Fell v Willoughby City Council - [2025] NSWPICPD 21

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fell v Willoughby City Council [2025] NSWPICPD 21
APPELLANT:	David Fell
RESPONDENT:	Willoughby City Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W8198/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	19 March 2025
ORDERS MADE ON APPEAL:	1. The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
CATCHWORDS:	WORKERS COMPENSATION – Extension of time to appeal – s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and r 133A(5) of the Personal Injury Commission Rules 2021 – whether in exceptional circumstances, to lose the right to appeal would work a demonstrable and substantial injustice – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied – s 11A(1) of the Workers Compensation Act 1987 – reasonable action taken with respect to discipline – Department of Education and Training v Sinclair [2005] NSWCA 465; VanVliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Young, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr D Baran, counsel
BBW Lawyers
DECISION UNDER APPEAL:	Fell v Willoughby City Council [2024] NSWPIC 224
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	1 May 2024

INTRODUCTION AND BACKGROUND

Mr David Fell (the appellant) was employed by Willoughby City Council (the respondent) as a ranger. His duties included parking inspections, processing of penalty notices and administration work.
On 18 December 2022, the appellant was inspecting mobility parking scheme permits when he noticed that a permit was displayed on the driver’s side of a particular vehicle rather than on the required passenger’s side. As the couple who owned the car approached, the appellant asked to be shown the permit, and a verbal altercation ensued. The female passenger subsequently lodged a complaint about the appellant, which was communicated to him on 23 December 2022. The appellant provided a response to the complaint on 24 January 2023. On 16 February 2023, the appellant was advised by letter that the complaint would be investigated. A meeting was scheduled for 21 February 2023, but rescheduled to 2 March 2023 at the request of the appellant to accommodate the attendance of the union representative as the appellant’s support person.
In early March 2023, the appellant was advised that because the person investigating the complaint was going on leave for two weeks, the investigation would take longer.
On 26 April 2023, the appellant was called in from the field to attend the respondent’s workplace. He arrived at about 5.05 pm and was handed a letter advising that there was to be a “Request to Show Cause Meeting” (the show cause letter) scheduled to occur at 10.30 am on 27 April 2023. The appellant spoke with the union representative that afternoon, who advised him that the respondent was required to give seven days’ notice of such a meeting.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICPD 21
Decision Date: 19 March 2025

CaseChat Overview and Summary

The case of Fell v Willoughby City Council involved a dispute concerning workers compensation. The plaintiff, Fell, sought to appeal a decision of the Personal Injury Commission, and the defendant, Willoughby City Council, argued that the appeal was beyond the statutory time limit. The case was heard by the New South Wales Court of Appeal. The primary issue for the court was whether the appeal was within the statutory time limit and whether the delay was justified by exceptional circumstances.

The court had to consider whether the statutory time limit for an appeal could be extended under section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A(5) of the Personal Injury Commission Rules 2021. The court examined if the delay in filing the appeal would result in a demonstrable and substantial injustice if the appeal was not allowed. It applied the principles from Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 and looked at what constitutes reasonable action under section 11A(1) of the Workers Compensation Act 1987. The court also referred to cases such as Department of Education and Training v Sinclair [2005] NSWCA 465 and Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 to understand the concept of reasonable action in the context of discipline.

The court concluded that the delay in filing the appeal was due to circumstances that were beyond Fell's control, which constituted exceptional circumstances. It determined that the delay did not prejudice the Council and that allowing the appeal would not work a demonstrable and substantial injustice. The court found that the appeal was justified under the statutory provisions and granted leave to appeal. The orders of the court allowed the appeal to proceed, and the decision of the Personal Injury Commission was set aside.

Orders