Australian Traineeship System v Mabbett - [2011] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Australian Traineeship System v Mabbett [2011] NSWWCCPD 1
APPELLANT:		Australian Traineeship System
RESPONDENT:		Ivan Mabbett
INSURER:		GIO General Limited
FILE NUMBER:		A1-4086/10
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		27 September 2010
DATE OF APPEAL DECISION:		4 January 2011
SUBJECT MATTER OF DECISION:		Leave to appeal out of time; Pt 16.2 r 12 of the Workers Compensation Commission Rules 2010
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Moray & Agnew
Respondent:	Firths
ORDERS MADE ON APPEAL:		Leave to appeal is refused. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

On 9 July 2001, the respondent worker, Mr Mabbett, injured his back in the course of his employment with the appellant employer, Australian Traineeship System. The employer’s insurer, GIO General Limited (GIO), made voluntary payments of weekly compensation.
In proceedings in the former Compensation Court of NSW in 2003, the employer agreed to pay Mr Mabbett lump sum compensation in the sum of $9,000 in respect of a 15 per cent permanent impairment of his back, $3,750 in respect of a five per cent loss of efficient use of his left leg at or above the knee, and $7,250 in respect of pain and suffering.
In 2009, Mr Mabbett decided to return to his country of birth, New Zealand. To ensure that he received compensation payments on his return to New Zealand, his solicitors wrote several letters to the insurer. After the insurer failed to respond to the first three letters, Moray & Agnew, solicitors instructed by GIO, wrote on 5 August 2009 recommending that Mr Mabbett make “the appropriate application pursuant to s 53 of the 1987 Act”.
Mr Mabbett filed an Application to Resolve a Dispute in the Commission on 21 May 2010. Under “Claim Details”, the following appears:
“We note that the Insurer has been making weekly payments of compensation in the amount of approximately $470.70 gross per week. However, the insurer has advised that payments will discontinue once the worker ceases to reside in Australia.
We therefore seek a declaration under s 53 of the Act that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
The employer attached its Reply to an Application to Admit Late Documents filed on 16 June 2010. Under “Matters in Dispute”, the employer ticked “yes” to “confirmed as per exchange of offers attached to the Application”. It identified no other issues in dispute.
The Commission listed the matter for conciliation and arbitration on 23 August 2010. The matter could not be resolved and the Arbitrator heard lengthy submissions from counsel for each side. In her Statement of Reasons (Reasons) issued on 27 September 2010, she identified the issues for determination to be:
“1. Does the Commission have jurisdiction to determine the issues before it, given the operation of section 289 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)?
2. If so, what is the application of section 53 of the 1987 Act to the facts of the case?
3. Whether the Commission can make an award for the Applicant in respect of the payment of weekly benefits compensation and, if so, what is the proper rate of that award?”

The Arbitrator found in favour of Mr Mabbett on all issues. The Commission issued a Certificate of Determination on 27 September 2010 in the following terms:

“The Commission determines:

Orders
1.The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 at the maximum statutory rate for a worker with one dependent child from the date of this award. I note that to date such payments have been made to the Applicant on a voluntary basis and the Respondent is to be given credit for any payments made in the relevant period.
2.Pursuant to section 53 of the Workers Compensation Act 1987 I determine that the Applicant’s incapacity for work resulting from the work injury on 9 July 2001 is likely to be of a permanent nature.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with 15% increase in the costs otherwise available to the parties.”

In an appeal filed on 27 October 2010, the employer seeks leave to appeal the Arbitrator’s determination.

ON THE PAPERS

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 Nos 1 and 6, the documents that are before me, and the submissions by the 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.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

Mr Mabbett has not disputed that the monetary thresholds in s 352(2) are satisfied. Though I doubt the correctness of that concession, as neither party has made submissions on it, and as leave to appeal is refused on other grounds, I express no view on it.

Time

The appeal was lodged outside the 28 days in s 352(4) of the 1998 Act and the employer seeks an extension of time in which to appeal.
An extension of time in which to appeal under s 352 is governed by Pt 16.2 r 12 of the Workers Compensation Commission Rules 2010 (the Rules), which provides:
“(12) 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.”

