Victorian WorkCover Authority v Brewster; Victorian WorkCover Authority v Mackay; Victorian WorkCover Authority v Pintar
[2001] VSCA 30
•30 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5073 of 1999
| VICTORIAN WORKCOVER AUTHORITY |
| v. |
| VICKI BREWSTER |
No. 7935 of 1999
| VICTORIAN WORKCOVER AUTHORITY |
| v. |
| ASHLEY MACKAY |
No. 6137 of 1999
| VICTORIAN WORKCOVER AUTHORITY |
| v. |
| NADA PINTAR |
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JUDGES: | WINNEKE, P., PHILLIPS and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 and 7 February 2001 | |
DATE OF JUDGMENT: | 30 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 30 | |
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Accident Compensation – Workers compensation – Worker’s claim for compensation duly lodged – Notice of rejection arguably out of time under s.109(1) – Whether claim deemed to have been accepted – Whether weekly payments due without further proof of entitlement to compensation generally – Entitlement to medical and like expenses – Accident Compensation Act 1958 s.109.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant in No’s 5073 and 7935 of 1999 | Mr. C.M. Maxwell Q.C. with Mr. M.F. Fleming | Gadens Lawyers |
| For the Appellant in No.6137 of 1999 | Mr. C.M. Maxwell Q.C. with Mr. R.W. Dyer | Herbert Geer & Rundle |
For the Respondent Brewster | Mr. R.P. Gorton Q.C. with Mr. P.J. Coish | Slater & Gordon |
For the Respondent Mackay | Mr. N. Moshinsky Q.C. with Mr. P.J. Coish | Maurice Blackburn Cashman |
For the Respondent Pintar | Mr. S.B. Spittle with Mr. P.J. Coish | Maurice Blackburn Cashman |
WINNEKE, P.:
I have had the advantage of reading, in draft form, the reasons for judgment of Phillips, J.A, and his proposals for the disposition of these three appeals. I agree, for the reasons given by his Honour, that the appeals in the matters of Brewster and Mackay should be dismissed and that the appeal in the matter of Pintar should be allowed.
It is, however, important to note that, even though the entitlement to weekly payments pursuant to s.109 of the Act is a substantive right capable of being enforced by a court of competent jurisdiction, where – as here – the application for weekly payments has been rejected by the Authority for reasons given and the applicant for compensation has made and pleaded a case in the requisite court for compensation generally under the Act, the court should be careful to consider whether it is necessary to exercise its discretion to convert the proceedings into one where consideration is given only to the plaintiff’s entitlement to recover benefits under s.109. In this regard, I wish to endorse the remarks made by Phillips, J.A. in [34] and [35] of his reasons for judgment.
PHILLIPS, J.A.:
These three appeals were formerly entitled F.A.I. Workers Compensation (Vic.) Pty. Ltd. v. Brewster, Ansett Australia Ltd. v. Mackay and Venture Industries Australia Pty. Ltd. v. Pintar. They were heard together because in each the same point had arisen below, namely, whether a worker, whose claim for compensation was deemed by s.109(1)(a) of the Accident Compensation Act 1985 ("the Act") to have been accepted but to whom weekly payments had not yet been paid, was entitled in a proceeding brought to recover compensation to obtain from the court an order for weekly payments under s.109(1)(b) without having first to demonstrate by evidence an entitlement to compensation under s.82 of the Act and the like, when such entitlement had been denied by the defendant.
At the relevant time, s.109 was as follows:-
"109. Responsibilities of authorised insurers, self-insurers and the Authority
(1)If an authorised insurer, the Authority or a self-insurer does not give written notice of a decision to accept or reject a claim for weekly payments within 28 days of receiving the claim-
(a) the claim is deemed to have been accepted; and
(b)the authorised insurer, the Authority or self-insurer must pay weekly payments to the worker subject to and in accordance with this Part.
(2)The written notice of a decision to accept or reject a claim for weekly payments must in the case of a decision to reject the claim include a statement of the reasons for the decision.
(3)A decision or deemed decision under this section is binding on the employer in respect of the employer’s liability under the employer’s excess.”
As will be seen, in these three cases, and for one reason or another, it was held that the worker’s claim for compensation was “deemed to have been accepted” by virtue of s.109(1)(a). Relying simply upon the claim for compensation and the supporting medical certificates, the worker contended that s.109(1)(b) without more authorised the making of an order for weekly payments and this submission was accepted, the court rejecting the defendant's submission that, the question of entitlement to compensation generally having been put in issue by the defendant, the worker could not obtain an order for weekly payments without first establishing by evidence his or her entitlement to compensation generally. Two of these cases were first decided in the Magistrates’ Court, the third in the County Court. In the former two, the defendant appealed under s.109 of the Magistrates’ Court Act to the Trial Division of this Court and, that appeal having been unsuccessful, the erstwhile defendant now appeals to us. In the third matter, that decided in the County Court, the defendant appeals to this Court under s.52 of the Accident Compensation Act. In all three, the defendant alleges error in the construction placed upon s.109 of the Act.
Background
The particular circumstances attending these three proceedings may be briefly described. In Brewster, the worker who was born on 9 March 1945, was employed by Freehouse Pty. Ltd. as an administration manager for a number of years. Allegedly because of injury sustained in the course of her employment and as a result thereof, she ceased work on 2 December 1997 and on 5 December she lodged a claim for compensation, with supporting medical certificates. On 30 December 1997 Ms Brewster was examined by Dr. Grainger-Smith who reported to the authorised insurer and on 8 January 1998 the authorised insurer, FAI Workers Compensation (Vic). Pty. Ltd., gave notice of rejection of the worker’s claim. On 2 April 1998, Ms Brewster filed a complaint in the Magistrates’ Court seeking compensation for "injury to the back [and] psychological disturbance manifested by anxiety and depression, pain, distress and anxiety", and almost a year later, on 17 March 1999, the complaint came on for hearing. The defendant, the authorised insurer, sought to have the plaintiff prove her entitlement generally to compensation under the statute but the magistrate held that the notice of rejection had been ineffective because it contained what he called a "gross misrepresentation" of the contents of Dr Grainger-Smith's report. In consequence, it was held, s.109(1) was called into play so that the plaintiff's claim was "deemed to have been accepted" and accordingly, without requiring further proof, the magistrate made an order for weekly payments under s.109(1) as from 5 December 1997. Medical expenses, too, were ordered to be paid, and costs. On 25 May 1999, the authorised insurer commenced an appeal to the Trial Division of this Court and that appeal was heard in September. On 15 October 1999 the judge upheld the decision of the magistrate, dismissing the appeal with costs. By notice dated 29 October 1999 the authorised insurer purported to appeal to this Court alleging that the notice of rejection had not been ineffective and that anyway, despite s.109, the worker should have been required to prove an entitlement to compensation generally under the Act.
