INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355

Workers' compensation - Extension of termination day - Workers' Compensation and Injury Management Act 1981 (WA), s 93M(6) - Calculation of 'last day of the period of one year after' termination day - Interpretation Act 1984 (WA), s 61(1)(b), s 62(3)

Interpretation Act 1984 (WA), s 61(1)(b), s 62(3)

Workers' Compensation and Injury Management Act 1981 (WA), s 93M(1),(4), (6)

1 McLURE P: I agree with Newnes JA and Edelman J.

2 NEWNES JA: This is an appeal from a decision of Kenneth Martin J, who ordered that a writ of certiorari be issued for the purpose of quashing a decision of the delegate of the second respondent (the Director) of 14 July 2011. By that decision, the delegate refused an application by the first respondent for an extension of the date by which the first respondent was required under s 93K of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) to elect to retain the right to seek common law damages.

3 The appeal turns on whether the extension sought by the first respondent exceeded the maximum period permitted under the Act.

4 The first respondent was injured on 18 May 2009 when she fell off or through a roof while employed by the first appellant. An unsigned claim form for weekly compensation under the Act was lodged on behalf of the respondent on 25 May 2009. A signed claim form was submitted on 29 June 2009 and the first respondent thereafter received weekly compensation payments under the Act.

5 The respondent also wished, however, to keep alive a right to claim damages in respect of her injuries.

6 Pursuant to s 93K of the Act, damages in respect of an injury can only be awarded if, among other things, the worker elects in the prescribed manner to retain the right to seek damages and the Director registers the election: s 93K(4). Where (as in this case) a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day': s 93L(4). The termination day is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless an extension of that time is granted by the Director under s 93M(4).

7 There are four circumstances in which an extension of the termination day may be granted under s 93M(4). They are, broadly speaking, where before the termination day a medical practitioner has certified that the worker's condition has not sufficiently stabilised for the degree of their bodily impairment to be assessed and recommends some extended termination date: s 93M(4)(a); the employer has failed to comply with s 93O: s 93M(4)(b); a medical specialist requires more time

to provide a certificate of the degree of bodily impairment: s 93M(4)(c); and, the worker has requested an assessment of the degree of their bodily impairment within time but was not given, or it was not practicable to give, the report and certificate required by s 146H at least 7 days before the termination date: s 93M(4)(d).

8 An extension of the termination day may be granted even though the termination day has passed: s 93M(8).

9 The extent to which the Director can extend the termination day under s 93M(4) is not, however, unlimited. Section 93M(6) provides that, except in the circumstances described in s 93M(4)(d), an extension under s 93M(4) 'is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection'. That is, the time cannot be extended under any of s 93M(4)(a), (b) or (c) beyond one year after the day on which the termination day would have fallen if no extension had been granted.

10 Under s 93O, six months prior to the termination day the employer of the worker is required to notify the worker in writing of various matters, including the day that would be the termination day if no later day were to be fixed under s 93M(4).

11 On 30 December 2009, the respondent received a letter from the second appellant, pursuant to s 93O of the Act, notifying her (relevantly) that the termination day for her claim was 30 June 2010.

12 The respondent subsequently made two applications for an extension of the termination day. The first was by letter dated 29 June 2010 and was made pursuant to s 93M(4)(b) of the Act, seeking an extension to 30 June 2010 on the ground that that the employer had stated the wrong termination day in the s 93O notice. (Whilst the error by the employer is not specifically identified it is to be inferred that the respondent contended the correct termination day was 29 June 2010, not 30 June 2010 as stated by the appellant.) The other application was made on or about 23 July 2010, pursuant to s 93M(4)(d)(i), seeking an extension to 30 December 2010. The Director's delegate responded to both applications by a letter dated 26 July 2010. In respect of the first application the termination day was extended to 30 June 2010 and in respect of the second application it was extended to 23 August 2010.

13 On 20 August 2010, the Director's delegate received a further application from the respondent for an extension of the termination day, pursuant to s 93M(4)(c) and s 93M(4)(d)(i). That application was also granted and the time extended to 10 September 2010.

14 On 21 June 2011, the respondent applied, pursuant to s 93M(4)(a), for an extension of the termination day to 30 June 2011. The Director's delegate responded by a letter dated 24 June 2011, refusing the extension on the ground that the application was out of time. The delegate stated that as the respondent's claim for compensation by way of weekly payments was made on 25 May 2009, the final day to which an extension could be granted was 25 May 2011.

15 On 30 June 2011, the respondent made another application, pursuant to each of s 93M(4)(a), s 93M(4)(b), s 93M(4)(c) and s 93M(4)(d)(i), to extend the termination day to 30 June 2011. At the same time, the respondent lodged an election under s 93K to retain the right to seek common law damages. In an accompanying letter, the respondent took issue with the view of the Director's delegate that the claim for compensation by way of weekly payments was made on 25 May 2009, contending that it was made on 29 June 2009.

