Falcon v Narellan Enterprises Pty Limited
[2003] NSWWCCPD 34
•21 November 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Rania Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34 |
| APPELLANT: | Rania Falcon |
| RESPONDENT: | Narellan Enterprises Pty Limited |
| INSURER: | Zurich Australian Workers Compensation Limited as managed by NRMA Workers Compensation (NSW) Pty Limited |
| FILE NO: | WCC 9637-2003 |
| DATE OF ARBITRATOR’S DECISION: | 22 July 2003 |
| DATE OF APPEAL DECISION: | 21 November 2003 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision of an Arbitrator, Discretion to Admit Late Documents, Compliance with Rules. |
| PRESIDENTIAL MEMBER: | Deputy President Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: White Barnes Solicitors |
| Respondent: Rankin & Nathan Solicitors | |
| ORDERS MADE ON APPEAL: | Leave to appeal is granted, only in relation to the following decisions: That the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003. That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003. The decision of the Arbitrator is confirmed The matter is referred to the Registrar for further directions. |
THE APPEAL
Rania Falcon (‘the Appellant’) lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 July 2003. The Respondent to the appeal is Narellan Enterprises Pty Limited (‘the Respondent’) and the Insurer is Zurich Australian Workers Compensation Limited, currently managed by NRMA Workers Compensation (NSW) Pty Limited (‘the Insurer’).
The Appellant claims weekly benefits compensation and lump sum compensation for permanent impairment.
The Application to Appeal was not date stamped in the Commission but on its face, states that it was served on the Respondent on 7 August 2003.
Further submissions from the Appellant, in accordance with Practice Direction No. 6, were received from the Appellant on 17 September 2003.
The appeal was registered in the Commission on 19 September 2003.
The Respondent filed submissions in reply to the appeal on 9 October 2003 and 27 October 2003.
The appeal was referred to me for review on 3 November 2003.
THE DECISION UNDER REVIEW
The Order issued by the Commission on 22 July 2003 sets out the decision of the Arbitrator as follows:
1.Pursuant to Rule 13(1), the Commission orders that the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003.
2.By consent the Applicant is given leave to file and serve an amended statement dealing with the s67 claim and the issues raised in Dr Simmons’ reports within 14 days.
The Appellant claims that the Arbitrator also made “certain oral orders as follows:
3.That the Respondent need not amend its Reply to properly reflect the issues in dispute between the parties.
4.That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003.
5.That the Applicant’s claim for lump sum entitlements not be referred to an Approved Medical Specialist.
6. That the matter be stood over generally and scheduled for a further teleconference to be advised by the Commission in due course.”
The Appellant submits that numbers I, 3, 4, 5 and 6, of the above purported orders should be overturned.
The Arbitrator heard submissions on the issue of the late admission of the Reply and Directions to Produce on 18 July 2003. In accordance with Commission practice, this telephone conference was not recorded. The orders made by the Arbitrator and a short statement of reasons were reduced to writing and issued on 22 July 2003.
ON THE PAPERS REVIEW
Subsection 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 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 the President’s Directions, No’s. 1 and 6, the submissions that have been made by both parties, and the documents that are before me, 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 of this matter.
THE ISSUES IN DISPUTE
The Appellant claims that the Arbitrator erred in exercising her discretion, and in the application of the Interim Workers Compensation Commission Rules 2001 (‘the Interim Rules’). The Appellant submits that the Arbitrator failed to give due weight and consideration to the Appellant’s submissions in the making of the above ‘decisions’.
The Respondent submits that the Arbitrator’s decisions were properly made and should be confirmed. The Respondent also seeks costs of the appeal.
In my view a further, threshold, issue arises on the appeal, namely whether the purported decisions, set out above as 3, 4, 5, and 6, are ‘decisions’ that are reviewable pursuant to subsection 352(8) of the 1998 Act. This section defines decision to include “. . . an award, interim award, order, determination, ruling and direction”.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, as follows:
352Appeal 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 Respondent has not challenged whether the appeal was filed in time, in accordance with Subsection 352(4) and Rule 77 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’).
The Arbitrator’s decision was made on 22 July 2003 and the Order was issued on the same day. On the basis of the documents before me I find that the appeal was lodged within 28 days of that decision, i.e. on 7 August 2003, in compliance with subsection 352(4) of the 1998 Act.
