(2) in the further finding that the respondent had sufficiently complied with the requirements of the Act in making his claim for compensation of 21 March; in particular, in finding that the service of the prescribed medical certificate of Dr Patroni on 29 April sufficiently complied with the 28-days requirement of s82(2) of the Act. 4. Section 82 of the Act provides - "(1) A claim for compensation shall - (a) be in the prescribed form; (b) unless it is a claim for compensation under section 62, 63 or 73, be accompanied by a prescribed certificate from a medical practitioner or other prescribed person, and (c) subject to section 84(3), be given to or served on the employer. (2) If a claim for compensation and a medical certificate under subsection 1(b) are not given and served at the same time, THE REMAINING DOCUMENT SHALL BE GIVEN OR SERVED ON THE

EMPLOYER WITHIN 28 DAYS AFTER THE FIRST DOCUMENT IS GIVEN OR SERVED AND the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given on the employer." (emphasis mine) 5. The words emphasized were inserted by amending Act no.78 of 1993; they constitute the only difference between the provision as it stood prior to 1 January 1994, and afterwards. The nature of the change is obvious; a time-limit is imposed on the service of the second document, here the prescribed medical certificate, where none existed before. As to the exceptions in s82(1)(b) it may be noted that s62 provides for claims for lump sum compensation for the death of a worker, s63 for additional benefits for a dependant child of a deceased worker, and s73 for an employer's obligation to pay the medical, surgical and rehabilitation costs incurred by his injured worker. 6. A PRELIMINARY MATTER: THE RESPONDENT'S NOTICE OF CONTENTION Notices of Contention are provided for by r83.16(3) of the Supreme Court Rules, viz:- "WHERE A RESPONDENT PROPOSES TO CONTEND (ON THE APPELLANT'S APPEAL) THAT A MATTER OF FACT OR LAW HAS BEEN ERRONEOUSLY DECIDED AGAINST HIM but does not seek a discharge or variation of a part of the judgment pronounced, he need not give a notice of cross-appeal, but shall - (a) give written notice of his contention to the appellant; and (b) give written notice to the appellant of the record of evidence or documents before the tribunal below relevant to his contention." (emphasis mine). 7. At a directions hearing on 2 August 1994 the issues on the appeal were defined, it was fixed to be heard on 30 August and it was ordered that:- "The Registrar of the Work Health Court deliver to the Registrar of the Supreme Court not later than 2 clear working days before the hearing of the appeal (30 August 1994) the following documents:- (i) Application to the Work Health Court of 4 May 1994; (ii) Employer's Answer dated 26 May 1994; (iii) Affidavit of George Michael Roussos sworn 17 June

1994 and annexures "A", "B" and "C"; (iv) Affidavit of Geoffrey Robert Clift sworn 10 June 1994 and annexures "A", "B", "C", "D", "E", "F", "G", "H" and "I"; (v) Interlocutory Summons dated 15 June 1994; (vi) Order of (his Worship) dated 27 June 1994; (vii) Reasons for Decision of (his Worship) given 27 July 1994." 8. The respondent filed a Notice of Contention on 26 August 1994, 4 days before the scheduled hearing of the appeal. It provided in essence that pursuant to r83.16(3) of the Rules, the respondent would contend that his Worship had FAILED TO DEAL WITH AND MAKE FINDINGS ON, THE RESPONDENT'S ALTERNATIVE SUBMISSIONS WHICH HE HAD MADE TO THE COURT, namely:- "(a) ... that the medical report of Dr McGeoch (served on 30 March) ... was in substantial compliance with Work Health Regulations Form 4, and that accordingly the respondent had satisfied the requirements of s82(2) of the Act (in that he had served the required medical report within 28 days of 21 March); and (b) ... that (his Worship) in any event had no power under the Act to dismiss that part of the (respondent's) Application (of 4 May 1994) seeking medical, surgical and rehabilitation treatment expenses, in that the requirements of s82(1)(b) do not apply to a claim for compensation under s73 of the Act." 9. The Notice of Contention stated that the respondent would contend that if this Court were to find that his Worship had erred in law in his reasons for decision of 27 July 1994 he would nevertheless have made the same decision (dismissing the appellant's application) if he had considered and upheld alternative submission (a) (p5); and, further, that the whole of the claim of 4 May 1994 could not have been dismissed if the further alternative submission (b) (p6) had been upheld. 10. Mr Tippett of counsel for the appellant objected to these issues being raised on the appeal. The matter was strenuously argued. It is unnecessary to set out the various submissions. 11. I consider it is clear from the words emphasized in r83.16(3) (p4) that a Notice of Contention is not the prescribed procedural mechanism to raise for consideration on appeal submissions (a) and (b) (p6) which had been raised before the Court but not decided. A Notice of Contention may be used only where matters of fact or law have been "erroneously decided against (a respondent)"; neither submission (a) nor (b) had been "decided". 12. This leaves for resolution the question whether it is nevertheless open to the respondent, as he contends, to argue the "alternative submissions" on the appeal with a view to upholding the Court's decision to dismiss the appellant's application, should the appellant succeed in its appeal against the grounds on which that decision was made. 13. The Supreme Court Rules, in conjunction with the Supreme Court (Rules of Procedure) Act and the Supreme Court Act, constitute an incomplete procedural code for the conduct of proceedings in this Court. They do not deal specifically with the situation where not all of a successful respondent's submissions have been ruled on below. To regulate every conceivable situation by Rules of Court is not practicable. Where the Rules regulating appeals are silent and the parties cannot agree on an approach to resolving the matter in issue, the Judge must decide on the procedure to be adopted and give directions - see r82.03 - but only if the matter can be properly raised on appeal. This in turn is determined by the common law, which I now consider. 14. In David Syme and Co Ltd v Lloyd (1985) 1 NSWLR 416 Kirby P said at pp420-421: "It is clearly established that A RESPONDENT TO AN APPEAL ... IS ENTITLED at the hearing of the appeal, TO RELY ON ANY GROUND TO SUPPORT THE DECISION OF THE COURT APPEALED AGAINST. There is a long line of authority, both in England and Australia, which makes it plain that WHERE A RESPONDENT IS CONTENT WITH THE JUDGMENT APPEALED FROM, HE MAY ON AN APPEAL, WITHOUT FILING APPEAL PROCESS HIMSELF, SUPPORT THE JUDGMENT ON A GROUND DIFFERENT TO THAT RELIED UPON BY THE

