in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right. The distinction was averted to in The Crown v McNeil (1); and in Maxwell v Murphy (2) ; and see Gregory v Torquay Corporation (3) and Erskine v Adeane (4). It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v Durston (5). However, when issue is joined on a plea of the Statute, the burden of proving that the action is

within time is on the plaintiff: see cases referred to by Dixon J, as he then was, in Cohen v Cohen (6). And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v John Bagnall and Sons Ltd (1); Lubovsky v Snelling (2)." 16. In this case the scheme of the Act is that the right to bring a claim for compensation in the court does not arise until after the claim has been made upon the employer and the employer has disputed liability under s85. 17. It therefore seems to me that both as a matter of the clear language of the Act, and in accordance with principle and authority, s80(1) is a condition upon the right to compensation, whereas s182 is a procedural provision. 18. Further, the language of s182 does not support the contention of the respondent. Section 182(2) speaks of "the want of notice ... shall not be a bar to the maintenance of the proceedings referred to in subsection (1) ..." Section 182(1) says that "proceedings for the recovery under this Act of compensation shall not be maintainable unless notice of injury has been given before the worker has voluntarily left the employment in which he was injured ..." Thus, it seems to me that the intention of Parliament is that if the worker fails to give notice before voluntarily leaving his employment, the remedy is barred, but the right may still exist if a notice had been given after voluntarily leaving his employment and if it had nevertheless been given "as soon as practicable" after the injury. When s182(2) speaks of "the want of notice" it must mean 'the want of notice given before the worker voluntarily left the employment.' It is only the want of such a notice that bars the remedy. Further, as I have already observed, unless a claim has been made under s82, which is deemed to be a notice of injury by virtue of s80(2), and liability is disputed vide s85, no proceedings can be validly commenced. The right to commence proceedings, is, as I have explained in Perfect v Northern Territory of Australia (unreported, 29/5/92) conferred by s85(10) of the Act, and arises therefore relevantly for these purposes at the time when the employer disputes liability. Consequently it is difficult to imagine circumstances arising where proceedings had been validly commenced in the absence of any notice at all. If such a situation arose, it would mean that the worker had neither given notice of injury under s80 nor made any claim for compensation pursuant to s82. Not only would the proceedings be premature, but the elaborate provisions of the Act relating to the making of claims upon the employer could be circumvented. Is this what the legislature intended? Section 182(3) provides that the failure to make a claim within six months after the injury is not a bar to the maintenance of proceedings if that failure was due to mistake, ignorance of the disease, absence from the Territory or other reasonable cause. It could be argued that this section applies to cases where either the claim was made late or no claim was made at all. If the conclusion is correct that the giving of notice is a condition of one's entitlement to compensation, what is the point of being able to maintain proceedings because the employer is not prejudiced in his defence, for example, in respect of a claim that must inevitably fail? If, on the other hand, the reference in s182(2) to "want of notice" is meant only to refer to the lack of notice being given before the worker voluntarily left the employment, rather than to the want of any notice at all, how could a situation arise in practice where the court could conclude that the proper course is to require the worker to serve a fresh notice? What purpose would this serve if ex hypothesi the employer already has a notice? 19. It is to be observed that s182 of the Act is substantially modelled on the provisions of s25 of the former Workers' Compensation Act (now repealed). Section 25(1) of the former Act provided: "25. TIME FOR TAKING PROCEEDINGS (1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the injury has been given as soon as practicable after it has happened, and before the workman has voluntarily left the employment in which he was injured and unless the

claim for compensation has been made - (a) within 6 months after the occurrence of the injury; or (b) in the case of death

• within 6 months after advice of the death has been received by the claimant; provided that - (i) the want of notice or any defect or inaccuracy in the notice shall not be a bar to the maintenance of the proceedings if it is found in the proceedings for the settling of the claim, that the employer is not, or would not if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from the Territory or other reasonable cause; and (ii) the failure to make a claim within the period above specified shall not be a bar to the maintenance of the proceedings if it is found that the failure was occasioned by mistake, absence from the Territory or other reasonable cause."

20. It is to be observed that under the provisions of this section, the requirement that notice was to be given as soon as practicable after the injury was contained in the same provision which required that the notice be given before the workman had voluntarily left the employment, and in respect of both criteria, the Act used the expression "... proceedings ... shall not be maintainable unless ..." The fact that the requirements for notice to be given as soon as practicable is contained in s80(1) and is in a separate provision to the requirement to give notice before voluntarily leaving the employment, is another reason for thinking that the requirement to give notice is a condition of entitlement rather than a mere procedural bar to recovery.
