Rundle v Workcover/Vero Workers Compensation

"The time prescribed or allowed by any Act for any proceeding, or for the doing of any thing, or for suffering any thing, 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 on which the proceeding is to be taken or the thing is to be done or suffered".

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

5 In the context of this case both sub-sections are important. 24 October 2003 was a Friday. As the next day was a Saturday, the 21 day period of notice had to be calculated from the following Monday, 27 October 2003. Mr Warren contended that to comply with the Act the earliest the notice of discontinuance could legally take effect was Tuesday 18 November 2003, not Monday 17 November 2003 as stipulated in the letter.

6 The case manager who issued the determination gave evidence before the learned Deputy President. On the basis of that evidence the learned Deputy President found that although Mr Morgan did not knowingly intend not to give the worker 21 days clear notice he made a clerical error and miscalculated by one day.

7 The worker's application for summary judgment was founded on one of two bases.

8 The first was that the Tribunal was bound by a decision of the Workers Compensation Appeals Tribunal in Brown v The Corporation (Glen McMahon Ltd) (1992) 4 WCATR 72. It was submitted that this case was binding authority for the proposition that stipulating the wrong day upon which the discontinuance was to lawfully take effect rendered a s 36 determination invalid.

9 The second was that in light of the finding that Mr Morgan, albeit in good faith, intended to stop the worker's weekly payments a day before they were entitled to be stopped, the decision of the Full Bench in Wright v Department of Employment, Training and Further Education [2004] SAWCT 50 also compels a conclusion that in those circumstances the determination is invalid.

The consequences of a procedural irregularity in a s 36 determination

10 Much of the debate before us focused upon the nature of the requirement to give 21 days notice as prescribed by s 36(3a). Mr Warren contended that it was an absolute requirement and anything less rendered the determination invalid. Mr Luke, counsel for the Corporation, contended that substantial compliance resulting in no real prejudice to the worker was sufficient. As it was, in this case the worker suffered no prejudice. His timely lodgement of a Notice of Dispute resulted in the immediate suspension of the s 36 notice and he has continued to receive weekly payments ever since.

11 That being so, the result that the worker urges upon us might be regarded as an odd one and the ultimate triumph of form over substance - an innocent miscalculation of one day that caused no harm and on the worker's case deprives the Corporation at least for now of the opportunity to have the worker's continued receipt of weekly payments tested on its merits.

12 There are numerous decisions of this Tribunal and its predecessor that have held that the procedural requirements prescribed by Parliament in connection with determinations that a compensating authority may make to reduce or discontinue a worker's weekly payments cannot be disregarded. See, for example: Wills v The Corporation (Magill Demolition) (1988) 1 WCATR 243, Brown (supra), Wright (supra) and Staines v WorkCover/ Allianz Australia Workers Compensation (SA) Ltd (Air International Pty Ltd) [2004] SAWCT 127.

13 We see no reason to depart from these decisions. In laying down these procedures, designed as they are to protect a worker from the arbitrary and unanticipated reduction or discontinuance of weekly payments, Parliament plainly expected that they would be complied with and the authorities that reflect that view are with respect plainly correct.

14 However, an issue that was not expressly dealt with in any of these cases concerns the legal status of a procedurally irregular s 36 determination. For reasons that will become apparent, this is an important issue that holds the key to resolving the matter now before us.

15 If the irregularity renders the determination void for all purposes the determination creates no rights. It is as if the Corporation never made the determination in the first place.

16 Whatever injustices might flow from a belated challenge, the Tribunal would be powerless to act. This is so because as noted by Debelle J in Jacobs v OneSteel Manufacturing Pty Ltd & WorkCover Corporation of South Australia [2006] SASC 32 at par 12: "The Tribunal is not an administrative tribunal but a judicial tribunal with the statutory duty to resolve disputes according to law."

17 If, however, the procedural irregularity merely renders the determination voidable, in the sense that it is valid and operative unless and until challenged, the determination does create rights and liabilities. More importantly, it potentially enables the Tribunal to decline to accede to such a challenge, for example on the basis of waiver, estoppel, laches or to prevent an abuse of process.

18 We use the words "void" and "voidable" reservedly, mindful that they can mislead and "invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights": Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 at 458, per Windeyer J, see also: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 613, per Gaudron and Gummow JJ.

