ADCO Constructions Pty Ltd v Ferguson

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSWWCCPD 21
APPELLANT:	ADCO Constructions Pty Ltd
RESPONDENT:	Kenneth Ian Ferguson
INSURER:	GIO Workers Compensation (NSW) Limited
FILE NO:	WCC 5582-2002
DATE OF DECISION:	26 August 2003
PRESIDENTIAL MEMBER:	Deputy President Dr Gabriel Fleming
DECISION UNDER APPEAL:	Application for Leave to appeal against a decision of an Arbitrator refusing leave to file a late Reply and Directions to Produce. Inadequacy of Reasons, Factors relevant to the exercise of discretion under Interim Rule 5, (Rule 6 Workers Compensation Commission Rules 2003)
DATE OF DECISION UNDER APPEAL:	4 April 2003
HEARING:	On the Papers
REPRESENTATION:	Appellant: Turks Legal
Respondent: Taylor and Scott
ORDERS MADE ON APPEAL:	Leave to Appeal is Granted. The decision of the Arbitrator is revoked. Leave to extend the time for the Insurer to file a Reply to the Application for Dispute Resolution is granted. Appellant to file and serve a Reply on or before 29 August 2003. The matter is to be listed for a Telephone Conference before an Arbitrator in the week commencing 15 September 2003.

THE APPEAL

On 1 May 2003 GIO Workers Compensation (NSW) Limited, (‘the Appellant Insurer’) lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 April 2003. The Respondent to the appeal is Kenneth Ian Ferguson (‘the Respondent Worker’) and the employer is ADCO Constructions Pty Limited (‘the Appellant Employer’). The Appellant Insurer acted on behalf of the employer in the proceedings before the Commission.
The appeal is against a decision by the Arbitrator to refuse to grant the Appellant Insurer an extension of time to file a ‘Reply to an Application to Resolve a Dispute’. The Appellant Insurer also seeks to appeal against a purported decision by the Arbitrator to refuse leave to extend the time for the issuing of a Direction to Produce, however this is not a matter addressed in the Arbitrator’s decision. This aspect of the appeal is dealt with separately, below.

JURISDICTION TO HEAR THE APPEAL

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
In support of the claim that leave to appeal should be granted the Appellant Insurer relies upon the provisions of section 352(2) of the 1998 Act and the determination of Deputy President Byron in the matter of Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD5 (‘Mawson’). In Mawson it was decided that where the ‘decision’ under appeal does not involve the making of a monetary award, the threshold requirements of section 352(2)(b) could have no operation. Consistent with the definition of ‘decision’ in section 352(8) it is possible to appeal against an interlocutory decision, involving no monetary ‘award’. The definition of ‘decision’ in section 352(8) encompasses interim awards, rulings and directions.
Section 352(2) has two limbs that must be satisfied. Section 352(2)(a) provides that the Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is . . . at least $5000. Not all ‘decisions’ made by a Commission Arbitrator will be able to meet this statutory requirement. In Mawson the ‘decision’ under appeal was the refusal to issue a ‘Direction to Produce Documents’. The Deputy President accepted the argument that such a decision had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the appeal.
This reasoning is equally applicable to a decision refusing to allow a Respondent to file a ‘Reply to an Application to Resolve a Dispute’ (‘a Reply’). A Reply is required, by the Interim Workers Compensation Commission Rules 2002, Rule 27 (Workers Compensation Commission Rules 2003, Rule 40), to contain all information and documents on which the Respondent proposes to rely that are in the possession of the Respondent at the time of filing. The failure to lodge a Reply clearly impacts on the employer’s ability to respond to the worker’s claim (see also Steven Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5 where the decision to refuse an adjournment was found not to pass the threshold test in section 352(2)).
For these reasons the application for leave to appeal is granted.

