Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6

Tanase v ACME Engineering Tas Pty Ltd [2006] TASSC 100

Board of the Tasmanian Government Insurance Office v McLeod [1991] TASSC 151

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156

Tracy Village Sports & Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37-38

Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Walker v J & A Freeman Building Services [2006] TASSC 90

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Federal Hotels Limited v Timothy Webb [2023] TASSC 36

Workers Rehabilitation and Compensation Act 1988

Tasmanian Civil and Administrative Tribunal Act 2020

Supreme Court Rules 2000

Acts Interpretation Act 1931

Judgment Number: [2026] TASSC 5

NATASHA DALE v CIGARETTE & GIFT WAREHOUSE (FRANCHISING)

1. This appeal from the Tasmanian Civil and Administrative Tribunal (the Tribunal) is primarily concerned with the operation and application of s 69(13) of the Workers Rehabilitation and Compensation Act 1988 (the Act), and, particularly, the question of whether it is necessary for the worker to directly provide to the employer and/or the employer's insurer the relevant medical certificates, and for the employer/insurer to directly receive from the worker such certificates, before the provisions of s 69(13) may be enlivened.
2. The worker in question is Natasha Dale, the appellant in these proceedings. Her employer was the respondent. The employer's workers compensation insurer was Allianz. The case manager for the worker's claim with the insurer was a Ms Shaw. The worker had a rehabilitation consultant appointed, by the name of Ms Visser.
3. The sequence of events to which this appeal relates is as follows. The facts set out below are largely uncontentious.
4. The worker made a claim for workers compensation in December 2022 as a result of an incident in the course of her employment where she suffered acute lumbar back pain. The claim was supported by a continuous workers compensation medical certificate, dated 20 December 2022, which certified her to be incapacitated from 21 December 2022 until 28 January 2023. The claim for compensation was accepted and the employer paid workers compensation.
5. Thereafter, the worker delivered to her employer a continuing workers compensation medical certificate, dated 23 February 2023, which certified her to be fit for suitable duties between 9 February 2023 and 2 March 2023. On or about 2 March 2023, the worker delivered to her employer a final workers compensation certificate, dated 2 March 2023, certifying the worker would cease to be incapacitated on 3 March 2023. All these certificates were delivered by the worker to her employer via text message.
6. In May 2023, the worker was made redundant when the employer closed their Tasmania store. Between March 2023 and September 2023 there was no communication between the worker and the employer or the employer's insurer. In September 2023, the insurer contacted the worker indicating an intention to close the claim. At that point, the worker indicated an intention to pursue the claim. Following that, the worker delivered a continuing workers compensation medical certificate to the employer's insurer, dated 4 December 2023, which was backdated to indicate that the worker was fit for suitable duties from 3 March 2023 until 4 January 2024.
7. On 15 March 2024, Ms Shaw had a conversation with Ms Visser. Following that, Ms Visser sent an email to Ms Shaw which contained two attachments - one being a continuing workers compensation medical certificate, dated 30 January 2024, which certified the worker to be fit for suitable duties from 5 January 2024 until 5 March 2024; and the second being a workers compensation certificate of capacity (noting the terminology used to describe workers compensation medical certificates was subject to a legislative change on 1 February 2024) dated 5 March 2024, which certified the worker to have capacity for suitable alternative work from 6 March 2024 until 6 April 2024. It is the circumstances surrounding the receipt of the certificates dated 30 January 2024 and 5 March 2024 which was a point of contention before the Tribunal and is the substantial point of contention in this appeal, albeit in a different vein. I will return to the circumstances surrounding the receipt of the two certificates in further detail shortly.
8. Following receipt of the certificates of 30 January 2024 and 5 March 2024, the employer through the insurer (and it is accepted for the purpose of this appeal that the insurer was able to act as the employer's agent) elected to dispute its ongoing liability to pay compensation to the worker and referred the dispute to the Tribunal, pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988. In doing so, the employer relied upon s 69(13) of the Act, which provides:

"If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."

1. To enliven s 69(13), the employer relied upon the prima facie gap of more than 14 days between the medical certificate dated 4 December 2023 (which expired on 4 January 2024), and the 15 March 2024 being the date on which the employer came into possession of the certificates dated 30 January 2024 and 5 March 2024.
2. At the hearing before the Tribunal, the worker appeared self-represented. She argued that no such gap existed and that she was of the understanding that the certificates had been provided to her employer on the day she had received them, via her workers compensation rehabilitation provider. The worker claimed in a statement tendered to the Tribunal that "At all times I understood that I was authorised to provide my medical certificates to Ms Visser and that it was not necessary for me to do anything further". Ms Visser, the rehabilitation provider, was present with the worker at her consultations with her general practitioner on 30 January 2024 and 5 March 2024 and took photographs of the relevant medical certificates. The worker believed Ms Visser was going to provide the medical certificates to the insurer.
3. Despite arguing before the Tribunal that the provision of the certificates to Ms Visser, with an intention that Ms Visser would provide them to the employer, extinguished any gap thus preventing the employer relying on s 69(13) of the Act to treat the certificate dated 30 January 2024 as a claim for compensation to which s 81A of the Act applied; the worker now argues that the rehabilitation provider was not authorised to provide the medical certificates to the insurer, thus it is as if the insurer never received the medical certificates. Therefore, the worker argues, s 69(13) was never enlivened so as to give the employer the right to make a s 81A referral.
4. The findings of the Tribunal are important in this regard. The Tribunal found that: "there may be circumstances where a rehabilitation provider may be authorised to receive medical certificates from a worker, rather than the worker being required to provide the certificates direct to the insurer or an employer", but in the circumstances of this particular case, "Ms Visser was not specifically authorised or requested to do so by the insurer". Further, the Tribunal found Ms Visser "did not advise the worker on 30 January 2023 that she would forward the medical certificates to the insurer" and that the worker "has either remembered what was said incorrectly or mistakenly assumed, at the time, that Ms Visser would pass on the certificate because she misunderstood the reason for Ms Visser taking a photograph of the medical certificate in question".
5. Accordingly, the Tribunal determined that pursuant to s 69(13) of the Act, the period of partial incapacity specified in the medical certificate dated 4 December 2023 expired on 4 January 2024, and the employer received the certificates dated 30 January 2024 and 5 March 2024 on 15 March 2024, being a period of more than 14 days after the expiration of the specified period. The Tribunal found s 69(13) was enlivened and the employer was able to treat the subsequent certificates as a claim for compensation to which s 81A of the Act applied, and therefore the Tribunal had jurisdiction to hear the employer's s 81A referral. The Tribunal went on to conclude that the employer had demonstrated the existence of a reasonably arguable case to dispute its ongoing liability to pay compensation to the worker in respect to her claim and therefore ordered that compensation by way of weekly payments was not to be paid by the employer to the worker.
6. The worker now appeals on a single ground, namely: the Tribunal member erred in law in finding that the Tasmanian Civil and Administrative Tribunal (TASCAT) had jurisdiction to hear the employer's s 81A referral.

