Al Keffai v Famicorp Pty Limited
[2006] NSWWCCPD 92
•18 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Al Keffai v Famicorp Pty Ltd [2006] NSW WCCPD 92
APPELLANT: Riad Al Keffai
RESPONDENT: Famicorp Pty Ltd
INSURER:Vero Workers Compensation (NSW) Ltd
FILE NUMBER: WCC16957-03
DATE OF ARBITRATOR’S DECISION: 22 November 2004
DATE OF APPEAL DECISION: 18 May 2006
SUBJECT MATTER OF DECISION: Leave to appeal; error of law and fact; denial of natural justice/procedural fairness; additional weekly compensation pursuant to section 37(1)(b) and/or section 37(1)(c) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Adams Leyland, Solicitors
Respondent: Vandervords, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 22 November 2004, is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order is made as to costs of this appeal
BACKGROUND TO THE APPEAL
Mr Riad Al Keffai, the Appellant Worker, was employed as an electrical technician by Famicorp Pty Ltd (‘Famicorp’), the Respondent, from 7 January 2002. The Respondent’s workers compensation insurer at all relevant times was Vero Workers Compensation (NSW) Ltd (‘Vero/the Insurer’).
Mr Al Keffai claims to have suffered an injury to his hands. The injury occurred on 11 June 2002 as he was draining oil from an intercooler tank, when ammonia escaped from a valve. His hands came into contact with the ammonia and were burnt. Mr Al Keffai has not returned to work since the accident occurred and claims that he suffered an incapacity for work as a result of the injury that arose out of and in the course of his employment with Famicorp.
On 11 June 2002 Mr Al Keffai notified Famicorp of the injury.
On 14 April 2003 Mr Al Keffai lodged a claim with the Insurer for weekly benefits. The Insurer made payments of weekly benefits, however Mr Al Keffai alleges that the rate of the weekly benefits is incorrect.
On 14 August 2003 Mr Al Keffai lodged a claim with the Insurer for non-economic loss compensation.
Mr Al Keffai submits that the Insurer has failed to make a decision in relation to the claim for non-economic loss compensation.
On 29 October 2003 Mr Al Keffai lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The Application was registered with the Commission on the same day. The basis of his claim is that he suffered injury to both left and right hands as a result of an injury sustained on 11 June 2002, which arose out of and in the course of his employment with Famicorp. The claim was for increased weekly compensation payments and for compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Arbitrator determined the matter and a ‘Certificate of Determination’ dated 22 November 2004, was issued.
On 18 January 2005 Mr Al Keffai lodged an ‘Appeal Against Decision of Arbitrator’ (‘Appeal’) in the Commission, against the decision.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 22 November 2004 records the Arbitrator’s orders as follows:
“1.That the Respondent is not liable for the Applicant’s claim for additional weekly compensation pursuant to s37 (1)(b) or s37 (1)(c) of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987, $2,500.00 in respect of 2% whole person permanent impairment.
3.That the Respondent is not liable for payment of the Applicant’s claim under s67 of the Workers Compensation Act 1987.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The principal issues in dispute in the appeal are:
(1)whether leave to appeal should be granted;
(2)whether the Arbitrator denied natural justice and procedural fairness by proceeding to make a determination without hearing from Mr Al Keffai;
(3)whether the Arbitrator made an error of law and of fact, in finding that the Appellant did not have a dependent wife and children, and made an error of law in failing to allow Mr Al Keffai’s claim for additional weekly compensation pursuant to s37 (1)(b) and/or s37 (1)(c) of the 1987 Act.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Mr Al Keffai requests that the Appeal proceed to a hearing. Famicorp makes no submission on this issue. In making a decision as to whether I can exercise my functions without holding a conference or formal hearing, I take the following into account.
On 22 September 2004 a teleconference was held and the Arbitrator made the following directions:
“1. This matter is to be determined on the papers.
2.The Applicant file and serve his submissions by 21 October 2004.
3.The Respondent file and serve its submissions by 28 October 2004.
4.Liberty is reserved to each party to apply for a conciliation-arbitration hearing.
I note that a MAC has [sic] issued certifying the Applicant’s whole person impairment as 2% and the Respondent shall pay the Applicant the sum of $2,500.00 pursuant to s66 of the Workers Compensation Act, 1987.”
