Winston v QBE Workers Compensation

4

On 7 July 2005 Leanne Winston ("the worker") was placed on Rehabilitation and Return to Work Plan No. 1 ("the Plan") with respect to a disability said to be causing pain in the neck, shoulders and upper back which arose from a work injury on 10 January 2002 during the course of her employment with Clipsal Australia Pty Ltd ("the employer").

5

On 22 August 2005 QBE Workers Compensation (SA) Ltd ("the compensating authority") gave written notice to the worker of a determination under ss 36(1)(f) and 36(1a)(d) of the Workers Rehabilitation and Compensation Act 1986 ("the Act") that her income maintenance would be discontinued on the basis of an alleged breach of mutuality related to alleged non-compliance with rehabilitation processes.

6

On 26 August 2005 the solicitors for the worker lodged a Notice of Dispute with respect to that determination. The various grounds of the dispute, which are set out below, did not include a ground which took issue with the validity of the s 36 notice.

7

On 6 September 2005 the compensating authority lodged a "Variation of Disputed Decision" which varied and set aside the decision to discontinue payments for the reason that the Plan upon which the decision to discontinue was apparently based had expired on 1 September 2005, with the result that the worker at the time of the variation had no obligations to comply with under the Plan. On the same day, the employer lodged a "Notice of Desire to be Heard" on the basis that it was a party to the dispute.

8

On 13 September 2005, the employer lodged a "Notice of Dissatisfaction with Reconsideration" asserting that the determination that the compensating authority made on 22 August 2005 correctly sought to discontinue the worker's income maintenance payments for breach of mutuality, and that the reconsideration by the compensating authority was wrong.

9

The matter proceeded through the conciliation process but did not resolve. As a result, an order was made pursuant to s 92D of the Act on 24 January 2006 that the matter be referred for judicial determination. Trial directions and orders were made on 17 February 2006. Counsel for the worker then advised that an application for summary judgment would be made on the basis of the alleged invalidity of the s 36 notice. That application was set down for argument on 3 April 2006 and directions were made for the filing and service of respective outlines of submissions.

10

Counsel for the worker also indicated at the same directions hearing that consideration was being given to raising a preliminary point as to the standing of the employer to lodge the notice of dissatisfaction. A direction was made that if this point was also to be pursued, application was to be made within seven days of 17 February 2006 for the listing of that matter for argument on 3 April 2006 as well. On the same date, general directions were made with respect to the hearing in the event that the preliminary point (if pursued) and the application for summary judgment failed, with the result that the trial of the substantive issues was listed for 22 May 2006.

11

No notice was given with respect to pursuit of the preliminary point as to the employer's standing until the worker's outline of submissions dated 29 March 2006 was received.[3] Due to the late notice of this further point, the arguments proceeded in two stages on 3 April 2006 and 2 May 2006.

The Standing of the Employer to Lodge a Notice of Dissatisfaction

12

The dispute forming the background to this issue arose from the notice of dispute filed by the worker on 26 August 2005. After the reconsideration and variation by the compensating authority on 6 September 2005, the Registrar referred the dispute for conciliation in accordance with s 91A of the Act, on the basis that a party to the dispute (the employer) had expressed dissatisfaction with the variation.

13

The worker contends that the employer is not "a party to the dispute" as required by s 91A of the Act and is thus unable to lodge a notice of dissatisfaction with the result of the reconsideration.

14

Section 89 of the Act sets out the meaning of a "party" to a dispute. Such a party includes:-

(c) if a dispute is about a compensable disability and the worker who suffered or is alleged to have suffered the compensable disability is not the applicant - the worker; and

(d)

if the dispute is about a compensable disability and the employer from whose employment the disability arose or is alleged to have arisen is not the applicant - the employer; and

(e)

a person who has a direct interest in the dispute and has notified the Registrar of the interest."

15

The worker is obviously a party to the present dispute by virtue of her being the applicant, and so too the compensating authority is obviously a party under par (b) of the definition. However, the worker contends that the employer cannot fall within par (d) above as the dispute is not "about a compensable disability", but is rather about the conduct of the worker and whether there has been a breach of mutuality so as to disentitle her to ongoing income maintenance.