1. An appeal to this Court is available only in respect of a question of law, by virtue of s 136(1) of the Tasmanian Civil and Administrative Tribunal Act 2020. The appellant contends the ground of appeal raises a fundamental question of law - that of jurisdiction. The appellant does not quibble with the Tribunal's findings of fact, but argues that having found those facts, the tribunal member failed to consider whether the full ambit of s 69(13) had been satisfied, thereby giving rise to jurisdiction. The respondent contends to the contrary and submits the relevant findings of the Tribunal involved determinations of fact and accordingly this Court should not entertain the appeal. The respondent submits the Tribunal's determination that the rehabilitation provider was not authorised in the circumstances to provide the worker's certificates to the insurer, was a question of fact and did not involve a question of law.
2. It is well established that a question of law arises if the issue raised by a ground of appeal is whether primary facts as found, fall within a statutory definition or expression, and only one conclusion is open. However, if it is "reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views, then the questions become one of fact and not of law": see Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6 per Martin AJ.
3. In Tanase v ACME Engineering Tas Pty Ltd [2006] TASSC 100, Underwood CJ (as he then was) noted at [21]:

"21 Whether the facts, either found or not in dispute, fall within the statutory description of "mistake or other reasonable cause" is a mixed question of fact and law. As the joint judgment put it in Vetter v Lake Macquarie City Council (2001) 178 ALR 1 at 8:

'Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law [1999] NSWCA 98; (1999) 18 NSWCCR 34 at 48 [44]- [45]. However, not all questions involving mixed questions of law and fact are, or need to be, susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:

"[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law ..."."

1. Such cases have been applied and followed numerous times by this Court in appeals from the Tribunal. In Board of the Tasmanian Government Insurance Office v McLeod [1991] TASSC 151, Wright J said, at 2:

"If the tribunal does not misdirect itself as to the law it may nonetheless be found to have erred in law if an ultimate finding of fact upon which the case fails or succeeds can be demonstrated as being one which could not be reasonably entertained by the tribunal if it correctly applied the law to the primary facts in a judicial manner."

1. In arriving at its conclusion, the Tribunal proceeds through a number of stages. First, it evaluates any witnesses who gave conflicting evidence and ascertains, or finds, the primary facts. Provided there is some evidence to support the findings of primary fact, no error of law can arise from this evaluation even if the reasoning for the evaluation is wrong. See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Tracy Village Sports & Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37-38. Second, the Tribunal draws inferences from the findings of primary facts and again, provided there is evidence to support the drawing of those inferences, no question of law can arise from this process. See Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131; Pickett v Selected Joinery Pty Ltd A87/1995. Third, the Tribunal declares the law. Obviously, error at this stage will be an error of law. Finally, the Tribunal applies the findings of fact to the law as it has declared it to be. If the result of this last stage is one that is not reasonably open, there is error of law. If the result of the last stage of the process is one that was not unreasonable, but one in respect of which different minds might differ, no error of law is demonstrated.
2. The real issue here is whether the primary facts found by the Tribunal support the conclusion that s 69(13) was enlivened so as to give rise to the Tribunal having jurisdiction to consider the matter pursuant to s 81A of the Act. Or, to put it another way, whether the facts as found by the tribunal could satisfy the statutory test set out in s 69(13) of the Act. There can only be one correct conclusion about that. The ground, therefore, raises a question of law.

Should the appellant now be permitted to rely upon the argument that the certificates were never received by the employer at all, given the contrary was advanced before the Tribunal?

