Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe v Workers Compensation Nominal Insurer - [2021] NSWPICPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe v Workers Compensation Nominal Insurer [2021] NSWPICPD 39
APPELLANT:	Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Omar Al Nabulsi
INSURER:	Uninsured
FILE NUMBER:	A1-W807/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	10 November 2021
ORDERS MADE ON APPEAL:	1. Pursuant to s 54 of the Personal Injury Commission Act 2020 and r 77(a) of the Personal Injury Commission Rules 2021, in matter number A1-W807/21, the Application – Appeal Against Decision of Member lodged on 16 August 2021 is dismissed.
CATCHWORDS:	WORKERS COMPENSATION – dismissal of proceedings – s 54 of the Personal Injury Commission Act 2020 – r 77(a) of the Personal Injury Commission Rules 2021 – procedural requirements for an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 – deficient appeal application – non-compliance with delegate of the President’s direction – appellant not taking steps to prosecute its case – whether appeal should be dismissed
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
First Respondent:
Ms J Turnbull, solicitor
Hall & Wilcox
Second Respondent:
Mr A Tohme, solicitor
Santone Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	21 July 2021

INTRODUCTION

This matter has some history with respect to procedural non-compliance. In short, it involves an Application – Appeal Against Decision of Member that is non-compliant with Procedural Direction WC3 – Presidential appeals and questions of law (Procedural Direction WC3). Despite being granted additional time to lodge an amended complying appeal, the appellant is yet to lodge an amended appeal that complies with Procedural Direction WC3.
The appeal is against Member McDonald’s dismissal of a miscellaneous application brought by an uninsured employer pursuant to s 145(3) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

For the purposes of this decision, the background can be confined to a narrow compass, principally concerning the procedural history of this matter.
On 22 February 2021, the Workers Compensation Nominal Insurer, the first respondent, issued a notice to the appellant, Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe, pursuant to s 145(1) of the 1987 Act. The notice sought reimbursement of the amount of $57,237.30,[1] with respect to recovery of the first respondent’s payment of compensation to Mr Omar Al Nabulsi (the second respondent) as a result of an injury on 12 December 2019.
[1] Section 145 Notice, Miscellaneous Application lodged on 30 March 2021.
It is undisputed that the appellant did not hold a workers compensation policy at the time, nor that the second respondent was employed by the appellant on a work trial.

PROCEEDINGS BEFORE THE MEMBER

On 30 March 2021, the appellant lodged in the Commission a miscellaneous application pursuant to s 145(3) of the 1987 Act. That application sought that the Commission determine the appellant’s liability for the payments made. In those proceedings, as on this appeal, the appellant was not legally represented. Mr Christopher Francis who identifies as the Director/operations of the appellant appeared for it. Mr Francis’ ability to represent the appellant was not challenged by the Nominal Insurer.
At telephone conferences before Member McDonald on 4 May 2021 and 8 June 2021, Mr Francis sought to obtain and file further evidence in the matter. The appellant did not file that evidence.[2]
[2] Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe v Workers Compensation Nominal Insurer (W807/21, 21 July 2021) (reasons), [5]–[6], [14].
The matter was listed for conciliation and arbitration on 20 July 2021. On the evening prior to the hearing, Mr Francis sought an adjournment, which was opposed. At the hearing, Mr Francis repeated this application, which was ultimately refused by the Member.[3] The hearing proceeded and the parties addressed.
[3] Reasons, [9]–[13].
The Member informed the parties at the hearing that the application was dismissed.[4] On 21 July 2021, a Certificate of Determination was issued by the Commission, setting out the orders as indicated by the Member at the hearing.
[4] Reasons, [28].

