Perfect v Northern Territory [1992] NTSC 30 | Case summary

Worship doubted whether he had power to deal with that issue on an interim basis, and even if the power existed, his Worship doubted whether an order for interim weekly payments was an appropriate remedy upon proof of a breach of s61. 12. An appeal lies to this Court from a "decision or determination of the court on a question of law": s116(1). Mr Trigg, on behalf of the respondent, raised in his submissions that the power to order or refuse to order interim payments was discretionary, and that the findings of the magistrate were not final. This raised a question in my mind as to what were the relevant considerations to be taken into account in deciding whether or not to make an interim order. Mr Trigg submitted that at the least, the appellant had to show a prima facie entitlement to an ongoing award of weekly payments for continuing incapacity, and that it would also be relevant to take into account hardship, or the lack of it, to the applicant if an interim order was made or refused, the strength of the appellant's case, whether there was any delay in making the application which might disentitle the applicant, and the reasons for that delay. I was informed by counsel that there are appeals on foot in other proceedings in which this question is to be argued before this Court. Mr Trigg submitted in effect that the learned magistrate's discretionary judgment ought not to be interfered with, as his findings really amounted to no more than a lack of the requisite satisfaction that the appellant had a prima facie entitlement to any compensation; it had not been shown, or even argued, that the appellant was entitled to ongoing compensation for continuing incapacity; there had been considerable delay in making the approach for compensation to the court, and no hardship had been shown. 13. It seems to me to be undesirable that I should decide the appeal on this basis. The circumstances under which the court or a magistrate might properly exercise the power to order interim payments of weekly compensation were not fully argued before me. However, my tentative view is that generally it is undesirable that the court or a magistrate should decide difficult questions of law on an application for interim relief, although that is not to say that the court or a magistrate might never decide such a question if the facts were not in dispute and the court had the benefit of full argument on the question. The more usual course, I would have thought, where such questions arise, would be to consider whether the appellant has a sufficiently arguable case, and then to consider whether, in the exercise of the court's discretion, having regard to all the relevant circumstances, relief ought to be granted or refused. As in this case, the court has reached ultimate findings which depended upon the true construction of the Act in order to determine that the appellant should not be granted the relief sought, and as both parties have requested that I determine the issues of law raised by the Notice of Appeal, I shall proceed to deal with this matter on the basis that the appeal was argued before me by the parties. 14. The appellant's main contention was that the learned magistrate should have found that the respondent was deemed to have admitted liability for the claim. 15. In order to understand the parties' contentions it is necessary to examine the Scheme of the Act with some care. Section 53 of the Act provides that where a worker suffers an injury that results in or materially contributes to his death, impairment, or incapacity, there is payable by his employer such compensation as is prescribed. In cases of partial or total incapacity for work ss64 and 65 of the Act provide for an entitlement to weekly payments of compensation at amounts to be determined in accordance with those sections. Section 3(1) of the Act defines an "injury" to mean a physical or mental injury which arises out of or in the course of the worker's employment, and provides that an injury includes a disease, and the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease. Section 4 of the Act provides inter alia that an injury to a worker shall be taken to arise out of or in the course of his employment if the injury occurs while he is present at the workplace on a working day. Thus, in the case of a pre-existing disease, it is sufficient if the disease's re-occurrence is caused by the employment or if it re-occurs whilst the worker is at a place of work on a working day; in other words, it is sufficient if there is only a temporal connection between the re-occurrence of the disease and the workplace - no causal connection need necessarily be proved; although there is also provision, in the case of diseases or injuries which occur by way of a gradual process over a period of time, if the employment materially contributed to the disease or injury, or to its aggravation or re-occurrence, etc: see s4(5). 