Supreme Court New South Wales Medium Neutral Citation: Bhusal v Catholic Health Care [2017] NSWSC 838 Hearing dates: 6 April 2017 Decision date: 23 June 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The amended summons of 6 April 2017 is dismissed. (2) The plaintiff, Ms Sapana Bhusal, must pay the costs of the first defendant, Catholic Health Care, of the proceedings before me. Catchwords: ADMINISTRATIVE LAW – summons for judicial review – decision made pursuant to workers compensation legislative regime – whether compliance with time limit to apply for review is a jurisdictional fact – summons dismissed Legislation Cited: Workers Compensation Act 1987 (NSW), ss 44BB, 44BB(3)(a) Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 Browne v Dunn (1893) 6 R 67 (HL) City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Texts Cited: Guidelines for Work Capacity Decision Internal Reviews by Insurers and Merit Reviews by the Authority (NSW WorkCover, 11 October 2013) Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) Category: Principal judgment Parties: Sapana Dhakal Bhusal (Plaintiff) Catholic Health Care (First Defendant) State Insurance Regulatory Authority Workers Compensation Merit Review Services (Second Defendant) Workers Compensation Independent Review Officer (Third Defendant) Representation: Counsel: E G Romaniuk SC with E E Grotte (Plaintiff) C Jackson (First Defendant) Submitting Appearances (Second and Third Defendant) Solicitors: Beilby Poulden Costello (Plaintiff) Astridge & Murray (First Defendant) Crown Solicitors Office (Second Defendant) WorkCover Independent Review Office (Third Defendant) File Number(s): 2016/330368 Publication restriction: Nil Judgment Introduction 1. This application for judicial review is founded upon the fact that an injured worker (the plaintiff) was required by legislation, on its face, to seek review of a decision adverse to her within 30 days after she "received" notice of that decision. 2. In a form signed by the plaintiff, she stated that she had received notice of the adverse decision on 2 May 2016. That document seeking review was dated 7 June 2016. On its face then, the application of the plaintiff was outside the time limit. 3. The second defendant, the State Insurance Regulatory Authority Workers Compensation Merit Review Office (SIRA), refused to entertain the application, on the simple basis that it had not been made within 30 days of receipt of notice of the adverse decision by the plaintiff, contrary to the statute. 4. Evidence was placed before me over objection that, in truth, the plaintiff did not personally become aware of the adverse decision until 2 June 2016; that is, well within the statutory time limit. 5. The simple question is: should the plaintiff be granted relief against the decision of SIRA that will permit her to review the adverse decision? Both SIRA and the third defendant, the WorkCover Independent Review Office (WIRO), entered submitting appearances. On three separate bases, the plaintiff submitted that the question must be answered in the affirmative. The first defendant (to which I shall refer simply as the defendant), the employer of the plaintiff, Catholic Health Care (CHC), submitted that the question must be answered in the negative. Separately, counsel for the defendant was content for the ancillary question of whether an extension of time should be granted to the plaintiff to seek judicial review to be subsumed in the determination of the substantive question. Chronological background 1. Extensive affidavit material placed before me established that the following course of events is not in dispute. 2. On 2 February 2014, Ms Sapana Bhusal (the plaintiff) was injured at work. She received workers compensation payments from the insurer of the defendant (Catholic Church Insurance Limited, to which I shall refer simply as the insurer), and reimbursement for medical expenses. 3. On 21 December 2015, the claim of the plaintiff was disputed by the insurer, on the basis that she was capable of work. 4. On 25 February 2016, the insurer sent correspondence to the plaintiff with the subject "Written Advice of a Work Capacity Decision and its Outcome". That correspondence advised her that, following a review of her claim, it had been determined that she had a capacity to work. 5. On 4 March 2016, the employment of the plaintiff with the defendant was terminated, effective immediately, on the basis that there were no suitable duties available for her to undertake. 6. On 9 March 2016, the firm of solicitors Beilby Poulden Costello (BPC) wrote to the insurer. That letter includes the phrase "we act" on behalf of the plaintiff, although there was a typographical error and the wrong person was named in the body of the letter. 7. On 23 April 2016, the plaintiff left Australia for Nepal. 8. On 29 April 2016, Ms Skene, a Technical and Training Consultant within the insurer, wrote to the plaintiff "care of" BPC. That letter was to the effect that an internal review of the decision of 25 February 2016 had been concluded adversely to the plaintiff. Reasons for that decision were enclosed with the letter. 9. On 3 May 2016, a solicitor employed by BPC sent a letter to the home address of the plaintiff. The letter spoke of the adverse decision of 29 April 2016, and advised the plaintiff that, if she sought a review of that decision, it must be the subject of application before 1 June 2016. No email to like effect was sent to the plaintiff by any solicitor within BPC. 10. On 2 June 2016, the plaintiff returned to Australia from Nepal. She became aware of the letter from BPC of 3 May 2016 shortly thereafter. 11. By way of a document headed "Work capacity – application for merit review by the authority" and dated 7 June 2016, the plaintiff purported to apply to SIRA for review of the decision of 29 April 2016. That form was signed by the plaintiff at the office of BPC, and emailed by a solicitor within BPC to SIRA on 9 June 2016. 12. It is noteworthy that the following appears within the form: When did you receive the Insurer's Internal Review Decision?" 02/05/2016 [handwritten] … 3. WHICH WORK CAPACITY DECISION(S) DO YOU WISH TO HAVE REVIEWED BY WORK COVER? … 25/2/16 and the review of 1/6/16. [handwritten] 1. The signature of the plaintiff appears at the conclusion of the document. 2. Subsequent to receipt of the application, and prior to 14 June 2016, SIRA sought a response from the insurer to the application of the plaintiff. 3. On 14 June 2016, a response from the insurer was received by SIRA. The insurer did not make any submissions about the fact that it had sent the letter to BPC advising of the adverse outcome of the review on 29 April 2016. Nor did the insurer take any point about the fact that the application for merit review dated 7 June 2016 spoke of the plaintiff having received notification of the adverse decision on 2 May 2016. 4. On 30 June 2016, SIRA determined that it did not have jurisdiction to review the adverse decision of 29 April 2016. In its reasons, it relied upon the fact that, in her application, the plaintiff had advised SIRA that she received notice of the adverse decision on 2 May 2016, but the application for review was not received by SIRA until 9 June 2016. 5. At that time, s 44BB of the Workers Compensation Act 1987 (NSW)(the Act) was as follows: 44BB Review of work capacity decisions (1) An injured worker may refer a work capacity decision of an insurer for review: … (b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or … (2) An application for review of a work capacity decision must be made in the form approved by the Authority and specify the grounds on which the review is sought. The worker must notify the insurer in a form approved by the Authority of an application made by the worker for review by the Authority or the Independent Review Officer. … (3) The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer: (a) an application for review must be made within 30 days after the worker receives notice in the form approved by the Authority of the insurer's decision on internal review of the decision (when the application is for review by the Authority) or the Authority's decision on a review (when the application is for review by the Independent Review Officer), … (d) the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review, (e) the reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings (giving reasons for any such recommendation), … (g) recommendations made by the Authority are binding on the insurer and must be given effect to by the insurer, … (emphasis added by me) 1. In its reasons, SIRA determined: [21] Accordingly, as the application for merit review was not made in accordance with section 44BB(3)(a) of the 1987 Act, the Authority does not have jurisdiction to undertake a merit review of the work capacity decision dated 25 February 2016. 1. Subsequently, the plaintiff sought review of the decision of SIRA by WIRO. 2. On 5 August 2016, WIRO declined to interfere. The details of that decision need not be discussed further, because, during the hearing before me, senior counsel for the plaintiff explicitly withdrew any attack on that decision of WIRO. 3. On 5 April 2017, the plaintiff swore an affidavit that dealt with events from March to July 2016. The affidavit included evidence that she had informed a solicitor within BPC on 21 April 2016 that she would be travelling overseas two days later. It also contained evidence that she informed the officer of the insurer who had made the adverse decision of 21 December 2015 of that same fact, and asking the officer to contact the plaintiff by email as necessary. 4. On 6 April 2017, at the hearing before me, the plaintiff was cross-examined by counsel for the defendant (he had previously objected to her evidence; the cross-examination nevertheless took place as against the possibility that I would ultimately determine her evidence to be admissible, on a basis that I shall explain later). 