The Tasmanian Civil and Administrative Tribunal, Personal Injuries Stream, has issued its first decision regarding electronic service in relation to the new workers compensation claim form, which has been in use since February 2024.
In the case of [The] Laundry Pty Ltd v N [2024] TASCAT 134, there was a dispute over whether a worker had been validly served with a section 81A referral.
The Tribunal noted that the new claim form included a section for workers to provide an email address and an option to consent to electronic communication by ticking ‘yes’ or ‘no’.
In this case, the worker provided a gmail.com.au address which was incorrect (it should have been @gmail.com). The Worker also consented to electronic communication by selecting ‘yes’. The employer’s lawyers served the section 81A referral to the provided email address.
During the section 81A referral hearing, the worker’s lawyers presented evidence that the worker had communicated with the employer using a gmail.com email address and had been informed that the employer had forwarded his claim to the insurer. They also submitted a test email showing that an email sent to the gmail.com.au address returned an undeliverable message after 22 hours.
The employer’s lawyers did not make any submissions regarding the fact that it appeared that the worker had mistakenly provided an incorrect email address on the claim form.
The Tribunal confirmed that employers must serve workers with written notice disputing liability, stating the reasons for the dispute, and referring the matter to TASCAT within 84 days of receiving a claim, as per section 81A(1) of the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act), which is governed by section 159 of the Act. The case of State of Tasmania v Herlihy [2019] TASSC 5 had already determined that the Electronic Transactions Act 2022 may apply to the service of a notice under section 159.
The Tribunal had to consider two issues: whether the new claim form’s question about electronic communication consent was sufficient to allow service of documents via email, and whether service via an incorrect email address still constituted effective service.
Regarding the worker’s consent to electronic service, the Tribunal distinguished this case from Herlihy, where the old claim form had been used. The new form’s option for electronic communication consent aimed to eliminate disputes about consent under the Electronic Transactions Act.
The Tribunal referenced the definition of consent in the Electronic Transactions Act, which included “consent that can reasonably be inferred from the conduct of the person concerned but does not include consent given subject to conditions unless the conditions are complied with.”
It concluded that by answering ‘yes’ to the question “Do you consent to receive communication about your claim electronically?” on the claim form, a worker either consented to receiving notice of a dispute under section 81A by email or engaged in conduct from which such a consent could be reasonably inferred, satisfying section 6(1)(b) of the Electronic Transactions Act.
Regarding the incorrect email address on the claim form, it was determined that section 6(1)(a) of the Electronic Transactions Act did not require the employer to prove that the documents were readily accessible to the worker, only that it was reasonable to expect the email content to be accessible. This reasonableness was to be assessed at the time that the email was sent, not in hindsight.
The employer’s lawyers used the email address provided by the worker on the claim form. The Tribunal stated that it was reasonable for them to believe that this was the correct address and that the email content would be accessible to the worker. The fact that the employer had corresponded with the worker via a different email address was irrelevant, as it was common for individuals to have multiple email addresses. Thus, section 6(1)(a) of the Electronic Transactions Act was satisfied.
It also determined that service of the dispute was appropriately affected on the worker, despite the incorrect email address, and that there was jurisdiction to determine whether there was a reasonably arguable case.
This case supports the use of electronic service of documents for workers who consent to electronic communication on their claim form. However, to avoid similar issues, it is best practice to:
- send section 81A referrals by express post with tracking if there is more than a week before the 84th day.
- ensure email correspondence with the worker uses the correct email address, with additional written confirmation of their consent to receive documents via that email address.
- use post and personal service if there are concerns about the worker’s ability to use or access their email, or if they have not consented to receiving documents via email.
More information
If you have any queries about this article, please feel free to contact:
| Kate Stockford Special Counsel T: (03) 6235 5133 E: kstockford@pageseager.com.au |
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Published: 22 August 2024