1. As noted, the appellant now contends that the Tribunal member erred when determining there was jurisdiction to hear the respondent's referral as she did not consider whether the certificates were received by the employer in a manner that was authorised by the Act. On the face of the Tribunal member's Reasons for Determination, she did not turn her mind to this question, because neither the worker, nor Counsel for the employer raised it. The evidence before the Tribunal member established that the relevant certificates were received by the employer's insurer via an email from Ms Visser. The appellant now contends that receipt of the certificates in that manner is not authorised by the Act and s 69(13) requires the certificates to be "provided by" the worker. Given they were not, it follows the employer never received the certificates.
2. The respondent submits that this was not a point taken before the Tribunal, and indeed, the contrary was argued, namely that the certificates had been provided to the employer's insurer via the rehabilitation provider in an authorised manner, and therefore there was no gap of 14 days. Given the position taken by the appellant before the Tribunal, the respondent submits the appellant should not now be entitled to raise a new and apparently contradictory point on appeal.
3. In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Kirby J dealt with the applicable principles in respect to an issue of this nature. (footnotes omitted):

"[88] In this Court a like principle has been insisted upon, although it is usually explained in terms of the rules of procedural fairness or natural justice. If a concession withdrew from "the field of litigation an issue that might have been affected by evidence, it would normally be unjust (unless repaired by relevant admissions or concessions) to permit a reopening of the point on appeal.

[89] Such cases apart there remains in every contested application a decision to be made. On the one hand if all the facts of possible relevance to the issue have been adduced and the question is one of a pure question of law or of legal construction the interests of justice may require that a party be allowed to withdraw a concession and to make submissions on a point of law or a construction abandoned below. Such an approach is hardly surprising. A court is normally obliged to apply the law. Parties do not have the power by their concessions or agreement, to require a court to do otherwise. Sometime, however, by the course followed at trial, a party may put itself beyond rescue. In such a case, although the law remains as it is, the party may be disabled from invoking it.

[90] Even where the issue is one of pure law or of legal construction and its consideration involves no procedural unfairness, a court may nevertheless refuse to allow a party to re-open an issue earlier conceded. The court must weigh the public interest in the finality of litigation; the desirability that appellant courts should normally have judicial findings and reasoning before considering the point; and the need to uphold the efficiency and authority of the judicial process.

[91] It has been suggested that some of the earlier decisions, amenable to permitting issues of law and construction to be argued absent prejudice, represent "words ... uttered in another age and in other circumstances". The more urgent contemporary demands for case management and efficiency indeed suggest the need to reconsider some of the earlier dicta. On the other hand, such considerations do not override the duty of Australian courts to the law and to the determination of justice as between the parties according to law. Especially in a lengthy and complex trial, it is easy enough for a point of law or construction to be overlooked or mistaken. Because judicial decisions are not mechanical but affect the interests of parties (and often express the law in ways important for other or later litigants) cases continue to arise where concessions at trial are seen to have been erroneous, unnecessary or unwise. So long as the appellate court can safely decide the point, taking into account the reasons that exist for denying it consideration, this Court would rarely interfere so as to require a different conclusion."

1. The respondent argues there is injustice and prejudice to it in this argument now being raised for the first time. In particular, the respondent submits that had it been aware that the appellant relied upon this point, it could have adduced evidence regarding the insurer's contractual rights of subrogation which would have established that it had an entitlement to receive the certificates on behalf of the employer.
2. Importantly, I do not consider it can be said that the appellant, appearing unrepresented before the tribunal, made a considered forensic decision to not raise this point and argue a contradictory point. The appellant before the Tribunal argued what she believed. The Tribunal member found that belief was misplaced and consequently found the worker had not "provided" the certificates to a person who was authorised to receive them. No consideration was given to whether the "unauthorised" status of Ms Visser, extended to her being unauthorised to provide the certificates to the insurer. This aspect was, it seems, overlooked. This is not a situation where an issue had been abandoned or conceded, such that the respondent could reasonably claim he is entitled to rely upon that forensic decision, and that the appellant should now be bound by it.
3. In any event, to alleviate any perceived injustice, pursuant to r 693(1) of the Supreme Court Rules 2000, I determined it appropriate to receive into evidence an affidavit of Kylee Rainbird, dated 8 May 2025 which addresses this issue. Moreover, on the appeal, the appellant has conceded that the insurer was, at all times, able to act in the capacity of the employer. I cannot conceive of further evidence or argument that would affect the question. I therefore do not consider the injustice is such that the appellant should be precluded from now advancing the argument. I might add, as will become apparent, the crux of the issue raised on this appeal is not whether the insurer could act in the capacity of the employer; but whether the worker could "provide" a medical certificate to the insurer via a third party, and whether the insurer could "receive" such certificate via a third party. Issues as to whether the employer was entitled to delegate its powers to the insurer are not in contest on the appeal and have little work to do. In any event, having taken the additional material in, any disadvantage to the respondent is ameliorated.
4. Further, the ground of appeal is very wide. It asserts error in finding that TASCAT had jurisdiction to hear the employers 81A referral. If the requirements of s 69(13) were not made out, there was an error in finding there was jurisdiction to hear the referral. Bearing in mind the appellant was self-represented before the Tribunal, I do not consider that the failure to take the point before the Tribunal should be an impediment to agitating the point now, particularly given the respondent cannot claim any significant prejudice, except perhaps as to costs, since the appellant has made the concession noted above, and the additional affidavit evidence has been admitted.

