Turner v Kowloon Holdings Pty Ltd
[2003] WASCA 276
•17 NOVEMBER 2003
TURNER -v- KOWLOON HOLDINGS PTY LTD [2003] WASCA 276
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 276 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:63/2002 | 13 OCTOBER 2003 | |
| Coram: | STEYTLER J PARKER J PULLIN J | 17/11/03 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to extend time in FUL 63 of 2002 refused Appeal in FUL 64 of 2003 dismissed | ||
| A | |||
| PDF Version |
| Parties: | JARROD JOHN TURNER KOWLOON HOLDINGS PTY LTD |
Catchwords: | Workers' compensation Appeal against decision of Compensation Magistrate Whether lodgment of Form 22 application amounted to a proceeding under Workers' Compensation and Rehabilitation Act 1981 for the purposes of s 64(1) Purpose of requirement for worker to submit to medical examination by medical practitioners of employer's choice Whether requirement to submit to medical examination applicable when it is imposed and paid for by employer's insurers Workers' compensation Application for extension of time to appeal decision of Compensation Magistrate Whether requirement to submit to medical examination applicable when it is imposed and paid for by employer's insurers Whether delay causes prejudice to employer Whether question of "reasonable excuse" is a question of law or fact Words and phrases "Proceeding" "Reasonable excuse" |
Legislation: | Interpretation Act 1984, s 11 Workers' Compensation and Rehabilitation Act 1981, s 59(5), s 59(6), s 64, s 67(3), s 84ZA(4), s 84ZH, s 84ZN(2)s 84ZW, s 84ZY(1), s 86, s 93D, s 93E, s 145A, s 160(1) |
Case References: | Allianz Australia Ltd v Bakalis [2003] WASCA 116 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 Bird v The Commonwealth (1988) 165 CLR 1 Collector of Customs v Agfa - Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Federal Commissioner of Taxation v Bivona Pty Ltd (1990) 21 FCR 562 Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 Grigoletto v Myer Properties WA Ltd, unreported; FCt SCt of WA; Library No 8271; 9 May 1990 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 Hope v Bathurst City Council (1980) 144 CLR 1 Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 Re Monger; Ex parte Dutch (2001) 25 WAR 96 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 Smith v Davis [1915] AC 528 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Airflite Pty Ltd v Goyal [2003] WASCA 45 Bednarczyk v Natcorp Investments Ltd (formerly Wilcox Mofflin Ltd), unreported; FCt SCt of WA; Library No 970363; 23 July 1997 Black v City of South Melbourne [1963] VR 34 Dominish v Cavallaro [1980] WAR 205 Hewitt v Benale Pty Ltd [2002] WASCA 163 Quinlivan v Portland Harbour Trust [1963] VR 25 R v Surrey (North-Eastern Area) Assessment Committee [1948] 1 KB 28 Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TURNER -v- KOWLOON HOLDINGS PTY LTD [2003] WASCA 276 CORAM : STEYTLER J
- PARKER J
PULLIN J
- FUL 64 of 2002
- Appellant
AND
KOWLOON HOLDINGS PTY LTD
Respondent
Catchwords:
Workers' compensation - Appeal against decision of Compensation Magistrate - Whether lodgment of Form 22 application amounted to a proceeding under Workers' Compensation and Rehabilitation Act 1981 for the purposes of s 64(1) - Purpose of requirement for worker to submit to medical examination by medical practitioners of employer's choice - Whether requirement to submit to medical examination applicable when it is imposed and paid for by employer's insurers
Workers' compensation - Application for extension of time to appeal decision of Compensation Magistrate - Whether requirement to submit to
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medical examination applicable when it is imposed and paid for by employer's insurers - Whether delay causes prejudice to employer - Whether question of "reasonable excuse" is a question of law or fact
Words and phrases - "Proceeding" - "Reasonable excuse"
Legislation:
Interpretation Act 1984, s 11
Workers' Compensation and Rehabilitation Act 1981, s 59(5), s 59(6), s 64, s 67(3), s 84ZA(4), s 84ZH, s 84ZN(2)s 84ZW, s 84ZY(1), s 86, s 93D, s 93E, s 145A, s 160(1)
Result:
Application for leave to extend time in FUL 63 of 2002 refused
Appeal in FUL 64 of 2003 dismissed
Category: A
Representation:
Counsel:
Appellant : Mr I L K Marshall
Respondent : Mr W S Martin QC & Mr T Lampropoulos
Solicitors:
Appellant : Paul O'Halloran
Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Allianz Australia Ltd v Bakalis [2003] WASCA 116
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372
Bird v The Commonwealth (1988) 165 CLR 1
Collector of Customs v Agfa - Gevaert Ltd (1996) 186 CLR 389
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Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Federal Commissioner of Taxation v Bivona Pty Ltd (1990) 21 FCR 562
Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177
Federal Commissioner of Taxation v Miller (1946) 73 CLR 93
Grigoletto v Myer Properties WA Ltd, unreported; FCt SCt of WA; Library No 8271; 9 May 1990
