Reale v Wesfarmers Kleenheat Gas Pty Ltd - [2016] WADC 5

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REALE -v- WESFARMERS KLEENHEAT GAS PTY LTD [2016] WADC 5

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 13 AUGUST 2015 WITH FURTHER SUBMISSIONS 27 AUGUST 2015 AND 1 SEPTEMBER 2015

DELIVERED : 21 JANUARY 2016

FILE NO/S: CIV 1279 of 2014

BETWEEN: LUISA MARINA REALE
Plaintiff
AND
WESFARMERS KLEENHEAT GAS PTY LTD
Defendant

Catchwords:

Workers' Compensation - Calculation of termination date - Interpretation Act 1984 - Calculation of time - Collateral challenge to administrative decision - Jurisdiction to award damages

Legislation:

Interpretation Act 1984
Rules of the Supreme Court 1971
Workers' Compensation and Injury Management Act 1981 s 93

Result:

The jurisdictional prerequisites for awarding damages are established

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr B Nugawela

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Kott Gunning

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

Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223
Farmer v AOC Australia Pty Ltd [2002] WASCA 340
Minister for Immigration and Citizenship v Li [2013] HCA 18
Ousley v The Queen (1997) 192 CLR 69
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Selby v Pennings (1998) 19 WAR 520
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19

PRINCIPAL REGISTRAR MELVILLE: This application has been brought by Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat) for dismissal of the plaintiff's action on the basis this court has no jurisdiction. More particularly, the summons seeks an order that the action be dismissed for want of jurisdiction to award damages.
The plaintiff, Ms Reale, issued a writ against Kleenheat seeking damages for injuries alleged to have been suffered in the course of her employment with Kleenheat on 16 February 2012. She alleges her injuries were caused by Kleenheat's negligence and/or breach of the contract of employment and claims damages for the losses she has suffered.
Kleenheat by its amended defence filed 9 March 2015 admits it employed Ms Reale at the time she was injured and admits the injury was sustained at work on that day. Kleenheat denies Ms Reale is entitled to the relief claimed on various grounds including the basis that she is not entitled to damages because she has failed to elect in the prescribed manner to retain the right to seek damages as required by the Workers' Compensation and Injury Management Act 1981 (the Act) s 93K(4). In order elect to do this in the prescribed manner Ms Reale was required to elect before the termination date.
Ms Reale purported to elect to pursue her common law claim against Kleenheat on 12 March 2014 after the Director's delegate purported to extend the termination day to 28 March 2014. The argument advance by Kleenheat is that the Director's delegate had no power to extend the termination date.
Notwithstanding the application was brought nearly 12 months after Kleenheat filed a memorandum of appearance, a challenge to jurisdiction can be brought at any time: see Farmer v AOC Australia Pty Ltd [2002] WASCA 340 [11]. At the hearing of this challenge to this court's jurisdiction I raised the question of whether this was an impermissible collateral attack on the decision of the Director's delegate which should properly be challenged by prerogative writ. I invited the parties to provide me with authorities on this point. The plaintiff provided me with three authorities. The defendant filed a further affidavit of a Mr Carl‑Henrick Eklund sworn 26 August 2015 addressing the insurance status of the defendant, which I treated as an application to re‑open its case and tender further evidence. I have accepted the affidavit without hearing further from the parties as in my view, for the reasons that follow, it works no prejudice to the plaintiff.
Mr Carl-Hendrick says he was told and believes Kleenheat was 'part of a self insurance scheme' and annexes several applications by Wesfarmers Limited ('Wesfarmers') to WorkCover WA for what appears to be continuing exemption for its wholly owned subsidiaries from the need for insurance together with approvals from WorkCover WA under s 165 of the Act. I am satisfied Kleenheat is a wholly owned subsidiary of Wesfarmers and meets the statutory definition of self-insurer.
Whilst the application raises questions of jurisdiction and the language of the argument was around jurisdiction, and it was submitted the question of the court's jurisdiction to award damages should be dealt with as a preliminary issue, it seems to me the authorities support the view that s 93K(4) bars the remedy not the action (see Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [28]) and that the application might more properly be regarded as an application for summary judgement.
Irrespective of how the application should be characterized, the outcome turns on determining when was the termination date.

When was the termination day?

The Act provides in s 93K(4) as follows:
(4)Damages in respect of an injury can only be awarded if –
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
As can be seen, by s 93K(4)(a) the election is required to be in the manner prescribed by the regulations. Section 93L prescribes the circumstances in which a worker may elect and at s 93L(4) it is provided that if a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
The expression 'Termination day' is a term defined in s 93M(1) and s 93M(2) of the Act as follows:
(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
(2)In subsection (1) - claim for compensation by way of weekly payments means a claim for compensation by way of weekly payments for total or partial incapacity that has been made on an employer in accordance for s 178(1)(b).
The term 'weekly payments' is not defined in s 93M(2) but it is clear its genesis is found in, and that it refers to, that term as used in sch 1 cl 7 to the Act.
By s 18 of the Act it is provided that if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1. By sch 1 cl 7, where total incapacity for work results from an injury a weekly payment during the incapacity is payable to the worker in accordance with the formula set out in cl 7(1). However, where partial incapacity arises, weekly payments may or may not be payable. It does not automatically follow that a worker is entitled to weekly payments where his capacity to sell his labour in any reasonably accessible labour market has been reduced. That loss of capacity will only give rise to '… a weekly payment during the partial incapacity …' where the total weekly earnings of the worker calculated in accordance with the schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which the worker was earning, or is able to earn, in some suitable employment or business after the occurrence of the injury.
Thus it is clear that a worker who is not totally incapacitated, but is partially incapacitated in so far as his ability to sell his labour in any reasonably accessible labour market has been diminished, may in fact be earning, or be able to earn, in suitable employment, (including ongoing employment with his employer) an amount equal to or in excess of the total weekly earnings calculated and varied in accordance with sch 1. For example, a worker who suffers a back injury that precludes him from selling his labour in respect of any occupation involving heavy manual work may be able to sell his labour in a clerical/management position which pays as much, or even more, than he was earning at the time of injury. In these circumstances he is partially incapacitated but the incapacity is not productive of a loss that entitles him to weekly payments under the Act.
The inevitable consequence of this line of reasoning is that the fact a worker is injured as that term is defined in the Act, does not necessarily give rise to a claim for weekly payments or an entitlement to weekly payments. The distinction between injury on the one hand and entitlement to weekly payments on the other hand, is well made by the provisions of s 178(1) of the Act which requires, firstly, notice of the occurrence of the injury to be given as soon as practicable after the occurrence and, secondly, a claim for compensation to be made within 12 months from the occurrence of the injury.
The Act, by s 178(1)(a) requires notice of the injury to be given in a prescribed manner. The only prescription is set out in s 178(2) which requires the worker to give his name and address, state in ordinary language the cause of the injury and the date and place at which it occurred, and such other information as may be prescribed by the regulations. There is no provision in the Act prescribing the manner in which a claim for compensation must be made other than it is to be within the 12‑month period.
Curiously, by reg 6AA(1) of the Workers' Compensation Injury Management Regulations 1982 (the Regulations), a form is prescribed for making a claim for weekly payments under s 178(1)(b) but not prescribed for giving notice of injury. Nowhere in the prescribed form is there provision to expressly indicate whether the 'claim for compensation' is a claim for medical expenses or any of the other expenses set out in sch 1 cl 17, or a claim for weekly payments of compensation. Even in circumstances where the form indicates a worker has lost time from work as a result of the injury, it does not follow that the worker is 'claiming' weekly payments of compensation. The worker and/or the employer may prefer the lost time simply be paid by way of sick leave, or even be taken as leave without pay.
In this case the so‑called 'workers compensation claim form' annexed to the affidavit of Danielle Ainsley as Annexure DA3 poses a question to the worker: Did you have to stop working? The form provides a tick box for yes and a tick box for no. The plaintiff has ticked 'no' and appears to have added to the form the words 'had annual leave for a week'.
The purpose of these observations is to demonstrate the potential evidential difficulties that might arise in proving the fact of exactly when a claim for compensation by way of weekly payments was made and, therefore, the termination date established by s 93M(1).
Section 93M(1) establishes an initial termination date, but the date may be extended should s 93M(3) or s 93M(4) have cause to operate. This, it seems to me, is consistent with the decision of Corboy J, found in the transcript provided to me by counsel for Kleenheat in Bush Goldman v Damian Stewart as Director of WorkCover (WA) (Supreme Court of Western Australia CIV 1016 of 2014 delivered 27 December 2013[sic]) in which his Honour said at page 20:
This is how I interpret 93M(1), Mr Nugawela: it fixes a termination day. That day is one year after the day on which the claim for compensation by way of weekly payments is made … subject only that if a later date is fixed by subsection (3) or subsection (4), that requires a fixing of a date ... under (4) by the director extending the termination date.