16

It was submitted that if that contention be correct, the employer could not resort in the alternative to par (e) of s 89 of the Act in order to gain standing, notwithstanding that it could properly assert that it had a direct interest in the dispute by virtue of its interest and involvement in the rehabilitation process. The worker contended that the above five paragraphs setting out the meaning of a "party to a dispute" are mutually exclusive, such that an employer can only be a party to a dispute under par (d). This was said to be evident by the use of the conjunction "and" between each paragraph. It was submitted that if the employer fell within par (e) simply due to its lodgement of a notice of desire to be heard on 6 September 2005, then par (d) would be otiose, as an employer could thus always demonstrate that it was a party to a dispute by satisfying the requirements of par (e).

17

The worker then drew attention to s 90 of the Act, which makes provision for the lodging of a notice of dispute by a person with a direct interest in a "reviewable decision", and to S 90(3) in particular which provides:-

"A person has a direct interest in a reviewable decision if the person -

(a)

is directly affected by the decision; or

(b)

is the employer from whose employment the compensable disability arose or is alleged to have arisen."

18

The automatic grant of a right to an employer to lodge a notice of dispute of a reviewable decision was contrasted with the absence of such a right with respect to the filing of a notice of dissatisfaction under s 91A of the Act, so that one then had to revert back to s 89 to identify whether a person filing such a notice had standing as a party to the dispute. This was said to confirm an intention of Parliament to limit the circumstances in which an employer could be a party to a dispute to those encompassed by par (d) of s 89.

19

I do not accept the submissions of the worker. It is clear that an employer may fall into more than one of the nominated categories depending on the circumstances. If the employer lodges a notice of dispute, it is a party to the dispute under par (a) as the applicant. If the dispute is about a compensable disability, and the employer is not the applicant, it is automatically a party under par (d). If the employer is not a party under either (a) or (d), it may elect to become so under par (e) if it fulfils the criteria. The structure and context of the definition is such that the word "and" should not be read as creating a class of mutually exclusive alternatives, but as having a dispersive effect.[4] To conclude otherwise would render the definition unduly restrictive.

20

Further, I am of the view that the worker's submission adopts too narrow an approach to what might be encompassed by the phrase "dispute about a compensable disability". The phrase "compensable disability" is defined in s 3 of the Act to mean a disability that is compensable by virtue of s 30, which provides that a disability is compensable if it arises from employment. The New Shorter Oxford Dictionary states the relevant meaning of the preposition "about" to be "in connection with; appertaining to; dealing or occupied with; touching; concerning; on the subject of; in relation to".

21

The dispute relates to a s 36 notice of a decision to discontinue income maintenance payments being made in relation to an accepted compensable disability on the basis of an alleged breach of mutuality said to arise from alleged non-compliance with rehabilitation objectives or obligations.[5] The objectives or obligations relating to the rehabilitation programs and rehabilitation and return to work plans to which the worker has been subject arise from the provisions of s 26 and s 28A of the Act, both of which are clearly directed towards providing programs or plans with respect to workers suffering from, or incapacitated by, a compensable disability. The essence of the dispute relates to the extent to which the worker's incapacity resulting from her compensable disability prevents her from participating in the work obligations under the Plan. I am of the view that such a dispute is capable of being categorized in broad terms as a "dispute about a compensable disability" in the circumstances of this case.

22

Accordingly I conclude that the employer is a party to the dispute and has standing to lodge the notice of dissatisfaction.

The Alleged Irregularity of the s 36 Notice

23

At the time the worker was served with the s 36 notice she was subject to certain obligations arising from the Plan which had a start date of 7 July 2005 and a completion date of 1 September 2005.[6] Immediately prior to 7 July 2005, Rehabilitation Program No 1 ("the Program") was in place. It provisionally covered the period from 24 June 2005 to 19 August 2005. An endorsement on the Program provided that it was to end "immediately a rehabilitation and return to work plan is established".[7] Although both the Plan and the Program were designated No 1, pre-existing documents reveal that there had been earlier attempts at rehabilitation which resulted in the preparation of as many as seven previous rehabilitation programs and a number of previous rehabilitation and return to work plans.

24

The s 36 notice dated 22 August 2005 was in the following terms:-[8]

"This letter is to advise you that your Rehabilitation Counsellor has advised us, that you have refused or failed to participate in a rehabilitation program. The information we have received is as follows:

You are currently covered by a Rehabilitation and return to work plan (Plan No.1) which commenced 7 July 2005 and is due for completion on 1 September. Under the terms of that plan you are obliged to work 2 hours a day, Mondays and Thursdays, as certified by Dr Kennett. The duties specified are as a gatekeeper.

Your capacity to work is commented on by Dr Thoo in his medical report dated 21/3/05 wherein he states 'I believe that there are other factors contributing to her current perceived level of disability including psychological, industrial, motivational; and behavioural factors. It is my opinion that from a purely physical standpoint, Ms Winston is fit to return to full time productive duties at Clipsal'.

Dr Graham asserts that duties that would not be suitable for you are those requiring repetitive use of the neck and girdle. The gatehouse duties would be well within the guidelines of those restrictions.

Your attendance at work has been inconsistent and sporadic.

Monday 11 July - failed to attend work 'back too sore'

Monday 18 July - did not work due to back and neck symptoms

Thursday 21 July - did not attend due to back and neck symptoms

Since then there has been a combination of sick days and allegation of soreness and total incapacity.

This continuing failure to attend in accordance with your certified capacity has effectively frustrated the purposes and objectives of the subject plan.

Under Section 36(1)(f) and 36(1a)(d) of the Workers Rehabilitation and Compensation Act 1986, as amended (the Act), QBE Workers Compensation (SA) Limited as claims agent acting on behalf of the WorkCover Corporation may discontinue weekly payments of income maintenance, where it is satisfied that you have refused or failed to participate in a rehabilitation program.

On the basis of the above information, QBE Workers Compensation (SA) Limited is satisfied that you have breached mutuality as you have refused or failed to undertake an appropriate rehabilitation program. Therefore, we have determined under Sections 36(1)(f) and 36(1a)(d) of the Act, that your income maintenance payments will be discontinued. Section 36(3a) of the Act requires that you be given 21 days notice before the discontinuance takes effect. This letter serves as notice that your income maintenance payments will be discontinued from 21 days after you receive this letter.

An extract of Sections 36(1)(f) and 36(1a)(d) of the Act are attached for your information...[9]"

[The letter then proceeded to advise with respect to appeal rights]

25

On 26 August 2005, the solicitors for the worker lodged a Notice of Dispute containing the following grounds:-

"1. The Claims Agent has incorrectly determined to discontinue the worker's entitlements to weekly payments on the grounds that she has breached her obligations of mutuality.

The worker denies having breached her obligations of mutuality.

The worker has complied with all her obligations including notifying all relevant parties of her absence from work which have also been supported by prescribed medical certificates.

The reference in the determination to comments made by Dr Thoo in his medical report dated 21 March 2005 are irrelevant.

The suggestion by the Claims Agent that the worker's 'attendance at work has been inconsistent and sporadic' is also irrelevant particularly as the worker's absence from employment have been supported by the necessary certificates.

The Rehabilitation and Return To Work Plan (Plan Number 1) as referred to in the determination, unreasonably expects the worker to perform duties as a gate keeper when the duties of a gate keeper invariably expose the worker to potential circumstances of danger whilst she is stationed in the 'security hut'.

NB. A Notice of Dispute has been filed and served in relation to the Rehabilitation And Return To Work Plan (Plan Number 1).

The worker's treating general practitioner, Dr Stephen Kennett is of the opinion that the worker's continuous struggles at work have been largely due to driving associated with her travels to work and he is also of the opinion that employment as a gate keeper places the worker at risk if she has to deal with an aggressive member of the public and he also expresses concerns about the worker's lack of training in the security area. A copy of Dr Kennett's medical report dated 19 August 2005 is enclosed.

Further grounds of dispute following discovery."

26

Section 36(3) of the Act provides that where a decision is made to discontinue weekly payments, written notice must be given to the worker "containing such information as the regulations may require as to the reasons for the Corporation's decision and informing the worker of the worker's right to have the decision reviewed". The alleged irregularity central to the argument of the worker was the failure to provide any of the requisite information with respect to the decision to discontinue.

27

Regulation 7 of the Regulations relevantly requires provision of the following information:-[10]

(a) A statement of the decision that has been made to discontinue weekly payments; and

(b)

A reference to the provision of the Act upon which the compensating authority is relying to discontinue weekly payments, and the text of the provision:

(c)

The general basis on which the compensating authority has made its decision.

28

The notice relied on ss 36(1)(f) and s 36(1a)(d) of the Act, from which it could be assumed that the breach of mutuality alleged was a refusal or failure by the worker to participate in a rehabilitation program or participation in a way that frustrated the objectives of the program. However, there was no relevant conduct by the worker with respect to a rehabilitation program. A perusal of the s 36 notice immediately indicates the existence of a confusion throughout the document as to whether the complaint forming the basis of the alleged breach of mutuality is in fact directed towards a failure on the worker's part with respect to the Program on the one hand, or the Plan on the other hand. This lack of clarity had real potential for confusion in this case given that the Program was in force until superseded by the Plan, and had as many as seven predecessors.

29

After the reference to an alleged refusal or failure to participate in a rehabilitation program in the first sentence, the notice asserted (correctly at the time) that the worker was "currently covered" by the Plan. Reference was then made to the obligation of the worker under the Plan to work two hours a day, Mondays and Thursdays, as certified by her general practitioner Dr Kennett, on duties as a gate keeper. The opinions of two medical practitioners with contrasting views as to the fitness of the worker to carry out full-time or part-time work was then recorded. This aspect of the notice is potentially confusing as the opinion of one of the doctors referred to, namely Dr Thoo, was to the effect that the worker was fit for "full-time" productive duties, and appears to be irrelevant in the context of the notice given the very restricted work obligations endorsed by the Plan in accordance with opinions of other doctors.

30

The notice then sets out a brief summary of attendances or non-attendances by the worker at work over four days in July 2005 which were described as "inconsistent and sporadic". The notice then asserted "this continuing failure to attend in accordance with your certified incapacity has effectively frustrated the purposes and objectives of the subject plan". This sentence is potentially confusing in that although reference is made to the "subject plan", the language does not relate to a failure to comply with an obligation of the Plan as envisaged by s 36(1a)(e), but relates to the breach of mutuality particularised in s 36(1a)(d) of the Act, comprising a refusal or failure to participate in a rehabilitation program, or participation in a way that frustrates the objects of the Program. The notice appears to meld the two species of breach of mutuality. Again, this is not an insignificant or fanciful potential source of confusion as one may ostensibly comply with a plan obligation, yet do so in such a way that the object of the plan is frustrated.

31

The potential confusion as to whether non-compliance with an obligation of the Plan was the subject of complaint rather than a refusal or failure to participate in a rehabilitation program was compounded by the next paragraph of the notice, which referred to s 36(1)(f) and s 36(1a)(d) of the Act, and to the asserted right of the compensating authority to discontinue weekly payments of income maintenance "where it is satisfied that you have refused or failed to participate in a rehabilitation program". So too with the next paragraph under the heading "Decision", where reference to an alleged breach of mutuality due to a refusal or failure to undertake an appropriate rehabilitation program is repeated, as is the reference to the determination having been made under s 36(f) and s 36(1a)(d) of the Act.

32

The Plan includes the following obligations of the worker:-

"To perform the gatekeeper role at Clipsal as provided by the employer and as approved by Dr Kennett. To commence work at 9.30 am until 11.30 am (2 hours), clocking on and off in the Health Centre with Karina Payne, on Mondays and Thursdays. To upgrade your hours as certified by Dr Kennett or other treating medical experts (or other start or finish times as arranged with Clipsal). To perform any other duties offered by Clipsal that are within your capacity and restrictions. Should you be unable to complete your shift, you are to notify Karina Payne immediately, completing the appropriate forms, contacting Natalie and treating GP Dr Kennett immediately and arranging an appointment time for review. Should you require a day off work, you are to notify both Clipsal and Natalie immediately of your absence, consulting with a GP on that day."[11]

33

It can be seen that the worker's obligations under the Plan went beyond those adverted to in the notice to the effect that she attend work two hours a day two days a week. There was no unqualified obligation on the worker to attend for duties. Rather, if the worker was unable to complete a shift or attend for duties on a particular day, there were alternative obligations which had to be complied with involving notification of an inability to attend and arranging for a medical review. Whilst one might infer from the s 36 notice that the allegation is that the worker was in breach of her obligation to attend work in accordance with her certified capacity, this is not made clear. Nor is there reference to any failure by the worker to comply with the notification obligations in the event of an inability to attend work. Rather, the assertion is made that the failure to attend at work effectively frustrated the purposes and objectives of the Plan, not that it constituted or could be characterised as a failure to comply with any of the obligations under the Plan.

