ROSS E MONGER, THE DIRECTOR CONCILIATION AND REVIEW DIRECTORATE

Workers compensation - Application for extension of time in which to elect to retain the right to pursue common law damages - Director refusing to accept application - Remedy

Workers compensation - Commencement of weekly payments - Proper meaning of "commenced" - Whether payments commenced from date of incapacity or from date actually made

Interpretation Act 1984, s 18

Workers Compensation and Rehabilitation Act 1981, s 21, s 93E

Workers Compensation and Rehabilitation Regulations 1982, reg 19N

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493

Ex parte Helena Valley/Boya Association Inc (1989) 2 WAR 422

Holmes v Permanent Trustee Co of NSW Ltd [1932] HCA 1; (1932) 47 CLR 113

R v Harlock; Ex parte Stanford & Atkinson Pty Ltd [1974] WAR 101

Re Monger; Ex parte Ivey, unreported; SCt of WA; Library No 990250; 10 December 1999

Re Monger; Ex parte Woodford, unreported; SCt of WA; Library No 990273; 31 December 1999

WA Field & Game Association Inc v Pearce (1992) 8 WAR 64

Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195

Waugh v Keppen [1986] HCA 12; (1986) 160 CLR 156

Woodcock & Anor v South Western Electricity Board [1975] 2 All ER 545

1 MILLER J: This is an application for a writ of mandamus directed to Ross E Monger, Director of Conciliation and Review appointed in accordance with the provisions of Div 1A of Pt V of the Workers Compensation and Rehabilitation Act 1981 ("the Act"). He is described in s 104B as the principal officer of the Directorate responsible to the Executive Director in administrative matters concerning the Directorate, but in matters concerning the resolution of disputes, he is responsible directly to the Minister. Section 93E(3)(b) of the Act provides that damages can only be awarded to a worker if he has a "significant disability and elects in the prescribed manner to retain the right to seek damages and the election is registered in accordance with the regulations". Pursuant to s 93E(7) of the Act the Director may, in such circumstances as are set out in regulations, extend the period within which an election can be made under s 93E(3)(d) until a day (not being a day that is more than six months after the termination day) to be fixed by the Director by notice in writing to the worker.

2 The relevant regulations are the Workers Compensation and Rehabilitation Regulations 1982 ("the Regulations"). Regulation 19N provides for the extension of time within which an election may be made under s 93E(3)(b). Regulation 19N(2) provides that for the purposes of s 93E(7) of the Act the circumstances in which the Director may extend the period of time within which an election can be made under s 93E(3)(b) are (relevantly):

"(a) the worker will require major surgery in respect of the disability in the extension period;

(b) medical evidence that the worker will require major surgery in respect of the disability in the extension period has not been obtained from a medical practitioner who is a specialist in a relevant field of medicine despite all reasonably practicable steps having been taken by or on behalf of the worker to obtain that evidence;"

(3) An application for an extension of time under subregulation (2)(a) is to be -

(a) made in the form of Form 26 in Appendix I;

(b) accompanied by medical evidence from a medical practitioner who is a specialist in a relevant field of medicine; and

(c) lodged with the Director at least 21 days before the termination day.

(4) An application for an extension of time under subregulation (2)(b) is to be -

(a) made in the form of Form 27 in Appendix I;

(b) accompanied by such evidence, in addition to that provided in the Form 27, as may be requested by the Director about -

(i) the requirement for the worker to have the surgery mentioned in subregulation (2)(b); or

(ii) the action taken by or on behalf of the worker to obtain the medical evidence mentioned in subregulation (2)(b);

and

(c) lodged with the Director at least 21 days before the termination day."

3 In the present case, the applicant whilst employed by Murray River North Pty Ltd as a trades assistant carrying out roof carpentry, fell from an unbolted purlin at a Cocos Island building site onto the ground sustaining injuries to his left wrist. This fall occurred on 6 November 1999 and the applicant first obtained medical treatment at Cocos Island but was later referred to Fremantle Hospital for surgery. He was certified unfit for work until 10 January 2000. On 1 December 1999 he completed a workers' compensation claim form and on 27 January 2000 received a notice from Zurich Australian Insurance Ltd that liability for his claim pursuant to the Act had been accepted on behalf of Murray River North Pty Ltd. He received his first payment of weekly compensation from Murray River North Pty Ltd on 27 January 2000 and payments continued thereafter as for total incapacity, various Progress Medical Certificates extending his period of incapacity through the year 2000.

