(6) The Authority may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction."
4 The notice was dated 14 August 2003, and specified a period of "28 Days from date of service". The employer did not apply to the Workers Compensation Commission ("the Commission") for a determination as to its liability pursuant to s 145(3) within the 28 days, or for some time thereafter; it applied in October or November 2003.
5 An Arbitrator held that the employer's application was out of time and could not be entertained. Deputy President Fleming confirmed the Arbitrator's decision. This was an application by the employer for leave to appeal from the decision of the Deputy President, heard on full submissions as if an appeal.
6 Appeal lay only from a decision in point of law (Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act"), s 353). The application was opposed by the WorkCover Authority; the worker did not appear. As later described, the evidence before the Arbitrator and the Deputy President was supplemented.
7 The employer first submitted that the notice did not specify a period within which application was to be made, and that the application could therefore be made within a reasonable time. Implicit but unstated was that the application could be entertained because it had been made within a reasonable time; however, there was no such finding of fact. The submission falls down for other reasons.
8 The employer's first argument was that the period was uncertain, because it was not made clear whether the 28 days commenced from the date of the notice or from the date on which the notice was served. That can not be accepted: the notice provided in terms for 28 days from the date of service. It argued in the alternative that the period was specified as the period within which reimbursement was to be made, and there was no specification of the period within which application was to be made. That also can not be accepted. In s 145(3) "the period specified in the notice" is the period specified in the notice served in accordance with s 145(1). The person served with the notice must either make reimbursement or apply to the Commission within that period.
9 Even if one of these arguments were accepted, the employer would not be advantaged. There can not be substituted for "the period specified in the notice" in s 145(3) a time, reasonable or otherwise, not specified in the notice. The Commission's power under s 145(3) would still not be enlivened, and the employer's application could still not be entertained.
10 The employer then submitted that its application could be entertained because, for some time, including when the application was made, there had been on foot other proceedings in which its liability in respect of payments to the worker was in issue.
11 With regard also to the additional evidence, the course of the other proceedings was as follows. In March 2002 the worker applied to the Compensation Court, pursuant to s 144 of the Act as it then stood, for determination of her claim for compensation. She joined the employer and the WorkCover Authority. The employer put in issue its liability to the worker. In July 2003 the WorkCover Authority reached a settlement with the worker, under which it made payments of lump sum compensation under ss 66 and 67 of the Act. After a contested hearing, in December 2003 the WorkCover Authority obtained an order for reimbursement by the employer pursuant to s 144(5). In April 2005 the order was set aside on appeal (Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121). The question of reimbursement was remitted to the Commission, which relevantly replaced the Compensation Court upon its abolition on 1 January 2004, see Compensation Court Repeal (Transitional) Regulation 2003, cl 7(1) and s 353 of the WIM Act. The WorkCover Authority thereafter discontinued its application for an order for reimbursement.
12 The additional evidence, which was ultimately reflected in an agreed chronology, should be admitted. In the employer's submission, putting in issue in the worker's proceedings its liability to the worker, with its consequential resistance to reimbursing the WorkCover Authority, was in substance the making of an application within s 145(3), and meant that the Commission was "already seised of jurisdiction" and could entertain its application.
13 For a number of reasons, the submission can not be accepted. The payments in contest in the worker's proceedings were not the payments in respect of which the WorkCover Authority required reimbursement by the notice. Even if they were, issue earlier joined in the worker's proceedings in the Compensation Court could not take the place of making an application to the Commission in August/September 2003, as required by s 145(3), and could not invest the Commission with jurisdiction. Section 145(3) requires the making of an application within a particular period for a determination as to liability in respect of the particular payments made by the WorkCover Authority.
14 Further, even if the jurisdiction of the Compensation Court in the worker's proceedings became that of the Commission, and in some manner extended to the employer's application made in October or November 2003, the WorkCover Authority later discontinued its application for an order pursuant to s 144(5). The basis for the continued extension of the jurisdiction was lost.
15 The employer finally submitted that the words "within the period specified in the notice" in s 145(3) were directory, not mandatory, and that the Commission could entertain an application made outside the period specified in the notice. It said that the Commission could exercise the jurisdiction conferred by s 105(1) of the WIM Act to hear and determine all matters arising under the Act, and relied on the rejection of insistence on formality in ss 350(2) and 354(3) of the WIM Act. It submitted that the period should not be regarded as mandatory when it was left to the WorkCover Authority to specify it; that "any" in "any such application" in s 145(4) of the Act meant any application for a determination whether or not made within the period specified in the notice; and that "may" in s 145(4) gave a discretion whether or not to hear an application made outside the period specified in the notice. It submitted that R v Lincolnshire Appeal Tribunal, ex parte Stubbins (1919) 1 KB 1 and Howard v Secretary of State for the Environment (1975) 1 QB 235 supported its position.