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
Hope v Bathurst City Council (1980) 144 CLR 1
Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Smith v Davis [1915] AC 528
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Case(s) also cited:
Airflite Pty Ltd v Goyal [2003] WASCA 45
Bednarczyk v Natcorp Investments Ltd (formerly Wilcox Mofflin Ltd), unreported; FCt SCt of WA; Library No 970363; 23 July 1997
Black v City of South Melbourne [1963] VR 34
Dominish v Cavallaro [1980] WAR 205
Hewitt v Benale Pty Ltd [2002] WASCA 163
Quinlivan v Portland Harbour Trust [1963] VR 25
R v Surrey (North-Eastern Area) Assessment Committee [1948] 1 KB 28
Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552
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1 STEYTLER J: The appellant has twice been unsuccessful in appeals to a compensation Magistrate from decisions made by review officers appointed under the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). In each case the appeal was brought pursuant to s 84ZN(2) of the Act, which provides that a party to proceedings under the Act who is dissatisfied with a decision or order of the review officer may, "where a question of law is involved", appeal to a Compensation Magistrates' Court against the decision or order.
The First Appeal to the Compensation Magistrate
2 The circumstances giving rise to the first appeal to the Compensation Magistrate (which has become the subject of matter FUL 63 of 2002 in this Court) were these. The appellant had suffered a back injury on 27 February 1998. He claimed to have suffered a recurrence of that injury on 12 September 1999, in circumstances entitling him to workers' compensation from his employer, the respondent. The respondent's insurer arranged for him to see Dr Sothers, an occupational physician, on 21 October 1999. He did so. However, dismayed by what he saw as the respondent's delay in progressing matters, on 5 November 1999 he lodged what has been referred to as a "Form 1 Application", referring a dispute for conciliation with the Conciliation and Review Directorate appointed under the Act. Under the heading "Details of Dispute" the appellant said:
"Delay of approval of claim - insurance company has not contacted doctor or physio as at 20/10/99. Unnecessary time frame has been utilised. Consistently being put off or sent to see another specialist when they have admitted in principle that the recurrence is valid and the claim is legitimate. As at 3/11/99 there is no medical evidence to dispute my claim."
3 The respondent's insurer thereupon made appointments for the appellant to see three more medical practitioners. These were Mr Billett, a neurosurgeon, who was to see the appellant on 19 January 2000, Mr Silbert, a neurologist, who was to see him on 7 February 2000, and Mr Bell, an orthopaedic surgeon, who was to see him on 18 February 2000.
4 A preliminary review hearing took place before a review officer on 7 January 2000. He set the application down for hearing on 21 February 2000, thereby allowing sufficient time for the respondent to obtain at least two of the three additional medical reports which it sought.
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5 On the day of the appointment to see Mr Billett, a representative of the appellant's solicitors telephoned the solicitors acting on behalf of the respondent and said that the appellant refused to attend the scheduled appointment. She said that no explanation would be provided for that refusal.
6 On 24 January 2000 the respondent's solicitors wrote to the appellant's solicitors informing them that their client had instructed them to rely upon the provisions of s 64 of the Act. Sub-section (1) of that section reads as follows:
"(1) Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."
7 The respondent's solicitors also requested that the hearing date of 21 February 2000 be vacated. On 25 January 2000 the review officer asked the appellant's solicitors for clarification of the appellant's position. They responded by letter dated 4 February 2000, saying that they objected to the vacation of the hearing date and that s 64(1) did not apply in the circumstances of the appellant's claim. The letter read, in this last respect, as follows:
"It is quite clear that this section does not apply in relation to common law elections and that is what is been [sic] done here.
As regards to Workers [sic] Compensation Benefits, it is quite clear that they can be suspended if the client does not see an Insurance Doctor. However, my client is not receiving Workers' Compensation Benefits and therefore what is his loss?
It is also clear that there is ample medical evidence on the file and all that the defendant is doing is fishing around to get a
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- percentage which suits there [sic] course [sic] and are trying to destroy his common law claim.
He will not be seeing any Insurance doctors and I ask that you proceed with the evidence that is before you on the 21st February 2000."