PROCEDURAL HISTORY OF THE APPEAL PROCEEDINGS

On 16 August 2021, Mr Francis, on the appellant’s behalf, lodged in the Commission an Application – Appeal Against Decision of Member. Attached to that application was:
(a) a covering letter dated 16 August 2021, and
(b) a copy of the s 145(1) notice dated 22 February 2021, which included details of the payments made.
In the covering letter, Mr Francis indicated that the appellant wished to present new evidence, witness statements, and “previous work history (investigating)”, which I take to mean the second respondent’s work history. The appellant submitted that this was not able to be presented before the Member “as certain details were not obtained”. The appellant said that witnesses could not be reached.
The appellant submitted it required “time to submit the following” after the lockdown arising from the COVID-19 pandemic.[5]
[5] Covering letter dated 16 August 2021.
In a Direction dated 17 August 2021, in response to the submissions contained in the covering letter dated 16 August 2021, the President’s delegate stated:
“It is noted that the unrepresented appellant says that their capacity to prepare their case in this matter is affected by the current COVID-19 lockdowns. Without investigating this further, given the current pandemic circumstances, the Commission accepts this.”
The Direction also set out the procedural deficiencies of the Appeal Application, which did not comply with Procedural Direction WC3. The Direction noted:
“As lodged, the Appeal Application does not comply with Procedural Direction WC3 in that it has not included or attached:
(a)     the grounds for and the arguments in support of the grounds for the appeal and, if necessary, arguments in support of leave to appeal an interlocutory decision;
(b) submissions, for the purposes of section 352(3) of the [Workplace Injury Management and Workers Compensation Act 1998], regarding the amount of compensation alleged to be at issue on the appeal;
(c)     submissions with respect to the fresh, or additional evidence on which the appellant seeks to rely, including:
(i)a schedule of the fresh, additional or substituted evidence;
(ii)a copy of the fresh, additional or substituted evidence;
(iii)a brief outline of the fresh, additional or substituted evidence;
(iv)the reasons why the fresh, additional or substituted evidence was not in the proceedings before the member, and
(v)submissions on why the fresh, additional or substituted evidence should be admitted or rejected on appeal;
(d)     an objective chronology of the key events leading up to the commencement of the proceedings, which is not limited to matters that assist the party preparing it;
(e)     a copy of the Certificate of Determination issued by Member McDonald dated 21 July 2021, and
(f)     a list of authorities.”
The appellant was directed to lodge with the Commission an Amended Application – Appeal Against Decision of Member (amended appeal application) by 15 October 2021, which the Direction noted should provide time for the appellant to retain legal advice and/or fully comply with Procedural Direction WC3.
The Commission did not receive an amended appeal application, nor any further correspondence in the matter. On 15 October 2021, the Commission enquired by telephone with Mr Francis, following up the lodgment of the amended appeal application. A confirmatory email was sent by the Commission of the telephone call. The email sent on 15 October 2021 relevantly recorded:
“We refer to the above matter and telephone discussion earlier today.
The Commission notes that the President’s Direction of 17 August 2021 (copy attached) directed that the appellant lodge with the Commission an amended Application – Appeal Against Decision of Member by 15 October 2021, which the Commission has not received.
As per the telephone conversation, the Commission notes that if you seek additional time to lodge a complying amended appeal, the appellant needs to make an application in writing by email seeking an extension of time.
It is also noted that you mentioned that you have instructed Colin Daley Quinn solicitors to represent you in this matter. The Commission also requests that you provide your legal representatives’ contact details.”
The Commission did not receive any further correspondence from the appellant, Mr Francis or any legal representatives acting on the appellant’s behalf, including any amended appeal application, or the contact details of any legal representatives acting on the appellant’s behalf.
On 25 October 2021, the first respondent’s legal representative sent an email to the Commission, which was copied to Mr Francis and the other parties. That email relevantly enquired:
“I note that it has been over a week since the below development and to my knowledge no further action has been taken by the [a]ppellant. In the absence of a compliant appeal and the passing of the deadline for filing same, could you please advise whether the Commission will now be rejecting the appeal so this matter can be finalised?”
The Commission did not receive any response from the appellant to that email.
On 27 October 2021, the delegate of the President issued a further Direction. The Direction set out a chronology of the proceedings and procedural difficulties to date, and noted:
“the Commission has not received any correspondence from legal representatives instructed by the appellant. The Commission has not received an Amended Application, nor any correspondence from the appellant seeking additional time to lodge an Amended Application. The appellant has not provided any written explanation as to why it has not complied with the Direction dated 17 August 2021.”[6]
[6] Direction dated 27 October 2021, [6].
The Direction continued:
“In view of the above chronology and the appellant’s non-compliance with s 352 of the 1998 Act and the Direction dated 17 August 2021 to date, the Commission will consider dismissing the proceedings pursuant to s 54 of the Personal Injury Commission Act 2020 and/or rule 77(a) of the [Personal Injury Commission Rules 2021] if:
(a) a complying amended Application – Appeal Against Decision of Member, and
(b) submissions explaining why the Direction of 17 August 2021 was not complied with and showing cause as to why the appeal should not be dismissed,
are not lodged with the Commission and served on the respondents on or before 5.00 pm on Wednesday 3 November 2021.” (emphasis in original)
The appellant was directed to lodge in the Commission and serve on the respondents by 5 pm on 3 November 2021:
(a) reasons as to why it is failed to lodge with the Commission an Amended Application – Appeal Against Decision of Member as directed in the President’s Direction dated 17 August 2021 and submissions showing cause as to why the appeal should not be dismissed, and
(b) an Amended Application – Appeal Against Decision of Member that fully complies with Procedural Direction WC3.
The Direction then set out all of the areas which required rectification for the appeal to be procedurally compliant.
Further, at the conclusion of the Direction, the President’s delegate reiterated the following in bold type:
“The Commission places the parties on notice that if the above Direction is not complied with, the matter will be allocated to a Presidential Member for consideration of dismissing the proceedings pursuant to s 54 of the Personal Injury Commission Act 2020 and/or r 77(a) of the Personal Injury Commission Rules 2021.”
A file note on the Commission’s file dated 27 October 2021 records that in addition to the President’s delegate issuing the Direction dated 27 October 2021, the delegate phoned Mr Francis, who verbally confirmed that he had received the Direction dated 27 October 2021.
The appellant did not comply with the Direction dated 27 October 2021. The appellant did not lodge:
(a) reasons as to why it is failed to lodge with the Commission an Amended Application – Appeal Against Decision of Member as directed in the President’s Direction dated 17 August 2021 and submissions showing cause as to why the appeal should not be dismissed, nor
(b) an amended appeal application.
On 5 November 2021, the parties were advised in an email sent from the Commission that the matter had been allocated to me and a decision would be made shortly.
To date, the Commission has not received any further correspondence from the appellant, Mr Francis or any legal representatives acting on the appellant’s behalf. No amended appeal application has been received.