The balance of s 93M is as follows:
(3)If, after the expiry of the period of 3 months after the day on which the claim is made -
(a)a dispute resolution authority, acting under section 58(1) or (2), determines the question of liability to make the weekly payments claimed; or
(b)the worker is first notified that liability is accepted in respect of the weekly payments claimed,
the termination day is the last day of the period of 9 months after the day of the act described in paragraph (a) or (b) that was most recently done unless a later day is fixed under subsection (4).
(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(a)before the termination day, an approved medical specialist, in writing -
(i)certifies that the worker’s condition has not stabilised to the extent required for a normal evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and
(ii)recommends a day until which the termination day be extended;
or
(b)the Director is satisfied that the employer has failed to comply with section 93O; or
(c)the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or
(d)the Director is satisfied that -
(i)the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker’s degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or
(ii)the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker’s degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.
(5)In subsection (4) -
normal evaluation has the meaning given to that term in section 146C(3);
special evaluation has the meaning given to that term in section 146C(4).
(6)An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
(7)An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.
(8)An extension may be given even though the termination day has passed.
By s 93M(4) the Director has a discretion to extend the termination day but only if satisfied the employer has failed to comply with s 93O. Section 93O requires the employer to notify the worker in writing in accordance with the regulations of the termination day if no later day were fixed under s 93M(4) and to do so within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under s 93M(4).
In order to understand the significance, or the potential significance, of some of the evidence presented it is also necessary to briefly have regard to the provisions of s 57A and s 57B of the Act.
When a claim for compensation by way of weekly payments by a worker is made in accordance with s 178(1)(b), (s 178(1)(b) requires the claim for weekly payments, or for any form of compensation for that matter, to be made within 12 months of the date of injury), and the employer in turn has made a claim under its contract of insurance , s 57A requires the insurer within 14 days to give the worker notice that liability for his or her claim is either accepted, disputed or that further time is required in which to make a decision. In the event notice is given that no decision can be made as to liability to make weekly payments, the Act gives the insurer a further 10 days to accept or deny liability. Should the insurer fail to give notice within the 10‑day period liability the claim is deemed to be disputed. The notice, if given, should be by way of a form prescribed under the Regulations, being a Form 3A.
The claim might in fact be disputed for any one of a number of reasons, such as the claimant is not a worker as that term is defined, the purported employer is not the employer, the alleged injury was did not arise out of or in the course of the employment, the worker is not incapacitated or if incapacitated can earn as much in suitable alternative employment as he or she would otherwise be entitled to if not injured, or that any incapacity is not caused by the alleged injury. This list is far from exhaustive. It can take some time to reach a decision on these issues. Investigations may need to be conducted, witnesses located and interviewed, medical experts engaged, medical reviews of the worker undertaken and expert reports provided.
In the case of an uninsured employer, or a self-insured employer, the position is governed by s 57B. Unlike the requirement found in s 57A, the worker is not required to be given notice that liability for weekly payments is accepted. Rather, the employer where liability is accepted is required to make the first of those weekly payments. Section 57B would apply here once Ms Reale made a claim for compensation by way of weekly payments.
It seems clear that in a situation governed by s 57B the worker will become aware that liability for the claim for weekly payments has been accepted by either the receipt of written or oral advice to that affect or the receipt of the first of weekly payments of compensation. Notwithstanding the Kleenheat's submission at par 36 that Mr Reale was never 'formally' notified, whatever that term precisely means, there is; (a) no evidence that Ms Reale was not formally notified that liability was accepted, and (b) no requirement in the legislation to give 'formal' notification. I assume the reference to 'formal' is intended to refer to notification by way of some type of a form if not a form prescribed under regulations. There is nothing in the Act to preclude 'informal' notification.
If liability is disputed then the worker may make an application to resolve the dispute which ultimately will be determined by a dispute resolution authority established under the Act. In practical terms, the determination will most usually be made by either the Registrar or an Arbitrator of the Workers' Compensation Arbitration Service. Given the statutory regime which requires a dispute to first be conciliated in the Workers Compensation Conciliation Service within a period of 8 weeks and in the event it was not resolved by conciliation allows up to four weeks to lodge the application for arbitration in the Workers' Compensation Arbitration Service, any dispute will most likely be determined well after three months has expired from the date the claim for weekly payments was made.