In Mackay, the plaintiff, who was born on 23 March 1951, had worked for about nine years with Ansett Australia Ltd. Alleging injury in the nature of stress, anxiety and depression, sustained in the course of employment, Mr. Mackay lodged a claim for compensation on 2 December 1998. The authorised insurer alleged a defect in the claim form and the parties went to conciliation. At conciliation, it was agreed that the claim would be treated as validly made and on 17 March 1999, the authorised insurer gave notice that it rejected the claim. On 15 June 1999, Mr. Mackay filed a complaint in the Magistrates’ Court, seeking compensation under the statute and the matter came on for hearing in November. Initially, it was claimed on behalf of the defendant, the employer, that the notice of rejection had been within time but after an adjournment the defendant elected to call no evidence on the point, conceding instead that the claim had not been defective and that it had been rejected out of time. Again the defendant contended that notwithstanding the operation of s.109(1), the plaintiff should be required first to demonstrate an entitlement to compensation generally under the statute before an order was made for weekly payments under s.109. This argument was rejected and on 25 November 1999, the magistrate ordered that weekly payments be made, with effect from 26 November 1998, and that medical expenses too be paid. Costs were ordered. On 17 December 1999, the defendant employer purported to appeal to the Trial Division of this Court. That appeal was heard by in March 2000 and on 23 March, a judge upheld the decision of the magistrate and dismissed the appeal, with costs. By notice of appeal dated 31 March 2000, the employer purported to appeal to this Court, alleging error in that entitlement to compensation generally had still to be proved, notwithstanding s.109.
In Pintar, the worker, who was born on 4 January 1925, had worked for about nine years as a process worker with Venture Industries Australia Pty. Ltd. Alleging injury to the neck, shoulders and arms, with anxiety and depression, Ms Pintar lodged a claim for compensation with her employer on 13 March 1997 and on 7 April 1997 a medical certificate to the effect that she was unfit for any duties. On 5 May 1997 the authorised insurer gave notice of rejection and after conciliation, Ms Pintar filed a writ in the County Court on 23 April 1998, claiming compensation. On 4 February 1999 the proceeding came on for hearing and, after hearing from the parties on what was called “the preliminary point”, the judge said that in his opinion the notice of rejection given on 5 May 1997 had been ineffective to deny s.109 operation because of a mistake in its terms and, rejecting the contention that any more had to be proved by the plaintiff, ordered the defendant employer to make weekly payments as from 7 April 1997, under s.109 of the Act. His Honour made an order, too, for the payment of medical and like expenses and the payment of costs. On 19 February 1999, and at the request of the defendant, the judge delivered written reasons for his decision on the "preliminary point". On 24 February the employer gave notice of intention to appeal under s.52 of the Act, and notice of appeal followed on 14 July 1999, alleging error as in Brewster, both in relation to the notice of rejection and in the worker’s not being required to prove entitlement to compensation generally.
Preliminary matters
Two matters need to be mentioned at the outset. First, there are the proper parties. In two of these cases the employer was named as defendant and in the other, the authorised insurer. As it stood at the relevant time, s.109 plainly cast an obligation to make weekly payments upon the authorised insurer, the Authority or a self-insurer, but not, at least in terms, upon the employer: see and compare ss.108(3), 125A(2), 125B(1) and 127(1). However, as from 30 June 1999 the term “authorised insurer” was removed from the Act by s.23 of Act No.81 of 1998 and, by virtue of the transition provision now found in s.74 of the Accident Compensation (WorkCover Insurance) Act 1993 (a section which was inserted in that statute by s.18 of Act No.81 of 1998) the Victorian WorkCover Authority was made to stand in place of the authorised insurer. When this was pointed out in the course of argument, Mr. Maxwell who was leading counsel in all three cases for the appellant, agreed after taking instructions that the proper appellant was now the Authority. There being no objection, we made an order that the name of the appellant be amended to Victorian WorkCover Authority and the hearing of the appeals continued accordingly, with counsel now appearing for the Authority. The respondents made no point of this change.
The second preliminary matter concerns the orders made at first instance. In all three cases the plaintiff sought and obtained not only an order for the making of weekly payments from the commencement of incapacity as alleged in the claim for compensation, but also an order for the payment of medical and like expenses under s.99 of the Act. This was in accord with the prayer for relief found in the pleadings. Before us counsel for the appellant sought to draw comfort from this when developing his argument that the proceeding instituted by the worker had been in truth, not simply for weekly payments in accordance with s.109, but for compensation generally under the statute – and I shall say more about that later. Suffice it to say at this stage that s.109 deals only with weekly payments and if s.109(1) justifies an order in favour of the worker it says nothing about the payment of medical and like expenses under s.99. On these appeals counsel for the worker expressly abandoned in argument any reliance upon the claim to payment under s.99 and did not formally seek to sustain the order made at first instance in this regard. In the Trial Division, the appeals brought from the Magistrates’ Court had been simply dismissed with costs, no point being taken by either party about the inappropriateness of an order for payment of medical expenses when the plaintiff was relying only upon s.109. Nor was either party prepared to argue about this before us, the appellant in particular being content to leave the orders made unamended in that respect, even though it is now common ground that, on any view, there should not have been an order for the payment of medical and like expenses. Therefore in what follows that order is largely ignored.
An order for weekly payments
It will be necessary later in this judgment to deal more specifically with the grounds upon which the conclusion was reached in these three cases that the worker’s claim for compensation was “deemed to have been accepted” by virtue of s.109(1)(a) but for the moment I proceed upon the footing that that step was properly taken. The first and principal issue argued before us was the consequence of that step when, notwithstanding deemed acceptance of the claim under s.109(1), weekly payments were not paid to the worker and the worker came to court seeking compensation under the Act and an order for their payment. The respondent workers argued that upon proof of the deemed acceptance of a claim for compensation which was regular on its face, the order for weekly payments under s.109(1) should be made without the need for further inquiry. The appellant Authority contended that, at least in a case where the defendant deliberately put in issue the question of the worker’s entitlement to compensation generally under the statute, an order could not be made, even under s.109(1), without the worker's first demonstrating by evidence his or her entitlement to such compensation.
At first instance (as also on the relevant appeals to the Trial Division) the claimant worker relied simply upon the claim for compensation, the supporting medical certificates, and the terms of s.109(1) which do appear to create an obligation to make weekly payments once a claim, regular on its face, “is deemed to have been accepted” under and by virtue of paragraph (a). It was common ground, it seems, that the words in paragraph (b) “subject to and in accordance with this Part” were such as to attract the provisions of the Act with regard to the quantification of those weekly payments and their duration, such as ss.93 and 114, which appear in divisions 2 and 3 of Part 4. But at first instance it was argued on behalf of the defendants that those words “subject to and in accordance with this Part” were such as to attract also the provisions in division 1, such as s.82 and the like, dealing with a worker’s entitlement to compensation generally with the result that what was authorised, and indeed required, under s.109(1)(b), it was argued, was the making of weekly payments to the worker provided that the worker had an entitlement generally under division 1. That was the argument mounted on behalf of the defendants at first instance and on appeal where an appeal was taken to the Trial Division. It was consistently rejected.
Before us, the argument for the appellant was put very differently. At the outset, Mr. Maxwell for the Authority accepted that the obligation created and imposed by s.109(1) to make weekly payments when the claim for compensation was deemed to have been accepted under paragraph (a)was not qualified by the need for the worker first to demonstrate an entitlement to compensation generally under the statute; such a need was not said to arise from the concluding words of sub-s.(1)(b) or otherwise. Counsel accepted that on day 29, as he put it, the obligation to make those weekly payments arose in the Authority under s.109 when the claim was “deemed to have been accepted“ under sub-s.(1)(a). But the obligation imposed by s.109 was, he said, an obligation to make weekly payments on an interim basis. That was because the worker’s entitlement to weekly payments under s.109(1) had to be regarded as subject to termination under s.114 after notice duly given in accordance with that section and, as s.114(2)(b)(i) justified termination on the ground that "the worker is not entitled to compensation under Division 1 or 2 [of Part 4]", the entitlement to weekly payments under s.109(1) must be without prejudice to the issue of entitlement to compensation generally under the Act. Mr. Maxwell accepted, and indeed argued, that the Authority could raise the question of such entitlement generally by giving notice to terminate weekly payments under s.114 on any of the grounds specified in s.114(2)(b), but only, he said, once such weekly payments had commenced; for the notice was to terminate payments, he said, not entitlement to payments (and he relied in this regard on the wording of sub-ss.(2) to (12) of s.114 in contrast to the wording of sub-s.(1)). In the cases now under appeal weekly payments had not commenced and that, counsel contended, was a critical point of distinction; for, weekly payments not having commenced, no notice of termination under s.114 was needed in order for the defendant, be it the employer or the authorised insurer, to raise for determination the issue of entitlement generally.
Moreover, it was submitted for the Authority, these three proceedings had been instituted by the respective plaintiffs, not to enforce the obligation in s.109(1) to make weekly payments after deemed acceptance of the claim, but rather to obtain orders for compensation generally under the Act, in which case the result necessarily depended upon the worker’s establishing an entitlement under s.82 and the like and not upon s.109(1). In order to support this submission about the purpose of these proceedings Mr. Maxwell contended at first that any attempt by the worker to enforce the duty created and imposed by s.109(1)(b) should be by way of mandamus (albeit that such a proceeding would have to be brought in the Supreme Court) and on such an application for judicial review, he accepted, the question of entitlement to compensation generally would not arise. Mr. Gorton, who appeared with Mr. Coish for the respondent Brewster, submitted (and the other respondents adopted the submission) that the existence of such jurisdiction in the Supreme Court must be doubted given the very wide terms in which jurisdiction was apparently conferred on the County Court by s.39 of the Act (and referentially by s.43 on the Magistrates' Court) and I should have thought that correct. At all events, in the end Mr. Maxwell did not persist in the argument that jurisdiction to enforce the obligation imposed by s.109(1) lay only in the Supreme Court by way of judicial review.
Instead, the appellant submitted that the right to enforce the obligation which fell nowadays on the Authority standing in place of the authorised insurer was probably of little practical significance because the Authority, as a responsible body under statute, could be relied upon to act bona fide and in accordance with law. For one reason or another in these three cases weekly payments had not been made as required by s.109(1)(b) but, he said, there had been cause for this even if, on examination, the supposed cause had not been upheld. Ordinarily, he said, the Authority could be relied upon to make the weekly payments required by s.109 and where weekly payments were made under s.109 there would be no need for the worker to seek an order to enforce the statutory obligation. But however satisfactory this reading of the Act may be when weekly payments are made, it does not seem to me a very satisfactory solution to the problem when weekly payments are not made although, at least arguably, required by s.109(1). The right to weekly payments under s.109(1) is, I think, an important one; all counsel seemed to accept that s.109(1) was there to prevent undue financial hardship to a worker whose claim to compensation, for whatever reason, had not been either accepted or rejected within the time described by the subsection. Parliament had been concerned, it seems, to see that the worker was not disadvantaged by undue delay on the part of those who had the responsibility for accepting or rejecting a claim: the making of weekly payments in the interim was salutary and, if without prejudice to the ultimate question of entitlement to compensation generally (as the Authority argued), it scarcely disadvantaged the employer or its insurer. What was important was to maintain a proper cash flow for the worker and his family who might be struggling to make ends meet through the incapacity of the breadwinner and, if the obligation created by s.109(1) was not performed in accordance with that subsection, some means of enforcing the obligation was obviously appropriate[1].
[1]The sanction formerly in s.121D was described as "weak" by Judge Rendit in Fyffe v. Victorian WorkCover Authority (unreported, County Court of Victoria, 31 October 1994). That s.121D was repealed in 1994 by s.51(b) of Act No.54 of 1994, an Act which repealed the whole of division 3B of Part 4 (ss.121 to 121E) and replaced it with new ss.114C to 114F which were included within a new division 3. It was Act No.54 of 1994 which remodelled the delivery of compensation consequent upon the introduction of authorised insurers.
In order, then, to sustain the submission that in these three cases the plaintiff had not been suing to enforce the obligation created by s.109(1) to make weekly payments but had been seeking compensation on the wider and more general basis dependent upon entitlement under provisions such as s.82, counsel for the Authority took us to the pleadings. In Brewster the plaintiff had alleged employment, injury arising out of or in the course of employment, the lodging of a claim for compensation, its rejection on 8 January 1998 by a notice which was alleged to be invalid and finally, the necessary reference to conciliation without which a proceeding cannot now be commenced. According to the prayer for relief, the plaintiff was claiming “weekly payments of compensation pursuant to Section 93”, a declaration that the rejection of the claim for compensation was invalid and an order for payment of medical and like expenses. Mr. Maxwell contended that both the claim for compensation under s.93 and the claim for medical and like expenses made it plain enough that the claim was for compensation generally under the statute, and not simply for weekly payments under s.109. One difficulty with this argument, of course, lay in the plea in Brewster that the notice of rejection was invalid; for the invalidity of the notice of rejection was relevant only to a claim under s.109(1) where it might lead to deemed acceptance of the plaintiff's claim. When this was pointed out in the course of argument, Mr. Maxwell suggested that if and in so far as the pleading should therefore be taken to foreshadow a claim for weekly payments under s.109(1) it was no more than an interim claim pending the hearing and determination of the main claim which remained one for compensation generally after its rejection by the authorised insurer, notice of which had served effectively to put in issue for determination the worker’s entitlement generally - a step which, he said, could not simply be ignored. Yet that is not how the case proceeded, the magistrate himself pointing to the significance of s.109(1) in deeming the claim to have been accepted if there was no valid notice of rejection and then, after ruling that the notice was invalid, ordering weekly payments by reference to s.109 without requiring further proof from the plaintiff.
In Mackay, in a not dissimilar statement of claim the plaintiff alleged employment and injury arising out of or in the course of that employment, an incapacity for work resulting from or materially contributed to by injury, the submission of a claim for compensation and, in this case, its rejection by notice dated 17 March 1999 “pursuant to s.109 of the Act”. It was not alleged here that the notice of rejection was invalid but on the first day of hearing before the magistrate the question emerged whether it was within time. Counsel for the defendant employer sought an adjournment to call evidence to establish that it was within time but, when the hearing was resumed, no evidence was led and counsel formally conceded, on behalf of the defendant, that the notice of rejection had indeed been given out of time so that the worker’s claim was “deemed to have been accepted” under s.109(1). The submission then made on behalf of the defendant employer went as follows:-
“... notwithstanding the fact that the claim in those circumstances is deemed to be accepted under s.109(1), that section only allows an order for payment of weekly payments subject to and in accordance with Part 3 of the Act [sic] once the claim is deemed to be accepted. ...
My submission is that the worker still must establish that he has an entitlement within the operation of the Act. That requires him to establish now that he has an injury which would entitle him to compensation pursuant to s.82 and that he is entitled to weekly payments for incapacity in accordance with s.93. They are still matters that must be established before an order for weekly payments can be made ....”
It was that submission which was rejected by the magistrate, so that, despite the form of the pleading, the course followed at the hearing was such as to raise for determination the ingredients for the plaintiff's success under s.109(1) when the claim for compensation was deemed by paragraph (a) to have been accepted.
In Pintar, which was commenced in the County Court, the statement of claim was very similar to that in Mackay. Again there were allegations of employment, injury and incapacity coupled with the lodging of a claim for compensation and notice of rejection, this time by notice dated 5 May 1997 “pursuant to s.109 of the Act”. The prayer for relief sought weekly payments "at the appropriate rate for total incapacity and/or 'serious injury' from 7 April 1997 to date and continuing" together with the payment of medical and like expenses under s.99. When the matter came on for hearing, the parties had agreed that there should be determined what they called "a preliminary point" which (it appears from the transcript) was, or at least included, the effectiveness of the notice of rejection. The judge considered the notice inaccurate and therefore ineffective and the submission was then made on behalf of the defendant that, there being deemed acceptance, the plaintiff had none the less still to prove entitlement to compensation generally under the statute. As in the other cases this was rejected and orders for compensation were made without the need for further proof of entitlement by the plaintiff.
That being so, it seems to me that in all three cases Mr. Maxwell’s point thus far about the nature of the plaintiff's claim according to the pleadings is no more than a pleading point. In substance the argument was that because the plaintiff came to court pleading entitlement to compensation generally and more specifically without pleading expressly an entitlement under the more limited s.109, the case should have been allowed to proceed according to the pleadings and not diverted into a case that was not pleaded - and Mr Maxwell took us to the transcripts of the hearings to show how defendants’ counsel had sought to resist the diversion. However that may be, and even though the case under s.109 was not pleaded (for even in the case of Brewster where it was said that the notice of rejection was invalid deemed acceptance under s.109 was not expressly pleaded) at the hearing of each plaintiff's proceeding the case for an order under s.109(1) did emerge and whether that should have led immediately or not to orders under that subsection was, I think, no more than a matter of procedure for the tribunal (Magistrates' Court or County Court, as the case may be), no doubt after hearing what the parties had to say in that regard. I shall not describe in any more detail what happened during the hearings: suffice it to say that the failure to find any express pleading of the case for an order for weekly payments under s.109(1) does not persuade me that there was appealable error, on a question of law, sufficient to justify an appellate court’s interfering with the orders made at first instance – whether that interference must be justified under s.109 of the Magistrates’ Court Act 1986 or s.52(1) of the Accident Compensation Act 1985.
That brings me to what I regard as the main argument of the Authority: that no orders should have been made under s.109(1) because the obligation under that subsection, to make weekly payments upon deemed acceptance of a worker's claim, had come to an end by the time of the hearing of the plaintiff's proceeding which, at least as framed, was brought for compensation generally. It was common ground that the making of weekly payments under s.109 is something which lasts only for the time being: it is subject to termination when notice is duly given under s.114. (I express no opinion on whether notice under s.114 may be given, as Mr. Maxwell suggested, only after weekly payments have commenced or, as Mr. Gorton suggested, either before or after; that point was not argued.) I have mentioned already that weekly payments under s.109 were described in argument as interim (not unlike perhaps the "voluntary payments" made in earlier days under workers compensation legislation, before any award[2]), it being accepted in argument that s.109(1) was intended to relieve against hardship in cases where there was delay in the processing of the claim made by the worker. From this it was argued for the Authority that the obligation created by s.109(1)(b) to make weekly payments to the claimant should be read and understood as an obligation pending - and so not extending beyond - the consideration and determination of the claim by the authorised insurer, the Authority or the self-insurer (as the case may be). Whether payments are made or not under s.109, it was submitted, there remained the obligation on an authorised insurer to consider the worker’s claim and to decide whether to accept it or reject it, and to do so as soon as may be; and it was only pending that decision and notification of that decision that weekly payments were required under s.109 in order that the worker be not prejudiced in the meantime – or at all events not prejudiced or disadvantaged beyond an initial period (of 28 days, according to s.109(1), although see also s.108(4)).
[2]For example Edgar v. Pennell [1958] V.R. 450.
Now, in these three cases notices of rejection had been given by the authorised insurer and accordingly, to the knowledge of all, issue was joined on the question of the worker's entitlement to compensation generally under the statute. Whether or not those notices were effective to deny operation to s.109(1) or were such as might lead to deemed acceptance under s.109(1)(b) was no longer relevant, according to Mr Maxwell: the workers' claims had been rejected, as all three plaintiffs clearly apprehended, for each commenced a proceeding seeking compensation under both ss.93 and 99, alleging rejection of the claim - and only in one case, that of Brewster, was it also alleged that the notice of rejection had been invalid. When these claims came on for hearing (so the argument ran) it was no longer relevant to consider the position under s.109; no weekly payments having commenced, there had been no cause to give notice of termination and if, as an interim measure, weekly payments were to be sought under s.109 it was all rather academic because on the determination of the proceedings commenced by the plaintiffs the question of entitlement generally would be determined. If entitlement was established in the usual way, weekly payments would follow, including the payment of arrears, together with the payment of medical and like expenses; if entitlement was not established, then no weekly payments were due, whether under s.109 (in retrospect) or otherwise. This was consistent with the scheme of the legislation, it was argued, and it made good practical sense, avoiding a multiplicity of proceedings which, if the plaintiffs were right, must lead to an order under s.109 first and then upon notice of termination under s.114 being given application to the court for the determination of the principal question of entitlement to compensation generally under s.82 and the like.
The argument was put by Mr. Maxwell most attractively, if I may say so, but I am not persuaded that it does properly represent the scheme of the legislation. It seems to me that in truth that scheme is as follows. If the claim is accepted within the time marked out by ss.108 and 109, weekly payments will follow, as indeed will other forms of compensation. Weekly payments may of course be subject to termination in accordance with s.114 (although, as appellant’s counsel was apt to concede, after actual acceptance of the worker's claim notice of termination would probably be given only if further facts came to light). On the other hand, if the worker’s claim was not accepted but was rejected within the time marked out by s.109(1), no compensation of any kind would be paid but the worker, armed with a statement of the reasons for the rejection (as required by s.109(2)), could commence proceedings after gathering evidence to meet the grounds of rejection. Between these two there lies the case created by s.109, when the worker’s claim is neither accepted nor duly rejected within the time marked out by s.109(1). When that occurs, the worker’s claim must be deemed to have been accepted by virtue of s.109(1) and, as I apprehend it, that means that the worker is to be treated as though his claim had been actually accepted, contrary to the fact. Once again, such deemed acceptance (as indeed actual acceptance) is no doubt subject to termination in accordance with s.114 (although, there having been no actual acceptance, there is no reason to suppose that notice of termination would be given only by reference to facts emerging after that deemed acceptance). Should the worker wish to enforce the obligation created by s.109 to make weekly payments, he or she would have to prove the making of a claim apparently regular on its face and its deemed acceptance under and by virtue of s.109(1)(a), but perhaps little more than that. Weekly payments which were justified under s.109 could be ended only by notice duly given under s.114, when again the worker would be given reasons for the notice and hence, in case of disagreement, be in position to dispute with knowledge of what was being said against the claim.
Thus far, there seems to me little if any dispute about the scheme of the legislation, but the Authority points to the fact that once notice of rejection is given, even if beyond the time marked out by s.109(1), the worker then has the reasons for rejection and so is in the same position to commence proceedings or not as when notice of rejection is given within the time marked out by s.109(1). Moreover, it is said, the purpose of s.109(1) has been “overtaken by events” in that there has been a decision on the claim and that decision has been notified to the worker, and determination of the disputed claim will then meet all that is required; the making of weekly payments in the meantime, being themselves subject to the final determination of entitlement shortly to be made, is unnecessary and indeed inappropriate. Yet to my mind that is not what Parliament has provided. No reference is made in s.109(1) to the making of weekly payments under that section (that is, on an interim basis) only until the claim is accepted or rejected; and that that should be so seems to me quite inconsistent with the fact accepted by the Authority that, at least if once commenced, weekly payments may be ended only by notice under s.114. Indeed, the appellant's arguments seemed to me to undervalue the worker's right to weekly payments under s.109, even on an interim basis. When a workers' claim for compensation is actually accepted, payments will doubtless commence and they will then continue unless and until terminated by notice duly given under s.114 - and to my mind Parliament intended no less when the claim was "deemed to have been accepted" in terms of s.109(1)(a). It would be inconsistent then to allow that a notice of rejection, although out of time according to s.109(1), ended weekly payments being made under s.109(1)(b) or, I would add, an entitlement to weekly payments under that subsection. I do not overlook that Mr. Maxwell was contending that it should be so only in a case where weekly payments had not yet begun, but what inducement is there then for the Authority (standing now for the authorised insurer) to see that payments commence as s.109 seems to require? There is none; for the Authority could simply wait, without making those payments, and when sued defend by raising the issue of entitlement generally under the statute.
Nor do I see it as enough to say that once notice of rejection has been given, albeit after the time marked out by s.109, the worker has all that he would have if weekly payments had begun and then been terminated shortly thereafter by notice under s.114. True it is that either way the worker will probably have the reasons for the rejection of his claim; for it was further contended that as the commencement of proceedings by the worker can only follow conciliation, through that process and then the pleadings the issues will have become well-enough defined by the time of the hearing for the worker to proceed without difficulty or embarrassment. Perhaps that is so, but requiring weekly payments to commence and then to continue subject to a notice under s.114 might have other consequences beyond simply informing of the reasons for the notice. First there is the onus of proof in relation to entitlement otherwise than under s.109, about which it seems, from what was said to us in argument, that views might vary[3]. Then there is the matter of recovering weekly payments which have been made under s.109 if later it is seen that the worker had no entitlement to compensation under the Act - and on that too it seems that more than one view might be open. Under s.114F recovery depends upon its being established that there was no entitlement in the worker and even if notice under s.114(2)(b)(i) that "the worker is not entitled to compensation" may operate (as seems likely[4]) to raise the question of entitlement ab initio, does it follow if entitlement to compensation generally cannot be established that he or she must repay weekly payments made under s.109(1) by virtue of a deemed acceptance of the claim, or is an entitlement under s.109(1), if only for the time being, enough to deny operation to s.114F? These are questions which do not fall now for determination, the argument in this regard not having been developed to any significant extent, and I say no more about them. I mention them only to show that requiring weekly payments to be commenced and continued under s.109 until notice of termination has been given under s.114 might have consequences beyond merely conveying information about the reasons for the rejection of the main claim.
[3]The question of onus was adverted to in Green v. V.W.A. [1997] 1 V.R. 364 at 372, 379-380, 383 but no decision was reached there that is presently relevant. Contrast the views expressed by Judge Rendit in Drobis v. V.W.A. (unreported, County Court of Victoria, 15 July 1994) at 43-44.
[4]The provision now found in s.114(2)(b) may be contrasted with the original provision for review of weekly payments which turned on the view that the worker's incapacity was "no longer" related to compensable injury (as to which see Robertson v. A.C.C. [1987] 1 V.A.C.R 150). This was changed by Act No.64 of 1989 so that under a new s.111A weekly payments might be terminated on the ground that the worker "is not entitled to compensation under Division 1" of Part 4 or "is not or is no longer entitled to weekly payments".
Finally on this aspect of these appeals, counsel for the Authority called in aid two decisions of his Honour Judge Rendit which, he contended, justified the court’s requiring a plaintiff, in cases like these, to demonstrate by evidence entitlement to compensation generally under the statute, when such entitlement had been put in issue by the defendant. The two decisions were Gray v. Accident Compensation Commission[5] and Fyffe v. Victorian WorkCover Authority[6], both of which were delivered on 31 October 1994 and both of which turned on the wording of the then s.109 (the predecessor of the present s.109[7]) and in particular sub-s.(11). Section 109(11) then read:-
"If the authorised insurer or a self-insurer does not accept or reject a claim within the relevant period specified in this section, the claim shall be deemed to have been accepted and the authorised insurer or self-insurer must pay weekly payments to the worker subject to and in accordance with this Part.”
[5][1994] VACR para.73-388
[6]unreported, County Court of Victoria, 31 October 1994
[7]The present s.109 was substituted by Act No.50 of 1994, as to which see footnote 1.
In Gray[8], the plaintiff worker injured his left elbow while getting into his car in his driveway. He lodged a claim for compensation and the Accident Compensation Commission (the predecessor of the Victorian WorkCover Authority) determined to reject the claim, but was outside the 28 days referred to in s.109(11). Accordingly the plaintiff contended that the defendant, the Commission, was deemed to have accepted the claim and sought weekly payments. Had matters remained there, I should have thought the decision would have been governed by the scheme of the Act which was described by the judge in his reasons for judgment as follows[9]:-
"I think the scheme of the Act at the relevant time, was that if [the Commission] did not act expeditiously with regard to claims for weekly compensation, then [the Commission] would be deemed to have accepted the claim and be under the obligation to immediately commence weekly payments of compensation. Further, I consider it is plain that if for any reason, the Commission considered that the complainant was not entitled to the weekly payments so being made, then it could give a notice of termination of such payments on the grounds set out in s.111A(1)(b)(i) and weekly payments would be so terminated. I consider that this was the scheme even in cases of a disputed claim, provided that the claimant had a prima facie claim under the Act. In the present case, I am not concerned with the position where [the Commission] wrongfully refuses to make weekly payments pursuant to s.109(11). In such a case penalties would be payable [s.121D].”
After allowing for the fact that the references to section numbers are to the precursors of those with which we are now concerned on these appeals, this seems to me to be in line with what I have said so far about the scheme of the present legislation. That scheme is to require weekly payments upon deemed acceptance, but subject always to notice of termination should the authorised insurer (and now the Authority) be of opinion that the worker had no entitlement to compensation generally.
[8][1994] VACR para.73-388 (p.83,492)
[9][1994] VACR at 83,496-7
However, in Gray matters did not stand there. No weekly payments had been made and, when the claim of the plaintiff worker came on for hearing, it appears that counsel for the parties, having agreed to a set of facts, asked the judge “to rule on the plaintiff’s entitlement in the light of those facts”[10]. Accordingly his Honour said[11]:-
"Before embarking on a consideration of the effect of s.109(11) in the context of this case, there is the question of whether or not the injury sustained by the plaintiff occurred in compensable circumstances.”
It was held that it did not because the plaintiff, in getting into his car, had not commenced his journey to his place of employment. It was therefore said by the judge to be “plain on the agreed facts that the plaintiff has no claim for compensation under the Accident Compensation Act”[12] and the argument, then, was whether notwithstanding that lack of entitlement s.109(11) operated to require weekly payments to commence. As to that, his Honour said[13]:
"Whatever the position may be prior to a determination by the Court, once the Court determines that the plaintiff has no entitlement, the plaintiff is not entitled to receive unpaid weekly compensation pursuant to s.109(11)”.
[10]At 83,493.
[11]At 83,494.
[12]At 83,494.
[13]At 83,497.
To my mind, the decision in Gray is plainly distinguishable from the present: it depended upon the invitation extended by the parties to the judge to rule upon the plaintiff’s entitlement in the light of the agreed facts, and no such step was taken in these cases. In these three cases, the defendant was seeking to have the plaintiff lead evidence of entitlement generally, but the plaintiff was quite content to take, for the time being, an order for weekly payments under s.109 only, without the court's embarking upon a determination of entitlement generally - and how the Court came to proceed in that fashion has already been described. Gray is not authority for the view that that was error. (Consistently with the way in which these appeals were argued, I am ignoring, of course, the order made for the payment of medical expenses and the like under s.99.)
As the decision in Fyffe[14] was delivered on the same day as that in Gray, it is obvious enough that the one must have been influenced by the other. In Fyffe the plaintiff came to court alleging employment, injury, the making of a claim for compensation which was not accepted or rejected within the time allowed and the deemed acceptance of the claim under s.109(11) in consequence. To this the defendant had pleaded that if there was such deemed acceptance, the plaintiff was not entitled to compensation for want of injury arising out of or in the course of employment. Application was then made by the plaintiff to strike out that plea, the plaintiff contending that where the defendant is deemed to have accepted the claim under s.109(11), it was precluded from contesting that a compensable injury was suffered by the plaintiff as alleged. The application was dismissed, the judge holding that the plea was open.
[14]Unreported, 31 October 1994.
Thus the decision in Fyffe was simply on a pleading summons. None the less it is not surprising perhaps that, although relied upon by the Authority on these appeals, much of the reasoning in Fyffe tends to support the respondents, for it describes the scheme of the legislation in much the same way as in Gray. As his Honour put it[15]:-
"Obviously in the absence of any contrary statutory provision intruding, the existence of a compensable injury must always be a precondition to whether compensation is payable. In the instant case, however, there is a statutory provision which creates a fiction that deems the defendant to have accepted the plaintiff’s claim. Implied in the deemed acceptance is that the plaintiff has sustained a compensable injury and has then incapacity to the extent claimed. In those circumstances it is not a case where compliance with s.82 has to be shown immediately before the commencement of such payments are required to be made. The defendant is in the position of being deemed liable to pay compensation at that moment as if s.82 had been complied with.”
Turning to the phrase “subject to and in accordance with this Part”, his Honour held that this attracted other provisions of the Act and summed up in this way[16]:-
"Section 109(11) is in my opinion a machinery provision. It fulfils the objects of the Act to deliver compensation speedily to injured workers. But it does not mean that once a claim for compensation has been deemed to have been accepted that the defendant is liable to pay weekly compensation forever or that persons who have no legal entitlement to compensation should be paid it. ... Therefore it is argued, whilst it can be said that because a defendant through a failure to accept or reject a claim within time, is deemed to have accepted it, such a result does not prevent the defendant from serving a notice of termination on the ground that the worker is not entitled to compensation under Division 1. Such a ground would include that the plaintiff did not suffer a compensable injury arising out of or in the course of employment. Therefore it is clear from the scheme of the Act that the defendant is not placed in a position of being forever barred from contending that the plaintiff did not suffer a compensable injury.”
[15]At pp.9-10.
[16]At pp.11-12.
So far there is little in that case to sustain the argument of the Authority that entitlement to weekly payments under s.109 depends upon the worker's proving entitlement to compensation generally under the Act. But the judge went on to say that it was so, because of the concluding words "subject to and in accordance with this Part". His Honour held that the operation of s.109(11), having expressly been made subject to Part 4 of the Act which included s.82, depended upon “the alleged injury of the worker prima facie complying with s.82”. Therefore the defendant was not precluded from contending at the hearing that the worker did not suffer a compensable injury.
