Caterair Airport Services Pty Ltd v Alexakis
[2005] NSWWCCPD 73
•20 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Caterair Airport Services Pty Limited v Alexakis [2005] NSW WCC PD 73
APPELLANT: Caterair Airport Services Pty Limited
RESPONDENT: Theodorus Constantine Alexakis
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC6597-04
DATE OF ARBITRATOR’S DECISION: 8 April 2005
DATE OF APPEAL DECISION: 20 July 2005
SUBJECT MATTER OF DECISION: Power to ‘strike out’ a matter pursuant to Workers Compensation Commission Rules 2003; reconsideration of decision; litigant in person; procedural fairness.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Hunt & Hunt Lawyers
Respondent: Not Represented on Appeal
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 8 April 2005, is revoked and the matter is remitted to the Arbitrator for reconsideration in accordance with these reasons.
THE APPEAL
Mr Alexakis lodged an ‘Application to Resolve a Dispute’ in the Commission on 20 April 2004. The application concerns a claim for workers compensation benefits made against his employer, Caterair Airport Services Pty Limited, whose Insurer is Vero Workers Compensation (NSW) Limited. Mr Alexakis’ claim is for weekly benefits compensation, medical expenses and lump sum compensation for permanent impairment. Caterair denies liability for the claim.
The dispute was referred to an Arbitrator who held a number of conferences with the parties. On 5 April 2005 the Arbitrator directed that the matter be ‘struck out’ pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003 (‘the Rules’). On 8 April 2005 the arbitrator issued a ‘Direction’, re-listing the matter for a conciliation conference and apparently, although not expressly, revoking the earlier decision to ‘strike out’ the claim. The ‘Direction’ stated that the “purpose of this conciliation conference is to determine whether or not the application should be struck out” and invited the parties to make submissions on this issue. Two further ‘Directions’ listing the matter for further conference, were issued on 19 April and 26 April 2005.
Caterair appeals against the Arbitrator’s decision to re-list the matter for a further conciliation conference. Caterair argues that the direction to strike out the matter, made on 5 April 2005, finally determined the dispute and that a ‘Certificate of Determination’ should be issued to that effect. They also claim a denial of procedural fairness in relation to the Arbitrator’s direction to re-list the matter on 8 April 2005.
Mr Alexakis wants the matter to proceed before the Arbitrator.
The decision to ‘reinstate’ the matter in the Commission after striking out the claim, fundamentally affects the parties rights and entitlements in relation to the substantive claim for compensation. The amount of compensation in dispute is in excess of $5000 and concerns 100% of Mr Alexakis’ claim therefore section 352(2) of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) is satisfied. Leave to appeal is granted.
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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· Did the Arbitrator err in making an order to ‘strike out’ the matter?
· Did the Arbitrator err in revoking the order to ‘strike out’ the matter?
· Has there been a denial of procedural fairness to the Employer?
Did the Arbitrator err in making an order to ‘strike out’ the matter?
Mr Alexakis, an interpreter in the Greek language, a legal representative of Caterair and the Arbitrator attended the telephone conference on 5 April 2005. Mr Alexakis asked the Arbitrator to take into account a document that he claimed to have filed in the Commission on 30 March 2005. This included a statement, a medical report and advice of the availability of his new legal representative, Ms Chrysanthou. The Arbitrator did not have the document in front of him nor did the legal representative of Caterair. From a reading of the transcript of the telephone conference it is clear that Mr Alexakis became increasingly frustrated with the way the conference was proceeding as he had expected the document to be before the Arbitrator.
The transcript of the telephone conference records the Arbitrator stating, while Mr Alexakis was in attendance, that “I have no choice but to strike the matter out today” (at page 7). Mr Alexakis then dropped out of the conference and the Arbitrator continued the conference with the legal representative of Caterair. The Arbitrator says (at page 9 of the transcript) “I’ve informed Mr Alexakis that I have to strike the matter out. I, of course, will be confirming that in writing”. The Arbitrator then variously advises the legal representative of the Insurer that he “will issue a direction that the matter be struck out” (at page 10), and the interpreter that “the matter is struck out” (at page 12).
No direction or order to ‘strike out’ the matter was ever committed to writing by the Arbitrator, nor was a ‘Certificate of Determination’ containing such an order issued. The transcript reads as if the Arbitrator intends to make an order to ‘strike out’ Mr Alexakis’ application in writing following the telephone conference. Accepting for the purpose of the appeal, that the Arbitrator, at the telephone conference, did in fact make an order to ‘strike out’ the application, there is no evidence in the transcript, or in the written reasons issued for the later ‘Direction’, that the Arbitrator exercised the power to ‘strike out’ the application properly and in accordance with the Rules.