ON THE PAPERS REVIEW

Section 354(6) of the Act provides:
“354 Procedure before Commission
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to President’s Practice Direction Number 1 of 2003, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

EVIDENCE AND SUBMISSIONS

It is clear from a review of the papers, including the documents that were before the Arbitrator and correspondence contained on the Commission file, that both parties have consistently failed to comply with the requirements of the Interim Workers Compensation Commission Rules 2001 and the President’s Practice Directions, in relation to the timeliness of the filing of documents relevant to the dispute, including this appeal. The chronology of events surrounding this appeal, and the corresponding dates by which relevant documents were required to be filed by the Rules, is as follows;
20 December 2002 - Application to Resolve a Dispute filed by Worker.
22 January 2003 – Service of Application on Employer. Rule 15(4) required service within 7 days (excluding days on which the Registry was closed, i.e. 30 December 2002).
23 January 2003 – Certificate of Service of Application filed in the Commission. Rule 15(5) required filing of a Certificate of Service within 7 days of serving, i.e. 29 January 2003.
19 February 2003 – Commission rejected an application from the Insurer, on behalf of the Employer, to issue a ‘Direction to Produce Documents’ because it was filed out of time (as no copy of the proposed Direction is on the Commission file, I am not aware of the date of the requested Direction). Rule 31A required such a Direction for Production to be filed at the time of filing of the Reply.
21 February 2003 – Reply, with attached medical reports and other documents filed by Insurer. Rule 26 required a Reply to be lodged within 14 days of being served with the Application. i.e. 6 February 2003.
25 February 2003 – Commission returned the Reply and Direction, advising the Insurer that an application for leave to file documents out of the time may be made pursuant to Rule 5(2).
17 March 2003 – Insurer filed application for leave to file the Reply and Direction to Produce Documents.
17 March 2003 - Applicant Worker filed objection to leave being granted to allow Insurer to file late Reply.
4 April 2003 - Arbitrator rejected the Insurer’s application to file a Reply out of time on the basis that the Insurer has not provided an adequate explanation for its failure to lodge its Reply in accordance with the Rules. The Arbitrator made no decision in relation to the issue of the late Direction to Produce.
1 May 2003 - Appeal and Certificate of Service (stating that service was effected on 1 May 2003) filed against decision to refuse to allow Reply to be filed late, and, purportedly, against the decision to refuse to issue the Direction to Produce to Dr Tiwari. Section 352(4) of the 1998 Act requires appeal to be filed within 28 days, i.e. by 2 May 2002.
5 May 2003 - President’s Practice Direction 6B of 2002 sent to legal representatives of both parties.
27 May 2003 – Second Certificate of Service of the Appeal filed by Appellant Insurer stating that the ‘Application Against Decision of Arbitrator’ was ‘created and served’ on 26 May 2003. This is contrary to the Certificate of Service filed with the Appeal on 1 May 2003, which stated that the Appeal was served on 1 May 2003. Rule 50(3) required that a Certificate of Service of the Appeal accompany the Application to Appeal on filing, i.e., on 1 May 2003.
13 June 2003 - Reply to the Application to Appeal and submissions filed by the Respondent Worker, objecting to leave being granted to appeal. Practice Direction 6B of 2002, which applied when the Application was served, required the ‘Reply to an Application for Leave to Appeal a Decision of an Arbitrator’ to be filed within 14 days of being served, i.e. 15 May 2003 or 10 June 2003 depending upon which was the correct date of service.
20 June 2003 – Commission wrote to Appellant Insurer asking for a submission addressing the requirements of President’s Practice Direction 6B in relation to the issue of ‘leave to appeal’ and ‘on the papers’ review. President’s Practice Direction 6B of 2002 required these submissions to be filed with the Application to Appeal, i.e., on 1 May 2003.
24 June 2003 - Commission wrote to Respondent Worker’s legal representative seeking confirmation that Reply was served on the Appellant. President’s Practice Direction 6B of 2002 required a Certificate of Service of the Reply be filed at the time of filing the Reply, i.e. on 13 June 2003
30 June 2003 - Further submissions filed by the Appellant Insurer addressing leave issue and whether matter can be decided on the papers. President’s Practice Direction 6B of 2002 required these submissions to be filed with the Application to Appeal, i.e., on 1 May 2003.
1 July 2003 - Commission sought confirmation that Appellant Insurer’s additional submissions had been served on the Respondent. Rule 50 required that the Certificate of Service of all documents in the Appeal is required at time of filing, i.e. 1 May 2003.
4 July 2003 - Confirmation of service of Respondent Worker’s submissions. President’s Practice Direction 6B of 2002 required Certificate of Service of all documents in Reply to the Appeal at the time of filing the reply, i.e. 14 days after service of Application on the Respondent, on 15 May 2003, or 10 June 2003, depending upon what is the correct day of service.
30 July 2003 – Confirmation of service of Appellant Insurer’s additional submissions. President’s Practice Direction 6B of 2002 required these issues be addressed, and Certificate of Service of all documents in the appeal be filed with the Application to Appeal, i.e., on 1 May 2003.
14 August 2003 - Referred to Deputy President for determination of the appeal.
The Appellant Insurer submitted that the Arbitrator erred because she:
·     Placed undue weight on whether the employer provided an adequate explanation for the filing of a late Reply,
·     Did not give enough weight to the issue of the injustice and prejudice that would flow to the Respondent employer if the Reply were not accepted, and the fact that no prejudice would flow to the Appellant if the Reply was accepted, and
·     Did not provide adequate reasons for the decision addressing the above.
The Respondent Worker submitted that the Arbitrator did not err in making the decision and that:
·     When seeking leave to have the Reply admitted the employer did not make any submissions to the Arbitrator as to the reasons for the delay in filing the Reply. The Arbitrator’s reasons are adequate and address the lack of reasons provided by the employer, and
·     The Arbitrator was correct to place weight on the absence of an explanation for the delay in filing the Reply, and
·     The Arbitrator properly took into account the issue of what prejudice, if any, would occasion to the worker, were the late Reply accepted, and what prejudice, if any would result to the employer if the Reply were not accepted.

