State of Tasmania v Herlihy
[2019] TASSC 5
•12 February 2019
[2019] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: State of Tasmania v Herlihy [2019] TASSC 5
PARTIES: STATE OF TASMANIA
v
HERLIHY, Elaine Mary
FILE NO: 2668/2018
JUDGMENT
APPEALED FROM: The State of Tasmania (Department of Health & Human Services) v H (Ref No 904/17) [2018] TASWRCT 23
DELIVERED ON: 12 February 2019
DELIVERED AT: Hobart
HEARING DATE: 5 December 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Determination of claims – Procedure – Generally – Service of notices – Service by email.
Electronic Transactions Act 2000 (Tas), s 6(1).
Aust Dig Workers Compensation [306]
REPRESENTATION:
Counsel:
Appellant: P Turner, L Kelly
Respondent: R J Phillips, A Kendall
Solicitors:
Appellant: Solicitor-General
Respondent: Phillips Taglieri
Judgment Number: [2019] TASSC 5
Number of paragraphs: 30
Serial No 5/2019
File No 2668/2018
STATE OF TASMANIA v ELAINE MARY HERLIHY
REASONS FOR JUDGMENT BLOW CJ
12 February 2019
This case relates to the validity of service of a notice by email. It is an appeal from a determination of the Workers Rehabilitation and Compensation Tribunal, which was constituted by its Chief Commissioner, Ms L Wilkins. The respondent to this appeal, Elaine Herlihy, is a nurse who at all material times was employed by the appellant, the State of Tasmania. It appears that she was injured in the course of her work on 3 July 2017. She made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the WRC Act") in respect of that injury. The State received her written claim on 18 July 2017. The State decided to dispute her claim. On 6 October 2017 it filed a referral under s 81A of the WRC Act in the Tribunal. Under s 81A(1), it was required to serve the worker with written notice that it disputed liability within 84 days after receiving the claim for compensation. That period expired on 10 October 2017. On that day a licensed enquiry agent took the appropriate notice to the worker's home at Hamilton, found nobody home, and left the document on the front doorstep, with the doormat holding it in place. That was not valid service: WRC Act, s 159(1)(a).
However the notice required by s 81A(1) was also sent to the worker by email by an agent of the State on 6 October 2017. In the Tribunal proceedings, the State contended that the sending of the notice to the worker by email amounted to sufficient service for the purpose of s 81A(1). The learned Chief Commissioner took the view that it was not, and dismissed the s 81A referral for want of jurisdiction: The State of Tasmania (Department of Health & Human Services) v H (Ref No 904/17) [2018] TASWRCT 23. This is an appeal from that decision.
The requirement for service is contained in s 81A(1) of the WRC Act. That subsection reads as follows:
"(1) An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81(1) or benefits under Division 2 of Part VI must, within 84 days of receiving the claim for compensation in respect of the injury to the worker —
(a) serve the worker with written notice that the employer disputes liability —
(i)to pay compensation by way of weekly payments; or
(ii)to pay any benefits payable under Division 2 of Part VI in respect of the injury; and
(b) inform the worker of the reasons for disputing liability; and
(c) refer the matter to the Tribunal."
The State relies on s 6(1) of the Electronic Transactions Act 2000 ("the ET Act"). That subsection reads as follows:
"(1) If, under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where —
(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) the person to whom the information is required to be given consents to the information being given by means of an electronic communication."
Section 6(5) of the ET Act defines "giving information" to include "serving a notification". It follows that the service of the notice required by s 81A(1) of the WRC Act could be effected by means of an electronic communication if the requirements of s 6(1) of the ET Act were satisfied.
Section 3 of the ET Act contains the following definition:
"'consent' includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with".
The Tribunal proceedings
The claim form that was lodged by the worker contained a space for her email address. The worker provided her email address by writing it in that space. There was evidence that the State engaged a company named Jardine Lloyd Thompson Pty Ltd to act as its agent in relation to the worker's claim, and that a Mr Lucas Brown of that company sent the s 81A notice to the worker's email address on 6 October 2017.
There was evidence of four emails about the worker's claim having been sent to her email address prior to that date, as follows:
· On 20 July 2017, an officer of the Tasmanian Health Service, a State agency, Ms McKay, sent an email to a rehabilitation counsellor named Jackson Leonard. His contact details indicate that he was not an employee of the State. Ms McKay simultaneously sent a copy of that email to the worker's personal email address as provided on her claim form, as well as to her work email address, which was not.