The evidence re the circumstances surrounding the provision and receipt of the certificates dated 30 January 2024 and 5 March 2024

1. The Tribunal considered two statements provided by Ms Shaw, the insurer's case manager for the workers compensation claim.
2. In a statement dated 20 June 2024, Ms Shaw said, inter alia:
   • In May 2023, the employer closed their only Tasmanian store, and the worker was made redundant. The employer had not been directly involved in the receipt of any documentation from the worker since that time.
   • On 4 December 2023, the worker sent an email to Ms Shaw attaching the continuing workers compensation medical certificate dated 4 December 2023. Thereafter, between 5 December 2023 and 15 March 2024 neither the employer's insurer nor the employer received any medical certificates from the appellant.
   • On 15 March 2024, Ms Shaw contacted, Ms Visser, the rehabilitation provider in respect to the worker's claim. During the conversation Ms Shaw asked Ms Visser if there had been any certificates relating to the worker that had been issued since 4 January 2024. Ms Visser advised that there had been. Ms Shaw asked her to "send through" any certificates issued since 4 January 2024.
   • In response to that request at 11.31am on 15 March 2024, Ms Shaw received an email from Ms Visser which attached the certificates dated 30 January 2024 and 5 March 2024. Prior to the receipt of this email, neither the employer's insurer nor the employer had received either of the certificates dated 30 January 2024 or 5 March 2024.
   • Ms Shaw also said that Ms Visser was engaged to provide rehabilitation services to the worker but was "not instructed at any time to accept delivery of medical certificates from the worker on behalf of the insurer or the employer". (my emphasis)
3. Further information as to the conversation that occurred between Ms Shaw and Ms Visser was set out in a second statement of Ms Shaw, dated 25 June 2024. In that statement she said:

"On 15 March 2024, I asked [Ms Visser] if there had been any more medical certificates issued because I was already on the phone with her. I did not go out of my way to seek the medical certificates from [Ms Visser] instead of the appellant - I was just already talking to [Ms Visser] when I thought of it. Then when [Ms Visser] said there were two new certificates, I asked her to send them through to me because I knew as the rehabilitation provider, she would have needed a copy of the certificates to prepare the work health plans."

1. The Tribunal also had reference to a statement provided by the appellant, by an email dated 20 June 2023. In this statement, the appellant, inter alia, said:
   • Between 20 December 2022 and 2 March 2023, she provided workers compensation medical certificates to her employer via text message to the regional manager.
   • She was made redundant in around May 2023 when the Tasmanian store was closed.
   • She had some contact with Ms Shaw in August 2023. During these communications it was indicated that the employer's insurer was considering closing the claim. She indicated that she was still experiencing symptoms. She was told to get further workers compensation medical certificates.
   • She had a consultation with her general practitioner on 4 December 2023. A continuing workers compensation medical certificate was issued, and she sent this to the insurer.
   • Following this, Ms Visser was appointed as her rehabilitation provider. She had not had any rehabilitation provider appointed at an earlier time.
   • Ms Visser was present with her at a consultation with her general practitioner 30 January 2024. During this consultation the medical certificate of 30 January 2024 was issued.
   • Immediately after the consultation, Ms Visser took a photo on her phone of the medical certificate and advised her that she would forward it to the insurer. At no point did Ms Visser indicate that the appellant was also required to forward a copy of the medical certificate to the insurer.
   • On 5 March 2024, she had a further consultation with her general practitioner. This was also attended by Ms Visser. The workers compensation certificate of capacity dated 5 March 2024 was issued at this consultation. Again, Ms Visser took a photograph of the certificate, and she "assumed that, as per last time, she would forward on to Allianz and that it was not necessary for me to do anything further."
   • On 15 March 2024, she received an email from Allianz with an attached a letter indicating her claim had been accepted and which under a heading "What you need to do" advised her to "obtain workers compensation medical certificates for periods where you are incapacitated for work, and provide these to your employer as soon as possible".
   • In response to this email, she sent an email to Allianz on 15 March 2024, indicating that it was her belief that Allianz "have all my up-to-date medical forms".
   • On 19 March 2024 she received an email from Ms Shaw confirming they had "all of your up-to-date medical certificates".
   • On 5 April 2024, the appellant had another consultation with her general practitioner. Ms Visser was again in attendance. A workers compensation certificate of capacity dated 5 April 2024 was issued during this consultation.
   • During or immediately following the 5 April appointment, Ms Visser advised her that 'moving forward' she would need to forward her medical certificates to the insurer directly "as they do not like a 3rd party providing them". Thereafter, the appellant forwarded the certificates dated 20 May 2024 and 5 June 2024 to the employer's insurer.
   • That at no time had she personally provided the medical certificates dated 30 January 2024 or 5 March 2024 to the insurer.
   • Her understanding was that she was "authorised to provide the medical certificates to Ms Visser" and that she assumed that "immediately following" the consultations on 30 January 2024 and 5 March 2024, Ms Visser had provided the relevant certificates to the employer's insurer.
   • She only became aware that Ms Visser had not provided the medical certificates to the insurer until 15 March 2024, on 19 June 2024. Until that point, she had assumed Ms Visser had provided the medical certificates to the insurer as at the date of the respective consultations.
2. Importantly then, the position taken by the appellant before the Tribunal was that she had "provided" the medical certificates to the employer on 30 January and on 5 March, when she allowed Ms Visser to take photographs of the relevant certificates. Her intention, and understanding, at that point was that Ms Visser would be the conduit through whom the employer's insurer would "receive" the certificates.
3. The Tribunal also considered a statement of Ms Visser dated 25 June 2024. In that statement, Ms Visser said:
   • Her role was to attend the reviews with the worker's general practitioner and prepare work health plans to support the worker's return to work.
   • She had not been instructed to accept delivery of medical certificates on behalf of the employer's insurer or the employer.
   • It was her understanding that workers must provide medical certificates either to the insurer or the employer directly and not through a rehabilitation provider. Therefore, it was her "standard practice" to never represent that she would provide a medical certificate to the insurer or the employer on behalf of the worker.
   • Accordingly, she did not tell the worker that she would forward her medical certificates to the insurer, and she did not tell the worker that it was unnecessary for her to forward the medical certificate to the insurer.
   • After the GP consultations on 30 January 2024 and 5 March 2024, she did take a photograph of the worker's medical certificates, as she needed a copy of the certificates to prepare the work health plan in her role as rehabilitation provider. She told the worker that she would send a copy of the work health plan to the insurer, but she did not represent that she would send a copy of the medical certificates to the insurer.
   • A medical certificate does not form part of the work health plan and is not sent to the insurer as part of a work health plan, but it is necessary for a rehabilitation provider to sight the medical certificate so as to be able to tailor the rehabilitation process to the worker's certified capacity.
   • The worker did not specifically ask her whether she was providing the medical certificates to the insurer or otherwise indicate a belief that she would do so.
   • On 15 March 2024, she received a phone call from Ms Shaw. Ms Shaw asked her to send through any copies of any medical certificates issued since 4 January 2024. This was the first time she became aware that the appellant had not been providing the medical certificates directly to the insurer.
   • On 15 March 2024, she emailed the certificates dated 30 January 2024 and 5 March 2024 to Ms Shaw.
   • The next general practitioner consultation occurred on 5 April 2024. Following that consultation, Ms Visser reminded the appellant that she needed to forward her medical certificates to the insurer directly. She did this because of the telephone call that she had with Ms Shaw on 15 March 2024 in which it had become apparent that the appellant had not been forwarding the certificates. She did not remind the appellant of her obligation to forward the certificates herself because of any representation she had earlier made to the appellant.

