Macrae v St Margaret's Hospital

COUNSEL : A: Mr J Wynyard R: Mr C Hoeben SC SOLICITORS : A: Marsdens R: Astridge & Murray CATCHWORDS : Workers Compensation; Service of Claim; whether posting of claim to employer's post office box was sufficient service; Statutory Interpretation - mandatory or directory; whether posting to a post office box was a posting to a place of business; whether compliance or substantial compliance with s92A of Workers Compensation Act 1987 Compensation Court Act 1984, s32 ACTS CITED : Workers Compensation Act 1987, ss66,67,92,92A,106E Workers Compensation (General) Regulation 1995, regs39,40 Suitors' Fund Act Hunter Resources v Melville 164 CLR 234 Baker v Rothmans of Pall Mall (Aust) [1999] NSWCA 245 CASES CITED: Victoria v The Commonwealth 134 CLR 81 Woods v Bate (1987) 7 NSWLR 560 Tasker v Fullwood (1978) 1 NSWLR 20 DECISION : Appeal allowed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA MEAGHER JA DAVIES AJA

JUDGMENT 1 PRIESTLEY JA: I agree with Davies AJA. 2 MEAGHER JA: Mr Macrae, the appellant, appeals from a decision of O'Toole CCJ dismissing his application for an award arising out of an alleged injury which had occurred to him when he was working at the respondent's premises. In his claim he sought orders under s.66 and s.67 of the Act. 3 He made his claim, in due form and in proper time, by posting it to the respondent c/- Box No. 318 Darlinghurst 2010. In its answer the respondent claimed, inter alia "(i) that the applicant has not complied with s.106E in terms of the claim under s.66 of the Act. "(j) that the appellant has not complied with s.106E in terms of the claim under s.67 of the Act." 4 Section 106E was part of the Act dealing with the making of claims for compensation. (It has now been repealed, but resurrected in the Workplace Injury Management and Workers Compensation Act 1998). Another part of the Act was s.92A, sub-section (3) of which provided - 'For the purposes of this clause, a claim for compensation is served on a person if: (a) it is given personally to the person; or (b) it is delivered or sent by post to the residence or any place of business by the person; or (c) it is served in any other manner authorized by ss. 220 and 363 of the Corporations Law."

This section has also been repealed and resurrected. 5 Here, the point apparently taken by the employer was that service by postage to a Post Office box did not come within s.92A. Counsel for the employer made it plain he was basing his case on s.92A and not s.106E. 6 I say "apparently" because, when the claim came on for hearing, counsel for the employer was not asked what point he was taking. Her Honour took the point for him. She did not pause to ask whether he was taking the point. She did not enquire whether the claim was received by the Hospital, as it clearly was. She did not examine the Hospital's letterhead, which stated "Please address all correspondence to P O Box 381 Darlinghurst NSW 2010". She did not question the employer's right to rely on s.92A, when it had not been pleaded. She did not examine the question of whether s.92A(3) prescribed the only permissible modes of service. She did not consider whether in the circumstances "personal" service had not been effected within the meaning of s.92A(3)(a), or whether the post office box had become part of the Hospital's "place of business" within the meaning of s.92A(3)(b). She therefore peremptorily dismissed the worker's claim - and without tarrying to give reasons why she did so. However, she did not fine him. 7 In my view, service by posting a claim to a post box in circumstances like the present is service at the respondent's "place of business"; the post office box being either part of the respondent's "place of business" or a means of access to that "place of business". 8 In my view the following orders should be made: 1. Appeal allowed; 2. The order of Judge O'Toole CCJ of 9 July 1998 be set aside; 3. The appellant's claim be tried in the Compensation Court of New South Wales according to law; 4. The respondent's to pay the appellant's costs of this appeal and of the Court below. 9 DAVIES AJA: This is an appeal from an order of a Judge of the Compensation Court of New South Wales, in which her Honour dismissed a claim for compensation on the ground that no claim for compensation had been duly made at least twelve weeks prior to the commencement of the Court proceedings. The appeal is brought under s 32 of the Compensation Court Act 1984 and raises a question of law only. 10 The relevant provisions of the Workers Compensation Act 1987 ("the Act") provide as follows:- 106E Restrictions on commencing court proceedings for lump sum compensation (1) A worker cannot commence court proceedings in respect of compensation under section 66 until: (a) 12 weeks after a claim for the compensation is duly made, …

92A Manner of making claim for compensation (1) The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed. …

(4) For the purposes of this clause, a claim for compensation is served on a person if: (a) it is given personally to the person, or

(b) it is delivered or sent by post to the residence or any place of business of the person , or

(c) it is served in any other manner authorised by sections 220 and 363 of the Corporations Law . (emphasis added) 11 Although the hearing before the learned trial Judge did not reach the stage of evidence, the Court has been informed that a claim in due form was sent by registered mail to St. Margaret's Hospital at its post office box, PO Box 381 Darlinghurst, and that a copy thereof was also sent to the insurer, Catholic Church Insurances Limited. The Court was informed that the date on which those documents were posted was more than twelve weeks prior to the lodgment of the claim in the Compensation Court of New South Wales. 12 In the Answer filed on behalf of the employer by its insurer, the following points were taken amongst a number of points which give the impression of having been computer generated rather than expressing actual points of answer: "(i) That the Applicant has not complied with Section 106E in terms of the claim under Section 66 of the Act.

