Ahmad v CSR Limited
[2006] NSWWCCPD 21
•16 February 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reconsideration decision: Ahmad v CSR Limited [2006] NSWWCCPD 21R immediately follows this decision. | |||||
| CITATION: | Ahmad v CSR Limited [2006] NSWWCCPD 21 | ||||
| APPELLANT: | Akmal Ahmad | ||||
| RESPONDENT: | CSR Limited | ||||
| INSURER: | Self insured | ||||
| FILE NUMBER: | WCC5987-05 | ||||
| DATE OF ARBITRATOR’S DECISION: | 13 September 2005 | ||||
| DATE OF APPEAL DECISION: | 16 February 2006 | ||||
| SUBJECT MATTER OF DECISION: | Leave to appeal; claim not duly made; section 66 of Workers Compensation Act 1987; error of law; admission of late submissions. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | ||||
| HEARING: | Determined on the papers | ||||
| REPRESENTATION: | Appellant: | Slattery Thompson, Solicitors | |||
| Respondent: | Vardenega Roberts, Solicitors | ||||
| ORDERS MADE ON APPEAL: | Leave to appeal the decision of the Arbitrator, dated 13 September 2005, is refused. | ||||
| No order is made as to the costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
Mr Akmal Ahmad, the Appellant, was employed by CSR Limited (‘CSR’), the Respondent, from approximately 1977 until the termination of his employment on 16 May 1983. Mr Ahmad was employed as an assembly line and machine operator.
Mr Ahmad claims to have suffered an injury in relation to his hearing, for which non-economic loss compensation is payable. Mr Ahmad claims that the injury occurred as a result of his employment with CSR from 1977 to 16 May 1983. Mr Ahmad claims to have notified CSR of the injury on 16 May 1983 but this is disputed by CSR.
On 29 June 1984 Mr Ahmad first wrote to CSR (previously known as Bradford Insulation Pty Limited) seeking payment of compensation for loss of hearing.
On 20 July 2003 Mr Ahmad wrote to CSR claiming 71.9% binaural hearing loss in the amount of $40,976.
On 1 February 2004 Mr Ahmad again wrote to CSR claiming compensation pursuant to section 66, section 67 and section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), for binaural industrial deafness.
On 1 February 2005 Mr Ahmad lodged a claim with CSR, as self-insurer, for non-economic compensation for the sum of $41,238. The claim was amended by letter of 22 February 2005, to the amount of $37,388.
On 18 February 2005, CSR, as self-insurer, denied liability for this claim.
On 21 April 2005 Mr Ahmad lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The Application was registered with the Commission on 22 April 2005. The basis of his claim is that he suffered injury to his hearing (industrial deafness), arising from the “nature and conditions” of his employment, from 1977 to 16 May 1983. He claims entitlements pursuant to section 66 and section 67 of the Act.
The matter was determined by the Arbitrator, on the papers, on 13 September 2005.
On 23 December 2005 Mr Ahmad lodged an ‘Appeal Against Decision of Arbitrator’ in the Commission, against that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 September 2005 records the Arbitrator’s orders as follows:
“1.The Applicant is not entitled as a matter or [sic] law to pursue his claim for industrial deafness against the Respondent by reason of his failure to comply with the notice requirements of Section 92(2) of the Workers Compensation Act as it applied at the relevant date.
2.Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether the Arbitrator erred in finding that a duly made claim was not made prior to 22 February 2005;
(2)whether the Arbitrator, in finding that a duly made claim was not made, erred in finding that Mr Ahmad’s failure to make a claim prior to 2005 was occasioned by “ignorance, mistake, absence from the State or other reasonable cause”.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(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.”
The Appellant submits that the appeal may be determined on the papers and the Respondent, has offered no objections. Having regard to the submissions, evidence and documents that are before me, 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.
LEAVE
Before proceeding to deal with an 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’).
The amount of compensation at issue on appeal exceeds $5,000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
The appeal was lodged in the Commission on 21 October 2005 and consequently, was lodged well after 28 days from the date of the Arbitrator’s decision. This is in breach of the requirements of section 352(4) of the 1998 Act.
On 25 October 2005 the Commission rejected the Appeal on the basis that it was submitted out of time and for failure to attach submissions detailing arguments in favour of an extension of time, as well as failure to attach submissions on other threshold issues.
On 23 December 2003 Mr Ahmad again lodged an ‘Appeal Against Decision of Arbitrator’ in the Commission, including submissions in support of the grant of an extension for leave to appeal and threshold issues. Mr Ahmad submits that the failure to file within time was due to the failure of the interpreter, Ms Fayad, to accurately interpret the relevant details of Mr Ahmad’s solicitor’s advice to him, during a conference that took place on 23 September 2005. Mr Ahmad’s Solicitor further states that a similar misunderstanding occurred between Mr Ahmad and Ms Fayad, at Mr Ahmad’s home on a separate occasion, in the translation of correspondence from the Solicitor to Mr Ahmad.
