CITATION: Perret v Tasmania [2023] TASSC 25

Administrative law - Judicial review - Grounds of review - Error of law - Statutory interpretation - Whether personal service required for workers compensation claim - Where service of claim effected by email - Whether claim is deemed to have been served when email is received - Personal service not required - Claim deemed to have been served at the time of receipt by email - Tribunal without jurisdiction to hear s 81A referral - Appeal allowed.

Electronic Transactions Act 2000.

Electronic Transactions Regulations 2021.

Judgment Number: [2023] TASSC 25

1. This appeal from the Tasmanian Civil and Administrative Tribunal ("the Tribunal") raises a short point of statutory construction concerning s 35 of the Workers Rehabilitation and Compensation Act 1988 ("the Act") and reg 5 of the Electronic Transactions Regulations 2021 ("the ETRs") made pursuant to the Electronic Transactions Act 2000 ("the ETA").

1. In November 2022, the appellant informed a representative of the respondent by email that he would be lodging a workers compensation claim. The representative informed the appellant by email that he could complete the necessary form (which she attached in her email to him) and send it back to her; meaning by email.
2. At about 6pm on 10 November 2022, the appellant sent the representative of his employer his claim for workers compensation, as she had requested, by email. Later on in the evening of 10 November 2022 he placed a hard copy of the form on the desk of the representative of his employer. The representative had left the office for the day and did not become aware of the email sent by the appellant at 6.04pm on 10 November 2022 until 8.04am on 11 November 2022 when she logged on to her computer at work. She also located the hard copy of the form left by the appellant on her desk later on 11 November 2022.

1. Section 35(1) of the Act provides, so far as is material, that:

(a) to the employer of a worker or, if there is more than one employer, to one of the employers of a worker by -

(i) delivering it personally to the employer or one of the employers; or

(ii) by placing it in a properly addressed envelope and sending it by post to the employer, or one of the employers, at the employer's usual or last-known place of business or residence; and

(b) to the person designated for the purpose by the employer, by delivering it personally to that person."

1. Section 5 of the ETA provides that a transaction is not invalid because it took place by means of electronic communications. Regulation 4(1)(c) of the ETRs provides that s 5 of the ETA does not apply to "a transaction that is required to be effected only by personal service."
2. Section 6 of the ETA provides that a requirement to give information in writing is satisfied if given by electronic communications where it is reasonable to expect the information to be readily accessible and the recipient consents to the information being given in that way. Under s 11A of the ETA, the time of receipt by the recipient is when the electronic communication becomes capable of being retrieved by the intended recipient at an electronic address designated by that person.
3. Regulation 5 of the ETRs provides that Division 2 of Part 2 of the [ETA] does not apply to:

(c) a requirement that information or a document be delivered only by personal service."

Sections 5 and 11A of the ETA appear in Division 2 of Part 2 of the ETA.

1. The critical question for determination in this appeal is whether s 35 of the Act provides a requirement that the document concerned be delivered only by personal service. (Emphasis added.)

1. Section 35(1) of the Act does not require that service of a claim for compensation only be delivered by personal service. Amongst the choices it provides is the option to place the document in a properly addressed envelope and send it by post to the employer at the employer's usual or last known place of business, see s 35(1)(a)(ii). Consequently neither reg 4 or reg 5 of the ETRs apply to s 35 of the Act.
2. In accordance with s 6 of the ETA, service by electronic communications is effective when given in an accessible way and the recipient consents to it being given that way. There was evidence before the Tribunal that the representative of the employer required the appellant to send the completed form, which she attached in an email to him, back to her by email. The time of receipt of the electronic communication sent by the appellant to the employer's representative was when she was capable of retrieving it by accessing her email in-box: see s 11A of the Act. That occurred at about 6.04pm on 10 November 2022 and not when she actually accessed it at about 8.00am the next morning. If she did not access it until days or weeks after its receipt due to illness, s 11A nonetheless deems it to be have been received when the email was sent to her.
3. Under s 81A of the Act, an employer may serve a worker with written notice of a dispute regarding liability to pay weekly payments or compensation under the Act. That is known as a s 81A referral to the Tribunal. Such notice of dispute or referral to the Tribunal must be filed within 84 days of the employer's receipt of the claim.
4. If the claim was served in accordance with the Act and the ETA on 10 November 2022, as I have found, the respondent was out of time to lodge a referral under s 81A of the Act. If service had been not validly effected until 11 November 2022, the respondent would have been within time to raise a dispute under s 81A of the Act by lodging a referral under that section.
5. In the context of modern communication by electronic means, it is entirely understandable that Parliament would provide for service of documents by email unless, as in the Supreme Court rule governing service of an originating application, personal service is the only method permitted by the relevant provision (see Supreme Court Rule 133).
6. Old authorities dealing with the requirement for personal service decided before the enactment of the ETA are of very limited utility in deciding the issue currently before the Court. In particular there is nothing in the judgment relied on by the respondent of Crawford J (as he then was) in Pivot Limited v Crawford [1999] TASSC 67 which compels a different result in this matter. In that case service was held not to be effected because service personally on a corporation was held not to be an allowable form of service under s 35 of the Act as it then stood and in the absence of the ERA.
7. As discussed above the proper construction of s 35(1) when read with reg 5 of the ETRs is not to be governed by when a representative of an employer chooses to access her email in-box. What if apart from the question of illness, the representative had to suddenly fly overseas to attend a funeral and spent many weeks away. To place satisfaction with s 35(1)(b) in the hands of some action or inaction of an intended recipient is hardly acknowledging the beneficial nature of workers compensation legislation which requires a purposive and liberal construction.
8. It is unnecessary to categorise s 35 as facultative or otherwise. On its face, read with the ETA and the ETRs properly construed, it permits personal service by email on a designated representative of the employer. The representative, in this case, invited service of the relevant documents on her by the appellant by email. The recipient was personally served when that email landed in her in-box.
9. The purpose of s 35 is to bring to the attention of the recipient of the relevant document the existence of that document. The applicant did all he could in that regard on 10 November 2022. As the transaction was permitted by electronic means he could do no more than fill out the form sent to him and press send on the email to the recipient. Out of an abundance of caution he left a hard copy on the desk of the recipient on 10 November 2022, which was not discovered by her until 11 November 2022.

1. I am of the opinion that the Tribunal erred in considering that service of the appellant's workers compensation claim was not effected until 11 November 2022, for the reasons explained above. Consequently the Tribunal erred in law and incorrectly held, in my opinion, that it had jurisdiction to hear and determine the referral under s 81A of the Act when the respondent lodged that referral outside the time permitted for it to be lodged. The Tribunal had no jurisdiction to consider or determine the s 81A referral of the respondent filed on 2 February 2021.
2. The Court orders as follows:

1 The decision of the Tribunal dated 21 March 2023 is set aside.

1. The respondent is to pay the appellant's costs of and incidental to this appeal and of the proceeding before the Tribunal.