34

Turning to the question of compliance with regulation 7, Mr Black for the compensating authority contended that a clear "statement of decision" was made in the notice such as to satisfy regulation 7(a). Under that part of the notice headed "Decision", the notice clearly states that a decision has been made to discontinue weekly payments. That is correct in so far as it goes, but the statement of decision can only be read with its underlying ground, which is that the "compensating authority is satisfied that you have breached mutuality as you have refused or failed to undertake a rehabilitation program".

35

To the extent that one can draw from the notice what the true ground of the decision was, it would appear to be a satisfaction that there was non-compliance by the worker with the obligations of the Plan, which one might infer includes the obligation to work two hours a day two days a week. Thus, the stated ground of the decision is incorrect as a result of which I find there has been non-compliance with regulation 7(a).

36

Further, the notice is plainly irregular due to a failure to specify the appropriate subsection under s 36(1a) of the Act, such that regulation 7(b) has not been complied with. This is not due to a mere typographical error. Although the notice refers to the Plan, and impliedly to a failure to comply with obligations of the Plan, it repeatedly refers to a refusal or failure to participate in a rehabilitation program and at all times cites the statutory provision relevant to that failure, being s 36(1a)(d). S 36(1a)(e) which relates to non-compliance with plan obligations is not cited at all. I do not consider that the attachment to the s 36 notice of a full reproduction of s 36(1a) so as to include both pars (d) and (e) remedies this defect. Throughout the notice, attention is drawn not only to the incorrect basis for the decision, namely refusal or failure to participate in a rehabilitation program, but to the wrong subsection of the Act. I do not consider that this can be overlooked for the reasons set out below when I address the decision of Vujic v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd.[12]

37

The notice does not identify which particular obligation of the Plan has not been complied with. To the extent to which it is possible to do so, that must be inferred. As counsel for the worker submitted, it may be that upon reading the notice as a whole one gleans that the basis for the decision is that the worker failed to comply with the objectives and purposes of the Plan by failing to attend for and carry out work within her certified capacity. However, it is not for the worker or her advisers to deconstruct a confusing and contradictory notice in order to divine the basis of the decision. It is incumbent on the compensating authority to set out the general basis upon which the decision has been made. The failure to do so is in breach of regulation 7(c).

38

The purpose of the requirements set out in regulation 7 has been stated many times in previous decisions of this Tribunal. It is to provide clear notice to a worker as to the decision made, so that the worker knows what is to happen. It is to provide clear notice of the power under the Act which is relied on by specific reference to the section or part of the section. It is to provide clear notice of the circumstances upon which the compensating authority relies so that the worker better understands why payments are to be discontinued, and to allow among other things, the worker to make an informed decision as to any action to be taken.

39

In Rundle the Full Bench of the Workers Compensation Tribunal recently reviewed the approach to be taken in relation to applications for the setting aside of s 36 notices for alleged procedural irregularities. The Full Tribunal reaffirmed previous decisions of the Tribunal as to the importance of the procedural requirements of s 36 and said:-

"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."

40

Counsel for the compensating authority drew my attention to the decision of Deputy President McCouaig in the matter of Vujic where the learned Deputy President declined to set aside a s 36 notice despite it having various deficiencies on the basis that the worker could not possibly have been confused or under any misapprehension as to what the compensating authority was proposing to do, or as to why the discontinuance was being effected. I do not consider that to be the position with respect to the s 36 notice in the matter before me. I consider the Vujic decision is distinguishable. Counsel for the worker submitted that the decision was wrong in any event. Apart from one matter to which I refer below, I do not consider it necessary to deal with this submission, not only because I consider Vujic to be distinguishable, but also because it was delivered well before the Rundle decision which has since endorsed a two tiered approach to the validity question which differs from the approach previously taken in these matters.