On 30 January 2006 CSR lodged an ‘Opposition to the Appeal’ in the Commission, which included the submission that Mr Ahmad identifies no documentary evidence to support his assertion that he “would suffer a denial of natural justice if he is not allowed to prosecute his appeal due to the error of his interpreter” and therefore fails to discharge his onus to establish that exceptional circumstances exist. CSR relies on the principles set out by McHugh J in the High Court Decision Gallo v Dawson (1990) 93 ALR 479 and the Commission’s decisions of Howell v Stringvale [2004] NSW WCC PD 22, Alexandru v State Rail Authority [2004] NSW WCC PD 54 and Department of Education & Training v Mekhail [2006] NSW WCC PD 1.
On 30 January 2006 Mr Ahmad’s Solicitors forwarded to the Commission handwritten statements from Mr Ahmad and his interpreter, in further support of their submission for an extension for leave to appeal.
The relevant submission by Mr Ahmad’s Solicitor is as follows:
“The Applicant alleges that he was properly advised by his lawyer to lodge an appeal within the prescribed time. The applicant received correspondence from the solicitor to this effect within the prescribed time and also attended the solicitor’s office on the 23 September, 2005 with his interpreter, Ms. Iman Fayard [sic]. The interpreter cited the solicitor’s correspondence regarding the time to appeal and translated this correspondence to the applicant at the applicant’s home.
On the 23 September, 2005 the applicant advised his solicitor in the presence of his interpreter that he would consult with Dr. Ghabrial and tell the solicitor whether he would appeal. The applicant now understands and admits that at the meeting on the 23 September 2005 the solicitor told the applicant in English that the appeal should be lodged within 28 days of the decision of the arbitrator. The applicant now alleges that the interpreter did not interpret the solicitor’s advice property [sic] nor translate the solicitor’s correspondence property [sic] whereby the applicant erroneously was of the view that the appeal had to be lodged 28 days after the decision of he [sic] arbitration and note [sic] within 28 days of the arbitrator’s decision. The applicant would suffer an injustice as he now acknowledges that he received proper legal advice and his interpreter admits her error.”
The handwritten statement dated 5 November 2005 from the interpreter states:
“To whom it may concern,
I Iman Fayad is [sic] a [sic] interpreter to Mr Akmal Ahmad on our last visit to Slattery Thompson solicitors. We spoke to the lawyer on the 23rd of September where the lawyer informed us we had 28 days from the day the claim was lodged, however I informed Mr Akmal Ahmad he had 28 days starting from the 23rd to claim his appeal. Therefor [sic] it is my fault for misunderstanding and informing Mr Akmal on wrong assumption.”
In a handwritten statement dated 29 November 2005, Mr Ahmad submits:
“To whom it my [sic] concern.
I Akmal Ahmad visit [sic] my lawyer on the 23rd of September and was informed that I had 28 days starting from the 23rd of September but my interpreter Iman Fayad misunderstood and informing [sic] me on the wrong day and my interpreter is very sorry and so am I thankyou.”
A copy of the correspondence sent to Mr Ahmad by his Solicitor, and referred to in the Solicitor’s submission on appeal, did not accompany his submissions on appeal.
There is no reference to this correspondence in either Ms Fayad’s statement or Mr Ahmad’s statement. Neither claims that erroneous translation of correspondence was a cause of a misunderstanding in relation to the time within which an appeal must be lodged in the Commission.
Furthermore, the substance of the alleged misunderstanding put forward in the Solicitor’s submission, is obviously somewhat different to the substance of the reasons given by Ms Fayad and Mr Ahmad. The detail of the explanation put forward by Mr Ahmad’s Solicitor does not stand on all fours with the explanations provided by Ms Fayad and Mr Ahmad.
Rule 77 (8) and (9) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provide:
“(8)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(9) A party who seeks an extension of time as referred to in subrule (8) must:
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
Mr Ahmad’s Solicitor did not provide a copy of Ms Fayad’s statement or a copy of Mr Ahmad’s statement to CSR as part of its application for the extension of time. While a request for an extension of time was not formally made, it can be taken that the first two paragraphs of the Solicitor’s document ‘Applicant’s Submissions’, lodged with the ‘Appeal Against Decision of Arbitrator’ amount to an application for such an extension. This document was served on CSR.
As previously stated, the arguments put in favour of granting the extension are found in the three statements, but the explanations given are not factually consistent.
