Erskine v Cozwine Pty Limited - [2018] NSWWCCPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Erskine v Cozwine Pty Limited [2018] NSWWCCPD 9
APPELLANT:	Dylan Erskine
RESPONDENT:	Cozwine Pty Limited
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-4080/16
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	11 May 2017
DATE OF APPEAL DECISION:	7 March 2018
SUBJECT MATTER OF DECISION:	Extension of time to make an appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011, alleged error in fact finding: application of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505.
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Cater & Blumer
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend the time for making an appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

This appeal raises what are essentially factual challenges, to a finding that the appellant worker was not in the course of his employment, when he was involved in a motor vehicle accident on 25 March 2013. The appeal was brought well out of time, and requires an extension of time if it is to proceed. That application is refused, for reasons which follow.

BACKGROUND

Mr Erskine commenced employment with Cozwine Pty Limited (Cozwine), as a full-time casual farmhand, on 26 February 2013. Cozwine was a ‘labour hire’ employer, and Mr Erskine’s duties involved his placement in the operations of De Bortoli Wines Pty Ltd (De Bortoli), which was a ‘host employer’. Mr Erskine carried out duties on a number of rural properties run by De Bortoli in the Griffith region. He was provided with accommodation, in which he resided, in a house on one of the De Bortoli rural properties, called Clark Road farm.
On the afternoon of 25 March 2013, Mr Erskine was involved in a motor vehicle accident while driving from a De Bortoli farm at Bilbul (where he had worked that day[1]) to the Clark Road farm. He stated that he also carried out work on the Clark Road farm, on most days, as he was the only worker staying on that farm. He said this was generally in the afternoons when he returned to Clark Road. He said that on the day of his accident he intended, after arriving back at the Clark Road farm, to put some empty chemical drums in the pump shed, and take work tools from the “ute” he was driving and put them in the shed. Mr Erskine stated that he lost control of the vehicle he was driving, on a dirt road, as he approached the Clark Road farm. The vehicle cartwheeled twice and struck a tree. He extricated himself from the vehicle, a person at the Clark Road farm assisted him, and he was driven to the Griffith Base Hospital. He was discharged from hospital the following day. He stated that he was off work for two days, and then resumed on normal duties.[2]
[1] Transcript of Arbitration Proceedings of 7 December 2016 (T) 9.14–5.
[2] Mr Erskine’s statement dated 29 June 2016, [14]–[27], Application to Resolve a Dispute (ARD) pp 31–32.
Mr Erskine ceased this employment with Cozwine on a date which is not completely clear, probably about September/October 2013. He has had various employments subsequently, as a tractor driver, plant operator and forklift driver. There have also been periods of unemployment. He lodged a claim form dated 8 October 2015, which described injury to the back and legs in the motor vehicle accident, and said he had been off work since a “significant aggravation” in September 2014.[3]
[3] ARD, pp 34–37.
Cozwine’s relevant insurer disputed liability in a s 74 notice dated 18 November 2015. It asserted that the accident was not in the course of Mr Erskine’s employment, but rather while he was on a ‘journey’ home. It additionally said there was no real and substantial connection between Mr Erskine’s employment and the incident out of which the injury arose (s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act)), so that the ‘journey’ provisions did not assist him.[4]
[4] ARD, pp 38–40.

