Goodman Fielder Mills Limited T/as Buttercup Bakeries v Riger

[2004] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Goodman Fielder Mills Limited t/as Buttercup Bakeries v Riger

[2004] NSWWCCPD 29

APPELLANT:  Goodman Fielder Mills Limited t/as Buttercup Bakeries

RESPONDENT:  Mary Riger

INSURER:Allianz Australia Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 15725-2003

DATE OF ARBITRATOR’S DECISION:          2 February 2004

DATE OF APPEAL DECISION:  7 June 2004

SUBJECT MATTER OF DECISION:                Leave to file late Reply

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers.

REPRESENTATION:  Appellant: Eakin McCaffery Cox Solicitors

Respondent:  P K Simpson & Co Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 2 February 2004, is revoked and the following decision is made in its place:

Leave to extend the time for filing of the Reply dated 27 October 2003 is granted, and the Reply is admitted in the proceedings before the Arbitrator.

No order is made as to costs.

THE APPEAL

1. On 17 February 2004 Goodman Fielder Mills Ltd t/as Buttercup Bakeries (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 February 2004.  The appeal was registered in the Commission on 11 March 2004.

1. The Respondent to the Appeal is Mary Riger (‘the Respondent Worker’).

1. The Insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’).

1. Initially, the Respondent Worker did not file any submissions in reply to the appeal.

1. Following registration the sealed ‘Appeal Against Decision of Arbitrator’ was returned to the Appellant Employer for service on the Respondent Worker.

1. The appeal was referred to me for review, on 30 April 2004.

1. On 7 May 2004 I issued a direction to clarify an apparent error in the Certificate of Service, relating to service on the Respondent Worker, of the Application Against Decision of Arbitrator.  The Certificate of Service indicated that the document served was an Application to Resolve a Dispute.  I also directed the Registrar to ascertain whether the correct document had been served upon the Respondent Worker, whether the supplementary submissions with regard to determination on the papers had been served on the Respondent Worker, and whether the Respondent Worker had filed any Reply to the appeal.

1. On 20 May 2004 a letter was received from the solicitor for the Respondent Worker stating that the ‘Appeal Against Decision of Arbitrator’ had been served on the Respondent Worker.  A copy of the Respondent Worker’s Reply to the appeal, dated 17 May 2004, was attached.

ISSUES IN DISPUTE

1. The issue in dispute in the appeal is whether the Arbitrator erred in refusing to grant leave for the Appellant Employer to file the Reply out of time.

JURISDICTION

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. In this matter I am satisfied that:

   ·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),

   ·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),

   ·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and

   ·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).

2. Leave to appeal is granted.

ON THE PAPERS REVIEW

1. Section 354(6) of 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.

2. The Respondent Worker made no submissions as to the way in which the appeal should be dealt with.  However, having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Employer that the appeal can proceed to be determined on the basis of these 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. 

BACKGROUND TO THE APPEAL

1. An Application to Resolve a Dispute was lodged in the Commission by the Respondent Worker on 30 September 2003. The Respondent Worker is claiming lump sum compensation and pain and suffering, pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of injuries to her neck and both arms, suffered on 13 May 2000 during her employment with the Appellant Employer. A general order is also sought for medical expenses.

1. At the teleconference of 29 January 2004, the Arbitrator refused leave for the Appellant Employer’s Reply, which was filed out of time, to be admitted into evidence, on the basis that it would cause an injustice to the Respondent Worker.  The Arbitrator’s direction dated 2 February, 2004, is as follows:

That the Respondent seeks leave to admit a Reply which is filed outside the time prescribed in Rule 39.  The Respondent has filed a Form 2c.  The Applicant opposes the admission of the Reply and says to admit the Reply will prejudice the Applicant.  The Applicant travelled to participate in the teleconference today, and demonstrated a willingness to negotiate the claim.  The Respondent was not present and was not available to instruct its legal Representative in relation to the compromise proposed by the Applicant.  The reason given for the failure to comply with the rules was insufficient as the Respondent is not represented by a sole practitioner and the leave requirements of the Respondent’s solicitor do not amount to an excuse not to comply with the rules.  To avoid injustice to the Applicant I make the following direction:

The Respondent’s Reply dated 27 October 2003 is not to be admitted to the Commission file.

