IN THE MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
No. M2 of 1992 (9215161)

tho92008

BETWEEN:
EDWIN DINGUL
Applicant

CORAM: THOMAS J

AND:

TERRITORY INSURANCE OFFICE BOARD
Respondent

REASONS FOR DECISION
(Delivered 22 January 1993)

This	is	a	reference	to	the (Compensation) Appeal Tribunal, which

Motor	Accidents is established	by

section	28	of	the	Motor	Accidents
("the Act").

(Compensation)	Act

The	Applicant,	Edwin	Dingul,	states	that	he	is aggrieved by:

"a determination of the Board on the fifteenth day of June 1992, whereby the Board upheld a Determination of the "Designated Person" dated 24/3/92, such Determination stating that the "Designated Person" refused to consider the Applicant's claim, pursuant to section 31(2) of the Act."

Edwin Dingul refers the matter to the Tribunal upon the following grounds:

The Applicant is a resident of the Territory who suffered injury in a motor vehicle accident in the Territory on 9/7/85 (an accident in which he was not the driver) and is eligible under the Act to make a claim for benefits;

The Respondent must be taken to have accepted the prior acknowledgment by the Territory Insurance Office (by letter dated 6/1/92) of the reasons given for the delay in lodging the Applicant's claim.

There is no basis upon which the Respondent could determine that the Territory Insurance office could be "prejudiced" as a result of the late lodgment of the Applicant's claim, as put to the Board in submissions dated 21 April 1992 a copy of which is annexed to the reference.

This		reference	came	before	the		Tribunal	on	18 November	1992	confined	to		one	issue	only,	that		issue
being	the	jurisdiction	of	the	Tribunal	to	hear	the	
evidence.	The	hearing	proceeded	by	way	of	affidavit	
evidence.	The	Respondent	relied	on	the	following	
evidence:			

Affidavit of Madeleine Annette Berger sworn 27 October. 1992.

Affidavit	of	Alan	Lloyd	Napier	sworn	16 November 1992.

The Applicant relies on the following evidence:

Affidavit	of	Edwin	Dingul	sworn	28	October
1992.

Affidavit of Kenneth Raymond Roddenby sworn 28 October 1992.

On this evidence the facts relevant to the question of jurisdiction are as follows:

On 29 August 1991 the office of the received a letter from Katherine Regional Service Inc. dated 27 August 1991 advising

Respondent Legal Aid that they

acted for the Applicant and enclosing an application for benefits in respect of the Applicant who was a passenger in a motor vehicle accident on 9 July 1985 and is claiming benefits for injuries including abrasions to the head, broken collar bone, three broken ribs and a dislocated back. The accompanying letter from the Katherine Regional Aboriginal Legal Aid Service set out some reasons for the delay in lodging the claim which essentially relate to the Applicant I s ignorance of the requirement to lodge a claim within six months of the accident, the possibility that the head injuries the Applicant suffered in the accident caused unpredictable behaviour and failure to keep appointments, the perceived need for a psychiatric examination to be arranged, the problems of communication because of the Applicant's lifestyle and the remoteness of his home community.

On 24 March 1992 the Designated Person made a Determination in relation to the Applicant refusing to consider Mr Dingul's claim. By letter dated 25 March 1992 the Determination by the Designated Person was forwarded to the Applicant at the address given by him being c/- Ngukurr Community via Katherine NT 0852. This letter was delivered to the Applicant by certified mail on 31 March 1992. Also on 25 March 1992 the Respondent forwarded a letter to the Katherine Regional Aboriginal Legal Aid Service enclosing a copy of the determination made on 24 March 1992.

On 22 April 1992 the Respondent received a letter from the Katherine Regional Aboriginal Legal Aid Service dated 21 April 1992 enclosing written submissions for an appeal from the determination of the designated person.

On 15 June 1992 the Board of the Territory Insurance Office made a determination in relation to the Applicant. That determination was that:

"The	Board	upholds	the	determination Designated Person dated 24th March 1992.11

of	the

The Determination also gave notice relating to the aggrieved person's right to appeal to the Motor Accidents Compensation Appeal Tribunal within 28 days of receipt of the Determination.