16. Section 80(1) provides that a person is not entitled to compensation unless notice of the relevant injury has been given to the employer 'as soon as practicable.' Notice may be given orally: s81(1)(a). If the employee wishes to claim compensation, he is required to serve on or give to his employer a claim in the prescribed form, and in cases of claims for weekly compensation and/or permanent impairment, the claim must be accompanied by a medical certificate in the prescribed form: s82. The prescribed claim form is that set out in Form 3 to the Work Health Regulations. This form seeks a lot of information about the worker, the injury suffered, and how and where it occurred. However, the one thing it does not require the worker to state, is what his claim is for: in other words, the prescribed form is really a blanket claim for whatever compensation a worker may be entitled to receive under the Act, whether it be weekly payments, medical benefits under s73, or a lump sum payment for permanent impairment under s71, or for all types of benefits payable. When the claim form is received by the employer, the employer has seven working days to take action under s85(1) of the Act which provides: " (1) An employer shall, within 7 working days after receiving a claim for compensation - (a) accept liability for the compensation; (b) accept liability for the compensation subject to the condition that the claimant will, within a specified time, provide such further information relating to the claim as the employer requires; (c) require further medical information to be provided; or (d) dispute liability for the compensation." A breach of s85(1) is an offence: s118. 17. From the nature of the information in the claim form, and the fact that it is accompanied by a medical certificate (Form 4) it is possible for the employer to work out (at least in most cases) if the worker is entitled to weekly payments. The claim form and the medical certificate deal with whether the worker stopped work because of his injury or disease, whether he has yet returned to work, what the "injury" is, the alleged cause of the injury, whether the injury is consistent with the alleged cause, if he is fit for work, and if not, for what period of time he will remain unfit. However, in some cases, this might not be apparent. If this is so, the employer can proceed either via s85(1)(b) or (c), or dispute liability. 18. If the employer wishes further medical information before making a decision, ss85(7),(8),(9) and (10) provide: " (7) Where an employer neither accepts nor rejects liability for compensation claimed but requires further medical information to be provided, he shall immediately advise the claimant of that fact and the additional medical information required or the arrangements he has made for obtaining the information. (8) Where information required under subsection (1)(b) or (c) is provided to an employer, subsections (1) and (2) and section 87 apply as if the receipt of the information were the receipt of the original application. (9) Where an employer disputes liability for compensation claimed, he shall immediately advise the claimant, in writing, of that fact and the reasons for his decision. (10) At the same time as he advises a claimant of a fact referred to in this section the employer shall give to the claimant a statement, in the prescribed form, indicating that the claimant has a right to commence proceedings before the Court for the recovery of compensation to which he is entitled." 19. I interpolate here that in this case, the claim form tendered before the magistrate (Ext 6) dated 6 December 1990, is a poor photocopy and not completely legible. The appellant claimed he suffered from an "affective disorder (manic episodes) of long standing" which was a "work related disease." In answer to the question, 'Did you stop work because of your injury or disease?', he answered, 'No. I was dismissed.' In answer to the question, 'Have you started back at work?', he answered, 'No.' He indicated he had sought medical treatment from Dr Ridley. Dr Ridley's certificate states he "has an Affective Disorder which was first evident at the age of 28 years. His most recent illness appears to have started in December 1988 and probably continued until about July 1989. I did not have contact with him at the time of his illness but his history indicates to me that he would have been unfit for work during the period of December 1988 to July 1989." This is obviously a claim for weekly payments of compensation on the basis of total incapacity for a closed period. There is nothing to indicate a claim for anything else, except, perhaps, for medical treatment. 20. To return to the scheme of the Act, s87 provided at the relevant time: "Where within the time specified in section 85(1) an employer does not dispute liability for compensation claimed, he shall, subject to section 85, be deemed to have accepted it." 21. Once an employer accepts liability for a claim for weekly payments, s85(2) provides that the employer shall commence those payments within ten working days after receipt of the claim. A breach of s85(2) is also an offence:s178. Section 88 requires weekly payments to be made "before the expiration of 7 days after the end of the week in respect of which it is payable or, where the worker is normally paid at intervals greater than one week, before the expiration of 7 days after the end of the period in respect of which he is normally paid." A breach of s88 is an offence. If a payment is made late, it also attracts interest in accordance with s89. 22. Section 69 provided at the relevant time that a payment of weekly compensation shall not be cancelled or reduced except on fourteen days notice, except where the worker died or ceased to be incapacitated. 23. One of the objects of Div.5 of Part V of the Act (ss79 -91) is to ensure that a worker's 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 making 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. 