DISCUSSION AND FINDINGS
Compliance with the Workers Compensation Commission Rules

The 1998 Act provides for the making of Rules by the Commission as follows;
364 Rules of the Commission
(1) The Minister may from time to time by order make Rules of the Commission for or with respect to any aspect of procedures to be followed in connection with the jurisdiction or functions of the Commission, including provisions for or with respect to:
(a)the manner of referring claims or disputes for assessment or determination by the Commission, and
(b)the documentation that is to accompany such a reference of a claim or dispute for assessment or determination , and
(c)the manner of presenting documents and information to the Commission by the parties, including time limits for the presentation of documents and information, and
(c1)requiring the provision of documents and information by a party to a matter before the Commission to any other party to the matter, and
(d). . .
(e). . .
(f). . .
(g). . .
(h) all matters of practice and procedure in proceedings before the Commission, and
(i). ..
(j). . . .
At the time when the steps in these proceedings were being taken the relevant Rules, made under the 1998 Act, were the Interim Workers Compensation Commission Rules 2001 (‘the Rules’). These Rules have now been repealed and replaced by the Workers Compensation Commission Rules 2003.
Rules with respect to the Commission’s procedures must be read in light of the objectives of the Commission and the statutory provisions that govern its procedures, in particular, Sections 367 and 354 of the 1998 Act, which provide as follows:
367 Objectives of the Commission
(1)         The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f)    to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
354     Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8). . . .
The Commission has been in operation since January 2002. It is reasonable to expect that legal practitioners who act for parties in the Commission have familiarised themselves with the Commission’s practices and procedures and will demonstrate adherence to them. The Rules accord with the objectives of the Commission, found in section 367 of the 1998 Act, specifically the provision of a timely dispute resolution service for workers compensation disputes. It is entirely proper that an Arbitrator should approach the exercise of discretion in Rule 5 with the view that parties should comply with the requirements of the Commission’s Rules. Had the parties done so in this matter it is likely the dispute would have been settled by agreement between the parties, or determined by the making of a decision by the Arbitrator, long before the date of this determination of the appeal.
It is clear that the Minister intended, in the making of Rules establishing the procedures of the Commission, that those Rules should be adhered to and be given full force and effect. While Rule 5 allows the Commission to dispense with compliance with any of the requirements of the Rules, this discretion is likely to be exercised only in exceptional circumstances. The exercise of discretion to allow non-compliance with the Commission’s Rules is not, and cannot be, the normal and accepted practice of the Commission. With this in mind it is necessary to consider the factors relevant to the exercise of this discretion by the Arbitraror.