1. The following considerations arising from the legislative provisions are relevant here:
   • As a general rule, where total or partial incapacity for work results from an injury suffered by a worker, and "where the existence of such total or partial incapacity is supported by a certificate ... signed by a medical practitioner", the worker is entitled to be paid weekly payments of compensation: s 69(1).
   • When an employer receives a claim for compensation in relation to an injury to a worker, the employer is required to commence making weekly payments of compensation within 14 days or on the worker's next payday: s 81(1).
   • Within 84 days of receiving an initial claim for compensation, an employer may serve the worker with a written notice disputing liability, inform the worker of the reasons for disputing liability, and refer the matter to the Tribunal: s 81A(1).
   • If the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay weekly payments, it must determine that compensation is not to be paid by the employer: s 81A(3)(c).
   • Alternatively, if the Tribunal considers that weekly payments should be made, it must order the employer to make weekly payments from such date as it determines: s 81A(3)(a).
   • A determination under s 81A(3) operates as an interim determination. Either the worker or the employer may refer a question as to the worker's entitlement to weekly payments to the Tribunal thereafter, pursuant to s 42.
   • If an employer receives a claim for compensation and does not dispute liability to pay compensation in accordance with s 81A, the employer is taken to have accepted liability in respect of that claim: s 81AB.
   • Section 86 specifies several situations in which an employer may terminate weekly payments. An employer who terminates a weekly payment otherwise than in accordance with s 86, is guilty of an offence punishable by a fine: s 86(5).
   • If the period specified by a medical certificate provided by a worker under s 69 expires, and the worker provides a further certificate more than 14 days after that expiry, the employer, on receipt on the subsequent certificate "may treat that certificate as a claim for compensation to which s 81A applies": s 69(13).
   • Section 81AA, which includes the provision precluding the making of weekly payments from being construed as an admission of liability, does not apply to a claim in respect of which s 69(13) applies: s 81AA(4).
2. Before receipt of the certificates from Ms Visser on 15 March, the employer had not made a s 81A referral. Having chosen not to refer the matter to the Tribunal, the liability to make weekly payments continued. If, however, an interval of more than 14 days between the provision of medical certificates existed, such that s 69(1) of the Act was enlivened, the employer was entitled to refer the matter to the Tribunal pursuant to s 81A of the Act. That is, the employer was entitled to treat the new certificate as a claim to which s 81A applies. Treating the new certificate as a claim to which s 81A applied allowed the employer to receive a determination from the Tribunal that the employer had an arguable case in relation to the payment of compensation and therefore cease weekly payments in a much timelier fashion than had the employer not been able to rely upon the enlivenment of s 69(13).