ISSUE FOR DETERMINATION

In view of the procedural history with respect to the appeal proceedings described at [10]–[28] above, it is necessary for me to consider whether to dismiss the appeal proceedings under s 54 of the Personal Injury Commission Act 2020 (the 2020 Act) and/or r 77(a) of the Personal Injury Commission Rules 2021 (the 2021 Rules).

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the nature of this procedural decision, 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.

LEGISLATION

It is necessary to set out some legislative provisions concerning dismissal of proceedings.
Section 54 of the 2020 Act provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(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 Commission rules.”
Rule 77 of the 2021 Rules relevantly provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,
…”.
Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) sets out the nature of an appeal. It provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

DISCUSSION

Section 54 of the 2020 Act and r 77(a) of the 2021 Rules make clear provision enabling the Commission to dismiss proceedings in circumstances where, amongst other things, an applicant has either abandoned the proceedings; the proceedings are lacking in substance, or have been failed to be prosecuted with due dispatch. In my view, this includes appeals lodged pursuant to s 352 of the 1998 Act.
The way in which these appeal proceedings have been conducted to date falls within the realms of both s 54 of the 2020 Act and r 77(a) of the 2021 Rules.
The appellant lodged an incomplete, non-compliant, appeal application on 16 August 2021. The delegate of the President directed the appellant to lodge with the Commission an amended complying appeal application by 15 October 2021. Despite being given two months to lodge a compliant appeal application in view of the COVID-19 pandemic lockdown, the appellant failed to lodge an amended appeal application.
The appellant was contacted on 15 October 2021. On 27 October 2021, the appellant was provided with a further opportunity to lodge an amended complying appeal, and to provide an explanation of the reasons why it failed to comply with the Direction of 17 August 2021, and reasons why the appeal should not be dismissed. It failed to avail itself of this opportunity.
Despite the multiple opportunities afforded to the appellant in the Directions dated 17 August 2021 and 27 October 2021, in addition to telephone and email contact made on 15 October 2021, and telephone contact on 27 October 2021, the appellant has still not lodged an amended appeal, or provided reasons for their non-compliance.
In the absence of any explanation, I am of the view that the appellant has abandoned the appeal proceedings, thus satisfying s 54(a) of the 2020 Act.
Section 54(b) of the 2020 Act also is satisfied on the basis that the appeal proceedings are lacking in substance. The Directions of 17 August 2021 and 27 October 2021 highlight the many and significant defects in the appeal application. These deficiencies have not been rectified. This, in my view, clearly demonstrates that the appeal application is severely lacking in substance. I am fortified in this view by the fact that there are no grounds of appeal enunciated, let alone submissions in support of any grounds. As it is presently framed, there is no discernible allegation of error of fact, law or discretion on the Member’s part that is identified in the appeal application, as required by s 352 of the 1998 Act, the 2021 Rules and Procedural Direction WC3 as referred to above.
Additionally, r 77(a) of the 2021 Rules is satisfied. The appellant has not lodged an amended appeal application, despite having the opportunity to do so since 17 August 2021. A further Direction has been issued, as well as there being further telephone contact made by the Commission. Despite this, the appellant, Mr Francis or any legal representative it may have retained, have not made any further application to extend time to lodge a complying appeal, nor lodge one.
In view of the above, my discretion to dismiss these proceedings pursuant to s 54 of the 2020 Act and r 77(a) of the 2021 Rules has been enlivened. In view of the effluxion of time since the delegate of the President issued the Direction of 17 August 2021, there has been no further advancement in the appeal. I conclude that the appellant has either abandoned the proceedings or not prosecuted its case with due dispatch.
It can be observed from the chronology at [10]–[28] above that the appellant has been provided some time and numerous opportunities to prepare his case, and has failed to do so.
I find that under s 54 of the 2020 Act, as well as under r 77(a) of the 2021 Rules, the proceedings:
(a) have been abandoned, and/or in the alternative the appellant has failed to prosecute the proceedings with due dispatch, and
(b) are lacking in substance.
The above paragraph highlights that these proceedings warrant dismissal not only on one, but on many bases contemplated in s 54 of the 2020 Act and the 2021 Rules. This reinforces my conclusion that the appropriate course is to dismiss these proceedings.
Finally, although not part of the reasons why I am dismissing this appeal, I do make the following observation. Before the Member, the appellant was also given the opportunity to prepare its case, and seek to ascertain further evidence. I note that the appellant did not avail itself of that opportunity, and instead sought further adjournment of those proceedings.

DECISION

Pursuant to s 54 of the Personal Injury Commission Act 2020 and r 77(a) of the Personal Injury Commission Rules 2021, in matter number A1-W807/21, the Application – Appeal Against Decision of Member lodged on 16 August 2021 is dismissed.

Judge Phillips
PRESIDENT

10 November 2021