The exercise of the power to strike out a claim is dependent upon non-compliance with the Rules. Rule 6(4) provides that:
“If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
The Arbitrator in this matter identified Mr Alexakis’ failure to comply with the Rules as his failure to make an application to amend his ‘Application to Resolve a Dispute’ to include a claim for ‘loss of sexual function’. Mr Alexakis also failed to provide any reasons as to why the amendment should be allowed. There is no evidence the Arbitrator made a determination that, as a result of such non-compliance with the Rules, the proceedings were a nullity, in accordance with Rule 6(4). Such a determination is a prerequisite to striking out the claim and has been discussed in a number of appeal decisions dating back to November 2004 (see Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83; Forman v Moree Plains Shire Council [2004] NSW WCC PD 85; Haidary v Wandella Pet Foods Pty Limited [2004] NSW WCC PD 94). In the absence of such a determination, a failure to comply with the Rules is to be treated only as an irregularity.
In summary, the purported ‘strike out’ of Mr Alexakis’ application is flawed for a number of reasons. The order was not reduced to writing, as indicated by the Arbitrator, nor were a ‘Certificate of Determination’ or adequate reasons for the decision issued (section 294 of the 1998 Act or Rule 73 of the Rules. The Arbitrator did not consider whether Mr Alexakis’ failure to comply with the Rules should be treated as an irregularity, or whether it made the proceedings, or any step in the proceedings, a nullity. These errors are sufficient to support a finding that the purported ‘strike out’ is itself a nullity, or should be set aside on review. The conduct of the matter following the telephone conference, discussed below, strengthens this view.
Did the Arbitrator err in revoking the order to ‘strike out’ the matter?
The Commission file does, in fact, contain the original of the documents Mr Alexakis sought to rely upon at the conference of 5 April 2005, namely a statement by him and attachments, date stamped ‘Received 30 March 2005’. Also attached is the business card of Ms Sue Chrysthanou, Barrister. There is no explanation on the file as to why this document was not put before the Arbitrator for the telephone conference of 5 April 2005, when it had been received in the Commission on 30 March 2005. If it had been put before the Arbitrator the telephone conference, on which it appears Mr Alexakis hung up in frustration, may have proceeded differently.
Following the telephone conference on 5 April 2005, and on the same day, the Registrar met with Mr Alexakis at his request and made a copy of the document in question. She placed a written ‘Memorandum’ of her discussion with him on the Commission file, documenting his stated concerns about the fact that the Arbitrator did not have the document before him. The Registrar’s ‘Memorandum’ states that she would undertake to advise the Arbitrator of the existence of the document and that it was filed on 30 March 2005. The Registrar’s Memorandum states that she contacted the Arbitrator following her discussion with Mr Alexakis, then “Contacted Mr Alexakis as agreed to advise outcome of discussion with Arbitrator. Read him content of letter of 5-4-5”. There follows the said letter of 5April 2005 from the Registrar to Mr Alexakis, which relays the Arbitrator’s alleged concerns that Mr Alexakis “may not have been able to be fully involved in the discussion at the teleconference this morning, as you were not legally represented”. This letter, not copied to Caterair, then indicates that a further “face to face meeting between the parties” would be held. There is no reference to the fact that the Arbitrator had, on that same day and in the presence of the parties, allegedly already made an order that the matter be ‘struck out’.
It appears that the Arbitrator purported to revoke his decision to ‘strike out’ Mr Alexakis’ claim after seeing the Registrar’s Memorandum and the document filed by Mr Alexakis on 30 March 2005. This is despite the fact that the Arbitrator was aware that Caterair did not have a copy of that document, and thus could not comment on it, at the telephone conference on the same day.
On 8 April 2005 the Arbitrator issued a ‘Direction’ advising the parties that the matter would be listed for another conciliation conference. The purpose of this was to allow consideration of whether the matter should be ‘struck out’. The reasons given were, in part, as follows:
“At the teleconference of 5 April 2005, I directed that, further to Rule 6(4), the matter be struck out, as the Applicant had not complied with Commission Rules and the present application was not ready to proceed.
The Applicant was not able to continue his participation in that teleconference and may not have fully understood the effects of such a Direction. I am mindful of the fact that the Applicant was un-represented and that he has advised that his state of health prevented his continued participation at the teleconference.”Caterair submits that the Arbitrator had no power to re-list the matter for a further telephone conference as he had finally determined it at the telephone conference of 5 April 2005. Striking out the proceedings under Rule 6 of the Rules 2003 does not prevent the proceedings from being recommenced (Rule 6(7)). Caterair submits that Mr Alexakis had two choices following the ‘strike out’, namely to appeal that decision, or to commence fresh proceedings when he was ready to proceed.