4 The applicant consulted Messrs Gibson & Gibson to act as his solicitors and received advice that he had an arguable claim at common law against Murray River North Pty Ltd arising out of the personal injury he sustained in his accident. On his behalf Gibson & Gibson obtained medical evidence in order to determine whether he had sustained a significant disability as prescribed in s 93E(3)(b) of the Act. On or about 14 April 2000 a Dr Venables confirmed that the applicant required orthopaedic care which involved surgery for the removal of pins and plates.

5 Pursuant to s 93E(7) of the Act and reg 19N of the regulations, Messrs Gibson & Gibson on 14 April 2000 lodged a Form 27 application for an extension of time within which an election might be made pursuant to s 93E(3)(b) of the Act. With that Form 27 was enclosed a copy of the report from Dr Venables. The Form 27 contained details of the worker, employer, injury and the extension of time sought. The extension sought was until 6 November 2000. At the foot of the form was the following paragraph:

"You must also give to the Director medical evidence from a medical practitioner who is a specialist in a relevant field of medicine indicating that your disability is of such seriousness that you are likely to require major surgery within the next 6 months."

6 The report of Dr Venables which was attached to Form 27 was (relevantly) in the following terms:

"Injury at work 06/11/1999.

Fractures to left forearm and wrist.

Shane was seen today, 14/04/2000 and found to have weakness and wasting of extensor muscles in forearm plus significant loss of rotation of the forearm and significant loss of mobility to the wrist.

He is still under Orthopaedic care with removal of pins and plats planned in October 2000.

He may well end up with a degree of permanent disability in the left arm.

I am unable to quantify this."

7 Reference to reg 19N and to Form 27 reveals a problem. Form 27 is applicable in a case where there is an application for an extension of time under reg 19N(2)(b). That is, where there is no medical evidence from a specialist in the field that the worker will require major surgery, notwithstanding that all reasonable steps have been taken to obtain that evidence. By contrast, an application under reg 19N(2)(a) is to be made in the form of Form 26. It is to be accompanied by medical evidence from a medical practitioner who is a specialist in a relevant field of medicine. The Form 27 which appears in Appendix 1 to the Regulations does not seem to be the same as the Form 27 signed by the applicant in this case and lodged by him. In particular, it does not have the paragraph to which I have made reference. In any event, the paragraph in the form used by the applicant is inappropriate for a Form 27. It relates to a Form 26.

8 After the Director had received the applicant's Form 27 he wrote to Gibson & Gibson on 17 April 2000 in the following terms:

"Receipt is acknowledged of your application for an extension of time to make an election which was lodged on the 14 April 2000 in accordance with Regulation 19N.

I understand from your application that the weekly payments for the disability commenced on the 6 November 1999 and therefore the termination day for the purposes of this worker seeking common law for this disability is the 5 May 2000.

These applications are to be accompanied by medical evidence from a medical practitioner who is a specialist in a relevant field of medicine in accordance with the provisions of Regulation 19N(3).

The circumstances under which I may extend the period of time within which an election may be made are if I am satisfied the worker will require major surgery in respect of the disability during the extension period. I note that you have not provided any medical evidence from a specialist in the relevant field of medicine.

As your application does not comply with the provisions of Regulation 19N specifically in terms of the evidence of a medical practitioner who is a specialist I am unable to accept your application."

9 It is apparent from the Director's letter that he confused the applicant's application for an extension of time under reg 19N(4) with an application under reg 19N(3). Indeed the Director specifies reg 19N(3) in the third paragraph of his letter. It was, of course, only in relation to a Form 26 application for an extension in relation to which medical evidence from a medical practitioner specialised in the relevant field of medicine was required. But this was not such an application. It was one governed by reg 19N(4).

10 The application lodged by the applicant had to be lodged at least 21 days before the termination day. That termination day was in this case six months from the date of the accident and was therefore 6 May 2000. The application had to be in at least 21 days before that date, which required it to be in no later than 15 April 2000. In fact it was in on 14 April.

