Bekkers v State of New South Wales - [2018] NSWWCCPD 46

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bekkers v State of New South Wales [2018] NSWWCCPD 46
APPELLANT:	Julia Margot Bekkers
RESPONDENT:	State of New South Wales
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A2–1658/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	14 June 2018
DATE OF APPEAL DECISION:	5 November 2018
SUBJECT MATTER OF DECISION:	Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; ‘exceptional circumstances’; ‘demonstrable and substantial injustice’; lodgment of submissions on appeal not in accordance with timetable or leave – application of Bale v Mills [2011] NSWCA 226; section 18 of the Workers Compensation Act 1987 – application of StateCover Mutual Ltd v Cameron [2015] NSWCA 127; 13 DDCR 272, application of s 16(1)(b) of the 1987 Act
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	McCabe Partners Lawyers
Respondent:	Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend the time for making an appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

Julia Margot Bekkers (the appellant) is a registered nurse. She previously worked for Justice Health and Forensic Mental Health Network, in her profession of nursing, at Long Bay Correctional Complex (Long Bay). The employer for the purpose of these proceedings is correctly described as the State of New South Wales;[1] for convenience, I will refer to it as Justice Health/the respondent. In these proceedings, the appellant seeks orders pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) for payment of the cost of a proposed total left hip replacement, estimated at about $21,800. She appeals against an award entered in the respondent’s favour.
[1] State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1, [26]–[28].

BACKGROUND

The appellant worked as a registered nurse from 1977. She was employed by Justice Health in various roles as a nurse manager from 2002 to 2009. These positions were largely managerial and administrative. She was employed by Justice Health at Long Bay as a registered nurse/mental health nurse from February 2013 to July 2014 in the Mental Health Units and Number 13 Wing of the gaol. Her case was that these duties at Long Bay were relatively arduous physically, and aggravated an arthritic condition of her left hip. During the period of her employment at Long Bay, she also worked in nursing at St George Private Hospital, the University of Wollongong and the University of Sydney. Since July 2014, she has continued to work in nursing with a number of employers.[2]
[2] Bekkers v State of New South Wales [2018] NSWWCC 157 (Decision), [20]–[27].
The appellant developed left hip pain from about 2013. She was assessed by Dr Drew Dixon, an orthopaedic surgeon, who reported to her solicitors on 11 August 2016. He said that the appellant would probably require a left total hip replacement “in the short term, three to five years”.[3] The appellant’s solicitors made claims on Justice Health for the cost of the proposed surgery on 30 January 2017 and 14 February 2018.[4] In particulars supplied to Justice Health on 9 March 2017, the appellant’s solicitors advised that the claim was “brought pursuant to the disease provisions”, and that the last employment that was a substantial contributing factor was that with Justice Health, which ceased on either 25 August 2014 or 28 November 2014.[5] Dr James Vote reported to the respondent’s solicitors, who had qualified him, on 1 September 2017. Dr Vote said “[s]he has been told that she requires a total [left] hip replacement and I would totally agree with this”.
[3] Application to Resolve a Dispute (ARD), p 17.
[4] ARD, pp 55 and 71.
[5] ARD, p 60.
The ARD commencing the current proceedings was registered on 3 April 2018, relying on a failure by the respondent to determine the claim. QBE Insurance (Australia) Ltd, as agent at the time for the NSW Self Insurance Corporation, issued a s 74 notice on the respondent’s behalf on 24 April 2018. It denied liability on the basis that the appellant had not suffered ‘injury’, that s 9A (‘substantial contributing factor’) was not satisfied, that medical expenses were not payable as they were not reasonable and did not relate to a workplace injury, and that there was no whole person impairment. The stated ‘Reasons for Denying Liability’ included that “… the respondent is in our view not the last employer to the nature of which the alleged disease was due” (emphasis in original). The notice concerns itself predominantly with the right (rather than the left) hip, but this appears to be in error.[6]
[6] Reply, pp 199–204.

