Suleski v Sons of Gwalia Ltd - [2003] WASCA 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SULESKI -v- SONS OF GWALIA LTD [2003] WASCA 279

CORAM: STEYTLER J
MCKECHNIE J

HEARD: 3 NOVEMBER 2003

DELIVERED : 3 NOVEMBER 2003

PUBLISHED : 27 NOVEMBER 2003

FILE NO/S: CIV 2106 of 2003

MATTER :Section 84ZW of the Workers' Compensation & Rehabilitation Act 1981 (WA)
An application for leave to appeal from the Compensation Magistrate's Court

BETWEEN: BORIS SULESKI
Applicant
AND
SONS OF GWALIA LTD
Respondent

Catchwords:

Workers' compensation - Application for leave to appeal against decision of Compensation Magistrate - Purpose of s 57A(5) - Whether worker entitled to compensation payments when employer's application brought under s 60 rather than s 57A(5)

Legislation:

Interpretation Act 1984, s 18

Workers' Compensation and Rehabilitation Act 1981, s 24B, s 57A, s 60, s 62, s 84ZM

Workers' Compensation Rehabilitation Regulations 1982, reg 4

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr M D Cole
Respondent: Mr D W Williams

Solicitors:

Applicant: Terrace Law
Respondent: Mullins Handcock

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

Australasian Correctional Management v Francis [2002] WASCA 74
Glover‑Jackson v G & M Construction Pty Ltd, unreported, FCt SCt of WA; Library No 930231; 30 March 1993