THE ARBITRAL PROCEEDINGS AND DECISION

The proceedings were commenced by way of the ARD registered on 5 August 2016. The matter was listed for arbitration hearing on 7 December 2016 at Griffith. Ms Balendra of counsel, instructed by Mr Jeremy, appeared for Mr Erskine, and Mr Mansfield of counsel appeared for Cozwine. Oral evidence was taken from Mr Erskine, and Cozwine called Mr Fiddler to give evidence in its case. The parties relied also on the documentary material which was lodged. Written submissions were filed on Mr Erskine’s behalf on 22 December 2016 and on Cozwine’s behalf on 17 January 2017. The Commission issued a Certificate of Determination dated 11 May 2017, accompanied by the Arbitrator’s reasons.[5]
[5] Erskine v Cozwine Pty Limited [2017] NSWWCC 107 (the decision).
The Arbitrator identified the issues as:
(a)    whether Mr Erskine suffered injury on 25 March 2013, in the course of or arising out of his employment;
(b)    alternatively, whether Mr Erskine suffered injury on a daily or periodic journey between his place of employment and place of abode, in which there was a real or substantial connection between the employment and the accident or incident, such that s 10 of the 1987 Act applied, and
(c)    should it arise, the amount of Mr Erskine’s entitlement to weekly compensation.[6]
[6] Decision, [8].
The Arbitrator summarised the documentary lay and medical evidence,[7] and set out extracts from the written submissions of the parties.[8] He referred to various authorities dealing with the concepts of ‘in the course of’ and ‘arising out of’ employment.
[7] Decision, [11]–[22].
[8] Decision, [23]–[24].
The Arbitrator said that he accepted evidence in Cozwine’s case, that Mr Erskine’s timesheets reflected the hours he worked. He said evidence from Mr Fiddler was uncontested, that if Mr Erskine was required to do additional work on the Clark Road farm after his normal work at other farms, Mr Erskine would “remain on the clock” and be paid for it. Cozwine’s evidence was that, on the date of accident, Mr Erskine’s “working day had finished at the Bilbul farm at 3.30 pm.” The Arbitrator accepted that Mr Erskine’s timesheet was “a reliable indicator of the hours worked”.[9] The Arbitrator decided that Mr Erskine “did not suffer injury during his normal work hours”.[10] The Arbitrator was satisfied that Mr Erskine “was on a periodic journey at the time of the accident”.[11]
[9] Decision, [30]–[31].
[10] Decision, [32].
[11] Decision, [33].
The Arbitrator identified inconsistencies in Mr Erskine’s evidence. The claim form described his usual hours as 7.30 am to 5.00 pm. In his “later statement” he said his normal hours were from 7.30 am to 4.00 pm, with occasional overtime. The timesheets showed average working days shorter than this.[12] Mr Erskine, in a statement, said that on the date of his accident he was working with “Josh”. Mr Fiddler’s evidence, consistent with timesheets, was that there was only one person called “Josh” employed by the host employer at that time, and he was not at work from 21 March 2013 to 2 April 2013.[13] The Arbitrator said that Mr Erskine was not required to supply personal tools, or carry De Bortoli tools, in his vehicle. The shed Mr Erskine said he intended moving the tools into was a considerable distance from the house at Clark Road farm, and was three sided and open. It would not have afforded protection from the risk of theft of the tools. Mr Fiddler gave evidence that he had not, prior to the accident, asked Mr Erskine to move empty chemical drums into the shed at Clark Road farm.[14] He said he made such a request of Mr Erskine after the accident, at a time when spraying was occurring at the Clark Road farm.[15]
[12] Decision, [36]–[37].
[13] Decision, [38].
[14] Decision, [40].
[15] Decision, [44].
The Arbitrator said that Mr Fiddler was employed by De Bortoli, not Cozwine, and Mr Fiddler had “no direct interest”[16] in the outcome. The Arbitrator said that he was satisfied that Mr Fiddler had not directed Mr Erskine to move chemical drums into the shed at Clark Road farm, prior to 25 March 2013. Such a direction could not have been a motivating factor for Mr Erskine’s “need to attend the Clark Road farm after finishing work at the Bilbul farm on 25 March 2013”.[17] The Arbitrator said that the Clarke Road farm, at the time of the relevant journey (and accident) should be characterised as a place of abode, rather than a place of employment, “an employment purpose for the journey was not operative”.[18]
[16] Decision, [41].
[17] Decision, [45].
[18] Decision, [49].
The Arbitrator said that he was satisfied that the journey was one between Mr Erskine’s place of employment and place of abode.[19] He was satisfied Mr Erskine left Bilbul farm where he had been working, between 3.30 pm and 3.45 pm on 25 March 2013, in daylight hours. There was no suggestion that he was required to drive at an unsafe speed, or that the vehicle was laden in a way which would make it handle differently on the dirt road. It was not suggested that the characteristics of the vehicle contributed to the accident. It was not suggested Cozwine was in any way responsible for the upkeep or maintenance of the vehicle. Fatigue was not suggested as a factor. He was not satisfied there was a “substantial connection” between Mr Erskine’s employment and the accident (s 10(3A) of the 1987 Act).[20]
[19] Decision, [51].
[20] Decision, [53].
The Arbitrator concluded that the injury was not one in the course of or arising out of the employment. He also said he was not satisfied there was a substantial connection between the employment and the accident, within the meaning of s 10(3A). The journey provisions in s 10 did not apply. He made an award in favour of Cozwine.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 Nos 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.

GROUNDS OF APPEAL

Mr Erskine raises the following grounds of appeal:
(a)    “The Arbitrator committed an error of fact in suggesting that the time sheets admitted into evidence by [Cozwine] was [sic] a ‘reliable indicator’ of the hours worked by the worker” (Ground No 1);
(b)    The Arbitrator committed an error in fact in finding that [Mr Erskine] completed work at no later than 3.45 pm on 23 March 2013 [sic, 25 March 2013]” (Ground No 2), and
(c)    The Arbitrator committed an error in both fact and law in finding that the worker purpose of the journey [sic] to the Clarke Road farm did not have a substantial connection to work” (Ground No 3).

