Bindaree Beef Pty Limited v Parkes
[2017] NSWWCCPD 31
•18 July 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Bindaree Beef Pty Limited v Parkes [2017] NSWWCCPD 31 | |
| APPELLANT: | Bindaree Beef Pty Limited | |
| RESPONDENT: | Gregory Derel Parkes | |
| INSURER: | CGU Workers Compensation (NSW) Limited (on risk for alleged injury in 2006) and Allianz Australia Workers Compensation (NSW) Limited (on risk otherwise) | |
| FILE NUMBER: | A1-5106/16 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 20 February 2017 | |
| DATE OF APPEAL DECISION: | 18 July 2017 | |
| SUBJECT MATTER OF DECISION: | Whether Arbitrator’s decision amounts to a final judgment or order or is interlocutory; whether leave required; whether leave should be granted | |
| PRESIDENTIAL MEMBER: | Acting Deputy President Larry King SC | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Hall and Wilcox |
| Respondent: | Penny Waters Armstrong Legal | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal refused. 2. Matter remitted to the Arbitrator for continuation of hearing in accordance with his directions. | |
INTRODUCTION
By Application to Resolve a Dispute filed on 5 October 2016 the present respondent, Gregory Derel Parkes, sought $66,000 in lump sum compensation in respect of an alleged 33% whole person impairment said to result from injuries to his right shoulder, left shoulder and cervical spine which he allegedly suffered in the course of his employment with the present appellant at its abattoir at Inverell. It is not necessary to give any comprehensive statement of the nature of the respondent’s claim for present purposes. It is sufficient to say that an allegation of aggravation of a disease process was made.
The proceedings were heard by an Arbitrator, Mr Egan, who on 20 February 2017 delivered a very comprehensive statement of reasons extending to 184 paragraphs and occupying 24 pages.
In paras [178]–[182] he set out, conveniently, findings which he had earlier made and expressed as to the elements of the respondent’s claim. Shortly stated, he found that the respondent had suffered injury to his right shoulder, left shoulder and cervical spine in the precise fashion articulated, which it is not necessary to fully restate herein. He also found that the respondent had not suffered an injury to his left shoulder in effect through favouring his right arm because of the right shoulder injury. This was described as “… the claimed consequential condition in the left shoulder …”: para [180].
Further, the Arbitrator gave a similar decision in respect of the allegation of injury to the cervical spine “… due to any consequential effects of the left or right shoulder injury”: para [182].
The learned Arbitrator made awards in the appellant’s favour in respect of the alleged consequential injuries to the respondent’s left shoulder and neck. However, in respect of his finding as to injury other than “consequential injury” to the respondent’s shoulders and neck, it was necessary that there be a referral to an AMS. The learned Arbitrator noted in para [183] that the only matters that could be so referred were those occurring on 12 August 2012, and because he saw a need either for agreement between the parties as to the nature of the referral or, failing that, a determination by him as to the nature of the referral following further argument, he listed the matter for a teleconference: para [184].
The appellant has appealed against the Arbitrator’s decision. That appeal and the written submissions which have been put on in support of it challenged the findings of injury which will include the foundation of the proposed referral to an AMS and in turn the foundation of any assessment in favour of the respondent should one be made favourably after the referral. To that extent it is fair to say that if the appeal were to go forward to final decision and the appellant were to succeed, that would be an end of the proceedings subject only to the possibility of appeal to the Court of Appeal.
The respondent has challenged the appellant’s entitlement to appeal from the Arbitrator’s decision. In his written submissions he has argued that the Arbitrator’s decision does not constitute a judgment or order finally determining the rights and liabilities of the parties inter se. This follows from the fact that the right asserted is an entitlement to statutory lump sum compensation and the Arbitrator’s decision is properly to be seen as a step along the way to a final judgment or order resolving that controversy between the parties. At the moment there is no such judgment or order saying one way or the other that the respondent has or has not an entitlement to such compensation. The respondent submits that the appeal could only go forward with the leave of the Commission and that leave should not be granted. Instead, the step contemplated by the learned Arbitrator of determining the nature of the referral to an AMS should take place.
The appellant put on submissions in reply to the respondent’s submissions. In them (para [5]) it was suggested that the firm findings on injury, although arguably interlocutory, could be seen as final. However, this submission was hardly a robust or confident one, and was preceded by submissions in paras [3] and [4] referring to authorities which indicated that the Arbitrator’s decision in the proceedings thus far was interlocutory.
The appellant’s submissions in reply went on (para [6]) to put that if the Arbitrator’s decision be regarded as interlocutory, it was open to the Commission to give leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant’s position can, I think, realistically be stated by saying that it contends that the case is a proper one for leave because if the appeal goes forward and is successful the time, trouble and expense of further disposition of the claim by way of the medical assessment certificate of an AMS and consequential final orders will be avoided. Implicit in this approach, of course, is the unstated proposition that the appeal is a strong one, at least as a matter of first or preliminary impression. The appellant also put that it was in a quandary or dilemma, because there was a likelihood that if it did not appeal against the findings of injury now, it would be out of time to do so if it waited until a relevant final order were made.