COURT BELOW, EVEN IF THAT COURT HAS NOT ADVERTED TO THE ALTERNATIVE BASIS OF ITS DECISION AT ALL: SEE FOR EXAMPLE, Waller and Son Ltd v Thomas (1921) 1 KB 541; Simpson v Crowle (1921) 3 KB 243 and Re The Solicitors Act 1932; Re Two Solicitors (1938) 1 KB 616 at 627. In Australia the point was made clearly in this Court by Jordan CJ in NRMA Insurance Ltd v BandB Shipping and Marine Salvage Co Pty Ltd [1947] NSWStRp 10; (1947) 47 SR (NSW) 273 at 282; 64 WN 58 at 62. Giving the judgment of the Full Court, Jordan CJ said, in respect of a ground of appeal raised during argument by a successful respondent: "It is true that this ground was not relied upon by the defendants below; but they are the respondents in the appeal and it has been repeatedly held THAT A RESPONDENT CAN SUPPORT THE JUDGMENT WHICH HE OBTAINED BELOW ON ANY GOOD LEGAL GROUND APPEARING UPON THE EVIDENCE, although he did not present it in the Court below." MINDFUL OF THE PROBLEM OF SURPRISE AND OF THE NEED TO ENSURE FAIR PROCEDURES, COURTS RESERVE THE POSSIBILITY OF IMPOSING CONDITIONS: SEE Waller and Son Ltd v Thomas (at 548)." (emphasis mine) 15. I interpose to observe that r83.03 clearly modifies the common law position, to some degree. However, there is nothing in Order 83 which deals with the position where a respondent seeks to rely on appeal on a matter of fact or law raised in the Court below but not dealt with by that Court. Kirby P continued at p421:- "However, the common law is plain. A RESPONDENT to an appeal, not seeking a variation of the judgment, order or determination appealed from, IS NOT OBLIGED TO FILE COURT PROCESS BUT CAN SUPPORT THE JUDGMENT UNDER ATTACK BY REFERENCE TO ADDITIONAL OR ALTERNATIVE ARGUMENTS OF LAW." (emphasis mine) 16. In Waller and Son Ltd v Thomas (supra) Lush J said at pp547-548:- "The difficulty is that the point was not taken by the defendant in the County Court, and therefore it is said by the appellant today that it is not open to him to raise it here as respondent on the appeal. But such a proposition, thus broadly stated, is unsound. It is true that an APPELLANT from the County Court cannot ask this Court to give effect to a point of law which he himself has not

raised in the Court below; it is a condition precedent that he should have taken the point before the County Court judge. No such rule, however, applies to A RESPONDENT, AND IF IT CAN BE SHOWN BY HIM THAT THE JUDGMENT CAN BE SUPPORTED ON SOME GOOD LEGAL GROUND APPEARING UPON THE EVIDENCE, THEN HE CAN SUBMIT THE POINT TO SUPPORT THE JUDGMENT, ALTHOUGH HE DID NOT PRESENT IT IN THE COURT BELOW. This difference exists between the appellant and the respondent, because, if the Judge (below) decides in favour of the respondent, there is no need to call the Judge's attention to other possible points; it is enough for (the respondent) to rely on the Judge's view of the law." (emphasis mine) 17. See also per McCardie J at pp551-552. I respectfully agree. I consider that it is open to the respondent to seek to rely on submissions (a) and (b) on p5, to support his Worship's decision. However, it is desirable to ascertain first whether the appellant has established any of its grounds of appeal; if it has not, Mr Barr's submissions (a) and (b) on pp5-6 need not be further considered. I turn first to what took place in the BACKGROUND TO THE APPEAL 18. (1) The pleadings in the Court The respondent in his Statement of Claim in his application of 4 May 1994, states as far as is relevant - "1. At all material times the Worker was employed by the Employer as a pearl diver operating out of Darwin in the Northern Territory of Australia. 2. In late September 1993, whilst diving for pearl oysters off Darwin in the course of his employment with the Employer, the Worker suffered decompression sickness. PARTICULARS OF INJURY OR DISEASE 3. By medical report dated 30 March 1994 Dr Graham McGeoch informed Jenny Dempsey of the employer that the worker, inter alia, suffered from decompression sickness with prolonged recovery complicated by secondary rotator cuff tendonitis and leaving residual weakness of the let shoulder and elbow. ... 4. As from the time of the injury in September 1993 to date and continuing the Worker has been totally and/or partially incapacitated for work. ... 6. By claim for compensation in the prescribed form and dated 21 March 1994 the Worker made a claim for compensation. 7. By form 5 notice pursuant to section 85 of the Work Health Act and forwarded to the Worker under cover of a letter from the Employer's Work Health Insurers dated 30 March 1994 THE EMPLOYER DISPUTED LIABILITY FOR THE CLAIM REFERRED TO IN PARAGRAPH 7 (SIC,6) HEREOF FOR THE FOLLOWING REASONS:- (i) THE CLAIM IS NOT MADE BECAUSE IT WAS NOT ACCOMPANIED BY A PRESCRIBED CERTIFICATE. (ii) IN ANY EVENT, THE EMPLOYER DENIES THAT YOU HAVE SUFFERED DECOMPRESSION SICKNESS ARISING OUT OF OR IN THE COURSE OF YOUR EMPLOYMENT WITH IT, OR AT ALL. (iii) IF YOU HAVE SUFFERED FROM SUCH DECOMPRESSION SICKNESS (WHICH IS DENIED) ... THE EMPLOYER DENIES THAT YOU ARE IN ANY EVENT INCAPACITATED FOR YOUR EMPLOYMENT WITH IT AS A RESULT OF THAT SICKNESS. 8. ON 26 APRIL 1994 THE WORKER'S SOLICITORS FORWARDED TO THE EMPLOYER'S SOLICITORS A PRESCRIBED MEDICAL CERTIFICATE PREPARED BY DR PETRONI (SIC, PATRONI). 9. The Worker contests the decision of the employer to deny his claim on the basis that he did not suffer decompression sickness (7(ii) above) or that if he did it does not incapacitate him (7(iii) above) and seeks:- (i) Weekly payments of compensation. (ii) MEDICAL SURGICAL (AND) REHABILITATION EXPENSES (UNDER S73). ..."(emphasis mine) 19. The appellant in its Answer of 26 May admitted pars 1, 6 and 7, denied par4, did not admit par2 above, and continued:- "7. The Employer denies paragraph 8 of the Statement of Claim and says rather that its solicitors Messrs. Ward Keller received on the 29th April 1994 a letter from Messrs. Cridlands dated 26th April 1994 enclosing a medical certificate in the prescribed form from a Dr. Patroni, which certificate was itself dated the 27th April 1994. 8. The Employer says that the Worker did not give or serve a medical certificate in the prescribed form on the Employer within 28 days after the claim for compensation was served on the Employer on the 21st April 1994 (sic, 21st March 1994). 9. ACCORDINGLY, THE EMPLOYER IN RELIANCE UPON SECTION 82(2) OF THE WORK HEALTH ACT (AS AMENDED) SAYS THAT THE CLAIM FOR COMPENSATION IS DEEMED NOT TO HAVE BEEN MADE AT ALL. 10. THE EMPLOYER SAYS THAT THIS HONOURABLE COURT HAS NO JURISDICTION PURSUANT TO SECTION 94 OF THE WORK HEALTH ACT OR PURSUANT TO SECTION 104 OF THE SAID ACT, OR AT ALL, TO

