Falcon, Parks v Navbay Pty Ltd
[2003] NSWWCCPD 32
•12 November 2003 Application for Leave to appeal against a decision of an Arbitrator refusing leave to amend a Reply. Factors relevant to the exercise of discretion under Interim Rule 20.
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION: | Val Parks v Navbay Pty Ltd [2003] NSW WCC PD 32 |
| APPELLANT: | Navbay Pty Ltd |
| RESPONDENT: | Val Parks |
| INSURER: | NRMA Workers Compensation (NSW) (No. 2) Pty Ltd |
| FILE NO: | WCC 3503-2002 |
DATE OF ARBITRATOR’S DECISION: | 22 May 2003 |
| DATE OF APPEAL DECISION: SUBJECT MATTER OF THE DECISION: | 12 November 2003 Application for Leave to appeal against a decision of an Arbitrator refusing leave to amend a Reply. Factors relevant to the exercise of discretion under Interim Rule 20. |
PRESIDENTIAL MEMBER: | President Justice Terry Sheahan |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Sparke Helmore Solicitors |
| Respondent: Firths The Compensation Lawyers | |
| ORDERS MADE ON APPEAL: | Leave to appeal is granted. |
THE APPEAL
On 6 June 2003 NRMA Workers Compensation (NSW) (No. 2) Pty Ltd, (‘the Appellant Insurer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 May 2003, which was served on the Respondent to the appeal, Mr Val Parks (‘the Respondent Worker’) on 20 June 2003.
The Arbitrator decided to refuse to allow the Appellant Insurer to amend the ‘Reply to an Application to Resolve a Dispute’ (‘the Reply’) as filed on 13 March 2003.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Appellant submits that: “Although this appeal does not involve any monetary figure, the quantum in issue, is in excess of the $5,000.00 threshold.” It is clear from the determination of Deputy President Byron in Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 (‘Mawson’) that where the ‘decision’ under appeal does not involve the making of a monetary award, the threshold requirements of section 352(2)(b) of the 1998 Act have no operation. In Mawson Deputy President Byron accepted the argument that the decision under appeal had the potential to affect the Applicant’s ability to fully present his case, and, therefore to affect the substantive issues, namely the whole of the compensation at issue in the appeal. This reasoning is also applicable to a ‘decision’ refusing to allow a Respondent to substantially amend a ‘Reply to an Application to Resolve a Dispute’.
Rule 27 of the Interim Workers Compensation Commission Rules 2001 (‘the Interim Rules’) which governed these proceedings at the relevant time (now reflected in an expanded Rule 40 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’)), required a Reply to contain “all information and documents on which the Respondent proposes to rely that are in the possession of the Respondent” at the time of filing. Rule 20 of the Interim Rules, (now reflected in an expanded Rule 17 of the 2003 Rules) allowed the Commission a discretion to grant leave to a party to amend a Reply. Where such an amendment potentially adds a whole new issue to the dispute, it will impact on a party’s ability to respond to a claim (see also ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21).
Section 352(2)(a) of the 1998 Act, however, provides that the Commission is not to grant leave to appeal unless the “…amount of compensation at issue on the appeal is…at least $5000.” The amount of compensation at issue on appeal is determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (see Grimson v Integral Energy [2003] NSW WCC PD 29). In its ‘Application to Resolve a Dispute’ lodged with the Commission on 21 October 2002, the Respondent Worker claimed an amount well in excess of $5,000 was in dispute in this matter.
For these reasons, leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the Act provides:
“354 Procedure before Commission
(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 Direction Number 1, the documents that are before me, and the submission by the Appellant Insurer 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. Although I have received no submissions from the Respondent Worker, it is evident from the file that he is on notice of this appeal.
EVIDENCE AND SUBMISSIONS
The Appellant Insurer submitted that:
· the application to amend the Reply was made in order to raise in defence against the substantive claim, the issue that: “The Applicant’s employment was not a substantial contributing factor to the injury pursuant to s9A of the [Workers Compensation] Act [1987]”. The Applicant relied on “Section (sic) 20” of the Interim Rules.