1. The Tribunal correctly concluded that its jurisdiction to determine the matter was dependent on s 69(13) being enlivened, thus entitling the respondent to treat the new certificate as a basis upon which to make a s 81A referral. In terms of the Tribunal's consideration of what was necessary to enliven s 69(13), the findings must be understood in the context of the ambit and scope of the arguments advanced before it.
2. The Tribunal member accepted the evidence of Ms Visser and Ms Shaw and concluded that in the particular case, Ms Visser was not specifically authorised or requested by the employer or insurer to receive the medical certificates from the appellant. The Tribunal member concluded "I accept that there may be circumstances where a rehabilitation provider may be authorised to receive medical certificates from a worker, rather than the worker being required to provide the certificates direct to the insurer or an employer." However, the Tribunal member concluded that in the particular case, such authorisation had not occurred.
3. The Tribunal member found, on the balance of probabilities, that Ms Visser did not advise the appellant on 30 January 2024 that she would forward the medical certificate to the insurer. The Tribunal member concluded the appellant had most likely mistakenly assumed that Ms Visser would pass on the certificate because she misunderstood the reason for Ms Visser taking a photograph of the medical certificate.
4. Therefore, the Tribunal member determined that the employer received the certificates dated 30 January 2024 and 5 March 2024 on 15 March 2024, and not on the dates they were issued. Given that, the date of receipt was more than 14 days after the expiration of the specified period thereby enabling the respondent to treat the subsequent certificates as a claim for compensation to which s 81A of the Act applied.
5. It is noteworthy that the certificate dated 30 January 2024 was issued by the appellant's general practitioner 26 days after the expiration of the period specified in the previous certificate, so even if the Tribunal had concluded the certificate had been received by the insurer on 30 January, being the date the appellant believed she had "authorised" Ms Visser to provide it to the employer's insurer, it nevertheless could not have been provided to the employer or insurer within 14 days after 4 January 2024, thus irrespective of the mechanism through which the certificate was received by the insurer, s 69(13) would nevertheless have been enlivened. Of course, the appellant's contention is the certificate was never in fact received by the insurer (because the mode of provision was unauthorised by the Act) thus s 69(13) never came into operation to allow the employer to make a s 81 A referral.
6. The Tribunal found the certificates were not provided on 30 January and 5 March because Ms Visser was not "specifically authorised or requested" to receive them on behalf of the insurer. Understandably, because of the way in which the matter was argued before the Tribunal, the Tribunal member's focus was on the question of whether Ms Visser was authorised by the insurer to receive the certificates on their behalf with the effect that when the appellant provided those certificates to her, the insurer might be deemed to have received the certificates. The tribunal member was not asked to consider, and did not turn her mind to, the question of whether the employer's insurer could be said to have "received" the certificates.
7. It is apparent, having regard to the findings made by the Tribunal member, that she concluded that there "may be circumstances" whereby a worker may "provide" a medical certificate to the insurer via a third party, and an insurer may "receive" such certificate via a third party, but in the circumstances of this case, the giving of the authority necessary for that to occur had not arisen. The Tribunal member did not specifically address what the circumstances might be, but given her rationale was that there needed to be a specific authorisation or request, it follows that the Tribunal member was minded to a circumstance where all involved had agreed upon the mutual use of a third party as a conduit through which certificates would pass.
8. The Tribunal member's Reasons for Determination are silent as to whether she found the appellant had positively authorised the use of Ms Visser as the conduit through which the certificates would be provided to the insurer. She found at [24] of her reasons that the appellant had "mistakenly assumed" that Ms Visser would pass on the certificate but did not find one way or the other as to whether the appellant had specifically authorised Ms Visser to provide the certificates to the insurer. The statement provided by the appellant, referred to at paragraph [27], claims Ms Visser told her she would provide the certificates to the insurer, but the Tribunal member found this did not occur. On the basis of the Tribunal member's findings, there was no communication that might be said to amount to a specific authorisation of Ms Visser by the appellant to be the conduit through which the certificates would pass. At best, there was a mistaken assumption or belief held by the appellant. In many ways it matters not, because the Tribunal member clearly found that the insurer had not "specifically authorised or requested" Ms Visser to be the conduit through which the certificates would pass. Without there being a mutual agreement, that a third party would be used to facilitate the passage of such certificates, it is difficult to see "the circumstances" envisaged by the Tribunal member as arising. Absent those circumstances, the words of s 69 (13) should be given their ordinary, natural meaning. The text and structure of the sub-section is clear - it is the worker who is to provide, and it is from the worker that the employer/insurer shall receive.

1. The appellant contends that the Tribunal member made an error because she did not turn her mind to how the certificates were received by the employer. The appellant contends, based on the evidence the Tribunal member accepted, that the medical certificates which the respondent relied upon to bring the referral were never received by the employer at all. The Tribunal member found that Ms Visser was not authorised or requested to receive the appellant's certificates on behalf of the respondent. Given this, the appellant contends that it inevitably flows that Ms Visser was not authorised to provide the certificates to the respondent and therefore, the only conclusion that can be reached as a matter of law is that the medical certificates dated 30 January 2025 and 5 March 2024 were never received by the employer as required under the Act.
2. The appellant contends the language used in s 69(13) makes it clear that it is the worker who must provide the certificate to the employer and not anyone else.
3. In short, the appellant contends that the findings of the Tribunal member that Ms Visser was not authorised to receive the certificates on behalf of the employer, must result in a finding that the appellant never provided the certificates to the employer. The appellant contends the respondent was required to take an additional step and obtain the certificates from the worker herself, if s 69(13) was to be enlivened.
4. The respondent submits that the following contentions flow from the Tribunal findings and all such contentions were reasonably open on the evidence, and justify the Tribunal's conclusion that the pre-conditions to enliven s 69(13) to enable the employer to treat the certificates as claims for compensation to which s 81A applied, were met. In summary, the respondent contends that the appellant provided the medical certificates to the rehabilitation provider on 30 January 2024 and 5 March 2024 on the mistaken understanding that the rehabilitation provider would provide them to the insurer on her behalf. On neither 30 January 2024 or 5 March 2024 did the rehabilitation provider have authority to receive medical certificates on behalf of the employer or insurer, but by virtue of the telephone conversation that occurred between the insurer and the rehabilitation provider on 15 March 2024, the general rule that the rehabilitation provider did not have authority to receive the medical certificates on behalf of the insurer, was relaxed and the rehabilitation provider was requested to provide the certificates to the insurer. The relaxing of this general rule reflected the worker's intention and erroneous assumption that the rehabilitation provider would provide the certificates to the insurer.
5. The respondent, therefore, contends that whilst the rehabilitation provider did not "receive" the certificates on behalf of the employer or insurer, she did "provide" them to the insurer at its request.
6. In providing the certificates to the insurer on 15 March 2024, the rehabilitation provider was "passing on" the medical certificates in a role akin to a delivery service.
7. The insurer, therefore, received the medical certificates from the appellant, albeit via the rehabilitation provider.

