Clarence Gordon Smith v Geoff Moar Nominees Pty Limited
[2003] NSWWCCPD 35
•21 November 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Clarence Gordon Smith v Geoff Moar Nominees Pty Limited [2003] NSW WCC PD 35 |
| APPELLANT: | Clarence Gordon Smith |
| RESPONDENT: | Geoff Moar Nominees Pty Limited |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited |
| FILE NO: | WCC 527-2002 |
| DATE OF ARBITRATOR’S DECISION: | 24 April 2003 |
| DATE OF APPEAL DECISION: | 21 November 2003 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision of an Arbitrator. Leave refused, appeal filed out of time. Interim Rules 2001, no discretion. |
| PRESIDENTIAL MEMBER: | Deputy President, Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Adams Leyland Solicitors |
| Respondent: Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | Leave to appeal against the decision of the Arbitrator is refused. |
THE APPEAL
On 23 May 2003, Clarence Gordon Smith, (‘the Appellant), lodged an ‘Application to Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 24 April 2003. The Respondent to the appeal is Geoff Moar Nominees Pty Limited, (‘the Respondent’) and the Insurer is Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’).
The Respondent filed a Reply and submissions to the Appeal on 4 June 2003. Further submissions were filed on 17 July 2003.
Further submissions were received from the Appellant on 25 June 2003 and 26 September 2003.
The matter was referred to me for review on 3 November 2003.
THE DECISION UNDER REVIEW
The Certificate of Determination, and attached statement of reasons, issued by the Commission on 24 April 2003 sets out the decision of the Arbitrator as follows:
(a)Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
(b)Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
(c)That each Party pay its own costs.
The Appellant seeks to have the above orders set aside and an award made for in his favour or, in the alternative, the matter be remitted to another Arbitrator to be determined according to law. The Respondent submits that the Commission has no jurisdiction to hear the appeal as it has been made out of time.
ON THE PAPERS REVIEW
Subsection 354 (6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
354 Procedure before Commission
(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.
Both parties consented to leave being determined on the papers.
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 of this matter
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act which provides as follows:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
TIME
The Arbitrator’s decision was made on 24 April 2003 and the Certificate of Determination was issued on the same day. The appeal was lodged on 23 May 2003, that is, not within 28 days of that decision. This does not comply with subsection 352(4) of the 1998 Act.
The Appellant submits that the application for leave to appeal was faxed to the Commission on 23 May 2003 and contends that “ . . . this was the 28th day excluding the date of the decision appealed”. This is not correct. Excluding the date of the decision of the Arbitrator (subsection 36(1) Interpretation Act 1987, Rule 63(a) of the Interim Workers Compensation Commission Rules 2001), 23 May 2003 was the 29th day and falls outside the time prescribed by subsection 352(4) of the 1998 Act.
The Appellant also submits, in the alternative, that the language in subsection 352(4) of the 1998 Act is not mandatory and there is an ambiguity in the language of the section, therefore a beneficial interpretation should be favoured, because there is:
“a) no other avenue of appeal available;
b) the legislation is one conveying a benefit to workers who ought to be permitted to appeal adverse decisions;
c) the purpose of the legislation is to simplify, expedite and reduce the cost of disputes as to be fair, affordable and financially viable. To take an unduly strict interpretation would defeat that purpose.”
The Respondent relies upon the decision of Deputy President Byron in Strang Stevedoring Australia Pty Ltd v Fitzgibbon [2003] NSW WCC PD 14, and submits that the Commission does not have the discretion to extend time for the filing of the appeal.
FINDINGS AND REASONS
Subsection 352(4) of the 1998 Act clearly states that an appeal “..can only be made within 28 days after the making of the decision appealed against”. This means that, in this case, the appeal should have been made on or before 22 May 2003.
At the time of the making of the Arbitrator’s decision, and during the relevant appeal period applicable to that decision, the Interim Workers Compensation Rules 2001 applied to all matters in the Commission. No Rule existed under these Rules, enabling the Commission to extend or abridge the time prescribed in subsection 352(4), (see McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD 12 and Strang Stevedoring Australia Pty Ltd v Fitzgibbon [2003] NSW WCC PD 14).
The subsequent amendment to the Rules in 2003 (Workers Compensation Commission Rules 2003), do not confer the Commission with a right to extend or abridge time retrospectively (MLC Pest Control & Maintenance Service Pty Limited v Gurney [2003] WCC PD 31 at paragraph 17). The appeal is made out of the time prescribed in subsection 352(4) of the 1998 Act and therefore, I do not have the jurisdiction to hear it.
The Appellant makes no submissions as to costs. The Respondent submits that the Appeal had been made without proper justification and pursuant to subsection 341(4) of the 1998 Act, the Appellant should be ordered to pay the Respondent’s costs in the appeal. Section 345 of the 1998 Act applies to costs of an appeal. The parties are urged to come to an agreement as to costs, taking the relevant statutory provisions into account. Failing agreement an application may be made.
DECISION
Leave to appeal against the decision of the Arbitrator is refused.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission.
Registrar Date:
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