(j) That the Applicant has not complied with Section 106E in terms of the claim under Section 67 of the Act."

No particulars were given. 13 When the matter came on for hearing, the trial Judge, without calling upon counsel for the employer to speak, asked counsel for the worker whether he could satisfy the Court that the claim had been duly made. Counsel indicated the facts I have mentioned. Her Honour asked whether the post office box was the registered office. It was not. After a short discussion between counsel for the worker and the trial Judge, her Honour ordered that the application before the Court be struck out. 14 Provisions of the type with which we are concerned may fall into one of three categories. Some provisions must be strictly complied with. Usually, such provisions provide for matters of substance or for matters in respect of which only strict compliance is possible. An example of the latter may be seen in Hunter Resources Limited v Melville (1988) 164 CLR 234, where Dawson J said at p 249: " [T] his is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.".

The twelve weeks requirement in s 106E(1)(a) is such a requirement: see Baker v Rothmans of Pall Mall (Australia) Ltd [1999] NSWCA 245. Either the proceedings in the Court are brought twelve weeks after a claim for compensation has been made, or they are not. The period must be complied with. 15 With other provisions, substantial compliance is sufficient. In Victoria v The Commonwealth (1975) 134 CLR 81, Stephen J said at p 179: "A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. …

… A directory construction may … be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute."

Many of the requirements in ss 92 and 92A of the Act and regs 39 and 40 of the Workers Compensation (General) Regulation 1995 fall into this category. As Stephen J pointed out, in provisions of this type, the crucial question is whether what was done achieved the intent and object of the provision. 16 Lastly, there are stipulations, the total non-compliance of which will not result in the invalidity of the act done. Stephen J said, with respect to such provisions, in Victoria v The Commonwealth at p 179: "Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognises that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory."

An example of such a provision may be seen in Woods v Bate (1987) 7 NSWLR 560. The provision with which we are concerned in this present case is not of that type. 17 The category into which any particular requirement may fall depends upon the terms used, the context in which the provision appears and the scope and object of the statute. Thus, in Tasker v Fullwood (1978) 1 NSWLR 20, Hope, Glass and Samuels JJA, after referring to a number of authorities including Victoria v The Commonwealth, said, inter alia, at pp 23-4: "From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case (1977) 2 NSWLR 955 at pp 963 et seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont (1977) 2 NSWLR 211 at p 220. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth at pp 179, 180." 18 In the present case, the statutory prescription that a claim for compensation may be served by being "sent by post to … any place of business of the person" is a provision which, in my opinion, may be satisfied by substantial compliance. The object of the provision is that the employer be notified. Notification by post is permitted. I consider that the provision would be satisfied notwithstanding a trivial error in the name of the employer, unless that error was such as to result in the non-receipt by the employer of the claim. I consider that a minor error in the address would not matter if it were shown that the employer received the claim in the due course of the post. The statute is not concerned with minor technicalities that do not count. The statute is concerned to ensure that an employer is served with a claim for compensation and it permits service by post, in the manner stated. If there is substantial compliance with that provision, that is sufficient . 19 I am prepared to accept that a post office box is not a place of business; but the question remains whether the sending of a claim by post to a post office box nominated by the employer is an appropriate way of sending the claim by post to the place of business of the employer, or, to put the matter in a different way, whether the sending of the document by post to a post office box achieves appropriate and substantial compliance with the statutory provision. 20 In my opinion, the sending of a document by post to a business person's post office box is an appropriate and possibly the most appropriate way of sending the document by post to that person's place of business. That is because post office boxes are used by businesses to achieve greater reliability in the delivery of postal articles. Documents sent by post to a post office box will be placed in the appropriate post office box ready for collection by the recipient. Documents which are addressed to a place of business are liable to be lost by being slipped under doors of business premises and so on. Very often, business premises do not provide a convenient box for the collection of mail or it is inconvenient for postal officials to find their way through a building to use it. In my opinion, the sending of mail to a nominated post office box is the appropriate and efficient means of sending mail to a business person and it is common practice for businesses to have a post office box and for their customers and other persons dealing with them to use it. 21 The point I am making is, as it happens, reflected in the letterhead of St. Margaret's Hospital which has been tendered in the appeal without objection. That letterhead, after setting out the name of the hospital in large letters, then sets out in small letters the correct name of the employer, St. Margaret's Hospital Limited, and its address. The letterhead then states: "Please address all correspondence to: P.O. Box No.381, Darlinghurst, N.S.W. 2010"

One can see that the employer wished correspondence to be addressed to it at the post office box and one can understand why that is so. Anything might happen to business letters put into a letterbox at the gate of the hospital or received at the hospital's reception desk. 22 Had the trial Judge heard evidence that the employer had nominated the Post Office Box 381 Darlinghurst for the receipt of mail and had she received evidence that the claim form had been sent by registered mail to that address on 23 December 1996, it seems to me inevitable that her Honour would have concluded that there had been substantial compliance with s 92A. In my opinion, her Honour gave an unduly technical reading to the statutory provision. 23 I would set aside the order below and I would remit the matter to the Compensation Court of New South Wales for rehearing. The respondent should pay the appellant's costs of the appeal and have a Certificate under the Suitors' Fund Act in respect of the latter, if qualified.

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