PARTIES: PIVOT LIMITED AGAINST CRAWFORD, CAROL EDNA; RE

Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Generally - Giving of claim to employer - Statutory requirements for giving - Whether complied with - Whether claim can be delivered "personally" to employer which is a body corporate - Whether claim delivered personally to a person designated by the employer if given to an employee who passed it on to a designated person.

Workers Rehabilitation and Compensation Act 1988 (Tas), s35(1).

Rae v Calor Gas Ltd [1995] SLT 244, referred to.

Pino v Prosser [1967] VicRp 107; [1967] VR 835; Rogerson v Tchia (1995) 123 FLR 126, applied.

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Hearing - Procedural fairness - Natural justice - Determination by Tribunal of issue not raised by the parties without notice to them.

Kioa v West [1985] HCA 81; (1985) 159 CLR 550, applied.

Respondent (Carol Edna Crawford): Zeeman Kable & Page

Judgment Number: [1999] TASSC 67

IN THE MATTER OF THE WORKERS REHABILITATION AND COMPENSATION ACT 1988 and IN THE MATTER OF A REFERENCE BY PIVOT LIMITED AGAINST CAROL EDNA CRAWFORD

1 Mrs Crawford was employed by Pivot Ltd ("Pivot") at its Scottsdale premises until 7 April 1997. On 1 October 1997 she obtained from a medical practitioner a certificate that she was totally incapacitated for work from 7 April 1997 until 7 November 1997. On 1 October 1997 she also completed a form claiming compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act").

2 On 2 October 1997 a process server, Mr Adrian Medwin, went to Pivot's Scottsdale premises where Mrs Crawford had been employed. He had with him the claim form and a copy of the medical certificate, which he had been instructed to serve on Pivot. At Pivot's office he handed the documents to Ms Therese Hall, who was employed as the Office Administrator for Pivot. It was Ms Hall's evidence to the Workers Rehabilitation and Compensation Tribunal that she suggested to Mr Medwin that he might like to see the manager, Mr Lester Rainbow, who would be returning to the office shortly. She said that Mr Medwin gave her a document (which must have been the claim form) and asked her to pass it on to the manager. On that basis she accepted the document and placed it on Mr Rainbow's desk. It was her evidence that Mr Medwin did not tell her the nature or description of the document nor was she asked by Mr Medwin whether she had specific authority to accept such documents. She said that she in fact had no authority from her employer to be a designated person for the purpose of accepting workers compensation claims. In cross-examination she agreed that her position with Pivot involved her accepting documents and parcels delivered to the premises. She asserted that the document was accepted by her merely as normal mail or parcel delivery and that she had not been aware that it was a special legal document. She said she would not have accepted it if she had been aware that it was something out of the ordinary or had some form of legal significance.

3 It was Mr Medwin's evidence to the Tribunal that he asked Ms Hall at the reception area if he could see the manager and was told that the manager was due to arrive later. He said that he told Ms Hall that he had workers compensation documents to serve on the company and asked whether he could serve them on her on behalf of the company. He said that her response was "she could" and he then handed the documents to her and she commenced to read them or to glance at them. While she was doing so, he told her they were documents in relation to a workers compensation matter concerning Pivot's employee, Mrs Crawford.

4 The learned Commissioner made no attempt to resolve conflicts which arose between the evidence of those two witnesses. He merely found that the claim form and accompanying medical certificate were delivered to Ms Hall on 2 October 1997 at a place of business operated by Pivot, and that Ms Hall was employed by Pivot and carried out her employment duties at the premises operated by Pivot at Scottsdale. He was not satisfied that Ms Hall was a person designated by Pivot for the purpose of having given to her the claim for compensation. See the Act, s35(1)(b).

5 Ms Hall placed the claim form on the desk of the manager, Mr Rainbow. There was no evidence from him. Evidence was given to the Tribunal by Ms Yvette Saunders, the Human Resources Manager for Pivot Nutrition Pty Ltd at Launceston. That company was a subsidiary of a subsidiary of Pivot. She said that on 2 October 1997 she received a telephone call from Mr Rainbow seeking advice concerning a workers compensation claim form he had received. She explained to him that it needed to go to Mr Simon Comerford in Melbourne and that to save Mr Rainbow time, she would forward the document on to Mr Comerford, if Mr Rainbow sent it to her. Next day, Friday, 3 October, she received the claim form and medical certificate in an envelope which she re-addressed to Mr Comerford and put with the mail which was due to go to Melbourne that night via Wards Express.