The decision of the Arbitrator in this matter does not concern an award of compensation. Subsection 352(2)(b) of the 1998 Act therefore has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5). However the substantive proceedings in the Commission remain on foot, and the ‘amount of compensation at issue on the appeal’ may be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Robert Grimson v Integral Energy [2003] NSW WCC PD 29).
In this case the worker’s claim for compensation is for a lump sum amount of compensation in relation to an injury to her left leg, and payments of weekly compensation from 24 December 2002, and continuing. This is, in total, an amount far in excess of $5,000. I find that subsection 352(2)(a)of the 1998 Act is satisfied.
As noted above, the Orders issued in writing by the Arbitrator on 22 July 2003 do not contain the purported ‘decisions’ set out as 3, 4, 5 and 6 above. Other than the assertions of the Appellant’s legal representative, I have no evidence that these purported orders were in fact made by the Arbitrator. In the event that they were made, I am not satisfied that they are ‘decisions’, as that word is defined under subsection 352(8) of the 1998 Act. Taking each purported order in turn:
3.That the Respondent need not amend its Reply to properly reflect the issues in dispute between the parties.
This is not a matter that requires a ‘decision’ by an Arbitrator. It is a matter for the Respondent whether or not to amend its Reply. Any direction made by the Arbitrator to this effect is not a ‘decision’ in that it does not determine any issue; it remains for the Respondent to decide whether or not to amend the grounds of its Reply.
4.That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003.
No written order to this effect was issued by the Arbitrator, but, for the purposes of this appeal, I accept that the refusal to grant any such application for leave may have been a matter that was not reduced to writing. The response of the Appellant to the filing of Dr Simmons’ reports was clearly a matter at issue before the Arbitrator. Order 2 above, which is expressed to be made ‘by consent’ of the parties, allows the Applicant/Appellant to file and serve an amended statement in response to the issues raised by Dr Simmons’ reports.
5.That the Applicant’s claim for lump sum entitlements not be referred to an Approved Medical Specialist.
The meaning of this purported order is not clear. Subsection 65(3) of the Workers CompensationAct 1987 (‘the 1987 Act’) provides that, if there is a dispute about the degree of permanent impairment, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (‘AMS’). Subsection 293(2) of the 1998 Act provides that the Registrar must refer such a dispute to an AMS. The Arbitrator must therefore, in the absence of the parties’ agreement to settle the dispute about the degree of permanent impairment, refer the matter to an AMS prior to making a determination. In such cases an order made by an Arbitrator, in the absence of the issue of a ‘Medical Assessment Certificate’ by an AMS, would be infected by jurisdictional error and effectively result in no decision having been made at all (Inghams Enterprises Pty Limited v Zarb [2003] NSW WCC PD 15). In fact, in this case the Commission wrote to the parties on 7 August 2003 advising that the matter would be referred to an AMS.
6.That the matter be stood over generally and scheduled for a further teleconference to be advised by the Commission in due course.
This purported order of the Arbitrator is purely procedural and does not affect the substantive rights of the parties. It does not concern an amount of compensation at issue in the original dispute, or on appeal (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5). There is no written record of any such order being made and, if it were, such an approach is inconsistent with the Commission’s usual practice and procedure, as set out in the ‘Registrar’s Guideline for the Conciliation / Arbitration Process in the Workers Compensation Commission’. Upon receipt of the relevant documents the Commission should either set the matter down for a conciliation conference and arbitration hearing, or refer the medical dispute to an AMS for the issue of a Medical Assessment Certificate. There is no record on the Commission file to indicate that the matter was to be ‘stood over generally’.
Leave to appeal is therefore granted only in relation to the following orders:
That the time for filing the Reply, the attached Directions for Production and the medical reports of Dr Simmons dated 31/3/03 and 13/5/03 is extended to 18 July 2003, and
That the Applicant not be granted leave to obtain and rely upon its own medico-legal report in reply to Dr. Simmons’ reports dated 31 March 2003 and 13 May 2003.
EVIDENCE AND SUBMISSIONS
Both the Appellant and the Respondent made detailed written submissions on the appeal.