Until the worker knows what is the position regarding his or her claim to weekly payments he or she faces uncertainty in deciding what to do about any potential claim for damages at common law. The Act allows up to $217,970 in weekly payments and in the case of permanent total incapacity up to a further 75% thereof.
However, the amount of damages that might be awarded to a worker on a common-law claim may be restricted. The Act requires the worker to obtain a determination as to his or her degree of permanent impairment, all of which takes time. If the degree of permanent impairment is between 15% and 25% the worker's damages will be capped and the worker needs to decide whether financially it is better for him or her to remain in receipt of his or her workers' compensation entitlements or to run all the risks associated with pursuing a common-law claim. The worker cannot effectively answer this question unless he or she knows whether he or she has an entitlement to compensation, and if so, what those entitlements may be worth, an answer which is best evaluated if and when the employer accepts liability or an arbitrator determines the question. Parliament appears to have recognised both of those processes take time and that, in circumstances in which there is a delay in obtaining an admission of liability or a determination that the employer is liable, the worker should be given further time in which to obtain the necessary medical assessments and to elect. This, in my view explains why Parliament has enacted s 93M(3).
Section 93M(3) contemplates that the addition time will be such that the worker will effectively still have at least the 12 months as contemplated he or she would have under s 93M(1), constituted by at least three months for the acceptance of liability or determination of an arbitrator (which is very likely to take longer) plus 9 months to obtain the requisite medical assessments and to elect.
It also seems clear that Parliament, having taken away some of a workers previously existing common law rights was concerned to offer some protection to what was left. To this end Parliament required the employer give the worker notice of the termination day and in the event the employer failed to do so to give the Director a discretion to extend that date. In my view this explains why Parliament enacted s 93O and s 93M(4)(b).