On 16 June 1992 the Respondent caused a letter to be forwarded to the Applicant by certified mail to this last known address. This letter was acknowledged as being received by the Ngukurr community agent appointed by the G.P.O., who delivers the mail to the community. The mail is delivered to the community twice a week on Tuesdays  and Fridays.

Also on 16 June 1992 the Respondent forwarded a copy of the Determination of the Board to the office of the Katherine Regional Aboriginal Legal Aid Service.

Mr Dingul was sentenced to a term of imprisonment on
22 May 1992 and as at the date of his affidavit of 28 October 1992 was still serving a prison sentence.

Mr Dingul first became aware of the Determination by the Board upholding the Determination of the Designated Person dated 15 June 1992 when he received a telephone call from his solicitor Mr David Dalrymple of Katherine Regional Aboriginal Legal Aid Service on 30 July 1992 advising that a copy had been received in the office of Katherine Regional Aboriginal Legal Aid Service during Mr Dalrymple's absence on leave.

The affidavit of Mr Roddenby, a legal practitioner employed as the senior solicitor of Katherine Regional Aboriginal Legal Aid Service, is that Mr David Dalrymple had the carriage of the matter but was on leave at the time of the receipt into the office of Katherine Regional Aboriginal Legal Aid Service of a copy of the Determination of the Board dated 15 June 1992.

The said letter and copy of Determination were not referred to Mr Roddenby on its receipt  into  the office and consequently no action was taken on the matter  until Mr Dalrymple returned from leave at the end of July 1992.

Section 31 of the Motor Accident (Compensation) Act
provides:

11 31.	TIME FOR MAKING CLAIMS
A claim -
for a benefit; or
for the variation of a benefit,
under this Act shall be made as soon as practicable after the accident in or as a result of which the death or injury giving rise to the claim for a benefit, or the change in circumstances giving rise to the claim for variation of the benefit, occurred.
The Board may refuse to consider -
a claim in respect of an accident; or
a claim for the variation of a benefit,
made later than 6 months after the date of the accident or the occurrence giving rise to the claim for variation, as the case may be."

Section 29(1) of the Motor Accident (Compensation) Act provides:

1129.	APPEALS TO THE TRIBUNAL
Any person who is aggrieved -
by a determination of the Board under this Act;

by the failure of the Board to make a determination within the 60 days referred to in section 27(3),

may, within 28 days after being served under section 27(4) with a copy of the determination of the Board or the expiration of that time, as the case may be, refer the matter to the Tribunal."

It is not open to the Tribunal to entertain a reference if the requirements of section 29(1) as to time have not been strictly complied with.  Compliance  with the 28 day appeal period is mandatory. Jones v Motor Accidents (Compensation) Appeal Tribunal 59 NTR  12. Taylor v Territory Insurance Office 77 NTR 13.

There is no dispute here that if service by post on
16	June  1992	is effective,	the requirements	of section 29(1) have not been complied with by the Applicant.

Section 27(4) and (8) of the Motor Accident (Compensation) Act provides:

"27.	DECISION AND REFERRAL TO BOARD
( 4}	A determination referred to in subsection
shall be in writing and a copy shall be served on the aggrieved person.

( 8)		A		notice		or		determination		in required	by this section to be served on shall	be				served	on		him	personally	or addressed			to		him		at		his		address	stated relevant request or his last known address."

writing a person by post
in	the

There is no dispute in this matter that the Determination was served on the Applicant by post, addressed to him at his last known address in compliance with the provisions of section 27(8).

Section 25 of the Interpretation Act provides:

"25.	SERVICE BY POST

Where an Act authorizes or requires a document, parcel or other thing to be served by post, whether the expression "serve" or "give" or "send" or any other expression is used, service shall be deemed to be effected by properly addressing and posting it by prepaid post, and service is deemed to have been effected at the time at which the package would be delivered in the ordinary course of post."