THRESHOLD MATTERS – QUANTUM

There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act has been met.

THRESHOLD MATTERS – THE EXTENSION OF TIME

The appeal is brought substantially out of time. The date of the arbitral decision was 11 May 2017. Section 352(4) of the 1998 Act provides that an appeal pursuant to s 352 “can only be made within 28 days after the making of the decision appealed against”. The Application to Appeal was registered on 21 December 2017, which is the date the appeal was made.[21] It is more than six months out of time.
[21] Rule 16.2(11) of the Workers Compensation Commission Rules 2011 (the Rules).
The extension of time is governed by r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The presence of ‘exceptional circumstances’ is to be “considered by the Presidential member as a matter within jurisdiction as opposed to a precondition”: Bryce v Department of Corrective Services.[22] The meaning of ‘exceptional circumstances’ was considered in Yacoub v Pilkington (Australia) Ltd.[23] These principles have been frequently applied in the Commission, in Presidential decisions dealing with r 16.2(12). It is appropriate also, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson.[24] These principles were summarised by Roche DP in Allen v Roads and Maritime Services[25] as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b)   the conduct of the parties;
(c)   the nature of the litigation;
(d)   the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f)    upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
[22] [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8].
[23] [2007] NSWCA 290 (Yacoub), [66] (per Campbell JA, Tobias JA and Handley AJA agreeing).
[24] [1990] HCA 30; 64 ALJR 458, [2].
[25] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd[26] the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success on the proposed appeal.”
[26] [2014] NSWCA 34 per Basten JA (Beazley P and Leeming JA agreeing), [9].

Mr Erskine’s Submissions

Mr Erskine’s original submissions on the extension of time, in their entirety, read:
“1.     The Appellant seeks an extension of time for the filing of an appeal.
2.     The Certificate of determination was issued 11 May 2017, No approval for funding was received until 26 July 2017. The transcript was only able to be obtained on 17 August 2017 and was received by Counsel in September 2017. Counsel was unable to provide written submissions until 30 October 2017.
3.     Any delay in the lodging of the application was as a result of the delay in obtaining funding, in obtaining the transcript, and due to Counsel’s lack of availability the provision of submissions at an earlier stage [sic].
4.     The Appellant would suffer substantial injustice if an extension of the time for the appeal is not granted. The Appeal is in relation to the [sic].”

Cozwine’s Submissions

Cozwine notes that Mr Erskine’s submissions do not refer to r 16.2(12) of the Rules, and do not address whether ‘exceptional circumstances’ are present. Cozwine refers to Vaughan v Secretary, Department of Education[27] and Karakurt v Vickson Australia Pty Ltd t/as South Coast Chicken Fillets and Smallgoods,[28] two recent Presidential decisions dealing with the extension of time.
[27] [2018] NSWWCCPD 1 (Vaughan).
[28] [2018] NSWWCCPD 3.
Cozwine refers to the length of the delay, and the proffered reasons for it. It submits that unavailability of counsel and of the arbitral transcript, do not constitute ‘exceptional circumstances’. It submits that Mr Erskine’s submissions “make no serious attempt either to establish ‘exceptional circumstances’, or to explain the delay”. It submits that the prospects of the appeal’s success are poor. Overall, it is submitted that leave to extend time should be refused.[29]
[29] Cozwine’s submissions, [6]–[19].