19 The real issue is not the identification of the most appropriate legal adjective. Rather, it is to identify what Parliament intended the effect of a procedurally irregular determination to be.

20 Part of that process can include a consideration of the inconvenience or absurdity that might occur if one view was taken over another: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

21 If a determination made pursuant to s 36 that fails to comply with the procedural requirements prescribed is devoid of any legal effect consequences that might be regarded as inconvenient or absurd would follow.

22 Arguably, the Tribunal would have no jurisdiction in respect of such a purported determination. If payments had ceased or been reduced in purported reliance upon the defective determination, the remedy might not lie in the lodgement of a Notice of Dispute but upon an application for judicial review filed in a Court with jurisdiction to grant relief compelling the compensating authority to reinstate weekly payments to their rightful level. That might be thought to be a very surprising outcome.

23 It might be thought to be much more likely, in the context of an Act whose declared objects include reducing "litigation and adversarial contests to the greatest possible extent" and which has established a Tribunal which save for limited circumstances has exclusive jurisdiction over issues arising under the Act, that Parliament intended that complaints about the validity of a determination would be dealt with by the Tribunal in accordance with the expeditious dispute resolution process that Parliament has created for it.

24 If non-compliance renders a determination devoid of any legal effect presumably any non-compliance would render it so, however innocent or inconsequential the non-compliance might be. It might be thought absurd that an obvious and minor typographical error that caused no prejudice would defeat a notice that was good in all other respects.

25 This leads us to conclude that Parliament intended a defective notice to affect rights unless and until set aside by the Tribunal.

26 In reaching this conclusion we are mindful that in Wills it was said: "Failure to comply with any one of those substantive requirements meant that the Corporation never at any stage established an entitlement to discontinue the weekly payments" (supra) at 256. We also appreciate that Brown spoke of such a notice being "a nullity" and that Wright used the word "invalid", as did Staines.

27 As to the use of these expressions in those cases, we are also mindful of the warning issued by Windeyer J in Brooks v Burns Philp Trustee Co Ltd (supra) about the use of such legal adjectives, and for the reasons explained by him and by Dixon J (as he then was) in Posner v Collective for Interstate Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461, we think it would be reading too much into their use to conclude that they reflect a considered view as to the legal status of a procedurally irregular s 36 determination. If the Tribunal in any of those cases did intend to communicate the notion that the subject determination was devoid of any legal consequences it did so in error.

28 A consequence of this conclusion is that notwithstanding the so-called mandatory nature of the procedural requirements of s 36, a failure to comply with those requirements will not necessarily, in every case, result in the determination being set aside because of that irregularity. An order setting aside the impugned determination will be required before it is rendered ineffectual. The Tribunal might conclude that in the circumstances of the case it is not appropriate to grant that relief. This should not be understood as meaning that the notice requirements provided for by provisions such as s 36 are discretionary and can be ignored with impunity. In conformity with Parliament's intention, a failure to comply with the procedural requirements of s 36 will, if the issue is raised in a timely and appropriate way, invariably lead to an order striking out the notice and granting summary relief.

29 But not always.

30 The question that then arises is what is the source of power that would enable the Tribunal to decline to grant that relief.

31 As we understood Mr Warren, he contended that it only derived from the inherent power to prevent abuses of process. He expressly rejected the suggestion that the capacity of the Tribunal to refuse such an application might derive from its obligation as prescribed by s 85 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

32 In Wills the Workers Compensation Appeals Tribunal (Presiding Member Stanley J) expressly rejected the argument that the analogous provision (s 88 of the Act as it then was) could be relied upon in this way. That provision provided that: "...a review authority shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms" and "is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit".

33 Stanley J concluded that the scope of the provision was limited to evidentiary matters.

34 Stanley J was entitled to think that the reference to the rules of evidence in the section using the expression "equity, good conscience" coloured the expression's meaning. As White J noted in Griggs v Norris Group of Companies (including SA Helicopters Pty Ltd) [2006] SASC 23 at par 32 the scope of an "equity, good conscience" provision varies according to the context in which it is used.

35 The reformulation of the equivalent provisions in the current Act provides an interesting contrast. A separate section relieves the Tribunal from strict compliance with the rules of evidence: s 84. The section employing the expression "equity, good conscience" is contained in a separate Division of the Act titled "General principles and rules".

36 This strongly suggests that s 85 is not concerned with matters of evidence. If that is not its purpose, it must therefore be concerned with freeing the Tribunal "from constraints otherwise applicable to courts of law" Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 per Gleeson CJ and McHugh J.