24. The appellant's submission was that the respondent had failed to strictly comply with these provisions, that the respondent was therefore deemed to have accepted liability, that the court was wrong in its conclusion to the contrary, and that therefore the court's discretion to order interim payments had miscarried. 25. The first point relied upon by the appellant that neither the letters of 17 December 1990 or 20 December 1990 complied with the requirements of s85(7) of the Act. It was submitted that a request for a signed medical authority to enable unspecified further information to be obtained from the appellant's doctor was neither an advice to him of the additional information required, nor an advice of the arrangements made to obtain medical information. Clearly the letter of 17 December 1990 did not advise the appellant what additional medical information the respondent required, only that it required further (unspecified) information. The respondent therefore cannot rely on the first limb of s85(7), so far as this letter is concerned. As to the second limb, the appellant's contention was that a mere request for a medical authority is not advice as to the arrangements made to get the information; at the least, the appellant should have been informed as to the arrangements made by the respondent with Dr Ridley to get the information. I do not understand the respondent to have seriously argued anything to the contrary. I consider that the appellant's contention is correct. A mere request for an authority addressed to the worker's own medical practitioner does not comply with s85(7). I leave aside the question of whether the employer is entitled to seek medical information from the worker's own doctor, or whether, in order to obtain the benefit of s85(7), arrangements must be made with some other medical practitioner. Assuming that an approach to the worker's own doctor is permissible, the letter of 17 December says nothing about whether the doctor is prepared to provide the information, and when the information will be provided. The purpose intended by the legislature in telling the worker about the arrangements made, is to enable him to see that there have been genuine arrangements put in place which will enable the employer to obtain whatever medical information it seeks within a reasonable time. If it were otherwise, an employer could defer having to accept a claim for an indefinite period, because the effect of s85(8) is that the seven day period within which to act under s85(1) does not start to run again until the required information is received. Whilst s85(7) does not, in express terms, refer to "genuine" arrangements, I consider that steps taken which are not able to be seen as a genuine effort to obtain medical information within a reasonable time, are not "arrangements" within the meaning of s85(7). The test as to whether the arrangements so comply with s85(7) is an objective one. Such a construction of s85(7) is, in my opinion, consistent with the purposes of the provisions of Div.5 of Part V of the Act, to which I have referred, and advances those purposes, whereas any other construction would leave it open for those purposes to be defeated. A construction which is consistent with and enhances the purposes of an Act is to be preferred to one which does not or would produce an irrational, unjust or absurd result: Cooper Brookes (Wollongong) Pty ltd v Federal Commissioner of Taxation [1981] HCA 26; (1980-81) 147 CLR 297 at 304-5 per Gibbs CJ; at 319-321 per Mason and Wilson JJ. 26. The second letter, dated 21 December 1990, is no better than the first, in so far as it relies for its efficacy upon the second limb of s85(7). However, the respondent contended that it complied with the first limb, because it told the worker what additional medical information was required, viz. the 'precise nature of (the appellant's) condition and the causal or temporal relationship, if any, between his affective disorder and his previous employment.' The appellant contended that there was no compliance with the first limb of the section because the worker was not told the information required with sufficient clarity. It seems to me that the purpose of the first limb of s85(7), in notifying the worker of the information required, is to enable him to provide that information. If a request is made in terms which are so vague that the worker could not respond to the request, that would undoubtedly be a non-compliance. However, in my opinion the request for information in this case was sufficiently clear to enable the worker to respond. He , or his advisers, could have written themselves to Dr Ridley, and asked her for a report in the terms requested. It was not contended that the information sought was not "medical information." I conclude that the letter of 21 December 1990 did comply with the first limb of s85(7). 