Barton v Mayne Nickless Limited t/as Mayne Logistics
[2004] NSWWCCPD 11
•4 March 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Barton v Mayne Nickless Limited t/as Mayne Logistics [2004] NSWWCCPD 11
APPELLANT: Phillip John Barton
RESPONDENT: Mayne Nickless Limited t/as Mayne Logistics
INSURER:Mayne Workers Compensation Services
FILE NUMBER: WCC13451-2003
DATE OF ARBITRATOR’S DECISION: 11 December 2003
DATE OF APPEAL DECISION: 4 March 2004
SUBJECT MATTER OF DECISION: Appeal against decision of an Arbitrator to grant leave for the filing of a late Reply. Discretion.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: Hunt and Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
On 24 December 2003 Phillip John Barton (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 11 December 2003.
The Respondent to the Appeal is Mayne Nickless t/as Mayne Logistics (‘the Respondent’).
The appeal was referred to me for review on 4 March 2004.
ISSUES IN DISPUTE
The decision appealed against is that the Respondent’s ‘Reply to the Application’, and ‘Directions to Produce’ (‘Directions’) despite being filed late, be accepted in the proceedings before the Arbitrator.
The issue in dispute is whether or not the Arbitrator erred in exercising his discretion, pursuant to the Workers Compensation Commission Rules 2003 (‘the Rules’), to grant leave for the ‘Reply’ and attached documents to be filed and in allowing late Directions to be issued.
JURISDICTION
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’).
In this matter I am satisfied that:
· The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
· No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
· No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
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.
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.
SUBMISSIONS
The Appellant made a number of submissions as follows. The Rules should be followed. To allow the Respondent to file a Reply and Directions late, without reasonable excuse, undermines the Rules and the “integrity of the legislation and Rules of the Commission”. The discretion to allow late documents should only be exercised in exceptional circumstances. The reason for the Respondent’s delay in this case is unsatisfactory and not due to an exceptional circumstance. No substantial injustice or prejudice will result to the Respondent if the Reply is not admitted. The Respondent has not complied with section 74 of the 1998 Act and the Reply itself raises issues new issues, not previously notified to the Appellant. To allow the Reply to be filed thus creates a serious prejudice to the Appellant.
The Respondent submits that the Arbitrator’s decision was properly made and should be confirmed. The reason for the filing of the late Reply and Directions was that the worker’s file had been lost, and that this was not a ‘normal’ case. The prejudice that would result in not allowing the Reply to be filed would be substantial.
Both parties refer to the Commission decisions of ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 (‘ADCO’) and Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34 (‘Falcon’).
DISCUSSION AND FINDINGS
An Appellant must demonstrate that an Arbitrator has made an error of law, fact or discretion in order to justify interference with the decision, upon review by a Presidential Member of the Commission (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The decision to dispense with the application of the Rules and to allow the late filing of documents and the late issue of Directions, is a matter for the discretion of the Arbitrator. It must be determined by the application of the relevant legal principles to the particular facts of the case. As stated in Falcon, “Where the parties are accorded procedural fairness, the Arbitrator has taken [only] the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential member, to interfere with the Arbitrator’s decision” (at paragraph 39).
The factors relevant to the exercise of this discretion have been set out at length in a number of decisions of this Commission, see: ADCO, Falcon,Parks v Navbay Pty Ltd [2003] NSW WCC PD 32. Practice Direction No. 9 also sets out the factors that must be considered when considering whether to allow late documents.
In my view the Arbitrator has not erred in the exercise of his discretion in this matter. He expressly considered the submissions of the parties as to the admission of the late Reply and issue of the Directions. He considered the possible prejudice to the parties in granting leave.
While the Arbitrator has not specifically referred to the President’s Practice Direction No. 9 (and it would have been preferable if he did) it appears that he has considered the factors set out therein. He considered the conduct of the parties, the nature of the Commission’s proceedings, the procedure relevant to this particular case (which is to be referred to an Approved Medical Specialist) and the relative fairness and justice to the parties in refusing to allow for the filing of the Reply and the issuing of the Directions.
The decision of the Arbitrator should therefore not be revoked on review.
I note the reference of the Appellant to the Respondent’s statutory obligations pursuant to section 74 of the 1998 Act. The Appellant is entirely correct to demand compliance with section 74 and to note the detriment to a worker if it is not complied with. Section 74 provides that an insurer who disputes liability in respect of a claim or any aspect of a claim must give notice of the dispute to the claimant. The section then specifies the information that must be contained in such a notice. Compliance with section 74 is an integral part of the statutory scheme in relation to the making of claims for compensation.
However the remedy for non-compliance with section 74 does not lie with the refusal to allow late documents in proceedings before the Commission. Different considerations apply. The remedy for non-compliance is found within the section itself, at 74(3A), which provides that “[t]he Regulations may create offences in connection with any failure to comply with this section”.
Clause 34(2) of the Workers Compensation Regulations 2003 provides that;
“A person who fails to comply with section 74 of the 1998 Act in respect of a claim for compensation is guilty of an offence. Maximum penalty: 20 penalty units”.
This is a matter for the Appellant to pursue with the WorkCover Authority if necessary.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Respondent seeks costs of the Appeal on the basis that the appeal is made “frivolously, vexatiously and without proper justification”.
I do not accept these submissions. While the Appellant has not been successful, there is nothing to suggest that the appeal was not bona fide, nor that it had no chance of success.
The substantive proceedings have some way to go in this matter. The prospect of the parties coming to a settlement that is acceptable to all of them remains. If that does not occur, the Arbitrator must determine the matter.
The costs of the appeal are best addressed when the substantive matters in dispute are resolved and should become ‘costs in the cause’.
Dr Gabriel Fleming
Deputy President
4 March 2004.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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