Discretion to Admit Late Documents

On 1 July 2003 the President issued Practice Direction 9, which concerns the lodgment of late documents, including a late Reply, in the Commission. While this Practice Direction was not available to guide the parties and the Arbitrator at the relevant time for this appeal, it nonetheless sets out clearly a number of factors that should be considered in the exercise of the Arbitrator’s discretion to admit late documents, as follows:
In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
·     the submissions of the parties, including, if any, oral or written objections to the grant of leave,
·      the effect, if any, on the timely resolution of the dispute,
·      the extent of the prejudice to the other parties, if any, that would result from granting leave,
·     the requirements of the Act and the Rules, and
·      the objectives of the Commission.

It is for the party seeking the exercise of the discretion, the Appellant Insurer in this case, to demonstrate why an extension of time to lodge the Reply should be granted.
In the absence of any legislative direction as to how the discretion to dispense with the requirements of the Interim Workers Compensation Commission Rules 2001, (‘the Rules’) is to be exercised, it will be a matter for the Arbitrator to determine in accordance with what is fair and reasonable in the particular circumstances of each case. A number of factors will be relevant to this determination including:
·     the conduct of the party seeking leave, in particular whether there is an acceptable explanation for the delay, although this factor is not a precondition to the grant of an extension of time (Dix and Another v Crimes Compensation Tribunal [1993] 1 VR 297, Workers Compensation Commission Practice Direction 9),
·     whether or not the refusal to admit the Reply will cause a substantial prejudice or injustice to the party seeking leave. It will also be relevant whether that prejudice can be remedied by other means, for example, by an order for costs,
·     the prejudice, if any, that would result to the other party, in admitting the Reply, although the mere absence of prejudice is not necessarily sufficient to grant an extention of time (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305, Practice Direction 9),
·     whether or not the delay in filing the Reply was attributable to the legal representative and not the party personally, although this does not necessarily entitle the party seeking leave to an extension of time (Sophron v The Nominal Defendant [1957] 96 CLR 469; Gallo v Dawson (1990) 64 ALJR 458),
·     the nature of the proceedings, including the nature of the relevant statutory scheme and the objectives of the legislation (Workers Compensation Commission Practice Direction 9), and
·     general considerations of fairness and justice between the parties (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305; Gallo v Dawson (1990) 64 ALJR 458).
A consideration of these factors in the instant case represents a balancing of interests as between the parties, and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives. The unusual costs regime that applies to the conduct of matters in the Commission, means that it is unlikely the matter can be remedied by way of an order for costs. Section 341 of the 1998 Act provides that the Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fradulent or made without proper justification. An award of costs against a Respondent who has caused an Applicant some prejudice or delay in the proceedings, is therefore not likely to be an additional punitive burden on a Respondent. In addition, the fundamental nature of the documents at issue in this matter, ie the ‘Reply to an Application to Resolve a Dispute’, which incorporates the evidence to be given by the Appellant in answer to the claim, is significant.