37 That does not mean that the Tribunal is thereby empowered to simply arrive at its own conclusion as to what is a fair outcome without regard to the law. See: Qantas Airways v Gubbins (1992) 28 NSWLR 26 at 31 per Gleeson CJ and Handley J and Jacobs v OneSteel Manufacturing Pty Ltd & WorkCover Corporation of South Australia (supra) per Debelle J.

38 What it does is recognise is that in an appropriate case the Tribunal may decline to grant relief in exceptional circumstances. It empowers the Tribunal to ignore technicalities and focus on the substantive merits of the case when to do otherwise would be contrary to the statutory obligation that s 85 creates, and to thereby prevent the triumph of form over substance. Thus, in a case like this the Tribunal might conclude that despite the mistake contained in the letter and despite the mistake that the Corporation made in intending to stop the worker's weekly payments a day early, it should not in all the circumstances grant the worker the relief that he seeks because to do so would not be to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.

Matters relevant to its invocation in a case such as this

39 Without intending to express any limitations upon the scope of the obligations that s 85 imposes or the circumstances in which they are enlivened, in a case like this considerations that will guide the Tribunal as to s 85's invocation are whether to not do so would "be manifestly unfair" or would bring "the administration of justice into disrepute among right-thinking people". See: Walton v Gardiner (1992-3) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.

40 We understand that the first mention of a challenge based upon an alleged irregularity was made at trial, with no hint of such a challenge in the processes of conciliation or during the making of trial directions at the pre-trial compliance conference. If that is so there are strong grounds for concluding that it would be manifestly unfair to the Corporation to allow the application for summary relief.

41 On those facts it would be reasonable to infer that if the Corporation had been on notice earlier it might have conceded that challenge and have issued a fresh notice rather than run the risk that the challenge would succeed. It would be reasonable to infer that the delay deprived it of that opportunity. In light of this, and the lack of prejudice suffered by the worker because of the errors made, the power conferred by s 85 would be enlivened and the application for summary relief would be refused because it would be manifestly unfair to grant it.

42 If our understanding of the facts is correct the second consideration referred to in par 39 would independently enliven the obligation to invoke s 85 and refuse the relief sought.

43 Rule 12(1) of the Workers Compensation Tribunal Rules concerns Notices of Dispute and requires a party to "provide [in the Notice] sufficient particulars to enable the compensating authority to understand why its decision is disputed". Plainly, this is the time and place to raise as an issue any alleged procedural irregularity in a s 36 determination. To entertain a belated challenge based upon an alleged procedural irregularity on the morning of trial without any prior notice or application to seek leave to amend the Notice of Dispute, the trial orders or the statement of issues ordered in connection therewith, would among right-thinking people bring the Tribunal into disrepute. Those theoretical bystanders would conclude that to allow a party on an issue such as this to ride roughshod over procedural requirements plainly intended to prevent the prosecution of preliminary points at the eleventh hour would indicate that the Tribunal was not serious about its management of cases and the responsible use of its limited resources. They would expect that if the Tribunal was serious about these things it would insist upon the party seeking leave to amend the trial orders and for that application to be determined having regard to matters of the type alluded to by Kirby J in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 167 - 172.

44 The first question that has been posed to us is:-

"Does the failure by the Corporation to give to the worker a notice that complies with s 36(3a) of the Act as to the period of time before a decision of the Corporation is to take effect in any of the cases set out in s 36(3a)(a)-(c) of the Act thereby render the notice (or the decision the subject of the notice) invalid?"

45 For the reasons explained, in our view that failure does not render the decision invalid in the sense that it was devoid of any legal effect. What it does is render the notice irregular and susceptible to an application to set it aside on the grounds of that irregularity.

46 Our answer to question 1, therefore obliges us to answer question 2 which asks:-

"If 'no' to question 1, is the notice of discontinuance (or the decision to discontinue) pursuant to s 36(1)(b) of the Act the subject of dispute in action no. 7557 of 2003 rendered invalid in the circumstances of and on the basis of the findings of fact made by Deputy President Judge Gilchrist in [2005] SAWCT 63?"

We are unable to answer this question because the answer depends upon the facts underpinning the worker's application for summary relief.

47 The matter will need to be remitted to the learned Deputy President to determine in conformity with these reasons.