Mr Erskine’s Submissions in Reply

On 19 February 2018, the Commission issued a Direction to the parties, the substance of which was as follows:
“The appellant, in its submissions on this appeal at [2], submits ‘transcript was only able to be obtained’ of the arbitral proceedings on 17 August 2017. Documentation in the Commission file is consistent with transcript having been forwarded to the parties on 21 December 2016. The Arbitrator’s Direction for written submissions, dated 21 December 2016, recorded ‘A transcript is available to the parties.’ The appellant, prior to the close of business on 26 February 2018, should lodge and serve submissions:
(a)stating whether it maintains its submission that ‘transcript was only able to be obtained on 17 August 2017’;
(b)if it does maintain that submission, it should include with its further submissions a statement detailing the steps it took to obtain the transcript, when and with what response, and
(c)if it does not maintain that submission, it should include with its further submissions a statement detailing any amendment to that position, the steps it took to obtain the transcript, when, with what response, and when the appellant (or its solicitors) first received the transcript.”
Mr Erskine was given until 26 February 2018 to comply with the Direction, and Cozwine until 2 March 2018 to put on submissions in reply to those. Mr Erskine was given until 9 March 2018, to put on submissions in reply to Cozwine’s submissions in its Notice of Opposition.
Mr Erskine lodged submissions in reply on 1 March 2018. These deal with the application to extend time. They simply state that Mr Erskine “repeats and affirms” his submissions on other matters. The submissions in reply state that, inadvertently, part of the “submissions that go to the extension of time were excised.” Mr Erskine accepts that the Commission forwarded transcript in December 2016. The submissions in reply state that the transcript was not received by “counsel, who was overseas at the time.” Written submissions were prepared by Mr Erskine’s counsel, for the Arbitrator, without the benefit of the transcript. Mr Erskine’s submissions in reply state that once funding was received for the appeal, his solicitor made a request for the transcript, as he was unaware it had been provided at an earlier time. That transcript was received on 17 August 2017. The submissions in reply state that loss of the “right to appeal would work demonstrable and substantial injustice”, due to Mr Erskine’s “youth and the very serious nature of his injuries.”

Consideration

The Extent of the Delay, and the Explanation for It

The extent of the delay, in excess of six months, is substantial. Mr Erskine’s submissions make various factual assertions going to delay. For the purposes of this application, I will treat those as if they were evidence. It is stated that no approval for funding (I infer from the Independent Legal Assistance and Review Service) was received until 26 July 2017, about 2½ months after the date of the decision. There is no indication of when instructions were received to seek funding for an appeal, when funding was sought, what steps were taken to follow it up, or why it was not received until 26 July 2017.
The Commission’s ‘Policies’ include a policy for ‘Sound Recording and Transcription of Commission Proceedings’ issued by the Registrar, dated 6 December 2011. The Policy is publically available on the Commission’s website. It provides that “[t]he Commission records arbitral proceedings using digital sound recording equipment, enabling a Compact Disc to be produced of the proceedings for archival purposes.” It states that “[u]pon request, the Commission will provide a copy of the recording to a party, at no cost to the party.” The Policy specifically warns parties:
“Parties should be mindful that an appeal against a decision of an Arbitrator can only be made within 28 days after the making of the decision appealed against, regardless of the availability of a transcript. A Presidential member may only extend the time to appeal in exceptional circumstances if satisfied that to lose the right to seek leave to appeal would work demonstrable and substantial injustice.”

The Policy also provides:
“The Commission transcribes all sound recordings of arbitration hearings where an appeal against an Arbitrator’s decision has been made to a Presidential member.
A copy of the transcript(s) of the proceedings is automatically provided to all parties to the appeal proceedings, at no cost to the parties.”
Practice Direction No 6 sets out the practice governing Presidential appeals. It is publicly available on the Commission’s website. It includes:
“A copy of the transcript of proceedings, if available, will be obtained by the Registrar and forwarded to each party to the appeal.
Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date of the letter from the Registrar addressed to the party enclosing a copy of the transcript.”
It is apparent, from the above, that it is envisaged that Presidential appeals will, in many instances, be lodged in advance of when transcript is available. It is now submitted by Mr Erskine that the transcript was received in December 2016, and again on 17 August 2017 following an application for it, after funding was granted for an appeal. There is no indication of whether a compact disc of the sound recording of the arbitration was sought at any stage. The submissions do not actually state that the transcript was forwarded to counsel when it was obtained initially, in December 2016. If it was, there is no indication of whether it was returned to Mr Erskine’s solicitors. There is no indication, if it was not sent to counsel, of what Mr Erskine’s solicitors did with it. There is no indication of when the transcript was sought after funding was obtained, or of what delay (if any) occurred between when an application was made, and when transcript was supplied. If there was some form of delay, there is no indication of what steps were taken to follow it up.
The submissions state that the transcript was received by counsel “in September 2017”; they do not say when in September. They do not say why there was a delay of somewhere in the vicinity of two to six weeks (depending on when counsel received it) from when the transcript was received (the second time) until counsel was placed in possession of it. The submissions say that counsel was unable to provide written submissions until 30 October 2017. This would be about four to eight weeks after counsel received the transcript. There is no specific indication of what caused this delay. There is a general, non-specific reference in the submissions to “counsel’s lack of availability”. The submissions do not describe the extent or reasons for the lack of availability, or whether attempts were made to engage other counsel in the circumstances.
Counsel having provided written submissions on 30 October 2017 (according to the submissions), there is no indication why the Notice of Application to Appeal was not lodged and registered in the Commission until 21 December 2017.
In short, there is no satisfactory explanation of delay, in circumstances where the appeal was made more than six months out of time.

