Fletcher International Exports Pty Limited v Adams
[2006] NSWWCCPD 11
•2 February 2006
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision confirmed on Appeal: Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 | ||||||
| CITATION: | Fletcher International Exports Pty Limited v Adams [2006] NSWWCCPD 11 | |||||
| APPELLANT: | Fletcher International Exports Pty Limited | |||||
| RESPONDENT: | Anthony Thomas Adams | |||||
| INSURER: | Self insurer | |||||
| FILE NUMBER: | WCC927-05 | |||||
| DATE OF ARBITRATOR’S DECISION: | 28 July 2005 | |||||
| DATE OF APPEAL DECISION: | 2 February 2006 | |||||
| SUBJECT MATTER OF DECISION: | Wrong issue determined; application of sections 149 and 151A of the Workers Compensation Act 1987; damages; entitlement to an award of workers compensation; entitlement to bring a claim in the Workers Compensation Commission; relevance. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | Determined on the papers | |||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | ||||
| Respondent: | McCabe Partners Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 28 July 2005 is revoked and the matter is remitted to the Arbitrator concerned for determination of the correct issue in dispute, in accordance with these reasons. | |||||
| The Arbitrator is to seek from each of the parties, and take into account if and when received or made in accordance with her directions, further written or oral submissions in relation to the issue in dispute, before proceedings to determine the issue. | ||||||
| No order is made as to costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 22 August 2005 Fletcher International Exports Pty Limited, the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 28 July 2005.
Anthony Adams is the Respondent Worker in this appeal.
Fletcher International Exports Pty Limited is self-insured.
Mr Adams lodged an ‘Application to Resolve a Dispute’ in the Commission on 20 January 2005. He claimed that he suffered a total and/or partial incapacity for work and suffered an injury for which non-economic loss compensation is payable. Mr Adams claims that the injury arose out of and in the course of his employment as a boner with the Appellant and includes injury to his left hand and wrist, neck, right arm, left arm, back and left leg. He claims that the injury occurred as a result of the nature and conditions of his employment with the Appellant from December 1998 to 20 June 2003.
Mr Adams’ employment with the Appellant at all relevant times is not disputed.
Mr Adams had previously lodged an ‘Application to Resolve a Dispute’ (WCC8419-04) in the Commission, which was the subject of the following ‘Certificate of Determination’ by consent, entered on 26 October 2004:
“1. The applicant discontinues the Application.
2. The issue of costs incurred to date under Matter No. WCC8419-04 is reserved
and the parties are given leave to raise that issue for determination in subsequent proceedings, which the Applicant may institute in relation to the subject matter of Matter No. WCC8419-04.”
Mr Adams had previously filed an ‘Application for relief in relation to termination of employment’ in the Australian Industrial Relations Commission on 10 July 2003, seeking reinstatement of his employment and in the alternative, compensation for loss of wages and/or re-employment to a suitable position.
Mr Adams entered into a Deed of Release/Settlement (‘the Deed’) with the Appellant. The Deed is undated. The terms of the Deed included the following recitals:
“A.The employer carried out work for the employer from 15 December 1988 to 20 June 2003.
B.The employer has commenced proceedings against the employer in the Australian Industrial Relations Commission of New South Wales in matter number U2003/4712 and C2004/15.
C.In addition the employer has alleged that he has sustained work injuries as a result of the nature and conditions of his employment with the employer through the entire period of that employment including but not limited to an injury to his left hand and wrist.
D.The employer has denied the allegations made by the employee in the proceedings and otherwise.
E.The employer and the employee have agreed to resolve these proceedings and all other claims or possible claims for damages by or on behalf of the employee and against the employer and its officers, employees, successors, heirs and assigns on the basis set out in this Deed”
The provisions of the Deed also included the Appellant paying Mr Adams an amount of $2,500 in respect of general and other damages. The Appellant sent the payment of $2,500 to Mr Adams by letter dated 17 January 2005.
The Arbitrator stated the issue to be determined by her as:
“Is the Applicant precluded from bringing these proceedings in the Commission because he is taken to have elected, pursuant to s151A, not to seek permanent loss compensation by commencing proceedings in the Australian Industrial Relations Commission on 10 July 2003 and/or by entering into a Deed of Release (undated) between the Applicant and the Respondent pursuant to which the Applicant has been paid $2,500.”