THRESHOLD MATTERS
Were it necessary to be satisfied that s 352(3) and (4) of the 1998 Act are met for present purposes, the size of the respondent’s claim would suffice for that. It is, however, to say the least doubtful whether this consideration is critical to the determination of a question of leave. I do not purport to decide that question, and content myself with the observation that if the threshold requirements need to be satisfied they are satisfied.
ON THE PAPERS
The appellant in its written submissions says that it believes the appeal can be dealt with on the papers. The respondent seeks an oral hearing. Ordinarily, I would be inclined to accede to a request for an oral hearing, even though that might be seen to be erring in any given case on the side of caution, and in many cases erring substantially on the side of caution. But since there is a preliminary question of leave which I propose to deal with, rather than a full appeal, I think this is an appropriate case in which to proceed on the papers.
FRESH EVIDENCE
The appellant has not indicated that it wishes to advance fresh evidence, but the respondent has done so. Again, because a preliminary question of leave is to be dealt with and at least, as I read the fresh evidence which the respondent would endeavour to advance, it is not material to that question, I will not entertain it. However, I wish to make it plain that in the event that an appeal ultimately goes forward, this ruling of mine is confined to the determination of a question of leave and is certainly not intended to preclude reliance by either party of fresh evidence on any such final appeal.
CONSIDERATION AND CONCLUSION
In my opinion it is quite clear that the decision of the learned Arbitrator is interlocutory. A number of decisions in this Commission support that conclusion, including in particular the decision referred to in para [4] of the appellant’s submissions in reply, Moore v The Greater Taree City Council [2009] NSWWCCPD17. The approach in this jurisdiction is entirely consistent with the well-established approach in the Supreme and District Courts and the authorities relevant to the statutory provisions in those jurisdictions, of which perhaps the best known is the decision of the High Court in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423, especially at 440. See also Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 at [11] per Gibbs J where his Honour states “... the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” This test has been frequently applied in the Commission (see for example P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12).
Accordingly, the appellant’s submissions in reply were correct to move on to the need for leave and to refer to s 352(3A) of the 1998 Act. Leave is required.
Section 352(3A) is in the following terms:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Although this provision is somewhat tersely worded, it gives the Commission a discretion. It is clear that the critical question is whether the grant of leave the appellant needs “… is necessary or desirable for the proper and effective determination of the dispute”. The power to grant leave depends upon a finding either or both of necessity or desirability as required by the second sentence of s 352(3A).
After some hesitation I have come to the view that it is neither necessary nor desirable that leave be granted. I have not reached that view without an awareness that there is much to be said for the appellant’s application for leave. It is true that if the appellant were to succeed in overturning the learned Arbitrator’s findings as to injury altogether and securing the substitution of an overall award for the respondent, the need for referral to an AMS would disappear. This is an important consideration, as decisions of the Commission to which I do not think it is necessary to refer to have noted, and which can be seen in the common law courts as well, for example, in the decision of the Court of Appeal in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104; 54 NSWLR 207.
But, in my judgment, the force of that consideration is overborne by a number of countervailing considerations. They are these:
● First, not only is the Arbitrator’s decision plainly interlocutory and a step along the way as the respondent puts, there is no certainty that an appeal against it, if successful, would result in an overall award for the appellant rather than a remitter or a variation of the Arbitrator’s decision which nonetheless requires referral to an AMS.
● Secondly, although not a critical consideration and really a matter of initial impression, upon my reading of the comprehensive and careful reasons thus far of the learned Arbitrator and the evidence, it is by no means clear that the appellant’s appeal will be a strong one. The analogy may be imperfect, but just as the apparent merit of an appeal, on preliminary as distinct from final consideration, is material to a question whether to grant a stay of proceedings in the Court of Appeal (see, for example, Marinos v Mimigeannis [2016] NSWCA 241), I think it is a legitimate factor to have at least some regard to in the present context.
● Thirdly, the fear on the part of the appellant that it will be out of time to appeal against any actual final judgment or order which might ultimately be made in the respondent’s favour is unfounded. If an interlocutory decision is essential to a later final decision, it is well established that it may be appealed against when an appeal is brought within time following the final judgment or order. A number of cases demonstrate this and it is only necessary to refer to Ramton v Cassin (1995) 38 NSWLR 88. No decision such as I am about to make could be intended to fetter, nor indeed could fetter, a right of appeal against any relevant interlocutory decision at the conclusion of the proceedings. So much was emphasised by the decision of the High Court in refusing special leave in Ramton. Speaking for the Court, Dawson J raised the possibility that a refusal of leave could, if necessary, be construed as an adjournment of an appeal brought within time following the interlocutory decision: Ramton v Cassin (1996) 70 ALJR 558.
● Finally, when it must be seen to be clear that if the learned Arbitrator’s decision as to injury in respect of the respondent’s shoulders and neck stands, referral to an AMS, particularly one the nature of which requires agreement or further decision, may not necessarily deliver any lump sum compensation to the respondent, it is difficult to see that a hearing of the appeal at this stage is either necessary or desirable. It may be that the appellant will effectively win the case through an AMS’s medical assessment certificate.
ORDERS
For the above reasons I make the following Orders:
(a) Leave to appeal refused.
(b) Matter remitted to the Arbitrator for continuation of hearing in accordance with his directions.
Larry King SC
Acting Deputy President
18 July 2017
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