This submission is clearly correct and Mr Alexakis was entitled under the 1998 Act to follow either path. It seems that the Arbitrator, of his own motion, chose to proceed by way of issuing a ‘Direction’ that the matter be listed for a conciliation conference, after considering the Registrar’s Memorandum and Mr Alexakis document of 30 March 2005. The power that the Arbitrator was exercising in this reversal of his earlier decision is not referred to in the documentation. I can only assume that either he did not consider that he had in fact already made the ‘strike out’ order, or that he was exercising his power to reconsider the decision pursuant to Section 350(3) of the 1998 Act, which provides that:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The Arbitrator is entitled to reconsider the decision to ‘strike out’ Mr Alexakis’ application and to re-list the matter for a conciliation conference. Had those decisions complied with procedural fairness, they should stand. The difficulty with the Arbitrator’s ‘Direction’ of 8 April 2005 is, as Caterair submits, that it had no notice of the decision to re-list, the material on which it was based, nor of Mr Alexakis’ personal submissions in relation to it.
Has there been a denial of procedural fairness to Caterair?
Caterair complains that:
“. . . on the face of the direction made on 8 April 2005 there is reference to some communication by the Applicant with the Commission, which has occurred subsequent to the direction previously made on 5 April 2005 striking the matter out . . . . The Appellant had no involvement in or knowledge of these communications, which on the face of it, gave rise to the revocation of the earlier direction”.
Mr Alexakis had been legally represented up until December 2004, prior to which there had been at least two telephone conferences, a face-to-face conciliation and a number of adjournments. By the time of the telephone conference on 5 April 2005 the legal representatives of Caterair had attended the Commission a number of times and filed voluminous evidence and submissions in reply to Mr Alexakis’ claim. Caterair submits that it:
“. . . has been put to great expense in the conduct of this litigation and has on a number of occasions had present or otherwise available at the aborted and/or adjourned teleconferences and conciliation conferences legal representatives and representatives of the insurer. This is clearly contrary to the (published) way in which matters are supposed to proceed in the Commission”.
I agree with this submission. It was reasonable for Caterair to assume that it could rely upon the Arbitrator’s stated intention, on 5 April 2005, to ‘strike out’ the matter. At the least it was reasonable to assume that this order would not be reversed on the basis of documents and representations made to the Arbitrator in its absence and not conveyed to it.
As noted above, Mr Alexakis was legally represented from the time of application until about December 2004. Thereafter followed a difficult period where he advised that he was unable to obtain legal representation. It is not clear whether he is now legally represented and will have this assistance when the matter is put back before the Arbitrator. The Commission has an ‘Access and Equity’ policy (published on the Commission’s website and widely available) which sets out the way in which it will assist an un-represented party to ensure fairness in all proceedings. Every effort will be made to ensure that a person can participate in Commission proceedings without a legal representative, if they wish. The fact of not being legally represented must not cause any disadvantage. Advice is also given as to where legal representation may be obtained. In this matter there may have been errors made in the course of efforts to support Mr Alexakis because he did not have legal representation at all times. However, the conduct of matters in the Commission is always governed by procedural fairness and it is not appropriate for any party, whether represented or not, to put submissions to an Arbitrator that are not disclosed to the other party. This is relevant to matters of both substance and procedure.
Caterair is correct to complain about a denial of procedural fairness. Mr Alexakis had disconnected from the telephone conference on 5 April 2005, and the Arbitrator continued. This in itself is not a denial of procedural fairness as Mr Alexakis had the opportunity to participate in the conference and indeed the Arbitrator tried to reconnect him. The Arbitrator on 8 April 2005 issued a ‘Direction’ that was not consistent with the orders he allegedly made at the telephone conference. Procedural fairness demands that a party is entitled to know the case against it. After the telephone conference the Arbitrator effectively received submissions from Mr Alexakis in the form of a ‘Memorandum’ from the Registrar, and a copy of Mr Alexakis’ document (dated as received in the Commission on 30 March 2005). To reverse his decision to ‘strike out’ the matter on the basis of these documents and his discussions with the Registrar, without giving notification to Caterair, and without providing them with any opportunity to make representations on the issues, is unreasonable, a denial of procedural fairness and an error of law.
