Grabovsky v Employers Mutual NSW Ltd and United Protestant Association of NSW Limited - [2016] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Grabovsky v Employers Mutual NSW Ltd and United Protestant Association of NSW Limited [2016] NSWWCCPD 15
APPELLANT:	Inna Grabovsky
RESPONDENTS:	Employers Mutual NSW Ltd and United Protestant Association of NSW Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-2683/15 (1313/15 & 2683/15 consolidated by order of the Commission)
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	3 November 2015
DATE OF APPEAL DECISION:	26 February 2016
SUBJECT MATTER OF DECISION:	Order made by Arbitrator pursuant to s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 that proceedings be dismissed; whether such order is an interlocutory decision; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave of Commission not sought by appellant; appeal dismissed in absence of any leave application
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s order found in the Certificate of Determination dated 3 November 2015 is confirmed. 2. The appeal is dismissed.

BACKGROUND

This appeal, which seeks to challenge an order made by an arbitrator that the proceedings be dismissed, is brought by Mrs Inna Grabovsky. To permit an understanding of the nature of the complaints made on appeal, it is necessary to outline the history of the proceedings.
Mrs Grabovsky had commenced two separate proceedings in the Commission. The first of those applications, filed on 10 March 2015, sought resolution of a Workplace Injury Management Dispute. The second application, filed on 12 May 2015, sought resolution of a dispute concerning entitlement to weekly payments of compensation and payment of medical and associated expenses. The first application named as respondent Employers Mutual NSW Ltd (Employers Mutual), the workers compensation insurer of Mrs Grabovsky’s employer United Protestant Association NSW Ltd (UPA). The second application named UPA as respondent. Each application had been filed in the Commission’s Registry by Mr Igor Grabovsky, the husband of Mrs Grabovsky. Mr Grabovsky has, at all times, asserted that he is entitled to act on behalf of his wife, including appearing on her behalf before the Commission, given that Mrs Grabovsky, as principal, had made a Power of Attorney naming Mr Grabovsky her attorney.
The insurer and employer are represented in these proceedings by Lee Legal Group and Mr Paul Stockley appears as counsel.
The proceedings commenced in March 2015, which related to a dispute concerning an injury management plan, was, in April 2015, dealt with by the Registrar’s delegate, Ms Margot Undercliffe, pursuant to s 307 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). A Recommendation was issued by the Registrar’s delegate on 14 April 2015. In correspondence dated 21 April 2015 from Mr Grabovsky addressed to Ms Undercliffe, a request was made that the recommendations be amended. That request was denied, following which Mr Grabovsky wrote to the Registrar requesting that the dispute be referred to the Commission for determination. Shortly thereafter, the second application seeking payment of compensation benefits was filed. Both applications have, since, been heard together.
The matters have been listed before the Commission on a number of occasions at which times either a telephone conference or a conciliation and arbitration hearing had been appointed. The only record of an attendance by Mrs Grabovsky on those occasions, is a note concerning conduct, by Arbitrator Michael McGrowdie, of a telephone conference on 18 May 2015. It is clear that Mrs Grabovsky did not attend the proceedings conducted by the Commission on those other appointed dates. Mr Grabovsky did attend and sought to explain his wife’s absence upon the basis of her state of health. No medical evidence concerning Mrs Grabovsky’s inability to attend has been adduced. I note that Arbitrator McGrowdie directed that the matter be listed before the Commission for conciliation and arbitration on 13 July 2015.
The matter was, on 13 July 2015, listed for conciliation and arbitration before Senior Arbitrator Marshal Douglas. Mrs Grabovsky did not attend the Commission on that day and Mr Grabovsky sought, as before, to appear on her behalf. The respondents objected to Mr Grabovsky representing his wife, placing reliance upon the provisions of s 356 of the 1998 Act. A transcript of proceedings on that day demonstrates that Mr Grabovsky argued that, by reason of the existence of the earlier mentioned Power of Attorney, he was entitled to appear as his wife’s attorney and as “a private prosecutor”. Mr Grabovsky argued that, whilst he was not a qualified legal practitioner nor an agent within the meaning of s 356, he had “power to represent [his wife]” and that his “representation does not disadvantage the opposite party”. Mr Grabovsky forcefully argued that he was entitled to appear and that there were “no grounds, lawful grounds, for Commission object my representation” (at T18, 13 July 2015).