8 The review hearing consequently took place on 21 February 2000. By that time the appellant had refused to attend, also, on Mr Silbert and Mr Bell. He was represented, at the hearing, by a lay advocate. In his evidence before the review officer he said that he had read the Act himself, that he had independently formed the view that he did not have to attend medical appointments arranged by the respondent's insurer and that he had then spoken with his solicitor, who agreed with him. When asked whether he would submit to medical examination by Mr Billett or Mr Silbert, he said that he would not, as he was under no obligation to do so.
9 The lay advocate representing the appellant then argued that s 64 required the appellant to submit himself for only one examination by one medical practitioner.
10 The review officer disagreed, referring, in his decision, to Grigoletto v Myer Properties WA Ltd, unreported; FCt SCt of WA; Library No 8271; 9 May 1990 and to s 11 of the Interpretation Act 1984. He went on to say that the appellant had clearly refused to submit to the examinations of Mr Billett and Mr Silbert and that he would not then submit to those examinations. He went on to consider whether the appellant had "reasonable excuse" for his refusal. He said:
"I formed the view from his responses that he, himself, formed the view he was not obligated to attend more than one medical examination prior to meeting with and taking advice from his solicitor. He indicated to me that Mr O'Halloran [the appellant's solicitor] confirmed his judgment of what to do about his opinion, i.e. do not attend the examinations. While it might be open to find he has relied upon Mr O'Halloran's advice and that that was a reasonable excuse, I am led to the contrary view. I felt the applicant had sought validation from Mr O'Halloran after arriving at his decision not to attend the examinations for the reasons he now argues. From the letter of Mr O'Halloran to me there does seem to be some confusion about the section of the Act I was required to consider the present application under, but the effect of section 64 applies
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- to proceedings under the Act generally. The applicant told me he had read the Act and arrived at his view which was later confirmed by Mr O'Halloran. I do not consider he has demonstrated a reasonable excuse for non-attendance and, in fact, I reiterate that immediately prior to the commencement of the arguments he maintained the view he was not obliged to attend for the reason he later had argued before me."
11 The review officer concluded that, by virtue of s 64(1), the appellant's right to pursue his claim would be suspended until 21 February 2000 and that, if he did not submit himself for examination by the end of that day, his right to take any further proceedings under the Act ceased. He consequently made orders accordingly, one of which was to the effect that, if the appellant had not submitted himself for examination by Mr Billett prior to 22 February 2000, his application would be dismissed. It is common cause that he never did so (by then it may, in any event, have been impracticable for him to do so) and that his "Form 1 Application" has, as a consequence, been dismissed.
12 The appellant's appeal to the Compensation Magistrate failed, as I have said. Only one ground of that appeal is relevant for present purposes. That ground (ground (c)) was to the effect that the review officer erred in law by not finding that the appellant's reliance on his solicitor's advice that he was not obliged to submit himself to medical examination constituted a "reasonable excuse" for the purposes of s 64.
13 The Compensation Magistrate concluded that the question whether there was or was not a reasonable excuse involved only a question of fact, with the consequence that, by virtue of s 84ZN of the Act, no appeal against that decision lay to a Compensation Magistrate.
14 However, his Worship also said the following:
"It is of course the case that where a worker claims, so as to establish 'reasonable excuse' for the purposes of s. 64 … , that he or she was acting on legal advice, it is the reasonableness of the worker's reliance on that advice that is in issue, not the reasonableness of the advice. I am nevertheless comforted, in coming to the above conclusion, by the fact that whatever legal advice the appellant eventually received may not have been given with regard to s. 64 at all (the appellant's right to take action for damages at Common Law seems to have been uppermost in his, and his solicitor's, mind). To the extent that
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- it was given in the context of the application before the review officer, it appears to have been incorrect.
Section 64 did apply in this case, and its effect is not limited to a requirement to see only one medical practitioner - see Grigoletto v Myer Properties WA Ltd."
15 In what was effectively a footnote to his judgment, the compensation Magistrate said:
"I would add only that, despite the submission to the contrary by counsel for the appellant, as long as compensation 'has been paid' to the appellant in the past, then his application under Division 2 of Part IV of the Act can still be proceeded with, regardless of the outcome of his application for weekly payments the subject of this appeal - see s 93B of the Act."