The defendant's evidence

The defendant's evidence is constituted by the affidavit of Danielle Ansley. She deposes to being employed by Wesfarmers and that Wesfarmers and all of its subsidiary companies, including Kleenheat, are self‑insured for the purposes of the Act.
Ms Ansley goes on to give evidence that on the 2 March 2012 Ms Reale lodged a workers compensation claim form, had previously applied for one week's annual leave to commence 22 February 2012 and returned to work on restricted duties. She says that on 15 March 2012 Ms Reale was sent a notice by way of a Form 3A that liability was accepted for medical expenses (I interpolate here to make the point, not liability for weekly payments of compensation) and that by letter dated the 28 June 2012 Wesfarmers advised Kleenheat that liability for weekly payments was accepted.
In par 13, she says:
It is unclear whether a copy of this letter was provided to the plaintiff at that time, but it would have been very unusual if it had been.
Also included among the annexures to that affidavit is a workers' compensation claim form signed by Ms Reale dated 2 March 2012. The claim form on the face of it does not profess to be a claim for weekly payments of compensation but just 'compensation' generally. A first medical certificate was issued on 24 February 2012, some one week earlier, in which Ms Reale was certified by her general practitioner as being fit for a restricted return to work on restricted duties. Whilst this may demonstrate a reduction in ability to sell her labour in any reasonably accessible labour market, in other words demonstrate the existence of a partial incapacity, it does not demonstrate an existence of an entitlement to weekly payments of compensation having regard to the calculation of weekly payments that has to be made pursuant to the statutory formula set out in sch 1 cl 7(2).
However, at the same time as completing the workers' compensation claim form, the worker has signed an authority to use sick/annual leave in which she requests to be paid sick/annual leave whilst waiting a decision to be made on the workers' compensation claim she had submitted and stating that she is willing to accept sick/annual leave for the interim 'until the insurer accepts my claim, at which time my leave entitlement will be reversed'. In this regard I observe s 80(2) of the Act provides for reimbursement of sick leave if weekly payments of compensation are subsequently made. This document demonstrates that in Ms Reale's mind that she was unfit for work but that if she took time off work she would not receive weekly payments of compensation (at the time she took the time off work) and therefore needed to take her sick leave. This action is not consistent with taking sick/annual leave simply because an entitlement to a claim for medical expenses is pending. It is only consistent with taking sick/annual leave as a result of incapacity in circumstances in which a claim for weekly payments is made whether by way of a prescribed form or otherwise.
At Annexure DA9, again on Wesfarmers' letterhead, a Form 36 issued under the Act, giving Ms Reale notice about her termination day for purposes of making any election to claim damages at common law pursuant to the provisions of s 93O of the Act. This form is dated 17 August 2012 and described the termination day as 3 March 2013.

The plaintiff's evidence

Relevant annexures contained in the affidavit filed by Ms Reale include a progress medical certificate dated 20 June 2012 certifying Ms Reale as being totally unfit for work. She deposes that it was only after having received the certificate that she stopped working, although at par 3 of her affidavit she deposed to having taken approximately one week's annual leave after the accident following which she returned to normal duties avoiding heavy lifting.
The medical certification of incapacity found in the progress medical certificate dated 20 June 2012 appears to have been the catalyst for Wesfarmers issuing the Form 3A notice advising that liability was accepted in respect of weekly payments.

Findings

Having regard to that evidence I find on the balance of probabilities Ms Reale made a claim for compensation by way of weekly payments on 2 March 2012 when she lodged the 'claim for compensation form'. What persuades me to this view is that at the same time she signed an authority to use sick/annual leave pending a decision being made on the workers' compensation claim and acknowledged her leave entitlements would be reversed if acceptance of the claim was ultimately made by the insurer and that those leave entitlements may not be reversed if liability for the claim was refused. There was no need to do this if Ms Reale was not seeking weekly payments of compensation for incapacity, whether it be total or partial.
I find that on 28 June 2012 Wesfarmers as the duly authorised agent of Kleenheat gave notice to Kleenheat that liability was accepted in respect of weekly payments of compensation. I am unable to find exactly when Ms Reale became aware that liability to make weekly payments of compensation was accepted as there is no evidence directly on this point from either Kleenheat or Ms Reale. However it is clear that whenever it was that Ms Reale became aware that liability for weekly payments was accepted it was not before 28 June 2012. I am satisfied that Ms Reale became aware that liability for weekly payments was accepted as it seems inevitable that, following Wesfarmers' advice to Kleenheat, Kleenheat made the first of the weekly payments and that the fact of this would have become apparent to Ms Reale when those payments appeared in her pay packet or bank account. I am satisfied on the balance of probabilities that she became aware of this on about 28 June 2012 or subsequently.
I find that on 17 August 2012 Wesfarmers as the duly authorised agent of Kleenheat purported to give to Ms Reale the notice prescribed under s 93O of the Act, but for the reasons that follow did not in fact do so.
In light of those findings I now find it useful to consider what would have been the termination day if calculated pursuant to s 93M(1),(3) and s 93M(4).