6 The learned Commissioner found that the claim form came to the notice of Pivot's Scottsdale manager, Mr Rainbow, on 2 October, and that after a telephone discussion Mr Rainbow forwarded it to Ms Saunders in Launceston with the intention that she would forward it to the appropriate person, Mr Simon Comerford at Pivot's head office in Victoria. The learned Commissioner also found that the claim form was sent by courier service on the afternoon of Friday, 3 October to proceed by courier that night, but it was not in fact received by Mr Comerford until Tuesday, 7 October. It was also found that Mr Comerford was a person designated by Pivot to receive claims for compensation under s35(1)(b).

7 Mr Comerford, the Insurance and Superannuation Manager for Pivot, gave evidence in which he explained that Pivot is a company incorporated in Victoria and that it carried on the Scottsdale operation where Mrs Crawford had been employed and where Ms Hall and Mr Rainbow were employed. He said that all salary and other administrative matters for employees at Scottsdale were conducted by the head office in Melbourne. He said that he dealt with all workers compensation matters that Pivot had around Australia and that all claims for compensation were to be referred to head office for him to deal with. He agreed that no specific advice had been given to employees concerning the need to refer workers compensation matters to head office, but he believed it to be common knowledge given the practice that occurred day to day. Mr Comerford said that on 7 October 1997 he received the claim form and medical certificate. Pivot determined to dispute the claim for compensation. On 20 October 1997 Mr Comerford signed a form of referral to the Workers Rehabilitation and Compensation Tribunal under s81A. It concerned the claim which had been made by Mrs Crawford and referred the matter to the Tribunal, explaining that the company's reasons for disputing liability to pay compensation to Mrs Crawford were that "further evidence is required to determine whether the injury arose out of and in the course of employment and to which her employment has contributed to a substantial degree in accordance with Section 25 of the Act, and further we believe that she may be in breach of Section 32 of the Act in relation to notice of injury". The records of the Tribunal established that the form referring the dispute to it was received on 21 October.

8 Also on 20 October Mr Comerford signed a letter to Mrs Crawford advising her that the company was disputing liability to pay compensation, giving the same reasons for disputing her claim. A copy of the letter to Mrs Crawford was tendered in evidence. I will refer later to what, for the Commissioner, proved to be an important piece of evidence concerning it.

9 Pivot's reference of Mrs Crawford's claim for compensation having been received, it was listed for hearing before the Tribunal on 1 December 1997. At the outset of the hearing Mr Donaldson, who appeared for Pivot, said (inter alia) that the claim was lodged on 7 October 1997; that it was supported by a medical certificate dated 1 October certifying incapacity from 7 April to 7 November 1997 for a disease which had become evident in 1995; that Mrs Crawford's employment was terminated by Pivot on 7 April 1997; that it had been brought to Pivot's attention that Mrs Crawford may have been working with the Education Department during the time that she was certified as totally incapacitated; that Mrs Crawford had not given notice of the injury whilst employed by Pivot and that it was not until receipt of the claim that Pivot was aware of it; that Pivot had arranged an independent medical examination to take place on 9 December; and that Pivot had not been able to gather any medical information as to what it was Mrs Crawford was suffering from or how the employment may have contributed to it. Mr Donaldson submitted that there had been a clear breach of the Act, s32(1)(a). That provides that a worker shall not be entitled to compensation under the Act for an injury unless notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer or a person referred to in s33(1)(b). However, in certain circumstances a failure to comply with that provision may not affect a worker's right to claim. See s37.

10 Miss Bourke, counsel for Mrs Crawford, then addressed the Tribunal. She submitted that the Tribunal had no jurisdiction to deal with the purported reference by the employer, because there was a failure on the part of the employer to comply with s81A(1). That subsection provides that an employer who disputes liability to pay compensation must, within 14 days of receiving the claim for compensation in respect of the injury to the worker, serve the worker with written notice that the employer disputes liability to pay compensation and inform the worker of the reasons for disputing liability, and refer the matter to the Tribunal. Miss Bourke said that the claim for compensation and the medical certificate were served on Pivot on 2 October 1997 and that Mrs Crawford was advised by letter dated 20 October 1997 that there was a dispute and the matter was referred to the Tribunal on 21 October 1997. She submitted that as a result, Mrs Crawford was not notified within the period of 14 days as required by s81A(1) and the matter was not referred to the Tribunal within that time either. It followed therefore, she submitted, that s81 applied and Pivot was in breach of that section by not making weekly payments.