16 His Worship was there referring to a so-called "Form 22 Application" which the appellant had lodged with the Conciliation and Review Directorate on 14 December 1999. By that application he had set in train a process whereby the degree of disability suffered by him as a result of his lower back injury might be assessed for the purposes of Div 2 of Pt IV of the Act. He contended that his degree of disability was one of not less than 30 per cent. If his contention could be made good, he would be able to pursue a claim for common law damages. That is because, by virtue of s 93E(3) of the Act, common law damages could only be awarded to him if:
"(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b) the worker has a significant disability [being one in respect of which it is agreed or determined that the degree of disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the Regulations] and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
(Page 9)
The Circumstances Giving Rise to the Second Appeal to the Compensation Magistrate
17 Because he was comforted by what had been said by the compensation Magistrate in the footnote to his judgment on the first appeal, the appellant took no steps to lodge an appeal, to this Court, against that decision. Instead, he pursued his Form 22 application.
18 That application came on for hearing before a different review officer on 23 May 2001. That review officer held, on 29 June 2001, that the appellant was precluded by s 64(1) from prosecuting the Form 22 application because of the same failures to keep medical appointments made for him by the respondent as had resulted in the dismissal of his Form 1 application. The review officer, after analysing the contentions of the parties, concluded, in that respect, that:
"In this case, the worker has already been found to have breached s 64 of the Act in proceedings issued under another section of the Act in relation to the disability the subject of this application; indeed that fact is not disputed by either party. Given the view I have reached as to the proper construction of s 64 of the Act, namely that s 64 does … encompass proceedings under s 93D of the Act, it follows that I must conclude that the worker's right to prosecute this application has ceased by reason of that earlier finding and his application must be dismissed."
19 The appellant appealed once again. The appeal came before the same Compensation Magistrate as before. It was heard on 4 February 2002. There were three grounds of appeal, only two of which are relevant for present purposes. They read as follows:
"1. The learned review officer erred in law in holding that s 64 of the Act applied to a referral of a question of disability made pursuant to [s] 93D(5) of the Act, alternatively s 93D(10).
2. The learned review officer erred in law in holding that a breach of s 64 in proceedings in which the appellant sought compensation for the disability of 28 February 1999 resulted in a permanent bar on any and all proceedings brought by the appellant in relation to that disability rather than limiting the bar to any
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- proceedings whereby the appellant sought compensation in relation to said disability."
20 There was no ground of appeal which challenged the second review officer's acceptance of the finding, made by the first review officer in the earlier proceedings, that the appellant had not demonstrated a reasonable excuse for his refusal to submit himself to medical examinations by the medical practitioners provided by the respondent's insurer.
21 As to grounds 1 and 2, the Compensation Magistrate first considered whether the lodgment of the Form 22 application amounted to a "proceeding" under the Act, for the purposes of s 64.
22 He referred, in this respect, to various of the provisions of the Act. He said that a worker, to whom compensation had been paid or was payable, who wished to preserve his or her right to take action for common law damages and with whose employer agreement could not be reached on whether or not the worker's degree of disability was not less than the relevant level, could, by virtue of s 93D(5) of the Act, refer the question to the Director of Conciliation and Review appointed under the Act. Such a referral is achieved by means of the lodgment, with the Director, of a Form 22 application, accompanied by medical evidence required by s 93D(6). The Director is required by s 93D(7), as soon as practicable after receiving such a referral, to notify the employer and, if the employer considers that the worker's degree of disability is less than the relevant level, it must, by s 93E(8), notify the Director accordingly within 21 days. At that point, by virtue of s 93E(8), a dispute arises for the purposes of Pt IIIA of the Act, being that part of the Act which deals with "dispute resolution". The Director is then required, by s 93E(9), to consider the dispute in consultation with the parties and, if the dispute is not resolved by agreement, the Director is required by s 93E(10) to refer the question for resolution under the provisions of Pt IIIA. Once that has been done, it becomes the task of the review officer to resolve the question by making an assessment of the worker's degree of disability in accordance with the provisions of s 93D(2) of the Act.
23 The Compensation Magistrate concluded that, whether or not "the whole chain of events provided for by s 93D" could be characterised as a "proceeding" for the purposes of s 64(1) of the Act, he was confident that a review hearing, convened for the purpose of making an assessment of a worker's degree of disability in accordance with
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- s 93D(2) and as a result of a referral by the Director under s 93D(10), was itself a "proceeding".
24 Next, his Worship dealt with a submission which had been made on behalf of the appellant to the effect that s 64(1) applied only to proceedings in respect of workers' compensation and not to proceedings which were designed to achieve a right to pursue common law damages, a submission which, counsel for the appellant had contended, was reinforced by the provisions of s 86 of the Act. That section reads as follows:
"86. Except as expressly provided by this Act, nothing in this Act affects any liability that exists independently of this Act."
