Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Notice of injury - Particular cases - Whether sending notice by facsimile to the worker's work unit amounts to giving notice to the employer.

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Procedure - Section 81A referral based on deficiency of notice- Whether s 37 should be taken into account in determining whether the employer has demonstrated an arguable case.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss 6, 32, 33, 37, 81A.

Tasmanian Health Service Act 2018 (Tas), ss 15, 19, 23.

Crown Proceedings Act 1993 (Tas), ss 3, 4, 13.

Supreme Court Rules 2000 (Tas), rr 693, 709.

Acts Interpretation Act 1931 (Tas), s 29AB.

Electronic Transactions Act 2000 (Tas), s 6.

State Service Act 2000 (Tas), ss 14, 37, 56.

Hazell Bros Pty Ltd v Adams [1999] TASSC 37; Sue v Hill [1999] HCA 30, 199 CLR 462; Pivot Limited v Crawford [1999] TASSC 67, 8 Tas R 40; Sullivan v Hobart City Council and MMI Insurance Limited [1999] TASSC 101; St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43; Tasmania v Herlihy [2019] TASSC 5, referred to.

Judgment Number: [2020] TASSC 13

1. The respondent is a State Service employee who, at the time relevant to this case, was working as a patient services officer in the Specialist Clinic at the Launceston General Hospital. On 29 May 2019, the respondent made a workers compensation claim in respect of psychological injury which she alleged had occurred as a result of workplace bullying. She had left work to consult her general practitioner about stress arising from the alleged bullying on 22 May. The doctor certified as to incapacity for work in the prescribed form, and the respondent arranged for the doctor's receptionist to send the certificate to the facsimile number of the specialist clinic. It was conceded that the certificate constituted sufficient notice of the injury, but the question raised on this appeal is whether sending it by facsimile to the clinic amounted to giving notice to the employer in the manner prescribed by s 33 of the Workers Rehabilitation and Compensation Act 1988 (the WRCA).
2. The claim was disputed by the appellant, who nominated itself as her "employer/authorised agent of the employer". On 22 August 2019, the appellant referred the dispute to the Workers Rehabilitation and Compensation Tribunal pursuant to s 81A of the WRCA. The appellant relied upon two grounds of dispute. The first asserted that the respondent had recovered from the injury. At the hearing of the referral, Chief Commissioner Webster (as he then was) rejected that ground, and that decision is not in issue in this appeal. The other ground asserted that the respondent had failed to provide notice of injury to her employer as soon as practicable after the occurrence of the injury, as required by s 32(1) of the WRCA. The appellant argued that sending the certificate by facsimile did not comply with the requirements of s 33, because this did not amount to giving notice to the employer, nor to anyone else nominated in that section, such as the respondent's immediate supervisor. The Chief Commissioner determined that the employer did not have a reasonably arguable case in respect of that issue and made consequential orders for the payment of compensation.
3. The appellant has now appealed from that decision. The appeal is limited to the determination in respect of the question of notice. By s 63 of the WRCA, the appeal must be based on a complaint "in point of law".

1. The requirement to give notice of injury arises from the provisions of s 32(1)(a) of the WRCA. That section provides that a person's entitlement to compensation is conditional upon notice of the injury having been given to the employer of the worker or a person referred to in s 33(1)(b) "as soon as practicable after the occurrence of the injury". The manner in which notice is to be given is dealt with by s 33. That section provides that notice may be given "orally or in writing". Section 33(1)(b) specifies the persons to whom the notice may be given. Those persons are defined as follows:

"(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 under whose supervision the worker is employed; or

(iii) a person designated for the purpose by the employer; or

(iv) a person having authority or apparently having authority to receive such a notice on behalf of the employer."

1. The section also contains provisions relating to the nature of the information to be provided by way of the notice.
2. The evidence before the Tribunal concerning the question of notice included statutory declarations of the respondent and her immediate supervisor and another worker whom the respondent claimed was deputising for the supervisor on the day in question. Although in her claim form, the respondent attributes her injury to an incident which took place on 21 May 2019, her statutory declaration deals only with the events of 22 May 2019. According to her declaration, she commenced work at the Specialist Clinic at 8am. She asserts that she was left handling a heavy caseload because a co-worker who had been assigned to work with her, was called away early in the day by the supervisor. Shortly before 11.55am, she decided that she needed to leave work because of the stress. She told the co-worker whom she believed had been left in charge by the supervisor that she was leaving work to seek medical attention. She also told an administration officer that she was leaving and asked her to pass that information on to her supervisor. It is not suggested that these conversations provided sufficient information to satisfy the notice requirements of s 32(1)(a).
3. The respondent then attended upon her general practitioner. He issued a workers compensation medical certificate certifying her unfit for work from 22 May 2019 to 24 May 2019. It is common ground that the contents of that certificate do provide sufficient information to satisfy the requirements of a notice. The certificate certified incapacity for work on the basis of an injury described as anxiety/workplace stress secondary to bullying.
4. The statutory declaration says that:

"(5) Dr Fasset's rooms offered to send the certificate through to the LGH. I was advised that that was what they normally did.