1. In arriving at this decision the Arbitrator had considered and taken into account, an Application to Admit Late Documents that was submitted by the Appellant Employer.  The reasons in support of the Application to Admit Late Documents, were stated to be as follows:

Eakin McCaffery Cox received the file in this matter from Allianz on 17 October 2003.

The solicitor with carriage of this matter was on annual leave from 4 October until 27 October 2003.  The Reply was drafted and served upon the Applicant’s solicitors immediately upon his return to the office.

Apart from the report of Dr Mastroianni, the Applicant’s solicitors were in possession of all other documents attached to the Reply and are therefore not prejudiced by the 4 day delay in filing this document.  We note that the Application to resolve a dispute was served one day out of time.

SUBMISSIONS

1. The Appellant Employer submits that the late filing of the Reply did not prejudice the Respondent Worker, and further:

The Application to Resolve a Dispute… was registered on 2 October 2003.  As we understand Rule 37, the Applicant must within 7 days after the Registrar registers an Application to Resolve a Dispute, serve a sealed copy of the Application on the Respondent and any other party to the proceedings.

1. The Appellant Employer claims that a sealed copy of the Application was not received until 13 October 2003, some four days late.  The Reply, which was filed on 27 October 2003, was four days late, the last date for filing being 23 October 2003.  It is submitted that it would be unduly prejudicial to the Appellant Employer if its Reply to the Application to Resolve a Dispute was not admitted because it was four days late, in circumstances where the Application was served four days late.

1. The Appellant Employer further submits that the Respondent Worker did not identify the prejudice to her, by reason of the late filing.  It is not sufficient to say that she has been prejudiced without identifying where the prejudice lies.

1. The Appellant Employer refers to the statement of the Arbitrator that the Respondent [the Appellant Employer] was not present at the teleconference and was not available to instruct its legal representative in relation to the compromise proposed by the Applicant [Respondent Worker], and submits:

I am informed by Ms Butler and verily believe that during the course of the teleconference she was given the opportunity to telephone Allianz to obtain instructions in relation to the Applicant’s proposed compromise.  The instructions received by Ms Butler were to reject the proposed compromise and request that the matter be referred to an Approved Medical Specialist (AMS).  Ultimately, there was a referral to an AMS.

1. It is further submitted that the fact that the Respondent Worker travelled to participate in the teleconference and demonstrated a willingness to negotiate the claim is irrelevant to the application to admit the late Reply, and no weight should have been placed upon it.  The matter has been referred to an AMS and no further teleconferences will be required.  In any event, it is submitted that any further teleconferences would have no connection with the late filing of the Reply.

1. The Appellant Employer relies upon the decision of ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 (‘ADCO’), and submits that the Reply was filed only four days late and the late filing would have no effect on the timely resolution of the dispute.  It is further submitted that there was no prejudice to the Respondent Worker by reason of the late filing, but the refusal to admit the Reply would cause substantial prejudice to the Appellant Employer, “as in effect it would be prevented from putting any evidence or submissions before the Registrar.”

1. The Appellant Employer refers to paragraph 23 in ADCO , where Deputy President Fleming states:

I note that the Applicant worker was already in breach of the Rules at the time of service of the Application which was filed in the Commission on 20 December 2002, yet the Applicant took nearly five weeks to serve it on the Respondent. In these circumstances it is trite, and inconsistent, for the Applicant to complain of the Respondent’s delay of two weeks in replying to the Application.

1. It is submitted that it is trite and inconsistent of the Respondent Worker to object to the Reply being admitted on the basis that it was filed four days late, in circumstances where the Application to Resolve a Dispute was served four days late.

1. Relying again on ADCO at paragraph 27, it is submitted that if the Reply were allowed the Respondent Worker would certainly have to meet it. However, this factor alone does not amount to prejudice. The Appellant Employer notes in ADCO that the Deputy President was not satisfied that the Arbitrator properly took into account all of the factors relevant to the exercise of her discretion to exclude the late Reply.  It is submitted in the instant case, the Arbitrator has not provided reasons as to how the Respondent Worker was prejudiced; on what basis the discretion was exercised; the effect the exercise of the discretion would have on the Appellant Employer, and why the Respondent Worker’s breach was not considered.

1. The Respondent Worker submits as follows:

   The Commission rules necessitate compliance otherwise the expediency of the timetable is jeopardised and the Respondent worker’s claim is delayed unnecessarily.

DISCUSSION AND FINDINGS

1. The Application to Resolve a Dispute was in fact served only one day late on the Appellant Employer, as stated in the Application to Admit Late Documents. It was served both by post and by means of DX. Rule 22(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’), provides in part, that a document is served on a party, if by post, on the fourth day after the day of sending by pre-paid post, or if by DX on the day following the day of leaving in the DX box of the party to whom it is addressed. According to the Certificate of Service, the sealed copy of the Application to Resolve a Dispute was despatched by post and DX on 9 October 2003. However, there is no indication in the documents before me that this was raised as an issue before the Arbitrator.

1. I accept that an opportunity was taken, to seek instructions during the course of the teleconference, in relation to the compromise put by the Respondent Worker, and that this offer was rejected.  This is not contradicted by the Respondent Worker.  The Arbitrator does state that the Respondent [Appellant Employer] was not in attendance “and was not available to instruct its legal Representative in relation to the compromise proposed by the Applicant.”  Obviously, negotiations did not take place at the teleconference, but there is no reason to doubt, on balance, that the contact was made with the Insurer at some time during the course of the teleconference, as submitted by the Appellant Employer in this appeal.

1. The Arbitrator states that the absence on leave of the solicitor handling the matter does not amount to an excuse for lack of compliance with the Rules. I agree with this finding, and subject to the particular circumstances of a matter, it is usually not acceptable. No reason was advanced to explain why another solicitor in the Firm did not attend to the matter, in order to meet the prescribed deadline. Given that time limits are a common and critical factor in litigation in most if not all courts and tribunals, it is reasonable to conclude that contingent arrangements would be in place, as a matter of routine, in the absence of a solicitor on leave. However, while I fully support the Arbitrator on this aspect, other factors need to be considered.

1. The factors that are to be taken into account in exercising the discretion to exclude late documents are set out clearly in ADCO and a number of subsequent appeal decisions of the Commission.  It is not necessary for me to comb through them here.  It is a matter for the Arbitrator to make her determination in accordance with what is fair and reasonable in the particular circumstances of the matter before her.  In this matter the Respondent Worker submitted to the Arbitrator that the admission of the late Reply would be prejudicial to her.  The Arbitrator excluded the late Reply in order to avoid injustice.  There is nothing before me to demonstrate or support the prejudice claimed in this matter, by reason of the Reply being admitted four days late.  Equally, the Arbitrator does not indicate the nature or circumstances of the injustice that she seeks to avoid, by excluding the late Reply.

1. On the other hand, the refusal to admit the late Reply amounts to preventing the Appellant Employer from putting any evidence or submissions to the Arbitrator on the matters in the Reply.  At paragraph 26 in ADCO, Deputy President Fleming states:

…then it follows that the Respondent will be prevented from discharging this onus and unable to properly argue its position in relation to the dispute.  This is not a prejudice that can be remedied by other means, such as an order for costs.

1. In the circumstances of this matter, the substantial prejudice to the Appellant Employer by not admitting the Reply that was filed four days late, outweighs any prejudice that might be occasioned to the Respondent Worker, by its admission, in the absence of anything further or to the contrary. On a reading of the Arbitrator’s decision, it is not clear that she properly took into account all of the factors relevant to the exercise of her discretion or, if she did, then this is far from clear, and her reasons were inadequate. That is not to say that her reasons needed to be lengthy and detailed. The tardiness of the Appellant Employer’s solicitors in the failure to comply with the time limit prescribed by the Rules is a significant factor, but is not the only factor to be considered.

1. In the circumstances, I cannot be satisfied that the Arbitrator has properly taken into account all of the factors relevant to the exercise of her discretion.   Accordingly, I find that she has erred in the exercise of her discretion.  Furthermore, I find on what is before me in this appeal, that failure to admit the late Reply would be unduly prejudicial to the Appellant Employer and would cause injustice.

DECISION

1. The decision of the Arbitrator is revoked and the following decision is made in its place:

Leave to extend the time for filing of the Appellant Employer’s Reply dated 27 October 2003 is granted, and the Reply is admitted in the proceedings before the Arbitrator.

COSTS

1. I make no order as to costs.

Gary Byron

Deputy President  

7 June 2004

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