The dates for filing and serving submissions were set by the Arbitrator taking into account that Mr Al Keffai’s legal representative had stated at the teleconference, that he had encountered difficulty in having translations made of Mr Al Keffai’s birth and marriage certificates. In the circumstances the Arbitrator allowed further time to overcome the problem.
On 28 October 2004 Famicorp filed its submissions with the Commission.
On that day Mr Al Keffai wrote to the Commission as follows:
“We request an extension for the filing and service of submissions due to a delay in obtaining certified copies of translated documents upon which our client intends to rely … We estimate to have the required documents within approximately 7-10 days and submissions will be filed and served thereafter. If there are any problems, we request a further teleconference be scheduled.”
On 3 November 2004 the Arbitrator received Famicorp’s written submissions and Mr Al Keffai’s correspondence dated 28 October 2004. On the same day, the Arbitrator was informed that the Registry, at his request, had forwarded the following email to both parties:
“The translated documents should have been part of the Application as issued and it would seem that the Applicant has had ample time to obtain that document. Nonetheless I acknowledge that he has had difficulties in doing so.
I am prepared to allow the Applicant until 5.00pm on 11 November to file and serve the translation and fax a copy to me.
I will proceed to determine the matter after that time based on whatever evidence I may then have.
The alternative is for the Applicant to elect to discontinue the proceedings in which case I would require advice of that decision to be faxed to me by the Applicant by that time and date.”
Mr Al Keffai’s Solicitors allege that they did not receive the email and were not informed of the Arbitrator’s decision dated 3 November 2004.
An inspection of the Commission file reveals in fact, that no email was sent to the parties in relation to the direction dated 3 November 2004.
Mr Al Keffai stated that he received the translated documents on approximately 8 November 2004.
Mr Al Kaffai’s request for a hearing in this appeal is made on the basis that the additional documents, which were not available at the time of the Arbitrator’s deadline for submissions, and which Mr Al Keffai seeks leave to admit in this appeal, are now available.
Mr Al Keffai also submits that he lost the opportunity to either make further submissions, discontinue the Application and/or apply for a hearing before the Arbitrator, therefore, a substantial injustice would occur to him if he is denied the opportunity to rely on these additional documents and/or further oral evidence.
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. I determine this question in conjunction with my determination of the issue of leave to proceed with the appeal, and following that, with my decision as to how the matter should be dealt with from this point.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
I am satisfied that the amount of compensation at issue on appeal exceeds $5,000 and is the whole amount awarded in the decision appealed against. Consequently, sections 352 (2)(a) and 352(2)(b) of the 1998 Act are satisfied.
The appeal was initially lodged on 23 December 2004 some 31 days after the decision of the Arbitrator dated 22 November 2004. This is in breach of section 352 (4) of the 1998 Act which provides:
“ (4)An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides, in part:
“(1)A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
Rule 77 further provides, in part:
“(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.”
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. Nevertheless, the issue has been the subject of a considerable amount of judicial consideration. Ultimately, the discretion must be exercised to ensure that justice between the parties is achieved (Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’); Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liquidation) (formerly SACS Group Pty Ltd (1993) 113 ALR 637).
On 23 December 2004 the Commission rejected the Appeal on the basis that it was submitted out of time and for failure to attach adequate submissions in favour of granting the extension of time. The Appeal also failed to address various threshold issues relating to the granting of leave including failure to detail the amount of compensation the subject of the appeal and reasons as to whether the matter should be determined on the papers. The Commission also noted that Mr Al Keffai’s Appeal had not been lodged on the current form, which is available on the Commission’s website.
On 18 January 2005 Mr Al Keffai lodged a further Appeal including submissions addressing the threshold issues and submissions in favour of granting the extension of time. The Appeal was registered on the same day.
Mr Al Keffai’s submissions on extension of time to appeal
It was submitted by Mr Al Keffai in his submissions that:
“1.1The Determination appealed against was notified to the Applicant by post in letter from the Workers Compensation Commission dated 22 November 2004. It is deemed received by the Applicant on the fourth working day after the act of posting the letter (see Interpretation Act 1987, section 76(1)). The Determination was in fact received by the Applicant’s solicitors on 25 November 2004. The Applicant submits that his appeal is within time”.
