What A Difference A Day Makes

Relevantly, the Director’s Delegate had refused to grant an extension of the termination date to 30 June 2011 pursuant to s93M(4)(a), s93M(4)(b) or s93M(4)(c), on the ground that under s93M(6) the last date to which an extension could be granted was 29 June 2011. So far as the respondent worker relied upon s93M(4)(d)(i), the Director’s Delegate sought further information as to the basis upon which the extension was sought (which information was not forthcoming).

The respondent worker subsequently commenced proceedings by notice of originating motion, seeking a Writ of Mandamus to quash the decision of the Director’s Delegate to refuse to grant the extension to 30 June 2011, and a Writ of Mandamus to compel the Director to grant an extension of the termination date to 30 June 2011 and to register the respondent worker’s election to retain the right to seek common law damages.

The primary Judge:

1. ordered the Writ of Certiorari to quash the decision to refuse to grant the extension to 30 June 2011 be issued and gave the respondent worker liberty to apply for a Writ of Mandamus;
2. considered the definition of “termination day” in s93M(1), with reference to s61(1)(b) of the Interpretation Act 1984;
3. concluded that:
3.1 The first day in the running of a one year period under s93M(1) was
30 June 2009;
3.2 The “last day” of a period (that is one year after 30 June 2009) is the one year anniversary of that day, namely 30 June 2010;
3.3 Therefore, had there been no extensions under s93M(4), the respondent workers’ termination day was 30 June 2010;
3.4 S61(1)(b) of the Interpretation Act would exclude 30 June 2010 when calculating the period “one year” after 30 June 2010;
3.5 A second relevant one year period begins to run from the next day (from 1 July 2010);
3.6 The date for the purposes of s93M(6) which is “one year after” 1 July 2010 is the one year anniversary of 1 July 2011;
3.7 The termination day, if no extension had been granted was 30 June 2010;
3.8 The final date which the termination day could be extended was until 1 July 2011, pursuant to s93M(6)
3.9 The decision of the Director’s Delegate of 14 July 2011 was affected by jurisdictional error.

The employer appealed against the decision of the primary Judge on the basis that:

1. his calculation of the termination day was incorrect; and
2. on the assumption that the respondent worker first made a claim for workers’ compensation on 29 June 2009, the last date to which the termination date could be extended was 29 June 2011.

By unanimous decision the Appeal was allowed, the orders made by the primary judge set aside and the respondent workers’ notice of originating motion dismissed.

In his leading decision, Newnes JA found that:
1. The primary Judge erred in the construction of s92M(1) and s92M(6) of the Act;
2. S93M(1) defines the “termination day” to be “the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made”;
3. If the respondent worker first made a claim for workers’ compensation by way of weekly payments on 29 June 2009, the “termination day” was “the last day of the period of one year after” 29 June 2009;
4. By virtue of s61(1)(b) of the Interpretation Act, where a period of time is expressed to be reckoned from or after, a specified day, that day shall not be included in the period;
5. As such, 29 June 2009 is not to be included in calculating the one year period under s93M(1);
6. The period therefore started on 30 June 2009;
7. However, the primary Judge erred in finding that the period ended on 30 June 2010;
8. Rather, it ended at midnight on 29 June 2010;
9. The primary Judge’s calculation provided for a period of one year and one day (with 30 June having been counted twice);
10. S93M(1) does not provide for a period of one year and one day;
11. The applicable termination day was 29 June 2010;
12. The same reasoning applies to the operation and effect of s93M(6).

The Court of Appeal concluded therefore that the primary Judge erred in finding the decision of the Director’s Delegate as to the termination day was wrong.

The core issues on the Appeal related to the existence (or not) of an accounting error in the computation of time.

As well as highlighting the importance of the proper application and consideration of “the Interpretation Act method” of reckoning time in general, the Supreme Court of Appeal has expressly confirmed that s93M(1) does not provide for a period of one year and a day.

This Case Law Update is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

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Date: 8 September 2014

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