The Senior Arbitrator expressed concern as to Mrs Grabovsky’s state of knowledge concerning conduct of her applications and her understanding of her position. An order was made that the matter be adjourned for a period of four weeks and that, in the interim, a copy of the transcript of that day’s proceedings was to be forwarded to Mrs Grabovsky. Directions were made that, should Mrs Grabovsky not be able to attend on the next occasion, that there be evidence before the Commission relevant to those reasons why she is unable to participate in the proceedings. Strong recommendations were made by the Senior Arbitrator that Mrs Grabovsky take steps to obtain legal representation and attention was drawn to the services of relevant agencies. The matter was stood over for further hearing on 10 August 2015. It seems that that last date was vacated by order of the Deputy Registrar and a further date, being 25 August 2015, was fixed in its stead.
At the resumed hearing in August 2015, Mrs Grabovsky failed to attend the Commission. No evidence was adduced concerning her failure to appear. Mr Grabovsky again asserted that he was his wife’s attorney. The Senior Arbitrator noted that, included in the documents attached to Mrs Grabovsky’s Application to Resolve a Dispute, there was a copy of a document titled “Power of Authority” which had apparently been signed by Mrs Grabovsky on 18 January 2015. That document, as noted by the Arbitrator “authorises her husband, Igor Grabovsky, to act for and on her behalf under any jurisdiction, sign any document, discuss and negotiate any money and perform any act as he thinks fit in relation to her dispute with United Protestant Association of NSW Limited, included but not limited to any medical matter associated with her workplace injuries”.
The Senior Arbitrator proceeded to deal with a “preliminary issue” which he described as “whether Mrs Grabovsky is entitled to be represented at these proceedings by her husband”. Mr Grabovsky was granted “limited leave to appear” and was permitted to put submissions concerning the question of his representation of his wife before the Commission. The transcript of proceedings demonstrates that lengthy discussion between Mr Grabovsky and the Senior Arbitrator took place during which Mr Grabovsky’s attention was drawn to the terms of s 356 of the 1998 Act and s 10 of the Legal Profession Uniform Law (NSW). Mr Grabovsky was invited to put submissions concerning the existence or otherwise of a discretion in the Commission to permit representation of a party to the proceedings. The transcript records that the Senior Arbitrator encountered considerable difficulty directing Mr Grabovsky’s attention to the preliminary issue. It should be noted that Mr Grabovsky made an application that the Senior Arbitrator “disqualify” himself from hearing the matter. That application was refused.
Submissions were made by Mr Stockley, opposing any order that might permit Mr Grabovsky to represent his wife in the proceedings. Following further argument advanced by Mr Grabovsky, the Arbitrator adjourned the matter and directed that the matter resume in a short period, at which time, the Arbitrator indicated that he would deliver his decision concerning the question of Mrs Grabovsky’s representation. The matter did resume however, unfortunately, the recording device utilised by the Commission failed to record the Arbitrator’s decision.
By reason of the failure of the recording equipment, steps were taken to list the matter for a further telephone conference on 2 September 2015 to permit the Arbitrator to restate his reasons concerning representation. Mrs Grabovsky failed to appear however, Mr Grabovsky participated for a short period, during which he made certain allegations against the Senior Arbitrator. It is recorded in the transcript (at T5, 2 September 2015) that Mr Grabovsky terminated his participation in the teleconference before the Arbitrator restated his reasons and conclusion concerning the question of representation. Following a review of relevant statutory provisions and the factual background, the Senior Arbitrator refused Mr Grabovsky’s application seeking leave to appear on behalf of Mrs Grabovsky. The matter was adjourned and a further date, 17 September 2015, was fixed for conciliation and arbitration.
Mrs Grabovsky failed to appear on the adjourned date. Mr Stockley again appeared on behalf of the respondents. The transcript of proceedings records that the Arbitrator and Mr Stockley exchanged views as to what should be the appropriate procedure given Mrs Grabovsky’s absence. Ultimately, the Arbitrator again adjourned the matter and directed that Mrs Grabovsky was to inform the Commission no later than 4.00 pm on 8 October 2015 as to her intention or otherwise to proceed with the matter. Failure to comply with that Direction would have the result, as ordered by the Arbitrator, that the matter be dismissed “under section 354(7A) on the basis that [Mrs Grabovsky] has abandoned the proceedings and has failed to prosecute them with due despatch” (at T16, 17 September 2015). Directions were made that Mrs Grabovsky be provided with a copy of the transcript and a formal direction concerning the requirement to inform the Commission. Advice concerning the obtaining of legal representation was, as directed by the Arbitrator, to be included in that written direction.
Mrs Grabovsky did not communicate with the Commission. On 3 November 2015, a Certificate of Determination, accompanied by the Senior Arbitrator’s Statement of Reasons, was issued. The certificate recorded that the proceedings had, by order of the Senior Arbitrator, been dismissed. The reasons provided by the Senior Arbitrator demonstrate that such dismissal was made pursuant to s 354(7A)(a) and (c) of the 1998 Act “on the bases that the proceedings had been abandoned and that Mrs Grabovsky had failed to prosecute the proceedings with due despatch.”

