Doyle v Australia and New Zealand Banking Group Limited
[2004] NSWWCCPD 71
•7 October 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Doyle v Australia and New Zealand Banking Group Limited [2004] NSW WCC PD 71
APPELLANT: Anne Marie Doyle
RESPONDENT: Australia and New Zealand Banking Group Limited
FILE NUMBER: WCC12150-2003
DATE OF ARBITRATOR’S DECISION: 10 May 2004
DATE OF APPEAL DECISION: 7 October 2004
SUBJECT MATTER OF DECISION: Leave to Appeal out of time pursuant to Rule 77(8), Arbitrator’s power to strike out a matter pursuant to Rule 6 of the Workers Compensation Commission Rules 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Muriniti & Associates, Solicitors
Respondent: Leigh Virtue & Associates, Solicitors
ORDERS MADE ON APPEAL: Leave to appeal is refused.
BACKGROUND
On 21 June 2004 Anne Doyle’s legal representative sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 10 May 2004.
The Respondent to the appeal is Australian and New Zealand Banking Group Ltd.
The appeal is against a decision of an Arbitrator to ‘strike out’ Ms Doyle’s dispute (filed in the Commission on 11 July 2003) because her legal representatives did not attend a scheduled telephone conference on 4 May 2004.
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 first issue to be determined is whether leave to appeal should be granted. The appeal was not filed within twenty-eight days of the decision appealed against; it was filed approximately ten days late (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998).
If leave is granted, the second issue to be determined is whether the Arbitrator was wrong to strike out Ms Doyle’s application. Her legal representative claims he had approached the Commission for an adjournment of the telephone conference, as he was unable to attend because of other court commitments.
SHOULD LEAVE TO APPEAL BE GRANTED?
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
“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 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 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 factors that are relevant to the exercise of the discretion to extend time, considered on the facts in each case. 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.
The history and conduct of this matter do not reflect well on Ms Doyle’s legal representative.
On 7 October 2003 the Commission advised the parties that a telephone conference would be held on 20 October 2003 at 12.30 pm. An appointment was then made for Ms Doyle to be examined by an Approved Medical Specialist, on 3 March 2004. For reasons that are not evident from the file, this appointment was rescheduled for 24 March 2004.
A Medical Assessment Certificate was issued on 8 April 2004. This is binding as to the assessment of the degree of permanent impairment of Ms Doyle’s neck, right leg above the knee and left leg above the knee.
On 23 April 2004 the parties were advised, by facsimile, of a second telephone conference, listed for 4 May 2004. Following this, there was a flow of correspondence between Ms Doyle’s legal representative and the Commission. I do not intend to set out the detail of this correspondence here. What is clear from this exchange is that Ms Doyle’s legal representative did not follow the procedure for making an application for an adjournment that is set out in Practice Direction No. 2.
Ms Doyle’s solicitor advised that he was unable to attend on 4 May 2004 because of “court commitments”. The fact that the representative had discussed the adjournment request with the legal representative of the Respondent is not relevant. The Commission does not simply adjourn matters at the concurrence of the parties’ legal representatives. The fact is that the adjournment application was not properly made and was not granted. The telephone conference went ahead as scheduled and Ms Doyle’s solicitor did not appear. The Arbitrator therefore struck out the application (Rule 6).
Ms Doyle’s legal representative also failed to file this appeal within 28 days of the Arbitrator’s decision. The Registrar advised him, on 9 June 2004, of the requirements of Practice Direction No. 6 in relation to the time for filing of an appeal and the need to explain any delay. The appeal was not filed until 21 June 2004. It was returned to the legal representative because it was incomplete, and was re-filed on 2 July 2004.
Ms Doyle’s legal representative submits that the time for filing the appeal should be extended. Firstly, because “the matter should not have been struck out in the first place”. This submission does not address exceptional circumstances to extend time and simply restates the writer’s dissatisfaction with the Arbitrator’s decision. Secondly, because he had written to the Registrar within the time for the appeal to be lodged and believed “there was a prospect that the proceedings could be reinstated without the need for an appeal”. This submission displays a fundamental misunderstanding of the composition of the Commission. The Registrar does not have the power to overturn a decision of an Arbitrator and writing to her with such a request is futile.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes. The Respondent has the benefit of an order and is entitled to rely on the finality of that order.
The assessment of the Approved Medical Specialist is binding on the issues of permanent impairment. The Medical Appeal Panel has affirmed the decision on these issues. Ms Doyle’s claim for weekly compensation and medical expenses remains to be determined. However I note that the consequence of refusing to grant leave to appeal is not that Ms Doyle’s substantive dispute about these matters is unsuccessful. The striking out of the application by the Arbitrator does not determine the substantive issues in dispute and does not prevent the proceedings from being recommenced (Rule 6(7)).
In my view the responsibility for the course of these proceedings in the Commission lies with Ms Doyle’s legal representative. Ms Doyle personally wrote to the Commission seeking expedition of the appeal on 29 September 2004. She described her dire financial circumstances and her desire to have the dispute, which has been ongoing for six years, finally determined. I am sympathetic to her concern, however I am not satisfied that there are exceptional circumstances to support an extension of time for the appeal to be filed.
DECISION
Leave to appeal is refused.
Dr Gabriel Fleming
Deputy President
7 October 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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