Sisters of the Good Shepherd v Stokes, Anne Elizabeth

[1998] TASSC 116

116/1998

PARTIES:  SISTERS OF THE GOOD SHEPHERD

v
STOKES, Anne Elizabeth

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 5/1997
DELIVERED:  25 September 1998
HEARING DATE/S:  6 August 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Estoppel - Estoppel in pais - The representation - By conduct - Waiver - Worker seeking resumption of terminated weekly payments not initially relying on failure of employer to give notice complying with statute - Whether right to rely on non-compliance waived - Whether worker estopped from relying on invalidity of non-complying notice.

The Commonwealth v Verwayen (1990) 170 CLR 394, distinguished.
Workers Rehabilitation and Compensation Act 1988 (Tas), s86(3) and (3A).
Aust Dig Estoppel [44]

REPRESENTATION:

Counsel:
             Appellants:  G W Tremayne
             Respondent:  R M Grueber
Solicitors:
             Appellants:  Griffits & Jackson
             Respondent:  Jennings Elliott

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  116/1998
Number of pages:  5

Serial No 116/1998
File No LCA 5/1997

SISTERS OF THE GOOD SHEPHERD v ANNE ELIZABETH STOKES

REASONS FOR JUDGMENT  COX CJ

25 September 1998

On 8 April 1992 the respondent suffered an injury that arose out of and in the course of her employment with the appellants.  The appellants thereby became liable to pay compensation to the respondent in respect of the said injury pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25 and (inter alia) commenced payments of weekly compensation to the respondent. The weekly payments of compensation then being made to the respondent by the appellants was terminated on 18 February 1996. Notice of the appellants' intention to terminate the weekly payments of compensation under the Act, s86(1)(c) was served on the respondent pursuant to the Act, s86(3) on 8 February 1996 together with a certificate that the parties are agreed was sufficient for the purposes of s86(1)(c).

The Act, s86(3) and (3A) reads as follows:

86 ¾ …

"(3)    An employer who, for the reasons specified in subsection (1)(c), (d) or (e), intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker -

(a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and

(b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1)(c), a copy of that certificate.

(3A)  A notice referred to in subsection (3)(a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination."

The notice of intention to terminate the weekly payments of compensation then being made to the respondent did not include the statement required by the Act, s86(3A). On 22 February 1996 the respondent referred the matter to the Workers Rehabilitation and Compensation Tribunal for determination pursuant to the Act, s86(4). On 19 April 1996 the parties attended a conference with the Registrar of the Tribunal pursuant to the Act, s42(5). At that conference the solicitor representing the respondent said that there might be some issue about the procedure by which the termination of the respondent's weekly payments of compensation had been effected, without specifying what that issue would be, and undertook to advise whether that was so within fourteen days. On 20 June 1996 the respondent's solicitor wrote to the appellants' solicitor in the following terms:

"In respect of the matter before the Workers Rehabilitation and Compensation Tribunal, we advise that there will be no preliminary issue taken with the validity of the certificate.  However, we have advised the Tribunal that the matter will proceed by way of a hearing on the merits.'

On 19 August 1996 the parties attended another conference with the Registrar of the Tribunal. At that conference the respondent's solicitor confirmed that there was no dispute about the procedure used to terminate the weekly payments of compensation and that the only issue was whether the termination was justified. On 5 September 1996 the parties were given notice by the Tribunal that the matter would be heard on 5 December 1996. On I November 1996 the respondent's solicitor told the appellants' solicitor that the respondent might now dispute the validity of the certificate. On 29 November 1996 the respondent's solicitor told the appellants' solicitor that the respondent would be "objecting to (the) form of (the) certificate". On 2 December 1996 counsel for the respondent told the appellants' solicitor that the respondent would argue at the hearing on 5 December 1996 that because the notice of intention to terminate the respondent's weekly payments of compensation did not include the statement required by the Act, s86(3A), the termination of the weekly payments was unlawful, relying on the decision of Zeeman J in Jones v Jones (1996) 6 Tas R 273. The matter was heard by the learned Chief Commissioner on 5 and 13 December 1996. No viva voce evidence was called on the hearing and the hearing was confined to legal argument.

The learned Chief Commissioner ruled that the notice to terminate weekly payments of compensation did not comply with the requirements of the Act, s86 because it did not contain the statement referred to in s86(3A) informing the worker of her right to refer the termination or reduction of the weekly payments to the Tribunal for decision. That being the case, the notice to terminate was not in compliance with the requirements of the section and he made an order restoring the worker's weekly payments of compensation, as the termination procedure was invalid. He over-ruled submissions by the appellants that the respondent had, by her conduct, waived her right to insist that the appellants comply with the procedural requirements of the Act, s86(3A) and, in the alternative, was estopped by her conduct from relying on the appellants' failure to comply with those procedural requirements.