The relevant history of the proceedings in the Commission is as follows:
i.The ‘Application to Resolve a Dispute’ was filed in the Commission by Ms Falcon’s legal representative on 7 May 2003 and served on the Respondent on 9 May 2003.
ii.On 24 June 2003 the Respondent filed an ‘Application to Admit Late Documents’, being the ‘Reply to the Application’ and ‘Direction for Production’. The attached Reply did not identify the reports of Dr Simmons as documents that the Respondent intended to rely upon, but did not yet have in its possession, thereby infringing Rule 27 of the Interim Rules.
iii.On 17 July the Respondent filed an ‘Application to Admit Late Documents’, being two reports of Dr Simmons dated 31 March 2003 and 13 May 2003. The reports were attached.
iv.A telephone conference was held on 18 July 2003.
In accordance with the Interim Rules (then in force), the Reply should have been filed within 14 days of service of the Application on the Respondent, in this case by 23 May 2003 (Rule 26).
The Appellant submits that the parties had been in discussion in relation to settlement of the dispute since March 2003 and, therefore, the Respondent had ample notice of the substance of the dispute and ample time within which to lodge a Reply in accordance with the Rules. The Appellant submits that the Arbitrator “misapplied the appropriate test” in granting the Respondent leave to file and serve the Reply out of time. In particular, the Arbitrator failed to give enough weight to the fact that the Respondent had “. . . prolonged and ample notice of the claim prior to the filing of proceedings.”
The Appellant asserts that the Arbitrator is bound to take into account her earlier decisions in Cruse v Liverpool City Council (WCC 358-2002) and Walsh v Fletcher International Exports (WCC 8634-2003). These decisions, supported by brief reasons, turn on their own facts and contribute nothing to the Appellant’s argument in this matter.
The Appellant submits that the Arbitrator failed to consider the prejudice to her that would result from the application of section 109 of the 1998 Act. The Appellant submits that “. . . section 109 of the Workplace Injury Management and Workers Compensation Act 1998 does not allow the Applicant to claim interest on the payment of any lump sum compensation that she may be entitled to”. This section refers to payment of interest on a sum payable under the Act. The section has no application to the circumstances of this appeal. Interest may be ordered and can run from the date of the claim. The prohibition in subsection 109(2)(a) of the 1998 Act to interest on an award for a lump sum, applies regardless of the progress of the matter in the Commission (section 109(1) of the 1998 Act). This is also not a situation where “proceedings before the Commission were adjourned on the application of the claimant for compensation’’. The Appellant’s submissions are completely misconceived in relation to section 109 of the 1998 Act.
The Appellant submits that she is further prejudiced by the Arbitrator’s refusal to grant leave to allow her to obtain further medical evidence in reply to Dr Simmons’ reports. This decision, says the Appellant, is contrary to the objectives of the Commission (section 367 of the 1998 Act), to the procedure that should be adopted by the Commission (section 354 of the 1998 Act), to the duty to provide parties with the fullest opportunity to present their case (Rule 71 of the 2003 Rules) and to Practice Direction No.9: ‘Lodgment of Late Documents’. The result of the decision will be to delay the proceedings and unfairly disadvantage Ms Falcon.
The Appellant also refers to Practice Direction No. 2: ‘Adjournment of Commission Proceedings’ as relevant to the matter being ‘stood over’. This is not relevant to the decisions under review in this appeal.
The Respondent submits that the Arbitrator appropriately and fairly weighed the factors set out in President’s Practice Direction No. 9, namely:
· the submissions of the parties,
· the effect on the timely resolution of the dispute,
· The prejudice to other parties that would result from granting leave,
· the requirements of the Act and Rules, and
· the objectives of the Commission.
The Respondent submits that the delay in filing the Reply and Directions was ‘due to the size of the Respondent Insurer’s organisation’ and the fact that the Application was not received by the claims officer handling the file until 29 May 2003. The Respondent argues that the prejudice that would result in not allowing the Reply and Directions to Produce to be filed would be substantial.
The Respondent submits that the Arbitrator, properly took the reasons for the late filing of the medical reports of Dr Simmons, into account.
The Respondent submits that the Appellant would not, in the normal course of proceedings in the Commission, be permitted to file further evidence in response to evidence filed with the Reply and therefore she should not now be allowed to file a further report in response to those of Dr Simmons.
The Respondent refers to its ‘pleadings’ in the Commission, which I note reflects a significant misunderstanding of the nature of Commission proceedings (see Far West Area Health Service v Radford [2003] NSW WCC PD 10).
DISCUSSION AND FINDINGS
The exercise of the discretion to allow the late filing of documents will always be determined by the application of the relevant guiding principles to the particular facts of the instant case. These principles are clearly set out in Practice Direction No. 9, referred to above.
The exercise of discretion by an Arbitrator in Commission proceedings has been the subject of previous Commission decisions, see M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19, ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21, Parks v Navbay Pty Ltd [2003] NSW WCC PD 32. Factors relevant to the exercise of this discretion (see ADCO at paragraph 20), include:
· the conduct of the party seeking leave, in particular whether there is an acceptable explanation for the delay, although this factor is not a precondition to the grant of an extension of time (Dix and Another v Crimes Compensation Tribunal [1993] 1 VR 297, Workers Compensation Commission Practice Direction 9),
· whether or not the refusal to admit the Reply will cause a substantial prejudice or injustice to the party seeking leave. It will also be relevant whether that prejudice can be remedied by other means, for example, by an order for costs,
· 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 extension of time (Hunter Valley Developments Pty Ltd v Cohen [1984] 58 ALR 305, Practice Direction 9),
· whether or not the delay in filing the Reply was attributable to the legal representative and not the party personally, although this does not necessarily entitle the party seeking leave to an extension of time (Sophron v The Nominal Defendant [1957] 96 CLR 469; Gallo v Dawson [1990] 64 ALJR 458),
· the nature of the proceedings, including the nature of the relevant statutory scheme and the objectives of the legislation (Workers Compensation Commission 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).
In the absence of any specific legislative direction as to how the discretion to dispense with the requirements of the Rules in relation to the filing of late documents is to be exercised, it is a matter for the Arbitrator to determine, in accordance with these factors and with what is fair and reasonable in the instant case. Where the parties are accorded procedural fairness, the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential member, to interfere with the Arbitrator’s decision (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The Arbitrator must consider the relevant requirements of the Rules of the Commission. The Interim Workers Compensation CommissionRules 2001 have now been replaced by the Workers Compensation CommissionRules 2003. The expectation that all parties will comply with the Rules was discussed in ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21, as follows (at paragraphs 16 and 17):
The Commission has been in operation since January 2002. It is reasonable to expect that legal practitioners who act for parties in the Commission have familiarised themselves with the Commission’s practices and procedures and will demonstrate adherence to them. The Rules accord with the objectives of the Commission, found in section 367 of the 1998 Act, specifically the provision of a timely dispute resolution service for workers compensation disputes. It is entirely proper that an Arbitrator should approach the exercise of discretion in Rule 5 with the view that parties should comply with the requirements of the Commission’s Rules. . . .
It is clear that the Minister intended, in the making of Rules establishing the procedures of the Commission, that those Rules should be adhered to and be given full force and effect. While Rule 5 allows the Commission to dispense with compliance with any of the requirements of the Rules, this discretion is likely to be exercised only in exceptional circumstances. The exercise of discretion to allow non-compliance with the Commission’s Rules is not, and cannot be, the normal and accepted practice of the Commission. With this in mind it is necessary to consider the factors relevant to the exercise of this discretion by the Arbitrator.
In this matter the Arbitrator has given brief reasons for her decision. She has stated that the oral submissions of both parties have been taken into account. These submissions, repeated in the appeal, addressed the factors relevant to the exercise of discretion to admit the late documents set out above. It would have been preferable if the Arbitrator had set out her findings on the relevant matters listed in Practice Direction No. 9, however the failure to do so does not mean these matters were not considered. In making the order she expressly states that she took ‘the whole of the materials into account’, and considered ‘the interests of justice’ in the particular case. Ultimately the Arbitrator accepted the reasons for the delay and found that the resulting delay to the Applicant was ‘minor’.
Having reviewed the decision I find that the Arbitrator has not made an error of law, fact or discretion. There is, therefore, no reason to interfere with the Arbitrator’s decision.
This matter now requires directions to be made in relation to referral to an Approved Medical Specialist or listing for a telephone conference so that the parties have the opportunity to discuss whether they can come to a resolution of the dispute that is acceptable to all of them. The matter is referred to the Registrar for further directions.
DECISION
The decision of the Arbitrator is confirmed. The matter is referred to the Registrar for further directions.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b) if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount, as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b) the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The parties should also note the restriction on the award of costs against a claimant set out in subsection 341(4) of the 1998 Act.
The parties are urged to come to an agreement as to costs in accordance with the above provisions.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming Workers Compensation Commission
Registrar Date:
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