Despotellis v Franklins Limited
[2004] NSWWCCPD 65
•23 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMPENSATION COURT OF NSW CONSTITUTED BY A COMMISSIONER
CITATION:Despotellis v Franklins Limited [2004] NSW WCC PD 65
APPELLANT: Flora Despotellis
RESPONDENT: Franklins Limited
INSURER:Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER: NSWCC 49252-2001, WCC8030-2004
DATE OF COMMISSIONER’S DECISION: 17 December 2003
DATE OF APPEAL DECISION: 23 September 2004
SUBJECT MATTER OF DECISION: Leave to Appeal Against Decision of a Commissioner of the Compensation Court of NSW; Regulation 7 of the Compensation Court Appeal (Transitional) Regulation 2003. Appeal filed out of time.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: G H Healey & Co.
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: Leave to appeal is refused.
BACKGROUND
On 16 April 2004 Flora Despotellis (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision made by a Commissioner of the Compensation Court of NSW on 17 December 2003.
The Respondent, Franklins Limited filed a Reply to the Appeal on 22 July 2004.
The relevant insurer is Allianz Australia Workers Compensation (NSW) Limited.
The appeal relates to a claim by Ms Despotellis for workers compensation by way of lump sum payments for permanent impairment of her arms, neck and back pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), and an award for pain and suffering pursuant to section 67 of the 1987 Act.
The Commissioner’s orders were:
“1. That there be an award in favour of the respondent in respect of the claims for work-induced wrist injuries.
2. That the respondent pay the applicant, a [sic] lump sum compensation under section 66, $4,000 in respect of 15% permanent impairment of the applicant’s neck.
3. Determines that the worker’s shoulder condition is not stationary, and consequently no determination can be made until after further tests and assessment [sic] are done or made.
4. Awards the applicant her costs of the proceedings and certify a second conference at $250 for Counsel. General s 60 Order.”
The appeal was referred to me for review on 16 August 2004. The Appellant submits that the appeal may be determined without an oral hearing. The Respondent makes no submissions on this issue. 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
SHOULD LEAVE TO APPEAL BE GRANTED?
The first issue to be determined is whether or not leave should be granted to extend the time for filing of the appeal.
Since the closure of the Compensation Court, on 31 December 2003, a decision previously made by a Commissioner of that Court is appellable to a Deputy President of the Commission (Regulation 7 of the Compensation Court Appeal (Transitional) Regulation 2003).
The appeal must be filed within 28 days of the making of the decision (Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). In this case, 28 days expired on 14 January 2004.
The appeal was lodged approximately four months after the decision was made.
Rule 77(8) of the Workers Compensation Commission Rules 2003 provides that a Presidential member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances apply, and that they would suffer a substantial injustice if the right of appeal was lost. The onus of proving such exceptional circumstances rests with the Appellant.
Relevant Factors to the Grant of Leave to Appeal
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator.
In the case of Gallo v Dawson (1990) 93 ALR 479, Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court. He set out a number of guiding principles for the exercise of the discretion to extend time. These include:
(i)the history of the proceedings,
(ii)the conduct of the parties,
(iii)the nature of the litigation,
(iv)the consequences for the parties of the grant or refusal of the application for extension of time,
(v)the prospects of the applicant succeeding in the appeal, and
(vi)the respondent’s right, after the expiry of the time to appeal, to rely upon the decision made.
Ultimately these factors must be weighed to ensure that the discretion to extend time is exercised to ensure that ‘justice between the parties’ is achieved and that strict compliance with the rules does not result in an injustice to the Appellant.
FINDINGS AND REASONS ON LEAVE
The history of the proceedings
This dispute has been on foot in the Compensation Court since 7 December 2001.
Both parties filed documentary evidence, including medical evidence, and submissions.
A hearing was held before the Commissioner on 10 November 2003 and 3 December 2003.
The Commissioner provided lengthy written reasons for his decision
The conduct of the parties
The Appellant submits that she should be granted an extension of time for leave to appeal, because her solicitors mistakenly filed the appeal in the Supreme Court of NSW. This was due to a misapprehension of the Transitional Regulation applying to the closure of the Compensation Court. The Appellant claims that the Respondent was already put on notice of the Appellant’s intention to appeal after being served with the Supreme Court Notice of Appeal in January 2004.
The Appellant’s submissions do not acknowledge the significant delay between the filing of the appeal, wrongly, in the Supreme Court and the subsequent filing of the appeal in the Commission. Nor does it explain why the appeal filed in the Commission was not served upon the Respondent for six weeks, in contravention of the Rules, which require service seven days after filing.
The following sets out the history of the proceedings, in so far as it is relevant to the issue of leave:
·On 17 December 2003, the Commissioner of the Compensation Court handed down his judgement, and on 31 December 2003 the Compensation Court issued an Award and Order, setting out the Commissioner’s orders.
·On 16 January 2004, the Appellant filed a Notice of Appeal Without Appointment in the Supreme Court of NSW, Court of Appeal.
·It is not clear from the documents before me exactly when the Appellant withdrew the proceedings in the Supreme Court.
·On 16 April 2004, the Appellant lodged an ‘Appeal Against Decision of Arbitrator’ in the Commission.
