Freund v Coles Myer Limited trading as Bi-Lo Pty Limited
[2006] NSWWCCPD 211
•30 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Freund v Coles Myer Limited t/as Bi-Lo Pty Limited [2006] NSWWCCPD 211
APPELLANT: Louise Freund
RESPONDENT: Coles Myer Limited t/as Bi-Lo Pty Limited
INSURER:Coles Myer NSW Injury Services Limited
FILE NUMBER: WCC20508-04
DATE OF ARBITRATOR’S DECISION: 22 March 2005
DATE OF APPEAL DECISION: 30 August 2006
SUBJECT MATTER OF DECISION: Application to discontinue; leave to appeal; fresh evidence; procedural fairness.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Adams Leyland, Solicitors
Respondent: Lander & Rogers, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 22 March 2005 is revoked and the following orders substituted:
(i) Proceedings No. WCC20508-04 are discontinued.
(ii) No order as to costs of the proceedings before the Arbitrator.
2.The Respondent is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Louise Freund (‘Ms Freund’) was employed by Coles Myer Limited t/as Bi-Lo Pty Limited (‘Bi-Lo’), as a bakery manager at its Narrandera store.
On 25 August 2003 whilst at work, Ms Freund claimed that she suffered an injury to her back while reaching across a table to arrange a display in the bread section. Following that incident, she remained off work although attempted a resumption of selected duties some weeks later.
Liability was initially accepted by Coles Myer NSW Injury Services Limited (‘the insurer’) but subsequently denied under cover of a letter to Ms Freund dated 5August 2004, on the grounds that “… your employment can no longer be considered a substantial contributing factor to the condition from which you are currently suffering.”
On 14 December 2004 Ms Freund, by her then solicitors, filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 21 June 2004 to date and continuing and medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In its Reply filed on 24 December 2004, Bi-Lo listed as the issues in dispute Ms Freund’s incapacity and the application of sections 60 and 9A of the 1987 Act. Bi-Lo relied on a medical report of Dr D O’Keefe dated 20 May 2004 who opined that Ms Freund’s “… current incapacity is due to the meningioma at L2/3 which is not work-related.”
The matter was listed for a conciliation/arbitration hearing on 11 March 2005. On 22 March 2005 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2. Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
3. No order as to costs.”
The ‘Statement of Reasons’ noted that the parties were unable to come to an agreement and that “to ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the arbitration hearing.”
A transcript of the proceedings on 11 March 2005 was issued. The Commission file notes that it “has been issued to the parties” but correspondence to that effect is not contained in the file.
The transcript records at page 10 Ms Freund’s previous solicitor seeking “… leave to discontinue the proceedings at this stage.” That application was opposed by Bi-Lo, and the Arbitrator rejected the application and proceeded to give reasons for her decision.
On 16 November 2005, Ms Freund through her current solicitors filed an ‘Appeal Against Decision of Arbitrator’. The principal ground of appeal is that the Arbitrator failed to have regard to the provisions of Rule 74 of the Workers Compensation Commission Rules 2003 (‘the Rules’) in proceeding to continue with the hearing and determine the matter.
Ms Freund also seeks leave to adduce fresh evidence on the appeal.
On 15 December 2005 Bi-Lo filed a ‘Notice of Opposition to Appeal’. Briefly, Bi-Lo submits that the appeal is out of time, that the “fresh evidence” sought to be relied upon simply restates evidence already before the Arbitrator and that, in accordance with the objectives of the Commission set out in section 367 of the 1998 Act, “the fair and timely resolution of the dispute before the Arbitrator warranted the proceedings being concluded in the manner they were.”
ON THE PAPERS REVIEW
Both parties submit that the appeal is suitable for determination ‘on the papers’. Section 354(6) of the 1998 Act provides that “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 carefully read the transcript, incorporating the Arbitrator’s reasons, all the evidence before her, and the submissions on appeal by both parties, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with practice direction No. 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
The application to appeal was initially filed by Ms Freund’s present solicitors on 21 April 2005 within the time limit prescribed by section 352(4) of the 1998 Act. That document was rejected by the Commission for “failure to attach reasons to address why the leave application and appeal should not be determined ‘on the papers’ and why a hearing is deemed necessary.” Advice to that effect was forwarded to Ms Freund’s present solicitors under cover of a letter from the Commission dated 22 April 2005.