11 However, a problem is revealed by the words of reg 19N(4)(b), which requires that in an application for an extension of time under reg 19N(2)(b), the appropriate form is Form 27 and it is to be accompanied by such evidence in addition to that provided in the form "as may be requested by the Director" about either the requirements for surgery or the action taken by the worker to obtain the medical evidence. This evidence must be lodged with the Director "at least 21 days before the termination day".

12 In the event (as here) that the applicant files his application for an extension (by a Form 27) only a day before the last day available for that purpose, it is impossible to see how the Director could request further information and have it lodged with him "at least 21 days before the termination day". When the regulation was drafted no thought could have been given to such a situation. There is therefore an urgent need for parliament to amend reg 19N(4)(c) to allow for a situation in which an application is made at the last minute and it would be practicably impossible to supply information requested by the Director "at least 21 days before the termination day".

13 It will be seen that the Director rejected the applicant's application on the basis that it failed to comply with the provisions of reg 19N. In fact it did comply with reg 19N(4) and the Director had mistakenly considered it to be an application under reg 19N(3). By letter dated 31 May 2000 Gibson & Gibson wrote to the Director pointing out that weekly payments of compensation had commenced on 27 January 2000 and in accordance with s 93D(1) of the Act the termination day was six months from that date, namely 27 July 2000. A report from Mr Halliday (the treating surgeon) dated 24 May 2000 was enclosed which revealed that the applicant would require further surgery later in the year. The Director was asked to reconsider his decision to refuse the applicant's application.

14 By letter dated 7 June 2000 the Director pointed out that Mr Halliday did not indicate that the applicant would require major surgery in respect of his disability in the extension period and requested at least 21 days before the termination day, confirmation from Mr Halliday that the worker would require surgery in respect of his disability in the extension period and that the surgery required was major. There then followed further correspondence and submission of reports leading ultimately to a decision of the Director that as the application and necessary supporting medical information had not been received until 15 June 2000, the application was not made within the time prescribed by the regulation. The Director in a letter of 14 July 2000 said:

"I note your view is that your client's weekly payments did not begin until 25 January 2000 when he was back paid weekly payments to 6 November 1999. On that basis you submit that the 6-months time period for the termination day should commence on 25 January.

In my view the definition of termination day means that the day from which the 6-month period is to be calculated is the first notional work day in respect of which worker's compensation payments were made, even if the payment in respect of the first and subsequent days was not made until sometime thereafter.

Contrary to your view, it seems to me that interpretation is more consistent with the provisions of section 93E(2)(a).

As your application and the necessary supporting medical information were not received until 15 June 2000, the application was not made within the time prescribed by the Regulations. I am therefore unable to accept your application."

15 On 21 September I granted an order nisi for a writ of mandamus calling upon the Director to show cause why such a writ should not be issued against him directing him to consider the applicant's application of 14 April 2000 for an extension of time, or to show cause why the Director should not consider the applicant's application on the following grounds:

"(a) Pursuant to Regulation 19N(1) of Regulations the Director of the Conciliation and Review Directorate has a discretion to grant an extension of the period of time in which a worker may elect to retain the right to pursue common law damages under section 93E(7) of the Act;

(b) Pursuant to Regulation 19N(2)(c) of the Regulations an application for an extension of time must be lodged with the Director of the Conciliation and Review Directorate at least 21 days before the termination day;

(c) 'termination day' is defined by Section f93E(1) of the Act by reference to 'the day that is 6 months after the day on which weekly payments commenced;'

(d) the Director of the Conciliation and Review Directorate has erred in law in refusing to consider the Applicant's application on the basis that the application was lodged after 21 days before the end of the 6 month period calculated from the first notional work day in respect of which workers' compensation payments were made, although the payment in respect of the first and subsequent days was not made until some time thereafter;

(e) The Director of the Conciliation and Review Directorate should have accepted the application as having complied with Section 93E(7) of the Act and Regulation 19N of the Regulations and in the correct exercise of his discretion should have granted the application for an extension of time."

The reference in ground (b) to reg 19N(2)(c) is erroneous. It should be a reference to reg 19N(3)(c) or reg 19N(4)(c).