DEAL WITH THIS APPLICATION. 11. The Employer denies that the Worker is entitled to any of the remedies sought in paragraph 9 of the Statement of Claim or to any remedies at all. 12. The Employer seeks the following orders:- (i) THAT THE APPLICATION BE DISMISSED; (ii) that the Worker pay the Employer's costs of and incidental to the proceeding; (iii) such further or other order or orders as this Honourable Court deems meet." 20. On 15 June the appellant filed an interlocutory summons seeking, inter alia, "that the Worker's application be dismissed." The summons was heard by the Court on 20 June. I turn to the arguments then advanced. (b) The submissions to the Court 21. At that hearing Mr Tippett of counsel for the appellant relied on the affidavit of Mr Clift of 10 June 1994, and the annexures thereto. He submitted in essence that s82(2) (p3), in light of the purpose and scope of the Act, is mandatory in nature. Consequently, the respondent's failure to comply with the 28-days time-limit in s82(2), meant that the Court lacked jurisdiction to entertain the respondent's application under s104 because, since the claim for compensation of 21 March had not been validly made in accordance with s82, there was nothing for the Court to "hear and determine" under s94(1)(a), no dispute between the parties for it to resolve. The appellant's position was that the respondent had not made a valid claim. 22. In support, Mr Tippett relied on the following authorities: Attorney-General of (N.S.W.) ex rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 at pp 963-964 per Reynolds JA, analysing statutory pre-requisites in terms of their being mandatory or directory, and noting that the consequence of non-fulfilment of a mandatory pre-requisite was "invalidity of the act to which these requirements were precedent", the mandatory/directory classification being determined by the "scope and object of the statute (as the) only guides"; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at pp251-2 per Dawson J, to similar effect; and Perfect v Northern Territory of Australia [1992] NTSC 30; (1992) 107 FLR 428 at pp433-6. In the latter case Mildren J examined the scheme of the Act as it stood in 1992; he observed at p434 that the prescribed claim form "is really a blanket claim for whatever compensation a worker may be entitled to receive under the Act", and noted the significance of the requirement that a medical certificate accompany the claim; at pp435-6 he stated that "time-limits (in ss79-91), as well as the procedures laid down, must be strictly observed" and are "mandatory, and not directory", a conclusion which flowed from the scheme of the provisions as a whole and their objective, the nature of the language used - "'shall' is universally employed"

• and the consequences of breach. However, his Honour held that the then s85(10) which required an employer to give the worker a statement of his right to go to Court "at the same time" as it advised him that liability was disputed, was directory only.

Mr Barr of counsel for the respondent, opposing the appellant's application to dismiss the respondent's claim, relied on the affidavit of Mr Roussos of 17 June 1994 and the annexures thereto. He made 3 submissions. Two are set out as (a) and (b) on pp5-6. For present purposes only the third is relevant: that as a matter of statutory interpretation the 28-day period in s82(2) is "machinery or procedural in nature and - - thus directory rather than mandatory". Because s82(2) was directory in nature its effect was that "the claim (for compensation) is deemed not to have been made ... until (the) prescribed (medical) certificate is given", rather than the claim being "deemed not to have been made at all" once the 28 days in s82(2) had elapsed without the certificate being served, as the appellant submitted. It followed that service of the prescribed medical certificate of Dr Patroni on the appellant on 29 April - some 11 days after the expiration of the 28-day time period under s82(2) - meant that the claim of 21 March was then deemed to have been made. 24. In support, Mr Barr also relied on Perfect v Northern Territory of Australia (supra) and the Act itself, which he characterized as "remedial legislation", and to be construed beneficially, particularly in light of the fact that if the time-limit in s82(2) were construed as being mandatory an employer could rely on s182(1)(a) to prevent a worker from instituting proceedings to recover compensation under the Act (unless he managed to bring himself within s182(3)). 25. On 27 June his Worship delivered his decision, as follows:- "I haven't had an opportunity to reduce my reasons to writing, ... but in my opinion section 82 of the Work Health Act is directory, and in my opinion there has been substantial compliance with the provision. ... I consider that the fact that the medical certificate was served 39 days rather than 28 days after the claim was served constitutes substantial compliance.... The employer's application (to dismiss the worker's application for compensation) is dismissed." 26. His Worship said he would deliver reasons for decision as soon as practicable, and did so on 27 July. (c) The reasons for decision of 27 July 1994 27. His Worship confined his attention to the appellant's contention that the time-limit in s82(2) was mandatory and since the respondent had failed to comply with it, in that he had not served a prescribed medical certificate until 39 days after serving his claim, his application must be dismissed. His Worship first usefully reviewed the general principles, as laid down in the authorities, which apply when deciding whether a legislative provision is to be construed as mandatory or directory. He then turned to the construction of s82(2), and set out his reasons for his conclusion that it was directory, viz:- "The Work Health Act contains a number of provisions affecting a worker's right to compensation and right to claim compensation. Compliance on the part of the worker with Section 80(1) of the Act (requiring that notice of injury be given as soon as practicable) is a condition precedent to a worker's

entitlement to compensation. (See Maddalozzo v Maddick [1992] NTSC 46; (1992) 108 FLR 159 at 163). Section 182 of the Act is a procedural provision which places a limitation upon the maintenance of proceedings for compensation rather than upon the entitlement to compensation. It regulates the bringing of court proceedings (See Maddalozzo v Maddick at page 163). THERE IS A CLEAR RELATIONSHIP BETWEEN THE GIVING OR SERVICE OF A CLAIM FOR COMPENSATION (SECTION 82) AND SECTION 85. At page 164 of Maddalozzo v Maddick, Mildren J says:- "... 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 Section 85." Further at page 165 of the decision His Honour states: "Further, as I have already observed, UNLESS A CLAIM HAS BEEN MADE UNDER SECTION 82, which is deemed to be a notice of injury by virtue of Section 80(2), AND LIABILITY IS DISPUTED vide Section 85, NO PROCEEDINGS CAN BE VALIDLY COMMENCED. The right to commence proceedings, is, as I have explained in Perfect v Northern Territory of Australia [1992] NTSC 30; (1992) 107 FLR 428 conferred by Section 85(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 Section 80 nor made any claim for compensation pursuant to Section 82. 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." I pause to mention that the previous Section 82(2) provided: "If a claim for compensation and a medical certificate under subsection (1)(b) are not given or served at the same time, the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given to or served on the employer." The earlier provision fitted very neatly into the general scheme of the Act at the time. The giving of notice of injury (which could be given either independently of a claim for compensation or part thereof (s81 and s80(2))) was a condition precedent to entitlement to compensation (s80). The service of a claim for compensation was also an essential link in the general scheme of the Act. Its significance was three fold: firstly the service of the claim for compensation triggered the provisions of Section 85 of the Act, requiring the employer within a strict time limit to make a decision as to the worker's claim. One of the options available to a employer under Section 85 was to dispute liability. The service of the claim was critical because the right to claim compensation in the Work Health Act did not arise until after the Section 82 claim for compensation had been made upon the employer and the employer had disputed liability under Section 85. Secondly the service of the claim for compensation (including the medical certificate) put the employer in possession of sufficient material to enable it to make a decision in terms of one of the options mentioned in Section 85(1). Thirdly, the service of a claim for compensation was important in the context of the procedural machinery contained in Section 182 of the Act. Old Section 82(2) served a distinct purpose. Unless a claim for compensation was served on the employer, there was no right to commence proceedings because that right only arose when the employer disputed liability (an event contingent upon the service of the claim). Although Section 82 did not provide a time limit for the service of a claim for compensation, it was prudent of a worker to serve a claim promptly in light of the time limit (6 months after injury) prescribed by Section 182((1)(a)) of the Act. The essential difference between the previous Section 82(2) and the section in its present form is that the old section did not provide a time limit for the service of the claim or any constituent part, whereas the new Section 82(2) prescribes a time limit in relation to the service of the remaining document which forms part of the claim for compensation. The employer argues that compliance with the 28 days time period prescribed by Section 82(2) is mandatory, and must be strictly complied with. The employer sought to find support for its contention in the observations made by Mildren J in Perfect v The Northern Territory of Australia [1992] NTSC 30; (1992) 107 FLR 428. There His Honour had made some general comments about the mandatory nature of the provisions contained in Division 5 of Part V of the Work Health Act (ss79-91): "One of the objects of Division 5 of Part V of the Act ss79-91 is to ensure that a workers claim for compensation is dealt with speedily by his employer and to that end, time-limits are provided within which the