What should have happened in this matter was full disclosure. It is absolutely fundamental to the fair, transparent and lawful conduct of proceedings in the Commission that all evidence and submissions put to an Arbitrator are disclosed to the other party. The Registrar, having dealt personally with Mr Alexakis’ complaint about the ‘missing’ document and the conduct of the telephone conference, should have properly referred the matter to the Arbitrator. It was for the Arbitrator to ensure, given that he had already made an order in the matter and that he was responsible for the conduct of the proceedings, that this information was conveyed to the other side, Caterair. The Arbitrator knew that Caterair did not have a copy of Mr Alexakis’ submissions as its legal representative had told him this at the telephone conference. If he had advised Caterair of the Registrar’s Memorandum, ensured that the statement of 30 March 2005 was served, and invited submissions on a proposed revocation or reconsideration of the ‘strike out’ order made on 5 April 2005, then no error would have been made. No correspondence or telephone contact with Mr Alexakis about revoking the Arbitrator’s orders should have occurred without also notifying the other side.
The ‘Direction’ issued on 8 April 2005 must be set aside. While this is the order sought by Caterair it does not have the intended result. As the ‘strike out’ was ineffective, the matter must now be re-listed in order that the ‘strike out’ be properly considered or that the substantive dispute be determined. Whether or not the proceedings should be ‘struck out’ for non-compliance with the Rules of the Commission, or whether the substantive issues proceed to be resolved or determined, remains to be considered by the Arbitrator. Due to the lack of procedural fairness in the second direction (8 April 2005), and the failure to comply with the 1998 Act and the Rules in the first direction (5 April 2005), the matter is now effectively back where it was four months ago, before either direction was issued.
FUTURE CONDUCT OF THE DISPUTE
This matter has now been on foot in the Commission for over a year and has made little progress. Mr Alexakis has had ongoing difficulties in obtaining legal representation. He has now had ample opportunity to obtain representation. The Arbitrator has explained to him, on more than one occasion (with the assistance of an interpreter in the Greek language), the nature of the proceedings in the Commission.
The matter should be listed as soon as possible for a face-to-face conciliation and arbitration in accordance with the guideline on the ‘Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’. The listing of matters expeditiously in the Commission is not dependent upon the availability of legal representatives. It is clear from the history of this matter that there have been a number of adjournments to allow for Mr Alexakis to obtain representation or otherwise prepare for the proceedings. A date should now be found to accommodate both the legal representatives of Caterair, Mr Alexakis and his legal representative (if he continues to have one).
A copy of the Memorandum of the Registrar dated 5 April 2005 and her letter to Mr Alexakis dated the same day should be copied to the legal representative of Caterair. A copy of Mr Alexakis’ submission received in the Commission on 30 March 2005 must be sent to Caterair, if it has not already been served.
Both parties are now on notice that the issue of whether the matter should be ‘struck out’ remains on foot and therefore they must be prepared to make submissions on this issue. Both parties have also filed a large amount of documentary evidence and submissions upon which the Arbitrator can make a determination, if the parties do not settle the dispute. If and where there are deficiencies in the evidence, is for the Arbitrator to consider in relation to the matters that Mr Alexakis must prove in order to be successful in his claim.
If the matter is not properly ‘struck out’, then following the determination of any threshold issues it may be necessary to refer the medical dispute to an Approved Medical Specialist for an assessment of permanent impairment. This will depend upon whether Mr Alexakis is successful on issues of liability.
The Commission file documents incidents where Mr Alexakis has verbally threatened violence towards Commission staff and the Arbitrator. This is totally unacceptable. In order to ensure the safe and orderly conduct of the conciliation and arbitration conference the Registrar will need to arrange for a security officer to attend. While this arrangement is unfortunate in terms of the desired informality of the proceedings, the responsibility for this rests solely with Mr Alexakis.
I note that the Arbitrator, despite a lengthy discussion of costs at the telephone conference of 5 April 2005, has not made any order as to costs of the matter before him. Legal costs for appearing before the Commission are comprehensively governed by the Workers Compensation Regulation 2003. There is no provision in the Regulation for the costs of photocopying documents that are to be sent to an Approved Medical Specialist. Nor is there any provision for costs to be paid on the basis of a ‘scale’ or ‘above the scale’. It is surprising that submissions were made by the legal representative of Caterair that the costs in this matter “basically go outside the costs regulation” (at page 10 of the transcript) and that the Arbitrator should make a “notation” on the order to this effect. It is even more surprising that the Arbitrator agreed to make such a notation, i.e. that costs should be recovered “above the standard scale”.
DECISION
The decision of the Arbitrator, dated 8 April 2005, is revoked and the matter is remitted to the Arbitrator for reconsideration in accordance with these reasons. The decision of the Arbitrator dated 5 April 2005 is also set aside.
COSTS
Neither party has made submissions as to the costs of the appeal. As the matter is to be remitted to the Arbitrator I am of the view that the issue of costs as a whole should be determined with the substantive issues.
Dr Gabriel Fleming
Deputy President
20 July 2005
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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