41

I comment however that there is one aspect of the learned Deputy President's approach in Vujic with which I would respectfully differ. It may be that the reason for that difference emanates from the terms of the respective notices under consideration, such that there is not necessarily a difference in principle. In the Vujic matter, as here, the compensating authority relied on s 36(1)(f) of the Act as the authority to discontinue on the ground of breach of mutuality, but in particularising the alleged breach it identified the wrong subparagraph of s 36(1a) of the Act. Whilst I do not disagree with the learned Deputy President that the right to discontinue on the basis of an alleged breach of mutuality derives from s 36(1)(f), I do not consider that a misdescription of the particular species of breach encompassed by s 36(1a) can be overlooked in this matter or discounted by virtue of the fact that the full text of s 36(1a) may have been enclosed with the notice. The purpose of correctly identifying the particular species of breach of mutuality relied upon is not only to allow the worker to know the precise basis upon which it is sought to discontinue or reduce payments. Where a breach of mutuality is said to have arisen, the worker needs to know precisely what act or omission is alleged against him or her so that consideration can be given as to what steps need to be taken to restore mutuality if it is considered there may have been such a breach. A correct reference to the applicable subparagraph of s 36(1a) in the circumstances of this matter is in my view of such importance that a failure in that regard constitutes a non-compliance with regulation 7.

42

I conclude that none of the procedural requirements of regulation 7 have been met in the circumstances, such that the notice may be set aside.

43

Having so found, an inquiry must be made as to whether there are reasons why I should nevertheless decline to set the notice aside. Having found that non-compliance did not of itself render a s 36 notice void and of no effect, the Full Tribunal in Rundle said the following:-

"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."

44

The Full Tribunal considered that by virtue of the discretion with which it is vested pursuant to s 85 of the Act, it is empowered to ignore technicalities so as to focus on the substantial merits of the case, such that it might conclude that despite irregularities in a s 36 notice:-

"... it should not in all the circumstances grant the worker the relief that he seeks because to do so would not be to act accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities".[13]

45

Without intending to be exhaustive or to lay down any prescriptive approach, the Full Tribunal noted that considerations that would guide it with respect to the invocation of s 85 included whether it would "be manifestly unfair" or would bring "the administration of justice into disrepute among right thinking people" if the notice was set aside.[14] Matters adverted to in this context on the facts in Rundle included the failure to raise the issue in a timely way in the notice of dispute and more particularly before trial, the prejudice to the compensating authority in not having the option at an early stage of withdrawing and re-serving an amended notice, the absence of any prejudice to the worker if the notice was not set aside, and the detrimental effect of upholding the complaint on trial management and Tribunal resources.

46

The critical factor which persuaded the Full Tribunal in Rundle to decline to order that the s 36 notice be set aside was that the issue as to the validity of the notice was not raised until the very morning of the trial of the substantive issue itself. Not only had there been no prior notification before the commencement of trial of the intention to apply for summary judgment, no reference was made to the alleged procedural irregularity in the notice of dispute, no application was made subsequently to amend the Notice of Dispute, no reference was made to the issue at the time pre-trial orders were made, and no application was made later to amend the pre-trial orders to incorporate the issue in the orders or statement of issues.

47

This occurred against a background of the notice of dispute having been filed within the time limited for that purpose following a determination of 24 October 2003, such that weekly payments were not suspended pursuant to the operation of s 36(4) of the Act. By the time the issue was raised at the commencement of the trial on 20 April 2005 the worker had been in continuing receipt of payments for a further 18 months.[15]

48

It was considered in Rundle that there would be no prejudice to the worker if the application for summary relief was declined, but that there would be considerable prejudice to the compensating authority if relief was granted. The Full Tribunal inferred that the delay in raising the issue as to the validity of the notice until the day of trial deprived the compensating authority of the opportunity of considering the validity of the notice at an earlier stage, such that it could then have decided whether it ought to concede the challenge to the notice, and immediately issue a fresh notice so as to minimise the delay and the extent of additional compensation paid to the worker should grounds for discontinuance eventually be established.