16 "Directory" and "mandatory" have been described as "classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is valid": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ. The preferable approach, now well established, is to ask whether it is the purpose of the legislation that an act done in breach of the provision should be invalid. Similarly, where the question is whether the existence of a fact is necessary in order that a tribunal have jurisdiction, the legislation must be "construed so as to determine the meaning of the words chosen by parliament having regard to the context of [the] statutory formulation and the purpose or object underlying the legislation": Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 35 at [39] per Spigelman CJ. In the present case, whether the Commission could entertain an application made outside the period specified in the notice is to be determined by construction of s 145(3) in its context and having regard to the purpose of the legislation.
17 So approached, the employer's submission can not be accepted.
18 Commonly payments will be made by the WorkCover Authority to employees of uninsured employers without proceedings brought by the worker under s 144 or s 144A of the Act, and thus without any question of an order for reimbursement pursuant to s 144(5) or 144A(3). The primary mechanism for reimbursement of the WorkCover Authority is the notice procedure under s 145, which by s 145(6) gives the WorkCover Authority a right to recover in a court of competent jurisdiction an amount specified in a notice served under s 145(1) where an application has not been made under s 145(3). Service of a notice leading to a right of action is intended to provide for expeditious and certain recovery of payments, and application within the period specified in the notice is part of the expedition and certainty.
19 Section 145(3) is clear in its terms, entitling the person on whom the notice had been served to apply within the period specified in the notice and as a corollary denying any such entitlement outside the period specified in the notice. Section 145(4) then confines the application which the Commission may hear and determine to an application so made, by the clear words "any such application": the employer's submission takes no account of the word "such". The Commission's power to determine the person's liability in respect of the payments is enlivened only by the making of an application within the period specified in the notice.
20 R v Lincolnshire Appeal Tribunal, ex parte Stubbins was a very different case, in which a regulation requiring the delivery of a notice of appeal within a stated time was construed by the majority as intended to make known that there was to be an appeal, so that failure to deliver the notice did not matter when the intention was thoroughly known. Howard v Secretary of State for the Environment is against the employer. It was there accepted that a provision whereby a person could appeal against an enforcement notice within the period specified in the notice at the end of which it was to take effect was imperative as to the specified period, see per Lord Denning MR at 242, Stamp LJ at 243 and Roskill LJ at 243-4. The reasons of Stamp LJ included that "[t]he machinery of the enforcement provisions and the appeal therefrom simply would not work unless there was some fixed time put in section 16(1) to limit the time in which an appeal is to be brought". A similar observation may be made as to s 145(3) of the Act.
21 In my opinion, the Deputy President was correct in her decision. Leave to appeal should be granted, with a direction that the employer file its notice of appeal within seven days, but the appeal should be dismissed. The employer should pay the costs of the WorkCover Authority.
22 SANTOW JA:
INTRODUCTION
These proceedings for leave to appeal and a concurrent hearing are brought by Raniere Nominees Pty Ltd trading as Horizon Motor Lodge ("Raniere"). They are brought against the WorkCover Authority of New South Wales ("WorkCover"). They seek to challenge decisions below by an Arbitrator and by Deputy President Fleming of the Workers' Compensation Commission ("the Commission"). They concern the statutory scheme under the Workers Compensation Act 1987 ("the Act"); in particular whether WorkCover may, under the default procedure in s145 of the Act, obtain reimbursement by notice served upon Raniere, an uninsured employer, for payment WorkCover had earlier made to that employer's injured worker.
23 The issue arises because, by reason of Raniere's tardy response to WorkCover's statutory notice triggering that reimbursement procedure, the Commission determined that it was deprived of jurisdiction to determine the employer's liability in respect of the payment concerned. That left the default procedure to operate to reimburse WorkCover. That deprivation of jurisdiction was held to arise by reason of the terms of s145(3) of the Act, quoted below. That section requires the employer (here Raniere) seeking a Commission determination of its liability to reimburse, to make application to the Commission within the period specified in WorkCover's notice. This it failed to do. While there is an implication that such notice period must be reasonable, no issue of reasonableness arises here.
24 The statutory scheme is known by the acronym ULIS being the "Uninsured Liability and Indemnity Scheme". That scheme deals with the situation where an employer fails to take out insurance for its liability under the Act. WorkCover may then in its discretion pay or decline to pay compensation from the WorkCover Authority Fund for work injury damage suffered by an employee whose employer was uninsured for its liability under the Act (s143). If WorkCover pays the injured worker it may then seek reimbursement from the employer for the amount paid, doing so under one or other of two statutory mechanisms for reimbursement (s144 or s145 of the Act), as applicable in the circumstances. They are essentially distinct, though there is a cross-reference in s144 to s145, as I explain. The employer may contest reimbursement in accordance with the requirements of the applicable provision (s144 or s145).
25 By a series of statutory amendments, proceedings under s144 or s145 are no longer brought in the repealed Compensation Court but in the Commission, as indeed were the later s145 proceedings here; Workers Compensation Legislation Amendment Act 2001 which came into force on 1 January 2002. There were transitional provisions made pursuant to the Compensation Court Repeal Act; in particular the Compensation Court Repeal (transitional) Regulation 2003. Regulation 7 relevantly provides for appeals:
"(1) For the purposes of an appeal, on or after 1 January 2004 against an award of the Compensation Court in respect of proceedings relating to a jurisdiction other than the residual jurisdiction of the District Court:
(a) in the case of an award of a Judge of the Compensation Court - the award is taken to be a decision referred to in section 353 of the 1998 Act (that is, a decision of a Presidential member of the WCC) …"
26 While Raniere seeks to resist reimbursement to WorkCover under s145, it seeks to rely also on what transpired in earlier s144 proceedings brought by the injured worker in the Compensation Court. Raniere seeks to demonstrate that in the s144 proceedings it had sufficiently indicated an intention to contest reimbursement so as to satisfy s145(3).