27. The next argument was that the letter of 20 December 1990 did not comply with the time limits fixed by s85(1). It is to be noted that s85(1) requires the employer, within seven working days after receiving a claim, to require further medical information, and s85(7) requires the employer to advise the worker "immediately" of that fact. The requirement of immediate notice contained in s85(7) has to be viewed in the context of the seven working day period referred to in s85(1). Thus a notice served on the worker within the seven working day period would comply. But a notice may be ready to be served within that period, but for reasons not the fault of the employer, may not be able to be served within the seven day period. The word 'immediately' means, according to the Shorter Oxford English Dictionary, "without any delay." The Macquarie Dictionary definition is "without lapse of time, or without delay; instantly; at once." But a literal construction of this word in a statute would, in strictness, exclude the lapse of any interval of time, and for that reason, has rarely, if ever, been preferred by the courts. I do not agree with the learned magistrate who held that any notification outside the seven day working period would not be "immediate." Whether the notice was served 'immediately' is a question of fact to be determined in the circumstances of the case. As Cockburn CJ said in Alexiadi v Robinson (1861) 2 FandF 679 at 684; [1861] EngR 1; 175 ER 1237 at 1240; the word implies "a more stringent requisition that what is ordinarily implied in the word 'reasonable.' Still, it must receive a reasonable interpretation, so far that it cannot be considered as imposing an obligation to do what is impossible." It is to be noted that s85(7) in contrast to s85(9) does not require notification to be in writing, but s85(10) requires the employer to give to the worker a statement in the prescribed form at the same time as he is advised of a fact referred to in s85. It was contended that s85(10) did not apply to an advice under s85(7), but for reasons which appear below, I do not agree. Consequently complete compliance with both ss85(7) and (10) is not possible by telephone, for example. By contrast with s83 which permits service of a claim upon an employer by post, the Act does not provide for a mode of service on a worker other than personal service, although s47 of the Interpretation Act permits service on a person authorised to accept service on his behalf. Consequently the notion of 'immediately' must take into account that the worker may not be able to be found - he may, for instance, have gone interstate to get urgent medical treatment. In my view, the word 'immediately' means, as Kennedy LJ expressed it, in Barker v Lewis and Peat (1913) 3 KB 34 at 37 'as immediately as the circumstances permit.' 28. The appellant's argument was that the evidence before the magistrate showed that the claim form was served on 11 November 1990, and the only response which complied with s85(7), was served on 21 December 1990, which was outside the seven working day period. Assuming those facts to be so, I accept that the seven day working period ended on 20 December 1990. However, that is not the end of the matter. Firstly, there was a dispute between the parties as to whether service upon the employer was effected on 11 or on 13 November 1990. The learned magistrate does not seem to have resolved that question. I agree with the respondent's contention that there was no evidence in support of the appellant's submission that service was effected on 11 November 1990. 29. The only evidence before the magistrate as to service being effected on 11 November was an affidavit sworn by the appellant's solicitor. That affidavit deposes to a conversation between the appellant's solicitor and a solicitor in the employ of the respondent, whereby in response to a question by the appellant's solicitor, the solicitor for the respondent confirmed that the respondent's solicitor acted for government departments in the first instance in Work Health matters. That is not, to my mind, the same thing as indicating that the respondent's solicitor had instructions to accept service of a claim form. In my opinion there was no evidence on which the learned magistrate could have found even a prima facie case that the letter of 20 December 1990 was served outside of the seven working day period, or that notice was not "immediately" given to the appellant. 30. The appellant further submitted that the letter of 20 December 1990 did not comply with s85(10) of the Act. It is common ground between the parties that no statement in the prescribed form was served in accordance with that sub-section. The respondent contends, firstly, that s85(10) does not apply to a decision to seek further medical information. I do not agree. Section 85(10) refers to advising a claimant of "a fact referred to in this section." Section 85(7) specifically uses the expression 'he shall immediately advise the claimant of that fact.' On a literal interpretation, s85(10) clearly applies to the circumstances envisaged by s85(7). It was submitted that a notice under s85(10) indicating that the claimant had a right to commence proceedings before the court for the recovery of compensation would be misleading, because s104(1) at that time apparently permitted proceedings to be brought only where liability was disputed. Section 104 has since been amended, but there is nevertheless some apparent force in this contention. But what if the notice given under s85(7) did not comply with the Statute, or was served out of time, so that liability was deemed to have been admitted? If the respondent's contention was correct, no proceedings could have been brought under s104(1) in those circumstances either, because liability had not been disputed. I think that the purpose of s85(10) as originally drafted was to confer upon a worker a right to bring proceedings whether he receives notice accepting liability under