21. Another possibility is that the difficulties of construction which emerge from s182(3) of the Act would largely disappear if s182 were to be construed, not as a mere procedural provision, but as a further condition of entitlement. In this respect, it is well established that statutory provisions fixing times within which proceedings must be taken are not necessarily procedural only, but may be part of the substantive law: see Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 at 24-25 per Kirby J; at 34-46 per Hope AJA. Thus the question arises as to whether s182 should be considered as not merely barring the remedy, but in the circumstances envisaged by ss182(2) and (3) of the Act, as reviving the remedy as well as imposing a further condition upon the right to compensation. It is true that no other interpretation would give full effect to the breadth of language of those sub-sections. The alternative is to hold that the apparent breadth of those subsections is to be read down in a way which would make, at least in the case of s182(2), part of the wording of that section with little work to do. It is difficult to see why the provisions of that sub-section relating to the lack of prejudice, for example, should be construed to apply only to a late notice. It is a well settled rule of construction that the court should endeavour, if possible, to give effect to every word of a statute: Maxwell On Interpretation of Statutes, 12th ed, pp36-39; Craies On Statute Law, 7th ed, pp103-107; Pearce Statutory Interpretation in Australia, 3rd ed, para 2.7. Further, it may be possible in practice to apply s182 in conformity with the provisions of s82 and s85 in such a way so as to avoid the consequence that proceedings may be determined without the employer having an opportunity to consider a claim and to deal with it in accordance with s85. In circumstances where no claim had been made at all, bearing in mind that in those circumstances no notice would have been given either, the court could, as a condition of the adjournment, order that notice be given in the form of a claim under s85 so as to enable the procedures required by s85 to be carried out. It is arguable that such an approach would accord with the relevant purposes of the Act as set out in the preamble to the Act, viz, "to provide financial compensation to workers incapacitated from industrial injuries or disease and to dependants of workers who die as the result of such injuries or diseases." Finally, reliance may be placed upon the general rule that the Work Health Act, being remedial legislation, should be given the construction most favourable to the worker where there is ambiguity: see Foresight Pty Ltd v Maddick (1992) 79 NTR 17 at
23. I am unable to accept this solution. The distinction between s80(1) and s182 is clear from the language used by the Act. There is nothing in s182 to indicate anything else other than that the remedy is not barred if the worker is able to bring himself within one of the exceptions referred to in s182(2) or (3). Further, the history of s182 supports this conclusion. The procedural nature of this provision was recognised in Western Pastoral Company v Eyeington [1971] HCA 73; (1971) 125 CLR 342 at 346-7 per Barwick CJ; at 351-2 per Walsh J. The draftsman of the Act appears to have borrowed heavily upon s25 of the Workmen's Compensation Act, but, the decision to separate out the requirement of notice and to place it in s80 appears to have been deliberate. The alternative constructions do not easily accord with the scheme of the Act for the making of claims upon employers and having them dealt with in the manner contemplated by s85. Unlike the former Act, an employer whose employee suffers a compensable injury is required by the Act to take a real interest in his employee's welfare. Section 61 of the Act, now repealed and replaced by s75A of the Act, requires an employer to provide suitable employment to an injured worker or find suitable work with another employer for him and to participate in efforts to retrain the employee. The focus of the Act covers a wide range: Part IV of the Act deals with occupational health and safety, and there is also a heavy emphasis on the rehabilitation of injured workers, not merely on providing a scheme for mere monetary compensation. Thus the Act seeks to prevent injuries from occurring, as well as to rehabilitate those who are injured and to provide for monetary compensation. The shift of emphasis, when compared with the former Act, is apparent when it is realised that the former Act provided solely for compensation for injured workers and for a compulsory insurance scheme to make sure that the compensation would be paid. Under the former Act, an employer could ignore the welfare of his injured worker and leave the whole problem, including the problems associated with compensation, to his insurers. This is plainly no longer the case. Consequently, the necessity for prompt notice of an injury is not, as it may have been under the former Act, to merely ensure that the employer (in reality the insurer) is protected from stale demands: cf Thompson v Gould and Co Ltd (1910) AC 409 at 413 per Lord Atkinson. It is directly in the interests of all the parties, worker, insurer and employer, that notice of injury is given as soon as is practicable. The provisions of s25 of the former Act were, at least by some judges, regarded as a mere technicality and of slight importance: cf Lingley v Thomas Firth and Sons Ltd at 662. Rarely was an employee denied compensation under that provision. In my opinion, the draftsman of the present Act, at least so far as the giving of notice was concerned, intended to recognise the real importance of notice. Further, the requirement to give notice "as soon as practicable" does not operate unfairly upon a worker. Some of the matters referred to in s182, such as mistake, and absence from the Territory, would in any event be relevant to a consideration of whether a notice had been given "as soon as practicable," and it is to be noted that s80(1) does not use the expression 'as soon as practicable after the injury,' so that the fact that a worker was unaware that he had an injury or disease conferring a right to compensation under the Act, for example, is amply catered for by the wording of the section. I will deal more fully with the meaning to be given to this expression below.