Section 93M(1)

Having regard to the provisions of s 93M(1) the termination day for an election to retain the right to seek damages becomes 2 March 2013. This is because having regard to the provisions of the Interpretation Act 1984 s 61(1)(b), 2 March 2012, being the day on which the claim for compensation by way of weekly payments is made on Kleenheat, is excluded from the calculation of the period of one year, which is to commence 'after the day on which the claim for compensation by way of weekly payments is made'. Thus the first day of the period of one year commencing after 2 March 2012 is 3 March 2012, and the last day of the period of one year is 2 March 2013.
Before departing this point, I must say I do not agree with the submission that because the termination day fell on an excluded day as that term is defined in the Interpretation Act that therefor the termination day became the next working day (in this case 5 March 2012). By s 61(1)(e) and or s 61(1)(h) all it means is that the termination day remains the same but that anything that needed to be done on or before the termination day (in this case to elect to claim damages at common law) could be done on the next working day.

Section 93M(3)(a)

There is no suggestion that a dispute resolution authority determined any question as to the plaintiff’s entitlements to weekly payments under s 58 or at all. This provision is inapplicable.

Section 93M (3)(b)

This section sets the termination date as 9 months after the worker is first notified that liability is accepted in respect of the weekly payments claimed unless a later day is fixed under s 93M (4). This begs the question, what is meant by the word 'notified'?
The Macquarie Dictionary Online defines 'notified' as:
1.to give notice to, or inform, of something.
2.to make known; give information of: the sale was notified in the newspapers.
[Middle English notifie(n), from Old French notifier, from Latin nōtificāre make known]
The Oxford English Dictionary Online, relevantly defines it as:
2.Of which notice has been given to the appropriate (esp. medical or statistical) authorities.
To give 'notice' essentially means to convey information.
For a worker to be notified that lability has been accepted information of the acceptance must have been made known to the worker in some form. The form could be by way of the spoken or written word or by some manner of action.
I have found it was made known to Ms Reale in one way or another that liability for weekly payments was accepted on or subsequent to 28 June 2012. This being the case it follows the termination date if calculated under this subsection was either 28 March 2013 or later.

Section 93M(4)(b)