The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits 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 fact that the successful party has a vested right to retain the judgment unless the application for extension of time is granted.

The employer’s submissions in support of its application to extend time are so brief they can be set out in full. It submitted:
“The determination was dated 27 September 2010, although it was not published until 6 October 2010 by letter from the delegate of the Registrar to the appellant. The application is therefore technically out of time from the date of the determination, but within time from the date of its publication. The appellant submits that the deprivation of the full 28 days by the said delay in publication constitutes ‘exceptional circumstances’ within Rule 16.2(12) of the 2010 Rules. The loss of the right to appeal under these circumstances would offend against the rules of natural justice and procedural fairness, given that the appellant has suffered unfair discrimination in having the time for appeal reduced arbitrarily by 9 days, through no fault of its own.”
Mr Mabbett has opposed the extension of time to appeal on the following grounds:
(a)     the Commission forwarded a copy of the Certificate of Determination and the Arbitrator’s Reasons to his solicitor (Firths) and to GIO by letter dated 27 September 2010. Firths received that letter, and the decision, on 28 September 2010;
(b)     the employer’s submissions made no reference to the letter sent by the Commission to the insurer on 27 September 2010;
(c)     the only matter raised in support of the application to extend time is the delay in receiving the decision;
(d)     given the employer’s concession at the arbitration that the insurer would continue to make voluntary compensation payments after Mr Mabbett left Australia, it cannot assert that the decision represents a “demonstrable or substantial injustice” that requires the exercise of the discretion in its favour, and
(e)     the employer did not raise any issue as to “lack of a dispute/jurisdiction” either prior to filing its Reply or in the Reply itself.