1. In answering the issue raised on the appeal, it is necessary to bear in mind the Acts Interpretation Act 1931, s 8A which requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not promote that purpose of object. This is beneficial legislation. It should be given an interpretation favourable to workers: see Walker v J & A Freeman Building Services [2006] TASSC 90, per Blow J at [71]. The interpretation of s 69(13) contended for by the appellant in this case is one favourable to workers in the sense that if the certificate must be provided by the worker, the worker is aware of, and has control over, the commencement of any statutory time period that operates.
2. Moreover, as a general rule, s 69(13) operates to an employer's benefit. When s 69(13) applies, an employer can proceed speedily under s 81A rather than more slowly under s 42 and thereby be relieved of statutory obligations to make weekly payments without having to await the outcome of a referral under s 42. Given it is a provision which benefits employers, and potentially disadvantages workers, and given the beneficial nature of the Act, the section should be read strictly, and requirements which gave rise to its activation be strictly enforced.
3. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at paragraph 14, and then at paragraphs 38-40, the current approach to statutory interpretation was discussed:

"[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (17). Context should be regarded at this first stage and not at some later stage and it should be regarded in is widest sense (18). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

[38] The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies' (43).

[39] Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, 'the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation' (44) 'is in that respect a particular statutory reflection of a general systemic principle' (45).

[40] Exactly the same process of contextual construction is involved when the question is one of what content is to be given to a statutorily invoked concept which is expressed in words the ordinary or grammatical meaning of which is well-enough understood but insufficiently precise to provide definitive guidance as to how the concept is to be understood and applied in the particular statutory setting. An example is the varying senses in which the concept of causation might be invoked in statutory provisions which attribute responsibility for loss caused 'by' or 'because of' or 'as a result of' contravention of different statutory norms. Because 'one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule' (46). '[t]he application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose'(47)"

1. Section 69(13) clearly requires a two-step process. The worker must provide the certificate, and the employer must receive the certificate. The critical event that enlivens s 69(13) is the receipt of the subsequent certificate. It is the receipt of the subsequent certificate that entitles the employer to treat the certificate as a claim for compensation to which s 81A applies. If the worker provides the certificate, the worker is in control of when the insurer receives it and is therefore fully aware of the operation of any relevant time frames. Because of the prospect that satisfaction of the s 69(13) criteria gives rise to the employer being able to treat a medical certificate as, in effect, a new claim which permits reliance upon s 81A of the Act, certainty is required as to the mechanism by which the relevant certificates are to be provided and received. Such certainty lies in the section being applied in accordance with its unambiguous wording.
2. If there is to be any movement away from the obvious requirements of the section, it must be with the clear and unambiguous authorisation and agreement of all parties. That is, the worker must expressly authorise a third party to provide the certificates to the employer on his/her/their behalf and the employer must specifically authorise the third party to receive the certificates on its behalf, or at the very least, agree that it will receive the certificates from the third party rather than directly from the worker. There was no evidence before the Tribunal which established an agreement between the parties that Ms Visser was to be the means by which the certificates would be provided and received. Indeed, the evidence was to the contrary.
3. It cannot be that an exception to the prima facie requirements of the section is created unilaterally. And that, in effect, is what the respondent contends for. The respondent argues Ms Visser was not authorised to receive the certificates from the worker and provide them, on the worker's behalf to the insurer. By asserting this lack of authority, the insurer avoids a possible conclusion that when Ms Visser took photographs of the certificates on 30 January and 5 March 2024, she received the certificates on behalf of the insurer. But then the respondent contends that, having by chance discovered the existence of the certificates ( the evidence of Ms Shaw was that she did not telephone Ms Visser seeking any certificates, but she mentioned the topic during the conversation), it was appropriate for Ms Visser to provide the certificates to the respondent, not in any formal principal/agent capacity, but in a role "akin to that of a postal or delivery service". If the respondent's submission is to be accepted, it creates a situation whereby the status of an intermediary ( in this case Ms Visser) can be unilaterally changed: in the first part of the two-step process that is required under s 69(13) the intermediary is not authorised, but in the second part of the two-step process the intermediary is unilaterally authorised by the insurer to take on a particular role, and provide the medical certificates to the insurer. It cannot be reasonably concluded that a person in Ms Visser's position is an unauthorised receptacle at one point, but an authorised distributor at a subsequent point, without there being at least a mutual understanding between all parties of the ambit of her role and authority.
4. Further, the respondent submits the "general rule" that a rehabilitation provider, such as Ms Visser, does not have authority to receive medical certificates from the worker on behalf of the employer or insurer can be "relaxed" at the insurer's behest; and submits this is how the Tribunal member's findings should be understood. That is, when Ms Visser took copies of the medical certificates on 30 January 2024 and 5 March 2024, she did not have authority to receive the certificates on behalf of the employer or insurer, but during the conversation between Ms Shaw and Ms Visser on 15 March 2024, the general rule was relaxed, and the request to provide the certificates at that point, took on the status of an "authorised" provision of the certificates. The difficulty with the submission is that the Tribunal member's Reasons for Determination do not in any way reflect this thought process. Indeed, there is nothing within the Tribunal member's judgement that suggests she even turned her mind to a consideration of the impact of the conversation on 15 March 2024 on the question of whether Ms Visser was authorised to provide the certificates to the insurer, which is somewhat understandable given it was not a point raised by the parties at first instance. Given the nature and effect of s 69 (13), the requirements that enliven it - namely the provision of a medical certificate by a worker, and the subsequent receipt of it by the employer- must be strictly adhered to. Such an approach guards against the insurer receiving information at a time, in a manner, or from a source, that is unknown to the worker.
5. It is to be remembered that when the requirements of s 69(13) are met, the employer is entitled to treat the certificate it receives as a new claim for compensation. In other areas of the Act dealing with claims for compensation, it is clear that it is the worker who is to provide the medical certificates. For example, see s 143I of the Act which outlines what must occur when a medical certificate issues. That section makes it clear that it is the worker who must, as soon as reasonably practicable, provide a copy of the medical certificate to the employer. Further, as was noted by Blow CJ in Federal Hotels Limited v Timothy Webb [2023] TASSC 36 at [25], the plain wording of s 69(13) clearly requires medical certificates to be treated as something that they are not, namely claims for compensation in the s 80A sense. If they are akin to s 80A claims, then s 35 of the Act provides:

(a) to the employer of a worker or, if there is more than one employer, to one of the employers of a worker by -

(i) delivering it personally to the employer or one of the employers; or

(ii) by placing it in a properly addressed envelope and sending it by post to the employer, or one of the employers, at the employer's usual or last-known place of business or residence; and

(b) to the person designated for the purpose by the employer, by delivering it personally to that person."

1. This section is also consistent with the worker having to provide the material which commences a claim for compensation to the employer directly. Given medical certificates which are delivered 14 days after the expiration of a previously specified period, become claims for compensation, pursuant to s 69 (13), it is a consistent interpretation with similar provisions, that it is the worker who must provide a copy of the medical certificate to the employer.
2. As has already been discussed, and as found by the Tribunal member, there may be circumstances where a rehabilitation provider is authorised to receive medical certificates from a worker and provide them to the insurer, but such a process would be contrary to the language used in the s 69 (13) Act, and would therefore only apply in circumstances where there was a clear and mutual agreement that such was to be the process utilised. Given the Tribunal member's findings, such a circumstance could not be said to apply here. If there was no authority for the rehabilitation provider to receive the medical certificates from the worker, then there was no authority for the insurer to receive the medical certificates from the rehabilitation provider. The insurer was obligated to obtain the certificates directly from the worker if they wished to validly invoke the provisions of s 69(13).

Did the subsequent communications create a circumstance where there was a mutual agreement for provision of material through Ms Visser?

1. On 15 March 2024, following receipt of the email attachments from Ms Visser, Ms Shaw sent to the appellant a letter, which is annexure D in the appeal book. That letter provided as follows:

We refer to our previous correspondence and advise Allianz have completed liability assessment for your claim. Liability for your claim is now accepted.

• Obtain workers compensation medical certificates for periods where you are incapacitated for work; and provide these to your employer as possible.
• Read the enclosed important information to ensure you understand more about workers compensation claims and your obligations as a worker.
• Read the enclosed worker recovery kit to understand how you can play an active role in your recovery.

If you are not satisfied with any decision made throughout the claim process, please find attached a resolution process."

1. On 15 March, following receipt of this email, the appellant responded:

I have just read your email listing what I need to do next, but I believe you have all my up-to-date medical forms. Do I need to provide anything else?

1. On Tuesday, 19 March 2024 at 10.50am, Ms Shaw responded to this email by way of a further email, which read:

Thank you for your email. We do have all of your up-to-date medical certificates.

The letter you were provided is just advising of what you need to do whilst on a claim.

1. At the time of this exchange, the insurer's representative, Ms Shaw understood the appellant had not in fact personally provided the certificates, and was also aware that Ms Visser, "was not instructed at any time to accept delivery of medical certificates from the worker on behalf of Allainz or the employer" (para 13 of her statement dated 20 June 2024). Rather than requesting the appellant provide the certificates, Ms Shaw responded with an email indicating the insurer was in receipt of all "up to date" certificates and implied that the instructions regarding "what you need to do" related to what she would need to do in the future whilst she was on a claim. Having received these communications, the appellant was reasonably entitled to conclude there was no difficulty with her claim, nor the provision of her medical certificates.
2. The first the appellant became aware of an issue was when she received communication from the respondent's lawyers on 4 June 2024, advising the s 81A referral was to be filed. The s 81A referral was in fact filed on 4 June 2024. As an aside, the delay that arose in this matter between the worker believing she had provided the certificates and the employer coming into possession of the certificates highlights the need for the s 69(13) requirements to be strictly enforced. The risk of there being an interval, and therefore a delay in a determination of whether the claim will be accepted or disputed, is alleviated if the certificate is provided directly by the worker, ensuring receipt by the employer at broadly contemporaneous time.
3. In any event, in my view, there is nothing about the communications which were exchanged between the insurer and the worker which answers the requirement in s 69(13) that the worker provide the certificate. The fact remained the insurer received copies of the certificates from Ms Visser. Had they requested the worker forward the medical certificates, the worker would have provided the certificates, in the sense that the worker would have been the direct source of the certificates; would have supplied the certificates. Absent this step, there was no evidence before the Tribunal that the worker provided the medical certificates. Therefore, there was no basis upon which the Tribunal member could have been satisfied that both the provision and receipt elements of s 69(13) had been met and that s 69(13) was enlivened. It is the provision of the certificate by the worker (or a mutually authorised third party which given the Tribunal member's findings could not be said to exist in this case) which is the precondition which must be met before s 69 (13) is enlivened.
4. Given the factual findings of the Tribunal member, the only available conclusion was that she was without jurisdiction.

1. The Tribunal was without jurisdiction to hear and determine the respondent's s 81A referral. The appeal will be allowed. I set aside the determination of Tribunal member Jack dated 17 October 2024.
2. I will hear Counsel as to consequential orders.