Exceptional Circumstances

The onus is on Mr Erskine to establish ‘exceptional circumstances’. It is not a precondition to the extension of time, but the presence of ‘exceptional circumstances’ is something which a Presidential member is required to consider.[30] Campbell JA, in Yacoub, dealt with the phrase, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”[31]
[30] Bryce, [8].
[31] Yacoub, [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. Where the phrase appears r 16.2(12) of the Commission’s Rules, it is appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.
The above passage from Yacoub has been applied on multiple occasions in Presidential decisions dealing with the extension of time.[32]
[32] See by way of example Vaughan, Bennett Constructions (NSW) Pty Ltd v Bond [2014] NSWWCCPD 32; 15 DDCR 376, Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now de-registered) [2009] NSWWCCPD 64.
Mr Erskine’s submissions on time rely on three factors, delay in obtaining funding, delay in obtaining transcript, and counsel’s lack of availability to draft submissions at an earlier stage. His submissions do not address the presence of ‘exceptional circumstances’. The submissions are vague on what circumstances led to the appeal being out of time. They are silent on why funding was received when it was, why transcript was received (the second time) when it was, and why counsel did not furnish draft submissions at an earlier time (save for a vague reference to a “lack of availability”).
Cozwine submits, in my view correctly, that Mr Erskine’s submissions “make no serious attempt either to establish ‘exceptional circumstances’, or to explain the delay”.[33] None of the matters relied on by Mr Erskine constitutes ‘exceptional circumstances’. The combination of factors taken together cannot be seen as ‘exceptional circumstances’. Indeed, it is difficult to identify what the factors are. Mr Erskine’s submissions refer to the “delay” in obtaining funding and a transcript, but what is put does not permit adequate identification of what delay resulted from these factors, or why. It is apparent, from the discussion above dealing with the Commission’s policy on transcript, that it is routine for transcript to not be forwarded to the parties until after a Presidential appeal is instituted. The President, Judge Keating, has previously observed:
“The absence of transcript does not, in my view, constitute exceptional circumstances. In fact, it is the norm in appeal proceedings in the Commission that the transcript is generally made available only after a Notice of Appeal is filed.”[34]
[33] Cozwine’s submissions, [17].
[34] Murie v Schindlers Lifts Australia Pty Ltd [2012] NSWWCCPD 22, [44].
In all of the circumstances, Mr Erskine has not satisfied his onus of establishing the presence of ‘exceptional circumstances’.

Prejudice to Cozwine

Cozwine does not argue that it is prejudiced by the delay.

The Prospects of Success of the Appeal

This requires a consideration of the merits of the appeal.