5. In accordance with the well-known rule in Browne v Dunn (1893) 6 R 67 (HL), it was suggested to her in cross-examination that she could be mistaken in her evidence about her conversations with the solicitor and the officer of the insurer. In particular, it was put to her that she was mistaken in her recollection that she had told the officer of the insurer about the possibility of email contact. It was not put to her that she had not travelled overseas; nor was it put to her that her evidence that she did not become aware of the adverse decision of 29 April 2016 until after her return to Australia on 2 June 2016 was incorrect. Submissions of the plaintiff 1. As I have said, a degree of refinement of the position of the plaintiff took place at the hearing. The final position of senior counsel for the plaintiff in support of relief had three bases. 2. The first was that, in the context of the time limit for review of an adverse decision, the Act is speaking of personal receipt of notice by an injured worker, not receipt by a lawyer or other person assisting him or her. So much can be discerned by the breadth of kinds of people who, pursuant to cl 7.2.1 of the Guidelines for Work Capacity Decision Internal Reviews by Insurers and Merit Reviews by the Authority (NSW WorkCover, 11 October 2013)(the Guidelines), can assist an injured worker. Such people include "the insurer, a support person, agent, union representative, employer, legal representative or interpreter". Senior counsel submitted that it is inconceivable that (for example) notice could be given to an interpreter, and thereafter "the clock begins to run" against an injured worker pursuant to the sub-section. 3. It was also submitted that, whatever may have been intimated in correspondence, the fact is that BPC was not formally acting for the plaintiff; indeed, it was submitted that the statutory regime did not permit it to do so. Furthermore, the fact that letters had been sent by the insurer addressed to the plaintiff "care of BPC" (as opposed to the firm of solicitors directly) suggested that the insurer understood that to be the case as well. 4. Attention was also invited to the Guidelines that suggest (at the least) that an insurer should contact an injured worker "preferably by telephone or in person". In other words, it was said that the Guidelines themselves, directed towards an insurer, strongly suggest that notification to someone other than an injured worker himself or herself is insufficient. 5. In short, it was submitted that the objective fact is that the plaintiff did not become aware of the adverse decision until days before the application was made to review it. And yet, she is prohibited from that review by the effluxion of time, wrongly calculated as a matter of statutory interpretation, by taking as the starting point the day of notification to a firm of solicitors. 6. What I shall call the second part of the first point was the submission that, properly interpreted, the statutory time limit cannot in any event be as strict as it first appears. After all, senior counsel submitted, the provision creates a prohibition on an injured worker being able to seek review of an adverse decision, in a context in which the worker is not represented by a lawyer in the formal sense. As a matter of statutory interpretation, senior counsel submitted that Parliament would have objectively intended that the use of the word "must" within s 44BB(3)(a) of the Act cannot mean that the time limit is utterly inflexible. The example of an injured worker who receives notice of an adverse decision, but thereafter promptly falls into a coma for two months was posited; in those circumstances, he submitted, it would be inconceivable that Parliament intended that the worker would be absolutely prohibited from obtaining a review. 7. The second basis for relief was with regard to what appeared in the form of 7 June 2016. It was submitted that it was incumbent upon SIRA to check that the disentitling statement that notice of the adverse decision had been received on 2 May 2016 was actually correct. That was especially the case when neither the plaintiff, nor indeed her "opponent", the insurer, addressed the question of refusal of jurisdiction based upon the statutory time limit. It was said that, in those circumstances, it was a denial of procedural fairness for SIRA to extinguish the right of review without having heard a word from the plaintiff or the insurer about that topic. 8. The third basis for relief was that the fact as to when the plaintiff "received" notice of the adverse decision of 29 April 2016 should be characterised as a jurisdictional fact. In other words, if it be the case that the 30 day period spoken of in s 44BB(3)(a) of the Act truly determines whether or not SIRA has jurisdiction to review an adverse decision, then the objective fact of when it was that an applicant received notice constitutes a jurisdictional fact. Senior counsel referred to Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 for the proposition that the test is whether it is a "factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a disrection". If it is a jurisdictional fact, then, he submitted, it can and must be reviewed fully de novo in an application