THE ARBITRAL PROCEEDINGS

The matter was listed for an arbitration hearing on 28 May 2018. The appellant was represented by Mr Dodd instructed by Mr McCabe. The respondent was represented by Mr Hanrahan instructed by Mr Khoshaba.
The appellant’s initial statement, dated 28 December 2015, described her working for Justice Health as a nurse manager from October 2002 to June 2009, and then as a “Registered Nurse/Mental Health Nurse” at Long Bay from February 2013 to July 2014. She was employed thereafter by other entities. This was consistent with later statements relied on by the appellant dated 1 March 2016 and 9 February 2017.[7] On 21 May 2018, the appellant’s solicitors lodged an Application to Admit Late Documents (AALD) dated 16 May 2018. It included a further statement of the appellant dated 16 May 2018. That further statement said that the appellant had advised her solicitor, on 9 May 2018, that she worked for five months for Justice Health, in 2016. She said this was, “once again, work more of a physical nature in terms of the metal stairs, heavy doors on steel framework, contact with inmates and at times involved in accidental encounters”. She said this period of employment made her realise she could not return to such work again because of her left hip.[8]
[7] ARD, pp 43–52.
[8] AALD 16.5.18, p 49.
The appellant was cross-examined, by leave, at the arbitration hearing. Her evidence was generally consistent with her most recent statement, that there was a period of employment with Justice Health, from about March 2016 to October 2016.[9] The respondent’s counsel announced at the arbitration hearing that he was instructed:
“… we did not employ her at Justice Health at that time, but the [appellant] may well be in some agency arrangement, I don’t know, but we don’t have any record of employment by us at that time.”[10]
[9] Transcript of arbitration proceedings, 28 May 2018 (T1), 51.26–54.6.
[10] T1 82.15–18.
Consistent with this, the respondent’s counsel submitted:
“… we’re not the last employer to the nature of which this disease was due. The [appellant] has continued working in the nursing industry at a number of different employments – indeed, concurrently with other nursing establishments, and has also worked at the same Long Bay Ward 13 in 2016 until October of that year.”[11]
[11] T1 89.21–26.
In the course of addresses, the Arbitrator raised with counsel the possibility that work by the appellant at Long Bay in 2016 could have been for an entity other than Justice Health:
“Or it could be placement for an agency. I mean, the respondent’s saying they hadn’t employed her.”
Towards the close of addresses, the Arbitrator said:
“… the evidence clearly is from the [appellant] today that she was undertaking heavy work in 2016, therefore it becomes extremely important for me to know whether she was in fact employed by the respondent in 2016. That has a significant effect in terms of the application of section 16, and section 4(b)(ii) and section 16 of the Act. In that regard, I intend to make a direction that both the [appellant] and the respondent are to advise by 2 June 2018 as to whether the [appellant] was employed with the respondent between March 2016 and October 2016, and to provide any evidence by way of documents to that effect if there is likely to be a dispute. It may well be that the parties will be able to reach agreement. It may be of no consequence at all. But it is a very important issue, and we need to – in order to get that looked at. So that’s the direction I make, and otherwise, I will thereafter provide a decision.”[12]
[12] T1 95.25–96.8.
On 31 May 2018, the appellant lodged an Application to Admit Late Documents, attaching a further statement of the appellant dated 30 May 2018. The respondent’s solicitors forwarded an email to the Registry dated 31 May 2018, stating the respondent objected to the further statement in part. A telephone conference was held on 5 June 2018 to deal with the admissibility of the further statement. Paragraphs [1], [2] and [3] of the statement were admitted, paragraphs [4], [5], [6] and [7] were not.[13] Paragraph [3] stated:
“When my matter was listed for Hearing in the Workers Compensation Commission on the 28.05.18, I advised the Arbitrator that I worked for Justice Health between March 2016 and October 2016. However, this was wrong, after telephoning the pay office for Justice Health and checking my financial records, my last date of physical employment with Justice Health was on the 25.08.2014. My employment was terminated with Justice Health on the 01.12.2014.”
[13] Transcript of telephone conference, 5 June 2018 (T2), 7.12–8.24.

THE ARBITRAL DECISION

The decision was issued on 14 June 2018, accompanied by 18 pages of reasons. The Arbitrator noted that claims for injury to the lumbar spine and right hip had been withdrawn at a telephone conference on 7 May 2018, only the left hip injury was pursued.[14] He referred to the appellant’s statements, including that dated 16 May 2018, in which she referred to working at Long Bay during 2016. He referred to passages in the appellant’s cross-examination dealing with work during 2016.[15] The Arbitrator summarised the medical evidence, including a “Workplace Assessment Report” of Mr Ashley, dated 4 October 2017, commissioned by the respondent. He noted the respondent’s statement, through its counsel, that Justice Health did not employ the appellant “in 2016 when she said that she returned to work at Long Bay Gaol for Justice Health”.[16]
[14] Decision, [9].
[15] Decision, [29]–[30], quoting T1 42.31–45.6, 51.26–54.11.
[16] Decision, [33]–[55].
The Arbitrator set out the provisions of ss 4 and 16 of the 1987 Act. He noted the basis of the appellant’s case on injury, that injury to the left hip was materially aggravated by her work in the nursing industry, and the respondent was “the last employer in such employment to the nature of which the disease injury to the left hip is and was due”.[17] The Arbitrator noted some discrepancies between the history of duties in the appellant’s statements and Dr Drew Dixon’s reports, compared with her evidence in cross-examination. Because of these, he concluded that he could not, “with any degree of certainty or confidence rely upon the opinions expressed by Dr Drew Dixon”.[18]
[17] Decision, [59].
[18] Decision, [60]–[68].
The Arbitrator referred to the report of Mr Ashley in the respondent’s case,[19] including his description of the appellant’s duties. The Arbitrator accepted that the appellant undertook “a lot of walking, including up and down metal stairs”, that she had “to push on heavy doors from time to time”, and that there was “intermittent contact with inmates in sporting activities and accidental encounters”. On this basis, he accepted Dr Vote’s opinion about the causal connection between such activities and the development of left hip pain. He accepted “these activities in her work at Long Bay Gaol are the main contributing factor to the aggravation and acceleration of a disease process in the left hip”.[20] The Arbitrator said that other jobs the appellant performed, at the time of and after her work at Long Bay, were not particularly “strenuous or onerous” such as to cause further aggravation to the left hip.[21] However, the work at Long Bay involved walking up and down metal stairs, which Dr Vote considered, in combination with “some other aggravating events”, to be the main contributing factor to the aggravation of the left hip condition.[22]
[19] Reply, p 194.
[20] Decision, [71]–[72].
[21] Decision, [74].
[22] Decision, [75]–[77].
The Arbitrator said he was left to deal with the issue of whether the appellant undertook strenuous work at Long Bay in 2016, and if so, who was her employer. He referred to her statement dated 16 May 2018. The statement said the appellant returned to work for Justice Health for five months in 2016. It said it was work of a more physical nature, that involved “metal stairs, heavy doors on steel framework, contact with inmates and at times involved in accidental encounters”. He said that it was reasonable to infer this description was “referring to her work at Long Bay”. In cross-examination, the appellant on two occasions said she had worked for several months at Long Bay in 2016. She said it was heavier than the work she was doing in 2013.[23]
[23] Decision, [79]–[84].
The Arbitrator referred to that part of the appellant’s statement dated 30 May 2018, in which she said that her evidence that she worked for Justice Health between March and October 2016 was wrong. He observed that she did not there state that she did not work at Long Bay at that time, only that she did not work for Justice Health. She gave no explanation for the discrepancy between her last statement, compared with her earlier statement dated 16 May 2018, and her evidence in cross-examination, that she had worked at Long Bay in 2016. The Arbitrator said he gave careful consideration to whether the appellant “was genuinely confused”, and whether the heavy work she referred to in 2016 was “actually referring to the period from February 2013 to August 2014”. He concluded that the evidence supported a finding that the appellant returned to work at Long Bay on a casual basis for at least five months during 2016, and worked on average three 12 hour shifts per week. The work involved activities also undertaken between February 2013 and August 2014, “a lot of walking, walking up and down metal stairs, pushing on heavy metal doors and occasional contact with inmates”.[24]
[24] Decision, [85]–[87].
The Arbitrator made a finding that employment at Long Bay was the main contributing factor to the aggravation and acceleration of a disease process in the appellant’s left hip, due to activities he had identified as being heavy and strenuous. The employer at Long Bay in 2016 should be liable, as “the last who employed the [appellant] in employment that was a substantial contributing factor to that aggravation and acceleration of the disease process”. He said “[t]hat employer has not been identified by the [appellant]”. He entered an award for the respondent.[25]
[25] Decision, [88]–[89].