16 The Director's delegate responded by letter dated 14 July 2011. It appears from the letter that the delegate accepted that the claim for compensation by way of weekly payments was made on 29 June 2009. However, the delegate refused to grant an extension of the termination day to 30 June 2011 pursuant to s 93M(4)(a), s 93M(4)(b) or s 93M(4)(c), on the ground that under s 93M(6) the last day to which an extension could be granted was 29 June 2011. So far as the respondent relied upon s 93M(4)(d)(i), the delegate sought further information as to the basis upon which the extension was sought.

17 The respondent subsequently commenced proceedings by a notice of originating motion seeking a writ of certiorari to quash the decision of the Director's delegate of 14 July 2011 to refuse to grant the extension to 30 June 2011, and a writ of mandamus to compel the Director to grant an extension of the termination day to 30 June 2011 and to register the respondent's election to retain the right to seek common law damages.

18 The primary judge ordered that a writ of certiorari be issued and gave the respondent liberty to apply for a writ of mandamus.

19 The primary judge found that the respondent's claim for compensation by way of weekly payments was made on 29 June 2009, when the signed claim form was lodged, not 25 May 2009 [22].

20 His Honour then turned to the definition of 'termination day' in s 93M(1). That definition, his Honour observed, had to be understood in light of s 61(1)(b) of the Interpretation Act 1984 (WA). The latter provides that 'where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period'. His Honour concluded that therefore 'the first day in the running of a one year period [under s 93M(1)] is 30 June 2009' [24]. His Honour then said:

From that base, the next question is what is the 'last day' of a period that is one year after 30 June 2009?

On my assessment the last day of such a one year period will be the one year anniversary of that day, namely 30 June 2010. (original emphasis) [25] - [26]

21 Having reached that conclusion, his Honour turned to s 93M(6). He said:

The day that would have been [the respondent's] termination day, had there been no extension(s) under s 93M(4), was 30 June 2010. It is necessary to ascertain (the maximum extension period) by s 93M(6) the day that is not more than one year after the day (namely after, 30 June 2010) again applying s 61(1)(b) Interpretation Act. Section 61(1)(b) of the Interpretation Act in this process excludes 30 June 2010 when calculating the period 'one year' after then. So a second relevant one year period begins to run from the next day, namely, as from 1 July 2010. Hence, the day for the purposes of s 93M(6) which is 'one year after' 1 July 2010, by my calculation, is the one year anniversary of that day, namely, 1 July 2011 (original emphasis) [31].

22 The primary judge therefore found that the termination day, if no extension had been granted, was 30 June 2010 and that the final day to which the termination day could be extended under s 93M(6) was 1 July 2011. He concluded that, accordingly, the decision of the Director's delegate of 14 July 2011 was affected by jurisdictional error.

23 The primary judge ordered that a writ of certiorari be issued to quash the decision. His Honour gave the respondent liberty to apply for mandamus if required, expressing the view that there was no reason to believe the Director's delegate, with the benefit of his Honour's reasons and orders, would not proceed in accordance with law and re-evaluate the request for an extension of time on a proper basis.

24 The appellant has appealed against his Honour's decision, contending that his calculation of the termination day was wrong.

The learned Primary Judge erred in law in holding that under s 93M(4)(a) of the Workers' Compensation and Injury Management Act 1981 the termination day could be extended to 1 July 2011 in that:

1.1 On the assumption that the first respondent first made a claim for workers' compensation on 29 June 2009 the last day to which the termination day could be extended was 29 June 2011;

1.2 The delegate of the second respondent assumed but did not find, and it was not common ground, that the first respondent first made a claim for workers' compensation on 29 June 2009.

26 In my respectful view, the primary judge erred in the construction of s 93M(1) and s 93M(6), respectively, of the Act. As set out above, s 93M(1) defines the 'termination day' to be 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made' (emphasis added). The primary judge found that the first respondent first made a claim for compensation by way of weekly payments on 29 June 2009.

27 The 'termination day' was therefore 'the last day of the period of one year after' 29 June 2009. By virtue of s 61(1)(b) of the Interpretation Act, in computing time for the purposes of a written law:

where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period.

28 Accordingly, in this case 29 June 2009 is not to be included in calculating the one year period under s 93M(1). The period therefore started on 30 June 2009, as his Honour found. However, his Honour erred in finding that it ended on 30 June 2010. It ended at midnight on 29 June 2010. His Honour's calculation would provide for a period of one year and a day, 30 June having been counted twice. Contrary to the submission of the respondent's counsel, s 93M(1) does not provide for a

period of one year and a day. The applicable termination day was therefore 29 June 2010.