(6) I wrote on the fax sheet the number of the LGH Specialist Clinic which was [fax number]. That was the number for the LGH Specialist Clinic where Ktima Turner is the Nurse Unit Manager.

(7) From my experience my certificate would have been brought to Katrina [sic] Turner's attention.

(8) When I got home I then rang the LGH 'pool office' as required to notify LGH administration of the leave I was taking from 22 May 2019 to 24 May 2019. I spoke to an officer there by the name of 'Jackie' to whom I advised that a workers compensation medical certificate had been sent through from Dr Fassett's rooms to the LGH Specialist Clinic authorising my leave.

(9) I was not aware of, and at no time had I been given any instruction or training as to the legal or my employer requirements for the giving of a workers compensation notice of injury."

1. The respondent says that she returned to work on 27 May 2019 at which time she gave her supervisor the original workers compensation certificate.
2. The supervisor, in her statutory declaration, agrees that she received the certificate from the respondent upon her return to work on 27 May. It is implicit in her evidence that this is the first time she had seen the certificate, in other words she did not actually receive the certificate which the respondent supposed had been sent by facsimile. The supervisor's declaration continues as follows:

"5 If Dr Fassett did fax the document to Specialist Clinic it would have been converted into an email which would have been sent to an email address which I seldom check as it has been set up for clerical use.

1. Due to the volume of emails received by this email address on a daily basis (at time[s] exceeding 200 referrals/emails daily) we do not have the ability to store these emails and I cannot verify whether or not Ms Pilling did send her medical certificate as she asserts. At this point in time we only have an ability to trace back 2 weeks' worth of emails. Anything after that is no longer available to be pulled up.
2. Ms Pilling would be aware of this as she has worked in the Administration position previously.
3. Ms Pilling would be aware that it would have been the allocated Administration staff member who would have possibly received the email. There is no way of me knowing if an important document is sent to the generic email address. Mr Pilling would have been able to ask Dr Fassett to email the medical certificate directly to my email address, but she did not."
4. It was put by the appellant to the Chief Commissioner that it was reasonably arguable that the respondent had not given notice as soon as practicable, because sending the certificate by facsimile to the Specialist Clinic did not satisfy the requirements of s 33(1). It was argued that s 33(1)(b)(i) is not applicable when the employer is the State, because such an interpretation would mean that the provision can be satisfied by giving the notice to any agency, or even employee, of the State, and that this defeats the purpose of the notice provision, which is to bring the assertion of an injury to the employer's notice. It is therefore necessary for the notice to be given to one of the persons referred to in subpars (ii), (iii) or (iv). The only person who could in the circumstances of this case accept such a notice is the supervisor, and the appellant submitted that, on the evidence contained in the statutory declarations, it was reasonably arguable that sending it to the facsimile number did not amount to giving the notice to the supervisor.
5. In his decision, the Chief Commissioner referred to comments by Crawford J (as he then was) in Hazell Bros Pty Ltd v Adams [1999] TASSC 37. That case concerned the adequacy of notice given to a company. His Honour had relied upon concessions made that "receipt by a company of a notice by mail or by fax would constitute sufficient notice". The context in which his Honour accepted this concession was in respect of a consideration of whether giving the notice by those means would amount to giving notice to the employer in accordance with subpar (i), and observed that in those circumstances "it was not necessary for the learned Commissioner to look for the giving of notice to one of the persons specified in s33(1)(b)(ii)-(iv) because the giving of notice to the employer simpliciter would have complied with subpara (i)".
6. The Chief Commissioner then dealt with the argument about notice as follows:

"[38] In this case the employer's details report notes the worker's injury or condition occurred at the LGH and the employer is a State Government department which is known as THS - which I infer is the Tasmanian Health Service. That entity is arguably an agency or instrumentality of the Crown. The worker suggests the initial workers compensation medical certificate was faxed by her general practitioner's rooms to the clinic at the LGH in which she worked on 22 May 2019. In those circumstances I do not think it is reasonably arguable to contend there has not been compliance with s33(1)(b). The contents of the initial workers compensation medical certificate satisfy s33(1)(d) and I note it was not submitted otherwise. For the purposes of the worker's condition s3(5) deems a disease to have occurred when there is an incapacity for work and that, on the evidence, appears to be on 22 May 2019 when notice was arguably given.