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.”
The appellant submits that the appeal can be determined on the papers.[26] The respondent submits it consents to the matter being determined on the papers, but also is “content for a hearing to take place if the [C]omission so decides”.[27] 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. This is the appropriate course in the circumstances.
[26] Application Appeal Against Decision of Arbitrator (the appeal), p 2.
[27] Notice of Opposition (the opposition), [3].

THE GROUNDS OF APPEAL

The appellant pleads the following grounds of appeal, which are quoted verbatim:
“(A)1) The Arbitrator erred by finding that the Appellant had not identified the relevant employer.
2) There is an overwhelming inference that the relevant employer was the Respondent being the employer in which the employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the Appellant’s injuries.
3) That the Respondent was the last employer of the Appellant in such employment.
(B) That the Arbitrator failed to provide appropriate weight to the uncontested further statement by the Appellant dated 30.05.2018, which clarified the last date the Appellant worked for the Respondent.”
The grounds additionally, at “(C)”, identify the decision, being that of “Arbitrator John Isaksen, which was determined on the 14.06.2018”. At (D) the grounds identify the decision which is appealed against, being “There is an award for the Respondent”.

THE NATURE OF THE APPEAL

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[28] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[29] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[30]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[31]
[28] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[29] (1966) 39 ALJR 505, 506.
[30] [1996] HCA 140; 140 ALR 227.
[31] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[32] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[33]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[34]
[32] [2017] NSWWCCPD 5, [67].
[33] [2001] FCA 1833, [28].
[34] Raulston, [20].
In Northern NSW Local Health Network v Heggie[35] Sackville JA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”[36]
[35] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[36] Heggie, [72].

THRESHOLD MATTERS

It is conceded that the monetary thresholds in s 352(3) have been met.
The Certificate of Determination was dated 14 June 2018. Section 352(4) of the 1998 Act provides that an appeal pursuant to s 352 “can only be made within 28 days after the making of the decision appealed against”. The appeal was registered on 24 July 2018, which is the date the appeal was made,[37] therefore it is out of time.

EXTENSION OF TIME

[37] Rule 16.2(11) of the Workers Compensation Commission Rules 2011 (the Rules).

Appellant’s submissions

The appellant’s submissions on the extension of time are addressed to the Registrar (through his delegate). The extension of time pursuant to s 352(4) of the 1998 Act is dealt with under r 16.2(12) of the Rules, not under r 3.2. The discretion is to be exercised by a Presidential member, not by the Registrar. The heading, on the affidavit of the appellant’s solicitor, makes it clear that r 16.2(12) was being relied on, and I will deal with the application on that basis.
The appellant’s submissions on time (which are contained in Mr McCabe’s affidavit) include various factual assertions which, for the purposes of this application, I will accept. The decision having been issued on 14 June 2018, on 11 July 2018, the appellant’s solicitor emailed a copy of the decision to senior counsel and requested advice. On 11 July 2018, the solicitor emailed the draft appeal to senior counsel, including the solicitor’s submissions. On the same date the solicitor lodged and served the appeal. The last date for lodgment within time, as the appellant’s solicitor submits, was 12 July 2018.[38] The appeal was rejected by the Commission on 13 July 2018. The Registrar’s delegate returned the document to the appellant’s solicitor under cover of a letter that set out the reasons for its rejection.[39] These were that it did not, in compliance with Practice Direction No 6, contain:
(a)    any grounds of appeal;
(b)    any submissions in support of any apparent ground of appeal;
(c)    the identity or contact details of the author of the submissions;
(d)    the identity of the solicitor who certified the appeal had reasonable prospects of success, and
(e)    an objective chronology.
[38] Affidavit of David McCabe dated 24 July 2018 (McCabe affidavit), [1]–[5].
[39] Letter from the Registrar’s delegate to the appellant’s solicitors dated 13 July 2018.
The appellant’s solicitor states that on 17 July 2018 his mother was admitted to hospital with a life-threatening illness. On 18 July 2018, he asked that senior counsel “have a look at the matter”. On 19 July 2018, he emailed senior counsel advising that he (the solicitor) had to prepare an affidavit dealing with the late lodgment. On 23 July 2018, in a telephone conference, senior counsel dictated grounds of appeal. The Application to appeal in the current proceedings was forwarded to the Commission on 24 July 2018.[40]
[40] McCabe affidavit, [7]–[11].
The appellant submits that the appeal was originally within time when she sought to lodge it, and there is no prejudice. She submits the Registrar is not required to act as a ‘gatekeeper’, it is up to a Presidential member to determine the merits of an appeal. She submits the appeal has “extremely good prospects of success”, and it would cause substantial injustice if it were not allowed to proceed. The appellant refers to ING Administration Pty Limited v Singh,[41] a matter where the appeal document did not include grounds, but it was held the appeal was not out of time, as the grounds could be “construed” from the submissions. She also refers to Kleinbergs v Central West Pathology Service,[42] a matter where time was extended, the appeal having been originally lodged within time, and rejected due to “a formal defect”.
[41] [2008] NSWWCCPD 48 (Singh).
[42] [2007] NSWWCCPD 206.