29 Similarly, s 93M(6) provides that, except in the circumstances described in s 93M(4)(d) (which do not apply here), an extension of time under s 93M(4) 'is to be to a day that is not more than one year after the day that would have been the termination day if there had been no extension under that subsection' (emphasis added). The termination day if no extension of time had been granted was 29 June 2010. The effect of s 61(1)(b) of the Interpretation Act is that 29 June 2009 is not included in the calculation of the period, which commences on 30 June 2010. One year after that day would end at midnight on 29 June 2011.

30 It follows that the primary judge erred in finding that the decision of the Director's delegate as to the termination day was wrong. The Director's delegate correctly concluded that the last day to which the termination day could be extended was 29 June 2011.

31 In that connection, I should note that in the course of the hearing of the appeal the court enquired whether there was any argument that the respondent was entitled to an extension of the termination day beyond 29 June 2011 by virtue of s 93M(4)(d) of the Act. We were informed by counsel for the appellant that the question had been raised below but counsel for the respondent had not sought to advance such a case. Counsel for the respondent on the appeal did not take issue with that, nor did he seek to rely on s 93M(4)(d) on the appeal. The issue on the appeal was confined to the proper construction of s 93M(1) and s 93M(6) respectively.

32 The appeal should be allowed and the orders made by the primary judge set aside. The respondent's notice of originating motion should be dismissed.

33 EDELMAN J: The essential issue on this appeal is whether the primary judge made a mechanical, or counting, error in the computation of time. Subject to what follows below, I agree with the orders of Newnes JA, and with his Honour's reasons.

34 The reason why 29 June 2010 was the applicable termination day is as follows in the four steps below.

(1) As Newnes JA explains, s 61(1)(b) of the Interpretation Act 1984 (WA) has the effect that the 'period of one year after' 29 June 2009 was a period that ran from 30 June 2009.

(2) Section 5 of the Interpretation Act defines a year as 'a period of 12 months'.

(3) Section 62(1) of the Interpretation Act defines a month as 'a calendar month, that is to say, a month reckoned according to the calendar'.

(4) Section 62(3) of the Interpretation Act provides as follows:

If a period indicated in a written law is of 2, 3 or more months, it shall be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third, or other successive month thereafter or, if there is no such corresponding date, to the last day of the latter month.

For example: a period of 6 months beginning on 15 August ends on 14 February and a period of 6 months beginning on 30 or 31 August ends on 28 February (or 29 February in a leap year).

35 The effect of s 62(3) is that 'the last day of the period of one year after' 30 June 2009 is the day numerically corresponding, less one, (29) in the twelfth successive month thereafter (June 2010). The result is therefore a termination date of 29 June 2010.

36 Following the same process, and subject to s 93M(4)(d) of the Act which was not relied upon in this appeal, the last day to which a termination day could be extended under s 93M(6) of the Act was 29 June 2011.

37 The Interpretation Act method of reckoning time resolves uncertainty in difficult cases. For instance, it resolves uncertainty that might arise where reckoning by the number of days in a year would lead to a different result from reckoning by months. It would make a difference to the calculation for the relevant day required by s 93M(1) if a leap year fell within the period reckoned (such as 2008 or 2012). It also resolves uncertainty that arises where there is no corresponding day in the successive month (such as a three month period in s 93M(3) commencing on 31 January in any year). Importantly, s 62 of the Interpretation Act directs attention to the precise mechanism for counting. Counsel did not refer the primary judge to that section.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162 (S)

INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355

Costs - Appeal not hypothetical - Costs follow event - Appeal on question of law of general application - Suitors' Fund Act 1964 (WA), s 10(1) - Indemnity certificate granted

Suitors' Fund Act 1964 (WA), s 10(1)

First respondent to pay appellants' costs of application before primary judge to be taxed

First respondent to pay appellants' costs of appeal to be taxed

First respondent granted indemnity certificate under Suitors' Fund Act

Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162

Richards v Faulls Pty Ltd [1971] WAR 129

1 JUDGMENT OF THE COURT: On 2 September 2014, this court allowed an appeal by the appellants against an order of Kenneth Martin J that a writ of certiorari issue to quash a decision of a delegate of the second respondent (the Director) under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act): Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162.

2 The Director, by his delegate, had refused an application by the first respondent for an extension of time to 30 June 2011 to make an election to retain the right to claim damages under s 93K of the Act. He considered that the extension of time sought by the first respondent would exceed the maximum period permitted under the Act for the election to be made. The Director had therefore declined to register the first respondent's election as it was out of time.

3 We found that the Director had correctly refused the extension of time, for the reason he gave, and that the primary judge had erred in ordering that a writ of certiorari issue to quash the decision. We set aside the orders of the primary judge.

4 It was ordered that the question of costs be dealt with on the papers. Both sides have filed written submissions on costs, in each case supported by an affidavit.