At the commencement of the arbitration conference held on 8 June 2005, submissions were heard from both parties on the effect of the Deed signed by the parties. The substantive issues in relation to Mr Adams’ claim did not proceed on that day and the matter was adjourned to 1 August 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 July 2005 records the Arbitrator’s orders as follows:
“1.The Deed of Settlement (undated) and entered into between the Applicant and the Respondent does not prevent the Applicant from bringing these proceedings in the Workers Compensation Commission.
2.The proceedings will continue to arbitration on 1 August 2005.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are;
·whether the Arbitrator erred in law in her application of sections 149 and 151A of the Workers Compensation Act 1987 (‘the 1987 Act’);
·whether the Arbitrator erred in failing to find that the damages of $2,500 paid to Mr Adams is damages as defined in section 149 of the 1987 Act and the recovery of damages means that he ceases to be entitled to further compensation in accordance with section 151A(1)(a) of the 1987 Act;
·whether the Arbitrator erred in finding that Mr Adams is not precluded from bringing his claim in the Commission when this was not an issue in dispute, and
·whether the Arbitrator erred in taking into account irrelevant considerations.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘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.”
The Appellant has made a submission that, in view of the issues raised in the Appeal, the appeal can only be dealt with on the papers if a Presidential Member forms the view that there is already sufficient material to allow the appeal, revoke the decision and substitute an award in favour of the Appellant. Otherwise, it was submitted, that the matter will require the appointment of a hearing before a Presidential Member.
Mr Adams filed a notice of objection to the appeal out of time. In his late submissions in reply to the Appellant’s appeal, he contends that the matter may proceed to a determination on the papers.
The Appellant’s submission in its present form, set out in paragraph 15 above, seeking to impose pre-conditions on the Commission in relation to the exercise of the discretion pursuant to section 354(6), has no application. The section does not contemplate that the Commission will arrive at a decision that substantially determines the dispute, before deciding how it should proceed. Rather, the section requires the Commission to be satisfied first, that it has sufficient information in order to exercise its functions, and then proceed to consider that information and determine the appeal. The Appellant lodged the ‘Application Against Decision of Arbitrator’ on 22 August 2005. It stated that as no transcript had been provided at that date it was unable to complete its submissions. It is now February 2006. The Appellant was provided with a transcript prior to 17 October 2005, and has had ample time to prepare and lodge any further written submissions that it wished to make.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, and subject to my decision below in relation to ‘late 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
The amount at issue on appeal is not the $2,500 specified in the Deed, but is the amount claimed by Mr Adams in his ‘Application to Resolve a Dispute’, being an amount in excess of $5,000.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
LATE DOCUMENT
Rule 77 (5) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides:
“(5)Where a party seeks to oppose an application referred to in subrule (1), or the appeal in respect of which the application is made, the party must, within 14 days of being served with the application, lodge and serve on the other parties notice of that opposition.”
Rule 77(6) sets out the details that must be included or attached to the ‘Notice of Opposition’ referred to in Rule 77(5).
On 13 September 2005 the Registrar issued a ‘Direction’, directing Mr Adams to lodge with the Commission and serve on the Appellant by 5 October 2005, a “Notice of Opposition in Reply”. Mr Adams did not comply with this Direction.
By letter dated 12 December 2005 Mr Adams’ Solicitor informed the Registrar that the submissions in reply to the appeal would be filed by the end of that week. However, the submissions in reply were not filed within the time specified in the letter.
By letter dated 17 January 2006, a document ‘Respondent’s Response to Appellant’s Submissions’ was forwarded to the Commission, and was received in the Commission on the following day.
No reasons were given for non-compliance with Rule 77(5) and the Registrar’s Direction, and no explanation was given for the undue and lengthy delay in lodging the submissions. No request or submissions were made to the Commission, seeking relief from compliance with the Rules, pursuant to Rule 6. In my view, it is unacceptable that the requirements of the Rules, and the Direction given, should be disregarded in this way, without any explanation or excuse, by a party to the proceedings.
Accordingly, I determine pursuant to Rule 6(4) that the lodging of the submissions by Mr Adams’ Solicitor in these circumstances, as a step in the proceedings, is a nullity and I strike out that step. Consequently, the document is not admitted in this appeal.
EVIDENCE AND SUBMISSIONS
The submissions made on appeal by the Appellant may be summarised as follows:
· that it is undisputed that the payment of the $2,500 was sent to Mr Adams by letter dated 17 January 2005 and that the letter refers to the provision of the Deed and makes the payment “ … in respect of the agreed work injury damages.”;
· that the payment of $2,500 to Mr Adams is damages, as defined in section 149 of the 1987 Act, and that the recovery of damages by Mr Adams has the result that Mr Adams ceases to be entitled to any further compensation in accordance with section 151A(1) of the 1987 Act;
· that the Deed of Release relevantly recites that Mr Adams has alleged that he sustained work injuries as a result of the nature and conditions of his employment “including but not limited to an injury to his left hand and wrist”. In addition the Deed recognises the payment is in respect of general and other damages (paragraph 1) and that in consideration of the payment, the employee will release the employer from any entitlement to damages of any kind including but not limited to any entitlement to work injury damages or damages under the anti-discrimination legislation consequent upon the injuries referred to in the recitals or otherwise (paragraph 3 (d));
· the Arbitrator, erred in determining that the ‘Deed of Release’ does not prevent Mr Adams from the bringing of these proceedings. Alternatively, it is submitted by the Appellant that the fact of Mr Adams recovering damages has the result that Mr Adams has ceased to be entitled to any further compensation under the Act in accordance with the section referred to;
· the Arbitrator at paragraph 4, in her ‘Statement of Reasons for Decision’ (‘Reasons’) dated 28 July 2005, incorrectly summarised the threshold issue. It is submitted that there was no suggestion of Mr Adams having relevantly made any election, and neither is the fact of the commencement of proceedings in the Australian Industrial Relations Commission of any relevance at all to the issue in dispute;
· the Arbitrator’s error referred to at paragraph 4 is repeated again at paragraph 9 of her Reasons. The Appellant accepts that Mr Adams can bring the proceedings filed but submits that the claim for compensation must fail because of the payment evidenced by the Deed, the letter dated 17 January 2005 and the consequences of that payment which result from sections 149 and 151A of the 1987 Act;
· the Arbitrator erred in having regard to Mr Adams’ Application for relief with the Australian Industrial Relations Commission, referred to in her Reasons at paragraph 20. It is submitted that this application has no relevance to the determination of the issue and that the only evidence relevant to the issue to be determined consists of the Deed and the letter dated 17 January 2005;
· the Arbitrator erred in attempting to construe the damages paid under the Deed related to something other than the claimed work injuries, in circumstances where the only evidence was that the payment of damages was in respect of work injuries and where this evidence was not contradicted by or on behalf of Mr Adams;
· the Arbitrator erred in considering that there was a need for a degree of specificity in relation to the injuries to which the payment of damages relates. Reference is made by the Appellant to the decision of Burke J in General Motor Holden Limited v Sema (1994) 10 NSWCCR 612 in which His Honour refers to what was the cause of the condition rather than the nature of the condition. It is submitted that the cause of Mr Adams’ alleged injuries in the Application to resolve a dispute and in the ‘Deed of Release’, is the nature and conditions of his employment with the Appellant through the entire period of that employment;
· the Arbitrator’s decision to consider or have regard to section 234 of the 1998 Act is in error and completely irrelevant to the issue to be determined. It is submitted by the Appellant that it did not seek to prove or rely on any contract between the parties. Rather the ‘Deed of Release’ is evidence only, demonstrating the receipt by Mr Adams of damages that has the effect on his alleged right to worker’s compensation by reason of section 151A of the 1987 Act.
Initially there were no submissions filed by Mr Adams in opposition or in reply to the Appellant’s appeal submissions, within the time prescribed by Rule 77(5). However, the relevant submissions made by Mr Adams at the arbitration hearing before the Arbitrator, may be summarised as follows:
· the ‘Deed of Release’ was clearly a contract which purported to release the Appellant from its obligations under the Act. It was noted that the Deed of Release did not mention rights under the Workers Compensation Acts specifically and that it was entered into as a result of the Australian Industrial Relations Commission proceedings commenced by Mr Adams in 2003;
· it was submitted that the Deed released the Appellant from any liabilities in relation to the Industrial relations proceedings, and whether the payment was ‘damages’ or compensation, was of little relevance;
· Section 234 of the 1998 Act prohibits contracting out of the Act. It was submitted that the intention of the parties in the Deed did not involve a release from Mr Adams’ workers compensation benefits. Furthermore, there were no common law proceedings commenced and no agreement in relation to the settlement of any such workers compensation rights;
· as the ‘Deed of Release’ was undated, it was unenforceable, however Mr Adams conceded that this was not the appropriate jurisdiction for this argument to be advanced.
DISCUSSIONS AND FINDINGS
A perusal of the transcript of the proceedings before the Arbitrator reveals that the issue raised by the Appellant, and that was in dispute between the parties, was as the Appellant states. Relevantly, the Appellant’s Solicitor states at page 2 of the transcript:
“And, Arbitrator, there might be a slight misconception there. What the respondent says – and the relevant of the deed of release goes to this – is that the worker has received damages in respect of the injuries which are the subject of these proceedings … And having received damages, he is precluded from receiving the payment of compensation benefits by the operation of section 151A. The deed of release just shows the fact of the amount of money being paid as damages, as does the letter sending the cheque. That’s the significance of the deed and the letter in the face of those damages.”
There are other instances where the Appellant sought to explain its position. For example at page 14 of the transcript his Solicitor states, inter alia:
“… we don’t have to enforce the agreement because the applicant has been paid …
What we rely on is the fact of damages being paid … We don’t rely on the
applicant’s undertaking at all. We don’t have to.”
The Arbitrator’s understanding of the issue is set out at page 1 and a perusal of the transcript does not appear to indicate any departure from this view:
“Well, my understanding from the reply is that the respondent suggests that the
applicant cannot bring these proceedings because of a deed of release signed by
applicant and the respondent …”.
The Arbitrator certainly gives due consideration to the contents of the Deed and arrives at conclusions in relation to those contents, and makes other findings. However, notwithstanding that the Appellant made it clear that there was no issue in dispute in relation to Mr Adams bringing his proceedings in the Commission, the Arbitrator proceeded to determine that very issue. The Appellant and the Arbitrator it seems, were at cross-purposes.
The correct issue in dispute between the parties that the Arbitrator was required to determine was whether by reason of the receipt of damages by Mr Adams from the Appellant, pursuant to the Deed, he ceases to be entitled to payment of compensation under the 1987 Act, “in respect of the injury concerned”, that is, the injury or injuries for which the disputed claim before the Arbitrator, was made.
Much of the Arbitrator’s discussion touches on the disputed issue, but the issue itself has not been determined. In the circumstances the Arbitrator is in error and I propose to revoke the decision and remit it to her for determination afresh. I do not propose to deal with other aspects addressed by the Appellant at this point, as it is not appropriate to inhibit the Arbitrator in giving due consideration, and if she deems it to be appropriate or desirable, perhaps fresh consideration, to the evidence and submissions in her determination of the correct issue in dispute.
Given the circumstances, the fact that this appeal has arisen out of a misunderstanding of the issue to be determined by the Arbitrator, and that Mr Adams’ submissions have been excluded from this appeal by reason of non compliance with the Rules and the Registrar’s Direction, it seems to me that the parties ought to be permitted to make fresh submissions to the Arbitrator before she proceeds to determine the correct issue in dispute. Whether those submissions should be made orally or in writing, is a matter for the Arbitrator.
DECISION
The decision of the Arbitrator dated 28 July 2005 is revoked and the matter is remitted to the Arbitrator concerned for determination of the correct issue in dispute, in accordance with these reasons.
The Arbitrator is to seek from each of the parties, and take into account if and when received or made in accordance with her directions, further written or oral submissions in relation to the issue in dispute before proceeding to determine the matter.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
2 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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