Respondent’s submissions

The respondent opposes the application to extend time. The respondent states the appeal document originally served on its solicitors was unsealed, and did not contain any grounds of appeal, or submissions addressing any grounds of appeal. There were “general submissions seeking to attack in the most general terms the [A]rbitrator’s decision”. The document did not contain a list of authorities, submissions on procedural matters, the Certificate of Determination, and important documents such as the Direction issued on 28 May 2018 and the appellant’s further statement dated 30 May 2018. The respondent takes issue with some of the assertions made by the appellant, such as that identifying the appeal as being originally lodged “with the submissions and a chronology”.[43]
[43] Respondent’s submissions, [7]–[12].
The respondent submits there is no explanation of what happened from 14 June 2018 to 26 June 2018, from 27 June 2018 to 10 July 2018, and from 14 July 2018 to 16 July 2018. It submits that a legal practitioner failing to comply with a time limit because he or she is awaiting counsel’s advice, awaiting WIRO funding or due to procedural deficiencies, is not uncommon or rare, and does not constitute ‘exceptional circumstances’.[44]
[44] Respondent’s submissions, [20]–[31].
The respondent seeks to distinguish Singh. In that case, the submissions were comprehensive and coherent, the absence of grounds was explained in a letter from the counsel who drafted the material, explaining there had been an oversight. There is no such explanation in the current matter. The respondent submits the submissions in the current appeal “traverse a whole series of topics”. An objective reader could not construe, from the submissions, specific errors which the submissions sought to support. The scenario laid out by the procedural history, suggests the grounds of appeal were first identified, then “drafted/settled, on 23 July 2018, well after the due date for filing of the appeal.[45] This could not constitute ‘exceptional circumstances’; reference is made to Vaughan v Secretary, Department of Education,[46] Karakurt v Vikson Australia Pty Ltd t/as South Coast Chicken Fillets and Smallgoods,[47] and Thompson v State of New South Wales.[48]
[45] Respondent’s submissions, [32]–[36].
[46] [2018] NSWWCCPD 1 (Vaughan).
[47] [2018] NSWWCCPD 3.
[48] [2018] NSWWCCPD 25.
The respondent submits the appellant’s conduct in advancing the appeal has been “dilatory”, and expiry of the 28-day period is “unsatisfactorily explained”.
The respondent submits that the appeal does not have prospects of success.[49]
[49] Respondent’s submissions, [109]–[112].

Consideration

The extension of time is governed by r 16.2(12) of the Rules, which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
It is appropriate, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson.[50] These principles were summarised by Roche DP in Allen v Roads and Maritime Services[51] as involving the need to have regard to the following:
“(a)    the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      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.”
[50] [1990] HCA 30; 64 ALJR 458, [2].
[51] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[52] the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success on the proposed appeal.”
[52] [2014] NSWCA 34 per Basten JA (Beazley P and Leeming JA agreeing), [9].

Uncontroversial matters

The extent of the delay was relatively modest, a period of one to two weeks. The respondent does not raise prejudice. The respondent has a vested right to retain the decision in its favour unless the application for an extension is granted.

The explanation of delay

The sequence of events relied on is essentially set out in Mr McCabe’s affidavit. There is no indication of anything happening from 14 June 2018 (when the decision was issued) until 27 June 2018, when a copy of the decision was forwarded to Senior Counsel with a request for an advice. Nothing further is described as happening from then until 11 July 2018 (the second last day for lodgment of an appeal in time). On that date, a copy of the appeal document and Mr McCabe’s submissions were forwarded to Senior Counsel. On the same date, the appeal was forwarded to the Commission, and an unsealed copy was served on the respondent’s solicitors. It was rejected by the Registrar’s delegate due to procedural inadequacy, by letter dated 13 July 2018. The letter of the Registrar’s delegate of that date, and the description of the appeal document in the respondent’s submissions (see [29] and [32] above), suggest the document made little real attempt to comply with the procedural requirements of Practice Direction No 6. Between 13 July 2018 (by when the appeal was out of time) and 24 July 2018 (when the appeal was lodged successfully) the only matters described were an email asking Senior Counsel to “have a look at the matter”, an email to Senior Counsel advising that Mr McCabe had to prepare an affidavit, and a telephone conference on 23 July 2018 when Senior Counsel advised that Mr McCabe’s submissions “were in order” and dictated grounds of appeal.
The explanation does not adequately explain what happened during the initial 27 days, other than that the initial attempt to lodge the appeal was unsuccessful due to procedural deficiencies. It does not refer to the nature of those deficiencies or why they occurred. The appellant’s submissions describe the document as having been “rejected due to a formal defect”.[53] Other evidence suggests the defects were more than simply formal, technical defects (see [29] and [32] above). The appellant’s solicitor’s affidavit accepts that it contained no grounds of appeal, these being dictated by Senior Counsel on 23 July 2018, “as requested” by the Registrar’s delegate.[54] The explanation does not explain the basis on which the rejection could be described as a formal defect. It does not explain why, after the appeal was initially rejected, it took between one and two weeks to redraft and relodge the amended document. It refers to one aspect of the history that is outside the usual, the admission of the appellant’s solicitor’s mother to hospital on 17 July 2018, but offers no indication of whether (or how) this contributed to the delay. The explanation of the delay is inadequate.
[53] McCabe affidavit, [19].
[54] McCabe affidavit, [10].