· On 9 August 2017, Mr Leonard sent an email to Ms McKay, simultaneously sending copies to the worker's personal email address and to other recipients.
· On 23 August 2017, Mr Leonard sent a copy of a second email to the worker's personal email address.
· On 14 September 2017, Mr Leonard did that with a third email.
There was no evidence that, prior to the sending of the email to the worker on 6 October 2017, anything had happened to indicate to Mr Brown or to the State that the worker was able to access emails sent to the address that she had provided, that she had actually accessed any emails sent to that address, or that she had sent anything from that address.
The State relied on the following evidence:
· An email from Microsoft Outlook to Mr Brown dated 6 October 2017, sent one minute after his critical email, advising that it had been delivered to the worker's personal email address.
· An email from Mr Brown to an officer of the State dated 19 October 2017, advising that the worker had phoned on 16 October 2017 and said that there was nothing attached to the email of 6 October 2017 and no content to it.
· A screen shot from Jardine Lloyd Thompson showing that the email of 6 October 2017 and an attachment described as "s81a referral.pdf" were sent to the worker's personal email address on 6 October 2017.
The learned Chief Commissioner reviewed the evidence and expressed the following conclusions at [61]-[63]:
"61The onus of proof lies on the employer to satisfy the Tribunal that at the time Mr Brown purported to serve the s81A referral via email, it was reasonable to expect that the information was readily accessible so as to be useable for subsequent reference. The evidence is that at the time the email in question was sent by Mr Brown on 6 October 2017 at 2:34pm, the employer and the Fund Manager knew that the worker had an email address, and that emails had previously been sent to that address. Is there a sufficient basis to draw the conclusion that it was reasonable to expect the information forwarded via email would be readily accessible, or easily able to be retrieved by the worker?
62From the evidence available, there is nothing to indicate that either the employer or its Fund Manager were aware that the worker had, prior to 6 October 2017, been able to access her emails, had actually accessed her emails, or had communicated with anyone via that email address.
63I do not consider that the evidence shows there was a sufficient basis for there to be a reasonable expectation, at the time the email communication was sent on 6 October 2017 to the worker, that the communication would be readily accessible."
The learned Chief Commissioner also rejected the State's submissions as to s 6(1)(b) of the ET Act at [76], saying the following:
"76It is my conclusion that it cannot be reasonably inferred from the worker’s conduct – she provided her email address on the claim for compensation, and emailed her rehabilitation provider – that she consented to receiving information about her claim by means of electronic communication from her employer or its Fund Manager. The requirement under s6(1)(b) of the ETA has not been made out."
Section 6(1)(b) – consent
In order for this appeal to succeed, the State must establish that the learned Chief Commissioner erred in law both in relation to s 6(1)(a) of the ET Act and in relation to s 6(1)(b). I will address s 6(1)(b) first because I consider that the State's contentions in relation to that provision are very plainly wrong.
The State contends that the learned Chief Commissioner erred in law in concluding that the worker had not consented to receiving information about her claim by means of electronic communications. The question of whether the worker gave such a consent was a question of fact. However the question whether it was open to the Tribunal to conclude that the worker had not given such a consent is a question of law: Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354, at [22]-[28], [69]-[78]. The State contends that, on the evidence before the Tribunal, only one conclusion was open, namely that the worker had given the asserted consent.
There was no evidence that the worker had expressly consented to anything. The only evidence relied upon by the State to establish consent was the evidence that the worker had provided her personal email address when filling in the required claim form.
Section 34(1)(a) of the WRC Act requires a claim for compensation to "be in a form approved by the Board". The board referred to is the WorkCover Tasmania Board, which is established under s 8 of that Act. The form completed by the worker, under the heading "Injured Worker's Details" contains spaces for a claimant to fill in his or title (Mr/Mrs/Miss/Ms), surname, given names, residential address, postcode, daytime contact phone numbers, email address, date of birth, gender, and country of birth. In this case the worker provided those details. Neither s 34 nor the form offered her any choice about providing or not providing those details.
The claim form includes a section where the worker authorised medical practitioners and others to provide information to her employer and the insurer. At the beginning of that section of the form, there was a printed note saying, "You do not have to complete this Authority. However, not doing so may mean delays to your claim being finalised." There was nothing on the form to indicate that the worker had any choice about completing any other parts of the form.