Ground No 1

This ground asserts error by the Arbitrator in “suggesting that the time sheets admitted into evidence by [Cozwine] was [sic] a reliable indicator of the hours worked by [Mr Erskine]”.
Mr Erskine submits the time sheets were “composite” documents, filled out by him and amended by Cozwine. He submits they contain inaccuracies. They said that he was working on 26 March 2013 when in fact he was in hospital. The practice was that the timesheets were filled out by workers during the week, and handed in once per week, when they were manually consolidated. The time sheets did not reflect sick and holiday pay. Mr Erskine’s submissions refer to Mr Fiddler’s evidence that Mr Erskine’s time sheet “was different as it is a record of [Mr Erskine’s] time before we lodge these times with Cozwine.”[35]
[35] Mr Erskine’s submissions, [6]–[8].
The Arbitrator found that Mr Erskine’s timesheet was “a reliable indicator of the hours worked by [Mr Erskine]”.[36] Mr Erskine submits this constituted factual error, referring to Whiteley Muir & Zwanenberg Ltd v Kerr.[37] Mr Erskine submits this conclusion failed to give any weight to “the uncontroversial evidence that the time sheets contained inaccuracies and were amended by [Cozwine]”.[38]
[36] Decision, [31].
[37] (1966) 39 ALJR 505 (at 506), applied in Inghams Enterprises Pty Ltd v Sok [2013] NSWWCCPD 39 at [49] (cited in Mr Erskine’s submissions).
[38] Mr Erskine’s submissions, [10].
Cozwine submits that “the only variation between the fact and the record and the timesheets appears to be that [Mr Erskine] was recorded, for the purposes of recovery of sick pay, to be at work at a time when he was in hospital”. This “does not lead to the conclusion that the tribunal was not entitled to regard the sheets as reliable”. Cozwine submits that the conclusion the Arbitrator drew, from the timesheets, was that Mr Erskine “left work at the Bilbul/Yenda farm no later than 3.45 pm on 25 March 2013”.[39] This was consistent with Mr Erskine’s statement dated 29 June 2016, in which he said that on 25 March 2013 he “finished work at about 3.45 pm”.[40] Thus, even if the reliance on the timesheets was erroneous (which is disputed), it did not affect the Arbitrator’s conclusion about when Mr Erskine finished work on the date of injury. Cozwine additionally submits that the Arbitrator’s conclusion, that Mr Erskine’s relevant journey on 25 March 2013, was “not work-related”, was based on the evidence and statements of witnesses, including Mr Fiddler.
[39] Cozwine’s submissions, [29], quoting the decision at [32].
[40] ARD, p 31.
Mr Erskine’s written submissions before the Arbitrator made the same submission as is now made, that the time sheet was “not a reliable indicator of the actual hours worked nor is it an accurate indicator of the employment of [Mr Erskine]”. The basis of the submission then, as now, was that the time sheet indicated that Mr Erskine was working on 26 March 2013, when in fact he was in hospital, the accident having occurred on 25 March 2013. This led Mr Fiddler to initially believe that the date of accident was 26 March 2013. Mr Erskine submitted that this discrepancy emerged in cross-examination, and Mr Fiddler “proved himself to be an inconsistent and unreliable witness”. Mr Erskine’s written submissions acknowledged the acceptance by Mr Fiddler (who gave evidence about the time sheets amongst other things) that this belief was in error.[41] It was submitted the evidence of Mr Erskine should be preferred to that of Mr Fiddler.
[41] Mr Erskine’s arbitral written submissions, [16]–[20] and [23].
The Arbitrator dealt with this in his reasons, saying he was “satisfied that the entry of 26 March 2013 was adequately explained by Mr Fiddler as relating to the payment of sick leave.”[42] The Arbitrator did not fail to give any weight to the evidence about this discrepancy, as Mr Erskine submits, rather he referred to it and accepted Mr Fiddler’s explanation in his oral evidence. Mr Fiddler had agreed in-chief that his recollection of the date of accident could have been wrong, and it could have been the 25th. He was “relying on the timesheet” when he checked the dates.[43] Mr Fiddler said in-chief that the timesheet showed Mr Erskine was working on the 26th, however this was because he was paid “one day’s sick pay”,[44] which was all he was entitled to after working for a month.[45]
[42] Decision, [31].
[43] T 4.29–5.6.
[44] T 6.32–4.
[45] T 7.2–8.
The Arbitrator was not under any obligation to reject the reliability of the time sheets overall, because Mr Fiddler initially read them as indicating Mr Erskine was at work on 26 March 2013, when in fact he received sick pay for that day. The Arbitrator accepted the time sheets, in finding that Mr Erskine worked to 3.30 pm on 25 March 2015, and would have left the Bilbul site no later than 3.45 pm. This was essentially consistent with Mr Erskine’s statements dated 29 June 2016 and 18 October 2016, in which he said “I finished work at about 3.45 pm.”[46] If this is viewed as a discrepancy, little turns on it. The Arbitrator, as Cozwine’s submissions state, concluded that the relevant “journey was not work-related” on the basis of the lay evidence, in particular that of Mr Fiddler. The result was not dependent on an acceptance of the precise time when Mr Erskine finished work at Bilbul on 25 March 2013.
[46] ARD, p 31, Application to Admit Late Documents, dated 20 October 2016, p 2.
Mr Fiddler made an error in the initial evidence in his statement, regarding the date of the accident.[47] He explained how this occurred, in his oral evidence, and the Arbitrator accepted his explanation for this error. The Arbitrator was entitled to accept his evidence on other matters, the evidence of a witness may be accepted on some matters and not others.[48] The Arbitrator was not obliged to reject the reliability of the time sheets overall, because one of them did not differentiate between sick pay and pay for hours worked.
[47] Fiddler statement, [16].
[48] Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167, [30].
The Arbitrator noted the submission on Mr Erskine’s behalf, that Mr Fiddler’s evidence lacked consistency, and that of Mr Erskine was “both consistent and reliable”. The Arbitrator said:
“To the contrary, I note that having reference to the more contemporaneous objective evidence in the proceedings the applicant’s statement evidence contained a number of inconsistencies.”[49]
[49] Decision, [35].
The Arbitrator referred to inconsistencies in representations by Mr Erskine relating to the time of the accident, his usual working hours, when he commenced working with Cozwine and when he finished up working with Cozwine. The Arbitrator referred to Mr Erskine’s evidence that Josh Kingston was present at the work site with him, on 25 March 2013. This was contradicted by the time sheet records, which indicated that Mr Kingston was on leave from 21 March 2013 to 2 April 2013.[50] The Arbitrator referred to evidence from Mr Fiddler, which cast doubt on Mr Erskine’s evidence that he proposed moving tools out of his vehicle when he got back to the Clark Road farm on the date of accident.[51] He referred to Mr Fiddler’s evidence, directly contradicting that of Mr Erskine regarding whether, prior to the accident date, Mr Fiddler had asked Mr Erskine to move “empty chemical drums at the Clark Road farm into the pump shed”. Mr Fiddler said he had made such a request later.[52]
[50] Decision, [35]–[39].
[51] Decision, [40].
[52] Decision, [42]–[44].
The Arbitrator accepted that Mr Fiddler’s evidence regarding the drums was “overall consistent”. He clearly accepted that evidence, making a specific finding that Mr Fiddler did not give such an instruction to Mr Erskine prior to 25 March 2013. He found that moving these drums at Clark Road farm was not a “motivating factor” for the journey to the Clark Road farm on 25 March 2015. [53] The Arbitrator found that putting tools into the pump shed at Clark Road farm was not a “relevant purpose for undertaking the journey”.[54] Cozwine’s submissions are correct, the Arbitrator’s conclusion that the “journey was not work-related” was based on a consideration of the lay evidence, particularly “an acceptance of the evidence of Mr Fiddler”.[55] It did not turn on the time sheets.