Exceptional circumstances

The appellant’s submissions do not address the presence of ‘exceptional circumstances’. The respondent submits ‘exceptional circumstances’ are not present.
A Presidential member, dealing with an application pursuant to r 16.2(12) of the Rules, is required to consider, although it is not a prerequisite to an extension, whether or not there are ‘exceptional circumstances’. It is additionally necessary to consider whether or not to lose the right of appeal would work “demonstrable and substantial injustice”: Bryce v Department of Corrective Services.[55]
[55] [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8]–[9].
The matters relevant to the presence of ‘exceptional circumstances’ will depend on the circumstances and evidence in each individual case. The matters relied upon by the Presidential member in Bryce,[56] all of which were described by Allsop P as matters that “can be seen as relevant to the consideration of that composite expression”, were the following:
“[23] Whilst the Department’s explanation for the appeal being filed out of time is far from satisfactory, I have determined, not without considerable reluctance, that exceptional circumstances exist that justify the extension of time to appeal in this matter. My reasons are as follows:
(a) the discretion to extend the time to appeal must be exercised in order to do justice between the parties;
(b) the appeal was filed only one day out of time;
(c) Mr Bryce has pointed to no prejudice he will face if time to appeal is extended by one day;
(d) the appeal raises issues that are strongly arguable and, in these circumstances, strict compliance with the time limit will work demonstrable and substantial injustice to the Department, as it will lose the opportunity to have the matter determined according to its substantial merits, and
(e) the Department’s solicitor acted with reasonable promptness, once instructions to appeal were given.”
[56] Set out in Bryce, [6].
The meaning of ‘exceptional circumstances’ was considered in Yacoub v Pilkington (Australia) Ltd,[57] in the context of the Uniform Civil Procedure Rules 2005. Campbell JA, in the circumstances of that matter, said that it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. Dealing with the phrase in r 16.2(12) of the Rules, it is appropriate to have regard to the ‘System objectives’ and ‘Procedure before Commission’ in ss 3 and 354 respectively of the 1998 Act. The principles in Yacoub have been frequently applied in the Commission, in Presidential decisions dealing with r 16.2(12).[58] Campbell JA in that decision said:
“Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered.”
And:
“Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.”[59] (excluding citations)
[57] [2007] NSWCA 290 (Yacoub), [66] (per Campbell JA, Tobias JA and Handley AJA agreeing).
[58] See by way of example Vaughan, Bennett Constructions (NSW) Pty Ltd v Bond [2014] NSWWCCPD 32; 15 DDCR 376, Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now de-registered) [2009] NSWWCCPD 64.
[59] Yacoub, [66].
To the extent that the reason the matter came to be out of time was its rejection, when the appellant initially sought to lodge it, for procedural defects, this is a circumstance “regularly, routinely or normally encountered”. I cannot see that there is any one thing, or any combination of factors, in the history of the matter that constitutes ‘exceptional circumstances’.

Demonstrable and substantial injustice

Whether to lose the right to appeal would cause demonstrable and substantial injustice on the part of the appellant involves a consideration of the merits of the appeal, which are dealt with below. The grounds of appeal are set out at [20] above.
The three grounds described at ‘A’ are essentially a single ground described in three slightly different ways. The appellant submits the Arbitrator erred, in failing to find, on the evidence, that the appellant’s employment with the respondent was the last employment which was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the appellant’s injuries. The issue between the parties relates essentially to identification of the relevant employer, rather than the test governing ‘injury’.