Section 159(1)(a) of the WRC Act permitted the notice in question to be served on the worker either personally, by post, or by leaving it with someone who had apparently attained the age of 16 years at her residence or place of employment. Under s 6(1)(b) of the ET Act, she had a choice whether to consent to the service of the notice in question, or notifications generally, by means of an electronic communication.
Having regard to the state of the evidence, it was clearly open to the learned Chief Commissioner not to be satisfied that the worker, by her conduct in providing her email address in the appropriate part of the claim form, had consented to any sort of notification being given by means of an electronic communication. I therefore reject the State's contentions relating to s 6(1)(b). The appeal must therefore fail.
In my view, it was not reasonably open to the learned Chief Commissioner to make any other finding in relation to the issue of consent. The proposition that the worker gave the asserted consent by filling in her email address on the claim form is preposterous in the extreme.
Section 6(1)(a)
When the critical notice was sent by email on 6 October 2017, the worker was 68 years old. She was a nurse. She lived at Hamilton. She had both a work email address and a home email address. She had an iPad. She had a mobile phone.
On 6 October 2017, shortly before he sent the critical email, Mr Brown sent an email to an officer of the Department of Health and Human Services named Madonna Rose saying, in relation to the worker, "I note on her last certificate she is on leave do you know if she will be at home or is she away?" Ms Rose responded that afternoon saying, "You are right she is currently on leave and we believe she is in New Zealand. On this basis, can you please serve electronically …".
Some people check their emails when they travel overseas, but others do not. In order to satisfy s 6(1)(a) of the ET Act, the State needed to establish on the balance of probabilities that, at the time the critical email was sent, it was reasonable to expect that it would be "readily accessible". The State's case as to ready accessibility was not strong, given that the worker was believed to be in New Zealand.
However the State contends that the learned Chief Commissioner erred in law when considering s 6(1)(a) by failing to take into account evidence of information that was unknown to Mr Brown when he sent the critical email. Specifically, the State contends that the learned Chief Commissioner erred in failing to take into account the following:
· The sending of copy emails to the worker's personal email address by Ms McKay and Mr Leonard on 20 July 2017, 9 August 2017, 23 August 2017 and 14 September 2017, as referred to in [8] above.
· Evidence that Mr Leonard, the private rehabilitation counsellor, sent an email to the worker's personal email address on 6 September 2017 enquiring as to her progress, and that she replied that day.
· Evidence of an email from the worker to Mr Leonard on 20 September 2017 advising that she was taking a leave day.
· Evidence that, after Mr Brown sent the critical email at 2.34pm on 6 October 2017, Microsoft Outlook sent him an email at 2.35pm saying "Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server".
There was no evidence the worker had received the emails from Ms McKay and Mr Leonard, and thus no evidence that emails had been accessible to her. There was evidence that Mr Leonard's email of 20 September 2017 was accessible to the worker, in that she replied to it, but there was no evidence that Mr Leonard had informed Mr Brown or the State that his email had been replied to.
The State contends that, in determining whether, within the meaning of s 6(1)(a), that "it was reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference", the Tribunal was obliged to take into account not just the information available to the sender of the critical email, Mr Brown, but also the information available to Mr Leonard, as well as information that did not become available to anybody until after the critical email was sent. I disagree.
Section 6(1) is concerned with the situation where, "under a law of this jurisdiction, a person is required to give information in writing". The subsection is silent as to whose expectations are referred to when it refers to it being "reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference". Having regard to the structure and purpose of the subsection however, it is clear that the expectation referred to is that of the person required to give the information in writing. In this case, that "person" was the State of Tasmania. Mr Brown was the State's agent for the purpose of giving the information, but there was no evidence that Mr Leonard was an employee or agent of the State, as distinct from someone who had contracted to provide rehabilitation counselling services.
Section 6(1)(a) is concerned with what it was "reasonable to expect" not with the benefit of hindsight at the time of the hearing, but "at the time the information was given". In this case, those words are concerned with the time when the s 81A(1) notice was emailed to the worker. Information not available to the State, its employees or agents at the time when the email was sent must be irrelevant to the question of what it was reasonable for the State to expect at that time.
The learned Chief Commissioner was right not to take into account evidence of information about the accessibility to the worker of emails sent to her that was unknown to Mr Brown and the State when the critical email was sent. The grounds of appeal relating to s 6(1)(a) must therefore also fail.
Conclusion
For these reasons I have decided to dismiss the appeal.