The Court of Appeal has recently considered an appeal pertaining to a written notice provided pursuant to s 278 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). Of chief relevance to the appeal was s 278(2)(d) of the Act, which provides that should an insurer receive a notice of claim for damages it considers non-compliant and it does not waive compliance, it must give a written notice allowing the claimant a reasonable period of at least ten (10) business days either to satisfy the insurer that the claimant has complied with the requirements of the Act or to take reasonable action to remedy the noncompliance.

Case Background and Section 278 Compliance Notice

The appellant alleged that he sustained injuries through the course of his employment as a high voltage linesman for Energex Limited on 25 February 2019, when an object fell from above striking him on the head and shoulder.

The appellant delivered a notice of claim for damages on 29 December 2022. On 31 December 2022, the respondent gave the appellant written notice pursuant to s 278 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). Therein, the respondent advised that it did not consider the appellant’s notice of claim to be a complying notice, on the basis that: –

a) The appellant had not provided earnings details in the notice for the period July 2021 to 31 December 2022;

b) The appellant had failed to disclose taxation documents for the 2022 financial year; and

c) The appellant had failed to disclose documents evidencing earnings or benefits received from 1 July 2022 to 31 December 2022.

The respondent’s written notice went on to advise that it did not waive the non-compliance and that it required the appellant to address the matters of non-compliance within twenty (20) business days by providing a statutory declaration pertaining to the missing earning details and providing copies of the identified documents.

It was the appellant’s submission that the respondent’s notice did not comply with the requirements of s 278(d) insofar as it failed to specify both parts of the composite phrase within s 278(2)(d).

Primary Decision

The primary judge identified the issue for consideration to be what, on proper constructions of s 278(2)(d), the relevant provision requires for written notice responding to a notice of claim.

The primary judge held that a failure to refer to both parts of the composite phrase in s 278(2)(d) did not render the respondent’s notice invalid or non-compliant. In support of this conclusion, the primary judge noted that the subsection did not utilise the word “stating”, only “allowing”. The primary judge further noted that the purpose of s 278(2)(d) was to advise a claimant of their preliminary view that the claim was not accepted, and to identify why this view had been formulated; if a claimant disagreed, a response to that effect could be provided.

Finally, the primary judge found that requiring the matters detailed in s 278(2)(d) to be expressly stated would not advance the purpose or object of the Act.

Appeal Decision

Boddice JA, with Bond JA and Burns J concurring, opined that a reading of s 278 of the Act as a whole, along with consideration of the purpose of the Act as a whole, supported a conclusion that the primary judge’s interpretation was correct.

Boddice JA noted that the primary judge’s interpretation was consistent with a plain and ordinary meaning of s 278(2) of the Act. In the court’s opinion, nothing in the words of s 278(2) requires the allowing of a reasonable period to either satisfy the insurer of compliance, or to take reasonable action, to be stated in express terms.

Boddice JA further opined that the primary judge’s interpretation was consistent with a reading of the Act as a whole, which allows a claimant to seek a declaration from the court about non-compliance, or to otherwise seek leave to commence proceedings notwithstanding non-compliance.

The Court also agreed with the primary judge insofar as requiring the respondent to state in express terms the matters in s 278(2) would be inconsistent with the object of Part 5 of the Act, along with the requirements of s 274 of the Act. These provisions refer to the just and expeditious resolution of issues in a claim at a minimum expense, as well as the avoidance of undue delay, expense, and technicality.

The court concluded that there was no error of law at first instance in the construction of s 278 of the Act. The appeal was dismissed with costs.

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