[39] I do not think there is any substance in the third argument raised by the employer in paragraph 28. Hazell Bros Pty Ltd v Adams (supra) quite clearly demonstrates s33(1)(b)(i) applies to entities such as companies and by extension the State. In this case the instrumentality or agency of the State for whom the worker is employed is the Tasmanian Health Service. She is based at the LGH and she arranged for her general practitioner's rooms to forward the initial workers compensation medical certificate to the clinic at the LGH in which she worked."

1. The grounds of appeal focus on the reliance by the Chief Commissioner on s 33(1)(b)(i). However, before I consider these grounds directly, I should deal with some peripheral aspects of the argument, as developed on the appeal. Firstly, there was no evidence before the Chief Commissioner from the general practitioner or his office confirming that the facsimile had actually been sent to the number provided by the respondent. It can be inferred from the supervisor's declaration that if it was sent to this number, she did not receive it. Mr Robinson, who appeared for the appellant in the Tribunal and on appeal, made the point to the Chief Commissioner that there was no evidence to establish that the facsimile had actually been sent. However, Mr Robinson did not persist with this argument on the appeal. This position is appropriate in the circumstances. It is clear enough that the Chief Commissioner proceeded on the basis that the evidence established that the document had been sent as promised by the general practitioner's rooms. The evidence permitted such an inference, and as the onus was on the appellant to bring to the Tribunal the evidence necessary to establish its arguable case, it was open to the Chief Commissioner to proceed in this way. The appellant had the capacity to adduce evidence from the general practitioner's office, or indeed of a search of the email address referred to in the supervisor's statement, if it wished to press this point. Although the supervisor's declaration, which was dated 17 September 2019, stated that there was only an ability to trace back emails for two weeks, there was uncontested evidence that she had received the medical certificate, which constituted sufficient notice of the alleged injury, on 27 May 2019, well within that two week window. If the notice had not actually been sent to the facsimile number by the medical practice, it was well within the appellant's power to secure and present evidence to that effect.
2. The second aspect is the question of what constitutes "as soon as practicable after the occurrence of the injury" in the circumstances of this case. It is common ground that the respondent provided the certificate to the supervisor when she returned to work on 27 May, and that the certificate provided the information required under the notice provisions. On the hearing of the appeal, Mr Jackson SC, who appeared for the respondent, made the point that 27 May, being a Monday, was only three business days after the commencement of incapacity on 22 May. Mr Jackson's point was that this, in any event, amounted to notice given as soon as practicable, irrespective of whether sending the certificate by facsimile amounted to giving notice in accordance with s 33. However, while there would seem to be considerable force in this argument, it is not sustainable on this appeal given the conduct of the case before the Tribunal. At that hearing, it was conceded by counsel who appeared for the respondent that there was opportunity prior to 27 May for notice to be given. It seems clear that this concession was that as soon as practicable was in fact on 22 May, or at the very least on or before 24 May, which was the Friday. The Chief Commissioner proceeded on this basis. Further, the Chief Commissioner's acceptance of that concession would amount to a determination of fact and cannot now be disputed on appeal.
3. It may well be that, in the Tribunal hearing, the significance of this question was somewhat obscured by an argument by the appellant to the effect that the date of injury was well before 22 May. This argument was rejected by the Chief Commissioner and that determination is not the subject of appeal. In any event, the Chief Commissioner was clearly correct in finding that the date of the injury was 22 May. Section 3(5) of the WRCA provides that where a worker suffers an injury that is a disease, the injury shall be deemed to have occurred when the injury resulted in incapacity or if that cannot be determined, on the day on which a medical practitioner certified that the worker was first incapacitated by reason of the injury. In the circumstances of this case, both occurred on 22 May and, accordingly, this is the deemed date of the occurrence of the injury.

"1 The learned Chief Commissioner misconstrued the provisions of s 33(1)(b) of the Workers Rehabilitation and Compensation Act 1988 by determining that subparagraph (i) could apply to the State, when upon its proper construction it does not apply to the State;

1. The learned Chief Commissioner erred in law in determining that it was not reasonably arguable that the worker had failed to provide the notice referred to in s 32(1)(a) of the Workers Rehabilitation and Compensation Act 1988 on 22 May 2019 in that:

2.1 He determined that the sending of a facsimile to the Launceston General Hospital Specialist Clinic was notice of an injury to the Appellant pursuant to s 33(1)(b)(i) of the Workers Rehabilitation and Compensation Act 1988 when it was not open to do so; and

2.2 He treated the Respondent, the State of Tasmania, as analogous to a company when construing the terms of s 33(1)(b)(i) of the Workers Rehabilitation and Compensation Act 1988 when the State was not and could not be so considered."

