Australian Traineeship System (Peel Valley Exporters Pty Ltd) v Hatch
[2007] NSWWCCPD 144
•22 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Australian Traineeship System (Peel Valley Exporters Pty Ltd) v Hatch [2007] NSWWCCPD 144
APPELLANT: Australian Traineeship System (Peel Valley Exporters Pty Ltd)
RESPONDENT: Joshua William Hatch
INSURER:Treasury Managed Fund No 1
FILE NUMBER: WCC18250-06
DATE OF ARBITRATOR’S DECISION: 7 February 2007
DATE OF APPEAL DECISION: 22 June 2007
SUBJECT MATTER OF DECISION: Service of documents; procedural fairness; jurisdictional error
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: TurksLegal
Respondent: Long Howland Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 February 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 21 February 2007, the Australian Traineeship System (Peel Valley Exporters Pty Ltd) (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 7 February 2007. The Respondent to the appeal is Joshua Hatch. The Appellant’s workers compensation insurer is the NSW Treasury Managed Fund No 1 c/o GIO General Ltd (‘the Insurer’).
Mr Hatch was born on 20 December 1984, is aged 22, and resides in Tamworth. In approximately 2001, he commenced employment as a slaughterman/labourer with Peel Valley Exports Pty Ltd in Tamworth. His employment was arranged through the Australian Traineeship System, which is administered by the NSW Department of Education and Training. On 19 September 2003, Mr Hatch notified the Appellant of an injury to both wrists that had developed during the course of his employment. He subsequently had time off work for medical examinations and treatment. He underwent carpel tunnel release surgery on both wrists at Tamworth Hospital in February 2004. However, the surgery was unsuccessful and, on 9 September 2005, Mr Hatch had further surgery on his right wrist and, on 5 December 2005, on his left wrist. This more recent surgery has resulted in some improvement in his condition.
On 12 October 2006, Mr Hatch made a claim for weekly compensation and medical expenses. On 18 December 2006, the Commission registered Mr Hatch’s ‘Application to Resolve a Dispute’ (‘ARD’) in respect of his claim for weekly compensation and medical expenses. On 20 December 2006, Mr Hatch’s solicitors filed a Certificate of Service with the Commission certifying that the ARD had been served on both the Respondent and on the Insurer - referred to as “GIO” – on 19 December 2006 by ordinary pre-paid mail. On 30 January 2007 at 11.59 am, the Commission sent a fax to Mr Hatch’s solicitors noting that no ‘Reply’ had been received from the Respondent and requesting verification of service of the ARD on the other parties. On 30 January 2007 at 2.41 pm, the Commission received a fax from Mr Hatch’s solicitors with a copy of the Certificate of Service filed on 19 December 2006.
On Wednesday 31 January 2007, the Commission sent a ‘Notice of Commencement of Proceedings’ by ordinary pre-paid post to Mr Hatch, to his solicitors, to “Australian Traineeship System/Peel Valley Exporters Pty Ltd, Phoenix Street, Tamworth NSW 2340”, and to GIO General Ltd, GPO Box 97, Sydney NSW 2001”. The Notice informed the parties that a teleconference had been scheduled on Monday 5 February 2007 at 8.30 am.
At 8.30 am on Monday 5 February 2007, the Arbitrator conducted a teleconference with Mr Hatch’s solicitors, with no representative from either the Appellant or the Insurer participating, after an attempt to contact a representative of the Insurer had been unsuccessful. There also having been no ‘Reply’ filed by the Appellant, the Arbitrator decided to make a determination on the papers, which was issued on 7 February 2007 in the terms set out below.
By letter dated 7 February 2007, faxed to the Commission and received on that day, the Insurer’s solicitors, who would not at that time have received the notice of the Arbitrator’s determination, submitted that their clients had been denied procedural fairness by reason of the Commission’s failure to notify either the Appellant or the Insurer of the teleconference prior to its commencement, and of the consequent denial of the opportunity to conciliate, clarify aspects of the claim and, following clarification, attempt resolution of the claim. The Insurer’s solicitors noted that as their client’s case manager for Mr Hatch’s claim had not been notified of the time of the teleconference before it was conducted, the case manager was not available at the time of the teleconference, having not made arrangements to commence work prior to his normal starting time of 9.00 am.
The letter was referred to the Arbitrator who declined to take any further action as the matter had been finalised. The Registrar notified the parties of this by letter dated 15 February 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 February 2007, records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant weekly benefits compensation as follows:
(a) from 01.02.06 to 31.08.06 at the rate of $78.53 per week.
(b) from 01.09.06 to 20.10.06 at the rate of $422.72 per week.
(c) from 21.10.06 to date and continuing at the rate of $105.72.
2. That the Respondent pay the Applicant’s s 60 expenses as claimed in the sum of $6060.00.
3. That the Respondents pay the Applicant’s costs as agreed or assessed.”
In his ‘Statement of Reasons for Decision’, the Arbitrator found that Mr Hatch had been partially incapacitated for work as a result of his injuries as claimed, and that he was entitled to be paid weekly compensation and medical related travel expenses.