THE MERITS OF THE APPEAL

Appellant’s submissions

The appellant sets out s 16 of the 1987 Act. The appellant submits that s 16 “does not operate to create an injury”, but rather “provides a means of determining when the injury is deemed to have happened, by whom the compensation is payable and other ancillary matters”, referring to Crisp v Chapman.[60] The appellant submits that, death or incapacity not having resulted from the found injury, the injury is deemed to have occurred at the time the worker makes a claim for compensation with respect to the injury. The appellant submits incapacity did not result from the injury, so it is deemed to have occurred on 30 January 2017, the date of claim, which postdates her employment with the respondent. The appellant submits that s 18 of the 1987 Act deems the liability of the employer to have arisen immediately before the worker ceased to be employed by it.[61] The appellant refers to NSW Maritime Authority (in the interests of Allianz Australia Insurance Limited Treasury Managed Fund) v Louis Sweeney by his Executrix and Beneficiary Elaine Joan Sweeney.[62] This submission leads to a conclusion that it does not matter when the appellant last worked for the respondent, 2014 or 2016, the injury is deemed to have occurred on the last day she was employed by the respondent.
[60] Appellant’s submissions, [6]–[7], citing Crisp v Chapman (1994) 10 NSWCCR 492 (Crisp).
[61] Appellant’s submissions, [9]–[17].
[62] [2010] NSWWCCPD 9 (Sweeney), [51]–[62].
The appellant submits that she worked for the respondent only at Long Bay, and employment at Long Bay was found to be the main contributing factor to the aggravation of the left hip condition. In her statement dated 30 May 2018, at [3], she “clarified the date she ceased work for the [r]espondent”. She said her last date of physical employment with the respondent was 25 August 2014, and her employment was terminated on 1 December 2014. Paragraphs [1]–[3] of that statement were admitted at the telephone conference on 5 June 2018. The respondent’s counsel decided not to cross-examine the appellant on her further statement. The appellant submits the last date of employment with the respondent was 25 August 2014. She submits this does not matter in any event, due to the combined operation of ss 16 and 18 of the 1987 Act.[63]
[63] Appellant’s submissions, [20]–[24].
The appellant submits that the respondent relied on a s 74 notice dated 24 April 2018,[64] which did not dispute that the appellant worked for the respondent between 1 July 1987 and 28 November 2014. The appellant submits the respondent’s counsel should have informed the appellant of the actual dates the appellant worked for the respondent. The appellant was confused about the actual dates when she worked, but this was clarified in her statement dated 30 May 2018.
[64] Reply, p 199.
The appellant submits there should be findings in her favour going to ‘injury’ and s 9A of the 1987 Act, with a deemed date of 30 January 2017, and an order for payment of the left hip replacement surgery.[65]
[65] Appellant’s submissions, [25]–[30].

Respondent’s submissions

The respondent submits the appellant’s grounds are “diffuse”, and do not specify the alleged errors with appropriate precision. The submissions are not directed to specific grounds. They seek to raise an argument not made at first instance (s 18 of the 1987 Act).[66] The respondent summarises the Arbitrator’s reasoning,[67] and the appellant’s submissions before the Arbitrator.[68] The respondent submits that raising s 18 at this stage is “impermissible”, and in any event s 18 is irrelevant to the issues in the matter.[69]
[66] Respondent’s submissions, [42] and [45].
[67] Respondent’s submissions, [47]–[69].
[68] Respondent’s submissions, [70]–[73].
[69] Respondent’s submissions, [88]–[89].
The respondent submits that its counsel did not owe a duty to the appellant to advise her when she worked for the respondent, in circumstances where she had made her own enquiries of the respondent.[70]
[70] Respondent’s submissions, [103].

The respondent refers to the appellant’s oral evidence. This was that she worked as a registered nurse on a casual basis, at Long Bay, for at least five months during 2016. The activities were of a “heavy and strenuous nature”, which “the appellant had also undertaken between February 2013 and August 2014”. Employment at Long Bay was the main contributing factor to the aggravation of the disease, “caused by heavy and strenuous work”. The last employer at Long Bay was not the respondent, and it is that last employer that should be liable. It submits the appeal does not have any prospects of success, and the application to extend time should be dismissed. Alternatively, if leave is granted, the appeal should be dismissed.

Appellant’s further submissions

The applicable timetable provided for lodgment by the appellant, of any submissions in reply, on or before 4 October 2018. No submissions were lodged by the appellant within that timeframe. On 11 October 2018, the appellant’s solicitor forwarded “Further Submissions” to the Registry, “for filing”. No application was made for the lodgment of submissions outside the timeframes contained in the timetable. The respondent forwarded an email to the Registry on 11 October, objecting to the appellant’s reliance on the further submissions. The respondent submits “the time for filing has expired”. It additionally submits the further submissions “are not submissions in reply”, and are served “in contravention to the directions”.
The further submissions refer to the security protocol that governs people visiting Long Bay, including the need for forms of identification, and a “bio-metric identification system” that includes capturing fingerprints, scanning irises and photographing the faces of visitors. After setting out these assertions, the appellant submits “The Respondent would be aware of the last date the Appellant worked for the Respondent.” (emphasis in original)[71]
[71] Appellant’s further submissions, [1]–[6].
The appellant again refers to the Arbitrator’s findings about the nature of the work the appellant carried out at Long Bay, and submits she “was a little confused as to her last date”. The appellant submits the appellant’s counsel should have “clarified with the Appellant that her last actual physical date of employment at Long Bay Gaol was 25.08.2014”. The appellant refers to the ‘model litigant policy’, and quotes at some length from authorities dealing with those principles. It submits “[t]he respondent does not operate a brothel, a fish and chip shop, a factory or anything else where knowledge of the identity of individuals working for them can be scant.” The appellant submits the Arbitrator made a jurisdictional error in ignoring relevant material, being when the appellant ceased work for the respondent, referring to Craig v South Australia.[72]
[72] [1995] HCA 58; 184 CLR 163.
The further submissions were filed late, and no application is made to rely on them in those circumstances. I accept that they cannot be appropriately described as submissions in reply. They make factual assertions about the security regime at Long Bay, which are unsupported by evidence, and were not raised previously. They are assertions that could possibly have been met by calling evidence below: Water Board v Moustakas.[73] The assertion that the respondent failed to act in accordance with its obligations as a ‘model litigant’ in the proceedings also is made here for the first time. It would be inappropriate to permit such issues to be raised for the first time in submissions in reply on appeal.[74] Elsewhere they largely restate submissions previously made.
[73] [1988] HCA 12; 180 CLR 491, [13].
[74] Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (Coulton), Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally).
In Bale v Mills[75] the Court of Appeal said:
“57.   The parties here, and their legal representatives, may perhaps be forgiven if there was any lack of clarity in the leave granted by the President. It is useful, however, to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given.
58.    Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position.
59.    Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court.”[76] (excluding citations)
[75] [2011] NSWCA 226 (Bale).
[76] Bale, [57]–[59].
The above statement of principle needs to be considered in the context of the Commission’s procedures, and s 354 of the 1998 Act. If a party seeks to put on additional submissions outside any timetable that has been set, it is appropriate that the party seek leave from the Commission, also notifying all other parties. The Commission can then consider the application with as much formality as is required in the circumstances.
The further submissions in the current matter were put on outside the time provided in the timetable, and they raise various matters well outside anything that could be regarded as submissions in reply. The appropriate course is that I ignore the further submissions dated 11 October 2018.[77] They would not have affected the result in any event.
[77] Bale, [61].

The legislation

Section 4 of the 1987 Act relevantly provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,
…”
Section 16 of the 1987 Act relevantly provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Section 18(1) of the 1987 Act provides:
“18 Special insurance provisions relating to occupational diseases
(1) If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.”

Section 18 of the 1987 Act

The appellant should not be permitted to rely on an argument based on s 18 on appeal, that argument not having been made before the Arbitrator.[78] The appellant has not sought leave in this regard.
[78] Coulton, [9]; Metwally, [7].
The argument would not, in any event, have assisted the appellant. The appellant’s attempt to use the deeming provision in s 18, in support of an argument that the respondent was the last relevant employer of the appellant, for the purposes of the ‘disease’ provisions, is misconceived. The decision in Sweeney, referred to by the appellant, raised a different issue, of whether a self-insurer was in a different position to an insurer, for the purposes of s 18. StateCover Mutual Ltd v Cameron[79] raised issues about the liability of insurers, in a case involving a metastatic melanoma, where the found injury was one subject to s 15 of the 1987 Act. The Court’s reasons, dealing with s 18, are equally applicable to a case such as the present one, involving injury where s 16 has application. Basten JA (Beazley P and Ward JA agreeing) said of s 18:
“Section 15(1)(a) identifies when the injury is deemed to have happened ‘for the purposes of this Act’; s 15(1)(b) identifies the employer, including where there may be more than one, which is liable. Section 18(1) qualifies the effect of s 15(1)(a) in one circumstance and only for the purpose of determining the insurer liable in respect of the compensation.”[80] (emphasis added)
[79] [2015] NSWCA 127; 13 DDCR 272 (Cameron).
[80] Cameron, [5].
The above is consistent with the clear words of s 18(1). His Honour also described the individual steps in the fact-finding process. Again, the passage is equally applicable to a case to which s 16 has application:
“The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation. Section 18 presumes that liability has been established on the part of a particular employer and then deems when liability has arisen, for the purpose of determining the insurer liable in respect of that compensation. Section 18 is not concerned with a determination of liability, nor with identification of the employer.”[81] (footnotes omitted) (emphasis added)
[81] Cameron, [18].