This section provides:
(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(b)the Director is satisfied that the employer has failed to comply with section 93O; …
Section 93O is as follows:
93O.Employer to give worker notice of certain things
(1)At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations -
(a)of the day that would be the termination day if no later day were to be fixed under section 93M(4); and
(b)that about 6 months remains before the termination day; and
(c)of the significance of the termination day for the worker's ability to seek damages; and
(d)of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker's degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.
(2)The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).
In this case, given the Director's delegate extended the termination date because she was 'satisfied' there had been non-compliance with s 93O, the questions that arise are:
(a)Was notice given of the day that would be the termination day if no later day was fixed under s 93M(4)?
(b)Was notice given within the period of 6 months and 6 months and 14 days prior to the termination date?
(c)Was the Director's delegate 'satisfied' there was a failure to comply with s 93O?
The answer to question (a) is no. It is my view the termination day as fixed by s 93M (1) or s 93M(3)(b), is 2 March 2013, or on or after 28 March 2013 respectively.
Having regard to the comments of Corboy J in Bush Goldman v Damian Stewart as Director of WorkCover (WA) the termination day as set by s 93M(1) was displaced by the date set by s 93M(3)(b). Accordingly, the termination date was, 28 March 2013 or subsequently. The notice stated the termination day was 3 March 2013. So, notice of the termination day was not given.
The answer to question (b) is no. Notice was given on 17 August 2012. It should have been given within the period of 6 months and 6 months and 14 days before 28 March 2013. Irrespective of when the termination day exactly was, and mindful that it was not before 28 March 2013 the notice should have been given on or after 13 September 2012. Whilst I cannot say when exactly it should have been given I can say when it should not have been given. It should not have been given on 17 August 2012.
The answer to question (c) is yes.
It was argued that in the event the termination day may be set by the operation of s 93M(3) it could not then be extended by the Director under s 93M(4) and vice versa. It was argued that the use of the word 'or' in s 93M(1) meant that the termination date could only be extended under s 93M(3) or s 93M(4) with subsections (3) and (4) operating to the exclusion of the other.
I can see no justification for such an interpretation. The meaning of legislation should be ascertained by the plain meaning of the words or, where that is ambiguous, by reference to the legislative purpose of the Act as a whole - see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [70], [71] and [78].In this case it seems clear to me that the use of the word 'or' is to manifest an intention that the subsections are to provide alternative termination dates to the termination date initially set by s 93M(1).
In my view the underlying legislative purpose of these provisions is that, in curtailing the workers right to pursue damages at common law, the worker's remaining rights would be somewhat protected by requiring the employer to give the prescribed notice at the prescribed time of the termination date.
This also makes sense if regard is had to the starting point, namely that Parliament envisaged that generally a worker would be required to elect within 12 months of the day in which the claim for compensation was first made. Subsection (3) fixes the termination date to 9 months if after the period of three months a decision is made on the question of liability or if the worker is notified liability is accepted. That is, after the expiration of three months and one day if either of these events occur, the worker has 9 months. That has an attractive symmetry with Parliament's idea that an election will be made within 12 months. However, clearly Parliament contemplated there would be circumstances in which neither of these things would happen around the 12‑month mark for a variety of reasons. It may be that it would take longer to determine the question of liability or to admit liability, for any one of a number of reasons including the need to investigate the claim and speak to the witnesses to the alleged accident or obtain the necessary medical support for the claim, and in the circumstances set out in s 93M(4) it may be that the worker's condition had not stabilised or he was unable to obtain a report within the prescribed time. It is clear that parliament also contemplated that a worker may be unaware of the impending deadline that would extinguish his entitlements to common law damages if he didn't make the election within time. It is for this reason that it required the employer to give the notice prescribed by s 93O alerting the worker to these potential consequences. By giving the worker at least six months' notice of the last day for election the worker is able to take steps to obtain the necessary medical assessment of his permanent impairment or attempt to do so and to lodge the necessary paperwork with the Director.
It makes no sense to require notice to be given of a termination date of 12 months after the claim was made, as required by s 93M(1) but not to do so when a new termination date is set by operation of s 93M(3), particularly when notice of the acceptance of liability is given after three months from the time the claim is made, so establishing a new termination date, but before any notice was ever given under s 93M(1) of any termination date at all (which if only s 93M(1) applied would be required to be given some 5 months and 14 days after the claim for weekly payments by way of compensation was made).
In these circumstances, not to require an employer to give notice of the new termination date set by s 93M(3) when the initial one set by s 93M(1) has been rendered nugatory, and even more so when notice of the initial termination day and the consequences of missing it has not even been given at all, does not achieve the statutory purpose of those provisions.
So s 93M(3) and s 93M(4) deal with different issues and operate disjunctively with s 93M(1). Further, there is no reason, given the different concerns s 93M(3) and s 93M(4) address, why they cannot and should not operate simultaneously with each other whilst remaining at the same time alternatives to each other.