In this Matter

The Appellant Insurer has failed to provide any adequate explanation of the reason for the delay in filing the Reply. Implicit in the original application for leave, is the claim that the referral of the matter as between the employer and its insurer, and then to the legal representative of the insurer, contributed to the delay. The legal representative of the Insurer states the matter was received by the Insurer on 3 February 2003, and by him on 6 February 2003, the date on which the Reply was due to be filed. I do not accept that this is a satisfactory reason for the delay in filing the Reply. It is incumbent upon all parties involved in a workers compensation dispute, to be aware of their obligations including the requirements of the Rules in relation to the conduct of disputes in the Workers Compensation Commission.
However, I note that the Applicant Worker was already in breach of the Rules at the time of service of the Application, which was filed in the Commission on 20 December 2002, yet the Applicant took nearly five weeks to serve it on the Respondent. In these circumstances it is trite, and inconsistent, for the Applicant to complain of the Respondent’s delay of two weeks in replying to the Application.
I have no evidence of whether the Appellant Insurer’s non-compliance with the Rules is attributable to the Insurer’s officers or its legal representatives. Similarly, where the Respondent Worker has failed to comply with the Rules there is no evidence of whether this can be attributed to his legal representative. Regardless, it has been to the detriment of both parties that this matter has not progressed in a timely way. The Commission’s practices and procedures enable the parties to explore the possibility of reaching a mutually agreed settlement of their dispute, with the assistance of an Arbitrator, at the earliest opportunity, usually within weeks of the filing of the Reply to the Application. This ensures that worker entitlements are paid promptly and all parties gain finality of the dispute.
In my view the conduct of both parties has caused unacceptable delay in progressing the dispute resolution process in the Commission. Although not relevant to the Arbitrator’s decision, I note that the parties have also not complied with the Rules and the President’s Practice Direction, in relation to the conduct of this appeal.
I accept that the refusal to allow the filing of the Insurer’s Reply to the ‘Application to Resolve a Dispute’ will cause the Insurer substantial prejudice. The Workers Compensation Act 1987 (‘the 1987 Act’) establishes a statutory entitlement scheme whereby a worker who has received an injury . . . shall receive compensation from the worker’s employer in accordance with the Act (section 9). It is for the worker to satisfy the factual and legal onus of proof in establishing this entitlement, for example the worker must prove ‘injury’ in accordance with section 4 of the Act, and that employment was a ‘substantial contributing factor’ to the injury in accordance with section 9A of the 1987 Act. It is then for the employer, or insurer, to prove that such an entitlement does not exist. If, as in this case, the Respondent Insurer is prevented from putting any evidence or submissions before the Arbitrator on these matters, then it follows that the Respondent will be prevented from discharging this onus and unable to properly argue its position in relation to the dispute. This is not a prejudice that can be remedied by other means, such as an order for costs.
The Respondent Worker has not submitted that he would suffer prejudice if the Reply were filed out of time. The statutory scheme provides for the making of workers compensation claims and prompt responses to those claims by employers and insurers (Part 2, Chapter 4 of the 1998 Act). The worker should already be on notice of the refusal of the claim and the reasons for that refusal (section 74 of the 1998 Act). The fact that the Applicant must meet the Insurer’s decision in the Commission is not a prejudice to the Applicant. It is the logical consequence of the claim and dispute resolution process set out in the legislation. The only prejudice to the Applicant in this matter is the delay in progressing it to a timely resolution. At the time of the Arbitrator’s decision this delay was measured in weeks, however the appeal, and the conduct of the parties in relation to it, has added months to this delay. I am not satisfied that the refusal to admit the Reply, either at the time of the Arbitrator’s decision, or at the time of this determination, would cause substantial prejudice to the worker.
The nature of the proceedings before the Arbitrator and the relevance of the statutory dispute resolution scheme have been referred to above. The Commission is required to provide a timely, just and fair dispute resolution process. The Commission acted promptly to advise the parties of the refusal to allow the filing of the Reply (within 4 days of filing), however the failure by both parties to adequately address the requirements of the appeal process has resulted in this matter effectively being held in abeyance for four months. To now deny the Appellant Insurer leave to file the Reply on the basis of the need for a timely resolution of the matter seems to me to be incongruous with the demands of fairness and the particular facts relevant to the conduct of this case.
After setting out the relevant chronology of the matter the Arbitrator has condensed her reasons for the decision to refuse to grant leave to allow the Reply to be filed as follows:
I have taken the submissions of the applicant and the respondent into account and do not consider that the respondent has provided an adequate explanation for its failure to lodge its Reply in accordance with the Rules.
Section 294 of the 1998 Act and Rule 41, now Rule 73, require an Arbitrator to provide a written statement of reasons where a dispute is determined. Such a determination is reduced to a ‘Certificate of Determination’ and a statement of reasons. In my view, a matter is determined by an Arbitrator when the Arbitrator has made a final decision on the merits of the case and the respective rights and liabilities of the parties (Steven Tagg v International Flavours and Fragances (Australia) Ltd [2003] NSW WCC PD 5). The Arbitrator was not required by the 1998 Act or the Rules to provide written reasons for the decision to refuse leave to file a Reply. This is not to say that the Arbitrator is not required to have formed her own view of the merits of the application and, consistent with her statutory obligations to have based her decision on lawful and adequate reasons. In this case the matter was determined ‘on the papers’ and thus, in accordance with principles of procedural fairness, the Arbitrator has given brief written reasons. This greatly assists the review process.
The standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker. The decision to refuse to allow the filing of a Reply, in the context of the Commission’s informal and expeditious process, does not require lengthy, detailed written reasons. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and is obliged to act according to equity and good conscience and the demands of the instant case. The purpose of giving reasons is to enable the parties to understand why the decision has been made.
In this matter I am not satisfied, on balance, that the reasons have fulfilled this minimum requirement. They refer only to the issue of the adequacy of the explanation of the delay in the filing of the reply. To this extent they reflect either, that the Arbitrator failed to take into account other factors relevant to the exercise of her discretion, or, that she failed to give adequate reasons in relation to those other factors. Given that the Arbitrator has specifically stated that she has taken the submissions of the parties into account, and that those submissions are limited to the reasons for the delay, I am not satisfied that the Arbitrator has properly taken into account all the factors relevant to the exercise of the discretion, as discussed above.

Refusal to Issue Direction to Produce

The Appellant Insurer also asked the Arbitrator to grant leave to issue a ‘Direction for the Production of Documents’ to Dr Tiwari, out of time. The Arbitrator did not address this application. As a result, this part of the application to the Arbitrator remains undecided and is not a matter that is before me on the appeal. A Presidential Member can only hear an appeal against a decision of an Arbitrator (section 352 of the 1998 Act). However, given the orders that I propose to make on the appeal, it would seem appropriate for any Direction to be filed with the filing of the Reply.

DECISION

In all of the circumstances of this matter I am of the view that the Arbitrator’s determination should be revoked and a new decision made in its place. This matter has now been the subject of unacceptable delay. For this reason I propose to make directions as to its future conduct in order that the parties may have the earliest opportunity to come before an Arbitrator who can actively assist in its resolution. In my view the issue of any Directions to Produce should not delay the holding of a telephone conference to this effect.
The orders made in the Appeal are that:
The decision of the Arbitrator to refuse leave to extend the time for the Appellant Insurer to file a Reply is revoked and the following decision is made in its place:
(1) Leave to extend the time for the Insurer to file a Reply to the Application for Dispute Resolution is granted.
(2) The Appellant Insurer is to file and serve a Reply on or before 29 August 2003.
(3) The matter is to be listed for a Telephone Conference before an Arbitrator in the week commencing 15 September 2003.

COSTS

Costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Appellant Insurer should pay the costs of the appeal.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President, Dr Gabriel Fleming, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 21

26 August 2003