such as this one. 9. He submitted further that, if that be the case, the evidence placed before me shows that, due to an unfortunate concatenation of circumstances, the plaintiff did not actually receive personal knowledge of the adverse decision until 2 June 2016. That is a matter of days before the application for review was filed, and falls amply within the mandatory time limit. In those circumstances, the decision of SIRA should be set aside, because I would be affirmatively satisfied that a jurisdictional fact was wrongly determined by SIRA. 10. Finally, I was assured by senior counsel for the plaintiff (whose experience in this particular field is well-established) that the question of statutory interpretation raised in his submissions had not been the subject of judicial consideration in the past, either directly or analogously; counsel for the defendant did not gainsay that proposition. Determination 1. I respectfully reject the proposition that the plaintiff is entitled to the relief sought. In explaining why I have come to that view, I shall deal with the submissions of senior counsel in a slightly different order than the one in which I have summarised them above. 2. First, I cannot accept that it was incumbent upon SIRA to contact the plaintiff in order to check that the document that she had signed and that, on its face, disentitled her to review, was indeed correct. One can accept that SIRA was generally obliged to provide the plaintiff with procedural fairness; the question is one of statutory construction as to the particular ways in which that obligation was to be fulfilled. 3. I do not accept that the regime set up by the Act should be construed as placing such a responsibility on SIRA. It would be remarkable if a statute setting up such an authority were to impose upon that authority such a duty, to be fulfilled every time an applicant provided the authority with information that was adverse to that applicant. 4. And speaking in practicalities, I consider that I am entitled to infer from the documentary evidence placed before me (not least the appearance of the document containing the application for review itself) that SIRA receives a very large volume of such applications. An asserted obligation to provide procedural fairness needs to be seen in the context of the real world and based on the circumstances of the case, not on some theoretical plane: see Kioa v West (1985) 159 CLR 550; [1985] HCA 81. I consider that it would be thoroughly unworkable to expect SIRA to check the correctness of every document that it receives that is adverse to the person submitting the document. 5. In short, I reject the second submission of senior counsel for the plaintiff. 6. Secondly, as a matter of statutory interpretation, I consider that the use of the word "must" is indeed mandatory in the true sense. I think one should take that word at face value. I also think it important that Parliament could have created some sort of ameliorative ancillary regime if it had wished to; it did not. 7. It is true that the regime of compensation of injured workers is beneficial in a broad sense, although there is authority of the High Court of Australia calling that into question: see ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18. But I also think there is force in the submission of counsel for the defendant that this is a regime that (as the history of this matter shows) admits of multifarious reconsiderations of adverse determinations. In that context, one can readily infer that Parliament intended that there be some end to matters, and some strict limitation on their repeated re-consideration, in the interests of finality between the worker and the insurer. 8. In short, I reject the second part of the first submission of senior counsel for the plaintiff. 9. Thirdly, I think there is force in his submission that receipt in this context means personal receipt of notice of the adverse decision by the injured worker himself or herself, and not by some person assisting him or her. After all, that would be consistent with the rigour of the time limit that I have spoken of in [40] above. And I think that, at least in a general sense, I can take into account the overall structure of the regime under consideration, whereby, as I understand it, injured workers are not to be formally represented; rather, they are limited to receiving assistance from a number of different kinds of professional persons. In that regard, I do not accept the submission of counsel for the defendant that I cannot look at the scheme as a whole (including such matters as guidelines made pursuant to it) in order to construe the disputed statutory provision under consideration. And although there is force in the submission of counsel for the defendant that the specificity of the requirement for notice in another context to be found in s 54(4) of the Act may provide a contrast to the sub-section under consideration, I assess that aspect as relevant to, but not determinative of, the question. 