1. It is common ground that the respondent was, at the relevant time, employed as a State Servant, notwithstanding that she was performing duties for the purposes of the Tasmanian Health Service (THS). The premise of the appellant's argument which forms the basis of ground 1 is that the respondent's employer was the State of Tasmania, not the THS. The appellant argues, that, as a matter of statutory construction, s 33(1)(b)(i), which permits the notice to be given to "the employer of the worker", does not have application or operation where the employer is the State or the Crown. This argument is based on the practical implications of the application of the provision to the State as an entity, and the fact that those practical considerations are at odds with the purpose of the notice provisions generally. In particular, it is argued that the State is constituted or represented by many diverse agencies and individuals, and the notice requirement could therefore be discharged by notice being given to any such agency or person, notwithstanding that the recipient has no actual relationship with or knowledge of the worker or the relevant employment. This could result in absurd and clearly unintended results, which may defeat the purpose of giving prompt notice of an injury. Hence, it is submitted, the provision should be read down to avoid an interpretation which will lead to such consequences.
2. The first part of the appellant's argument is accurate, that is, the respondent was not employed by the THS. Under the WRCA, an employer is defined to mean "the person with whom a worker has entered into a contract of service". It may include the Crown. The THS is a body corporate constituted pursuant to the provisions of the Tasmanian Health Service Act 2018 (THSA). Although s 15 of that Act provides that the THS represents the Crown, as a body corporate, it is not the Crown. Further, s 19 sets out the powers of the THS. Under par (b) the THS has power "to enter into contracts, other than contracts of employment". This provision is complemented by s 23, which provides that the THS may make arrangements for State Service officers or employees to be made available to it for its purposes. The clear effect of these provisions is that the THS has no power to employ staff or enter into contracts of employment, but rather must arrange for State officers or employees to perform work for its purposes. Accordingly, the THS cannot be the employer of the respondent for the purposes of the WRCA, having regard to the definition of that term in that Act.
3. It is accepted by the appellant that for the purposes of the WRCA, it is the employer of the respondent, and any liability to pay compensation under the WRCA will fall upon it. In view of this concession, it is not necessary to examine this question further. However, it is worth observing that the terms of employment of a State employee are provided for by the State Service Act 2000 (SSA). Under that Act, the employer is specifically defined as the Minister administering the Act: see s 14. By s 56, this is the Premier. It is the employer as defined in the SSA who appoints a State employee to his or her position and hence who enters into the relevant contract of service. Under s 37(1)(b), the appointment is "on behalf of the Crown", but this does not detract from the specific nomination of the Minister as the employer. It is arguable, therefore, that the respondent's employer at the relevant time for the purposes of the definition of the WRCA, was the Premier.
4. Whether or not the Premier can be described as the "Crown", or an agency of the Crown is, in the circumstances of this case, beside the point and, in view of the said concession, does not require resolution. It is clear that the Chief Commissioner was mistaken in his identification of the true employer of the respondent. He relied on the definition of "Crown" in s 3 of the Crown Proceedings Act 1993 to equate the relevant Minister with the Crown, but the provisions in that Act only apply for the purposes of that legislation. The Chief Commissioner described the THS as an agency or instrumentality of the Crown, and made a finding that "the employer is a State Government department which is ... the Tasmanian Health Service". However, this conclusion is in conflict with the provisions already discussed. Those provisions establish in particular that the THS was not the employer of the respondent. However the respondent's employer might be described, it was not the THS.
5. Mr Jackson argued that despite these provisions, the THS ought be considered as the Crown and, hence, as the direct employer of the respondent. He relied on a discussion by Gleeson CJ, Gummow and Hayne JJ in the High Court decision of Sue v Hill [1999] HCA 30, 199 CLR 462. That discussion was entitled "The meaning of 'the Crown' in constitutional theory", and analysed the various meanings of the term "the Crown" according to usage. One meaning is "the government, being the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business". Mr Jackson argued that the employment of the respondent by the Premier on behalf of the Crown for the purposes of the THS, led to the conclusion that the THS should be considered the true employer of the respondent for the purpose of the WRCA. This argument is not without force, but the general propositions upon which it is based cannot, in my view, overcome the specific provisions of the THSA, which preclude the THS from entering into contracts of employment. The THS was not the respondent's employer, nor was it a constituent part of the employer for employment purposes.
6. It would appear, therefore, on this basis alone, that the Chief Commissioner's critical reasoning was in error. This reasoning was that by faxing the certificate to her work unit, the respondent had given the requisite notice to the THS, which was her employer. The Chief Commissioner had not had his attention drawn to nor had he considered, the legal status of the THS, nor the relevant provisions of the THSA. He drew no distinction between the THS and the State Government. He proceeded on the assumption that the respondent was a State Government employee, the THS was a part of the State Government and therefore service on the THS complied with s 33(1)(b)(i). This analysis was flawed for the reasons given.
7. In any event, even if the THS could be equated with the State or was an agent of the State for the purposes of the respondent's employment, I do not think that giving notice generally to anyone within the relevant work unit of the THS complies with the provisions of subpar (i). Section 33 is clearly designed to provide specifically for the manner in which notice of injury is to be given under s 32. It is instructive that s 159, which deals with the service of documents under the WRCA, specifically excludes notice of injury and claims for compensation from its application. As Crawford J said in Pivot Limited v Crawford [1999] TASSC 67, 8 Tas R 404 at [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."