Ground No 2

[53] Decision, [45].

[54] Decision, [48].

[55] Cozwine’s submissions, [32].

This ground states that the “Arbitrator committed an error of fact in finding that [Mr Erskine] completed work at no later than 3.45pm on 23 March 2013 [sic, 25 March 2013]”. Mr Erskine submits that the Arbitrator’s conclusion, that Mr Erskine finished work no later than 3.45 pm on 25 March 2015, was based on an acceptance of the reliability of the time sheets. In making the finding the Arbitrator “gave undue weight to the time sheet evidence and little or no weight to the worker’s own evidence.”[56]
[56] Mr Erskine’s submissions, [11]–[12].
Cozwine submits that the Arbitrator “clearly discharged his obligation of weighing competing evidence and … preferred the evidence of Mr Fiddler, and set out his reasons for doing so”.[57]
[57] Cozwine’s submissions, [39].
This ground is adequately dealt with above, in the consideration of the merits of Ground No 1. The Arbitrator discussed the lay evidence on both sides of the record, in detail. He gave reasons for preferring the evidence of Mr Fiddler to that of Mr Erskine, a course which was open to him. This led to Mr Erskine’s failure to discharge his onus of establishing that the injury occurred in the course of or arising out of his employment. The Arbitrator’s conclusions were not simply a result of accepting the reliability of the time sheets. Mr Erskine cannot demonstrate factual error.

Ground No 3

This ground asserts error in fact and law, in the finding that the purpose of the journey to Clark Road farm on 25 March 2013 “did not have a substantial connection to work”.
The Arbitrator made a finding that the relevant journey to Clark Road farm was not for an “employment purpose”, but rather for a “private purpose” (to travel to his place of abode).[58] Mr Erskine submits the effect of this was that “the journey did not have a substantial connection to work”. Mr Erskine submits this involved “an error of mixed fact and law”.[59] The Arbitrator noted:
“… [Mr Erskine] has not expressly stated that the fulfilment of such a task [moving empty chemical drums into the pump shed] that afternoon was the purpose that he undertook the journey, or that he was leaving the workplace at the Bilbul farm with the intention to travel directly back to the Clark Road farm so as to immediately complete that task upon his arrival, and not, for example, the following work day morning.”[60]
[58] Decision, [49], (Mr Erskine’s submissions describe it as being at [50]).
[59] Mr Erskine’s submissions, [13].
[60] Decision, [50].
Mr Erskine submits that this finding does not take into consideration Mr Erskine’s evidence in his statement, that “it was my intention to do this when I got back to the Clark Road farm.”[61] It is submitted the Arbitrator “therefore gave [Mr Erskine’s] evidence as to the reason for his journey to the Clark Road farm too little weight”. Mr Erskine’s submissions refer again to the Arbitrator’s acceptance of the time sheets, which Mr Erskine is critical of. His submissions refer to the following factual finding:
“I am satisfied an employment purpose for the journey was not operative, and that the purpose of the journey was a private purpose, the applicant had finished work for the day and was travelling from his place of employment to his place of abode.”[62]
[61] Mr Erskine’s statement dated 18 October 2016, [23].
[62] Decision, [49].
Mr Erskine submits this was an incorrect legal conclusion, which resulted from the factual errors referred to in the two preceding paragraphs.
Cozwine submits that what is set out at [50] was “an addendum” to the “determinative reasoning” at [45], that Mr Erskine “had not been instructed, prior to his journey, to move empty chemical drums”. Cozwine submits that that finding was “supported by reasoning and available on the evidence … It contained no error.” Even if there were error in the decision at [50], which is disputed, nothing would flow from it.[63]
[63] Cozwine’s submissions, [42]–[44].