25 The Magistrate said, in respect of these contentions, the following:
"Division 2 of Part IV of the Act, and in particular ss 93D and 93E, provides a procedure by which a worker may move to the recording of a degree of disability and, where appropriate, the registration of an election. Those are ends in themselves, and the procedure is self-contained and entirely a creature of the Act. The need for such a procedure to be undertaken arises from a worker's entitlement to compensation under the Act. The procedure is not part of an action at common law for damages in the District Court. It is no longer necessary, as it was prior to the amendment of the Act in 1999, for a worker to seek leave of the District Court to commence such an action and to demonstrate to the court a particular level or type of disability. The procedure is now administered and adjudicated upon by the Director and review officers, who are also (in exercising those functions) creatures of the Act. The review officers resolve questions referred to them by the Director under s 93D(10) in accordance with the dispute resolution provisions of the Act. It seems very clear to me, therefore, that a review officer making an assessment under s 93D(2) of a worker's degree of disability is presiding over a proceeding 'under the Act' for the purposes of s 64(1)."
26 The Magistrate dismissed the appeal by order made on 21 February 2002.
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The Appeal, and the Application for Leave to Appeal, to this Court
27 On 18 April 2002 the appellant, having been granted leave to do so on 12 April 2002, lodged a notice of appeal to this Court against the decision of the Compensation Magistrate in the second appeal. That appeal has been given the number FUL 64 of 2002. As to the first appeal (FUL 63 of 2002), because the appellant had not sought leave to bring a further appeal within the specified period of 21 days (see s 84ZY(1) of the Act), for the reason which I have earlier identified, an extension of time was sought from this Court for that purpose. The Court, on 12 April 2002, ordered that the application for an extension of time and the application for leave to appeal be listed for hearing before this Court at the same time as the hearing of the appeal in matter FUL 64 of 2002.
FUL 64 of 2002
28 It is convenient first to deal with appeal FUL 64 of 2002.
29 By virtue of s 84ZW of the Act an appeal lies to this Court only against a decision of the Compensation Magistrates' Court "on a question of law".
30 There are two grounds of appeal which are said to fall within that description. They read as follows:
"1. The learned Magistrate erred in law in his interpretation of section 64(1) of the Workers [sic] Compensation and Rehabilitation Act, 1981 and in particular in finding that a review officer making an assessment under section 93D(2) of a worker's degree of disability is presiding over a proceeding under the Act for the purposes of section 64(1).
2. The learned Magistrate should have found that section 64(1) of the Act does not apply to section 93D(2) and a proceeding pursuant to Division 2 Part IV of the Act."
31 At the hearing of the appeal the appellant sought leave to add a third ground of appeal as follows:
"3. The learned Magistrate erred in finding that s 64 of the Workers' Compensation and Rehabilitation Act 1981 applied in circumstances where the Appellant was:
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- (i) 'not required by the employer' to submit himself for medical examination;
(ii) not required to submit himself for a medical examination arranged by the employer - provided and paid for by the employer."
32 There is no challenge, in this appeal, to the finding that, if s 64(1) applied, that section was breached by the appellant as a consequence of his refusal, without reasonable excuse, to submit himself to examination. As will be apparent from what I have earlier said, the fact of breach, if the section was applicable, was not disputed by either party before the review officer and nor was any ground of appeal addressed to that issue in the appeal to the Compensation Magistrate.
33 I will deal, first, with grounds 1 and 2 before turning to the proposed amended ground of appeal, our decision on the question whether or not leave to make that amendment should be granted having been reserved.
34 It seems to me that the Compensation Magistrate was right in his conclusion that s 64(1) was applicable to the circumstances before him.
35 The section is clear in its terms. It requires a worker, who has given notice of a disability (as the appellant did, by way of his Form 22 application), to submit himself for examination if so required by the employer and, if he refuses to do so without reasonable excuse, then both his right to compensation and to take or prosecute any proceeding under the Act shall cease unless he submits himself for examination within a month of being required to do so.
36 The appellant's contention is essentially that the words of the section should be read down so as to apply only to proceedings for the enforcement of a claim for workers' compensation. Counsel for the appellant sought to support this contention by reference to the headings of Div 5 and Pt III of the Act, in each of which s 64 is located. The heading to Pt III is "Compensation" and that to Div 5 is "Commencement, review, suspension and cessation of payments".
37 However, it is settled that, where the enacting words are clear and unambiguous, as I consider them to be, the title, or headings, must give way: Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 at 383, per Isaacs J, and Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 16, per Latham CJ. I have
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- already mentioned that the section specifically refers both to the "right to compensation" and to that to "take or prosecute any proceeding under this Act". There was no real dispute as to the proposition that the lodgment of the Form 22 application initiated a "proceeding", as, indeed, seems to me to be quite plain. That being so, and given that it is a proceeding provided for by the Act, it seems to me inevitably to follow, on the clear and unambiguous words of the section, that it is a "proceeding under this Act" for the purposes of s 64(1).
38 This conclusion accords with what was said by Malcolm CJ (albeit obiter), with the agreement of Wallwork and Owen JJ, in Re Monger; Ex parte Dutch (2001) 25 WAR 96 at [55]. The Court was there considering the proper construction of s 93D(6) and, in the course of outlining the procedure following the receipt of a Form 22 application, together with the required medical evidence, the Chief Justice said at [55]:
"The significance of the medical evidence is that it, together with form 23, comprises the notification to the employer of the referral of the question of the degree of disability, by reference to which the employer may determine whether it wishes to dispute the degree of disability claimed by the worker. For that purpose the employer is entitled to require the worker to submit to an examination by a medical practitioner provided and paid for by the employer: see s 64 of the Act."
39 This construction seems to me also to accord with the legislative purpose underpinning the relevant provisions of the Act. The scheme provided for by s 93D, as regards the assessment of a disability, has as one of its objectives the reaching of agreement between the employer and the worker. The dispute is only to be referred for resolution under Pt IIIA if it is not resolved by agreement. Agreement is not likely to be reached if the employer is not to be entitled to have the worker examined by medical practitioners of its choice. Indeed, even in a case in which there is no agreement, the right to have a worker examined would be important to the proper resolution of the proceedings before the review officer. It would, in that respect, hardly be equitable if the employer was not to be permitted to contradict the medical evidence obtained by the worker by medical evidence of its own, obtained by means of a proper assessment of the worker.
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40 In Grigoletto v Myer Properties, above, Malcolm CJ, with whom Brinsden and Ipp JJ were in agreement, expressed the opinion (applying what had been said by Lord Atkinson in Smith v Davis [1915] AC 528, decided in respect of similar legislation) that it "is clearly part of the purposes of the Act to facilitate the early settlement or determination of workers' compensation claims". His Honour there approved what had been said by Lord Atkinson to the effect that nothing could be more calculated to defeat that object and, indeed, that nothing could be more opposed to common sense and reason, than to require that an employer should make up his mind in all cases definitely on the result of one examination only. Even more opposed to common sense and reason would be the notion that it should make up its mind without the benefit of any examination.
41 Counsel for the appellant contended, in this respect, that it is implicit in other provisions of the Act (s 84ZA(4), s 84ZH and s 145A) that a review officer is empowered, for the purpose of proceedings under Div 2 of Pt IV of the Act, to order or direct a worker to attend a review by a medical practitioner arranged and paid for by the employer. However, even if that is so, it seems to me not to detract, at all, from the conclusion that the legislature has seen fit, for the good reason to which I have referred, to give to the employer the right to require the worker to submit himself for examination by a medical practitioner or practitioners provided and paid for by it and to provide for the consequence of a refusal to do so, without reasonable excuse.
42 Finally, in this respect, counsel for the appellant contended that, the Act being remedial in its character, it should be construed beneficially and, where two interpretations are possible, that more favourable to the worker should be preferred (see Bird v The Commonwealth (1988) 165 CLR 1 at 9). It is enough to say, in respect of this proposition, that it seems to me that only one interpretation of the section is open, being that which I have said follows from the clear and unambiguous words used.
43 That brings me to the proposed amendment.
44 The short point sought to be raised by this ground is that the appellant was never required "by the employer" to submit himself for examination and nor were the medical practitioners in question "provided and paid by the employer" as required by the Act. Instead, the requirement was imposed by the employer's insurer which had
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- provided the medical practitioners concerned and proposed to pay for them.
45 In my opinion, the appellant should not be given leave to make the amendment, for two reasons.
46 The first is that the point seems to me to have no merit. It could hardly have escaped the attention of the legislature that employers are likely to be insured and that the insurers are likely to exercise their rights of subrogation. Indeed, s 160(1) of the Act requires every employer to obtain from an approved insurance office, and to keep current, a policy of insurance for the full amount of its liability to pay compensation under the Act to any worker employed by it, including any increase in amount occurring during the currency of the policy. Any such insurer has the common law right to be subrogated to the rights of the employer and stands in the shoes of the employer for the purpose, inter alia, of the exercise of rights given to the employer under s 64.
