Duncan v Moree Plains Shire Council
[2004] NSWWCCPD 44
•20 July 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Duncan v Moree Plains Shire Council [2004] NSWWCCPD 44
APPELLANT: Leslie Lance Duncan
RESPONDENT: Moree Plains Shire Council
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC14827-03
DATE OF ARBITRATOR’S DECISION: 15 January 2004
DATE OF APPEAL DECISION: 20 July 2004
SUBJECT MATTER OF DECISION: Workers Compensation Commission Rules, Rule 6(4), Appeal Served three months late, Appeal struck out.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: A.O. Ellison & Co Solicitors
ORDERS MADE ON APPEAL: The Application for Leave to Appeal is struck out pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003
THE APPEAL
On 28 January 2004 Leslie Lance Duncan (‘the Appellant ’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 January 2004.
The Respondent to the Appeal is Moree Plains Shire Council (‘the Respondent’).
The appeal was referred to me for review on 21 June 2004.
There is only one substantive issue in dispute in the appeal, namely: did the Arbitrator err in his determination that:
“The deemed date of injury in this matter is 2 April 2003. There is no legal requirement for there to be two deemed dates of injury by virtue of the absence of transitional provisions in “disease” cases governing “straddle” cases between a whole person impairment calculation and the repealed Table of Maims.”
Following the lodgement of the Appeal the Commission wrote to the Appellant, on 4 February 2004, advising that certain matters had not been addressed in the appeal documents, namely: submissions on threshold issues, and a statement as to whether the matter could be determined on the papers. A copy of Practice Direction No. 6 was enclosed.
No reply to this correspondence was received.
On 13 February 2004 the Commission wrote to the Appellant again, advising that a Certificate of Service of the Appeal had not been filed, as required by Rule 77(4).
No reply was received to this correspondence.
On 25 May 2004 the Commission wrote again to the Appellant requiring advice, by 28 May 2004, that the appeal had actually been served on the Respondent.
On 27 May 2004 a Certificate of Service of the Appeal was filed, attesting to service on the Respondent on 25 May 2004, some three months after the filing of the appeal. This contradicts a ‘Certificate of Service’ attached to the Application to Appeal, which attests to service, by DX, on 22 January 2004.
The Respondent advised by letter of 31 May 2004 that it had not filed a Reply, in accordance with the Rules, on the basis that the Appeal was not served upon them within time. The Appeal was received by them on 27 May 2004.
I accept the Appellant’s later Certificate of Service of the appeal, attesting to service on 25 May 2004. This is consistent with the Respondent’s claim that service was not effected until 27 May 2004.
The Appellant is in breach of Rule 77(4). The Appeal should have been served by 20 February 2004. It is not fair or reasonable for the Respondent to be held in ignorance of an appeal for three months after it is filed. The original dispute has now been on foot since it was filed in the Commission on 11 September 2003. The failure to serve the appeal has resulted in unacceptable delay in referral of the matter to an Approved Medical Specialist.
Rule 6(4) provides as follows:
“(4) If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step in the proceedings.”
In this matter the Appellant has not filed any submissions on the matters required by Practice Direction No. 6, and has not complied with the Rules in relation to service. Since February 2004 the Appellant has done nothing to further the appeal except lodge the formal Application to Appeal. In my view the appeal should be struck out. I have considered the prejudice this may cause the Appellant however, on balance, this is outweighed by the prejudice to the Respondent. The appeal concerns an interlocutory issue and the matter remains to be finally determined, following the assessment of an Approved Medical Specialist. Appeal rights applicable to the final determination of the Commission obviously remain.
DECISION
The Application for Leave to Appeal is struck out pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003.
Dr Gabriel Fleming
Deputy President
20 July 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
0
0
0