1. Section 35 provides for service of a claim for compensation. This can be achieved by delivering it "personally" to an employer or a person designated for that purpose by the employer. The comparison between this provision and s 33, and the identification in s 33 of a number of qualified persons other than "the employer" to whom notice may be given, suggests that delivery to an employee, other than a person specified in s 33, will not be adequate to give notice to the employer. The Chief Commissioner relied upon the said comments of Crawford J in Hazell Bros Pty Ltd v Adams (above), but I do not think that these comments were intended to suggest that service generally on any person employed by the employing entity, even someone working within the same work unit as the worker, is sufficient. In that case, his Honour simply noted a concession by both parties that receipt by a company at its head office "by mail or by fax" would constitute sufficient notice to the employer for the purposes of subpar (i). There was a stronger argument than that in this case, that there had been notice given to "the employer", but I think that his Honour's acceptance of an agreed position, without full argument or consideration, has limited authoritative value. In the case of the Crown or even the THS, I would not be satisfied that simply faxing the notice to the work unit, or even giving it personally to any person within that unit, would amount to giving the notice to the employer in accordance with s 33(1)(b)(i).
2. That is not to say that I accept the general proposition that underpins ground 1. It is not necessary nor desirable to resolve that question in this case. I doubt that a question of statutory construction arises in any event. It is more a practical issue as to how notice may be given to the employer where the employer is the Minister of the Crown. As already noted, by s 3, "employer" may include the Crown. Further, s 4(1) provides that the WRCA binds the Crown "in all its other capacities and, accordingly, applies in respect of a worker employed by or on behalf of the Crown". However, there is no specific provision as to how notice may be "given" to the Crown. The method of service of a court process or document, once civil proceedings have been commenced, is prescribed by s 13 of the Crown Proceedings Act, but the application of this provision will not extend to notice of injury, which by definition precedes court proceedings. Whatever may be the answer to that question, I am satisfied that compliance with subpar (i) cannot be achieved by simply faxing the notice to the work unit. Further, I reiterate, in any event, that the THS was not the employer, and I reject the proposition that service on the THS amounts to service on the Crown. These findings are adequate to resolve the application of subpar (i) to the circumstances of this case.
3. Notwithstanding the practical difficulty of giving notice directly to the employer in the case of an entity such as the Crown, achieving compliance in respect of a work unit such as that relevant to this case, is relatively straightforward. In most circumstances, compliance can be easily achieved by giving notice to the person under whose supervision the worker is employed (s 33(1)(b)(ii)). In fact, it would seem obvious from the statutory declaration of the respondent that this is what she was attempting to do, that is send the relevant notice to her supervisor. The real question for the Chief Commissioner in this case was whether it was reasonably arguable that faxing the notice to the facsimile number of the work unit in the expectation that it would come to the notice of the supervisor, did not amount to compliance with subpar (ii). Because the Chief Commissioner focused his attention on compliance with subpar (i), he did not consider this question.
4. It follows from the above discussion that the Chief Commissioner's critical determination that it was not reasonably arguable "to contend there has not been compliance with s33(1)(b)" was founded on errors of law, in particular that the THS was the employer of the respondent and that, in any event, simply faxing the notice to the respondent's work unit amounted to giving notice to her employer under subpar (i). However, this conclusion does not resolve the appeal. The powers conferred on this Court by virtue of rr 693 and 709 of the Supreme Court Rules 2000, include the power to give or make any judgment that I consider should have been given or made by the Tribunal or to make any other order which I consider appropriate. In this case, the evidence before the Tribunal consisted only of documentation, which included the statutory declarations, and there was no oral evidence. Accordingly, I am in as good a position as the Chief Commissioner to assess whether, on the evidence adduced at the hearing, a reasonable argument exists concerning the liability of the appellant to pay compensation, having regard to the question of notice. I note also that, although there was no specific discussion about the consequences of upholding the grounds of appeal, both parties made submissions that encompassed the wider question of whether the evidence demonstrated a reasonably arguable case on the question of notice. I therefore see no need to remit this matter to the Tribunal and will consider the evidence as it was presented to the Tribunal at the hearing.