In conclusion, I consider that the appellant's contention is correct, and the difficulties created by s182 are the consequence of the draftsman suffering a lapse of concentration without considering the consequences of s182(2) on the general scheme of the Act. In my opinion, the subsection stands alone and against the general intent of the Act, and runs contrary to the meaning and intent of s80(1) and s182(1) as I perceive them to be : cf Billabong Management Pty Ltd v Tumminello Holdings Pty Ltd (unreported, Court of Appeal, 11/6/92, per Asche CJ at 11, Kearney J at 12 and Angel J at 13). 24. However, the learned magistrate also made an error extending the time for the bringing of the proceedings. In my opinion such an order was neither necessary nor possible. The Act does not provide for a power to extend the time for the bringing of proceedings. The consequence of a finding that no notice was given "as soon as practicable" is that there is no right to compensation under the Act. The consequence of a finding that no claim was made within six months of the injury but that the want of such a claim was due to a reasonable cause was that the proceedings were not barred and the right to maintain proceedings for compensation was not lost. No order extending time was therefore possible or necessary. Was there evidence upon which the court could conclude that notice had been given in accordance with s80? 25. The court below found that on the facts the worker did give notice "as soon as practicable." Reliance was placed upon McMillan v TIO [1988] NTSC 58; (1988) 57 NTR 24, in which Gallop J construed this same phraseology as it appears in s31(1) of the Motor Accidents (Compensation) Act. In that case, his Honour said (at 26-27): "The phrase 'as soon as practicable' is designed to impose a reasonably practical time limit ... for making a claim under the Act. What is a reasonably practicable time must vary according to circumstances. No doubt all the surrounding circumstances relative to the claimant must be taken into consideration, as in every other case where it falls to a tribunal to decide what is reasonable. Those circumstances would include the physical and mental capacity of the injured person at the time in question, his degree of business knowledge, the nature and time of his inquiries, the result of such inquiries, any difficulties encountered, the magnitude of any injuries, whether they had stabilised, and such similar matters." 26. In my opinion, this statement is not helpful in understanding the requirements of s80(1) of the Work Health Act. His Honour was there dealing with a totally different statutory regime, and the requirement of of the , with which his Honour was dealing, was a requirement to make a claim under the Act "as soon as practicable after the accident." There is no requirement under that Act to give notice of an injury as well as to make a claim, similar to that contained in the Work Health Act. 27. The provisions of the Work Health Act relating to notice of injury and the need to make a claim, have as their origins, the provisions of s25 of the Workers' Compensation Act. That section is similar to s53 of the New South Wales Workers' Compensation Act and to the provisions of the Workmens' Compensation Act 1906 (UK). The meaning to be given to the requirement that notice must be given "as soon as practicable" had been well settled in England by the early part of this century by decisions of both the House of Lords and the Court of Appeal. The relevant authorities are fully discussed in the judgment of the Court of Appeal in Albison v Newroyd Mill Ltd In that case, the court held that the important question was, "at what time did the worker realise that he had suffered an injury entitling him to compensation under the Act?" But it is also clear that the realisation therein referred to need not be a matter of certainty; it is sufficient if the worker realised he might have to make a claim. All three members of the court purported to follow Fenton v Owners of Ship Kelvin on this question, another decision of the Court of Appeal, where the issue was discussed only by Warrington LJ, who cited (at 486) with approval the observation of Fletcher Moulton LJ in Egerton v Moore at 315: "In my opinion, it is clear that the workman ... was suffering from something which he might have to claim to be a consequence of the accident. It was his business then, at once, to give notice." 28. Similarly, Atkin LJ in Albison v Newroyd Mill Ltd, supra, at 177 observed: "... the learned judge has, I think, misdirected himself, because he has not taken into account the question which is the material question, whether at that time she had reasonable ground for supposing that the injury was such that she might have to make a claim under the Act for compensation ?" 29. Sir Ernest Pollock MR also seems to have been of the same mind, when he observed, at 174, that the County Court Judge at first instance correctly concluded that the notice was not given as soon as practicable in that case because the appellant had realised at a much earlier time "that the case was one out of which a claim for compensation might arise." Although the Master of the Rolls was in dissent in that case, he did not differ from the other members of the court on the meaning to be given to the expression "as soon as practicable." 30. Albison v Newroyd Mill Ltd has been followed in Australia by the Workers' Compensation Commission of New South Wales in Jordan v Metropolitan Water, Sewerage and Drainage Board (1943) WCR 80 at 82. 