employer must consider the claim, and either accept it or reject it, or seek further information. In my opinion, THESE TIME LIMITS, AS WELL AS THE PROCEDURES LAID DOWN, MUST BE STRICTLY OBSERVED, and if they are not, s87 deems the employer to have accepted liability, with the consequence that he must commence weekly payments, in accordance with the Act. THAT THE PROVISIONS ARE MANDATORY, AND NOT DIRECTORY, IS APPARENT, not only from the scheme of the provisions taken as a whole and the objective of the scheme to which I have referred, but from the language employed by Parliament in the relevant sections, where the word "shall" is universally employed, and because breaches incur penalties, either because the breach is an offence, or because of the deeming effect of s87, and because interest may become payable under s89 or pursuant to s109" (at pp435- 6 of the decision). His Honour's observations were primarily directed at those provisions which prescribed time limits. Section 82(2) as it was then imposed no time limit. To describe Section 82(2) as a mandatory provision was apt in one sense: the section had to be strictly complied with because no right to claim compensation in the Work Health Court could arise until a claim for compensation had been served on the employer, and the employer had disputed liability under Section 85 of the Act. THE NEW SECTION 82(2) REMAINS MANDATORY IN THE SAME SENSE AS THE PREVIOUS PROVISION. THE QUESTION IS WHETHER, GIVEN THE NEW WORDING OF THE SECTION THE MANDATORY NATURE OF THE SECTION HAS BEEN EXTENDED TO REQUIRE STRICT COMPLIANCE WITH THE PROCEDURE THAT THE REMAINING DOCUMENT BE SERVED WITHIN 28 DAYS AFTER SERVICE OF THE FIRST DOCUMENT. It is worth noting that in Perfect v Northern Territory of

Australia Mildren J observed (at pp435-6) that the mandatory character of the procedural provisions which contained time limits was apparent from a number of matters: (1) "the scheme of the provisions taken as a whole and the objective of the scheme ..." I.E. TO ENSURE THAT A WORKER'S CLAIM FOR COMPENSATION IS DEALT WITH SPEEDILY BY HIS EMPLOYER; AND (2) the USE OF AFFIRMATIVE LANGUAGE in each of the provisions; and (3) THE PROVISION OF PENALTIES FOR A BREACH OF THE PROVISIONS. THE REASONS WHY HIS HONOUR CONSIDERED THE PROVISIONS TO BE MANDATORY MUST BE FIRMLY KEPT IN MIND. If compliance with the 28 day period in new Section 82(2) is mandatory then that represents a substantial departure from the regime that prevailed when the earlier Section 82(2) was in force. Under the previous Section 82(2) it was not necessary to serve on the employer a claim for compensation and a medical certificate at the same time - either document could be served at different times. Furthermore, where both

documents were not served at the same time, there was no restriction on the time within which the outstanding document was to (be) served on the employer. The only proviso in the case where the documents were served separately was that the claim of compensation was not deemed to have been made until the outstanding document had been served on the employer. I DO NOT BELIEVE THAT THE INSERTION OF THE 28 DAY PERIOD IN THE NEW SECTION 82(2) WAS INTENDED TO SO DRAMATICALLY CHANGE THE EARLIER REGIME THAT A FAILURE TO STRICTLY COMPLY WITH THE TIME LIMIT MEANT THAT NO CLAIM FOR COMPENSATION HAD BEEN MADE AND A WORKER HAD TO START AFRESH. THE MAKING OF SECTION 82(2) A MANDATORY PROVISION DOES NOT SIT COMFORTABLY WITH THE SCHEME OF THE VARIOUS PROVISIONS OF THE ACT TAKEN AS A WHOLE AND WITH THE OBJECTIVE OF THAT SCHEME. THE OBJECTIVE OF THE SCHEME OF THE ACT WAS, AND STILL IS, THAT A WORKER'S CLAIM FOR COMPENSATION IS TO BE DEALT WITH SPEEDILY BY AN EMPLOYER. A prerequisite is service upon the employer of both a claim for compensation and a medical certificate to enable the employer to be furnished with sufficient information to determine if the worker is entitled to weekly payments. THE PURPOSE OF THE 28 (DAY) PERIOD IS TO ENSURE A DEGREE OF CONTEMPORANEITY BETWEEN THE CLAIM FOR COMPENSATION AND THE MEDICAL CERTIFICATE SO THAT THE EMPLOYER IS GIVEN A COMPLETE AND CURRENT PICTURE OF THE WORKER, that is to say, whether the worker stopped work due to his injury, what allegedly caused the injury, what the injury is, whether the injury accords with the alleged cause, whether the worker has returned to work, whether the worker is fit for work, and if not the period during which the worker will remain unfit for work. IT FOLLOWS THAT IF THE TEMPORAL NEXUS BETWEEN THE TWO DOCUMENTS IS (TOO) REMOTE THE EMPLOYER MAY BE GIVEN AN INACCURATE PICTURE OF THE WORKER'S CURRENT POSITION. I CONSIDER THAT WAS THE PURPOSE BEHIND THE 28 DAY PERIOD. HOWEVER I DO NOT READ SECTION 82(2) AS SAYING THAT SERVICE OF ONE OF THE DOCUMENTS MORE THAN 28 DAYS AFTER THE SERVICE OF THE OTHER DOCUMENT NECESSARILY AMOUNTS TO SUCH A DEGREE OF NON-CONTEMPORANEITY THAT A WORKER MUST START AGAIN, THIS TIME COMPLYING WITH THE STRICT LETTER OF SECTION 82(2). WHETHER SERVICE OF ONE OF THE PRESCRIBED DOCUMENTS BEYOND THE TIME LIMIT CONSTITUTES AN ABSENCE OF CONTEMPORANEITY IS A QUESTION OF DEGREE. IN OTHER WORDS IT RAISES THE QUESTION OF SUBSTANTIAL COMPLIANCE. FOR THIS REASON I CONSIDER THE PROVISIONS OF SECTION 82(2) ARE DIRECTORY RATHER THAN MANDATORY. I CONSIDER THAT NOTWITHSTANDING THE USE OF THE AFFIRMATIVE "SHALL" THE SYNTAX OF SECTION 82(2) POINTS TO THE PROVISION BEING DIRECTORY IN CHARACTER. THAT PART OF THE SECTION THAT PROVIDES THAT "THE CLAIM FOR COMPENSATION SHALL BE DEEMED NOT TO HAVE BEEN MADE UNTIL THE DAY ON WHICH THE REMAINING DOCUMENT IS GIVEN TO OR SERVED ON THE EMPLOYER" IS POSTERIOR TO THE 28 DAY TIME LIMIT IMPOSED BY THE SECTION. THAT STRONGLY SUGGESTS THAT THE EMPHASIS OF SECTION 82(2) IS ON THE NEED FOR BOTH DOCUMENTS TO BE SERVED BEFORE A CLAIM FOR COMPENSATION IS DEEMED TO HAVE BEEN MADE, AND ALTHOUGH THERE IS A TIME LIMIT ON THE SERVICE OF AN OUTSTANDING DOCUMENT IN MY OPINION THE PROVISION IS DIRECTORY. NOT ONLY DO I CONSIDER THAT THE DIRECTORY NATURE OF SECTION 82(2) IS CONSISTENT WITH THE GENERAL SCHEME OF THE ACT, BUT THE CONSEQUENCES OF HOLDING THE PROVISION TO BE MANDATORY WOULD RESULT IN INCONVENIENCE, AND IN SOME CASES INJUSTICE TO A WORKER WHO HAD FILED THE REMAINING DOCUMENT IN SUPPORT OF HIS CLAIM ONE DAY LATE. THE CONSEQUENCE OF REQUIRING STRICT COMPLIANCE WITH THE SECTION WOULD BE THAT THE WORKER WOULD HAVE TO MAKE HIS CLAIM AFRESH. Having found the provisions of Section 82(2) to be directory, I find that the service of the (prescribed) medical certificate 39 days after the service of the claim for compensation constituted substantial compliance with (the 28-day period in) Section 82(2). SERVICE OF THE TWO DOCUMENTS SUFFICIENTLY MET THE REQUIREMENT OF CONTEMPORANEITY, and 39 days after the service of the claim the respondent was in possession of sufficient material to