49

Bearing this approach in mind, submissions were made in the matter before me by the compensating authority and the employer urging that relief should be denied for similar reasons. Here the notice of dispute was filed within time by the worker's solicitors on 26 August 2005, such that weekly payments have continued to date by virtue of s 36(4) of the Act. The grounds of dispute did not raise an issue as to the irregularity of the s 36 notice, although counsel for the worker contended that they did so obliquely, or alternatively should have put the compensating authority on notice that enquiries should be made which might reveal the potential for an issue as to irregularity to be raised.

50

The grounds for dispute are set out above in par 25. It was contended by the worker that ground 1 should have put the compensating authority on notice that there may be a technical invalidity. Ground 1 alleges that the claims agent incorrectly determined to discontinue the worker's entitlements on the grounds that she had breached her obligations of mutuality. With respect, I cannot see how that ground can remotely be considered as impliedly putting the compensating authority on notice as to an argument that the s 36 notice was technically defective.

51

In addition, it was contended that the compensating authority should have been put on notice of the need to inquire further as to potential grounds of dispute by the terms of ground 8, which is a non-specific ground notifying that the worker would rely on "further grounds of dispute following discovery". Again I do not accept that this should have alerted the compensating authority to the possibility of a ground being raised as to the validity of the notice, or that it should have caused the compensating authority (as counsel for the worker suggested it should have) to seek further particulars as to what might be encompassed by the ground, as though the compensating authority had some obligation deriving from the vagueness of ground 8 to eliminate the possibility that it might be intended to raise an issue as to the irregularity of the notice. Moreover, an attack on the technical validity of the notice was not dependent upon further discovery, and the most that a ground of this nature would indicate is that the worker was giving notice that further grounds as to the substantive dispute in relation to the s 36 determination may be added if a basis for the same arose from further discovery.

52

Nor do I accept that a complaint by the compensating authority and the employer as to the non-inclusion in the grounds of the notice of dispute of a reference to the alleged technical invalidity of the notice can be countered by an assertion that, upon reconsideration of the decision once a notice of dispute had been filed, it was incumbent on the compensating authority to fully review the grounds for its decision, and the detail of the drafting of the notice in order to satisfy itself, in the absence of any complaint, that the notice was indeed technically valid. If issue is to be taken with the validity of a s 36 notice, it is up to the worker to do so explicitly and expeditiously.

53

Accepting therefore that the grounds of the notice of dispute did not, and could not, have put the compensating authority on notice as to a possible allegation of an irregularity in the s 36 notice, there is no denying that the issue was raised belatedly. I consider that the delay must weigh less heavily against the worker in this matter than it did in Rundle. Here the issue was raised on 17 February 2006 at the first opportunity after referral of the matter to judicial determination. This was some six months after the filing of the notice of dispute, and just less than two months after a request was made for referral of the matter from conciliation to judicial determination. Although a trial date was set on 17 February 2006 for the commencement of the hearing of the substantive issue on 22 May 2006, this was done in the knowledge that the application for summary judgment was listed for hearing on 3 April 2006, and also in the knowledge that if the trial did proceed on 22 May 2006, it would only proceed for one day for the taking of the worker's evidence and the presentation of a video, with further dates to be set at a later time, and thus without arrangements having to be made at this stage for the attendance of expert and other witnesses.

54

Added to this is the fact that the compensating authority, within some two weeks of the worker filing the notice of dispute, decided to set the s 36 notice aside of its own volition, thus terminating the process which otherwise in due course may have led to a discontinuance of the weekly payments. As observed above, this action was not taken for any reason to do with a perceived defect in the notice, but due to the Plan and its attendant obligations having expired shortly before the reconsideration.

55

It is not known what further rehabilitation steps, if any, would have been taken after the notice was set aside, or if or when any further s 36 notice may have been issued if the employer had not then intervened. It cannot be said that the compensating authority is necessarily in any different position than it would have been had the notice of dispute raised the issue of the procedural irregularity. The dispute only continues because of the action of the employer in filing the notice of dissatisfaction. Certainly, had the allegation of the technical defect been included in the grounds of dispute, or raised soon after the employer intervened, the compensating authority may have reconsidered its position and have withdrawn the notice and issued another, although in this case there may have been no basis upon which it could do so, the Plan having expired. However that may be, I accept that the compensating authority and the employer are likely to suffer prejudice if the s 36 notice is set aside.

