Rundle v Workcover/Vero Workers Compensation

4 Mr Warren, counsel for the worker, contends that in determining the time from which the giving of the notice required by s 36(3)(a)(i) is to commence s 27 of the Acts Interpretation Act 1915 must be applied. That section provides as follows:-

"S 27 (1) The time prescribed or allowed by any act for any proceeding, or for the doing of anything, or for suffering anything, will be taken not to include the day of the act or event from or after which the time is to be calculated, but to include the day in which the proceeding is to be taken or the thing to be done or suffered.

(2) If the time so prescribed or allowed falls or expires on a Saturday or Sunday, or any public holiday, the time must be extended so as to fall or expire on the day next following the Saturday, Sunday or public holiday that itself is not a Saturday, Sunday or public holiday..."

5 The 24 October 2003 was a Friday. Hence, Mr Warren contends that pursuant to s 27(1) of Acts Interpretation Act the 21 day period commenced on Monday 27 October 2003 such if 21 clear days notice was to be given the notice of discontinuance could not legally take effect until Tuesday 18 November 2003.

6 At the commencement of the hearing much was made of s 117(2) of the Act which provides:-

"In any case to which subsection (1) applies, unless the contrary is proved, service of a notice or document shall be deemed to be have been effected two business days after the date of posting."

7 As events transpired this issue became irrelevant because the evidence clearly established that the letter containing the Corporation's determination was placed in the worker's letterbox on Monday 27 October 2003.

8 The worker's evidence was that he did not clear his letterbox everyday.

9 It is clear that he was in receipt of the Corporation's determination on Tuesday 28 October 2003 because his solicitor's file note records a telephone discussion that took place that morning wherein the worker discussed the determination.

10 The worker is now, unsurprisingly, unable to say whether he picked the letter up on the morning immediately before he made the phone call to his solicitor or whether he did so sometime the preceding day.

11 However, for the purpose of Mr Warren's argument, it makes no difference. On his argument the earliest the determination could have taken effect was 18 November 2003.

12 Mr Warren contended that two consequences flowed from this.

13 The first was that the determination contained an error, it stipulating the wrong day upon which the discontinuance was to lawfully take effect. He submitted that I was bound to follow the decision of Workers Compensation Appeals Tribunal in Brown v The Corporation (Glen McMann Limited) (1992) 4 WCATR 72 (presiding officer Stanley J) and that consistent with that authority the error on the face of the determination rendered the determination invalid.

14 Secondly, he submitted that the contents of the letter when coupled with the oral evidence of its author, Mr Robert Morgan, obliged me to find as a fact that the Corporation intended to stop the worker's weekly payments on 17 November 2003, and that it therefore did not intend to give the worker the mandatory 21 day notice prescribed by the Act. As I understand his argument, he submits that the decision of the Full Bench of the Tribunal in Wright v Department of Employment, Training and Further Education [2004] SAWCT 50 compels the conclusion that in those circumstances the determination is invalid.

15 There is much force in what Mr Warren says.

16 The decision of Brown v The Corporation (Glen McMann Limited) (supra) cannot be distinguished. In that case, by letter dated 18 July 1991 the Corporation advised the worker that its notice of reduction was to take effect on 5 August 1991. It followed that no matter what date subsequent to 18 July 1991 the letter was actually received by the worker the period of notice had to be less than the prescribed period of 21 days mentioned in s 36(3a). The Tribunal held at p 81:-

"...we are of the view the use of the word "must" where it appears both in the second line of subsection (3) and also in the first line of subsection (3)(a) is a clear indication that those provisions are intended to be mandatory in their operation. Those requirements place an absolute obligation on the Corporation to comply with those provisions if it wishes to discontinue or reduce weekly payments. It follows that a failure by the Corporation to give the worker a notice, which compiles with subsection (3) as to substance, and subsection (3)(a) as to the period of time before the decision of the Corporation is to take effect, renders the notice invalid. See Smith v Cammell Laird and Co [1940] AC 242 per Lord Aitkin p 258."

17 If I were to follow Brown I would have to grant the worker the summary relief that he seeks.

18 As to the alternative argument, in Wright v Department of Employment, Training and Further Education (supra) the Full Tribunal said at par 17 - 23:-

"This leads us to conclude that the compensating authority cannot decide to give effect to the decision without giving at least the 21 day notice period, and if it does so then its determination will be invalid.

However, it does not follow, from the mere fact that a payment of weekly payments of income maintenance was not received during the 21 day period immediately following the giving of the notice, that the decision was made for the notice to take effect before the 21 day expired...

In our view, the critical issue, is whether, at the time of the making of the determination, the compensating authority intended to give the worker at least 21 days notice before the decision was to take effect."

19 On the basis of Mr Morgan's evidence, I find that although he did not knowingly intend not to give the worker 21 days clear notice of the Corporation's intention to discontinue his weekly payments, he made a clerical error and he miscalculated by one day. He honestly but mistakenly believed that the payments could be lawfully discontinued on 17 November when in fact the earliest date was 18 November 2003. If the observations made in Wright as set out above are taken literally it may be that that clerical error is sufficient to render the determination invalid.

20 As events transpired in this case the worker suffered no prejudice as a result of the Corporation's error. Because of his timely lodgement of a Notice of Dispute, pursuant to s 36(4) of the Act the Corporation's determination was suspended and it continues to remain suspended pursuant to s 36(4)(b). In those circumstances and given the lack of any bad faith on the part of the Corporation, to allow the worker to rely upon a technicality to avoid an adjudication on the merits may seem unjust. However, that may be the inevitable consequence of the proper construction of the relevant provision.

21 The issue before me is an important one. Compensating authorities routinely issue determinations pursuant to s 36 and it is in my view highly desirable for there to be a clear decision outlining the parties' respective obligations and rights in respect of the notice provisions prescribed by the Act.

22 I am not convinced that the decisions of Brown or Wright provide the definitive answer.

23 Brown was decided at a time when the approach to issues such as this was based upon a characterisation of the relevant provision as mandatory or directory and it is clear that the Tribunal applied that approach in coming to its conclusion. As Perry J noted in Police v Lloyd [2004] SASC 54 at par 35:-

"While the characterisation of statutory provisions as imposing either mandatory or directory obligations is supported by a long line of authorities, more recent authority doubts the utility of the distinction."

24 A re-evaluation of the provision in line with the more contemporary approach may yield a different answer.

25 As for Wright, it arguably was confined to its own facts. There the worker had sought summary judgment on the ground that the weekly payments ceased to be paid before the expiration of the 21 day period. In allowing the appeal and remitting the matter back, the Full Bench held that this might be evidence capable of supporting a finding that the compensating authority never intended to give the notice required and that such a finding could support the application for summary relief. Arguably it does not cover the situation where there has been an honest but mistaken belief that the 21 day period expired on a day earlier that what was legally the case.

26 In all the circumstances I have resolved that this is an appropriate matter to refer to the President for certain aspects of this dispute to be heard and determined by a Full Bench of the Tribunal pursuant to s 94A(2) of the Act.

27 I therefore adjourn further consideration of this judicial determination to enable the parties to consider my reasons and to assist me in the formulation of various questions with a view that these will then be submitted to the President. Should he accede to my request that those questions will be heard and determined by a Full Bench of the Tribunal before final disposition of the matter by me.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.