determine whether the worker was entitled to weekly payments of compensation. On the day the medical certificate was served (29 April 1994) the claim for compensation was deemed to have been made. For these reasons the employer's application is dismissed. As costs should follow the event, the Court orders the employer to pay the worker's costs of and incidental to the application." (emphasis mine) 28. I turn next to the arguments on the appeal against this decision. The appellant's submissions on appeal (a) The first ground of appeal 29. Is s82(2) directory or mandatory? Mr Tippett's submissions were along the lines of his submissions to the Court; see pp12-13. The Court erred in law in finding that the provisions of s82(2) are directory. They are to be construed as mandatory, when regard is had to - "... the scheme of the Act, ... the intent of the legislature (gleaned from the scope and object of the Act) and the consequences (it intended to) flow from the failure to ... comply with the requirements (of s82(2))" and to the prima facie meaning of the word "shall". That is, a worker who does not comply with s82(1)(b) must comply strictly with the requirements of s82(2), by serving a prescribed medical certificate within 28 days after the date on which he served his claim form on his employer. The consequence, if the worker does not do so, is that the Court lacks jurisdiction to deal with any subsequent s104 application he makes to recover compensation, as he has no claim "on foot" for the Court to "hear and determine" under s94(1)(a). This does not prevent the worker who fails to serve the medical certificate within the 28-day period from claiming compensation under the Act; he is simply required to serve a new claim for compensation and to comply with the requirements of s82(1)(b) or s82(2), before commencing proceedings under s104 to recover compensation, if the employer disputes liability to pay compensation, under s85. 30. This construction of s82(2) as mandatory is supported by the legislature's intention to render the scheme more workable than it had been before the 1993 amendment introducing the 28-day period (p3). The intention of the 1993 amendment was to introduce a greater degree of certainty between employers and workers as regards claims for compensation. To construe s82(2) as directory would not achieve that intention in that it would create uncertainty within the scheme: where the medical certificate was served outside the 28-day period the employer would have to decide whether in the circumstances there had been 'substantial compliance' with s82(2); that was always a question of degree, and increased the scope for litigation which the Act sought to minimize. 31. As to the consequences which would flow from a failure to comply with the mandatory provisions of s82(2), Mr Tippett submitted as follows:- (1) The worker is deemed not to have made a claim for compensation. (2) The employer is therefore not obliged to take any of the steps required by s85. (3) The worker cannot commence Court proceedings to recover compensation. The relevant provisions appear to be ss104 and 94(1)(a); as Mildren J said in Maddalozzo v Maddick (supra) at 165:- "... 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 (under s82(1)) and the employer has disputed liability under s85". (4) The employer is not required to meet any of his obligations set out in Part V Division 4 of the Act (ss75- 78). 32. He submitted that if s82(2) is given mandatory effect it ensures that the claim for compensation and prescribed medical certificate are served proximately in time, with the following beneficial consequences: (1) The employer can exercise his rights pursuant to s.85, that is, he can investigate the claim to satisfy himself that the medical condition as diagnosed is consistent with the stated injury, or that it actually arose out of or in the course of the worker's employment. The medical certificate in the prescribed Form 4 deals with essential elements in a worker's claim. It describes the type of injury diagnosed following examination, whether the medical condition as diagnosed is consistent with the cause described by the worker as recorded in the certificate, the period of time it is considered the worker will be unfit for work, whether the worker is fit for any alternative work and, if so, the limitations thereon. The certificate also deals with rehabilitation measures. I accept that it is an integral part of the scheme of the Act, in that by providing information which an ordinary medical certificate would not provide, it assists the employer to assess the claim for compensation. (2) The employer is able to consider what steps should be taken pursuant to s85, before the causal or medical evidential trail "goes cold". (3) The unsatisfactory effect of the former s82(2), which permitted claims to remain outstanding for years until perfected by the service of the second document, would be remedied. The new s82(2), with its strict regime of 28 days at most between claim and medical certificate, means that the employer is not faced with the possibility of a claim for compensation being perfected after a long delay. After the 28-days has elapsed the employer may cease the vigilance engendered by the receipt of the first document, stemming from the need to made arrangements to meet possible obligations to rehabilitate the worker, and find suitable employment for him, as required by Part V Division 4 of the Act. 33. Mr Tippett then contrasted the situation if s82(2) were directory in effect, so that substantial compliance with the 28-day period would be sufficient. He posed the following questions:- (1) What does 'substantial compliance' involve?