· Rule 20 of the Interim Rules “…does not highlight that notice must be provided prior to making an application and in fact, this section does not suggest a reasonable timeframe to amend documents.”
· it was “…reasonable and consistent with the rules to attempt to amend the Reply at the time it did, given that it would be ‘in the interests of justice’ that the amendment be allowed” and that there would be no prejudice to the Respondent Worker because “Section 9A is a legal argument, which does not require any further investigation. The Application for Dispute Resolution will not be hindered or delayed by the proposed amendment.”
· the Arbitrator failed to consider an issue of procedural fairness, that: “the Reply filed on 13 March 2003 had not substantially addressed the issues in dispute. However, in defence of the author, at the time of preparing the Reply certain material was not available.”
· Under the heading “Inconsistencies in Certificate for (sic) Determination” that “There was a misunderstanding or miscommunication during the teleconference…” The Appellant Insurer disputes the Arbitrator’s account of the teleconference as described in his written statement of reasons for decision, and submitted that a quote was taken out of context.
· “The Arbitrator wholeheartedly accepted the [Respondent Worker]’s submissions that this issue had been dealt with at the conciliation conference”, and that the earlier “…WCRS Conciliation Conference is irrelevant to these proceedings.”
· the Reply was not filed out of time because the Appellant Insurer did not receive the Application until 16 January 2003.
· the Arbitrator based his decision on “…inaccuracies, which were irrelevant and not a valid considering (sic) when applying Section (sic) 20 of the Interim Rules.”
The Appellant Insurer conceded that there was no reference to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) in the Reply and: “…that there was no prior (sic) to the Applicant or the Commission that the Respondent intended to amend the Reply.”
As noted above, there are before me no submissions on behalf of the Respondent Worker.
DISCUSSION AND FINDINGS
Legislation and Associated Rules
Section 364 of the 1998 Act provides for the making of Rules by the Commission. At the time when the Arbitrator’s decision and then this appeal were made in these proceedings the relevant Rules, so made under the 1998 Act, were the Interim Rules which have now been repealed and replaced by the 2003 Rules.
Rules with respect to the Commission’s procedures must be read in light of the objectives of the Commission and the statutory provisions that govern its procedures, in particular, sections 367 and 354 of the 1998 Act, which provide:
“367 Objectives of the Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
. . . .”
At the relevant time Rule 20 of the Interim Rules provided:
“20 Amendment of documents
(1) The Commission may, in any proceedings before it, amend any document filed in connection with the proceedings if the Commission considers the amendment to be necessary in the interests of justice.
(2)Such amendment may be made at any stage of the proceedings (including the commencement or purported commencement of proceedings), and on such terms as the Commission thinks fit.”
While it should be noted that Rule 17 of the 2003 Rules replaced Interim Rule 20, Rule 17 does not apply to amendment of the Reply. The combined operation of Rule 17(4) and Rule 40(1) of the 2003 Rules, means that Rule 40 governs the process whereby the Reply may be amended in limited circumstances.
Rule 40 of the 2003 Rules provides:
“40 Material to be lodged by respondent
(1)For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.
(2)Subject to subrules (3)–(5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the respondent has lodged and served with the reply a statement revealing:
(i) the specific nature of the evidence, and
(ii) the reliance the respondent intends to place on the evidence, and
(iii) the reasons why the evidence is not available at the time of service, and
(iv) the time it is expected to be available, and
(b) the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3)The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).
….”
The Decision of the Arbitrator
The Arbitrator referred to submissions from both parties, including those from the Appellant Insurer that:
· The Appellant Insurer would “like to hear from the [Respondent Worker]…further as to ‘exactly what happened’…and, depending upon that, the Respondent may or may not seek to amend the Reply” and
· “…there were a couple of histories from doctors and hospitals…and these may need to be clarified first’, for which purpose or related to which, the [Appellant Insurer] may seek to amend the Reply.”