Identification of the employer

The above is consistent with Crisp, an authority relied on in the appellant’s submissions.[82] The above passages make it clear that, injury having been found pursuant to s 4 of the 1987 Act, ss 15 or 16 then apply, to identify a deemed date of injury and the employer who is liable to pay compensation. In the current matter, the Arbitrator identified an injury. He made a factual finding that certain activities carried out by the appellant, when performing duties at Long Bay, were “the main contributing factor to the aggravation and acceleration of a disease process in the left hip”.[83]
[82] Crisp, 495D–F.
[83] Decision, [71]–[72].
Consistent with the fact-finding process described in Cameron, it was then necessary that the Arbitrator deal with the matters governed by s 16 of the 1987 Act, identification of a deemed date of injury and of the employer “liable to pay compensation”. The “employer who last employed the worker” in relevant employment, having regard to the Arbitrator’s finding on injury, was the employer who last employed the appellant in the activities at Long Bay, which the Arbitrator had found to be “the main contributing factor to the aggravation and acceleration of a disease process in the left hip”.[84]
[84] Decision, [88].
The respondent announced, through its counsel at the arbitration hearing, that it did not employ the appellant during any period of employment at Long Bay during 2016 (see [8]–[9] above). The appellant, in her statement dated 30 May 2018, appeared to accept the accuracy of this. She stated that she had checked with the “pay office for Justice Health” and also checked her “financial records”. Her last date of physical employment with Justice Health was “on the 25.08.2014”, and her employment with Justice Health “was terminated … on the 01.12.2014”.[85] An email from Ms Ghittino of Justice Health, dated 21 February 2017, said the appellant worked as “a casual Registered Nurse from 2012 to 2014 at Long Bay 13 Wing”. It said the appellant’s “last shift at [Justice Health] was 25/08/2014”.[86] There is no evidence to the contrary.
[85] Appellant’s statement 30 May 2018, in AALD 31.5.18.
[86] ARD, p 63.
The Arbitrator correctly observed “I am left to deal with the issue of whether the [appellant] undertook strenuous work at Long Bay Gaol for several months in 2016, and if so, who was her employer”.[87]
[87] Decision, [79].
The evidence on that topic was in a somewhat confused state. The appellant’s statement dated 28 December 2015 described her employment at Long Bay as running from “February 2013 to July 2014”.[88] Her statement dated 1 March 2016 was consistent with this.[89] Her statement dated 9 February 2017 (the first that post-dated 2016) referred to her “duties at Long Bay Jail, which ended on the 28.11.2014”.[90] The appellant’s statement dated 16 May 2018 (see [6] above) said she had additionally worked for Justice Health for five months in 2016, at Long Bay. In cross-examination on 28 May 2018, the appellant gave evidence of working at Long Bay in 2016.[91] In her statement dated 30 May 2018, at [3] (which was admitted) she said her evidence of working “for Justice Health between March 2016 and October 2016” was wrong (see [72] above). Neither her evidence in cross-examination, or her statement dated 30 May 2018, addressed the proposition (which had been raised by the Arbitrator at the arbitration hearing) of whether she may have worked at Long Bay in 2016 for an entity other than Justice Health (such as an agency). Her statement dated 30 May 2018 does not specifically state that she did not work at Long Bay in 2016. It states she did not work for Justice Health after 2014.
[88] Appellant’s statement 28 December 2015, [21], in ARD, p 33.
[89] Appellant’s statement 1 March 2016, [11], in ARD, p 45.
[90] Appellant’s statement 9 February 2017, [18], in ARD, p 51.
[91] T1 44.20–34, 51.15–54.11.
The Arbitrator set out the evidence dealing with whether the appellant worked at Long Bay in 2016.[92] He noted that on the first occasion when she gave such evidence in cross-examination, she actually volunteered it, correcting the date which had been suggested to her by the cross-examiner.[93] He noted that proposition was not specifically denied in the statement dated 30 May 2018.[94] He noted the appellant did not give any reason for why her evidence in cross-examination, or in her statement dated 16 May 2018, “is now wrong”. He said he gave “careful consideration as to whether the [appellant] was genuinely confused”. Ultimately, he accepted the evidence in cross-examination and in the statement dated 16 May 2018, that the appellant had returned to work at Long Bay “as a registered nurse on a casual basis for at least five months during 2016”.[95] The evidence did not suggest the appellant was employed by the respondent at that time.
[92] Decision, [81]–[85].
[93] Decision, [82], referring to T1 44.20–34.
[94] Decision, [85].
[95] Decision [86]–[87].
For the appellant to succeed against the respondent, in the circumstances of this case, it was necessary that she establish ‘injury’ in the relevant sense pursuant to s 4(b)(ii) of the 1987 Act. It was then necessary that she establish that the respondent was “the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, or deterioration” that comprised the injury: s 16(1)(b) of the 1987 Act. The Arbitrator’s finding, that he was not satisfied the respondent was the last such employer, was well available on the evidence. The appellant’s grounds and submissions could not establish appealable error, applying the principles discussed at [22]–[25] above.
The ground of appeal described as ‘B’ (see [20] above) refers to the Arbitrator’s treatment of the appellant’s statement dated 30 May 2018, which is described as “uncontested”. In her submissions, the appellant refers to the fact that the respondent did not seek to cross-examine her on that further statement (see [51] above). The appellant submits the Arbitrator failed to give this statement appropriate weight.
The appellant carried an onus to establish, amongst other things, that the respondent was the last relevant employer for the purposes of s 16(1)(b). By the time of the telephone conference on 5 June 2018, at which admission of that statement was dealt with, the proceedings had otherwise run to conclusion, the appellant had given her evidence in cross-examination and the parties had addressed. The evidence regarding whether the respondent was the last relevant employer is summarised at [74] above. To describe the appellant’s evidence in her statement dated 30 May 2018 at [3] as “uncontested” is simply artificial. There was significant evidence and submissions to the contrary. There was clearly an issue between the parties on whether the respondent was the relevant last employer.
There is no right to cross-examine in the Commission, such a course would have required leave: Aluminium Louvres & Ceilings Pty Limited v Zheng.[96] The respondent’s counsel, at the telephone conference dealing with this further statement, observed that it did not contradict the proposition that the appellant worked at Long Bay in 2016, only that the appellant had “physical employment” with the respondent after 25 August 2014. It was not inconsistent with the proposition that the appellant could have worked with some other entity at Long Bay in 2016, consistent with her evidence at the arbitration hearing.[97]
[96] [2006] NSWCA 34; 4 DDCR 358.
[97] T2 5.10–19.
In Quadi v The Reject Shop (Aust) Pty Ltd[98] Roche DP, relying on Daw (NSW) v Toyworld Pty Ltd,[99] said that the rule in Browne v Dunn “does not require that matters about which notice has already been given be put in cross-examination”. The case which the respondent sought to make out was, by the time of the telephone conference on 5 June 2018, clear.
[98] [2008] NSWWCCPD 3.
[99] [2001] NSWCA 25; 21 NSWCCR 389, [56].
In these circumstances, I do not see that any significance can attach to the failure by the respondent to seek to cross-examine on the document. The Arbitrator considered the statement dated 30 May 2018 in his reasons. The other evidence which he accepted was not, on a literal reading, inconsistent with the statement dated 30 May 2018 at [3]. There is no error established in how the Arbitrator considered that statement.
It follows from the above that the appeal would not succeed on its merits. It does not have any prospects of success.

CONCLUSION

The following factors support the extension of time:
(a) the respondent does not argue there is prejudice, and
(b) the delay is modest.
The following factors militate against the extension of time:
(a)    the explanation of delay is inadequate;
(b)    the respondent has a vested right to retain the decision in its favour unless the application for an extension is granted;
(c)    ‘exceptional circumstances’ are not established;
(d)    the appeal does not have prospects of success, and
(e)    in such circumstances, loss of the right to appeal does not cause the appellant demonstrable and substantial injustice.

The factors overall do not favour the extension of time. Of particular importance are the lack of prospects of success, and the consequential absence of demonstrable and substantial injustice if the extension is refused.

DECISION

The appellant’s application to extend the time for making an appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

Michael Snell

Deputy President

5 November 2018