Mr Al Keffai submits that in the event that his submissions in 1.1 above are incorrect, then it is submitted that his Appeal was lodged the day after the time prescribed by Rule 77 expired, and says that no prejudice is suffered by Famicorp by acceptance of the Appeal and that no significant prejudice is suffered by the Commission in granting leave pursuant to Rule 77(8) to extend the time for lodging the appeal to 23 December 2004.
Mr Al Keffai submits that if leave to appeal is not granted, he would suffer significant prejudice. Mr Al Keffai argues that an erroneous or mistaken belief by his Solicitors, that the time for submission of an appeal did not expire until 22 or 23 December 2004, should not deprive him of the right to have his matter determined according to law and to do so would inflict significant injustice upon him.
It was further submitted that the Arbitrator’s determination deprived Mr Al Keffai of compensation payments that he submits he was entitled at law to receive and which in value exceeds approximately $30,000. Moreover, “the loss of such a right is a substantial injustice within the context of Rule 77 WCR and would justify the grant of leave pursuant to that Rule.”
Mr Al Keffai also submits that the circumstances surrounding the making of the Arbitrator’s determination are exceptional in that the Arbitrator determined the matter without hearing further submissions from him, as his solicitors were unaware of the decision of the Arbitrator dated 3 November 2004, therefore Mr Al Keffai “lost the opportunity to make further Submissions or discontinue the Application”
In support of a claim of ‘exceptional circumstances’ in relation to the granting of leave to appeal out of time pursuant to Rule 77(8), Mr Al Keffai submits that he is an Iranian Refugee who is currently in Australia under a Temporary Protection Visa. Due to his serious injury to his hands he has been unable to return to paid work since the accident and as a result suffers severe financial hardship. Mr Al Keffai has a limited understanding of English and Australian customs, laws and procedures. He is currently living in Melbourne and his solicitors are located in Albury. It is submitted that these circumstances make it difficult for Mr Al Keffai to pursue his legal rights.
Fresh evidence
On 22 September 2004 the Arbitrator invited both parties to make written submissions and directed that Mr Al Keffai’s submissions should be filed and served by 21 October 2004.
As noted previously, on 28 October 2004 Mr Al Keffai requested an extension of time to file and serve his submissions and that the extension was required “due to a delay in obtaining certified copies of translated documents upon which our client intends to rely”. Shortly after receiving this request the Arbitrator directed the Registry to forward by email directions to both parties, as outlined in paragraph 18 above, allowing Mr Al Keffai until 5.00pm on 11 November 2004, to file and serve his submissions.
The Arbitrator did not receive any submissions from Mr Al Keffai and proceeded to make his determination based upon the papers available to him at the time.
Mr Al Keffai wishes to rely in this appeal on the translated documents, which were not available prior to 21 October 2004.
Mr Al Keffai’s Solicitors submits that “because of his injury and subsequent financial situation he was not able to provide the necessary funds to translate documents necessary for a proper determination of his matter. The Respondent (through their insurer) originally refused to pay for such translations. It was not until 6 September 2004 that the Applicant’s solicitors received notice that the Respondent would pay for such translations. This did not allow the translations to be done and produced in time for their admission into evidence before the Arbitrator.”
In its submissions dated 10 February 2005, Famicorp submits that in relation to Mr Al Keffai’s assertion that Famicorp had refused to pay for the translations until 6 September 2004, the correspondence annexed to the Appeal disclose the fact that an undertaking was given by Famicorp to pay for the translations on 6 August 2004, some six weeks prior to the teleconference. Famicorp submits “ this permitted more than ample time for any translations to be obtained. Further correspondence discloses that what was sought was the translation of various identification documentation and birth certificates however, the documentation sought to be introduced into evidence in this Appeal goes beyond those documents.”
Famicorp further argues that “the applicant’s submissions in this Appeal disclose that the material they required to complete their submissions were available on 8 November 2004 and yet no submissions were filed and served prior to the Arbitrator’s decision dated 22 November 2004. The applicant offers no explanation for this failure.”
Section 352(6) of the 1998 Act provides:
“(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.”
Famicorp submits that “In circumstances where that evidence was, on the applicant’s own admission, available two weeks prior to the decision, it is respectfully submitted that it would be inappropriate to exercise such discretion in the worker’s favour where the complaining party had done absolutely nothing to attempt to bring such evidence before the Commission either by way of written submission or otherwise.”