Cozwine submits that the purpose of Mr Erskine’s journey, as the Arbitrator found, was to travel “from his place of employment to his place of abode”. Even if there were an intention, at some time after arrival, to move drums, this did not rob the journey of its purpose, “to go home”.[64]
[64] Cozwine’s submissions, [47].
The submission that the Arbitrator did not give sufficient weight to Mr Erskine’s stated intention, to move empty drums at the Clark Road farm (see [55]–[56] above) is essentially misconceived. The Arbitrator gave consideration to Mr Erskine’s stated intention to move the drums, in accordance with the direction he was given by Mr Fiddler. He gave consideration to Mr Fiddler’s evidence that he did not give Mr Erskine any such direction, prior to 25 March 2013. This is dealt with at [53]–[54] above. It is not that the Arbitrator failed to give weight to this evidence of Mr Erskine. The Arbitrator was required to resolve the conflict between the evidence of Mr Erskine and Mr Fiddler, on this issue. He resolved this conflict, preferring the evidence of Mr Fiddler. That approach was available on the evidence, and the Arbitrator gave reasons for the approach which he took.
The repeated criticism, of the Arbitrator’s acceptance of the time sheets, is dealt with in the consideration of Ground No 1 above.
The Arbitrator’s finding that he was not satisfied the journey to the Clark Road farm was for an “employment purpose”, flowed from his rejection of Mr Erskine’s evidence going to the purpose of the journey. For reasons given above, the Arbitrator’s findings were not erroneous.
Mr Erskine’s submissions on this appeal, relating to Ground No 3, use the phrase “substantial connection to work”. The Arbitrator rejected Mr Erskine’s argument that the accident occurred in the course of or arising out of his employment. The Arbitrator found that the accident on 25 March 2013 occurred in the course of a journey by Mr Erskine from his place of employment to his place of abode. The application of s 10 of the 1987 Act, to make injury on a periodic journey compensable, depends (since commencement of the Workers Compensation Legislation Amendment Act2012) on s 10(3A) of the 1987 Act, which provides:
“A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.”
The Arbitrator’s reasons, at [52]–[54], considered whether section 10(3A) was satisfied, such that the injury may be compensable pursuant to s 10 of the 1987 Act. The Arbitrator concluded he was not satisfied that there was a “substantial connection” between the employment and the accident. Section 10(3A) was not satisfied.
Notwithstanding the use, in Mr Erskine’s submissions going to Ground No 3, of the phrase “substantial connection” which is found in s 10(3A), those submissions do not appear to relate to s 10(3A). The submissions do not refer to that part of the decision which deals with s 10(3A). The submissions refer to the decision at [49]–[50], which deals with whether the injury occurred in the course of or arising out of Mr Erskine’s employment. The submissions do not contain any reference to s 10 or the principles applicable to such claims. Mr Erskine does not challenge the Arbitrator’s findings dealing with s 10(3A). The reference to s 10 in these reasons is for the sake of completeness.
It follows, from the above discussion, that the appeal does not have reasonable prospects of success.

Conclusion

The following factors support the extension of time:
(a) Cozwine does not argue that it suffers prejudice due to the delay.
The following factors militate against the extension of time:
(a)    The delay is substantial, in excess of six months;
(b)    There is no adequate explanation of the delay;
(c)    The presence of ‘exceptional circumstances’ is not established;
(d)    The appeal does not have reasonable prospects of success. As a consequence, there is little prejudice to Mr Erskine in refusing the application for leave, and
(e)    Cozwine has a vested interest in maintaining the decision in its favour.
The factors overall significantly favour the refusal of Mr Erskine’s application to extend time pursuant to r 16.2(12) of the Rules, in particular, the lengthy delay which is not adequately explained, and the lack of prospects of success. I am not satisfied that loss of the right to appeal will work demonstrable and substantial injustice in the circumstances.

DECISION

Mr Erskine’s application to extend the time for making an appeal, pursuant to r 16.2(12) of the Rules is refused.

Michael Snell

Deputy President

7 March 2018