ISSUES IN DISPUTE
The Appellant identified five grounds of appeal in their submissions:
(1) that the Arbitrator erred in law in finding that he was vested with jurisdiction to determine the matter since the claim had not been properly made;
(2) that the Arbitrator erred in law in finding that Mr Hatch was entitled to weekly compensation in the amounts claimed;
(3) that the Arbitrator erred in law in making his findings on Mr Hatch’s ability to earn in post-injury employment;
(4) that the Arbitrator erred in determining the rates of weekly compensation awarded; and
(5) that the Appellant and the Insurer were prejudiced in their defence of the ARD and denied procedural fairness.
No ‘Notice of Opposition’ to the appeal has been received from Mr Hatch’s solicitors.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the Appellant that the appeal can 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.
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. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises the whole of the amount at issue in these proceedings. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. The Appellant has sought leave to rely on fresh evidence in support of its second, third and fourth grounds of appeal. In my view, it is not necessary to address this application for leave given that my decision is based on other grounds and I have not found it necessary to address the second, third and fourth grounds of appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
In my view, it is not necessary for me to deal with the second, third and fourth grounds of appeal because this appeal can appropriately be determined by turning directly to the Appellant’s fifth ground of appeal and with reference to the first ground of appeal. The fifth ground of appeal is that the Appellant was prejudiced in its defence of the ARD and denied procedural fairness by the Commission.
Part 8 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) set out the rules on the service and lodging of documents. Rule 8.3(2) provides that the respondent’s address for service of documents by the applicant in proceedings before the Commission:
“must be the address of the respondent’s principal place of business or residence last known to the applicant, or, in the case where the respondent is a corporation, the address of the respondent’s registered office.”
In the present matter, Mr Hatch’s solicitors served the ARD on the nominated respondent employer, namely the Australian Traineeship System/Peel Valley Exporters Pty Ltd, of Phoenix Street, Tamworth NSW 2340, whereas it appears from the Appellant’s submissions that the nominated employer on whom documents should have been served was the NSW Department of Education and Training, GPO Box 33, Sydney 2001. To this extent, Mr Hatch’s solicitors appear not to have complied with the rules as to service of documents. The Appellant also submits, in effect, that there was a breach of section 260 of the 1998 Act, contending that Mr Hatch’s claim for compensation was not made in accordance with the applicable requirements of the WorkCover Guidelines. I note, however, the correspondence between Mr Hatch’s solicitors and the Insurer in the period September to December 2006. In my view, whether Mr Hatch’s solicitors complied with the procedural requirements in relation to the making of the claim and to the commencement of proceedings in the Commission are matters which should be properly considered by an Arbitrator with the benefit of submissions from both parties.
In my view, more significant was the Commission’s failure to properly notify the Appellant of the teleconference on 5 February 2007. The relevant sequence of events is as follows: on Wednesday 31 January 2007, the Commission sent a ‘Notice of Commencement of Proceedings’ by ordinary pre-paid post to Mr Hatch, to his solicitors, to “Australian Traineeship System/Peel Valley Exporters Pty Ltd, Phoenix Street, Tamworth NSW 2340”, and to “GIO General Ltd, GPO Box 97, Sydney NSW 2001”. The Notice informed the parties that a teleconference had been scheduled on Monday 5 February 2007 at 8.30 am.
Rule 8.1(6) of the 2006 Rules states relevantly:
“(6) For the purposes of these rules, a document is served by the Commission, and correspondence forwarded by the Commission is received by 4:30pm as set out in subclauses (a)–(e) but if that time is after 4.30 pm on any day, or is on a Saturday, Sunday or public holiday, on the next day that is not a Saturday, Sunday or public holiday:
(a) ... , or
(b) if by post, on the fourth day after the day of sending by prepaid post, or
(c) ... , or
(d) ... , or,(e) ...”
In this case, the Commission posted the notice of the teleconference on Wednesday 31 January 2007. The fourth day after 31 January was Sunday 4 February and, in accordance with rule 8.1(6), service of the document therefore took place on Monday 5 February 2007. The teleconference commenced at 8.30 am on that day, before the commencement of normal business hours at 9.00 am.
At 8.30 am on Monday 5 February 2007, the Arbitrator conducted a teleconference with Mr Hatch’s solicitors, with no representative from either the Appellant or the Insurer participating, after an attempt to contact a representative of the Insurer had been unsuccessful. There also having been no ‘Reply’ filed by the Appellant, the Arbitrator decided to make a determination on the papers, which was issued on 7 February 2007.
While section 354(1) of the 1998 Act requires the Commission to act with as little formality and technicality as the proper consideration of the matter permits, and section 354(2) states that the Commission is not bound by the rules of evidence, section 354(3) requires that the Commission must “act according to equity and good conscience”. Subject to such statutory modification, and, for example, any procedural requirements set out in the 2006 Rules, the Commission is also bound by the rules of natural justice/procedural fairness, which, in the context of such Commission proceedings, require that the parties be given proper notification of the proceedings and a proper opportunity to present their case.
In my view, the Appellant was not properly notified of the teleconference on 5 February 2007 prior to its commencement, as required by rule 8.1(6), and, as a result, because the Arbitrator decided to make a determination ‘on the papers’, it was also not given a proper opportunity to present its case. This was a denial of procedural fairness, which is an error of law going to jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj[2002] HCA 11; Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSWWCCPD 15, at paragraphs 25 – 26. The consequence of such a jurisdictional error is that no valid decision is taken to have been made. In my view, in the circumstances, such an outcome is also consonant with the Commission’s obligation to act according to equity and good conscience.
DECISION
The decision of the Arbitrator dated 7 February 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
22 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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