Famicorp’s submissions on the time for filing the appeal
Famicorp, in its submissions dated 10 February 2005, submit that:
“1.The Respondent asserts the appeal is lodged out of time pursuant to Section 352(4) of the 1998 Act. In this regard, the Determination was made on 22 November 2004 however, the appeal was not sent to the Commission for filing until 21 December 2004. Further no submission was made seeking leave pursuant to Rule 77 until 14th January 2005. The Respondent asserts that the appellant has afforded no reasonable explanation for the delay in filing the Appeal let alone any reasonable basis for leave to be granted to proceed out of time.”
Discussion as to the issue of leave to appeal
Section 352(4) provides that an appeal can only be made within 28 days after the making of the decision appealed against. Rule 77(2) provides that a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act. The legislation makes no mention of the date of receipt of the ‘Certificate of Determination’ by the parties. Time begins to run from the date of the decision [determination], and not from the date of receipt of the ‘Certificate of Determination’ by the parties. Mr Al Keffai’s submission that the appeal was first lodged in compliance with the legislative requirements is incorrect, and I find accordingly.
The date of receipt of the ‘Certificate of Determination’ may be taken into account, if relevant, in the whole of the circumstances surrounding an application under Rule 77(9).
Mr Al Keffai failed to comply with the Arbitrator’s direction of 22 September 2004 to file submissions by 21 October 2004. However, on 28 October 2004 he wrote to the Commission seeking an extension of time to file submissions, for reasons already outlined.
The Arbitrator directed the Registrar to inform Mr Al Keffai that he had until 5 pm on 11 November 2004 to comply. The Commission was supposed to send this direction by email to Mr Al Keffai’s Solicitors. The Solicitors state that the email was never received and consequently, they were not informed of the Arbitrator’s direction. Given that there is no record on the Commission file that the email was ever sent, I have no reason to doubt the Solicitors’ assertions.
In the circumstances, the Arbitrator did not have before him all of the evidence that Mr Al Keffai wished him to take into account in support of his Application.
The bona fides of some of Mr Al Keffai’s submissions have been challenged by Famicorp, as outlined above.
I am satisfied that the initial appeal was lodged out of time and that the Commission rejected it for that reason and because no explanation for the late filing was forthcoming. This amounted to a lack of compliance with the relevant provisions of the 1998 Act and the Rules.
Mr Al Keffai re-submitted his appeal on 18 January 2005 and included submissions in support of an application and seeking an order, to extend time for filing, pursuant to Rule 77(8).
It remains to be determined whether I should make an order pursuant to Rule 77(8), extending the time for filing the appeal. Famicorp makes out what appears to be a reasonable case to refuse leave to appeal, by reason of undue delay and inaction on the part of Mr Al Keffai. Mr Al Keffai is an Iranian refugee who was and is, obviously completely reliant on other people to advance his claim in the Commission. There is no doubt that Mr Al Keffai’s Solicitors did not receive an email on the 3 November 2005 (indeed it is clear that it was never sent as directed) and would not have been aware, for some time at least, that a direction setting a time limit, had been given by the Arbitrator.
As stated at paragraph 30 above, the Rules do not set out the factors to be considered in the exercise of the discretion to extend time for filing an appeal against the decision of an Arbitrator. However, the principles established have been applied in a number of Commission appeal proceedings, including the more recent matters of Department of Education & Training v Mekhail [2006] NSW WCC PD 1; Piening-Cochrane v P L and M R Wilde trading as Wilde Earthmoving [2006] NSW WCC PD 22, and South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.
The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 AT 262). In Gallo McHugh J said that this means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. He said that in order to determine whether the rules will work an injustice it is necessary to have regard to:
·The history of the proceedings;
·The conduct of the parties;
·The nature of the litigation;
·The consequences for the parties of the grant or refusal of the application for the extension of time;
·The prospects of the applicant succeeding in the appeal, and
·Upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
The claim, the subject of this appeal, has had a chequered history in the Commission. I tend to agree with Famicorp that Mr Al Keffai’s Solicitors might have done a bit better. However, I agree with his Solicitors that Mr Al Keffai should not be held accountable for this. I am mindful that there is much at stake for Mr Al Keffai in this matter. Moreover, it was not his fault that the Commission failed to despatch the email as directed by the Arbitrator. In any event, notwithstanding the various delays, none was unduly lengthy. Clearly, Mr Al Keffai would have had little personal grasp of what was required of him, and I very much doubt that he would have appreciated the finer points of the processes and procedures that were unfolding around him.
