Crethar v GA and JI Charters Pty Ltd trading as Avis Northern Rivers

[2010] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Crethar v GA and JI Charters Pty Ltd trading as Avis Northern Rivers [2010] NSWWCCPD 52
APPELLANT:		Simon John Crethar
RESPONDENT:		GA and JI Charters Pty Ltd trading as Avis Northern Rivers
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-10041/09
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		12 February 2010
DATE OF APPEAL DECISION:		14 May 2010
SUBJECT MATTER OF DECISION:		Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Somerville Laundry Lomax
Respondent:		Moray and Agnew
ORDERS MADE ON APPEAL:		Leave to appeal the decision dated 12 February 2010 is refused. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 2 March 2010 Mr Crethar (‘the appellant’) sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 February 2010.

1. The respondent to the appeal is GA and JI Charters Pty Ltd trading as Avis Northern Rivers (‘the respondent/employer/Avis’).

1. Mr Crethar was employed by the respondent as the station manager at Avis. 

1. On 9 December 2009, Mr Crethar filed an Application to Resolve a Dispute (‘the Application’) in the Commission.  He alleges to have suffered psychological injury as a result of the nature and conditions of employment over an unspecified period.  He also alleges injury on 13 August 2007 and that he gave notice of injury on 4 August 2008.  Mr Crethar claims weekly compensation from 16 July 2008 to 30 October 2008 at the rate of $819.10 per week, and from 30 October 2008 to date and continuing at the rate of $402.00.

1. The respondent filed an Application to Admit Late Documents, annexing its Reply on 19 January 2010.  The respondent asserted that the claim had not been duly made prior to the Application being filed and served, and therefore the Application should have been discontinued at the teleconference.

1. The matter was listed for a teleconference on 12 February 2010.  The Arbitrator arranged for the conference to be recorded after the parties had made submissions on the issue of whether the claim had been duly made.

1. The Arbitrator gave an ex tempore decision.  He found that the claim had not been duly made and struck out the Application.

1. The Arbitrator’s decision and reasons for his decision were recorded and a transcript has been provided to both parties.

2. Although the Arbitrator failed to identify the section of the Act under which he exercised the power to strike out the Application, I infer that the matter was struck out under section 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), on the basis that it was lacking in substance.

1. Mr Crethar seeks leave to appeal the Arbitrator’s decision and for an order that the decision be set aside.

THE DECISION UNDER REVIEW

1. The Certificate of Determination dated 12 February 2010 records the Arbitrator’s orders as follows:

“1.     The matter is struck out.

2.    No order as to costs.”

ISSUES IN DISPUTE

1. The appellant submits that the decision to strike out the Application:

(a)     was made without any basis in fact or law;

(b)     was without the provision of proper reasons;

(c)     misconstrued the proper meaning of section 74, and

(d)     was contrary to the provisions of sections 289(1) and 289A(4) of the 1998 Act.

PRELIMINARY MATTERS

1. Section 354(6) of 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.”

1. Having regard to Practice Directions Numbers 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, and that this is the appropriate course in the circumstances. 

LEAVE TO APPEAL

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

Time

1. The appeal was lodged on 2 March 2010, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Interlocutory

1. Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:

“352 Appeal 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.

(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.

(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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)

1. The amendments affected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’.  Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.

1. Clause 200B of the Workers Compensation Regulation 2003, as amended, provides that “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

2. The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206. His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:

“…depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”

1. Since its commencement on 1 November 2006, the Commission has considered the meaning of interlocutory decision and the application of section 352(8) in a variety of circumstances in the Commission’s statutory framework, including specifically in relation to orders made by arbitrators striking out applications under Rules 1.6 and 15.1 of the Workers Compensation Rules 2006 and pursuant to section 354 of the 1998 Act.