31. Section 80(1) does not refer to the time of the injury as the reference point after which notice must be given "as soon as practicable." Therefore the date of the injury is not necessarily the appropriate reference from which that time is to be measured. Section 182(1)(a) requires claims to be made within six months of an injury or in the case of disease, of the incapacity arising from a disease. This might suggest that the reference point for the giving of notice in the case of an injury is the date of the injury, and the reference point for a disease is the date of incapacity, but I do not think that s80(1) can be so construed. In my opinion the relevant reference point will often be the date that financial loss begins to occur. If an injury is not immediately productive of financial loss, it may not be practicable for a worker to give notice if the injury appears to be minor and not likely to lead to a claim. So much was recognised by Atkin LJ in Albison v Newroyd Mill Ltd at 177 when his Lordship observed: "It is quite plain that if claims for compensation by workmen, whenever they receive slight and most trivial injuries, depend on notice being given at once, the object of the Act would be defeated, and, more than that, the employers and their insurance companies would be worried with a great many notices which, I think, on the whole they would be sorry to receive. At any rate, that is not the law." 32. The question of whether or not a worker has failed to give notice as soon as practicable is a question of law. The facts which bear upon this question are for the Work Health Court to determine, but the ultimate conclusion is necessarily a question of law. As Lord Parker observed in Farmer v Cotton Trustee at 932: "... where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only." 33. This dictum has been followed by Asche CJ in Nader Jones v ANZ Executors and Trustees Pty Ltd (unreported, 12/8/86) and by Kearney J in John Holland Constructions Pty Ltd v Hall ; at 26. In this case, all of the relevant facts were contained in an affidavit sworn by the respondent, who was not subjected to cross-examination. The learned magistrate accepted this affidavit as she was bound to do. The facts disclosed therein show that the respondent left the appellant's employ in December 1989 because of his back pain and on the advice of his treating specialist. After he had ceased work, the severity of his pain subsided gradually but his back problems had still not resolved. He sought legal advice from the Australian Legal Aid Office in February 1990. The nature of the advice given, if any, is not disclosed. Prior to this time, he states that he had been attempting to negotiate with the appellant's insurer direct, but no details of his attempts are given. I note that he had previously successfully claimed workers compensation from Bridgestone Tyre Service as a result of a back injury in 1988. It appears from the affidavit material that the insurer of both Bridgestone and the appellants is the same insurer. In April 1990, the respondent was referred by the Australian Legal Aid Office to his present solicitors. He was not then advised that he may have a claim against the appellants. This is not improbable; he may have thought that his claim lay against Bridgestone, especially as there was no incident giving rise to his claim, which appeared to be a gradual worsening of his original back trouble. However, his solicitor arranged for him to complete a claim form for compensation against the appellants and arranged for him to be sent to the Industrial Rehabilitation Service and he attended numerous interviews and assessments throughout the first half of 1990. Eventually he considered that he was able to look for work. In August 1990 he made arrangements to be accepted into the Driver Training Course run by the Taxi Council for the Northern Territory to commence on 22 September 1990. He does not say that he attended that course or that he ever worked as a taxi driver. He states that the claim form was not lodged immediately because he believes that his solicitor wished to complete investigations into his residual earning capacity. During 1990, he attended numerous medical practitioners for the purpose of preparing medico-legal reports to support his case. He claims that these reports were needed to enable his solicitors to formulate his claim as accurately as possible, and to decide whether he should pursue his claim against the respondents. The last of these reports (none of which were exhibited) was prepared "in late 1990." In November 1990, the solicitor handling his file left the firm due to illness, and a new solicitor was engaged, but he was unable to attend to the matter immediately "due to increased pressure of work." The respondent says also that he discussed the possibility of a claim against the respondents with his solicitor shortly after instructing him but that he did not give instructions to make the claim until November or December 1990. He further states that: "The reason for this is that George Stevens (one of the appellants) had taken me on in good faith and it wouldn't be right to claim against him although there was a recurrence of symptoms whilst working for him which caused me to stop my work. It was not until late 1990 that I came to realise that in the circumstances my condition was not going to completely settle and that I was obliged to pursue this claim to protect my interests." 34. At some stage prior to seeing his solicitors in April 1990, he obtained some "very casual" employment working in a video store. His hours increased apparently some time shortly prior to July 1991. It does not appear that he obtained any other work. 35. The respondent's affidavit does not state whether he was in receipt of any other income, whether unemployment benefits or otherwise, since December 1989. Nor does it say that the respondent was not aware that he needed to give his employers notice of injury as soon as practicable, or make his claim within six months, although I do not suggest that ignorance of the law itself is a relevant consideration: cf Roles v Pascall and Sons ; Murray v Baxter ; ; Black v City of South Melbourne ; As mentioned previously, no notice of any injury was made until the claim form was received by the employers' insurer on 4 February 1991, some fourteen months after the respondent had left the appellants' employ. 36. The learned magistrate concluded as follows: "With the benefit of hindsight Mr Maddick's thinking on the whole issue was somewhat muddled and he could have acted with