There is no dispute that at the time service was "deemed to have been effected" on the Applicant, he was in gaol and did not receive the letter and enclosed Determination.

I accept the argument of Counsel for the Applicant that in these circumstances the true meaning to be given
to the word "deemed" is prima facie evidence held "until the contrary is proved". Hickey v Stalker  et  al  1924 Dominion Law Reports 441. To hold otherwise would create
an injustice and absurdity that could not have been intended by the legislation.

It is an undisputed fact in this matter that the Applicant who lives in a relatively remote community in the Northern Territory was in gaol in Darwin at the time service was effected by post and he did not receive the Determination.

I adopt the following comments of Romer Jin Robert Batcheller and Sons Ltd v Batcheller  1945  1  Chancery Division 170 at 176:

"But whatever the true scope of the article may be, I am of the opinion that it only operates when the known circumstances of a particular case are such as sensibly and legitimately to admit of its application. It is, of course, quite permissible to 'deem' a thing to have happened when it is not known whether it happened or not. It is an unusual but not an impossible conception to 'deem' that a thing happened when it is known positively that it did not happen. To deem, however, that a thing happened when not only is it known that it did not happen, but it is positively known that precisely the opposite of it happened, is a conception which to my mind, if applied to a subject matter such as that of art. 93 amounts to a complete absurdity."

Counsel for the Respondent does not concede the Applicant is correct in respect of this interpretation of the word deemed and relies on the fact that the Respondent has complied with the requirements for service

as	set	out	in	section	27(8)	of	the	Motor	Accidents (Compensation) Act.

In addition to carrying out the correct requirements in respect of service in accordance with the Act the Respondent submits that a copy of the Determination was on the same day served on the Katherine Regional Legal Aid Service Inc. It is the Respondent's contention that from correspondence received from that office the Katherine Regional Legal Aid Service were clearly acting for the Applicant. The fact that the administrative arrangements in that office were such that the Determination did not come to the attention of the Solicitor handling that matter until the end of July when he returned from leave does not mean that service on the solicitors for the Applicant was inadequate. Accordingly, service on the solicitor for the Applicant was also sufficient to comply with the requirements of the Act. Service was effected on the solicitors for the Applicant on 16 June 1992 and the Tribunal has no jurisdiction to hear an appeal from the Determination of the Board unless the Applicant refers the matter to the Tribunal within 28 days after being served with a copy of the Determination.

I accept that the Respondent in serving a copy of the Determination on the solicitors for the Applicant acted very reasonably and did more than is required under the legislation to bring the Determination to the notice of the Applicant. I also accept that on the facts as presented to this court the Katherine Regional Legal Aid Service Inc. deserve criticism because the administrative arrangements within that office were such that this Determination was not drawn to the attention of the solicitor handling the matter until he returned from leave some weeks later. It was not drawn to the attention of the solicitor in charge of the office. That sort of administrative arrangement is fraught with danger and should not occur in any legal office. It may well be

the Applicant in these proceedings has a complaint against the Katherine Regional Service Inc.

justifiable Legal	Aid

However, on my reading of the legislation, service on the solicitor although no doubt wise and reasonable was a gratuitous act and cannot make good otherwise defective service.

The requirement of the legislation is that the determination be served on a person ( in this case the Applicant) either personally or by post addressed to him at his address, stated in the relevant request or his last known address. The Applicant was served at his last known address. For the reasons already stated I have found that the deeming provision is rebuttable and that the Applicant was not in fact served and cannot be held to have been served in accordance with the provisions of the Act.

The office of his solicitors falls neither into the category of his address stated in the relevant request or his last known address.

For these reasons I find that service was not effected following postage on 16 June 1992.

A reference to the Tribunal was filed on 4 August 1992, that date being within 28 days of 30 July, the date on which the Determination was brought to the attention of Mr Dingul.

Accordingly, the referral to the Tribunal is within
28 days of service of the Determination. There is compliance with the provisions of section 29(1) and this court has jurisdiction to hear the claim.

The parties are given liberty to apply in respect of an order for costs.