The appellants now appeal to this Court alleging error of law by the Chief Commissioner in over-ruling those two submissions. The appellants originally sought to rely on grounds of appeal which challenged the proposition that the notice given to the respondent did not comply with the requirements of s86 and asserted that the Tribunal had misdirected itself as to the requirements for a valid and effective notice for the purposes of the Act, s86(3). Both these grounds were abandoned at the hearing of the appeal.

In Jones v Jones (supra), Zeeman J held that a notice of intention to terminate a weekly payment which does not comply with s86(3A) is not a notice of intention which authorises the termination of a weekly payment, notwithstanding that the injury in respect of which weekly payments were being made and were the subject of the termination notice had occurred prior to the passage of the Workers Rehabilitation and Compensation Reform Act 1995 ("the Reform Act") which commenced on 16 August 1995 and by which s86(3A) had been introduced. This view of the law was upheld by the Full Court in Swetnam Brothers Pty Ltd v Grundy 9/1998.  The abandonment of the grounds challenging the validity of Zeeman J's decision is accordingly appropriate.

At the hearing before the Tribunal in the Jones' case, it seems to have been accepted that because the relevant injury had occurred prior to the enactment of the Reform Act, s86(3A) had no application in respect of such an injury. At any rate, there appears to have been no argument to the contrary and the Tribunal made an order which recognised the validity of the termination notice, notwithstanding its failure to comply with that subsection. It was on the hearing of the appeal before Zeeman J in late October 1996 that his Honour raised the question and it was thereupon argued by the employer that the Reform Act, Sch2, par19 (which has effect by virtue of s92(1) thereof) operated to exempt such a notice from the requirement of the Act, s86(3A). Schedule 2, par19 provides as follows:

"19 ¾ Except as provided in section 69A of the Workers Rehabilitation and Compensation Act 1988, all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under the Workers Compensation Act 1988 as in force immediately before that day."

The decision of Zeeman J handed down on 13 November 1996 was to the effect that par19 did not operate to make s86(3A) inapplicable to the notice served on the worker in the Jones' case. At the time that the respondent to this appeal referred her matter to the Tribunal, there was therefore no decision binding on the Tribunal that the subsection was applicable to a notice served on a worker who suffered injury prior to the commencement of the Reform Act. It is understandable that the respondent and her advisers should take the view that the appellants' failure to give a notice complying with s86(3A) would not avail her and that the publication of Zeeman J's decision on 13 November 1996 should have led to their advising the appellants' solicitor on 2 December 1996 that she would now seek to rely upon it when the matter came on for hearing a few days thereafter.

Notwithstanding that non-compliance with the statute would normally render the notice of termination invalid for the purposes of s86, the respondent could have waived her right to reply upon it. It is well established that "a statutory provision introduced for the benefit of an individual can be waived by him if waiver is not forbidden by law" (Flannagan v Milne (1919) 27 CLR 1 at 10; and see Wilson v McIntosh [1894] AC 129; Evans (D & J) Pty Ltd v Hawthorn, City of [1967] VR 212; Bock v Don-Rex Furniture (Qld) [1981] Qd R 326 and see also the cases cited by McHugh J in The Commonwealth v Verwayen (1990) 170 CLR 394 at 492). The requirement to give the notice contemplated by s86(3A) is clearly one which is capable of waiver, in my view. But for a right to be waived, there must be a conscious abandonment of it by the person entitled to it. In The Commonwealth v Verwayen (supra) at 427, Brennan J said:

"As a right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it, a mere intention not to exercise a right is not immediately effective to divest or sterilize it."

In the same case, which involved the question whether the Commonwealth had waived or was estopped from relying upon defences such as that available under the relevant Limitation Act and that it was not liable for injury sustained by servicemen during combat exercises, Toohey J said at 472 - 473:

"In this appeal we are concerned with waiver as it exists within the adjudicative process.  It is commonplace to speak of a person 'waiving' a right, for instance, by submitting to the jurisdiction of a court which otherwise has no jurisdiction over him, by not insisting upon arbitration, where an agreement so provides, by not taking advantage of some irregularity in proceedings or by not pressing a particular argument that is available at trial: see, by way of example, Graham v Ingleby (1848) 1 Ex 651 [154 ER 277]; Park Gate Iron Co v Coates (1870) LR 5 CP 634; Ward v Raw (1872) LR 15 Eq 83; Fry v Moore (1889) 23 QBD 395; Shrager v Basil Dighton Ltd [1924] 1 KB 274; Water Board v Moustakas (1988) 62 ALJR 209; 77 ALR 193.

Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate.  Detriment is not an essential attribute of waiver, though it will often be found as a consequence.  Within the adjudicative process at any rate, it is enough that the defendant 'renounces' a defence which is available to him and which is there for his benefit."

In the circumstances of that case, he held that the Commonwealth, in earlier advising the respondent's solicitors that it was not relying on the Limitation Act and was not defending the actions, save as to the amount of damages to be awarded to the respondent/plaintiff, had unequivocally renounced both defences and could not retreat from that position.  Gaudron J held that "it is clear that a party to litigation will be held to a position previously taken (that position having been intentionally taken with knowledge) if, as a result of that earlier position, the relationship of the parties has changed" (at 484).  McHugh J, who like Mason CJ and Brennan J was in the minority, was of the view that the Commonwealth's action was not enough to attract the principle of waiver, as the principle "has nothing to say about a case where a party has done no more than consciously refuse to plead a defence or a cause of action" (at 498).

In the present case, the issues were not even defined by pleadings which might have been the subject of an application to amend.  No pleadings are required before the Tribunal and nothing in the nature of pleadings was delivered.  The respondent's advisers informed the appellants' solicitors at a conference with the Registrar in April 1996 that "there might be some issue about the procedure by which the termination of the Respondent's weekly payment of compensation had been effected, without specifying what the issue would be, and undertook to advise whether that was so within 14 days" (agreed fact 7).  Their advice in June 1996 was that no preliminary issue would be taken with the validity of the (doctor's) certificate and that they had advised the Tribunal that the matter would proceed by way of a hearing on the merits.  Neither of those communications could be said to amount even to a conscious refusal to plead a defence or a cause of action, let alone the intentional taking of a position with knowledge, leading to an alteration in the relationship between the parties.

On 19 August 1996, the parties attended a further conference and it is an agreed fact that at that conference the respondent's solicitor confirmed that there was no dispute about the procedure used to terminate the weekly payments of compensation and that the only issue was whether the termination was justified.  This likewise cannot be said to be a refusal to rely on the statutory provision which existed for the respondent's benefit.  At best, by way of analogy to pleadings had they been delivered, the statement was "no more than a party's definition of the issues which that party intends to litigate" (per Brennan J in The Commonwealth v Verwayen (supra) at 426, referring to Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 84 - 87). It would be fair to describe it as a "loose" definition at best. Had pleadings been required, and specifically the pleading of reliance on that statutory provision, the respondent would not have been precluded by any concept of waiver from seeking to amend so as to plead that reliance.

Those members of the Court in The Commonwealth v Verwayen (supra) who upheld the appeal on the basis of estoppel were of the view (in the case of Deane J) that:

"The claimed estoppel does not arise merely from the Commonwealth's failure to deny liability in the pleadings.  It arises from the fact that other actions of the Commonwealth constituted an unambiguous representation to Mr Verwayen that liability would not be contested, that is to say, that a limitations defence would not be relied on and that breach of a duty of care would not be denied. The assumption upon which Mr Verwayen acted was knowingly and deliberately induced and the resulting material relationship of wrongdoer and wronged was deliberately established so that the action could proceed expeditiously to the assessment of damages."

while (in the case of Dawson J) at 462:

"By falsely raising his hopes, the appellant led the respondent to continue with the litigation and forgo any exploration of the possibility of settlement thereby subjecting himself to a prolonged period of stress in an action in which the damages claimed were for, amongst other things, a high level of anxiety and depression."

In the present case, however, whatever assumption upon which the appellants were acting, it was not knowingly and deliberately induced in the sense that any reliance upon s86(3A) was identified by the respondent and said to have been abandoned and there was no inducement which led the appellants to continue with the litigation to their detriment. They were already resisting the reference which sought a restoration of the weekly payments on other grounds and their position was made no worse by the fact (if it be a fact) that the respondent's conduct may have led them to believe until shortly before the matter proceeded to trial before the Chief Commissioner that reliance would not be placed upon s86(3A). It was submitted in argument that the appellants had suffered a detriment in that they failed to issue a fresh notice incorporating the advice required by s86(3A), but there was no evidence that had they been alerted to the fact they would have adopted such a course and no reason to draw that inference. Indeed, up to the time when the appeal was heard, their grounds of appeal disputed that their original notice did not comply with the requirements of s86 because of the absence of the statement required by s86(3A) and that the notice was valid and effective. In my view, there was nothing unconscionable ¾ or unconscientious (see Deane J in The Commonwealth v Verwayen (supra) at 444) ¾ about the respondent's conduct.

I would dismiss the appeal.