10. In short, I accept the submission of senior counsel for the plaintiff about statutory interpretation that forms the first part of the first ground. 11. That acceptance of mine, however, does not mean that the plaintiff should be granted the orders that she has sought. 12. I say that because the simple fact is that SIRA was provided with written material signed by the plaintiff that, on its face, clearly disentitled her from the review that she sought. The direct question extracted at [16] above, focusing as it did by the use of the personal pronoun "you" upon receipt of the notice by the plaintiff, received a direct written answer from her. That was the only material placed before SIRA with regard to that threshold question. Even accepting that the legislation needed to be interpreted by SIRA as focusing upon personal receipt of notice, the material placed before SIRA by the plaintiff herself was clear and unambiguous: she was outside the time limit for such an application. 13. In those circumstances, I do not accept that SIRA is to be criticised for the fact that, in the role of a decision maker, it decided the question of availability of review on the basis of uncontroverted evidence emanating from the plaintiff. On the basis of the material provided by the plaintiff to the decision maker, its decision was correct. 14. I consider that it follows that, unless I characterise the question of when it was the plaintiff actually received personal notice of the adverse decision as a jurisdictional fact, the disentitling decision of SIRA cannot be impugned. 15. Whether or not the effluxion of the time limit is such a fact is a matter of interpreting the statute that creates that restriction upon the exercise of jurisdiction: see Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 and the other cases referred to by Leeming JA, writing extra-judicially, in Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) 65 (Authority to Decide). Characterisation of the precondition of compliance with the time limit as such a fact would mean, as a matter of practicality, that any adverse finding about that question by SIRA would be reviewable de novo by this Court in proceedings for judicial review: see the judgment of the plurality in City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [22], [38] and [50]. 16. In that regard, I cannot accept that it has been the intention of Parliament, as this regime of non-curial determination of rights of injured workers to compensation has evolved, that the question raised by s 44BB(3)(a) of the Act is able to be determined curially in that way, whenever it is answered adversely by SIRA. To my mind, the whole thrust of the regime under consideration is in the opposite direction. 17. Indeed, to adopt respectfully the language used by Ward JA at [116] in a different but perhaps analogous context, I consider that to find that this Court is to determine de novo every dispute about compliance with s 44BB(3)(a) of the Act would have an "extraordinarily impractical result": see Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138. 18. And speaking more generally, I accept that whether or not a fact is jurisdictional or not is contestable, and (as counsel for the defendant conceded) the applicable legal principles are not able to be stated with the utmost precision. Nevertheless, I approach this task of characterisation on the basis that it is a large step judicially to determine that a fact is a jurisdictional fact, and that that is a determination that one would make only very cautiously. I am not affirmatively satisfied that I should do so. 19. In short, I do not accept that Parliament intended that the question of precisely when an applicant for review of an adverse decision personally received notice of it should be a jurisdictional fact that would permit of de novo determination by a judge of this Court in judicial review proceedings. To adopt respectfully the contrast adopted by Leeming JA at p 64 of Authority to Decide, I construe s 44BB(3)(a) of the Act as constituting a "prohibition or qualification upon the exercise of power", and not as a "precondition to the exercise of power". 20. It follows that I reject the third basis for intervention of senior counsel for the plaintiff. It also follows that I retrospectively determine that the evidence about the topic that was placed before me, and that had not been placed before SIRA, is inadmissible. 21. In short, I do not accept any of the bases upon which senior counsel for the plaintiff has submitted that I should intervene and make the orders sought on behalf of his client. It follows that the amended summons of 6 April 2017 should, in my opinion, be dismissed. Costs 1. Each party accepted that the usual approach of costs following the event should be adopted. Orders 1. I make the following orders: 1. The amended summons of the plaintiff of 6 April 2017 is dismissed. 2. The plaintiff, Ms Sapana Bhusal, must pay the costs of the first defendant, Catholic Health Care, of the proceedings before me. ********** 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. Decision last updated: 23 June 2017