Berry v South Eastern Sydney Area Health Service

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Berry v South Eastern Sydney Area Health Service [2006] NSWWCCPD 33
APPELLANT:  Alison Berry
RESPONDENT:  South Eastern Sydney Area Health Service
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC13049-04
DATE OF ARBITRATOR’S DECISION:          29 December 2004
DATE OF APPEAL DECISION:  1 March 2006
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time to make an appeal; Rule 77 of the Workers Compensation Commission Rules 2003; sections 36, 37 and 38 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      Phillips Fox, Lawyers
Respondent:   Lee, Peisley & Foley

ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 29 December 2004, is refused.
No order is made as to the costs of the appeal.

APPEALS WERE LODGED BY EACH OF THE PARTIES AGAINST THE DECISION

OF THE ARBITRATOR, DATED 29 DECEMBER 2004. BOTH APPEALS WERE
DETERMINED TOGETHER. ALL RELEVANT DETAILS IN RELATION TO EACH
APPEALS ARE SET OUT IN THE REASONS IN APPEAL CITED BELOW. FOR
ORDERS MADE IN THE APPEAL LODGED BY SOUTH EASTERN SYDNEY AREA

HEALTH SERVICE, SEE: South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.

REASONS FOR DECISION

All relevant information and reasons for the decision in this appeal are set out in South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.

ORDERS

Leave to appeal the decision of the Arbitrator, dated 29 December 2004, is refused.

No order is made as to the costs of the appeal.

Gary Byron

Deputy President
1 March 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

CaseChat Overview and Summary

In this case, Alison Berry appealed against the decision of an arbitrator in the Workers Compensation Commission, with South Eastern Sydney Area Health Service as the respondent. The matter related to workers' compensation claims, and the insurer involved was GIO Workers Compensation (NSW) Limited. The dispute arose from an arbitrator's decision dated 29 December 2004, and the appeal was heard on 1 March 2006. The key issues in the appeal were the refusal of leave to appeal the arbitrator's decision and the extension of time to make an appeal, which were governed by Rule 77 of the Workers Compensation Commission Rules 2003, and sections 36, 37 and 38 of the Workers Compensation Act 1987.

The court was required to determine whether the appellant, Alison Berry, was entitled to leave to appeal the decision of the arbitrator, and whether an extension of time was permissible under the relevant legislative provisions. The court considered the arguments put forward by both parties, including the timeliness of the appeal and the merits of the case. The respondent, South Eastern Sydney Area Health Service, argued that the appeal was not made within the prescribed time limit and that there were no exceptional circumstances warranting an extension. The appellant, on the other hand, contended that there were valid reasons for the delay and that the appeal should be heard on its merits.

The court, after reviewing the relevant provisions of the Workers Compensation Act 1987 and the Workers Compensation Commission Rules 2003, found that the appellant had not demonstrated exceptional circumstances that would justify an extension of time for the appeal. The court held that the appeal was not lodged within the required timeframe and that there were no grounds to grant leave to appeal the arbitrator's decision. Consequently, the appeal was dismissed, and no order was made as to the costs of the appeal.

The final orders of the court were to refuse leave to appeal the decision of the arbitrator, dated 29 December 2004, and to make no order as to the costs of the appeal. The detailed reasons for the decision were set out in a separate determination, South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32, which provided further context and analysis of the legal issues involved in the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established