The Arbitrator also referred to submissions from the Respondent Worker that:
· the injury and incident had been the subject of previous proceedings where some liability had been accepted,
· there had been almost four years since the date of injury and two months since the Reply had been filed for the Appellant Insurer to amend the Reply “on a potential new or additional basis”, and
· the Respondent Worker deserved his case to be dealt with and progressed and that it would be contrary to the interests of justice for the matter not to be progressed.
The Arbitrator’s reasons for decision noted that:
· the Application was filed with all the material upon which the Applicant relied in accordance with the Interim Rules.
· the Reply included within Part 3:
“3. List the issues which remain in dispute …
(a) Factual -
(b) Medical -Quantum – Respondent and Applicant’s medical evidence is in variance as to assessment of loss of use of the left leg and back.
(c) Legal -
s68A deduction for previous injury or pre-existing conditions or abnormality’.”
· the Directions to Produce and Access Orders, had been complied with, “…with appropriate time and opportunity well before the Teleconference for both [Respondent Worker] and [Appellant Insurer] to conclude these aspects of process in these proceedings”, that “…there was no prior notice from the [Appellant Insurer], prior to the Teleconference on 16th May 2003, of any application, or potential application, to be raised at the Teleconference as to contend for further issues of legal liability to be raised, or for ‘further information’ upon which a further legal issue may be contended, whether by any such prior notice to the Commission or to the [Respondent Worker]” and that “…the [Respondent Worker] had prepared for, and was ready to deal with and progress the matter.”
· the [Respondent Worker] had written to the Respondent on 9th May 2003, “prior to the Teleconference, in the context of Dispute Resolution, with neither a reply from the [Appellant Insurer] prior to the Teleconference nor any indication otherwise from the [Appellant Insurer] as to ‘further issues’ or of any potential amended Reply then being raised.”
· the [Respondent Worker]’s submission that: “…it is unsatisfactory for a solicitor for the [Appellant Insurer], having acknowledged in the Teleconference that he had only inherited carriage and his reading of the file that morning (Friday 16th May 2003), to be seeking then and at that point to be raising, without prior notice further, and so late in the day, such potential new Reply issue, against the other background described.”
· “… in the context of this late Teleconference application by the [Appellant Insurer] to amend its Reply, that the [Appellant Insurer], in this matter, has apparently already been granted… additional time to lodge its Reply…”
The Arbitrator concluded that:
“…the [Appellant Insurer]’s application at the Teleconference on 16th May 2003 to amend its Reply under Rule 20 of the Rules is not made out. It is not necessary in, nor serves the interests of, justice as submitted by the [Appellant Insurer] and in particular against the background of the Reasons above set out and in the further context of the submissions opposing the said Application made by the [Respondent Worker].Further, that it would be prejudicial to the [Respondent Worker], in the circumstances of this matter, including for the Reasons above set out, and on the submissions made on behalf of the Applicant, to grant the late request of the [Appellant Insurer] made on 16th May 2003 to amend its Reply to the Application.”
Exercise of Discretion
On 1 July 2003 I issued Practice Direction 9, which concerns the lodgment of late documents, in the Commission. This Practice Direction was not available to the parties in this matter at the relevant time but is helpful for the determination of this matter because it lists a number of factors that should be considered in the exercise of the Arbitrator’s discretion to admit late documents. Those factors are also relevant to the exercise of the Arbitrator’s discretion to allow amendment of a Reply. Those factors listed in the Practice Direction include:
· “the submissions of the parties, including, if any, oral or written objections to the grant of leave,
· the effect, if any, on the timely resolution of the dispute,
· the extent of the prejudice to the other parties, if any, that would result from granting leave,
· the requirements of the Act and the Rules, and
· the objectives of the Commission.”
It is for the party seeking the exercise of the discretion, the Appellant Insurer in this case, to demonstrate why the Reply should be allowed to be amended.