47 Counsel for the appellant sought to derive some support for his argument by reference to comments made by Templeman J in Allianz Australia Ltd v Bakalis [2003] WASCA 116. His Honour there broke s 64(1) into its component parts, expressing the opinion, in respect of one of those parts, that the obligation on the worker to submit himself for examination arose when "so required by the employer" (at [31 and [32]) and said (at [33]) that "[i]t is … the employer who requires the worker to be examined". I do not consider that what was there said gives any support to the contention advanced on behalf of the appellant. His Honour was there doing no more than summarising the words of the Act. He gave no consideration to the question (which did not arise in the proceedings before him) whether the employer's insurer might impose the requirement in question.
48 The second reason why the application for leave to amend should, in my opinion, be refused is that it comes too late. The point was not raised before the review officer or the Compensation Magistrate. We were told by counsel for the respondent that, if it had been raised before the review officer, the respondent may have chosen to meet the point by leading evidence to the effect that the solicitors who conveyed the requirement to the appellant were acting, in that respect, both for the insurer and for the respondent. He also made the point that, if the review officer had upheld the point, the respondent would have sought leave to issue a further notice to the appellant requiring him to attend
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- for medical examination. It seems to me that there is substance to these objections and that there would be genuine prejudice to the respondent if the appellant was now to be permitted to raise the point (assuming that it could be made good).
49 It follows that I would refuse leave to amend the grounds of appeal in FUL 64 of 2002 and that I would dismiss that appeal.
FUL 63 of 2002
50 That brings me back to the application for leave to appeal, and that for an extension of time for that purpose, in FUL 63 of 2002.
51 Once again there are two proposed grounds of appeal and the appellant (to whom I shall continue to refer as such, for the sake of convenience, albeit he is, in this respect, an applicant) has sought to amend his draft notice by adding a third, in identical terms to that sought to be added in FUL 64 of 2002.
52 As to the proposed amendment, I would refuse leave to make it for the reasons which I have already set out in appeal FUL 64 of 2002.
53 The remaining proposed grounds of appeal read as follows:
"1. The learned Magistrate erred in law in misconstruing section 64 in that he asked the wrong question in considering whether there was a reasonable excuse for the refusal to attend the medical examination for the purposes of section 64 of the Workers' Compensation and Rehabilitation Act 1981 in circumstances where the Appellant had received legal advice that section 64 did not apply to Division 2 of Part IV of the Act.
2. The learned Magistrate in considering whether there was a reasonable excuse for the failure to attend the medical examination should have considered the circumstances in which the Appellant had received legal advice he was not required pursuant to section 64 to attend the medical appointment in relation to his application for a determination of his degree of disability under Division 2 Part IV of the Act and should have held that the non attendances in consequence of such advice was capable of constituting reasonable excuse."
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54 In my opinion, the application for an extension of time within which to bring the application for leave to appeal should be refused. It comes very late. The Compensation Magistrate's decision was given on 21 August 2000, more than three years ago. In the subsequent proceedings before the second review officer and in the appeal from that decision there was, as I have already said, no challenge to the finding that, if s 64 applied, it had been breached. We were told by counsel for the respondent that, had the decision of the Compensation Magistrate been promptly appealed, and had that appeal been upheld upon the basis that there had been a reasonable excuse, the respondent would have forthwith required the appellant to submit to a further examination which would have shed light on his medical situation at a time far more proximate to the date of the alleged injury than can now be the case.
55 In these circumstances, it seems to me that there is a real prejudice to the respondent arising out of the delay. On that ground alone, the application for an extension of time should be refused.
56 It seems to me, in any event, that the proposed grounds of appeal misunderstand the reasoning of the Compensation Magistrate. As I read his reasons, he did not consider the question whether the review officer erred in finding that there was no reasonable excuse for the refusal to attend the medical examination. Nowhere in his reasons does he express any opinion in that regard. His sole conclusion, in this respect, was that no appeal lay to him from the decision of the review officer in that regard because no question of law was involved.
57 It is well accepted that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 and Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J. However, special considerations have been held to apply in the case of a statute which uses words according to their common understanding and the question is whether the facts as found fall within those words.
58 In NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309, Kitto J observed that the question whether certain operations answered the description "mining operations upon a mining property" within the meaning of a statutory provision was a mixed question of law and fact. He said (at
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- pages 511 - 512) that, first, it is necessary to decide as a matter of law whether the Act uses the expression "mining operations" and "mining property" in any other sense than that which they have in ordinary speech. Having found that the answer to that question was in the negative, his Honour went on to say (page 512):
"The common understanding of the words has therefore to be determined, and that is a question of fact: see the cases cited by Starke J in the Broken Hill South Case (1941) 65 CLR., at p. 155. The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: ibid; see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416, at p. 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South Case …".
