Neuss v Roche Bros P/L [2000] QCA 130

[1] de JERSEY CJ: The framework for the scheme envisaged by s182D of the Workers' Compensation Act 1990 had not been fully established by the time the respondent commenced his action on 20 June 1997, in that for the reasons expressed by Pincus JA, the necessary "approved form" of application, to the Board, by a prospective claimant of "damages at law", did not exist. I agree with His Honour's further conclusions that the applicant consequently may not rely on the respondent's "failure" to obtain a certificate under s182D(1), leaving the respondent free to commence his action. I agree that the application for leave to appeal should be dismissed, with costs to be assessed.

[2] PINCUS JA: The Court delivered a preliminary judgment in this application on 14 April 2000. As contemplated by the orders then made, affidavits and submissions have been filed relating to the question of the approved form referred to in s 182D(2) of the Workers' Compensation Act 1990 ("the Act"). It has emerged from the additional material that the applicant's contention is that at the relevant date (20 June 1997, when the suit was commenced) there was an approved form for the purposes of s 182D, the approval having been effected by a memorandum of 7 February 1997. The respondent denies that the memorandum approved a form in any relevant way and contends that if there was an approval, it was not issued with proper authority.

[3] The general character of the approved form referred to in s 182D(2) is indicated by the other provisions of s 182D. The scheme is that workers in a certain category may sue for damages at law for personal injury, as defined by s 6, only if a certificate is given. The application must be one for a certificate under the section. The memorandum on which the applicant relies purported to approve two alternative forms.

If the worker has had a statutory claim, the approved form will be a written statement requesting assessment of permanent impairment.

If the worker has not previously had a statutory claim, the approved form is to be a Form 4 with it clearly marked as DAMAGES CLAIM ONLY".

[5] The expression "statutory claim" means, I think, any claim under the Act. It is likely that the respondent had made such a claim before suing for damages and that therefore the first sentence of the memorandum applies. Its reference to assessment of permanent impairment takes one to Division 2 of Part 9 of the Act, which creates an entitlement to lump sum compensation for permanent impairment. Section 130 contemplates that the worker may ask that the degree of his permanent impairment be assessed (s 130A) and provides for the making of an offer of lump sum compensation which may be accepted or rejected. Section 182D(1), which is the provision relied on by the applicant to defeat the respondent's damages claim, refers to s 132 and, if it catches the respondent's case, does so because he is a person who has received no offer of a lump sum compensation under s 132.

[6] No argument is necessary to support the proposition that an application for compensation under s 132 cannot rationally be read as an application to the board for a certificate under s 182D(1). But, the applicant contends, if a form is approved it becomes the approved form, whatever its content. This argument must have some limits; presumably purported approval of a form saying that the worker does not desire a s 182D certificate would not be within the statutory power of approval. If the applicant is right, it would appear to be enough that the approved form asks the board for anything at all, whether or not what is sought by it is, or has any intelligible connection with, the certificate for which the worker "must" apply, under s 182D(2). The board's power to approve forms for use under the Act is tersely expressed (s 206A); it should not be read as empowering the board validly to require workers who want the board to take action A to apply instead for quite different action B. One reason for favouring this construction is that one may safely infer that the legislature would intend the Act to be administered in a way which is able to be understood by workers; such an interpretation will "best achieve the purpose of the Act": s 14A, Acts Interpretation Act 1954.

[7] Similar considerations apply to the second sentence of the memorandum, which purports to require that if the worker has not previously had a statutory claim - a category which does not appear to include the respondent - the approved form is a Form 4, which is an application to the board for worker's compensation, not for damages. The only indication that it is anything other than an application for worker's compensation is that it is to have clearly marked on it "damages only".

[8] It appears to me that a wide variety of documents could fulfil the description of an "approved form" under s 182D. However badly expressed or difficult to use, such a form could be one which is validly prescribed if it is identifiable as an application for a certificate under s 182D. Neither of the forms now relied on is so identifiable.

[9] In this Court's preliminary judgment the parties were given liberty to make submissions in writing with respect to the question whether, if no form was at the relevant date approved for the purposes of s 182D(2), the restriction effected by s 182D(1) applied to the respondent. The only submission received from the applicant which relates to this question is in the form of a rhetorical question:

"If the Respondent had applied for a damages certificate in the manner specified in Exhibit A to Ms Hamblin's affidavit could WorkCover possibly be heard to say that it was not an approved form?".

The suggestion made appears to be one of estoppel, and that from the party which insists that nothing can save a worker from the consequences, if he fails to comply strictly with the statute. Of course, if it were the case that WorkCover could be estopped from saying that a form used was not approved, that would have no bearing on the question whether failure on the part of WorkCover to approve such a form as s 182D contemplates would leave it free to rely on the worker's failure to obtain a certificate.

[10] In the provisional view set out in my previous reasons, I said that legislation cutting down the right of access to the courts must be read strictly and that the prospective plaintiff might have no obligation to apply for a certificate unless there is an approved form of application in existence. Having reconsidered the matter, I adopt that provisional view. I read s 182D as requiring a worker to apply in the form which has been approved by the board and as not requiring, or permitting, an application in any other form. Where, as here, there is no approved form there is no obligation to apply.