(2) What is the result if the worker is found not to have substantially complied with s82(2)? 34. As to these matters he observed that the Act does not set out criteria by which the question of substantial compliance may be determined. He made the following points:- (a) It may be postulated that substantial compliance depends upon the facts of the particular case. How does an employer determine the cases in which there has been substantial compliance, and those in which there has not? Under the old s82(2) there was certainty, albeit most unsatisfactory, as the provisions of section 85 would come into play on service of the second document even if this occurred months, if not years, later. If the current s82(2) is directory there is no certainty as to the commencement of the critical time limits in the s85 provisions. The question whether there has been substantial compliance would have to be litigated. The employer could not conclude that in the particular circumstances of the case the worker has on a certain date substantially complied with s82(2) and then assume that the provisions of section 85 have been thereby triggered. The time limits for action under s85 turn on the date of receipt of a valid claim for compensation. Only then can the employer fulfil its legal obligations within the appropriate time limits of s85, and avoid being caught by section 87. (b) What if there is held to have been no substantial compliance with s82(2)? The worker is not thereby prevented from pursuing a claim, though he must start again. However, the question whether there had been substantial compliance, and the consequential question whether the employer was obliged to have responded under s85, may have had to have been litigated in the intervening period. 35. Mr Tippett submitted that a construction that the requirements of section 82(2) are mandatory, by way of contrast - (a) excludes any uncertainty; (b) eliminates the evil of imperfected claims languishing in the system; (c) obliges the worker when claiming to 'put his house in order' in much the same way as the employer must by virtue of section 85, and therefore provides balance in the scheme of the Act, enhances the speed at which the worker is compensated and/or rehabilitated, and/or reduces the interval between the occurrence of the injury and the time at which the worker becomes entitled to take proceedings under s104 to assert his right to compensation. It also reduces the time within which the worker faced with a denial of liability under s85 is able to apply for interim payments

under s104; and (d) means that should the worker fail to comply with the time limit in s82(2), he suffers only by having to start again by lodging a claim. 36. In summary, Mr Tippett submitted that the 1993 amendment to section 82(2) was intended to be significant, and the time limit of 28-days it imposed was intended to play an integral part in the implementation of the scheme of the Act. To construe s82(2) as directory would deprive the scheme of its intended emphasis upon efficiency and speed. Although a mandatory construction of s82(2) meant that a worker might occasionally suffer inconvenience, the degree of certainty and clarity it engenders "benefits both workers and employers." (b) The second ground of appeal 37. If s82(2) is directory, was there sufficient compliance in the circumstances? 38. Mr Tippett's submissions were as follows. 39. If s82(2) is directory in nature, the Court nevertheless erred in law in finding that the respondent had substantially complied with the 28-day time limit. This was because it failed to have regard to the evidence, which led to a conclusion that the prescribed medical certificate of 29 April related solely to the second claim form of that date. The Court erred in that by failing to have regard to that evidence, and by erroneously characterizing the employer's complaint as "that the worker served a medical certificate 39 days after the (first) claim was served", it erroneously proceeded on the assumption that the prescribed medical certificate of Dr Patroni of 29 April "related to the first claim of 21 March." Mr Tippett submitted that "the error (lay) simply in the way the (Court) used the evidence in order to arrive at (its ultimate) conclusion." Consequently, the Court had misled itself "as to the relevance of the (prescribed medical certificate) being served with the second claim", when considering whether there had been substantial compliance. 40. In support of this submission Mr Tippett referred to a letter of 21 April 1994 from the respondent's solicitors to the appellant's solicitors (Annexure "C" to Mr Clift's affidavit of 1 June 1984), in which it is stated:- "We propose to place (the respondent's) claim on an even keel by preparing a fresh Work Health claim form and serving that together with a medical certificate on the employer." 41. It is common ground that the second claim form with a prescribed certificate by Dr Patroni was served on the appellant on 29 April 1994. Mr Tippett conceded that the second (abandoned) claim of 29 April was substantially the same as the first, of 21 March. 42. He submitted that in these circumstances to permit the respondent to rely on the first claim form of 21 March and the prescribed medical certificate of 29 April, would be to allow him to circumvent the intended purpose of the Act. 43. I should say that it is clear that this point was not taken before the Court below. At transcript pp2, 3 and 5 of 20 June 1994 reference is made to the affidavit of Mr Clift, to establish that a prescribed medical certificate accompanied the second claim form, the latter was subsequently abandoned, and that the respondent sought to rely on the first claim form and the prescribed certificate to place its claim "on foot". However, no point was taken by the appellant, in the pleadings or at the hearing, that the certificate was solely related to the second claim form, if s82(2) were construed as directory. On this aspect of an appellant raising a point not sought to be argued below, I note Water Board v Moustakas [1988] HCA 12; (1986) 77 ALR 193 at 196-197. The respondent's submissions on appeal (a) The first ground of appeal 44. Is s82(2) directory or mandatory? 45. Mr Barr submitted that the Court was correct in finding that s82(2) is directory rather than mandatory in nature, for the reasons stated by his Worship at pp15-20. 46. He submitted that the consequence of non-compliance with s82(2) was that the claim for compensation was deemed not to have been made until the prescribed medical certificate was actually served. Consequently, in this case it was not until 29 April 1994 (when Dr Patroni's prescribed medical certificate was served) that the claim of 21 March was "on foot", and the time-limit for action by the employer under s85(1) commenced to run. I observe in passing - it was not mentioned by the parties

• that this may have the effect in this case that the respondent's application of 4 May is 'caught' by s182(1)(a) in any event, and he must meet the requirements of s182(3).

47. Mr Barr made 3 broad submissions in support of a 'directory' construction of s82(2), viz:- (1) The Act is remedial in nature; see Foresight Pty Ltd v Maddick 1991) 79 NTR 17 at 24. It sought to remedy the consequences flowing from the injury in the workplace. Consequently, to accept the appellant's construction of s82(2) - " ... would be contrary to the whole scheme of the Act (and to the legislature's intention, because it would deprive) a worker ... of his rights which accrue when he makes the claim, because he is late in providing a (medical) certificate." (2) The Minister's Second Reading speech to the Bill which introduced, inter alia, the 1993 amendment to s82(2) can legitimately be referred to, to ascertain the mischief sought to be remedied by the amending legislation. Mr Barr referred in support to TCN Channel Nine Pty Ltd v AMP Society [1982] FCA 169; (1982) 42 ALR 496 at pp507-508 where the Full Court of the Federal Court admitted into evidence the Minister's Second Reading speech and his Explanatory Memorandum, for the purposes of "identifying the mischief", citing Wacando v Commonwealth of Australia [1981] HCA 60; (1981) 37 ALR 317 at 335 and Federal Commissioner of Taxation v Whitford's Beach Pty Ltd [1982] HCA 8; (1982) 39 ALR 521 at 533-4 per Mason J; and Wright v McLeod (1983) 74 FLR 146 at 190-1 per Sheppard J to the same effect. I note KP Welding Construction Pty Ltd v Herbert [1995] NTSC 1; (1994-95) 102 NTR 20 at 40-1, citing authorities in this jurisdiction also to the same effect.
48. I accept that the Minister's speech may be looked at, to ascertain the mischief. Mr Barr submitted that the Minister's speech does not support the appellant's submission (pp23-5) that the 1993 amendment was enacted to remove, inter alia, the evil of imperfected claims languishing in the system because they had not been promptly followed up by prescribed medical certificates. Section 182 of the Act always had prevented such a state of affairs arising, in the long term. The evil sought to be dealt with by the 1993 amendment was rather "the evil of technicalities holding up the expeditious handling of workers claims". I should state shortly that I have read the Minister's speech and consider that it does not support either the appellant or the respondent.