56

The Notice of Dispute set out grounds of dispute which both the compensating authority and the employer contended served to demonstrate an understanding by the worker and her advisers of the true basis upon which the s 36 notice had been issued, namely a non-compliance by the worker with her obligation to attend work. It was contended that neither the worker nor her advisers had been misled or confused by any unsatisfactory element in the drafting of the notice or non-compliance with the Regulations.

57

Whilst I accept that this is a relevant consideration in terms of assessing whether the worker has suffered or will suffer prejudice as a result of any alleged irregularity if the s 36 notice is not set aside, care should be taken as to the weight given to such a factor in determining that a notice should not be set aside for this reason notwithstanding technical defects.

58

Depending upon how soon a worker seeks advice with respect to a s 36 notice, it may be that the grounds of dispute have to be drafted in some haste and without clear instructions or time for reflection. Apart from the inherent difficulty in forming a conclusion by reference to the grounds for dispute as to whether the worker has in truth correctly understood the basis upon which the compensating authority might seek to discontinue weekly payments, such a process may tend to differentiate between those workers who have access to skilled advisers who may be able to deconstruct a confusing and potentially misleading notice so as to divine the probable basis for it, and those who do not, or cannot, do so.

59

In any event, I do not agree that in the case before me the grounds of dispute necessarily show that the worker and her advisers had a clear understanding of the basis for the s 36 notice. In ground 3 the worker alleges she has complied with "all her obligations" including notifying relevant parties of her absences from work. Whilst this demonstrates an apparent understanding that it is alleged she has not complied with obligations under the Plan, it implies she does not have a clear understanding as to which obligation or obligations are in question. Ground 4 confirms that some confusion appears to have arisen as a result of what would appear to be an irrelevant reference to the opinion of Dr Thoo. Ground 5 is again indicative of a confusion as to the obligation, if any, with which it is alleged the worker has failed to comply. I accept, nevertheless, that there is no specific prejudice to the worker if the s 36 notice is not set aside.

60

Taking all the above matters into account, and the plain expectation of Parliament that statutory procedures preliminary to notices which may reduce or discontinue payment of income maintenance be complied with, I do not consider in the circumstances that it would be manifestly unfair to order that the notice be set aside. Nor do I consider that the point has been raised so late in the case management of the dispute that the administration of justice would be brought into disrepute among right thinking people by such an order, particularly given the unusual circumstance that the compensating authority itself chose to set aside the notice, such that the extent of the prejudice should the notice now be set aside is somewhat uncertain given that it is not known if or when another notice might have been issued.

61

Accordingly I set aside the determination pursuant to s 36 of the Act dated 22 August 2005 giving notice to the worker of an intention to discontinue weekly payments.

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.

[1] Although there is another dispute 5830/05 relating to whether a rehabilitation and return to work plan the subject of the s 36 notice is itself is reasonable - however, if either of the preliminary points taken by the worker on dispute 5829/05 succeeds, this second dispute will not need to be further pursued.

[2] [2006] SAWCT 12

[3] Received at the Tribunal on 30 March 2006

[4] See the commentary in Pearce and Geddes "Statutory Interpretation in Australia" 5th ed pars 2.25 and

[5] The lack of clarity as to the basis of the alleged breach of mutuality arises from the defective drafting

of the s 36 notice, which forms the basis of the attack on its validity which is addressed below

[6] Counsel for the worker indicated that the worker reserved her position as to whether the Plan was a

valid plan "under the Act" (s36 (1a)(e)), but that is not an issue which requires determination at this

[7] Book of Documents (BD) page 150 (certain portions of the Book of Documents filed for a preceding

Dispute Management Conference were referred to for the purposes of this preliminary point with the

[9] In fact the extract included subclauses (a) and (g) inclusive of s 36(1a)

[10] This is not an exact reproduction of Reg 7, which refers also to reduction, suspension and adjustment

[12] [2000] SAWCT 51

[15] See decision in Rundle v WorkCover/Vero Workers Compensation (SA) Ltd [2005] SAWCT 63 for a

summary as to the initial course of the trial and the reason for referring the issue as to the validity of