11 The learned Commissioner then said that he was satisfied that if the time limited by s81A(1) had not been complied with, then he was without jurisdiction. It was not submitted to the contrary on behalf of Pivot. However, Mr Donaldson, for Pivot, said that its case was that the claim for compensation was not made until it was received by Mr Comerford on 7 October and he submitted that the hearing should be adjourned to enable evidence to be called about that. Counsel for Mrs Crawford made further submissions in support of her earlier proposition that the claim for compensation was made when it was delivered to Pivot at Scottsdale on 2 October. The learned Commissioner commented that he would need evidence establishing that Ms Hall was a designated person when she received the claim form (see s35(1)(b)). He added that the mere fact of personal service on an employee of the relevant employer did not mean that the claim for compensation had been given to the employer in one of the ways authorised by s35. The Commissioner said:

"I'll have to have evidence as to the employer's position and also the position of Theresa [sic] Hall. Therefore for that purpose I'll have to hear it at another date ... it will be a matter for liaison of the parties as to a suitable time for the purpose of taking evidence in relation to whether there has been in fact service of the claim form by the worker on the employer prior to the 7th October 97 as endorsed by the employer."

12 It is to be noted that it was not submitted for Mrs Crawford that if the claim had not been given to Pivot until 7 October, Pivot had nevertheless failed to comply with the time limit of s81A(1). The issue between the parties at that time, as expressed by their representatives, concerned whether the claim was given to Pivot on 2 October or whether it was given on 7 October.

13 The matter came back before the Tribunal on 21 April 1998 when evidence was called by Pivot from Ms Hall, Ms Saunders and Mr Comerford and by Mrs Crawford from Mr Medwin. Pivot called its evidence first after its counsel, Mr Brown, made an opening address. The transcript records that immediately before he did so, the learned Commissioner said the following:

"Now this matter of the worker has taken issue as to whether the employer has complied with Section 81 (a) in relation to time limits. ... for the employer to establish that the Tribunal has jurisdiction so ... call you Mr Brown."

The record of what the Commissioner said is clearly inaccurate and incomplete.

14 In his opening address, counsel for Pivot outlined the evidence he would call, and concluded by saying that it was Pivot's contention that the claim was served on the employer on 7 October (he submitted contrary to that in his closing address) and therefore the letter to Mrs Crawford dated 20 October and the reference to the Tribunal of the same date were within time. The last witness to give evidence for Pivot was Mr Comerford. I referred earlier to some of his evidence. Concerning the letter to Mrs Crawford dated 20 October 1997, he said in his examination-in-chief that he signed that letter and a copy of it was admitted into evidence. He was not asked and gave no evidence-in-chief concerning how that letter was transmitted to Mrs Crawford. When cross-examining Mr Comerford, counsel for Mrs Crawford asked no questions of him which concerned the letter to Mrs Crawford or the reference to the Tribunal. In re-examination, counsel for Pivot asked Mr Comerford how he transmitted the reference to the Tribunal, but he asked nothing about transmission of the letter to Mrs Crawford. However, at the conclusion of the re-examination, the learned Commissioner took that point up and asked Mr Comerford what had happened to the letter dated 20 October which was addressed to Mrs Crawford. Mr Comerford said "it would have been mailed" to her "on 20th I imagine". He said that he could not say that categorically and he then went on to mention that it was "a matter of urgency at the time". However there was apparently some lack of clarity on the recording of what he said and not all of it may have been transcribed.