27 Under s144 proceedings an injured worker dissatisfied with a decision by WorkCover not to pay may contest that decision. WorkCover is able to join the employer concerned (here Raniere) so as to seek an order for that employer to reimburse WorkCover if adjudged liable.
28 The s144 proceedings in this case were brought by the worker against both WorkCover and Raniere (as first and second respondents). They included the worker seeking an order for the employer Raniere to reimburse WorkCover for such amounts as it may pay out of the statutory fund to the worker. Raniere by way of "answer" in these s144 proceedings put all issues in dispute insofar as they related to liability to the worker; WB, Tab 19.
29 Had those contentions been resolved in favour of the employer, it could be expected to have relied on that result to resist reimbursement to WorkCover even if brought under s145. However what actually occurred was that as between the injured worker and WorkCover consent orders making payment to the worker were made, but without any determination of the merits. WorkCover then made payment from the Fund to the injured worker in response to the worker's ss66/67 lump sum claim. Orders subsequently made by the Compensation Court under s144 requiring Raniere to reimburse WorkCover were the subject of successful appeal to the Court of Appeal. On 22 May 2004 it set those orders aside, remitting the matter for further hearing. The worker subsequently discontinued those s144 proceedings in 2005. That left s145 proceedings as the only avenue for reimbursement.
30 Section 145 proceedings provide an alternative regime whereby WorkCover may require by notice to the employer reimbursement from the employer for money already paid to the injured worker so as to be recoverable as a debt in a court of competent jurisdiction. This regime is what I have called the default procedure. It is, as the Commission determined, directed to ensuring expedition and finality in processing a claim for reimbursement, subject to the employer's rights under s145(3). Under s145(3) such reimbursement is contestable by the employer who complies with the procedures in s145(3) whereby the
"person on whom a notice [pursuant to s145(1)] has been served … in respect of an injured worker may, within the period specified in the notice , apply to the Commission [originally 'the Compensation Court'] for a determination as to the person's liability in respect of the payment concerned" [emphasis added].
31 In those s145 proceedings, by s145(6) WorkCover may recover the amount specified in "a notice in respect of which an application has not been made under subsection (3) as a debt of the person on whom the notice was served in a court of competent jurisdiction" [emphasis added].
32 The s145 proceedings which here followed the earlier s144 proceedings were initiated by WorkCover on 14 August 2003 by giving notice pursuant to s145(1) seeking reimbursement from Raniere. As I have explained, that notice, if not the subject of a valid application by Raniere under s145(3), leads automatically under s145 to a debt for the reimbursement amount recoverable in a court of competent jurisdiction; s145(6). Raniere, however, only made application some two months after the time specified in WorkCover's s145(1) notice. It thus, according to the decisions sought to be challenged, failed to comply with s145(3) so giving rise to a statutory debt in favour of WorkCover and recoverable in a court of competent jurisdiction.
33 The central issue of this appeal is therefore whether, given non-compliance with s145(3) of the Act, the Commission did indeed lack jurisdiction (as concluded by the Arbitrator and Deputy President Fleming) to permit Raniere to seek a determination by the Commission as to its liability as employer in respect of WorkCover's payment to the worker.
34 There are two related grounds now pressed by Raniere in seeking leave to appeal. First, was the Commission under the s145 proceedings already seised of jurisdiction as a result of the earlier s144 proceedings commenced in the Compensation Court? Second, had Raniere substantially complied with the statutory notice requirement under s145(3) of the Act by the steps it had taken in lodging a reply disputing liability to WorkCover's earlier application to the Compensation Court in the earlier s144 proceedings? Both these grounds are pressed in an endeavour to preserve Raniere's capacity to resist reimbursement of WorkCover (on the basis that it was not liable to the injured worker) notwithstanding any apparent non-compliance with s145(3).
35 There is a difficulty with these contentions. Essentially the difficulty is that the s144 proceedings represent a distinct regime for reimbursement associated with a worker-initiated action. That action, as was determined in an earlier Court of Appeal decision, engages only so much of s145 as is applicable in the circumstances; Raniere Holdings Pty Limited v Daley & Anor [2005] NSWCA 121 at [42], [47] and [48] per Tobias JA. Section 144 proceedings cannot provide the means for satisfying an essential statutory condition for resisting reimbursement under the distinct s145 regime. Under s145, reimbursement is initiated not by the injured worker but by WorkCover giving the s145(1) notice to the employer. It is predicated upon WorkCover having already paid out of the Fund money to the injured worker. The s144 proceedings in the present case could not be treated as themselves determining any reimbursement issue as no determination was ever made on the merits and the proceedings themselves were discontinued by the injured worker.