He submitted that this interpretation accorded with the "literal meaning" of the Act. 51. (4) If the legislature had intended to remedy the mischief for which the appellant contends:- "... (the Minister) would have ... referred to (that mischief specifically) in the Second Reading speech ... which (he) has not ... (or) the legislation would have (expressly made it) clear." 52. In summary, Mr Barr submitted that bearing these 4 submissions in mind and the effect of s182, "it is quite clear that this amendment ought not to be given the construction contended for by the appellant". (b) The second ground of appeal 53. if s82(2) is directory, was there sufficient compliance? As to Mr Tippett's submission at pp27-8 Mr Barr submitted that the uncontroverted evidence in par7 of Mr Clift's affidavit represented a "concession" by the appellant that "in fact, the certificate (of Dr Patroni) could be referable to the (first) claim." In par 7 Mr Clift, the appellant's solicitor, stated - 7. "A copy second undated Workers' Compensation Claim Form

was delivered to the offices of Messrs Ward Keller on 29 April 1994 under cover of a letter from Messrs Cridlands dated 26 April 1994. Enclosed with that letter was a copy medical certificate in the prescribed form apparently prepared by a Dr Patroni and dated 27 April 1994 said to relate to the Worker's alleged injury. ACCORDINGLY, THE MEDICAL CERTIFICATE REQUIRED BY SECTION 82(2) ... TO BE GIVEN TO THE EMPLOYER WITHIN 28 DAYS OF THE GIVING OF THE AFORESAID FIRST CLAIM FOR COMPENSATION WAS IN FACT NOT GIVEN TO THE EMPLOYER UNTIL THE EXPIRATION OF 39 DAYS FROM THAT DATE." (emphasis mine) 54. Mr Barr also submitted that the submission by the appellant at pp27-8 had not been raised before the Court. 55. Mr Barr submitted that even if the point had been raised before the Court and Mr Clift had not made the concession in par7 of his affidavit, the prescribed medical certificate, which relates to the injury and not to a claim, stood on its own. Consequently, Dr Patroni's certificate could simply be "married" to the first claim, to put the respondent's claim "on foot". 56. The appellant's submissions in reply: Mr Tippett in reply made 3 broad submissions as follows:- (1) The Minister's Second Reading speech generally supported the interpretation for which the appellant contended. I have indicated already (p31) that I do not accept this. (2) Any hardship faced by a worker who served his second document outside the 28 days allowed by s82(2) and was then met, when he started again and ultimately applied to the Court, by an objection under s182(1)(a) to the competence of proceedings, would be substantially ameliorated by the fact that s182(3) permits the time limit in s182(1)(a) to be extended for "reasonable cause". (3) To construe s82(2) as the respondent contended would be to return "the position effectively to what it was prior to the 1993 amendment". Conclusions on the grounds of appeal (p3) (a) Ground (1) Is s82(2) directory or mandatory? 57. Ground (1) of the appeal involves the proper construction of s82(2). I agree with Mr Barr that the Act should be given a beneficial construction. As to the approach, I respectfully apply the observations of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation [1981] HCA 26; (1980-81) 147 CLR 297 at 320-321: "THE FUNDAMENTAL OBJECT OF STATUTORY CONSTRUCTION IN EVERY CASE IS TO ASCERTAIN THE LEGISLATIVE INTENTION BY REFERENCE TO THE LANGUAGE OF THE INSTRUMENT VIEWED AS A WHOLE. BUT IN PERFORMING THAT TASK THE COURTS LOOK TO THE OPERATION OF THE

STATUTE ACCORDING TO ITS TERMS AND TO LEGITIMATE AIDS TO CONSTRUCTION. The rules (of construction), as D.C. Pearce says in 'Statutory Interpretation', p14, are no more than rules of common sense, designed to achieve this object. They are not

rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction (to that to which a literal interpretation gives rise) it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature. On the other hand, when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative (to a literal) interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the