15 Counsel for Mrs Crawford called as her only witness the process server, Mr Medwin, concerning the events of 2 October 1997. Closing submissions were then made to the Tribunal, first by counsel for Mrs Crawford and then by counsel for Pivot. In her closing address there was no suggestion by counsel for Mrs Crawford that if the claim had been given to Pivot on 7 October, Pivot had thereafter acted outside the time limit of s81A(1). Instead she concentrated solely on persuading the learned Commissioner that the claim had been given to Pivot at Scottsdale on 2 October. In his closing address, counsel for Pivot stated, as his primary submission, one that was contrary to what he had said when opening. He said that his primary submission was that the claim was not served on Pivot at all. He submitted that what happened at Scottsdale on 2 October did not amount to the giving of notice to the company and he submitted that the way in which the claim form came into Mr Comerford's hands in Melbourne, on 7 October, did not amount to the giving of notice to the company either. If, however, the Tribunal found that the claim was given on 7 October, counsel for Pivot submitted that "13 days later ... the reference has been signed and the worker has been notified of the dispute, so it has been done within time". Counsel for Mrs Crawford was permitted to address in reply, but once again there was no suggestion from her that if the claim was given to Pivot on 7 October, the time limits of s81A(1) were exceeded or had not been shown to have been complied with.

16 The learned Commissioner published reasons for his determination on 11 May 1998. He recited some of the evidence and submissions. He said that he was not satisfied that any person other than Mr Comerford was a designated person for the purposes of s35. He then stated that "accordingly the delivery of the claim form to the workplace at Scottsdale did not amount to a giving of the claim form to the employer within the meaning of Sections 34 and 35 of the Act". The learned Commissioner then went on to consider whether the claim was given to Pivot on 7 October 1997 and made the following findings and determinations:

"Accordingly, on the evidence the worker has not satisfied me that she has delivered it personally to the employer, being Pivot Limited, nor was such claim for compensation given to the employer by sending it by post to the employer either at Scottsdale or the Head Office in Melbourne. It would appear however that on the evidence of Mr Comerford, the claim form was delivered to him, being a designated person, on 7 October 1997. I do not accept that for the purposes of Section 35(1)(b) that such delivery must be personally by the worker. In any event the employer by accepting the claim form and taking the appropriate steps to dispute the claim has acknowledged actual receipt of the claim. Given therefore that the claim for compensation was given to the employer on 7 October 1997 the employer was obliged to give notice of its dispute of claim to the worker by no later than 21 October 1997."

17 The learned Commissioner then proceeded to determine the case in favour of Mrs Crawford upon a basis not advanced by her and without giving the employer any opportunity to address it. What he said was:

"Put at its highest the employer's evidence via Mr Comerford is that the ntoice [sic] of dispute would have been posted on 20 October 1997 as it was treated as urgent. It was not clearly established however that this in fact occurred and this point was not put in issue before me. I therefore accept that the notice was posted on 20 October 1997. By posting such notice to the worker on 20 October 1997 the employer is relying upon Section 30 of the Acts Interpretation Act 1931, by which delivery is deemed to occur when that posted document would be delivered in the ordinary course of the mail. I heard no evidence in this regard and the onus fell upon the employer to satisfy me that the ordinary course of mail would result in that letter arriving at the worker's last known address on 21 October 1997. On the basis of my experience and knowledge of postal deliveries I have a real doubt that an overnight delivery from Melbourne to the worker's address in Scottsdale would have been accepted as the normal course of the post in these circumstances. But the onus was on the employer to establish the date of service by reference to the ordinary course of the mail and it has not done so and accordingly I do not accept that it has served the worker with written notice of the dispute within 14 days of receiving the claim for compensation. Therefore the Tribunal has no jurisdiction to determine the referral."

18 Mrs Crawford appealed from the Tribunal's order that it did not have jurisdiction to determine Pivot's referral, notwithstanding that what she sought to achieve before the Tribunal was exactly that and notwithstanding that she does not wish to have the order overturned. Her appeal has been brought because her legal adviser wrongly believed that she needed to appeal if she wished to argue that the learned Commissioner should have concluded that the order should also have been made on the basis asserted on her behalf to the Tribunal, that is to say, on the basis that Mrs Crawford gave her claim to Pivot, in accordance with the Act, at Scottsdale on 2 October 1997 and that it was beyond argument that Pivot's letter to Mrs Crawford dated 20 October and its reference to the Tribunal, which was received on 21 October, were outside the 14 day limitation period prescribed by s81A(1). She was free to repeat her argument to this Court on the hearing of Pivot's appeal without having to institute an appeal herself. Her appeal will therefore be dismissed.