Mr Ahmad is required to satisfy me in the context of exceptional circumstances, that “to lose the right to seek leave to appeal would work demonstrable and substantial injustice”. The submission simply states that Mr Ahmad would suffer an injustice and would suffer a denial of natural justice should he not be allowed to prosecute his appeal. I agree with CSR that the application for extension of time for making the appeal is inadequate in relation to meeting the requirements of the Rule. All that is put forward by way of supporting argument are three conflicting explanations with no other supporting material or submissions of any substance.
In the circumstances, I cannot be satisfied that unduly exceptional circumstances exist, nor more particularly, that there is anything of substance before me, that would enable me to conclude that “demonstrable and substantial injustice” would be done, should leave to appeal be denied.
Accordingly, leave to appeal should be refused.
DECISION
Leave to appeal the decision of the Arbitrator, dated 13 September 2005, is refused.
COSTS
No order is made as to costs of the appeal.
Gary Byron
Deputy President
16 February 2006.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
RECONSIDERATION OF DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
(Section 350(3) Workplace Injury Management and Workers Compensation Act 1998)
CITATION:Ahmad v CSR Limited [2006] NSW WCCPD 21R
APPELLANT: Akmal Ahmad
RESPONDENT: CSR Limited
INSURER:Self Insured
FILE NUMBER: WCC5987-05
DATE OF APPEAL DECISION: 16 February 2006
SUBJECT MATTER OF APPEAL: Leave to appeal; claim not duly made; section 66 Workers Compensation Act 1987; error of law; admission of late submissions.
DATE RECONSIDERATION APPLICATION
DETERMINED: 4 May 2006
PRESIDENTIAL MEMBER: Deputy President Gary Byron
REPRESENTATION: Appellant: Slattery Thompson, Solicitors
Respondent: Vardenega Roberts, Solicitors
ORDERS MADE: I decline to exercise my power pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, to reconsider my decision dated 16 February 2006, to refuse leave to appeal.
No order for costs is made in relation to this matter.
BACKGROUND
On 16 February 2006, I refused leave to appeal the decision of the Arbitrator, dated 13 September 2005.
The appeal against the decision of the Arbitrator was lodged in the Commission on 21 October 2005, which was more than 28 days from the date of the Arbitrator’s decision, in breach of section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The appeal was initially rejected by the Commission on 25 October, 2005 on the basis that it was lodged out of time and that there were no submissions made setting out arguments in favour of an extension of time, in compliance with Rule 77(9) of the Workers Compensation Commission Rules 2003 (‘the Rules’). Further, there were no submissions made as to other threshold issues.
On 23 December 2005 Mr Ahmad re-lodged the appeal, including statements purporting to explain the reason for the late lodgement of the appeal, and therefore for the purpose of obtaining a grant of extension of time for leave to appeal.
The submissions made and the reasons for my decision are set out in my reasons for decision, dated 16 February 2006. A copy was provided to each of the parties to the appeal, on that date.
I concluded that the arguments put by Mr Ahmad in favour of granting the extension of time for leave to appeal, could be construed by reference to the statements made by him, his solicitor and the interpreter, and that were lodged in the Commission. However, I found that the explanations were not factually consistent. Moreover, I agreed with the Respondent that the application for extension of time for making the appeal was inadequate in relation to meeting the stated requirements of Rule 77(9). I said at paragraph 31, “All that is put forward by way of supporting argument are three conflicting explanations with no other supporting material or submissions of any substance.”
By letter of 10 March 2006 the solicitors for Mr Ahmad asked me to reconsider my decision refusing leave to appeal in this matter. That letter was received in the Commission on 17 March 2006.
On 3 April 2006 I issued a direction requesting the Respondent to lodge written submissions as to whether I should accede to the application from Mr. Ahmad, and as to the substantive content of his application and relevant considerations.
The Respondent lodged written submissions in the Commission on 19 April 2006.
All relevant documents in relation to this application for reconsideration that were lodged by each party have been provided to the other party, and are before me.
SUBMISSIONS AND DISCUSSION
The Appellant submits that on 3 February 2006 a letter was received from the Commission “advising that the matter would be allocated for review and that there were a significant number of appeals awaiting determination and appeals would be considered in order of receipt and urgent matters would be brought to the attention of the Registrar.” The Appellant submits that the Commission did not mark this matter as urgent nor indicate a specific timetable for the resolution of the matter.
The Appellant further submits that it was proposed to file amended submissions on 14 February 2006, but on that morning, the determination of the appeal was received from the Commission. This is not possible, as my decision was made, published and distributed to the parties on 16 February 2006.
The Appellant states that the amended submissions clarify his position and “if not allowed would have a severe prejudice to the applicant and the ultimate decision made by the Commission. We submit the amended submissions if not allowed would materially affect the decision of the Commission and the applicant would be denied procedural fairness and a denial of natural justice.”