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: The applicant sought leave to appeal against the decision of a Compensation Magistrate which turned upon the construction of s 57A of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). At the conclusion of the hearing we refused the application for leave to appeal and said that we would give our reasons for doing so in due course. These are those reasons.
The applicant suffered what he claimed to be a compensable disability on 9 May 1996. He made a claim against his employer, the respondent, for weekly payments of workers' compensation and appears to have served upon the respondent a signed medical certificate which accorded with the requirements of s 57A(1)(b) of the Act. The respondent was indemnified by a policy of insurance against its liability to pay the compensation claimed and, the applicant contends, it made a claim under that policy on 31 May 1996. The insurer was thereupon required, by the provisions of s 57A(3), before the expiration of 14 days after the claim was made by the respondent, to:
"(a)notify the worker to whom the claim relates and the employer that liability is accepted in respect of the weekly payments claimed;
(b)subject to s 75, notify the employer and the worker that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed, subject to the insurer not being prejudiced in any subsequent proceedings relating to the claim by the reasons stated in the notice; or
(c)notify the Director [of Conciliation and Review], the employer and the worker that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection and of the reasons why the decision is not able to be so made …".
Sections 57A(5) and (6) of the Act then provide as follows:
"(5)Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply to the Directorate for a determination under subsection (6).
(6)On an application under subsection (5) the Directorate may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined by the Directorate but without affecting his entitlement under subsection (5) in respect of the period before that determination."
The insurer gave notices under s 57A(3)(c) but, while these were dated 12 June 1996, the notice sent to the Directorate was apparently only received by it on 17 June 1996. The Compensation Magistrate consequently found (on a referral to him of the matter under s 84ZM of the Act) that, if these facts were to be established, then, in the light of the recent decision of this Court in Australasian Correctional Management v Francis [2002] WASCA 74 (in which it was held that the requirement to notify within 14 days is a requirement to cause that notification to be received within 14 days), it was "arguable" that s 57A(3) had not been complied with.
However, the applicant had not, at the time, made any claim under s 57A(5). Instead he applied, on 5 August 1996, by way of a Form 1 application (the form of application prescribed by reg 4 of the Workers' Compensation and Rehabilitation Regulations 1982 for use in the case of an election referred to in s 24B of the Act), for weekly payments of compensation in respect of the alleged disability suffered on 9 May 1996. On 3 September 1996 his claim was heard by a conciliation officer who ordered the respondent to pay weekly payments of compensation to the applicant for a period of 10 weeks from 9 May 1996. Then, on 15 October 1996, the review officer ordered ongoing weekly payments as for total incapacity.
Thereafter, matters took a somewhat tortuous course.
On 7 November 1996 the respondent appealed to a Compensation Magistrate against the decision of the review officer given on 15 October 1996. However, that appeal was overtaken by other events and was not proceeded with.
On 2 December 1996 the respondent lodged a Form 1 application under s 60 of the Act seeking a suspension of weekly payments upon the basis that there was a genuine dispute as to liability to pay compensation. It sought, in the alternative, a review of those payments under s 62 upon the ground that the applicant was no longer incapacitated or no longer fully incapacitated.
On 3 January 1997 the applicant lodged another Form 1 application by which he sought, in the event that the employer's application should be successful, that he receive weekly payments under s 62, which section empowers the Directorate, on a review of any weekly payment on the request either of the employer or of the worker, to discontinue, reduce or increase the payment, having regard to the past or present condition of the worker.
On 15 January 1997 the review officer found that a genuine dispute as to liability existed and upheld the respondent's application. The applicant's application was dismissed and weekly payments were ordered to cease.
On 29 July 1997 the worker lodged another application, seeking reinstatement of weekly payments pursuant to s 62 of the Act. That application came before a different review officer on 27 May 1998. Concerned that the application might involve issues already determined on 15 January 1997, he referred the matter to a Compensation Magistrate. That Magistrate held that the worker was not barred from proceeding with his application and the matter was remitted to the review officer for determination. Then, on 30 July 1999, in the course of a preliminary review hearing, the review officer raised, for the first time, the question whether or not there had been a breach by the insurer of s 57A(3) of the Act. On 10 August 1999, against the wishes of both parties, the review officer referred that question to a Compensation Magistrate, along with a further question whether legal professional privilege attached to certain documents. The Compensation Magistrate decided the question relating to the issue of legal professional privilege, but not that under s 57A(3), seemingly because the applicant chose not to contest the respondent's contention that it had complied with the Act.
The matter was returned to the review officer, who subsequently referred it to a medical assessment panel. The applicant thereupon applied, successfully, to this Court for a writ of certiorari to quash the panel's determination. The matter went back to the review officer who again referred it to a medical assessment panel. The applicant appealed to a Compensation Magistrate, contending that the review officer should have made findings of fact before referring the matter to the medical assessment panel. That contention was upheld and the Magistrate ordered that the review officer should proceed to make findings of fact, but stayed that order pending the determination by this Court of an application by the applicant for a writ of certiorari to quash the second determination by the medical assessment panel and of an appeal by the respondent against the Magistrate's decision.
Finally, by application dated 20 December 2002, the applicant sought an order for weekly payments of compensation from 9 May 1996 to date pursuant to s 57A(5) of the Act, upon the ground that the respondent's insurer had failed to comply with s 57A(3) thereof. He was moved to do so, according to his counsel, upon learning of the decision of this Court in Australasian Correctional Management v Francis, above.
Against this background the Compensation Magistrate was required, pursuant to the terms of the referral to him of the matter under s 84ZM of the Act, to decide, in effect, whether, in the circumstances which had eventuated, there was any merit in that application.
The Compensation Magistrate, in a carefully reasoned decision, considered the provisions of s 57A and the decision of this Court in Glover‑Jackson v G & M Construction Pty Ltd, unreported, FCt SCt of WA; Library No 930231; 30 March 1993. He concluded that the intention of s 57A was to have any dispute as to the worker's entitlement to compensation resolved by the Directorate, on the merits of the worker's case, as soon as possible and that, in order to achieve that goal, the legislature had provided a worker, whose claim was delayed, with a means of obtaining an order for weekly payments of compensation regardless of the merits of the worker's claim, until such time as the employer took action to have the worker's true, and longer term, entitlement determined. After considering submissions advanced on behalf of the respondent and also the provisions of s 18 of the Interpretation Act 1984, the Magistrate concluded that the entitlement to weekly payments provided for by s 57A(5) comes to an end, on the proper construction of that section read in its context, as soon as there comes into force a determination by the Directorate of the worker's entitlement, made by reference to the worker's disability. Consequently, he said, the applicant's right to rely upon the alleged failure on the part of the respondent's insurer to comply with the provisions of s 57A(3) came to an end on 15 January 1997, upon which date the review officer had ordered that weekly payments should cease. The worker had received weekly payments of compensation until that date.
The Compensation Magistrate went on to say, in any event, that, in 1999, when the review officer had first raised the possibility of there having been a failure to comply with s 57A, the applicant had, as we have mentioned, actively discouraged him from referring that question to a Compensation Magistrate. He also said that, as we have also mentioned, when the issue was referred to a Compensation Magistrate, the applicant chose not to contest the respondent's contention that there had been compliance with the Act.
In his proposed grounds of appeal the applicant contends that the Magistrate erred in law in his construction of s 57A and in the conclusion ultimately arrived at by him.
We do not agree.
It seems to us to be quite plain that the purpose or object of s 57A(5) is twofold. The legislature self‑evidently wished to ensure that insurers did not delay in processing claims for workers' compensation and that, if an insurer did so, the worker would not thereby be prejudiced. Those objectives are achieved by a scheme which provides that, where an insurer fails to comply with s 57A(3), the worker who made a claim under s 57A(1) is entitled to the weekly payments claimed, and the insurer is liable to indemnify the employer in respect thereof, regardless of the merits of the claim, but only until such time as there has been a formal determination by the Directorate in respect of the worker's true entitlement.
That, in our opinion, is all that was intended by the provisions of s 57A(5) and s 57A(6) (see, in this respect, s 18 of the Interpretation Act). It is true that subs (5) refers to an application to the Directorate for a determination under subs (6) and that subs (6) gives to the Directorate the power to determine the worker's entitlement "[o]n an application under subsection (5)". However, it seems to us that the legislature could not have intended that, merely because the application by the employer or the insurer was expressed to have been made under s 60 of the Act, rather than under s 57A(5) thereof, the worker's entitlement under the latter section would continue regardless of the outcome of the determination of the application under s 60. The phrase "application under subsection (5)" is, in our opinion, intended to encompass any application by the employer or the insurer for a determination of the worker's entitlement and the phrase "determination under subsection (6)" is similarly intended to encompass a determination of any such application.
The absurd and manifestly unjust consequences of the construction contended for by the applicant are illustrated by the facts of this case. Notwithstanding that the applicant has never previously sought to rely upon s 57A(5) and has been paid, in full, all of the compensation to which he has been found to be entitled from the date of his disability, he now seeks (years later) to recover a very large amount of compensation to which he has no proved entitlement on the merits of his claim. This startling consequence is said to follow merely because the application brought by the respondent for a determination of the applicant's entitlement was expressed to be brought under s 60 of the Act rather than under s 57A(5).
It consequently seemed to us that the application for leave to appeal had no merit and that it should be refused.