An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause [sic] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General [(1940) 40 SR (NSW) 126] (at 138; 55)."
60 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, Neaves, French and Cooper JJ set out five general propositions which emerged from the cases. The fifth proposition was as follows:
The question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1981) 144 CLR 1 at 7 per Mason J with whom Gibbs,
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- Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ)."
61 However, their Honours went on to say (at 288):
This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council [supra] at 8."
62 Their Honours also there referred to NSW Associated Blue-Metal Quarries Ltd v Commissioner of Taxation, above, at 512; Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 137; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 215; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 182; Federal Commissioner of Taxation v Bivona Pty Ltd (1990) 21 FCR 562 at 564 and Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 194 - 195.
63 What was said in Pozzolanic, in this respect, has since been referred to in Collector of Customs v Agfa - Gevaert Ltd (1996) 186 CLR 389 at 395, Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ having gone on to say, at 396, that such general expositions of the law are helpful in many circumstances. Pozzolanic has also been referred to, in this regard, in this Court in Ex parte Dutch, above, at 103.
64 In my opinion, the words "without reasonable excuse" are words of ordinary meaning. There is no suggestion that they have any special or technical legal meaning. That being so, their ordinary meaning should be treated as a question of fact. It also seems to me that the material which was before the review officer reasonably admits of different conclusions as to whether or not the appellant had discharged his burden of establishing that he had reasonable excuse for refusing to attend upon the medical practitioners, more particularly in circumstances in which he initially refused to provide any explanation for his refusal and in which, as the Compensation Magistrate mentioned, the legal advice which he obtained to bolster his own opinion appears to have related to the proceedings the subject of the Form 22 application and not to those the subject of the Form 1
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- application. So much emerges from the appellant's solicitor's letter dated 4 February 2000 referred to above (which preceded the review hearing, and the deadline of 22 February 2002, by more than two weeks), which expressly acknowledges that "it is quite clear that … [the workers' compensation benefits] can be suspended if the client does not see an Insurance Doctor". That letter makes it quite plain that the legal advice presented no excuse at all for the non-attendance in respect of the Form 1 proceedings and that the appellant's refusal was intended to prevent the respondent from "fishing around to get a percentage which suits … [its case]", thereby "trying to destroy … [the appellant's common law claim]".
Conclusion
65 It follows that I would dismiss the appeal in FUL 64 of 2003 and that I would refuse the application for leave to extend time in FUL 63 of 2002.
66 PARKER J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I respectfully agree with what his Honour has written and, for those reasons, would dismiss the appeal in FUL 64 of 2003 and refuse the application to extend time in FUL 63 of 2002.
67 PULLIN J: I agree with the reasons for decision and the orders proposed by Steytler J, but I wish to make the following comments about the application which was made by the appellant to amend the grounds of appeal.
68 When the application to amend was made, the decision on that application was reserved. The proposed ground relates to s 64, and as Steytler J says, the short point the appellant wished to raise by this ground was that the appellant was never required "by the employer" to submit himself for examination and nor were the medical practitioners in question "provided and paid by the employer" as required by the Act. Instead, the requirement was imposed by the employer's insurer, which had provided the medical practitioner concerned and proposed to pay for them. This proposed ground raises a question as to the construction of s 64.
69 Steytler J in his reasons says that the legislature surely understood that insurers were likely to exercise their rights of subrogation, which
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would mean that the insurer could stand in the shoes of the employer and exercise the rights of the employer under s 64. I agree that the
legislature was likely to have had such understanding but, notwithstanding this, it has taken the trouble in other sections to distinguish between employer and insurer. For example, within the same part of the Act, and indeed within the same division as s 64, s 59(5) states that "the employer or the employer's insurer may, in writing, request a worker to provide … particulars of remunerated work …". A worker is then obliged to provide those particulars by s 59(6). (See also s 67(3).)
70 If the legislature has taken the trouble to distinguish between the employer and insurer in some sections, then it is at least arguable that in s 64 where reference is only made to the employer, it is then only the employer, and not the insurer, which may require the worker to submit to examination.
71 It is not necessary to express any view on the merits of this argument, because I agree that leave should not be granted to amend the grounds of appeal for the second reason mentioned by Steytler J, namely the prejudice which would be suffered by the respondent if the point could be raised at this late stage. It is for that reason that I would refuse leave to amend the grounds of appeal.
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