statute, including the policy which may be discerned from those provisions. QUITE OBVIOUSLY QUESTIONS OF DEGREE ARISE. IF THE CHOICE IS BETWEEN TWO STRONGLY COMPETING INTERPRETATIONS, AS WE HAVE SAID, THE ADVANTAGE MAY LIE WITH THAT WHICH PRODUCES THE FAIRER AND MORE CONVENIENT OPERATION SO LONG AS IT CONFORMS TO THE LEGISLATIVE INTENTION. IF, HOWEVER, ONE INTERPRETATION HAS A POWERFUL ADVANTAGE IN ORDINARY MEANING AND GRAMMATICAL SENSE, IT WILL ONLY BE DISPLACED IF ITS OPERATION IS PERCEIVED TO BE UNINTENDED." (emphasis mine) 58. I note that Kirby P said in Nikolovsky v GIO of NSW (1992) 28 NSWLR 549 at 560: "Ultimately the duty of the Court is to uphold the will of parliament as expressed in the language of its enactment. The Court has no legitimacy to subvert that will as so expressed. It can and should endeavour to give effect to the apparent purpose of parliament." 59. In Hunter Resources Ltd v Melville (supra) at p95 Dawson J (with whom Toohey and Wilson JJ agreed) observed that:- "The question whether a provision is mandatory or directory must nevertheless be ONE OF INTENT TO BE GLEANED FROM THE SCOPE AND OBJECT OF THE STATUTE: Caldon v Pikell (1877) 2 CPD 562 at 566. IT IS A QUESTION OF WHAT CONSEQUENCES, IF ANY, WERE INTENDED TO FLOW FROM THE FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENT ... ". (emphasis mine) See also Mason CJ and Gaudron J at p90. 60. A mandatory procedural requirement is one the breach of which necessarily invalidates the process to which it relates; a directory procedural requirement is one which does not necessarily have that effect. This distinction goes back perhaps as far as the reference in Hale's "History of the Pleas of the Crown" (1736) Vol 2, p50 to certain legislative provisions as "only directive and in the affirmative". A directory requirement must also be complied with, but it is sufficient compliance if it is "obeyed or fulfilled substantially", as Lord Coleridge CJ put it in Woodward v Sarsons (1875) LR 10 CP 733 at 746. 61. The characterization of s82(2) as directory or mandatory is determined according to its intended consequences: did the legislature intend that failure to lodge a medical certificate in the prescribed form within the 28 days allowed, meant that no valid claim had been made? Or did it intend that the claim be deemed to have been made when the medical certificate was ultimately lodged outside the 28-day period, but in substantial compliance with that time limit? 62. I acknowledge the force of his Worship's reasoning at pp15-20. Nevertheless, with great respect, I am unable to agree with his conclusion that s82(2) is merely directory in nature. I consider that the time limit of 28 days is mandatory in the sense that failure to comply with it means that no valid claim for compensation has been made or served. The consequences are that the employer's obligations under ss84 and 85 (which flow from the receipt of a valid claim) do not arise, ss87, 91 and 91B have no application, there is no claim for compensation for the Court to "hear and determine" under s94(1)(a), and therefore no application which may properly be lodged by the worker under s104(1). These are consequences which I consider the legislature must be taken to have intended in the event of non-compliance with s82(2). 63. This construction of s82(2) accords, I think, with general principles. Where an Act confers on a worker a right or benefit which he would not have had at common law, in construing the Act any conditions on the accrual on that right or benefit, unless purely formal, are mandatory; and the right or benefit will not accrue if those conditions are not complied with. 64. I respectfully adopt his Worship's statement of general principles and differ only in the application of those principles to s82(2). I agree with his Worship's observations at pp15-17. I differ from his view on p18 in that I consider that the introduction of the 28-day period into s82(2) by the 1993 amendment was deliberately intended to bring about "a substantial departure from the (previous) regime" under s82(2). Accordingly, I respectfully differ from his Worship's opinion at p19 that the amendment was not - "intended to so dramatically change the earlier regime that a failure to strictly comply with the time limit meant that no claim for compensation had been made and a worker had to start afresh." 65. His Worship considered at p19 that a view that compliance with s82(2) was mandatory would "not sit comfortably" with the objective of the scheme in the Act "that a worker's claim for compensation is to be dealt with speedily by an employer." I respectfully disagree. The Act is characterized by the imposition of time limits intended to be strictly adhered to and there is no good reason for s82(2) to be construed differently. 66. I agree with his Worship's observation (p19) that the purpose of the 28-day period in s82(2) - "... is to ensure a degree of contemporaneity between the claim for compensation and the medical certificate so that the employer is given a correct picture of the worker." 67. His Worship treated the question of contemporaneity as "a question of degree" and considered that it "raises the question of substantial compliance." I respectfully differ; I consider that the scheme of the Act is to require strict compliance with the time limits it imposes, and that s82(2) articulates the limits of the acceptable "degree of contemporaneity." 68. I respectfully differ from his Worship's view at pp19-20 as to the effect of the words in s82(2) - "... the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given or served on the employer." 69. To my mind, this refers to the actual date of service within the 28-days period allowed. 70. It is true, as his Worship pointed out at p20, that if compliance with the time limit in s82(2) is mandatory, a worker who does not comply has "to make his claim afresh." I do not consider that that consequence is properly characterized as an "inconvenience" or an "injustice" in the circumstances. The worker must start again. If ultimately he is met by an objection under s182(1)(a) he will have to establish that his failure to observe the s82(2) time limit was due to a "reasonable cause". I do not consider that to place him under that obligation in those circumstances would be an extraordinary result which the legislature could not have intended, such as to require that "shall" in s82(2) should not be given its ordinary meaning. That consequence is not an inconvenience so great as to show that the legislative intention could not have been to use "shall" in its ordinary meaning. The dictates of common sense and practical utility do not point to "shall" being construed as merely facultative in this instance. The purpose of the Act is not defeated, but the defaulting worker may have an additional problem if he fails to comply with s82(2). 71. I do not consider that the practical outcome of a mandatory construction of s82(2) is more likely to be adverse than beneficial in relation to the system instituted by the Act. I accept in general Mr Tippett's submissions at pp21-7. I accept that the Act is concerned with speed and the certainty of consequences; I consider that these are promoted by a strict adherence to the time-limit in s82(2). 72. I consider that the purpose of the 1993 amendment to s82(2) was to institute a specific time limit within which the remaining document was to be served on the employer. Reading ss82(1)(a) and (2) together, the Act contemplates that ordinarily the claim and a medical certificate in the prescribed form will be "served at the same time". If not, the claim for compensation "is deemed not to have been made" unless the second document is served on the employer within 28 days after the first. The claim is then deemed to have been made on "the day" on which the second document is served. I consider that this regime clearly points to a mandatory construction of the 28-day requirement. 73. For these reasons I uphold the first ground of appeal. (b) Ground (2) If s82(2) is directory, was there sufficient compliance in the circumstances? 74. It is unnecessary to deal with this ground, which proceeds on the alternative basis that the time limit in s82(2) is directory only. If it were necessary to do so, I do not consider that the sole point relied on by Mr Tippett at pp27-8 should be entertained since it was not raised below; if it were to be entertained, I see no merit in it and would reject it. 75. I now return to the respondent's "alternative submissions"; see pp 4-9. 76. THE RESPONDENT'S ALTERNATIVE SUBMISSIONS (A) AND (B) AT PP5-6 As to alternative submission (b) at p6, Mr Tippett submitted that the words "unless ... 73" in s82(1)(b) (p3) operate as an exception to the general rule set out in s82(2); the exception was made because in the nature of things a prescribed medical certificate would not be of any assistance in resolving the issues raised by claims for compensation under ss62, 63 or 73. 77. Mr Barr also submitted that s82(1)(b) operates as an exception to s82(2), in that a claim for compensation for medical etc expenses under s73 does not need to be accompanied by a medical certificate. This point was squarely raised before the Court. Mr Barr submitted that even if one of the grounds of appeal were upheld, the application of 4 May (which claimed, inter alia, medical expenses etc under s73) could not be dismissed because under s82(1)(b) it was not necessary to serve a prescribed medical certificate in connection with a claim under s73. In support, he relied on par9(ii) of the Statement of Claim (p10), the affidavit of Mr Clift (in particular Annexure "H") and the provisions of s82(2). I observe in passing that the words "unless ... 73" in s82(1)(b) clearly set out exceptions to the claims for compensation which are required by s82(1)(b) to be accompanied by a medical certificate; s82(2) is directed only at the other claims which fall within the scope of s82(1)(b). 78. These submissions (a) and (b) have not been ruled on by the Court. The normal consequence of upholding a ground of appeal which goes to the essence of the reasoning which led a Court to its decision, is that the decision appealed against is reversed. That is what the appellant seeks. The decision of the Court of 27 June is unsoundly based. The respondent is nevertheless entitled to have his submissions (a) and (b) ruled on; they go to the decision to be made by the Court on the appellant's application. It is desirable I think that the Court should deal with those submissions, rather than that I should deal with them here. Alternative submission (a) involves the question whether Dr McGeoch's certificate was in "substantial compliance" with the prescribed form of certificate, a matter on which reasonable minds may well differ; this Court has a restricted role under the Act. ORDERS 79. Ground of appeal no.(1) is upheld. The appeal is allowed on that ground. The decision of the Court of 27 June 1994 dismissing for the reasons stated on 27 July the appellant's application of 20 June, is quashed and set aside. That application remains to be dealt with. The case is remitted to the Court in order that that application may be further dealt with, in accordance with the terms of this judgment.