The Appellant requests “that you allow amended statement dated 28 February, 2006 of Mr Iman Fayed [the interpreter] into evidence as this statement clarifies the earlier statement dated 5 November, 2005 and if not allowed into evidence would materially affect the outcome of the decision and cause the applicant prejudice and a denial of natural justice.”
A statement signed by Mr Fayed, initially dated 28 February 2006, but amended to 21 February 2006, was in fact, lodged by the Appellant with his application for reconsideration. The Appellant’s solicitor states in his letter of 10 March 2006 “Accordingly, we had proposed an amended submissions [sic] on the 14 February, 2006 which we were about to forward to the Commission and to Vardanega Roberts but on that morning we received the determination and so the submissions were not forwarded to the Commission.” It would appear from this comment that Mr Fayed’s new statement, dated 21 or 28 February 2006, was not to form part of the fresh submissions that were to be sent to the Commission on 14 February 2006, (or 16 February 2006 as the case may be) as it did not then exist.
Mr Fayed’s fresh statement is different to his original statement, in one important material respect, in that he now states, “the lawyer told us that the appeal must be lodged within 28 days from the 13th of September 2005. I mistakenly informed Mr Ahmed, when I translated to him, that he had to lodge the appeal within 28 days of the 23rd of September.” In his original statement, Mr Fayed stated, “… the lawyer informed us we had 28 days from the day the claim was lodged, however I informed Mr Akmal Ahmad he had 28 days starting from the 23rd to claim his appeal.” Neither statement makes any reference to the separate advice contained in a letter, which was sent to the Appellant, by his solicitor, dated 14 September 2005, a copy of which was lodged with the application for reconsideration. The letter set out the correct information regarding the time in which an appeal was required to be lodged in the Commission.
There is no explanation put forward by Mr Fayed as to why his understanding of what the solicitor said is different now, to what he understood him to say on 23rd September 2005.
The Respondent submits that the Appellant’s submissions in support of the application for reconsideration amount to an application to receive fresh evidence, and that leave to admit fresh evidence pursuant to section 354(6) of the 1998 Act would be required. Given that the Interpreter’s statement is an amended version of an original statement that would not be an insurmountable problem. The difficulty is that there is no explanation as to why the first version is now said to be wrong and the second version is correct. Moreover, as the Respondent submits, much of the balance of the submissions do not relate directly to the reconsideration of my decision to refuse leave to appeal. I have nevertheless, carefully read and taken them into account as appropriate, for the purpose only of dealing with this application to reconsider my decision to refuse leave to appeal. Should that application succeed, I would then need to revisit the issue, but in terms of an application to admit fresh or new material for the purpose of making substantive findings and the ultimate decision, in the appeal.
An undated statement lodged with the application for reconsideration, reveals that on or about 18 October 2005 the solicitor received instructions from the Appellant to lodge an appeal out of time, notwithstanding that it is asserted that the Appellant was given the correct information, in time, on at least two occasions - once in writing by letter direct to him, and at least once verbally in the presence of the Interpreter.
The fact that no timetable was set by the Commission in relation to the determination of this matter does not relieve the Appellant from his responsibilities to comply with the legislation, nor the onus cast upon him by Rule 77(8) and (9) in seeking an extension of time in which to lodge an appeal. The Appellant was obliged to lodge all relevant material with his appeal in the first instance (particularly as he/his solicitor had been given guidance by the Commission as to what was required), and at no time did he give any indication to the Commission that further submissions would be made. In any event, as I have stated at paragraph 15, it is apparent that the fresh statement prepared by Mr Fayed would not have been included in any new submissions intended by the solicitor to be lodged in the Commission on 14 [sic] February 2006, as that statement did not then exist. Furthermore, even with the fresh submissions, the Appellant has not satisfied the critical test in Gallo v Dawson (1990) 93 ALR 479, stated by McHugh J:
“This means that the discretion [to extend time] can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.”
No such proof emerges from the Appellant’s submissions, and the “exceptional circumstances” and “demonstrable and substantial injustice” that must be established as required by Rule 77(8), made pursuant to section 364(1)(g) of the 1998 Act, have in fact, not been demonstrated, notwithstanding that injustice has now been generally asserted.
REFUSAL TO RECONSIDER DECISION
In the circumstances of this matter, I am not satisfied that I should reconsider my decision on appeal dated 16 February 2006, to refuse leave to appeal. Accordingly, I decline to exercise my power pursuant to section 350(3) of the 1998 Act, to reconsider that decision.
COSTS
No order is made as to the costs of this request to reconsider my decision of 16 February 2006.
Gary Byron
Deputy President
4 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECLINING TO RECONSIDER THE DECISION ON APPEAL DATED 16 FEBRUARY 2006, OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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