s85(2), requests additional information under s85(7) or disputes liability pursuant to s85(9). In each of these subsections, the employer is required to immediately give notice of a "fact." Since these proceedings were commenced, s85(10) has been amended to specifically exclude a "fact" under s85(2). However that does not assist the appellant. The right may not appear to be conferred in unambiguous language, but in my opinion, as no other section in the Act in the form it was in before it was amended in 1991 would confer a right to go to the Work Health Court where liability had been admitted but payment was not forthcoming, or there was a dispute over the quantum of the payments, for example, or to challenge the validity of a notice given under s85(7), that right must be implied by s85(10). Otherwise, s85(10) would have been otiose, except in cases where liability had been disputed. I am fortified in this conclusion by the approach adopted by Gallop J in Davison v Totalizator Administration Board [1988] NTSC 59; (1988) 56 NTR 8, where his Honour interpreted s69, which required a notice to be given of a right of appeal (but did not in express terms confer a right of appeal), as conferring a right of appeal. It was drawn to my attention that the prescribed form of notice fixed by reg13 of the Work Health Regulations is inappropriate to a situation where the employer admits liability or gives notice under s85(7). The simple answer to this is that it is not permissible to construe the wording of an Act by reference to a regulation: Webster v McIntosh [1980] FCA 128; (1980) 32 ALR 603 at 606 per Brennan J, although in the case of a legislative scheme, it is permissible to look at regulations to see what the legislative scheme is: Brayson Motors Pty Ltd (In Liq) v Federal Commission of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 652 per Mason J (as he then was). In any event, it is not necessary to strictly comply with prescribed forms, and such compliance as the circumstances of the case allow, is sufficient: Interpretation Act, s68. In my opinion, the respondent did not comply with s85(10) of the Act. 31. The next question is whether non-compliance has the effect contended for by the appellant. The language employed by s85(10) is prima facie in mandatory terms. A failure to comply with a provision of the Act for which there is no penalty, is an offence: s178. However, as Lord Diplock observed in Grimwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service (1978) AC 655 at 690: "A court is less reluctant to treat "shall" as being directory rather than mandatory in a provision in which all that is involved is a mere matter of machinery for carrying out the undoubted purpose of the Act." 32. In my opinion, s85(10) is a procedural or machinery provision, rather than a matter of substance. Of relevance also is that fact that elsewhere the draftsman appears to have used "may" and "shall" with a degree of particularity: cf ss86(1); 88(2) and (3); 85(4); 85(5) and see Re Sarina; Ex parte Wollondilly Shire Council [1980] FCA 138; (1980) 32 ALR 596 at 600. However, of more importance in my opinion is the consequences that would flow from requiring strict compliance with s85(10): Would that have the consequence that an advice otherwise properly given by the employer would be void or ineffective? The importance of this question was recently discussed by the Full Federal Court in Formosa and Another v Secretary, Department of Social Security (1988) 81 ALR at 692-3; and see also Pearce and Geddes Statutory Interpretation in Australia 3rd ed para 11.13. Clearly in the case of an advice accepting liability pursuant to s85(2), it would be a draconian result. It would be absurd to suggest that an acceptance of liability would be ineffective in those circumstances. Why should there by any difference if the employer advised that he disputed liability? Could it in any event be sensibly argued that the denial of liability was invalid? The inconvenience and injustice that would flow is obvious, and needs hardly to be stated. In my opinion, s85(10) whether in its old form or in its present form is directory only, in the sense that it imposes "legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void.": (Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247 per Dixon CJ and McTiernan, Taylor and Webb JJ). 33. I therefore agree with the learned magistrate that a failure to comply with s85(10) of the Act does not have the consequence that the employer is deemed to have accepted the claim. There is nothing in s87 which would support such a conclusion. There being no other basis to support a finding that the respondent was deemed to have accepted liability, it is unnecessary to consider the interesting argument that was directed to me at to whether s87 created a rebuttable or irrebuttable presumption. 34. Although other grounds were raised in the Notice of Appeal, they were not argued before me. 35. Accordingly, although I have not agreed with all of the learned magistrate's conclusions, it has not been shown that the learned magistrate erred in his ultimate decision. The appeal is therefore dismissed with costs.

Perfect v Northern Territory [1992] NTSC 30; 107 FLR 428

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Judgment (9 paragraphs)

Perfect v Northern Territory [1992] NTSC 30; 107 FLR 428 (29 May 1992)

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Legislation Cited (4)

Cases Cited (6)