5 The first respondent contends that notwithstanding the appellants were successful on the appeal, they are not entitled to their costs. Counsel for the first respondent submitted, in effect, that the appeal was unnecessary because the question it raised was hypothetical. It was hypothetical because, on 30 May 2014, some 19 days before the hearing of the appeal, the Director had extended the termination day to 30 June 2011 and registered the first respondent's election. It was submitted that in those circumstances the appeal served no purpose as any subsequent decision of this court to set aside the order of the primary judge would not affect the validity of the registration of the first respondent's election. The appellants should not therefore have pursued the appeal.

6 The affidavits of the parties explain the circumstances in which the registration of the first respondent's election came about. The relevant events were as follows.

7 On 26 September 2013, following the delivery of his reasons for decision, the primary judge made an oral order that a writ of certiorari issue for the purpose of quashing the decision of the Director. For reasons which are not apparent, it seems the order was not settled until 4 November 2013.

8 In the meantime, on 10 October 2013, the appellants had commenced the appeal. The appeal notice was served on the first respondent's solicitors on 16 October 2013. The appellants' case was filed on 14 November 2013 and the first respondent's answer was due to be filed by 9 December 2013. It was in fact filed on 6 December 2013.

9 On 4 December 2013, upon receipt of the settled order, the first respondent's solicitors wrote to the Director enclosing a copy of the order and asking that the first respondent's election be registered. Remarkably, the first respondent's solicitors did not mention in the letter that an appeal had been commenced. Nor did the first respondent's solicitors inform the Director of that subsequently.

10 On 24 February 2014, the Court of Appeal registrar notified the parties that the appeal had been set down for hearing on 18 June 2014.

11 By a letter dated 28 May 2014, the Director informed the first respondent's solicitors that as a consequence of the order of the primary judge, the termination day had been extended to 30 June 2011 and the first respondent's election had been registered with effect from 28 May 2014.

12 According to an affidavit of the solicitor for the appellants, it was only on 30 May 2014 that the appellants' solicitors became aware that the first respondent had applied to the Director for the extension of time and registration of the election in reliance on the order of the primary judge. The appellants' solicitors then wrote to the Director enquiring whether he had been informed of the appeal. The Director responded in a letter dated 24 June 2014 in which he said that from enquiries he had made, no one in his office had been aware of the appeal.

13 Before turning to the costs issue, we must observe that it was quite inappropriate for the first respondent's solicitors to ask the Director to act on the decision of the primary judge without alerting him to the fact that the decision was the subject of an appeal. No explanation is offered for the failure to mention the appeal. It is not suggested that it was the result of an oversight. Indeed, it would strain credibility to suggest that it was. In circumstances where the first respondent's solicitors appear to have been of the view that, once registered, the election would be immune from the consequences of a successful appeal, it is difficult to avoid the conclusion that the appeal was not mentioned because of concern that registration of the election might then be delayed until after the appeal had been determined. In his submissions on costs, the first respondent's counsel maintained the position that the outcome of the appeal could have no consequences for the registration of the election.

14 That is, on its face, a surprising proposition and one that is contested by the appellants. While we have not heard argument on the point, our preliminary view is that it is without merit.

15 In any event, counsel for the appellants specifically mentioned on the hearing of the appeal that the first respondent's election had been registered in reliance on the order of the primary judge. He submitted, however, that that did not render the appeal hypothetical and that the appeal should be heard and determined. Counsel for the first respondent did not take issue with that. We accepted it was appropriate that the appeal proceed. We are of no different view now.

16 Ordinarily, the costs of an appeal follow the event: see Rules of the Supreme Court 1971 (WA), O 66 r 1(1). There is no reason in this case that the appellants should be denied an order for costs. There will be an order that the first respondent pay the appellants' costs of the appeal and their costs below, to be taxed.

17 In the event of such an order, the first respondent sought a certificate under s 10(1) of the Suitors' Fund Act 1964 (WA). That section provides that where an appeal succeeds on a question of law, the court may grant the respondent an indemnity certificate in respect of the costs of the appeal. It is not, however, sufficient merely to show that the appeal has been decided on a question of law; an applicant for a certificate must show some ground calling for the exercise of the discretion: Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139. A relevant consideration will be the degree to which the question of law involved a question of general application, rather than a question which turned on the facts of the particular case.

18 The appeal in this case succeeded on a question of law. It turned on the proper construction of s 93M(1) and s 93M(6) of the Act and the issue was one of general application. It is appropriate that the first respondent be granted a certificate under s 10(1) of the Suitors' Fund Act.

1. The first respondent pay the appellants' costs of the application before the primary judge, to be taxed;
2. The first respondent pay the appellants' costs of the appeal, to be taxed;
3. The first respondent be granted an indemnity certificate in respect of her costs of the appeal, pursuant to s 10(1) of the Suitors' Fund Act.