Was notice given to the respondent's supervisor

1. As already noted, it can be inferred from the respondent's statutory declaration that her intention in arranging for the notice to be sent by facsimile to the specialist clinic, was to notify her supervisor of the injury. She says that she thought that if the notice was faxed to the clinic, it would be brought to the supervisor's attention.
2. Section 32(1)(a) requires that the notice be "given to the employer of the worker or a person referred to in section 33(1)(b)". Section 33(1)(a) provides that the notice "may be given orally or in writing". It is clear that it can be given in this manner to any of the persons nominated in s 33(1)(b). Under s 33(1)(b)(ii), this includes a "person under whose supervision the worker is employed". There is no suggestion that the notice was given to the supervisor orally. The question then is was the notice given to the supervisor "in writing"?
3. On the hearing of the appeal, the appellant conceded that had the notice been sent by email to the supervisor's email address, there would have been compliance with s 32(1)(a). This concession can only be based on an acceptance that sending the notice by email to the supervisor amounts to giving it to her in writing. However, the appellant's argument is that sending the facsimile to the number in question did not amount to compliance with subpar (ii), because the facsimile would be converted to an email, which would then be sent to an email address, which was "seldom" checked by the supervisor "as it had been set up for clerical use". The supervisor's evidence was that the address received a large volume of emails. The appellant relies on par 7 of the declaration, where the supervisor expresses the opinion that the respondent "would be aware of this as she has worked in the administration position previously". However, it is not clear what "this" refers to. The immediately preceding paragraph refers only to the volume of emails and the fact that they are not stored for longer than two weeks. The paragraph before that contains the assertion that the supervisor seldom checked the address.
4. The most obvious way of giving a written notice to a person is to hand the notice to that person personally. Further, the notice will have been given in writing, irrespective of how it is delivered, if it is actually received by the intended recipient. See Crawford J in Pivot Limited v Crawford, applying Pino v Prosser [1967] VicRp 107; [1967] VR 835 and Rogerson v Tchia [1995] NTCA 34; (1995) 123 FLR 126. In both cases, there is no question that the notice has been given to the person in question.
5. However, in this case, the notice was not given directly to the supervisor and it is arguable on the evidence, that she did not actually receive the written notice. The question, therefore, is how a written notice might be given other than by handing it personally to the intended recipient, notwithstanding that it has not actually been received by that person. In circumstances such as in this case, where the notice has been sent to a facsimile number in the belief that it will be brought to the attention of the relevant person but is not, then it could not be said to have been given to that person according to the plain meaning of those words. However, in some circumstances, the meaning of giving notice in writing, is defined or expanded by statutory provision. Reference was made during argument to s 29AB of the Acts Interpretation Act 1931. That section, insofar as it is relevant, provides that if an Act requires a notice to be given to a natural person, that that may occur by actually giving it to the person or by leaving it at or sending it by post to the person's residential or postal address. That section would not seem to have any relevance to this case, because there is no suggestion that there was any attempt to give the notice by those means. Further, s 29AB(2) makes it clear that the section does not affect the operation of any other law authorising service of the notice in another way.
6. Another potentially relevant provision is s 6(2) of the Electronic Transactions Act 2000 (ETA). That section provides as follows:

"(2) If, under a law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where ¾

(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

(b) the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication."

1. Section 6(5) defines "giving information" to include "giving, sending or serving a notification". It is implicit in these provisions that the giving of notice will be completed if the conditions prescribed in pars (a) and (b) are fulfilled, irrespective of whether the notice has been actually received by the intended recipient. It is a facilitative provision, intended to expand the notion of giving something in writing to doing so by electronic means. The statutory conditions establish minimum standards in respect of the reliability of the communication, without requiring proof of actual receipt.
2. In Tasmania v Herlihy [2019] TASSC 5, Blow CJ considered the operation of the virtually identical provisions of s 6(1), in respect of a notice sent by email under other provisions of the WRCA from an employer to a worker. His Honour held, correctly in my respectful opinion, that the assessment of the requirement contained in par (a) that it was reasonable to expect that the information would be readily accessible, is to be assessed having regard to the state of knowledge of the person sending the information. In this case, that would be the respondent. I have already commented on the respondent's evidence that she believed that the facsimile would be brought to the attention of the supervisor. The statements of the supervisor already discussed do not rebut the genuine existence of this expectation. As already noted, the supervisor's statement that the respondent would be aware of the manner in which the facsimile would be dealt with is equivocal. Given that the onus is on the appellant to establish an arguable case, I would not be satisfied that the appellant has done so in respect of par (a).
3. However the mandatory requirement contained in par (b) is more problematic for the respondent. In Tasmania v Herlihy, his Honour noted that the equivalent provision in s 6(1) provided the recipient with a choice about the question of consent. The requirement of consent is "to the information" being given by electronic means. Having regard to the definition in s 6(5), the information of relevance must be notice under s 32(1)(a). I think that the supervisor's declaration does raise an arguable case about this requirement. While it is common ground that the facsimile number is that of the specialist clinic, there is no suggestion that workers were informed that such notices could be sent to this number. Indeed, the respondent's evidence is that she had been given no information at all about how to give notice of injury to her employer. Further, the supervisor's description of the purpose of the facsimile number and the treatment of communications received in that way, makes it strongly arguable that consent to receive such notices in that manner did not exist. Accordingly, I think that there is a reasonable argument raised on the evidence about whether this requirement is satisfied, and hence whether the ETA will apply to the communication in question.
4. I was not referred to any other statutory provision that would define or expand on the meaning of giving the relevant notice. It follows that the employer has raised a reasonably arguable case that notice of the injury was not given to the employer as soon as practicable after the occurrence of the injury, as required by s 32(1)(a).

1. Of course, this finding alone does not resolve the s 81A reference in favour of the appellant. The question raised by that provision is whether the employer has established a reasonably arguable case concerning its liability to pay compensation. In the often cited case of St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43, Evans J explained the practical application of this test as follows:

"A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing."

1. Mr Jackson submitted that the question of whether the claim is rejected following a final hearing because of failure to give notice in accordance with s 32, necessarily incorporates consideration of s 37. That section relevantly provides that the failure to give notice of injury does not affect the worker's right to claim compensation if:

"(a) the failure was occasioned by mistake ... or other reasonable cause, and

(b) it is found in proceedings relating to the worker's right to claim compensation under this Act that the employer's defence is not prejudiced by reason of the failure."

1. I agree with Mr Jackson's submission that for the purposes of s 81A, an employer will not establish a reasonably arguable case that it is not liable to pay compensation because of the worker's failure to give notice of injury as soon as practicable, unless it establishes a reasonable argument that s 37 will not apply to the relevant failure. Section 32 prescribes procedural preconditions for the payment of compensation, where the employer's liability in that regard has arisen under s 25. Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6. However, the failure to give notice under s 32(1)(a) will not affect the worker's entitlement to compensation if the conditions in s 37 are established. This is a prescribed outcome, it is not a matter of discretion. Accordingly, it is impossible to assess the effect of the failure to give notice unless a determination is made about the applicability of s 37. On the appeal, Mr Robinson submitted that the practice in the Tribunal has been to ignore s 37 in s 81A hearings, where a ground of dispute relates to a deficiency of notice. If this practice has arisen, then it may have done so because of a perception that the worker has the onus of establishing the conditions for the application of the section. Whether this is the rationale or not, if there is such a practice, it is incorrect. I agree that the worker does have the onus of establishing the conditions specified in s 37, but this is not a reason to depart from the established principle that on a s 81A hearing, the employer has the onus of establishing a reasonably arguable case. See Skill Group Limited v Anning [2015] TASSC 18, 23 Tas R 463; Lamont v M R V Supermarkets Pty Ltd [2016] TASSC 16, 24 Tas R 234. This allocation of onus mirrors that applicable in respect of the claim for compensation generally.
2. It is also important to have regard to the nature of the onus which arises in respect of s 37. In Sullivan v Hobart City Council and MMI Insurance Limited [1999] TASSC 101, Cox CJ said in respect of that question:

"[12] Counsel for the respondent submitted that the onus lay on the worker to show that the respondent's defence was not prejudiced by the failure to give the notice until 23 December 1997. That is certainly so, but the burden is not a heavy one and in the absence of any evidence of prejudice to the respondent and in the circumstances of the case, including the short period of time after the termination of his employment before appropriate notice was given by the worker, a finding that no prejudice existed would have been fully justified. In Haywood v Westleigh Colliery Company Ltd [1915] AC 540 at 546, Lord Atkinson put the position thus:

'The statute requires that notice should be served, and if it is not served the party who should have served it is in default; he must excuse that default, and I think the burden of proof in the first instance rests upon him. But if he gives evidence from which it may be reasonably inferred that the employer has not been prejudiced, I think then the burden of proof is shifted from his shoulders on to the shoulders of his employer, and if the employer is in a position to prove notwithstanding this evidence that he is prejudiced in some particular matters he is bound to do so. If he omits to do that, - as he has omitted to do it in this case, - then my impression is that it is not open to him to conjecture, as he has endeavoured to do through his counsel here, that he might have done this, or he might have done that, or he might have done something else that would have rebutted the evidence which has been given on behalf of the workman. He abstained from doing that, and then he says 'By reason of those conjectures which I have not supported you are to come to the conclusion that I was prejudiced'."

1. There will be many cases where the nature of the deficiency of notice and the general circumstances of the case, without more, lead to the conclusion that there is a reasonable argument about the applicability of s 37. However, there will also be cases where the opposite is true, that is the circumstances suggest that the deficiency in notice is due to mistake, and prejudice is unlikely. It may also be that the circumstances suggest that the employer can be expected to have available to it evidence which will inform the considerations under s 37, if such evidence exists. For example, evidence relating to the question of prejudice will almost always be in the possession of the employer. In a case where the circumstances of the case appear to demonstrate the probability that the deficiency of notice has arisen from a mistake or other reasonable cause, the absence of any evidence of prejudice to the employer may justify a conclusion that the employer has not shown an arguable case that s 37 does not apply to the deficiency of notice. Of course, where the employer can demonstrate that there is a real issue about the cause of the deficiency, then that alone may establish a reasonably arguable case, irrespective of the question of prejudice. However, where the arguable case depends on the existence of prejudice, then the evidential material upon which the employer intends to rely at the hearing about that question must accompany the referral under s 81A, see s 81A(2)(b). In respect of a deficiency of notice, it is difficult to envisage a case in which the existence of such prejudice will not be apparent by the time of hearing of the s 81A referral.
2. In this case, the evidence available at the s 81A hearing permits a judgment to be made about the reason why there was a failure to give notice of injury as soon as practicable. The respondent attempted to do so in circumstances where she believed that sending the notice by facsimile would provide adequate notice to her supervisor. This was clearly a mistake. A mistake under the section must be genuine and honest, but is not required to be reasonable: State of Tasmania v Muir-Wilson [2001] TASSC 30, 9 Tas R 456. In any event, the evidence also explains why she made this mistake. The facsimile number was that of her particular work unit. In her statutory declaration, she states that at no time had she been given any instruction or training as to the requirements of the employer for giving a workers compensation notice of injury. This absence of instruction was conceded by the appellant on the hearing of the appeal. Further, the usual arrangements for seeking approval of leave provided for submission of a leave application form to payroll services. The form suggests that it could be submitted by facsimile, with the facsimile number displayed on the form. Those circumstances support a finding that the failure to deliver the notice in accordance with s 33 "was occasioned by mistake ... or other reasonable cause". There is nothing in the evidence adduced by the appellant that would make reasonably arguable a different conclusion.
3. The remaining question under s 37 is whether the employer's defence in respect of the worker's claim for compensation has been prejudiced by the failure in respect of notice. In my view, this is the type of case referred to by Cox CJ in Sullivan. On the conceded facts, the lack of notice persisted for a very short time. It was accepted by the appellant that she provided adequate notice when she handed the medical certificate to her supervisor when she returned to work three business days after the occurrence of the injury. There was no evidence adduced at the hearing by the employer which suggested that the short delay in receiving the certificate had any effect whatsoever on the capacity of the appellant to defend the respondent's claim for compensation. Considered objectively, it is difficult to imagine how any such prejudice could arise and nothing was suggested in this regard by counsel for the appellant on the appeal. It follows that the employer did not establish a reasonable prospect that the respondent's claim for compensation would be rejected following a hearing on the basis of the failure to give notice as soon as practicable, because the application of the provisions of s 37 would inevitably result in a finding that such failure did not affect the worker's right to claim compensation.
4. Accordingly, I conclude that although the learned Chief Commissioner's reasoning was erroneous in the manner stated, had he correctly analysed the evidence and applied the legal principles arising on the referral, he would have reached the same conclusion in respect of the notice issue. It follows that the appeal must be dismissed. I make that order.