Conclusion

As indicated in my opening comments, much the language used in the course of argument was around the 'jurisdiction' of this court to award damages. Whilst court has jurisdiction to deal with claims for bodily injury - see District Court Act 1969 s 50(2), by s 93K(4) of the Act this court cannot award damages unless Ms Reale has elected in accordance in the manner prescribed in the regulations, to retain the right to seek the damages.
In circumstances where the Director's delegate has extended the termination date to 28 March 2014 in the absence of any argument being raised as to the validity of Ms Reale's election the presumption of regularity would have been sufficient to give this court jurisdiction to award damages.
However a challenge to the validity of the election being made based on the proposition that the delegate had no power to extend the termination day, one of the first questions that arose was whether that was an impermissible collateral attack on the delegate's decision.
In Selby v Pennings (1998) 19 WAR 520 the respondent had been charged of being without authorisation, in an area of a forest classified by notice published in the gazette by the Minister for the Environment. A challenge had been made to the validity of the notice which was found by the magistrate to be beyond the powers of the minister. The Full Court of the Supreme Court of Western Australia upheld the magistrate's approach. At page 536 Ipp J referred to the decision of Gaudron J in Ousley v The Queen (1997) 192 CLR 69, 87 saying the validity of an instrument made in the discharge of an administrative function (save for issues as to the validity of certain warrants in which the sufficiency of the materials supporting the exercise of the discretion to issue could not be examined) 'may be challenged in collateral proceedings, no matter the court in which those proceedings are heard'. Whilst that case was concerned with a criminal prosecution I can see no reason why the same principles should not apply in civil proceedings. Owen J (at page 549) observed that the law still regards the consequences of a criminal conviction as a matter of grave concern.

I have no doubt the law regards a person right to be compensated for bodily injury a matter of grave concern as well. Accordingly it is open to, and necessary for, this court to look behind the delegate's decision to extend the termination day to ensure the decision was within power and that the jurisdictional pre‑requisites for awarding damages do in fact exist. The validity of the act of the delegate in extending the termination date requires an enquiry into more than simply whether the delegate was satisfied there had been non‑compliance. Whilst the discretion to extend the termination date is enlivened by the delegate being satisfied there has been non‑compliance with s 93O, the state of being satisfied must be arrived at rationally in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223. That is, the delegate’s discretion can only validly be enlivened in the absence of a failure to adhere to relevant criteria, absence of bad faith, dishonesty and unreasonableness.
Wednesbury's case has been applied in Australia. In Minister for Immigration and Citizenship v Li [2013] HCA 18 it was said [29] ‑ [30]:
A connection between vitiating unreasonableness and an implied legislative intention was made by Brennan CJ in Kruger v Commonwealth:⁷⁶
[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. (footnote omitted)
In similar vein, Gaudron J said in Abebe v Commonwealth,⁷⁷ in a passage quoted by Crennan and Bell JJ in SZMDS:⁷⁸
[I]t is difficult to see why, if a statute which confers a decision‑making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.'⁷⁹ As Professor Galligan wrote:⁸⁰
The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable.⁸¹ It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts.⁸² Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut,⁸³ may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
In this case the focus is on whether the delegate adhered to relevant criteria, or whether there was any absence of reasonableness in the sense used above for the delegate to be satisfied that Kleenheat had not given the prescribed notice. It has it had not been demonstrated the delegate failed to adhere to relevant criteria or that her satisfaction was unreasonably attained. To the contrary, I find it was reasonably reached.
I have found that Kleenheat did not give the notice required by s 93O, found that the Director's delegate was satisfied that Kleenheat had not given the notice required by s 93O, found the Delegate's discretion to extend the termination date was enlivened, found that the termination date was extended to 28 March 2014 and found that the worker elected before 28 March 2014.
In my view, those findings establish that Ms Reale had validly elected to pursue her claim for damages and therefore the jurisdictional prerequisites for this court to award damages are established.
In the event this application should more properly be regarded as an application for summary judgement the defendant had failed to satisfy me as to the matters set out in the Rules of the Supreme Court 1971, O 16 r 1, namely that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should otherwise be disposed of without pleadings.
Either way the defendant's application brought on the basis there is no jurisdiction to award damages should be dismissed.