ON THE PAPERS

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.”
The application made with respect to this appeal has been filed by Mr Grabovsky and the submissions are, at page 26 of that application, stated to have been “prepared by Igor Grabovsky Attorney for the Appellant”. Mr Grabovsky’s signature appears at the foot of that page.
The actions of Mr Grabovsky which have led to the institution of this appeal have been performed in complete disregard of the ruling of the Senior Arbitrator concerning his earlier application seeking leave to appear on behalf of Mrs Grabovsky. It should be noted that Mr Grabovsky has also filed a document headed “submission in reply”, which addresses those submissions raised on behalf of the respondents.
Having regard to all the present circumstances, in particular the nature of the respondents’ submissions concerning the interlocutory nature of the Senior Arbitrator’s order, I grant leave to Mrs Grabovsky to rely upon the written submissions prepared by her husband for the limited purpose of determining the preliminary question as to whether the Senior Arbitrator’s order was interlocutory in nature and, if so, whether leave should be granted pursuant to s 352(3A) of the 1998 Act.
For the reasons stated below, I have concluded that the order made by the Senior Arbitrator dismissing both sets of proceedings is interlocutory and that it should be confirmed. Such determination is reached having regard to the documents which are before the Commission, which I consider are of such character as to permit the matter to be heard on the papers.

INTERLOCUTORY

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant identifies the decision appealed against at [2.7] of submissions as:
“The Commission determines:
1. That the proceedings are dismissed”.
Earlier in those submissions (at [2.6]), the appellant stated that submissions in support of the assertion that the order appealed against is not of an interlocutory nature had been included with the application. No such submissions appear in that document. However, such argument is advanced by the appellant in submissions in reply to the respondents’ Notice of Opposition to the appeal.
The respondents assert, in submissions, that the decision against which this appeal is brought is interlocutory in nature. Those submissions record that the appellant has not sought leave to proceed with the appeal and it is put that, for that reason alone, leave should be refused.
The appellant addresses the question as to whether the order is interlocutory between [2] and [6] of submissions in reply. It is argued that a distinction exists between a final decision and an interlocutory decision and that the former is characterised by “the permanence” of the decision. It is further argued that “... the decision to dismiss the proceedings is not an interlocutory one. A decision to dismiss the proceedings (regardless of the reasons) is the final decision” (emphasis in original).
It is further asserted by the appellant that the decision of the Arbitrator “eradicated all rights that [the appellant] should enjoy if the hearing would progress in compliance with the law – [the appellant] had been denied natural justice”. The appellant explains the failure to seek leave to appeal upon the basis that such was unnecessary given that the order was not interlocutory in nature. The balance of the submissions are discursive and seek to address the merits of the appellant’s case, and to contrast her entitlement with the absence of any “defence” that may be available to the respondents.

Is the subject order interlocutory in nature?

The Senior Arbitrator’s order was made pursuant to s 354(7A) of the 1998 Act, which provides:
“The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a)     if it is satisfied that the proceedings have been abandoned, or
(b)     if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)     for any other ground of dismissal specified in the Rules.”
It is clear from the reasons stated by the Senior Arbitrator that reliance had also been placed by him upon the terms of rule 15.8 of the Workers Compensation Commission Rules 2011 which provides:
“15.8 Dismissal for want of due despatch
Failure by an applicant to prosecute the proceedings with due despatch is a ground of dismissal for the purposes of section 354 (7A) (c) of the 1998 Act.”
The question as to the nature of an order made pursuant to s 354(7A) was considered by the Court of Appeal in Preston v Randwick City Council [2012] NSWCA 178; 13 DDCR 342 where the Court was concerned with a challenge to such an order made by a Deputy President of the Commission. It was stated by the Court (Allsop P and Sackville AJA) at [8]:
“The application in this Court has proceeded on the basis that the applicant (who is unrepresented) requires leave to appeal from the decision of the Commission dismissing the appeal from the Arbitrator. This would seem to be correct, as the Commission in effect summarily dismissed the appeal under s 354(7A) of the [1998] Act. An order for dismissal of this kind is ordinarily regarded as an interlocutory decision: see Spears v Department of Ageing, Disability & Homecare of NSW (2009) 12 DDCR 1, at [28]-[29], per Roche DP and authorities cited there; and cf Wickstead v Browne (1992) 30 NSWLR 1 at 11.”
An interlocutory order is one that does not finally determine the rights of the parties: Licul v Corney [1976] HCA 6; 180 CLR 213. The argument advanced on behalf of the appellant which directed attention to the “permanence” of the decision is misconceived. Whilst the Senior Arbitrator’s order has force and effect and binds the appellant and, in that sense, has permanence subject to any reconsideration, the fact remains that the order has no consequence so far as the appellant’s rights under the workers compensation legislation are concerned. The appellant is at liberty to institute proceedings in the Commission seeking appropriate relief at any time. Subject to the appellant’s compliance with the rules and antecedent orders made by the Commission, such an application will be entertained and, in the ordinary course of the Commission’s business, will lead to a determination of the dispute between the parties.

Leave

The appellant, as earlier noted, has not sought leave to proceed with this appeal. That approach is founded upon an assertion that the order is not, contrary to my finding on this appeal, interlocutory. The respondents have submitted that the absence of any leave application is, alone, a sufficient basis for the Commission to conclude that the “application should not proceed”. As a cautionary submission, the respondents have argued that “due to the nature of the orders made, the substance of the original application and the history of the matter, there would be no basis upon which the Commission ought to determine that the hearing of an appeal is necessary or desirable for the proper and effective determination of the dispute”.
The appellant’s submissions attempt to deal with the respondents’ submission noted immediately above (at [5.1]–[5.4] of submissions in reply). I have earlier observed that such submissions are discursive. Those submissions include unsubstantiated allegations, suggestions of professional misconduct on the part of those representing the respondents and various observations concerning an absence of jurisdiction and an absence of “discretional power” in the Arbitrator to “dismiss the proceeding”.
Following careful consideration of the transcript of proceedings before the Arbitrator, I have reached the view that it is clear that the Senior Arbitrator’s concern had, at all times, been focussed upon the unknown position of the appellant. What was not known was her state of knowledge of the proceedings. Her failure to appear and the absence of any evidence explaining such failure compounded that concern, as did the general apprehension expressed by the Senior Arbitrator that there was, in all probability, a deficiency in the evidence presented on her behalf by her husband. That deficiency is well demonstrated by the absence from the evidence of a statement by the appellant as to relevant facts and circumstances. That deficiency is not cured by the presence among the papers held by the Commission of a hand written document which, apparently, is written in the Russian language.

Many opportunities to communicate have been afforded the appellant. None of those opportunities have been taken up. The inference drawn by the Arbitrator of abandonment of the proceedings was, in my view, clearly open to him. No basis has been established in support of the suggestion that the appellant had been denied natural justice.
I consider it appropriate to record my view that, had there been an application made seeking leave to proceed with the appeal, such application would have been refused. In the absence of such an application, the Senior Arbitrator’s order is confirmed and the appeal must be dismissed. Appropriate orders appear below.

ORDERS

The Senior Arbitrator’s order found in the Certificate of Determination dated 3 November 2015 is confirmed.
The appeal is dismissed.

Kevin O'Grady
Deputy President

26 February 2016

I, STEVEN HAMPSON, ASSOCIATE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.