Ms Freund’s present solicitors had written to the Commission on 19 April 2005 in the following terms:
“We have received instructions to act for Louise Freund … We have had very limited opportunity to acquaint ourselves with this matter but are mindful of the need to file any appeal within the time specified by the Act. We have not as yet had access to: (a) Applicant’s solicitor’s file; and (b) Statement of Reasons … we have drafted an appeal which is enclosed … it may be that once the Applicant’s solicitors [file] and the Reasons for Decision are available, further Submissions will be necessary and appropriate.”
The present application to appeal was forwarded under cover of a letter from Ms Freund’s solicitors dated 14 November 2005. In that letter, it was noted that “… due to a clerical and administrative error, your correspondence dated 22 April 2005 was misplaced and has only recently been located”.
Rule 77(1) of the Rules provides:
“A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of a decision, or within such extended time for making the appeal as may be ordered under sub-rule (8).”
Rule 77(8) provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In its submissions on appeal, Ms Freund repeats her claim that “due to a clerical and administrative error, the … correspondence rejecting the appeal was misplaced and the appropriate submissions were not filed. This error has only just been discovered.”
As to the requirements of Rule 77(8), Ms Freund submits that the appeal was initially filed within time and rejected because: “… A threshold issue had not been addressed … addressing this issue was a formality and nothing of substance turned on that issue.” It is Ms Freund’s submission that significance prejudice would be suffered by her if the appeal were not allow to proceed.
Rule 77(9) further provides “A party who seeks an extension of time as referred to in sub-rule (8) must:
“(a) as soon as practicable give notice to the other parties of the intention to seek the extension and,
(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
These requirements were complied with in submissions attached to the appeal application filed on 16 November 2005. Bi-Lo submits that the appeal is now over seven months out of time and that “it is in the public interest that there is a finality to litigation so that parties have certainty and are able to proceed with the knowledge that matters have been concluded.” It is Bi-Lo’s submission that there are no exceptional circumstances in the present case and that “all that is offered is that there was a clerical error of a kind not specified which went undiscovered for several months.” Bi-Lo maintains that the loss of the right to appeal “… will not work a ‘demonstrable and substantial’ injustice”.
Bi-Lo further submits that it is prejudiced if time is extended “… in that it will be forced to meet a claim that is now seven months out of time in circumstances where the claim has no merit.”
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an ‘Appeal Against the Decision of an Arbitrator’. As Deputy President Byron recently stated in Al Keffai v Famicorp Pty Limited [2006] NSWWCCPD 92 (‘Al Keffai’) the issue has been the subject of a considerable amount of judicial consideration, and, “ultimately, the discretion must be exercised to ensure that justice between the parties is achieved.”
In Al Keffai, Deputy President Byron summarised the decision of McHugh J in Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Limited [1978] VR257 at 262 (‘Gallo’) in the following terms:
“In Gallo McHugh J said that this means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. He said that in order to determine whether the rules will work an injustice it is necessary to have regard to:
·The history of the proceedings;
·The conduct of the parties;
·The nature of the litigation;
·The consequences for the parties of the grant or refusal of the application to the extension of time;
·The prospects of the applicants succeeding in the appeal; and
·Upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
In the present case, Bi-Lo conceded that “an unsealed copy of a proposed appeal was received by the Respondent’s solicitors … by fax on 19 April 2005. The Respondent does not know what correspondence passed between the Appellant and the Registry after 19.4.05.” The appeal was rejected essentially because of a procedural error. True it is that no particular details have been provided by Ms Freund as to the nature of the “clerical and administrative error” however, the plain fact is that the letter from the Commission was “misplaced” such that the procedural requirements it addressed were effectively not complied with until 7 months later.
I must bear in mind that in exercising my discretion, in line with the principles set out in Gallo, I am required to do justice between the parties. In the first place, I am satisfied that if leave to appeal were not granted, Ms Freund would suffer significant prejudice. The Arbitrator’s determination was final and its effect was to extinguish any rights Ms Freund may have in relation to the injuries she claimed to have sustained as a consequence of the incident on 23 August 2003. This issue was considered by the Commission in Morgan v Hacken Pty Limitedpreviously known as Jennifer McGregor Enterprises Limited [2004] NSWWCCPD 83. In that case, Deputy President Byron noted:
“14.The essence of the submissions put by the Appellant in relation to the substantive issues in the appeal, also impacts to some extent, on the question of leave to appeal, that is in particular, that the “consequences of the Arbitrator’s decision are serious and indeed, fatal to the Appellant’s rights under the Workers Compensation Act 1987, as amended.” In my view the Appellant should not lose the right to seek leave to appeal in these exceptional circumstances, that is, by reason only of the late lodgement of the appeal in the Commission, particularly as the Respondent offers no objection on this basis.”
Ms Freund, at the hearing before the Arbitrator, sought leave to discontinue proceedings in accordance with Rule 74 of the Rules. Rule 74(1) provides: “An Applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.” Whilst the transcript records that no reference was made by Ms Freund’s solicitor to that specific rule, the application was nonetheless made. Prima facie, it ought to have been granted for reasons I will discuss later. Thus it can be said that the prospects of Ms Freund succeeding in the appeal were good. As to the merits of her claim, that is a separate issue to which Ms Freund’s application to adduce “fresh evidence” may have some relevance. That is a matter to which I will also refer shortly but in terms of the application for an extension of time for filing an appeal, I do not consider it of particular relevance in the circumstances of this particular case.
Whilst I am mindful of Bi-Lo’s submission that it will be prejudiced if time is extended in that it will be “… forced to meet a claim that is now seven months out of time …” and indeed, at the time of dealing with this application, well over 12 months out of time, there is no doubt that Bi-Lo was aware of the nature of the appeal when it received an unsealed copy on 19 April 2005.
Ms Freund should not be held accountable for the administrative problems apparently occurring at the premises of her solicitors. Moreover, as I have said, there is much at stake for Ms Freund in light of the ‘finality’ of the Arbitrator’s determination.
To deny leave to appeal in circumstances where the original appeal, filed in time, was rejected because of what is essentially a procedural error would invoke a manifest injustice to Ms Freund. There is no doubt the appeal was filed in time and it remained on foot pending compliance.
In my view, there is sufficient substance in the submissions made by Ms Freund for me to be satisfied that exceptional circumstances do exist in this matter and that to lose the right to seek leave to appeal would work demonstrable and substantial injustice to Ms Freund, and that these factors outweigh any injustice or prejudice to Bi-Lo.
Accordingly, in the interests of justice between the parties, I extend the time for making the appeal in this case to 16 November 2005.
Leave to appeal is granted.
THE SUBMISSIONS AND EVIDENCE ON APPEAL
Ms Freund submits that the Arbitrator erred in law by failing to grant leave to her to discontinue the proceedings in accordance with Rule 74 of the Rules to which I have referred previously.
The rule is clear in its terms. There is no requirement that notice of the intention to do so be given, nor does the “late stage” of the proceedings have any relevance. Nothing in section 367 of the 1998 Act which sets out the objectives of the Commission, indicates, as Bi-Lo submits, that “… the Commission retains a general discretion to refuse a claim to be discontinued …” Similarly, the terms of the rule are silent as to the futility or otherwise of an application to discontinue. The use of the word “may” implies an entitlement bestowed upon an Applicant, be it worker or employer, in the conduct of proceedings.
There is no doubt that a penalty may exist where a party seeks a discontinuance of proceedings. Rule 77(4) provides:
“A party against whom proceedings are discontinued and who has not agreed to the discontinuance may, within 7 days after the discontinuance takes effect, apply to the Commission for an order for payment of the party’s costs of the proceedings incurred before the discontinuance.”
In the present case, the transcript records the parties proceeding with the Arbitration and making submissions as to the evidence. Unfortunately, much of the transcript describes the proceedings as “inaudible”. At page 8 of the transcript, Counsel for Bi-Lo stated “… It seems to me there are some problems with the case concluding, where we don’t have an Applicant’s statement.” Much of the transcript thereafter is inaudible and it is unclear as to whether any adjournment of the proceedings was ever entertained. Counsel for Bi-Lo then made further submissions on the evidence and it was following this, at page 10 of the transcript, that Ms Freund’s solicitor sought leave to discontinue the proceedings. Counsel for Bi-Lo then said:
“… I do oppose the case being discontinued at this very late stage, it having been to a teleconference and the hearing date having been set for today some weeks ago and the matter having been prepared for hearing on both sides and substantial costs incurred to prepare it for hearing, and particularly in circumstances where there is no clear indication that a discontinuance will necessarily result in a change or improvement in the kind of case that might be mounted.”
The Arbitrator then responded:
“I can’t – oh, look, I am sorry. Mrs Freund, I am inclined to think that the right thing to do is actually to stop it. I am sorry. Having suggested that, as I thought about it as I went outside, I thought – I think it’s only because I am not well that I even entertained it. If the evidence is most, and certainly on the balance of probability the medical evidence favours the Respondent … the preponderance of medical evidence, is that your problems relate to your meningioma and not to your back claim that you got from your employment and the incident or event that happened back in August 2003… I think the preponderance – on the balance of probabilities, I have to accept that, or I accept that the medical evidence is in favour of the Respondent … I will make ex tempore orders to carry that out, and then what you can do is if you want to look at what happened today, you ask for a copy of the recording, apparently.”
At page 11 the Arbitrator then went on to state: “So I would make an award for the Respondent in respect of the weekly benefits claim” and then subsequently, in relation to the claim for section 60 expenses, the Arbitrator stated: “Unfortunately, I think it is also an award for the Respondent.”
Whilst I have some sympathy with Bi-Lo’s submission to the Arbitrator, it was incorrect in light of the clearly stated provisions of Rule 74 of the Rules that afforded Ms Freund the opportunity to discontinue proceedings “at any time”. In these circumstances, the Arbitrator has erred in law in failing to permit Ms Freund to discontinue the proceedings.
The ‘Fresh Evidence” Issue
Ms Freund seeks leave to file fresh evidence being a report of Dr Terrence Hillier dated 11 March 2005 in accordance with the provisions of section 352(6) of the 1998 Act and Rule 77(3)(c) of the Rules.
Section 352(6) provides that:
“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.”
An application to appeal must have full details of any new evidence sought to be relied upon as is required by Rule 77(3).
Ms Freund submits that, through her previous solicitors, she made efforts to obtain Dr Hillier’s report prior to the arbitration hearing but, “unfortunately, the doctor was not able to provide the report until 16 March 2005.” It is noted that the arbitration hearing took place on 11 March 2005, the same day as Dr Hillier’s report. Ms Freund goes on to submit that: “Substantial injustice will incur to the Applicant if she is denied the opportunity to rely on this document and/or further oral evidence.”
Bi-Lo objects to this fresh evidence. It is Bi-Lo’s submission that the report is not fresh evidence since Dr Hillier had already provided two reports that were before the Arbitrator and, since the report was dated 11 March 2005, it should have been available, presumably by way of facsimile, at the time of the hearing.
Notwithstanding the merits of Bi-Lo’s submissions on this point, I nonetheless fail to see the relevance of the ”fresh evidence” in circumstances where the order Ms Freund seeks on appeal is that the Arbitrator’s decision be set aside and that the proceedings be discontinued.
My task on appeal is concerned with claimed error, of law, fact and/or discretion, and not with the hearing of evidence and determination of the matter at first instance. It seems to me that the “fresh evidence” upon which Ms Freund now seeks to rely may have had some bearing on the determination of the matter at first instance, but the interests of justice would not be served if this “fresh evidence” was permitted to be introduced at this stage.
Having determined that the Arbitrator erred in law in refusing Ms Freund leave to discontinue, no further determination in the appeal is required. Accordingly, in these circumstances, leave to adduce “fresh evidence” is refused.
CONCLUSION
The appeal is successful. The Arbitrator erred in failing to permit Ms Freund to discontinue the proceedings in accordance with the provisions of Rule 74 of the Rules.
DECISION
Proceedings No. WCC20508-04 are discontinued.
COSTS
Having regard to the whole of the circumstances of this case, I order Bi-Lo to pay the costs of the appeal. I make no order as to costs of the proceedings before the Arbitrator.
Deborah Moore
Acting Deputy President
30 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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