Evans v Halcrow Bros Transport Specialists Pty Ltd
[2004] NSWWCCPD 82
•18 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Evans v Halcrow Bros Transport Specialists Pty Limited [2004] NSW WCC PD 82
APPELLANT: Shane Evans
RESPONDENT: Halcrow Bros Transport Specialists Pty Limited
FILE NUMBER: WCC18936-03
DATE OF ARBITRATOR’S DECISION: 25 May 2004
DATE OF APPEAL DECISION: 18 November 2004
SUBJECT MATTER OF DECISION: Appeal filed late; Factors relevant to an extension of time.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Beston Macken McManis Solicitors
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
BACKGROUND
On 6 July 2004 the Commission received an appeal from Shane Evans against the decision of an Arbitrator dated 25 May 2004.
The Respondent to the Appeal is Halcrow Bros Transport Specialists Pty Limited.
The appeal is against a decision that Mr Evan’s ‘Application to Resolve a Dispute’ be discontinued because the Commission had no jurisdiction to consider it.
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 (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).
If leave is granted, the second issue to be determined is whether the Arbitrator was wrong to find that he had no jurisdiction to hear the appeal.
SHOULD LEAVE TO APPEAL BE GRANTED?
An appeal must be filed within 28 days of the making of the Arbitrator’s decision (Section 352(4) of the 1998 Act). In this case, 28 days expired on 22 June 2004.
The appeal was lodged six weeks after the decision was made.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (the Rules) provides that a Presidential member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, 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 (Gallo v Dawson (1990) 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liq) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637).
FINDINGS AND REASONS ON LEAVE
A telephone conference was held on 31 March 2004 and a conciliation/arbitration hearing was held on 3 May 2004.
The Arbitrator provided written reasons for decision on 25 May 2004 and these were sent to the parties’ legal representatives by DX on the same day.
The Appellant submits that the decision was not received in his solicitor’s office until 10 June 2004, some sixteen days later and that “. . . [G]iven the sixteen day delay in receiving this decision it is submitted a grant of Extension of Time for making the Appeal should be given. If the Applicant lost the right to seek leave to appeal the Applicant would suffer a substantial injustice in the circumstances”.
This submission does not adequately address the reasons for the delay in filing the appeal. The Appellant had a further twelve days to file the reply following receipt of the decision. Had he done so the appeal would have been within time. There is no filing fee for lodging an appeal and the appeal form is a simple document. The Appellant has not filed lengthy submissions in support of the appeal so I conclude that preparation of same was not a factor in the delay. The appeal was not filed until a further three and a half weeks after the date on which the Appellant claims to have received the decision. It is extraordinary Mr Evans has now twice been in the position of having to seek an extension of time to file proceedings, having been in exactly this position in the District Court in 2001.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes.
I accept that the Appellant will be disadvantaged, to the extent only that he will be unable to pursue the appeal. At the same time the Respondent is entitled to rely upon the Arbitrator’s order. It should not be put to the task of meeting the Appellant’s arguments, for a second time, on appeal, unless there are exceptional reasons to justify an order that they must do so.
The grounds of appeal repeat the arguments that were put before the Arbitrator. Without coming to a concluded view on the prospects of success of the appeal, I am not persuaded that they are substantial. The Arbitrator has referred to relevant and recent authorities to support his decision. The Appellant submits that there are no authorities relevant to the particular facts of this case and which support its argument. The materials currently before me on the appeal do not persuade me that the Appellant is likely to be successful in demonstrating that the Arbitrator failed to determine the matter lawfully and fairly.
I am not satisfied that I should exercise discretion to grant the Appellant leave to file the appeal out of time.
DECISION
Leave to appeal is refused.
Dr Gabriel Fleming
Deputy President
18 November 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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