 (see reg 19M(1)(a)). Form 25 provides for the signature to be that of the worker. There is a boxed space at an appropriate place in which is the indicative phrase "signature of the worker" against a signature line. In this case the Form 25 was not signed by the worker but by his solicitor, Mr Nugawela, and the applicant contended that this was not an election "in the prescribed manner". Whilst I think there is force in this submission, it is not necessary to decide the point in this case and therefore I think it should be left for another day.

Relief

It is not contended that prerogative relief in this case is inappropriate. However, events may have moved on since the granting of the order nisi approximately 21 months ago, so counsel should be heard on the formal orders that should be made.
STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree entirely with them. There is nothing I wish to add.