16 In the end, whether or not the Director properly appreciated the application to be a Form 27 or a Form 26 application is only a side issue. It is not the subject of the grounds upon which the writ of certiorari is sought. However, my reference to the history of the matter reveals that the Director was confused as to the basis upon which the application was made, and the format of the Form 27 contained erroneous advice at the foot of it. Further, my analysis reveals that the provisions of reg 19N(4)(b) and reg 19N(4)(c) create a situation of absolute impossibility in circumstances where a Form 27 is filed on the last day, but within the period limited by the Act.

17 The crucial question for determination in these proceedings is, however, whether the Director was correct in his view that the definition of termination day meant that the day from which the six month period was to be calculated was the first notional work day in respect of which workers' compensation payments were made, even if payment in respect of the first and subsequent days was not made until some time thereafter. This question has been the subject of decision in this Court in Re Director Conciliation and Review Directorate; Ex parte Nowicki [2000] WASC 280. There, Anderson J, on 21 November 2000, dealt with an application for a writ of mandamus directed to the Director in very similar circumstances. The Director had refused to register the worker's election to retain the right to seek damages at common law, notifying him that the election had been lodged after the termination day and stating:

"As the worker has not complied with the provisions of section 93E(6) an election cannot be made. I am therefore prevented from registering the Election.' "

18 Solicitors for the worker sought clarification of the method utilised by the Director in calculating the termination date and he responded in terms similar to those used by the Director in the present case. He said:

"In my view the definition of termination day means that the day from which the 6 month period is to be calculated, is the first notional work day in respect of which workers' compensation payments were made, even if the payment in respect of the first and subsequent days was not made until sometime after."

19 There were a number of factual uncertainties in the case before Anderson J, but they do not affect the conclusion his Honour reached. The conclusion was that the Director had adopted the wrong methodology in calculating the date of the termination day and accordingly had not, in law, performed his duty. His Honour's reasons, with which I respectfully agree and follow, were as follows:

"Putting to one side the factual uncertainty as to exactly when the weekly payments commenced and the factual matters which are to be considered in deciding whether s 93E(6) has been complied with, the method by which the Director arrived at the critical date - the date of the 'termination day' - is, with respect, the wrong method. That being so, the Director has not in law performed his duty: The King v The War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242. A determination as to the termination day is essential to the valid performance of the duty to consider whether an election should be registered; to use a method different from that which is prescribed by the Act in arriving at the termination day is to fail to properly consider whether the election should be registered.

I would grant relief on this ground.

In my opinion, unless the case is within s 93E(2) (which this case is not), the definition of 'termination day' involves an inquiry as to the day on which weekly payments of compensation actually commenced. The inquiry that must be made is as to the day on which the worker first actually received a payment of compensation that meets the description of 'weekly payments'. There is no warrant in the Act (otherwise than in s 93E(2)) to engage in any other exercise. Unless the case is within s 93E(2), where the commencement of weekly payments is delayed and a back-payment is made to cover the delay the six months begins to run, not from the start of the period covered by the back-payments, but from the day on which the back-payment is made. If it was intended that the termination day was to be calculated in all cases by reference to the day on which the entitlement to weekly payments arose, the definition of 'termination day' would have said so and there would have been no need for s 93E(2)."

20 Extensive argument was put before me by the intervener, contending that the decision of the Director was in this case entirely correct. Reliance was placed particularly upon the provisions of s 21 of the Act which provide that "an employer is liable to pay compensation under this Act from the date of incapacity". It was argued that as there will necessarily be a delay between the occurrence of the incapacity and the receipt of weekly payments due to the claim's procedure, it is clear that the date of acceptance of the claim does not shift the date of incapacity so that liability flows only from the date of acceptance. It was contended that the employer is compelled by s 21 of the Act to pay weekly payments from the date of incapacity and the commencement of weekly payments therefore coincides with the date of incapacity. The argument put was that the date of acceptance of the claim cannot shift the date of commencement of weekly payments to a date other than the date of incapacity.