[11] The more difficult question is: what follows from the absence of an approved form? One view is that, whether or not it is possible to comply with the requirement of s 182D(2) that an application be made in an approved form, the non-certificated worker cannot sue. So to hold would perhaps be inconsistent with the rule, reaffirmed in Brakespeare v The Northern Assurance Co Ltd [1959] HCA 31; (1959) 101 CLR 661 (a case about construction of a Workers' Compensation Act) that provisions which "... derogate from the jurisdiction of the ordinary courts of justice ... are therefore not construed as going beyond the fair intendment of the language in which they are expressed" (668). But to read s 182D as not preventing access to the courts by a worker who cannot, because of WorkCover's failure to approve a form, apply in accordance with s 182D(2), might seem an extreme step.

[12] In the much-cited decision of the House of Lords, Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, the presumption against prevention of access to the courts' jurisdiction was applied vigorously, especially by Lord Reid; a statute requiring that a particular decision "not be called in question in any court of law" was read as not depriving the court of jurisdiction to declare null a decision grounded in errors of law. Anisminic was applied in R v Dunphy; ex parte Maynes [1978] HCA 19; (1978) 139 CLR 482. In my opinion, the "fair intendment" of s 182D should not be held to deprive such a worker as this respondent of his right to access to the courts.

[13] It is necessary to mention two other matters. The first is that, the point having been raised long before, it was not until recently that WorkCover discovered that the "approved form" was one of the forms mentioned in the memorandum discussed above. This illustrates the confusion which existed within WorkCover itself, caused by its failure to approve a form of the kind contemplated by s 182D. The second point is that the parties are in dispute as to whether the recently disinterred alternative forms were approved by the board of WorkCover. The respondent contends that the memorandum I have referred to could not constitute approval by the board, since it is not demonstrated that the purported approval had the board's authority. I have not found it necessary to express a conclusion on this aspect of the case.

[14] (1) When the respondent's action was begun there was no approved form for the purpose of s 182D(2).

(2) The worker's application "must" be in an approved form, under s 182D(2).

(3) The question is whether if it is impossible to apply in the approved form, since there is none, the failure to obtain the certificate which might have been issued if such an application had been made deprives the worker of his right of access to the court.

(4) The statute gives no express answer to this question, but I have been encouraged to adopt an answer favourable to the worker by the presumption against an interpretation taking away access to the courts.

(5) Since the applicant's defence based on s 182D cannot succeed, it is unnecessary to consider the legal issues litigated before the learned primary judge and the application for leave to appeal should in my opinion be dismissed.

[15] BYRNE J: The respondent instituted proceedings in the District Court on 20 June 1997. If by then no form had been "approved" for use in applications envisaged by s 182D of the Workers' Compensation Act 1990, in my opinion, the litigation was duly commenced despite the absence of a certificate issued pursuant to 182D(1). For it is scarcely to be supposed that Parliament intended that access to the courts could be frustrated by the expedient of omitting to approve the form that s 182D(2) assumes will be created to enable damages claimants to seek a s 182D certificate. And I do not understand the applicant to suggest otherwise. Rather the applicant contends, I gather, that such a form had been "approved" before the action commenced.

[16] Section 182D commenced on 1 January 1996. The Workers' Compensation Act 1990 ("the old Act") was repealed on 1 February 1997 by s 534 of the WorkCover Queensland Act 1996 ("the new Act"). Section 551 of the new Act provides that the old Act applies as if it had not been repealed where the injury was sustained before its repeal. Section 558 of the new Act provides that in such circumstances references to the General Manager are to be taken as references to the Chief Executive Officer, and references to the Workers' Compensation Board ("the Board") are to be taken as references to WorkCover.

[17] Under the old Act, the Board was authorized to approve forms for use under that Act: s 206A. Section 30 of the old Act gave the General Manager all the powers and functions of the Board; and s 31 allowed the General Manager to delegate powers to an officer of the Board.

[18] From 1 February 1997, the persons authorized to approve forms for use under the old Act were WorkCover, the CEO, and a delegate of the CEO.

[19] On 7 February 1997, Mr McKenzie, the applicant's Damages Claims Branch Manager, issued a memorandum to staff advising of the approval mentioned by Pincus JA. But if Mr McKenzie lacked authority to approve such a form, his memorandum cannot have brought into existence the "approved form" which s 182D anticipates.

[20] The applicant contends that Mr McKenzie was authorized to approve forms, pointing to his job description, which states his responsibilities as including the development of "policies, procedures and standards for the management of common law damages claims".

[21] Now, even if it be generously assumed that the job description apparently evidences a conferment of power to approve forms in respect of damages claims, still it is not shown that the CEO approved this job description. The document containing it is stamped "approved" and bears the signature of the "Deputy General Manager". But there is nothing to show that the Deputy General Manager was authorized to prescribe the job description. Moreover, there is evidence indicating that the CEO had not delegated power to approve forms to Mr McKenzie. Several memoranda are exhibited to Mr McKenzie's affidavit containing requests directed to Mr Hastie, then the CEO, with comments and advice on draft forms. Such correspondence would be unnecessary if Mr McKenzie already held a CEO's delegation of power to approve such forms.

[22] Thus there was no "approved form" when the action commenced. It follows that s 182D presents no obstacle to its prosecution. That conclusion, as Pincus JA points out, makes it unnecessary to consider the issues agitated before the primary judge.

[23] The application for leave to appeal should be dismissed with costs.