A number of things can be said about this conclusion. First, the words “prima facie” are important, for I imagine that the judge meant no more than that: that is, that the claim form, when read in conjunction with the medical certificate, had to be sufficient to demonstrate that there was, at least on the face of it, a compensable injury within s.82 - and there is no argument about that. That alone could have been thought to justify the defendant's pleading. Further or alternatively, it can be said that s.109(11), as considered in Fyffe, was significantly different from the terms of the present s.109(1) in that nowadays s.109(1)(a) provides without further qualification that a claim is “deemed to have been accepted”, whereas under the former s.109(11) it was at least arguable that the concluding words, “subject to and in accordance with this Part”, attached not merely to the weekly payments that were required but also to the deemed acceptance itself. Once the deemed acceptance was unqualified, it had to be given some effect; yet the argument of the Authority would seem to deprive it of any effect, or perhaps of any consequence if, as it contended, the making of weekly payments is still subject to proof by the worker of entitlement under s.82 and the like. The difference in the wording of the two provisions - the former s.109(11) and the later s.109(1) - was the point of distinction relied upon by the judge in the Trial Division on the appeal in Brewster and agreed in by the judge on the appeal in Mackay. I too agree that it is a pertinent distinction and it means that the decision in Fyffe should not be taken to dictate the result on these appeals, any more than the decision in Gray.
Accordingly I would conclude that the enforcement by the worker of the right given by s.109(1)(b) to weekly payments after a claim for compensation is deemed to have been accepted is not subject to the claimant's having first to prove entitlement to compensation generally under the Act, even in a case where such weekly payments have not begun and notice of rejection has been given by an authorised insurer after the time marked out by s.109(1)(a) for the acceptance or rejection of the claim but before the worker comes before the court. It follows then that on this aspect of the case the Authority fails, it having been concluded already that, although each of these three proceedings was cast in the first place as a suit for compensation generally, that did not prevent the court at first instance dealing with it, in the exercise of discretion, as a claim under s.109 only, given the circumstances attending the hearing.
Before turning, however, to the remaining aspect of these cases, let me add this. I emphasise that it was a matter of discretion for the court at first instance how to proceed in these three cases, and I should not be taken from my conclusion that there was no appealable error in that regard to be dictating the course that should be followed in other like situations. In these three cases the workers' right to an order under s.109(1) upon deemed acceptance of the claim for compensation did seem to emerge only in the course of the hearing at first instance, a hearing of what until then was cast as a claim for compensation generally under the Act, based upon notice of rejection given by the authorised insurer. The worker did not come to court to establish an entitlement to compensation after hearing nothing at all from the insurer; the worker was scarcely ignorant of the attitude of the defendant, for that had been made clear and presumably the grounds made known. In those circumstances, it would not have been surprising, I think, if the general discretion over procedure had been exercised at first instance in favour of the court's proceeding with the proofs of entitlement on the main claim, not only so as to justify an order, as sought by the plaintiff, for payment of medical and like expenses under s.99 (which, as I have said, could not be justified under s.109(1) itself), but also to justify a final determination of the employer's liability which, it is common ground, was not established merely upon the deemed acceptance of the claim for compensation under s.109(1). As Mr. Maxwell argued and as I think all counsel were disposed to accept, entitlement under s.109(1) is somewhat ephemeral, being subject to proof of entitlement generally if and when notice of termination is given under s.114(2) and it must therefore be open to a worker at any time to seek to establish entitlement once and for all. In these three cases, where the plaintiff appears to have commenced the proceeding in reliance upon a notice of rejection from the authorised insurer, it is difficult to see what was to be lost by the court's pressing on with the main claim, and much time could have been saved.
I say this not to criticise but only by way of obiter dicta to indicate that an order for weekly payments under s.109(1) was perhaps not the only order that might have been made, so that nothing I say in rejecting these appeals notwithstanding the way in which the plaintiffs first cast their cases should be taken to control the exercise of discretion in another case. So too whether or not a court at first instance, if disposed in such circumstances to proceed with the main claim, should have done so only after making an order for interim payments under s.109(1) is a matter on which I express no opinion; much might depend upon, inter alia, the circumstances of the worker and the probable time until final determination of the entitlement to compensation generally.
The notice of rejection
That leaves then such questions as remain over the sufficiency or otherwise of the various notices of rejection. As I have said, each of these three appeals proceeded upon the footing that there was, for one reason or another, deemed acceptance under s.109. In Mackay, that was because the notice of rejection given on 17 March 1999 was ultimately conceded, during the hearing before the magistrate, to have been out of time. That has not since been challenged and accordingly the worker’s claim for compensation was deemed to have been accepted and, for the reasons I have given, nothing then stood in the way of an order for weekly payments under s.109. Accordingly, the appeal in Mackay should be dismissed.
In the case of Brewster, the notice of rejection given by the authorised insurer on 8 January 1998 was held by the magistrate to have been ineffective as a notice under s.109 by reason of what the magistrate considered to be gross misrepresentation of the report of Dr. Grainger-Smith, which the insurer relied upon in rejecting the worker’s claim. On appeal to the Trial Division, the conclusion of the magistrate in that regard was upheld and, although the subsequent notice of appeal as filed sought to challenge that conclusion, that challenge was abandoned before this appeal came on for hearing and so we are not required to express any view at all on the correctness or otherwise of the decision below that the notice was ineffective. I say nothing in that regard. This appeal, like that in Mackay, simply proceeded upon the footing that, for want of an effective notice under s.109, there was deemed acceptance under that section of the worker’s claim for compensation; and, that being so, for the reasons already given nothing further stood in the way of an order for weekly payments under s.109 and this appeal, too, should be dismissed.
The third appeal however is different. In Pintar the notice of rejection, given by the authorised insurer on 5 May 1997, was held in the County Court to have been ineffective because of a mistake contained within the notice. It was because of that mistake that the notice was regarded as insufficient for the purposes of s.109 and accordingly its giving brought about, not the rejection of the worker’s claim, but its deemed acceptance for want of a proper notice of rejection under s.109. With respect, I think that that conclusion was in error.
First, the mistake was an obvious one. The notice of rejection comprised a two page letter followed by a four page "attachment" dealing in detail with two medico-legal reports. The letter declared that it, the letter, "is a formal notice under section 109" of the Act from the authorised insurer to the worker that "your claim for weekly payments under this Act has been rejected" and it invited the worker's attention to "the attached [which] is part of this notice". The four pages that followed the letter commenced on the first page as follows, under the initial heading GROUNDS RELIED UPON:
"We hereby reject your claim for compensation for a lower back strain pursuant to Section 109(2) …"
Undoubtedly this was a mistake; the plaintiff made no claim for injury to the lower back. According to her claim form the injury relied upon was "pain & stiffness, both shoulders muscle strain both arms neck" and her alleged injuries were so described in other portions of the notice of rejection. For example on the very same page of the attachment, under the heading REASONS FOR GIVING THE NOTICE the insurer declared in paragraph 1:-
"On 13 March 1997, you lodged a claim for compensation with your employer, Venture Industries, for an alleged left and right shoulder, left and right arm and neck injury due to continuous and repetitive work on the instrument panel line."