19 Pivot appealed from the Tribunal's order on the following grounds:

"1 The learned Commissioner erred in law in finding that the person designated by the employer pursuant to Section 35(1)(b) of the Workers Rehabilitation and Compensation Act 1988 had been served with the workers claim for compensation.

2 The learned Commissioner erred in law in finding that the employer had failed to serve the worker with written notice that the employer disputed liability to pay compensation by way of weekly payments and to pay benefits payable under Division 2 Part VI pursuant to Section 81A of the Workers Rehabilitation and Compensation Act 1988 within fourteen (14) days of the 7th day of October 1997 in all the circumstances.

3 The learned Commissioner erred in law in failing to accord the employer natural justice as to the issue of when the worker was served with written notice from the employer disputing its liability to pay compensation by way of weekly payments and to pay any benefits payable under Division 2 Part VI pursuant to Section 81A of the Workers Rehabilitation and Compensation Act 1988."

20 I will deal with the first ground. The effect of s81A(1) was that if Pivot received a claim for compensation from Mrs Crawford and it wished to dispute liability to pay weekly compensation or the cost of any benefits under PtVI, Div2, it was required (inter alia) to serve on her the notice specified by s81A(1)(c), "within 14 days of receiving the claim for compensation in respect of the injury to the worker". The Act refers to such claims being "given" by the worker (ss34(1)(c) and 35) and "received" by the employer (s81A(1)). Section 34(1)(c) requires the claim to:

(i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or

(ii) a person designated for the purpose by the employer.

21 Concerning how such a claim may be given to the employer, s35(1) provides:

"35 - (1) A claim for compensation may be given -

(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."

22 There are also special provisions for the giving by a worker to the employer of notice of the injury. By s33(1), it may be "given" orally or in writing and "shall be given" to any of a number of persons identified in the subsection. A notice of injury and a claim for compensation are important documents in the scheme of the Act and it is not difficult to understand why the legislature made special provision concerning how they are to be given by workers to employers. The service of all other documents under the Act is provided for by s159, which explains, in considerable detail, how they may be served on a body corporate, a firm and a person who is neither a body corporate nor a firm. But the section excludes from its operation notices of injury and claims for compensation. I will return to s159 shortly, for it gives assistance when interpreting s35(1).

23 Paragraph (a) of s35(1) authorises the giving of a claim for compensation, if there is only one employer, which is the case here, by delivering it personally to the employer (subpar(i)) or by placing it in a properly addressed envelope and sending it by post to the employer at the employer's usual or last-known place of business or residence (subpar(ii)). Concerning subpar(i), the reference to delivering the claim personally to the employer, can only be to delivery upon an individual and not to delivery upon a body corporate. Although a body corporate is regarded as a legal person, in the context of the provision "personally" should be restricted to its common application to individual human beings. Expressions such as "personal service" are applied to service on individuals and not to service on bodies corporate. In a different legislative context, it was said of personal service, by Lord President Hope when delivering the opinion of the First Division in Rae v Calor Gas Ltd [1995] SLT 244 at 247:

"It is a method of service which can be effected only in the case of an individual, and then only by placing the writ into the hands of the defender or arrestee personally. The writ cannot be said to have been served on him personally if it is put into the hands of someone else such as an employee, even although this is done at his place of business or at his dwelling place."

24 That s35(1)(a)(i) should be confined to delivery to individuals, is supported by the provisions for service of documents, other than notices of injury and claims for compensation, in s159(1). It provides for service on an individual "by delivering it to him personally", but in the case of a body corporate it makes no such provision, although it authorises service "by delivering it to the secretary of the body corporate personally". In the case of a firm, it authorises service "by delivering it to a member of the firm personally". There are, of course, other methods for service on bodies corporate and others which are authorised by s159.

25 I therefore hold that Mrs Crawford's claim for compensation was not given to Pivot by delivering it personally to Pivot, because it could not be so given to a body corporate.

26 It is clear that Mrs Crawford's claim for compensation was not given in accordance with s35(1)(a)(ii), that is to say, by being placed in a properly addressed envelope and sent by post to Pivot at its usual or last-known place of business or residence.

