Reported Decision : New South Wales Supreme Court CITATION : Rewitu Pty Ltd v The Registrar of the WCC & Anor [2007] NSWSC 441 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 2 May 2007 JUDGMENT DATE : 7 May 2007 JURISDICTION : Common Law Division - Administrative Law List JUDGMENT OF : Associate Justice Harrison DECISION : (1) The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 16 August 2006 is set aside; (2) The matter is remitted back to the Registrar for determination according to law; (3) The plaintiff is to have a Certificate under the Suitor's Fund Act 1951 (NSW) if applicable. CATCHWORDS : Section 327(5) WIMWCA - calculation of time period to lodge an appeal Interpretation Act 1987 (NSW) - s 36 Suitor's Fund Act 1951 (NSW) LEGISLATION CITED : Supreme Court Act 1970 (NSW) - s 69 Workers Compensation Commission Rules 203 (NSW) - r 19 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 327 Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017 CASES CITED : Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 Rewitu Pty Limited - Plaintiff PARTIES : Registrar of the Workers Compensation Commission of New South Wales - First Defendant Anthony Harvey - Second Defendant FILE NUMBER(S) : SC 30115/2006 COUNSEL : Mr R Stanton - Plaintiff Sparke Helmore, Lawyers - Plainitff SOLICITORS : Crown Solicitor, Submitting Appearance - First Defendant N/A - Second Defendant LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales LOWER COURT FILE NUMBER(S) : 17569-05 LOWER COURT JUDICIAL OFFICER : Delegate of Registrar LOWER COURT DATE OF DECISION : 16 August 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON MONDAY, 7 MAY 2007 30115/2006 - REWITU PTY LIMITED v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION OF NEW SOUTH WALES & ANOR JUDGMENT (Section 327(5) WIMWCA – calculation of time period to lodge an appeal) 1 HER HONOUR: By amended summons filed 8 December 2006 the plaintiff seeks firstly, an order that the decision of the first defendant dated 16 August 2006, relating to proceedings between the plaintiff and the second defendant in the Workers Compensation Commission of New South Wales in matter No 17569-05, be set aside; secondly, a declaration that the plaintiff's appeal pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA) was filed within 28 days of the medical assessment appealed against; and thirdly, a direction that the first defendant deal with the appeal pursuant to s 327 of the WIMWCA. 2 The plaintiff is Rewitu Pty Limited (Rewitu). The first defendant is the Registrar of the Workers Compensation Commission of New South Wales (WCC). The second defendant is Anthony Harvey (Mr Harvey). He does not wish to make any submissions. The WCC has filed a submitting appearance. Thus there is no contradictor – see Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716. For convenience I shall refer to the parties by name. 3 This Court has jurisdiction to consider this application for prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) (SCA). 4 Section 69(3) of the SCA provides: "It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings." 5 The "face of the record" is expanded to include the reasons expressed by the Court or Tribunal for its ultimate decision – s 69(4). There has been slightly differing views as to precisely what constitutes the reasons of the Registrar. Grounds of review 6 The grounds of review are that the Delegate of the Registrar of the WCC firstly, erred in fact and law in finding that the appeal was not brought within 28 days, given the provisions of r 19 of the Workers Compensation Commission Rules 2003 (NSW) (WCC Rules) and s 36 of the Interpretation Act 1987 (NSW); and secondly, that the Delegate erred in interpreting and applying s 327 of the WIMWCA. The law 7 Section 327(5) of the WIMWCA provides: (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal." The decision of the Registrar's delegate 8 On 16 August 2006 the Delegate for the Registrar provided a written decision. At [1]-[3] the Delegate stated: "1. The Medical Assessment Certificate of Dr Keith Lethlean, an Approved Medical Specialist, was issued on 18 April 2006. 2. On 17 May 2006 the Appellant lodge the Application to Appeal the Decision of the Approved Medical Specialist (AMS) on the grounds that the medical assessment certificate is based on incorrect criteria (section 327(3)(c)) and contained a demonstrable error (section 327(3)(d)). 3 The Application to Appeal the Decision of the Approved Medical Specialist was lodged out of time." 9 The plaintiff does not dispute that it was on 17 May 2006 that the appellant lodged the application to appeal. Thus, the 28 days was calculated from the date the medical assessment certificate was issued to the date of the appeal was lodged by fax. 10 In Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017 Malpass AsJ stated: "there is a prohibition or threshold requirement imposed by the provision in respect of an increase of the period for an appeal. The power (which is implicitly conferred by the provision) cannot be exercised unless the Registrar is satisfied that special circumstances justify an increase in the period. … The policy behind the provision seems to be to bring about expeditious disposition and finality. The language of the provision expresses an emphasis on the need for strict compliance with the time limitation for bringing of such an appeal. An increase can only be granted where there are justifying special circumstances. … The circumstances to which regard is usually given for the granting of an extension of time are not intended to be sufficient to satisfy this provision. There must be something over and above that which is usual or ordinary. The requisite circumstances must fall within the category of special". 11 The Delegate's decision so far as special circumstances is concerned is not challenged in this application. 12 The plaintiff submitted that the WCC Rules when read in light of s 36 of the Interpretation Act show that the Appeal was filed within time. According to the plaintiff, there are seven possible starting points for the 28 day period: the date of the first medical examination; the date of the creation of the written certificate that sets out the assessment; the date of receipt by the Commission of the certificate from the approved medical specialist; the date the Commission creates a form of notice advising the parties of the assessment outcome; the date the form of notice is physically or electronically sent out from the Commission's registry; the date the form of notice is deemed to have been served by operation of Rule 19 of the WCC Rules and finally the date the form of notice is actually received by the relevant party. 13 The plaintiff submitted that in determining the appropriate starting point, the legislative intent to provide the parties 28 days to decide whether or not to bring an appeal should be taken into account, and that any interpretation that favours retaining 28 days for the parties to decide should be favoured over an interpretation that erodes that length. The plaintiff's Counsel referred to Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 424. 14 The WCC Rules of 2003 were in force at the time the matter went before the Workers Compensation Commission. Rule 19(6)(c) of the WCC Rules provided that for the purposes of the rules, a document is served by the Commission, and correspondence forwarded by the Commission is received on the day following the day of leaving in the DX box of the party to whom it was addressed or in another DX box for transmission to that DX box and Rule (19)(6)(d) provided that if service is by fax, it is received by the Commission on the day of transmission. The current Rule 8(1)(6)(c) is in identical terms. While the delegate calculated the 28 day period he or she did so from the time of receipt of the fax. No time for service of the certificate has been allowed. 15 Section 36 of the Interpretation Act reads: "Reckoning of time (1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event. …" 16 Applying either the WCC Rules concerning service or s 36 of the Interpretation Act the calculation of the 28 day time period should run from 19 April 2006. Twenty eight days from 19 April 2006 is 17 May 2006. That being so, the appeal was lodged within 28 days, being the requisite time period. It is my view that the Registrar by her Delegate fell into error in performing the role under s 327(5) of the Act. It is my view that the decision of the Registrar should be set aside. The matter is remitted back to the Registrar for determination according to law. 17 Normally the plaintiff would be entitled to its costs. However, there was no opposition to this application. The plaintiff is to have a Certificate under the Suitor's Fund Act 1951 (NSW) if applicable. The Court orders: (1) The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 16 August 2006 is set aside. (2) The matter is remitted back to the Registrar for determination according to law. (3) The plaintiff is to have a Certificate under the Suitor's Fund Act 1951 (NSW) if applicable. ********** 08/05/2007 - Year of file number changed from 2007 to 2006 on coversheet - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.