Dealing with Pt 16.2 r 11 of the Workers Compensation Commission Rules 2006 (which was in identical terms to the current r 12), Allsop P (Beazley and Giles JJA agreeing) said (at [9]) in Bryce v Department of Corrective Services [2009] NSWCA 188 that “whether or not there are exceptional circumstances and whether or not to lose the right of appeal would work demonstrable and substantial injustice, were conclusions which were substantially factual conclusions”. His Honour added (at [10]):
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction…”
For the following reasons, I am not satisfied that there are any circumstances (exceptional or otherwise) that establish that for the employer to lose the right to seek leave to appeal would work a demonstrable and substantial injustice.
First, the opening sentence of the employer’s submissions in support of its application to extend time is incorrect and misleading. The decision was not “published” on 6 October 2010, as the employer has submitted. The Commission’s records demonstrate (consistent with Mr Mabbett’s submissions) that it issued the decision on 27 September 2010 and that it forwarded the Certificate of Determination and the Arbitrator’s Reasons to Mr Mabbett, Firths and to GIO on that day. The employer’s submissions have ignored that fact. Whilst I accept that the decision should have been forwarded to the employer’s solicitor on the record (Moray & Agnew) on 27 September 2010, the employer has made no submission as to why or how the late forwarding of the documents to its solicitor contributed (if it did contribute) to the appeal being filed out of time. There is no suggestion that the solicitor had difficulty in obtaining instructions, or in preparing the appeal documents within time. Nor is there any evidence of what GIO did when it received the Certificate of Determination and decision.
Second, the submission that the appeal is “technically out of time” is unpersuasive and does not advance the employer’s position. It is for the putative appellant to satisfy the Commission, in exceptional circumstances, that to lose the right to seek leave to appeal would work a demonstrable and substantial injustice. The employer has not directed its submissions to the terms of the Rule. It has offered no explanation as to why the service of the decision on Moray & Agnew on 6 October 2010 (in circumstances where the insurer had the decision from at least 28 September 2008) contributed to the appeal being filed out of time. Notwithstanding that the Commission gave the employer the opportunity to file submissions in response to the worker’s submissions (see directions dated 29 October 2010 attached to the appeal), Moray & Agnew advised by email dated 17 December 2010 that it would not be making any further submissions.
Third, I do not accept that, on its own, the fact that the Commission did not forward the decision to Moray & Agnew until 6 October 2010 constitutes exceptional circumstances. Much more is required. The employer has not provided any proper explanation for the appeal being filed out of time.
Fourth, rather than addressing the terms of the Rule, the employer has submitted that the loss of the right of appeal in this case “would offend against the rules of natural justice and procedural fairness”. It has offered no explanation as to how these rules would be offended in this case. The employer had every opportunity to present its case at the arbitration and it did so. The Arbitrator rejected its arguments. No issue of non-compliance with the rules of natural justice or procedural fairness arises. Once the time to appeal has expired, the successful party has a vested right to retain the judgment (see Gallo). That right is subject to, in exceptional circumstances, the putative appellant establishing that to lose the right of appeal will work a demonstrable and substantial injustice. The employer has not made any relevant submissions on that issue.
I agree with Mr Mabbett’s submission that the employer will suffer no injustice if the Commission does not extend time to appeal. He pointed to the employer’s submission at the arbitration, and on appeal, that the insurer would make weekly payments to Mr Mabbett when he returned to New Zealand in any event. As a result, it will suffer no monetary penalty if time to appeal is not extended, as it has agreed to make the payments ordered by the Arbitrator. As the employer has pointed to no injustice that will result if the Arbitrator’s determination stands, it has not established that it will suffer a demonstrable and substantial injustice if time to appeal is not extended.
In these circumstances, it is not necessary for me to express a concluded view on the merits of the proposed appeal. However, given the submissions made by the parties, I make the following observations. Notwithstanding the unsatisfactory terms of the employer’s Reply, the agreed issue before the Arbitrator was whether the Commission had jurisdiction to determine the matter. That question turned on whether a dispute existed. That depended on the construction of a series of letters between Firths, the insurer, and Moray & Agnew. Whilst the parties’ correspondence would not be a model to be followed in the future, my preliminary view is that the Arbitrator’s determination that the insurer had “in effect and substance” (Reasons at [19]) disputed liability for ongoing payments of weekly compensation if Mr Mabbett returned to New Zealand, and that the Commission had jurisdiction, was open on the evidence.
The Arbitrator reached her conclusions after considering the relevant correspondence. Firths wrote to GIO on 11 June 2009 and invited it to consent to the appropriate orders under s 53 of the Workers Compensation Act 1987 to enable compensation payments to continue when Mr Mabbett returned to New Zealand. Though the Commission must make those orders, the parties may request it to make the orders by consent. GIO did not reply to Firths’ letter. Firths wrote to GIO on 10 July 2009 requesting copies of reports and other information. This letter clearly indicated that Firths interpreted the lack of a reply to the letter of 11 June 2009 as a denial of the earlier request. Given that insurers have a statutory obligation to determine matters promptly (usually within 28 days of the date of claim), that was a reasonable interpretation.
Rather than replying to Firths’ request of 11 June 2009, GIO instructed Moray & Agnew. Moray & Agnew did not give a direct answer to the question raised in the letter of 11 June 2009, but instead, in a letter dated 5 August 2009, invited Firths to “make the appropriate application pursuant to s 53 of the 1987 Act”. That invitation was only open to one interpretation, namely that the claim for compensation when Mr Mabbett returned to New Zealand was disputed and I do not accept the employer’s submission to the contrary.
In a letter dated 17 February 2010, Firths again asked GIO to confirm whether Mr Mabbett would “continue to receive weekly payments” when he left Australia. GIO replied on 18 February 2010 by referring to “our letter attached dated 5 August 2009”. The reference to “our letter” was a reference to Moray & Agnew’s letter of 5 August 2009. Thus, the correspondence establishes that the insurer disputed the claim and the Commission had jurisdiction to determine it. In these circumstances, the employer’s appeal does not have reasonable prospects of success.
Insurers are reminded that the Commission has a statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (s 354(3) of the 1998 Act). It was disingenuous and unacceptable for the insurer to say to Mr Mabbett “make the appropriate application pursuant to s 53” and then, once that application was filed, to argue that there was no dispute. The insurer had every opportunity to consent to the orders sought by Mr Mabbett, but, for no good reason, it did not do so.

CONCLUSION

Having regard to the matters stated in Gallo, in particular the lack of a proper explanation as to why the appeal was filed out of time, and the lack of prospects of success, leave to appeal is refused.

DECISION

Leave to appeal is refused.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Acting President
4 January 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE