- Unreported Judgment
O.S.C. No. 50 of 1978
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
Ex parte: PATRICIA DAWN HEFFERNAN
Reasons for Judgment delivered by Kelly J. on the 16th March, 1979. Stable S.P.J. and Dunn J. concurring.
“ORDER NISI DISCHARGED WITH COSTS”.
IN THE SUPREME COURT OF QUEENSLAND
O.S.C. No. 50 of 1978
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
Ex parte: PATRICIA DAWN HEFFERNAN
JUDGMENT - KELLY J.
This is the return of an order nisi for a writ of mandamus directed to the Workers' Compensation Board of Queensland (to which I shall refer as “the Board”) to require it to consider the circumstances out of which the failure to make an application for compensation for death under the Workers' Compensation Act 1916-1966 (to which I shall refer to as “the Act”) on behalf of Danielle Lisa Heffernan (an infant) arose and to make a determination as to whether or not the provisions expressed in the first sentence in Clause 4(2) of the Schedule to the Act should not be waived.
The prosecutrix is the mother of the infant who was born on 28th March, 1973 and she alleges that Kevin George Stone, who died on 17th January, 1974 as the result of an injury at his place of employment, was the father. The prosecutrix and the deceased had been living as man and wife in Victoria for a period of two and a half years up to the end of August 1972 and she says that the deceased deserted her when she was pregnant. Following the birth of the child she sought to obtain maintenance from the deceased but was unable to ascertain his whereabouts and she says that she first became aware of his death on 29th July, 1974. She consulted solicitors in Ballarat on 3rd September, 1974 and on 18th November, 1974 a letter was addressed to the State Government Insurance Office (Queensland) (to which I shall refer as “the Office”) by the Brisbane agents of those solicitors advising that they had instructions to take all necessary steps to reserve the interests of the child Danielle Lisa Heffernan in loss of dependency resulting in (sic) the death of Kevin George Stone.
The Office replied to this letter on 25th November, 1974 and advised that a claim had been lodged by the widow of the deceased on behalf of herself and a child and that settlement of the full amount payable under the claim had been made. Attention was drawn to Clause 4(2) which is in the following terms:—
“No application shall be valid or claim thereunder enforceable unless filed within six months after the day upon which the injury occurred or the right to compensation accrued. But this provision may be waived by the Office if it is satisfied that failure to make application was due to mistake, absence from Queensland, or other reasonable cause.”
The letter went on to point out that as the time referred to in that clause had now lapsed consideration to any claim could only be given on an ex gratia basis. It was also advised that a common law claim had been received on behalf of the estate and of the widow.
Nothing further appears to have occurred until 20th October, 1975 when the principal solicitors wrote to the Office requesting that the time limitation be waived on the statutory ground of the claimant's absence from Queensland and other reasonable cause, namely her infancy and the circumstances set out in the letter, which were the circumstances to which I have already referred of the prosecutrix living with the deceased, his desertion of her while pregnant, her efforts to obtain maintenance and that she did not learn of his death during the six months after it had occurred. It was asserted that the infant claimant was the natural child of the deceased.
A reply to this letter dated 31st October, 1975 and signed by the Supervisor, Workers' Compensation Claims Department was addressed to the Brisbane agents of the solicitors. Omitting formal parts, that letter was in the following terms:—
“Letter was referred to Management who has ruled as follows.
The maximum amount has been paid under Workers' Compensation Claim 3/73-27750/04, Kevin George Stone (Deceased).
Also Widow of Kevin George Stone (Deceased) has taken action at Common Law.
At the same time on a ‘Without Prejudice’ basis a formal claim should be lodged on the proper form supported by proof of parentage.”
Following the receipt of this reply various steps, with which I shall not deal at this stage, were taken by the solicitors instructed by the prosecutrix in the matter over a period of some eighteen months and these resulted in the submission of a formal application for compensation in the prescribed form together with soma supporting material in May 1977. The supporting material consisted, firstly, of an affidavit by the prosecutrix setting out the circumstances of her association with the deceased, the birth of the child, her ignorance of the whereabouts of the deceased and of the steps she had taken after she first became aware of his death, secondly, of a supporting affidavit by a Mr. and Mrs. Quick who had known both the prosecutrix and the deceased, and, thirdly, of a certified copy of the birth certificate of the child.
By a letter dated 1st June, 1977 signed by the Supervisor, Workers' Compensation Claims Department, the Office advised the Brisbane agents of the solicitors that the application was out of time under the provision in Clause 4(2) of the Schedule to the Act. The letter then went on:—
“After due consideration of all the circumstances put forward in and with your application, it has been decided not to waive the provision of this Clause.
Regrettably, therefore, compensation cannot be paid.”
The solicitors then wrote to the General Manager of the Office on 4th August, 1977 requesting that he personally review the decision contained in the letter of 1st June, 1977. In his reply of 25th August, 1977 the General Manager said:—
“The facts presented in your letter have been considered, but, as the maximum amount of compensation payable under the Act has been paid in connection with the death of Mr. Stone, I am unable to alter the decision conveyed in our letter of 1st June, 1977 to Messrs. Henderson & Lahey.”
The letter went on to say that if a claim for damages on behalf of the child were to be lodged immediately against the employer it would receive consideration along with the claim made by the widow.
Following this there was some further correspondence between the solicitors and the General Manager which is in essence argumentative and it is not necessary to set it out in detail. In a letter of 14th October, 1977 the Acting General Manager pointed out that, although the solicitors referred to the child as if she were a “dependant” of the deceased, the Office had not stated that it had accepted her as such. The assistance of the appropriate Minister was then sought, without avail, but this has no relevance to the present proceedings which relate to the actions of the Office, other than on the question of delay should it become necessary to consider this, as the reply from the Minister, which appears to have been the final letter in the matter, was dated 2nd December, 1977 and the material upon which the order nisi was obtained was filed on 23rd November, 1978. I shall not at this stage deal with what occurred in the intervening period of nearly twelve months.
The Court was informed that the action commenced by the widow to which reference was made in the correspondence was settled and that on 17th October, 1978 the trial judge sanctioned the payment of $8390 in respect of her infant child, this being the equivalent of the amount of workers' compensation payable on behalf of the child.
Prior to 1st July, 1978 the responsibility for workers' compensation under the Act lay with the Office. By the Workers' Compensation Act Amendment Act 1978 which came into force on that date the Board was established and the powers and duties of the Office in relation to workers' compensation devolved upon the Board. Nothing turns on this so far as the present proceedings are concerned and if it would have been appropriate in the circumstances of this case to direct a writ of mandamus to the Office had it remained the responsible authority under the Act, that writ would now lie to the Board.
The first matter for consideration is what was the duty of the Office in relation to an application filed after the expiration of the six months period prescribed by Clause 4(2) of the Schedule. Firstly, it was required to consider whether the failure to make the application within the prescribed time was due to mistake, absence from Queensland, or other reasonable cause. If it was not satisfied that the failure was due to any of those matters then there is no power to waive the time provision and that would be the end of the matter. If, however, it was satisfied that the failure was due to any one of those matters the question arises whether the time provision must then be waived or whether the Office has a discretion whether or not to do so, and if there is such a discretion, what matters it may properly take into account in its exercise.
It thus becomes necessary to determine the meaning of “may” in Clause 4(2). The principle to be applied in determining whether “may” is merely permissive or whether it has a compulsive effect and is equivalent to “shall” is set out in the joint judgment of the High Court in Ward v. Williams (1954-55) 92 C.L.R. 496 at pp. 505-506 in these words:—
“... it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. ‘The authorities clearly indicate that it lies on those who assert that the word “may” has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning’ - per Cussen J.: Re Gleeson (1907) V.L.R. 368, at p. 373. ‘The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power’ - per lord Selborne: Julius v. Bishop of Oxford (1880) L.R. 5 A.C. 214, at p. 235. One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them ‘(they) appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised’ (1880) L.R. 5 A.C. at p. 225.”
This passage was referred to in Finance Facilities Pty. Ltd. v. Commissioner of Taxation (1971) 45 A.L.J.R. 615 by Windeyer J. at p. 617 and by Owen J. at p. 619.
There are numerous cases on the application of this principle, a number of which are conveniently collected in Pearce, Statutory Interpretation in Australia, at pp. 132-133 and, as the learned author points out, no clear pattern emerges from the decisions of the Courts. The answer must in each case be found from a consideration of the statutory provisions concerned.
In my view the context of Clause 4(2) itself would not indicate that the word “may” has a compulsive meaning. For instance, I do not consider that, having provided a limitation period of six months, the legislature would have intended that the limitation should automatically be waived merely because the failure to make the application within the prescribed period was due to absence from Queensland, irrespective of any other circumstances as, for example, a long and unexplained delay in making the application after the applicant had returned to Queensland.
Looking at the scope and objects of the legislation, it may be said that the object of the Act is to provide a scheme for the making of payments by way of compensation to injured workers and to the dependants of deceased workers where the injury suffered was related in a specified way to the worker's employment. One matter of obvious importance is for the Office to be informed of the relevant facts on which the entitlement to compensation is claimed to be based and for this to be done within a reasonably short period of the injury occurring so that any necessary investigations can be made by the Office in order to determine whether the entitlement exists. In the case of a deceased worker there is also the necessity for the Office to be satisfied of those who as dependents are entitled to share in the compensation. That being so, provision for some time limitation for the making of applications is necessary and, whilst it is appropriate for there to be some provision for waiving that limitation, nevertheless it might reasonably be expected that, in view of its purpose, some discretion would be reposed in the Office as to whether this should be done. It seems to me to be quite in keeping with this concept that, instead of giving the Office an unfettered discretion in such a matter, the course should be adopted of specifying certain defined circumstances in which the discretion could be exercised.
I would not consider that the situation comes within the class of cases described by Lord Cairns in the passage from his speech in Julius v. Bishop of Oxford (supra) referred to in Ward v. Williams (supra) where there is a duty to exercise the power of authority. In my view it has not been shown that “may” in Clause 4(2) has a compulsive meaning. On being satisfied of any one of the matters referred to in the second sentence of the sub-clause the Office then has a discretion as to whether the time limitation should be waived. It thus becomes necessary to consider the matters which may properly be taken into account in the exercise of that discretion. That this is a matter which must be gathered from the scope and object of the provision conferring the discretion appears from The King v. Trebilco; Ex parte F.S. Falkiner & Sons Ltd. (1936) 56 C.L.R. 20, at p. 32.
On the facts as they appear in this case it would not be appropriate to embark on a detailed consideration of the matters which might properly be taken into account in this regard. It is sufficient to consider whether the matter which was taken into account, namely that the maximum amount of compensation payable under the Act had been paid, was a relevant consideration. The maximum amount of compensation payable is provided for by s. 14. Clause 15 of the Schedule deals with the persons to whom payment is to be made in the case of death and, so far as it is here relevant, is in the following terms - “In the case of death, the payment shall be made to the legal personal representative of the worker, or, if he has no legal personal representative, to or for the benefit of his dependants ...”. In Bannister v. The Insurance Commissioner (1937) Q.W.N. 29 Webb J. (as he then was) pointed out that should it happen that the aggregate of the amounts due as compensation to a number of dependants exceeds the statutory limit, proportionate deductions must be made to bring the total within this limit.
If, after the expiration of the time for filing the application provided by Clause 4(2), the maximum amount of compensation has been paid to those who had established dependency within that time, I would consider that to be a most relevant consideration in the exercise of the discretion to waive the time limitation provision in the case of another person then claiming to be a dependant. At that stage the proportionate reductions referred to in Bannister v. The Insurance Commissioner (supra) could no longer be made and, even assuming that s. 26A, which was inserted by the 1978 Amendment Act were to apply in such a case, this has no relevance, as that section was not in force at the time when the discretion in this case was being exercised. The entitlement to compensation under s. 9 is not absolute, as, for instance, if the application was not filed within the prescribed time and the failure to do so was for some reason other than mistake, absence from Queensland, or other reasonable cause, there would be no basis on which it could be considered and the claim would by virtue of Clause 4(2) be unenforceable.
Turning now to the reasons, as shown by the correspondence, for which the Office decided not to waive the time limitation provision I proceed firstly on the basis that the application in relation to which it is necessary to consider the operation of Clause 4(2) is that submitted in May 1977. Nothing which was submitted to the Office prior to that date could properly be categorised as an application for the purposes of the Act. Secondly, I proceed on the basis that, in the absence of any evidence of a delegation of his powers by the General Manager pursuant to Clause 1 of the Schedule he was the appropriate person to exercise the discretion under Clause 4(2). It then becomes necessary to read together the letter of 1st June, 1977 from the Supervisor, Workers' Compensation Claims Department, and the letter of 25th August, 1977 from the General Manager. I read the latter letter as indicating that the General Manager had considered the matters put forward on behalf of the applicant together with the fact that the maximum amount of compensation payable under the Act had been paid and that in the exercise of his discretion he had decided not to waive the provision. I do not read the subsequent letter of 14th October, 1977 from the Acting General Manager as indicating that the question of whether dependency had been established had been taken into account in the exercise of that discretion. That letter is saying no more than that, whilst the solicitors had referred to the child as if she were a “dependant”, the Office had not stated that it had accepted her as such.
Subsequent to the hearing of this appeal counsel for the prosecutrix directed our attention to the increase in the amount of compensation that may be paid where death results from injury which was effected by the amendment of s. 14 by the 1978 Amending Act and written submissions as to the effect of this amendment were made by both counsel. In my view this amendment has no relevance to the question of whether the discretion under Clause 4(2) was properly exercised in August 1977 at a time before that amendment came into operation, as that question falls to be determined under the law as it then stood.
In my view the material shows that the discretion reposed in the Office by Clause 4(2) was exercised having regard to relevant matters and there was nothing to show that it was influenced by any irrelevant considerations. Assuming, without deciding, that the duty which the Office was required to perform was of a public nature so that the case is one in which mandamus would lie, in my opinion it has performed that duty. I do not consider that a case has been made for the issue of the writ. That being so, it is unnecessary to consider the question of the exercise of discretion by this Court as to whether the writ should issue.
In my opinion the order nisi should be discharged.
- Published Case Name:
The Queen v The Workers' Compensation Board of Queensland
- Shortened Case Name:
The Queen v The Workers' Compensation Board of Queensland
 FC 16
Stable S.P.J., Kelly J., Dunn J.
16 Mar 1979
No Litigation History