A Reply was required, by Rule 27 of the Interim Rules, (now Rule 40 of the 2003 Rules), to contain “all information and documents on which the Respondent proposes to rely that are in the possession of the Respondent” at the time of filing. Interim Rule 27(2) also provided that a respondent may not introduce evidence that has not been included with the reply unless a statement describing that evidence was lodged with the reply.
In the absence of any legislative direction as to how the discretion in Interim Rule 20 is to be exercised, particularly in the light of Interim Rule 27, it is a matter for the Arbitrator to determine in accordance with what is fair and reasonable in the particular circumstances of each case.
The exercise of such discretion has been discussed before by presidential members of this Commission, (see M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19). The discretion must be exercised in accordance with the objects of the legislation, within the particular statutory context of the decision-maker, and not capriciously (see Salido v Nominal Defendant (1993) 32 NSWLR 524).
In ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 (‘ADCO Constructions’) Deputy President Fleming listed other factors for consideration in the exercise of discretion including:
· the conduct of the party seeking leave,
· whether or not the refusal to amend the Reply will cause a substantial prejudice or injustice to the party seeking leave,
· the prejudice, if any, that would result to the other party in admitting the Reply, although, the mere absence of prejudice is not necessarily sufficient to grant an extention of time (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305, Practice Direction 9),
· the nature of the proceedings, including the nature of the relevant statutory scheme and the objectives of the legislation (Practice Direction 9), and
· general considerations of fairness and justice between the parties (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305; Gallo v Dawson (1990) 64 ALJR 458).
Consideration of all those factors in this matter requires a balancing of interests between the parties, and consideration of the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives.
It is clear that the Reply in this matter contained no notice that any issues, other than the medical issue relating to quantum, and the legal issue related to section 68A of the 1987 Act, are in dispute. It is also clear that the Appellant Insurer gave no notice of any other issue being in dispute before the application to amend the Reply was made at the teleconference on 16 May 2003.
This is not a matter analogous to the situation in the case of ADCO Constructions where Deputy President Fleming revoked and replaced an Arbitrator’s decision to refuse late filing of the Reply. In this matter a Reply was filed, and whatever the previous dealings between the parties and the circumstances of the filing and service of the Application, there was considerable time between the filing of the Reply (13 March 2003), the Access period for the documents produced under the Appellant Insurer’s Direction to Produce (ending on 16 April 2003), and the holding of the teleconference (16 May 2003) where the application to amend the Reply was made. Hence there was considerable time for the Appellant Insurer to give notice prior to the teleconference of its intention to seek to amend the Reply.
I also accept that to allow amendment in this case would cause the Respondent Worker prejudice. As the Arbitrator considered in his decision, “…the [Respondent worker] had prepared for, and was ready to deal with and progress the matter…on all of the materials as filed by the [Respondent worker] within its Application, and by the [Appellant Insurer] within its Reply, which materials have been before the Commission and the parties since the first filing of the Application…and of the Reply… on 13th March 2003.” The Respondent Worker appeared ready and willing to deal with the matter at the teleconference, and was not on notice of the new issue; hence one would expect him to have required an adjournment to formulate an argument and perhaps gather new evidence to meet that new issue. There was no reasonable explanation given by the Appellant Insurer to the Arbitrator as to why the new issue had been raised late, and why no indication of it had been given before the teleconference.
I am satisfied that the Arbitrator properly took into account all the factors discussed above as relevant to the exercise of the discretion sought to be exercised in this matter.
DECISION
In all of the circumstances of this matter I am of the view that the Arbitrator’s determination should be affirmed.
The appeal is dismissed. The order made in the appeal is that: The decision of the Arbitrator to refuse leave to the Appellant Insurer to amend the Reply is affirmed.
COSTS
The Appellant Insurer should pay the costs of this appeal.
Justice Terry Sheahan
President
I certify that that this is a true and accurate record of the reasons for decision of President, Justice Terry Sheahan, Workers Compensation Commission
Registrar Date:
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