greater expediency. This factor may weigh against him at any ultimate hearing. However, accepting his reluctance to claim against the respondent and the efforts he made to rehabilitate himself and return to work rather than have to bring a claim at all, I would in these circumstances rule that he did give notice 'as soon as practicable' pursuant to the requirements of section 80." 37. With respect, I do not consider that that conclusion is one which was reasonably open to the learned magistrate. The facts show that the respondent left the employment in December 1989 because of his back pain and advice from his treating surgeon. He shortly thereafter sought legal advice, and in April 1990 was referred by Legal Aid to a solicitor. By that time he was at least incapacitated from work, and only able to work a few hours a day. He completed a claim form which was held by his solicitor, but it appears that he did not serve the form on his employers because he was reluctant to make a claim against the appellants for personal reasons, and because his solicitors wanted to gather more information to support his claim and to advise him whether he should pursue his claim. Nevertheless he was aware that he possibly had a claim and and discussed that possibility with his solicitor. During 1990, he went to the Industrial Rehabilitation Service on a number of occasions, and saw medical practitioners for the purpose of preparing for his case, and it appears that he may have hoped he would eventually be able to get back to full-time employment; but his decision in late 1990 to pursue this claim appears to have been because his injury was not going to resolve rather than because he had received any legal advice to the effect that he had a valid claim. After deciding to make a claim and informing his solicitor of this in November or December 1990, no claim was received until 4 February 1991 apparently because the new solicitor handling the matter was too busy to attend to his matter promptly. 38. In these circumstances it is my opinion that the respondent ought to have given notice of his injury by no later than shortly after he had consulted his solicitor in April 1990 and completed the claim form. By then, he had been incapacitated, at least partially, for five months, and he knew that he possibly had a claim against the appellants. He does not say that the claim form was not served then on the advice of his solicitor, and the decision not to serve it, appears to have been his, rather than his solicitors, and the reason he gives for this decision is because of a reluctance to make a claim on an employer who took him on in good faith. It cannot be said that his injury was trivial. It is clear that he was by then aware of the possibility of his need to make a claim against the appellants, but his attitude seems to have been that if he was able to recover fully, he would not make a claim. In these circumstances the facts support only one conclusion, and that is, that the claim was not made as soon as practicable. As this precludes the respondent's entitlement to compensation, there is no necessity to consider whether, the claim being made later than six months after the injury, this was occasioned by reasonable cause. Conclusion 39. The result is that the appeal must be allowed but the question as to what orders I should make has occasioned me some difficulty. The way in which this matter originally arose before the Work Health Court was that the respondent applied for an extension of time to commence proceedings for compensation under the Act. As I have observed, this application was misconceived, and if that was the only issue the appeal could be disposed of on that basis alone. But the conduct of the matter both before the Work Health Court and before me extended the ambit of the dispute between the parties. In effect, the questions which I have considered were argued by the parties as if there was a trial on a preliminary issue upon affidavit conducted before the learned magistrate. 40. Section 116 of the Act provides that on an appeal to this Court, the court "may either dismiss the appeal or vary the decision or determination appealed against." It appears that the relief which the appellants sought before the Work Health Court on the original hearing extended beyond merely opposing the application for an extension of time and that what the appellants really sought was that the application for compensation filed in the Court on 25 February 1991 be dismissed. That, I note, is part of the relief claimed by the appellants in their Notice of Appeal to this Court. However no submissions have been put to me as to the orders that are appropriate in this case, and I think that in the circumstances I should hear counsel on the formal orders that I should make in the light of these Reasons.