.
Famicorp points out some flaws in the submissions made by Mr Al Keffai’s Solicitors, not only in the failure to meet deadlines, but also in that the Solicitors had proceeded with less than a reasonably expected degree of haste, in various respects. There is also an issue about the nature and substance of the documentary evidence being put forward as fresh/late evidence. Again, it seems to me that all of this was not a matter that was substantially under the control of Mr Al Keffai himself.
Obviously, this claim is of some importance to Mr Al Keffai and the issue of dependency is critical to the proper resolution of the matter. Much hinges on the evidence that was not available to the Arbitrator at the time of his decision, but upon which Mr Al Keffai wishes to rely. I have not formally considered the admissibility or the impact of the fresh/late evidence at this point, but it seems to me that it would be supportive of his case, as would the opportunity for him to give oral evidence. He has never had an opportunity to give oral evidence, and lost that opportunity altogether when the email communication regarding the deadline failed to materialise and therefore, never came to his attention or the attention of his Solicitors. His prospects of success would seem to be reasonable, subject to a number of considerations, including a decision as to the admission of the fresh/late evidence, and a proper consideration of the whole of the evidence, including his oral evidence, and the weight of the evidence.
It is my view that there is sufficient substance in the evidence and submissions before me to be satisfied that exceptional circumstances do exist in this matter and to lose the right to seek leave to appeal would likely work demonstrable and substantial injustice to Mr Al Keffai. On the other hand, I consider that extension of the time to make the appeal would give rise to little if any real injustice or prejudice to Famicorp.
Accordingly, I extend time for making the appeal in the instant case to 18 January 2005.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
I have read all of the documents before me, including the fresh/late evidence and take into account the wish of Mr Al Keffai to give oral evidence. The Arbitrator in arriving at his decision, did not have the benefit of all of Mr Al Keffai’s evidence before him. The Arbitrator made the decision in the absence of a reasonable opportunity for Mr Al Keffai to pursue his case in the Commission. While it may have been prudent for the Arbitrator to ensure that it was entirely appropriate to proceed at that point, given the known history and obvious language difficulties inherent in the matter, it is fair to say that the Arbitrator was probably not in a position to know that the directions that he gave were never communicated to the parties. However, the interests of justice would not be served if Mr Al Keffai were to be denied the opportunity to pursue his claim in the Commission, because of deficiencies in “the system” and some lack of strict attention to procedural and process requirements, by those charged with the task of assisting him.
It may have been appropriate for Mr Al Keffai to make application to the Arbitrator to reconsider his decision, pursuant to section 350 (3) of the 1998 Act. However, failing that, the circumstances of this case, as events have unfolded, have caused the Arbitrator to fall into error, albeit inadvertently, by failing to afford Mr Al Keffai the opportunity to properly pursue his claim in accordance with the statutory objectives of the Commission, set out in section 367 of the 1998 Act.
I find that the Arbitrator [inadvertently] made an error of law in proceeding to deal with this dispute without the benefit of the evidence of Mr Al Keffai. In the circumstances, I propose to revoke the Arbitrator’s decision of 22 November 2004 and remit the matter to another Arbitrator for determination afresh. In determining the matter afresh, the Arbitrator to whom this matter is assigned, will need to consider and decide whether to admit the fresh/new evidence that has been lodged in the Commission by Mr Al Keffai, and should allow Mr Al Keffai to give oral evidence. Given the stage that this matter has reached, the Arbitrator is not required, before proceeding to arbitration, to use his or her best endeavours to bring the parties to the dispute to a settlement, unless he or she considers that settlement is likely to occur.
In the circumstances, no further determination in the appeal is required.
DECISION
The appeal is successful. The decision of the Arbitrator dated 22 November 2004 is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
Having regard to the whole of the circumstances in this matter, I make no order as to the costs of the appeal.
Gary Byron
Deputy President
18 May 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
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