What followed was the detailed canvassing of the reports of a physiotherapist and a general practitioner.
Taken overall, it seems plain to me that the plaintiff can have been in no doubt that it was her claim for compensation that was being rejected and the reasons for that rejection. That surely was the legislative purpose to be served by the giving of the notice and, when measured against that purpose[17], the notice was sufficient. The fact that in one line of the rather elaborate notice of rejection the claim for compensation was misdescribed as injury “for lower back” does not I think, require some other conclusion. His Honour saw the reference to “lower back strain” as simple mistake, for he said:-
"Of course the claim dated 13 March 1997 made no reference to any ‘lower back strain’. Several possible reasons have been advanced for what is clearly an administrative blunder, but in the event, those reasons are of no consequence.”
Administrative blunder it may have been, and mistake it obviously was. Taken in context, that mistake did not deprive the notice of effect; its purport and its meaning were plain beyond argument. The mistake in the document was quite simply immaterial: compare Hills Grammar School v. Human Rights and Equal Opportunity Commission[18], a case on judicial review. Therefore I think the notice of rejection was effective and, as it was given in time, s.109(1) was not called into operation.
[17]D.F.C.T. v. Woodhams (1999) 199 C.L.R. 370 at 384
[18](2000) 100 F.C.R. 306, especially at 314-5
Thus far it would follow from the foregoing that the appeal in this case should be allowed, the order below set aside and the plaintiff’s claim for compensation remitted to the County Court for further hearing and determination according to law. It was contended, however, on behalf of the respondent that we should not entertain on this appeal the complaint that the notice of rejection had been effective after all because, it was said, the question, if a question of law, was not one that had been "raised during those proceedings" (being the proceedings in the County Court) as required by s.52(1) of the Act if an appeal is to lie.
According to the transcript of argument in the County Court, counsel for the defendant, while acknowledging that the so-called "preliminary point" had to be determined, did not put any argument specifically directed to sustaining the validity of the notice. The plaintiff contended that the notice was ineffective to deny operation to s.109(1), but the defendant, without conceding the point, was content to argue only the submission that none the less the plaintiff still had to prove entitlement to compensation generally under the Act. In his reasons for judgment, the judge rejected this submission of the defendant but first his Honour dealt in detail with the question whether the notice was ineffective to deny operation to s.109(1). After all, that underlay the whole of the plaintiff’s case to weekly payments under s.109 and in all of the circumstances I do not think it follows, simply because argument was not advanced by the defendant below specifically directed to sustaining the validity of the notice, that that question was not “raised during those proceedings” as required by s.52(1) of the Act. It was, in my opinion, raised for determination and, as I have said, it was plainly determined by his Honour, albeit that it was argued only by the plaintiff. Mr. Spittle, who appeared with Mr. Coish for the respondent, relied upon Rampling v. Emergency Services Superannuation Board[19] but that case was quite different: there the point had not been taken with the result that relevant evidence had not been called. There is of course a discretion in any appellate court not to permit argument on a point not argued below and advanced for the first time on appeal, but that discretion does not turn on the proper construction of s.52(1). Nor in all the circumstances would I refuse, in the exercise of discretion[20], to hear the Authority about the effectiveness of the notice.
[19][1994] 6 V.A.R. 199
[20]Adams v. Chas. S. Watson Pty. Ltd. (1938) 60 C.L.R. 545 at 548
In argument there was some debate about whether the validity of the notice was included within the grounds taken in the notice of appeal. The Authority submitted that it was and that, if not, leave to amend should be granted. Plainly the respondent was not taken by surprise (for the point was addressed in the respondent's Outline of argument) and no objection was made to an amendment to the notice of appeal if needed. On balance I think amendment is not necessary.
Finally, I am satisfied in all the circumstances that the question whether the notice was effective to deny operation of s.109(1) involves a question of law which is capable of being raised on appeal under s.52(1)[21]. In part the answer to that question turns upon the proper construction of the document and in part upon the proper construction of the section. As counsel for the Authority contended, if s.109(1) is to be denied operation there must, within the time allowed, be a notice to the worker rejecting the worker’s claim for compensation and giving reasons for the rejection: those are the requirements, implied and express, of s.109. This is not a proceeding brought for some general review of administrative action: what matters, as counsel put it, was whether the notice, on a reasonable reading, notifies the worker that the claim made by the worker has been rejected and provides the reasons for the rejection. In this case it seems to me, with respect, that the notice given by the authorised insurer did do those things and in concluding that the notice was not
effective to deny operation to s.109(1) the judge either made a finding that was not open to him on the evidence or misunderstood the meaning of the relevant statutory description: either way the decision may be set aside for error of law: Edwards (Inspector of Taxes) v. Bairstow[22], Dampskibsselskabet Torm A/S v. Australian Wheat Board[23], S v. Crimes Compensation Tribunal[24].
[21]As to which see generally Green v. V.W.A. [1997] 1 V.R. 364 at 368-9 per Tadgell, J.A. and Dunstan v. Amcor Ltd. [2000] VSCA 9 paras. 16-18 per Winneke, P.
[22][1956] A.C. 14 at 36
[23][1981] V.R. 145 at 147 per Lush, J.
[24][1998] 1 V.R. 83 at 92
For these reasons I would reject the submission that we cannot on this appeal deal with the sufficiency of the notice of rejection under s.109 and would accordingly dispose of this appeal as described in paragraph [39].
Conclusion
As I have said in paragraphs [34] and [35], I would dismiss the appeals in Brewster and Mackay. In accordance with what is stated in paragraphs [39] and [43], I would allow the appeal in Pintar, setting aside the order made below and remitting the plaintiff's claim to the County Court to be heard and determined according to law. As we must set aside the order for weekly payments I would set aside also the order for the payment of medical and like expenses under s.99, as it is common ground that there was no sufficient warrant for that order. Whether the plaintiff's claim should still proceed as a claim under s.109 only is a matter which no doubt will be considered by the judge in charge of the re-hearing.
CHARLES, J.A.:
I have had the benefit of reading in draft the reasons for judgment in these appeals prepared by Phillips, J.A. I agree with the orders proposed by his Honour in each case and with his reasons therefor.
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VICTORIAN WORKCOVER AUTHORITY v. BREWSTER
VICTORIAN WORKCOVER AUTHORITY v. MACKAY
VICTORIAN WORKCOVER AUTHORITY v. PINTAR
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CERTIFICATE
I certify that this and the preceding 29 pages are a true copy of the reasons for judgment of Winneke, P., Phillips and Charles, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 30 March 2001.
DATED the day of 2001.
Associate
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