27 I next consider the provisions of s35(1)(b). The learned Commissioner found that he was not satisfied that any person other than Mr Simon Comerford was a designated person for the purposes of s35. The evidence clearly justified the making of that finding. It was not challenged before me. I hold that the evidence was incapable of establishing that prior to 7 October 1997 Mrs Crawford's claim was given to Pivot in accordance with s35(1)(b), that is to say, that prior to 7 October 1997, it was "given ... to the person designated for the purpose by the employer, by delivering it personally to that person". Mr Medwin delivered the claim to Ms Hall on 2 October 1997, but she was not a person designated for the purpose by Pivot.

28 However, it was established by the evidence of Mr Comerford, who was a person designated for the purpose by Pivot, that he personally received the claim on 7 October 1997. In my opinion, upon Mr Comerford personally receiving the claim, it had been delivered personally to him. In this regard, I apply Pino v Prosser [1967] VicRp 107; [1967] VR 835 and Rogerson v Tchia (1995) 123 FLR 126.

"The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required." Hope v Hope [1854] EngR 805; (1854) 4 De GM & G 328 at 342.

"It does not matter how it comes about that documents to be served are left with the person to be served or who does it. ... What is important is that the documents to be served are left with the person to be served. It does not matter if they are first handed to some other person at an intermediate stage of the transmission of the documents from the person wishing to serve them to the person upon whom they are to be served." Rogerson v Tchia at 132.

29 I therefore hold that the learned Commissioner was correct in law when he found that pursuant to s35(1)(b) Mr Comerford, being a person designated for the purpose by Pivot, had delivered to him personally on 7 October 1997, the claim for compensation of Mrs Crawford. In my opinion, ground 1 therefore fails.

30 I add that the evidence did not suggest that there was service on Pivot in accordance with the Corporations Law. At that time, s220 authorised a document to be served on a company by leaving it at, or by sending it by post to, the registered office of the company and it authorised service on a company by delivering it personally to two of its directors. The evidence did not suggest service in either of those ways.

31 I deal next with ground 3. With respect to the learned Commissioner, it is clear that natural justice was not accorded to Pivot. At the preliminary hearing before the Tribunal on 1 December 1997, the issue, as defined by the parties, which first required determination by the Tribunal, was whether Pivot was given the claim for compensation on 2 October 1997 or on 7 October 1997. It was submitted by counsel for Mrs Crawford that it was given on 2 October and if so, the Tribunal had no jurisdiction to determine Pivot's reference of the dispute because the reference was not received by the Tribunal and Mrs Crawford was not served with written notice that Pivot disputed liability within 14 days. On the other hand, it was submitted for Pivot that the relevant time limit had not been breached because the claim was not received by Pivot until 7 October. When the Tribunal reconvened on 21 April 1998, the only issue which was contested by the parties was whether the claim was given to Pivot on either of those two dates and, if so, which. It was not submitted on behalf of Mrs Crawford that regardless of which date it was, the Tribunal had no jurisdiction to determine Pivot's reference. At the outset of the hearing that day, she, or her legal adviser, knew that Pivot was asserting that it had not received the claim until 7 October. She did not give evidence that she did not receive notice of the dispute by 21 October, nor was such a fact asserted or suggested on her behalf. All that she sought to establish was that Pivot received her claim on 2 October when Mr Medwin gave it Ms Hall. Understandably, therefore, counsel for Pivot called no evidence going to the question whether Mrs Crawford had been given notice of the dispute within 14 days and neither counsel made submissions concerning the question. "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ...". Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 582. Because that rule was breached in this case, the Tribunal's order that it had no jurisdiction to determine the reference must be set aside.

32 I am also of opinion that ground 2 of the appeal has been made out. The learned Commissioner erred when he found that Pivot had failed to serve Mrs Crawford with notice that it disputed liability within the 14 day period of s81A(1). That was not an issue which had been raised by the parties and the vague and uncertain evidence given by Mr Comerford in response to the Commissioner's questions did not, in the circumstances of the hearing before the Tribunal, justify the making of the finding. All that could be said at the highest was that there was no evidence upon which a finding concerning the matter could be made.

33 For these reasons Pivot's appeal will be upheld. There will be an order setting aside the Tribunal's order that it did not have jurisdiction to determine the referral. That was not established. The Tribunal should proceed to deal with the reference in accordance with the Act. Mrs Crawford's appeal will be dismissed.