Cunningham v Trustees of the Sisters of Charity, Australia (St Vincent's Private Hospital)
[2006] NSWWCCPD 97
•24 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Cunningham v Trustees of the Sisters of Charity, Australia (St Vincent’s Private Hospital) [2006] NSWWCCPD 97
APPELLANT: Terrence Cunningham
RESPONDENT: Trustees of the Sisters of Charity, Australia (St Vincent’s Private Hospital)
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18298-04
DATE OF ARBITRATOR’S DECISION: 5 April 2005
DATE OF APPEAL DECISION: 24 May 2006
SUBJECT MATTER OF DECISION: Leave to appeal out of time
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Maurice Blackman Cashman
Respondent: Blake Dawson Waldron
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 6 May 2005 Terrence Cunningham (‘the Appellant Worker ’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 April 2005.
The Respondent to the Appeal is Trustees of the Sisters of Charity, Australia (St Vincent’s Private Hospital) (‘the Respondent Employer’).
On 18 September 2003 the Appellant Worker started work for the Respondent Employer at about 3am. At about 5.40am whilst eating in the Respondent Employer's staff cafeteria he sustained damage to the enamel on his anterior dental bridge and cracked a filling on his lower right central incisor. This summary has been taken from the report of Dr Challoner of 30 September 2003, dental surgeon retained by the insurer. I am uncertain of the accuracy of these facts as the Appellant Worker has not filed a statement in the proceedings.
On 28 October 2004 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) seeking ‘medical, hospital and related expenses’ in the sum of $10,540.00 in respect of dental work alleged to be required (but not yet undertaken) as a result of the incident on 18 September 2003. Each side made written submissions and the claim was determined on the papers on 5 April 2005 in favour of the Respondent Employer.
By letter dated 6 May 2005 the Appellant Worker's solicitors sought a ‘reconsideration’ of the Arbitrator's decision under section 350 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). By letter dated 10 June 2005 the Registrar informed the parties that the request for reconsideration was refused. The letter of 6 May 2005 has been taken into account by me in determining the issues on appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 April 2005 records the Arbitrator’s orders as follows:
“1.The claim for s60 expenses in the sum of $10,504.00 is dismissed.
2.There will be no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)whether an Arbitrator has power to make a finding that an employer is liable for specified future treatment;
(b)whether the claim on appeal can be made and determined under section 74 of the Workers Compensation Act 1987 (‘the 1987 Act’), and
(c)whether time to appeal should be extended.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCC PD 5).
The appeal was not lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The Appellant Worker's solicitors submit that the delay in lodging the appeal was due to the solicitor with the carriage of the matter going on paternity leave on 15 April 2005. As a result a letter to the Appellant Worker advising him of the outcome of the Arbitration was not sent until about 28 April 2005. Further advice was given to the Appellant Worker about his rights by telephone on 4 May 2005 and instructions to appeal were received at 4pm on 5 May 2005. The appeal was lodged with the Commission on 6 May 2005.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Respondent Employer opposes the extension of time to appeal and submits that:
(a)the appeal has limited prospects of success;
(b)the Respondent Employer has a ‘vested right to retain’ the original Arbitrator's decision (citing Gallo);
(c)the Respondent Employer's rights under the workers compensation legislation will not be seriously impacted upon if time is not extended as “he is entitled to bring a subsequent claim once the appropriate statutory requirements are met”, and
(d)there is no evidence as to why another solicitor could not have acted to ensure that the necessary steps were taken in respect of correspondence.
As there is no statement from the Appellant Worker setting out his circumstances it is difficult to determine whether there are any ‘exceptional circumstances’ that would lead me to conclude that the refusal to extend time will result in a ‘demonstrable and substantial injustice’ to the Appellant Worker.
Whilst I have not formed a firm view on the merits of the appeal, it appears that the Arbitrator was justified in applying the decision of NSW Sugar Milling Co-Op Ltd v Manning (1998) 44 NSWLR 442 (Manning) in circumstance where no ‘costs’ had been ‘incurred’ (see section 60(3) of the 1987 Act) by the Appellant Worker as at the date of the Arbitration.
The Appellant Worker failed before the Arbitrator because of the application of Manning. Therefore there has not been a final determination of the claim on the merits. In this situation the Appellant Worker is entitled to bring a further claim if the statutory requirements of section 60 of the 1987 Act are later satisfied.
In addition, the Appellant Worker attempts on appeal to rely section 74 of the 1987 Act. That section deals with a claim for damage to artificial limbs where a worker has ‘met with an accident’. This section was not relied on before the Arbitrator and, for it to be properly raised, would require evidence (or at least submissions) on whether the incident in question was ‘an accident arising out of or in the course of the worker’s employment’ (emphasis added) (see section 74(1)). That issue has not been addressed by either party.
Considering all of the above matters the application to extend the time to appeal is refused because I am not satisfied that refusing an extension of time will result in a ‘substantial injustice’.
DECISION
Leave to appeal is refused.
COSTS
No order is made as to the costs of the appeal.
Bill Roche
Acting Deputy President
24 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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