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.
THEAPPEAL
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 Act1998 (‘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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21
Case
[2003] NSWWCCPD 21
Decision Date
CaseChat Overview and Summary
The case of ADCO Constructions Pty Ltd v Ferguson involves an application for leave to appeal against a decision of an Arbitrator who refused to allow the filing of a late reply and to produce documents. The dispute arose within the context of a workers' compensation claim, with the Arbitrator's decision being challenged by the Appellant Insurer. The application was made to the Commission as constituted by a Presidential member, which had the authority to determine whether the appeal met the statutory criteria set out in section 352 of the Workplace Injury Management and Workers Compensation Act 1998.
The central legal issues the court had to address were whether the Appellant had satisfied the conditions for leave to appeal under section 352(2) of the 1998 Act and whether the decision of the Arbitrator was inadequate in its reasoning. Specifically, the court needed to assess whether the refusal to allow the late filing of a reply and the issuance of directions to produce documents constituted a 'decision' within the meaning of section 352(8), which includes rulings and directions. Additionally, the court had to consider whether the refusal could affect the ability of the Applicant to fully present their case, thereby impacting the substantive issues of compensation.
The court's reasoning focused on the interpretation of the statutory provisions and the case law, particularly the decision in Mawson v Fletchers International Exports Pty Limited. The court found that the decision of the Arbitrator could indeed be appealed under section 352(2)(a) as it did not necessarily involve a monetary award but could still affect the substantive issues of the case. The court concluded that the refusal to allow the late filing and the issuance of directions could impact the Applicant’s ability to present their case, thus meeting the criteria for appeal under the statute. Consequently, the court granted leave to appeal, revoked the Arbitrator’s decision, and allowed the Appellant to file a late reply and produce documents.
The final orders of the court included granting leave to appeal, revoking the Arbitrator’s decision, permitting the filing of a late reply by the Appellant, and scheduling a telephone conference before an Arbitrator. The Appellant was required to file and serve a reply by a specified date, and the matter was to be listed for a telephone conference within a particular week.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.