21 I was urged to interpret s 93E(1) in the context of the Act as a whole and particularly the provisions in which the relevant section appears. It was rightly put that in the interpretation of a provision of a written law a construction that would promote the purpose or object of the written law shall be preferred to a construction that would not promote it: Interpretation Act 1984, s 18. It was argued that the purposes of the Act are to:

(a) Provide injured workers with a statutory scheme for compensation; and

(b) Restrict the rights of workers to make common law claims against employers.

22 However, it was argued for the appellant that the purposes of the Act are those purposes set out in s 3, where s 3(a) describes the purpose of the Act to be to make provision for the compensation of workers who suffer a disability. In this sense, it was argued that the Act is beneficial legislation and any ambiguity in the interpretation of its provisions should be the subject of liberal interpretation, with a construction favourable to the worker being preferred. The well-known passage of Deane and Gaudron JJ in Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 9 to the following effect was cited:

"Moreover, it is well to remember that employee's compensation legislation, such as the Act and the regulations, is remedial in its character 'and, like all such Acts, should be construed beneficially': Bist v London South Western Railway Co. The 'established principle' was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pty Ltd: 'where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred.' If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case: cf Pearce, Statutory Interpretation in Australia, 2nd ed (1981), pp 137-138. Indeed, in McDermott v Owners of SS Tintoretto, a case in which the House of Lords read words into a provision of a Workmen's Compensation Act in favour of the employee, Lord Shaw commented that he regarded it 'to be quite unsound, and to be productive of wrong and mischief' to interpret such a remedial statute 'in the spirit of meticulous literalism'. That comment of Lord Shaw was quoted with approval ('a valuable contribution') by Isaacs J in this Court in George Hudson Ltd v Australian Timber Workers' Union."

23 The respondent correctly pointed out that s 93E of the Act appears in Pt IV Div 2 which is headed "Constraints on Awards of Common Law Damages". The Division certainly places restrictions on the time within which a worker may elect to commence a common law claim and prevents the award of damages unless stringent criteria are met. There are generally speaking restrictions on awards of damages which can be made. However, the appearance of Div 2 in Pt IV of the Act does not in my view take away from the primary purposes of the Act which are set out in s 3. The making of provision for the compensation of workers who have suffered disability remains one of the key purposes of the Act, notwithstanding that certain constraints are made on the ability of applicants to claim damages at common law. It is to be observed that despite the introduction into the Act of s 93E in 1999, no steps were taken to amend the purposes of the Act set out in s 3. I therefore accept the basic submission of the applicant that a liberal interpretation is to be given to the definition of "termination day". In any event, I consider the decision of Anderson J to have resolved the matter. Although dealing with the question of an election by the worker under s 93E(5) and s 93E(6) of the Act, it cannot be argued that there can be any distinction between the interpretation given under those subsections and that required under s 93E(7).

24 Counsel for the intervener placed importance upon s 93E(2) of the Act, pointing out that this is essentially a savings provision predicated on the fact that without its protection an applicant may have passed his termination date as soon as an order to pay compensation is made. It was put that s 93E(2) is unworkable in circumstances where weekly payments are deemed to commence on the day they are actually received and that if it were intended that weekly payments commence on the date at which they are actually received there would be no need for s 93E(2), because the termination date would be six months from the date on which payments were actually received after the date of the order. However, this contention is answered by Anderson J who points out that s 93E(2) is a discrete section in relation to which different considerations apply.

25 I am of the view that the Director therefore erred in this case in determining that the definition of "termination day" meant that the day from which the six month period was to be calculated was the first notional work day in respect of which workers' compensation payments were made. Accordingly, it is my view that the Director should be ordered to perform his duty in this case and to consider according to law the applicant's application for extension of time within which to make an application pursuant to reg 19N(2)(b), combined with reg 19N(4). The proper basis upon which the Director should interpret the words "termination day" in this case requires an inquiry as to the day on which weekly payments of compensation actually commenced, namely 25 January 2000. I should add that to the extent to which reg 19N(4) suggests that any further evidence required by the Director in relation to either surgery or action taken by or on behalf of the worker to obtain medical evidence is to be considered, it cannot be the case that it is to be limited to lodgment with the Director at least 21 days before the termination day. The regulation in that regard is unworkable. In any event, it would seem that in this case sufficient medical evidence was supplied on behalf of the applicant on 15 June 2000, which was within the six month period which commenced on 25 January 2000.