1. In Nott v The Western Stores Limited and ors [2007] NSWWCCPD 83 (‘Nott’), Deputy President Roche held that an order striking out an application was an order of an interlocutory nature. At [21]-[22] he noted:
   
   

   “21.   Whilst the present case is not an appropriate one in which to make any general statement as to what is or is not a matter of an ‘interlocutory nature’ for the purpose of proceedings in the Commission, in my view the order made by the Arbitrator was clearly interlocutory in nature.  The authority cited by the Appellant Worker does not support her argument.  In Micallef the Court of Appeal stated that an order dismissing a claim under Part 18 Rule 3 of the District Court Rules was interlocutory and, therefore, leave to appeal was required before the appeal could proceed. Leave to appeal was granted in that case and the Court’s judgment dealt with whether the trial judge had erred in making the disputed order. There is now no provision for the Commission to grant leave to appeal where the only order or determination challenged on appeal is a “preliminary or interim” order “of an interlocutory nature”. However, if the order or determination was a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 141 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal the Commission’s ultimate Certificate of Determination will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549).

   22.    Whilst common law authorities are not automatically applicable to the unique legislative framework within which the Commission operates, I believe that the authorities of Little and Wickstead provide clear statements of principle that are applicable to the present matter.  The Arbitrator’s order has not finally determined the parties’ substantive rights in the principal claim.  The Appellant Worker is free to issue further proceedings seeking the same relief.  The Arbitrator made no orders or findings that will restrict or inhibit that being done.  Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and is not a ‘decision’ against which leave to appeal can be granted.  Therefore, leave to appeal must be and is refused.” (emphasis added)

1. In the matter of Teofilo v New South Wales Police Service [2007] NSWWCCPD 200, the Arbitrator found the proceedings to be a nullity and, as a result, ordered that they be struck out. Mr Teofilo’s application for leave to appeal was refused. Deputy President Roche held at [23]:

“In my view, the order made by the Arbitrator was clearly a preliminary or interim order of an interlocutory nature as it has not disposed of or determined any of the parties’ rights.  The authorities of Little v State of Victoria (1998) 4 VR 596 (‘Little’) and Wickstead v Browne (1992) 30 NSWLR 1 at 11 (‘Wickstead’) provide clear statements of principle that are applicable to the present matter.  In Little, an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory.  In Wickstead, an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was held to be interlocutory.  Similarly, the Arbitrator’s order in the present matter has not finally determined the parties’ substantive rights in the principal claim.  Mr Teofilo is free to issue further proceedings seeking the same relief, if he wishes to do so.  The Arbitrator made no orders or findings that will restrict or inhibit that being done.  Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and was not a ‘decision’ against which leave to appeal can be granted.”

1. Whilst the parties have not expressly submitted on the application of section 352(8), neither is prejudiced by my determining this application. In refusing leave to appeal, the appellant is free to recommence proceedings.

1. I find, consistent with the authorities cited above, that the orders made by the Arbitrator at the teleconference and recorded in the Certificate of Determination dated 12 February 2010, were orders of an interlocutory nature as prescribed by the Regulation and pursuant to section 352(8). They did not finally determine the merits of the claim or parties’ rights and, pursuant to section 352(8), the decision is not a decision from which leave to appeal can be granted.

2. For these reasons, leave to appeal is refused.

Monetary threshold

1. Finally, and in the alternative, the amount of compensation claimed in the present case exceeded the threshold in section 352(2)(a). However, as no compensation was awarded and, as the appellant is entitled to recommence proceedings without penalty or prejudice, there is no compensation “at issue” on appeal (see Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27] and Nott at [24]-[25]).

2. Even if leave to appeal were granted, no decision I could make would affect the compensation to be awarded.  All that could happen is that the matter would be restored to the Commission’s process and be allocated to a different arbitrator for determination.  That can happen by the appellant simply reissuing a fresh Application.

1. In these circumstances, the appeal does not meet the thresholds in section 352(2) and leave to appeal is refused on this ground also.

OTHER

1. The appellant is free to recommence proceeding seeking the same relief if he chooses to do so.  If, however, there are procedural defects, such as a failure to give appropriate notice of the claim under section 260 of the 1998 Act, these issues should be addressed before the matter is recommenced.

DECISION

1. Leave to appeal the decision of the Arbitrator dated 12 February 2010 is refused.

COSTS

1. No order as to costs of the appeal.

His Hon Judge G Keating

President

14 May 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE