Fuller v Australian Fleet Sales
[2006] NSWWCCPD 96
•23 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fuller v Australian Fleet Sales [2006] NSW WCC PD 96
APPELLANT: Christopher Andrew Fuller
RESPONDENT: Australian Fleet Sales
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC6719-04
DATE OF ARBITRATOR’S DECISION: 26 August 2004
DATE OF APPEAL DECISION: 23 May 2006
SUBJECT MATTER OF DECISION: Leave to appeal; injury; costs
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Stacks Goudkamp Pty Ltd
Respondent: QBE Workers Compensation
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Mr Christopher Fuller, the Appellant Worker in this appeal, was employed as a car detailer by Australian Fleet Sales, the Respondent, from 22 December 1999 until the termination of his employment on 12 February 2000. QBE Workers Compensation (NSW) Limited (‘QBE/the Insurer’) was the Insurer at all relevant times.
Mr Fuller claims to have suffered an injury to his back. The injury occurred on 4 February 2000 when he was climbing onto the wheel of a 4WD to wash the bonnet of the vehicle when he experienced a burning sensation down the back of both legs and pain in his lower back. Mr Fuller claims that he suffered a total incapacity for work as a result of the injury that arose out of and in the course of his employment with Australian Fleet Sales.
On 15 February 2000 Mr Fuller notified Australian Fleet Sales of the injury.
On 12 June 2002 Mr Fuller lodged a claim with QBE for weekly benefits, medical expenses and non-economic loss compensation.
On 30 August 2002 QBE advised Mr Fuller that it denied liability for the claim for weekly benefits, medical expenses and non-economic loss compensation.
On 27 April 2004 Mr Fuller lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The basis of his claim is that he suffered injury to his back as a result of an injury sustained on 11 February 2000, which arose out of and in the course of his employment with Australian Fleet Sales. The claim is for weekly benefits, medical expenses and non-economic loss compensation. It is noted that there is an inconsistency in relation to the alleged date of injury, 4 February 2000, being the date that was given orally at the Arbitration and recorded in the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’), which conflicts with the date 11 February 2000 that appears in several of the medical reports tendered and in Mr Fuller’s original Application filed in the Commission on 20 April 2004.
The matter was listed for an arbitration hearing on 23 August 2004.
A determination was made by an Arbitrator of the Commission on 26 August 2004.
On 24 December 2004 Mr Fuller lodged an ‘Appeal Against Decision of Arbitrator’ (‘Appeal’) in the Commission, against the decision. This was rejected under cover of a letter dated 5 January 2005 from the Registrar, for the following reason:
“The application has been rejected for failure to comply with the following requirements:
1.Failure to attach submissions on threshold issues relating to the granting of leave, including the amount of compensation the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal.”
A further Appeal was lodged in the Commission on 24 January 2005, and included a brief submission on the threshold issues. A copy was served on Australian Fleet Sales.
Neither the Insurer nor Australian Fleet Sales has lodged a ‘Notice of Opposition to Appeal’.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 August 2004 records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.Award for the Respondent in respect of the Applicant’s claim for expenses under Section 60 of the Workers Compensation Act.
3.Award for the Respondent in respect of the Applicant’s claim for lump sum compensation under Section 66 of the Workers Compensation Act.
4.The Respondent is not liable for payment of the Applicant’s claim under Section 67 of the Workers Compensation Act.
5.No order is made as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether leave to appeal should be granted;
(2)whether the Arbitrator erred in determining that the Applicant did not sustain an injury to his back in the course of his employment with Australian Fleet Sales, and
(3)whether the Arbitrator erred in making no order as to costs.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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, Mr Fuller, submits that the Appeal can be determined on the papers. The Respondent, Australian Fleet Sales, remains silent on this issue and as stated above, it has not filed a ‘Notice of Opposition to Appeal’ or any submissions in reply in this matter. The Appeal documents were served on Australian Fleet Sales some time ago and it has had ample opportunity to file a ‘Notice of Opposition to Appeal’ and make submissions, should it have chosen to do so.
Having regard to the submissions, evidence and 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.
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 monetary threshold prescribed in section 352(2)(a) and (b) of the 1998 Act is satisfied. However, the appeal was not made within 28 days after the making of the decision of the Arbitrator, appealed against.
Mr Fuller’s submissions on the time for filing the appeal
The appeal was initially lodged on 24 December 2004 approximately four months after the decision of the Arbitrator dated 26 August 2004. This is in breach of section 352 (4) of the 1998 Act which provides:
“ (4)An appeal can only be made within 28 days after the making of the decision appealed against.”
On 5 January 2005 the Commission rejected the Appeal on the basis that it failed to attach submissions relating to the granting of leave, including the amount of compensation the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal.
On 24 January 2005 Mr Fuller lodged a further Appeal including submissions addressing the threshold issues. The Appeal was registered on the same date.
Mr Fuller provides detailed submissions in relation to his request for leave to appeal out of time. The events leading to the filing of the Appeal on 24 December 2004 are put forward by him as follows:
·on 30 July 2004, during the teleconference, the Arbitrator directed Australian Fleet Sales to arrange for Mr Fuller to travel to Newcastle for the purpose of the arbitration proceedings. Mr Fuller was residing in Western Australia at that time and although this was not the usual practice, both parties agreed that it would be best if he travelled to Newcastle to attend the arbitration hearing to be held on 23 August 2004;
·Mr Fuller agreed to make enquiries as to flight details and on 2 August 2004 forwarded a copy of his flight itinerary to Australian Fleet Sales;
·on 4 August 2004 an updated itinerary was forwarded to Australian Fleet Sales together with advice from Mr Fuller that he would be arranging his own transport from Sydney to Newcastle and return;
·on 5 August 2004 Mr Fuller spoke with Australian Fleet Sales when it was confirmed that QBE had authorised Mr Fuller to book accommodation and airfares, to travel to Newcastle for the arbitration hearing. The travel arrangements were made with Sydney Express Travel and a copy of the final flight itinerary and tax invoice was forwarded to QBE that same day requesting payment of the tax invoice as soon as possible, as agreed by QBE;
·Mr Fuller was of the understanding that Australian Fleet Sales had attended to the payment of these costs as directed by the Arbitrator at the telephone conference and in accordance with its undertaking made on 5 August 2004;
·on 8 September 2004 a claim for Mr Fuller’s expenses for travel to the arbitration hearing was sent to Australian Fleet Sales;
·on 14 September 2004 Sydney Express Travel informed Mr Fuller that the tax invoice for his flight was unpaid. Correspondence was sent that day to Australian Fleet Sales by Mr Fuller, requesting payment of the invoice as a matter of urgency;
·on 24 September 2004 Mr Fuller was again advised by Sydney Express Travel that the invoice remained unpaid and subsequently, further correspondence was forwarded to Australian Fleet Sales requesting immediate payment of the invoice, together with a request for reimbursement of Mr Fuller’s travel expenses incurred in attending the arbitration hearing;
·on 5 October 2004 a facsimile was sent again to Australian Fleet Sales requesting payment of the tax invoice and reimbursement of expenses. On the same day Australian Fleet Sales advised by telephone that the cheque would not be received for at least one week;
·on 12 October 2004 further correspondence was sent to Australian Fleet Sales requesting payment. On 14 October 2004 Mr Fuller telephoned Australian Fleet Sales in pursuit of the outstanding payments. Australian Fleet Sales advised that the payment would be requested that day;
·on 19 October 2004 yet further correspondence was sent to Australian Fleet Sales in relation to the outstanding amounts, and on 22 October 2004 Mr Fuller again telephoned the organisation in relation to the outstanding amounts. He was advised that Australian Fleet Sales were aware of the situation, were looking into the matter, and would provide advice;
·on 26 October 2004 Australian Fleet Sales wrote to Mr Fuller advising that he was not entitled to travelling expenses in relation to attendance at the arbitration hearing, and
·Mr Fuller sent further correspondence to Australian Fleet Sales on 28 October, 26 November and 15 December 2004 requesting payment of the outstanding amounts, to which he has received no reply.
Mr Fuller submits that he was “hopeful that the matter could be resolved without the necessity of the intervention by the Workers Compensation Commission, however, the Respondent Insurer has been given ample opportunity to reply and has refused to do so. Accordingly, the appellant worker submits that leave to file the Appeal out of time should be granted.”
In summary, it appears that Mr Fuller is submitting that the reason why the Appeal was filed so far out of time was because of the delay (and eventual refusal) of Australian Fleet Sales’ Insurer, QBE, to pay the outstanding travel invoice and reimbursements, in relation to Mr Fuller’s attendance at the arbitration hearing, notwithstanding that this had been directed by the Arbitrator and agreed between the parties. I note that Mr Fuller did attend the arbitration hearing before the Arbitrator, even though Australian Fleet Sales and QBE had not paid the cost of travel, at that point in time.
Australian Fleet Sale’s submissions on the time for filing the appeal
Australian Fleet Sales has not provided any submissions in reply to Mr Fuller’s Appeal.
Discussion and Findings on the question of leave to appeal
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides, in part:
“(1)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 the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
Rule 77 further provides, in part:
“(8)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.
(9)A party who seeks an extension of time as referred to in subrule (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.”
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. Nevertheless, the issue has been the subject of a considerable amount of judicial consideration (Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’); Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liquidation) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637), and the principles established have been applied in a number of Commission appeal proceedings, including Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22; Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54; Uniting Care NSW.ACT t/as Uniting Care Caroona v Thomas [2004] NSW WCC PD 63, and more recently in Department of Education & Training v Mekhail [2006] NSW WCC PD 1, and Piening-Cochrane v P L and M R Wilde trading as Wilde Earthmoving [2006] NSW WCC PD 22.
The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262). 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 for extension of time;
·The prospects of the applicant 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 accordance with Rule 77(9)(a) of the Rules, Mr Fuller’s Solicitors gave notice to Australian Fleet Sales of their intention to seek the extension of time for making an appeal, in their letter dated 26 November 2004, where it is stated:
“If we do not receive our client’s reimbursement cheque, payment of airfares and confirmation that the accommodation has been paid within 7 days, then we will be filing a Review Application with the Workers Compensation Commission.
We will be seeking a review of the costs awarded and also the award in general.
We will be seeking leave to request the review out of time and our enquiries lead us to believe it will be successful in these circumstances.”
After receiving no response from Australian Fleet Sales, Mr Fuller proceeded to lodge his Appeal with the Commission on 24 December 2004, which included submissions in support of granting the extension of time to appeal.
As noted previously, the Appeal was rejected by the Commission, for failure to include submissions on certain threshold issues. Mr Fuller subsequently and successfully re-lodged the Appeal, including submissions on the threshold issues, on 24 January 2005, some five months after the Arbitrator’s decision.
Mr Fuller’s submissions requesting leave to extend the time to appeal provide a detailed account of a chain of events in relation to the non-payment of travel expenses. However his submissions do not address the requirements of Rule 77(8) set out above.
Mr Fuller’s submissions instead focus on the issue of the non-payment of the tax invoice and reimbursements relating to Mr Fuller’s travel to attend the arbitration hearing. They give no further explanation whatsoever, why the Appeal was lodged initially, almost four months after the decision of the Arbitrator.
Mr Fuller submits that during the teleconference on 30 July 2004 the Arbitrator directed that “the insurer was to arrange for the Applicant to travel to Newcastle for the purpose of the Arbitration.” However, according to the file, the directions recorded by the Arbitrator on 13 August 2004 was as follows:
“At the telephone conference on 30 July 2004 at 3.00pm the following directions were made:
1.Parties to participate in a Conciliation/Arbitration Conference at 6 Church Street, Newcastle at 10.00am on 23 August 2004.
2.Liberty to the parties to re-list the matter for a further teleconference or to arrange for an alteration to the hearing date in the event that there are difficulties for the parties to attend on that date.”
An inspection of the Commission’s file reveals no indication that the Arbitrator made a formal direction in relation to Australian Fleet Sales arranging for Mr Fuller to attend the arbitration hearing in Newcastle. It appears that Australian Fleet Sales may have made the undertaking verbally as outlined in Mr Fuller’s letter to Australian Fleet Sales, dated 5 August 2004. This and other documents in support of Mr Fuller’s outline of events are filed as fresh or new evidence in support of his case. Much of what has transpired, and has been put by Mr Fuller, apparently as the basis for lodging his appeal, occurred after the date of the Arbitrator’s decision.
On 28 October 2004 Mr Fuller wrote to Australian Fleet Sales acknowledging that it had declined to meet the cost of Mr Fuller’s travel expenses, as it had transpired that the Arbitrator’s award was made in favour of Australian Fleet Sales, not Mr Fuller. In the letter Mr Fuller’s solicitors state, “The Respondent insurer is obliged to attend to payment of the Applicant’s travelling expenses in attending an Arbitration. We would refer you to the legislation in this regard”.
In a letter dated 26 November 2004 to Australian Fleet Sales, Mr Fuller’s solicitors further state, “You are no doubt well aware that the Applicant’s costs of travel to an Arbitration are not regulated by legislation and that the Respondent is responsible for these costs”.
I have read the documents that make up the fresh/new evidence lodged by Mr Fuller for the purposes of considering his application for leave to appeal, and for an extension of time in which to lodge the appeal. The documents do not appear to advance to any great extent, the merits of his appeal in terms of the substantive decision made by the Arbitrator.
.
While I appreciate that Mr Fuller has been endeavouring for some time to obtain a payment or reimbursement of his not inconsiderable travel costs, without success, this is not a basis for obtaining an extension of time for lodging an appeal against the decision of the Arbitrator. A reading of paragraph B 15 in his submissions reveals that the reason that this appeal has been lodged out of time, or at all, is because Australian Fleet Sales would not co-operate, and that the intervention of the Commission is therefore required.
There is no obvious reason why the appeal against the decision of the Arbitrator was not lodged within the prescribed time. A reading of Mr Fuller’s submissions reveals that the appeal against the substantive decision of the Arbitrator would not have been lodged had the travel costs been paid. Even so, there was nothing to prevent Mr Fuller from appealing the decision of the Arbitrator within the time prescribed by Section 352(4) of the 1998 Act. Notwithstanding the travel costs issue, the option to appeal the Arbitrator’s decision within time, was always open to him. In the final analysis, Mr Fuller does not provide a satisfactory explanation for his failure to lodge the appeal within the prescribed time, if he was aggrieved by the Arbitrator’s decision.
As stated at paragraphs 33 and 34 above, Mr. Fuller has failed to address the matter in accordance with Rule 77. His submissions cannot and do not satisfy me, that exceptional circumstances exist and that to lose the right to seek leave to appeal would work demonstrable and substantial injustice. In fact, they are not particularly relevant to that end, notwithstanding that he is in dispute with Australian Fleet Sales and QBE about the payment of his travel costs incurred in attending the arbitral hearing in Newcastle.
Even a consideration of the principles outlined in Gallo along with a reading of the balance of Mr Fuller’s submissions challenging the decision of the Arbitrator, do not give rise to a conclusion that demonstrable and substantial injustice will be occasioned to Mr Fuller if leave to extend time to appeal is not granted.
Mr Fuller may wish to pursue the payment of the travel costs, declined by Australian Fleet Sales and QBE, and he will need to obtain further legal advice and assistance for this purpose.
In the circumstances, I find that there is no basis for extending the time in which the appeal might be lodged and I decline to make an order to do so.
DECISION
Leave to appeal is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
23 May 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.
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