·It was not until 27 April 2004 that the Appellant filed further submissions in regard to threshold issues on the appeal.
·The appeal was not served on the Respondent until 25 May 2004.
·The Respondent filed submissions in Reply to the Appeal on 22 July 2004, and on 28 July 2004, further submissions addressing why leave should be granted to file the Reply late.
I agree with the Respondent’s submission that the Appellant’s solicitors have given no indication as to when they realised that the filing of an appeal in the Supreme Court was inappropriate. Nor has an explanation been given as to the steps taken to prosecute this appeal in accordance with the Rules of the Commission. The Appellant has given no explanation for the delay between the filing of the Supreme Court Appeal on 16 January 2004, and the filing of this appeal in the Commission in April 2004.
The establishment of the Commission and the closure of the Court should have been known to Ms Despotellis’ legal advisers. The consequences for her case, in terms of the right of appeal to the Commission, not the Court, should also have been known.
The nature of the litigation
This dispute concerns a claim for lump sum compensation for permanent impairment of Ms Despotellis’ wrists, neck, arms and back. The injuries are alleged to have occurred in 1997 and 1998 as a result of her employment with Franklins. The outcome of the dispute clearly has important financial implications for both parties. Ms Despotellis should have been well aware of the issues that were in dispute and of the consequences of the Commissioner’s decision.
Ms Despotellis’ dispute was filed in the Compensation Court, prior to the establishment of the Commission. Had her dispute been filed in the Commission, an Arbitrator would have heard it.
Having had a full opportunity to run the case in the Court mitigates against the grant of an extension of time to file this appeal. The Commissioner heard oral evidence and found that Ms Despotellis was a ‘creditworthy witness’.
Consequences of the grant or refusal to extend time
The Appellant submits that the granting of an extension of time to appeal will not prejudice the Respondent and that she would suffer substantial injustice if an extension of time is not granted.
I do not accept this submission. The real consequence of refusing to extend the time for the appeal is that the Appellant must accept the decision of the Commissioner. The Appellant received an award for permanent impairment of the neck. The Appellant is not dissatisfied with the whole of this decision, but with the failure to obtain an award for her back, and wrist injury. The decision was substantially in the Appellant’s favour. Taking this and all other factors into account I am not satisfied that the Appellant would suffer a substantial injustice if leave to extend time were refused.
Prospects of the applicant succeeding in the appeal
The Appellant’s substantive grounds of appeal are that:
1. The Commissioner made an error of law in finding that Ms Depotellis’carpal tunnel syndrome was not a work related injury.
2. The Commissioner erred in not giving the opinion of Dr Matheson, Ms Despotellis’ treating doctor, sufficient weight, and incorrectly labelled his report as ambivalent. Alternatively, the Commissioner misunderstood the opinion of Dr Matheson.
3. The Commissioner made an error of law in failing to deal with the section 66 of the 1987 Act claim for permanent impairment of the back. This claim was duly made, and the Commissioner acknowledged it in his judgement, but failed to deal with the claim in his award.
The Commissioner found for the Respondent in relation to the claimed wrist injury. He found in favour of the worker in relation to the neck injury. He found that the shoulder injury had not yet stabilised and therefore an award could not be made. These are largely matters of discretionary judgement by the Commissioner, on the basis of his view of the evidence before him. To succeed on the grounds of appeal the Appellant must demonstrate that the Commissioner has failed to exercise his discretion fairly and lawfully. The weight to be given to evidence is a matter for the Commissioner, being fully appraised of the evidence and the facts of the case and having had the opportunity of hearing witnesses at the hearing. I am not satisfied that the Appellant would be likely to obtain a different result, in relation to these matters, on appeal.
There is no express finding or order in relation to the claim for permanent impairment of the back. However the Commissioner did consider the medical evidence in relation to the back claim (at paragraph 35 of the reasons). I am also not satisfied that the appeal would be successful in relation to the claimed injuries to the back.
The respondent’s right to rely upon the decision
I agree with the Respondent’s submission that it would be unjust to allow the Appellant to effectively re-litigate these issues, which have been the subject of the application to the Court since 2001. Disagreement with the Commissioner’s findings is not sufficient, especially when the Respondent has a vested right to retain judgement after the time allowed for appeal has expired (Vilenius v Heinagar (1962) 30 ALJR 200).
Summary
The application for an extension of time to file the appeal is refused because:
· The proceedings on the dispute have been on foot in the Compensation Court since 2001 and the Appellant has had a full and fair opportunity to conduct its case.
· The Appellant should have known to file the appeal in the Commission, not the Court of appeal, and in any event has not given an adequate explanation for filing the appeal in the Commission four months after the decision was made by the Compensation Court. The Appellant also failed to serve the Commission appeal on the Respondent within the time required by the Rules.
· The matter was decided in the Court after an oral hearing and is supported by lengthy reasons for decision.
· The consequences of refusing to extend time are that the Appellant retains an order that is partially in her favour.
· The prospects of success of the appeal are not substantial.
· The Respondent is entitled to rely on the award, following the expiry of the appeal period in January 2004.
· Refusal to grant an extension of time does not result in a substantial injustice to the Appellant.
DECISION
Leave to appeal is refused.
Dr Gabriel Fleming
Deputy President
23 September 2004
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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