Hawke v Chief Executive Officer, WorkCover NSW (GD)

[2008] NSWADTAP 30

Appeal Panel - Internal

CITATION:	Hawke v Chief Executive Officer, WorkCover NSW (GD) [2008] NSWADTAP 30
PARTIES:	APPELLANT Dominic Peter Hawke RESPONDENT Chief Executive, Officer WorkCover NSW
FILE NUMBER:	089007
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 April 2008
DATE OF DECISION:	9 May 2008
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Question of law
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4
FILE NUMBER UNDER APPEAL:	073161
DATE OF DECISION UNDER APPEAL:	01/07/2008
LEGISLATION CITED:	Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Administrative Decisions Tribunal Act 1997
CASES CITED:	Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4
REPRESENTATION:	APPELLANT In person RESPONDENT G De Courcey, solicitor
ORDERS:	1. Leave to appeal refused 2. Appeal dismissed 3. Respondent to file and serve any submissions in connection with costs within 14 days from the date of this decision. Appellant to file and serve any submissions in reply within a further 14 days. Determination to be made on the papers without a hearing, as permitted by section 76.

REASONS FOR DECISION

1 WorkCover NSW may accredit individuals as suitable to undertake various categories of work under the Occupational Health and Safety legislation – Occupational Health and Safety Act 2000 (the OHS Act) and the Occupational Health and Safety Regulation 2001 (OHS Reg).

2 The appellant, Mr Hawke, has held various accreditations. His accreditation as a WorkCover Assessor was cancelled in September 2004. He also held accreditation as a Trainer for the training courses OHS General Induction for Construction Work in NSW and OHS Consultation. Those accreditations were cancelled in January 2007. In addition, he applied in 2005 for accreditation as an Assessor for Formwork and Explosive Power Tools. The application was refused in May 2005.

3 This appeal has its origin in an application for review lodged with the Tribunal by Mr Hawke on 15 May 2007, seeking review of the three decisions mentioned (from 2004, 2005 and 2007).

4 The Tribunal’s review jurisdiction is conferred by s 36 of the OHS Act and the regulation made thereunder, cl 351 of the OHS Reg. The Tribunal ruled, in response to a preliminary application by WorkCover, that it did not have jurisdiction to review the January 2007 decisions. WorkCover accepted that the 2004 decision was a reviewable decision (cancellation of the WorkCover assessor accreditation, referring to OHS Reg cl 351(1)(c)(v)), but did not accept that the 2005 decision was a reviewable decision.

5 The application for review was clearly out of time as it related to the 2004 and 2005 decisions. Mr Hawke applied for an extension of time. The application was opposed. The Tribunal refused to extend time. Consequently, it was unnecessary to deal with the jurisdictional objection relating to the 2005 decision. See Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4.

6 Mr Hawke now appeals under s 112 of the Administrative Decisions Tribunal Act 1997 (ADT Act). As it is an appeal in relation to a refusal of an extension of time, the Appeal Panel may be constituted on a single presidential member basis: see further, s 24A(1)(d), (2)(a). The parties have agreed to the hearing being dispensed with, and the matter being determined on the papers. I agree that such a course is appropriate. See s 76.

7 Mr Hawke’s submissions are attached to the notice of appeal.

8 WorkCover’s submissions were filed on 16 April 2008. WorkCover has reserved its position to make submissions in relation to the costs of the appeal proceedings.

9 WorkCover queried whether the appeal also included a challenge to the Tribunal’s refusal to exercise jurisdiction in respect of the 2007 decision. In my view, the notice of appeal is addressed only to the decision relating to the refusal to grant an extension. I shall proceed on that basis.

10 WorkCover’s submissions note correctly that an appeal in respect of an interlocutory decision requires leave, and accordingly Mr Hawke should also have lodged a separate application for leave. See further ADT Act s 113(2A); and Practice Note No 5. It is possible that an unrepresented applicant might overlook this additional requirement. I will proceed on the basis that Mr Hawke intended his appeal to include the application required under s 113(2A).

Assessment

11 In deciding to refuse the application to extend time, the Tribunal referred to several well known considerations taken into account by courts and tribunals when exercising such a power: the applicant’s explanation for failing to file in time; prejudice to the respondent if the matter is allowed to proceed; timeliness and delay in the antecedent administrative process; apparent merits of the case; and the public interest.

12 The Tribunal referred to the material upon which Mr Hawke relied to explain his long delay. There was a doctor’s report referring to Mr Hawke having ‘struggled’ to perform his usual work between January 2005 and March 2005. This report did not refer to any difficulties he might have had between March 2005 and January 2007. In its reasons, the Tribunal referred positively to WorkCover’s questioning of the strength of Mr Hawke’s assertions that he was affected by adverse health for a considerable period between 2005 and when he lodged the application (May 2007). WorkCover’s submissions were contained in a document submitted after the close of the hearing.

13 In his appeal, Mr Hawke submits that he was severely disadvantaged by the Tribunal’s reliance on the WorkCover reply. He says that as at the date of hearing (2 August 2007) the only further material requested by the Tribunal was a medical report from Mr Hawke (the one mentioned above). He says that no leave was given to permit WorkCover to file extra material. He filed his medical report (dated 5 September 2007) on 21 September 2007. On 28 September 2007 WorkCover filed a detailed reply.

14 Mr Hawke’s complaint is that he was denied procedural fairness in not being given an opportunity to respond to, or comment on, the WorkCover reply before the Tribunal delivered its decision. The decision was issued on 7 January 2008.

15 The Tribunal file shows that the hearing was held by telephone, and at its end the presiding member gave directions for the filing and service of further material, first by the applicant and then by the respondent. I do not accept that Mr Hawke was unaware that there might be further material filed by WorkCover, and that, in all likelihood, it might be in reply to material filed by him. There was a further direction that the matter would be determined on the basis of the material filed without the need for either party to attend a hearing.

16 Mr Hawke also seeks to rely on a letter he wrote to the presiding Member dated 22 October 2007 after receipt of WorkCover’s reply, the material text of which was:

‘At our last hearing, you made it quite clear that there was to be no further representations from either party, and you said that you were waiting on my proof of injury from my specialist, prior to making your decision about going ahead with the hearing.

In the interest of fairness, could you please disregard the letter sent from Chris Fessel of the Crown Solicitors Office on 28.9.07.’

17 Mr Hawke could have taken this opportunity to ask the Tribunal to allow him to make substantive submissions in relation to WorkCover’s reply. Instead he sought to restrict the scope of the Tribunal’s inquiry.

18 In my view the Tribunal followed a fair procedure in this matter.

19 As to the substance of its decision, the Tribunal identified appropriate considerations to take into account on a leave application.

20 It would be most unusual for the Tribunal to extend time to allow an application to be lodged over two years out of time when the ordinary limit is 28 days. Mr Hawke had a high hurdle to cross on this ground alone, regardless of his health explanation. As to the degree of his health problem, there is no suggestion that it was so grave as to cause him to cease work entirely. His application for leave was a weak one in the circumstances.

21 Moreover, it is clear that Mr Hawke has the right to make fresh applications to WorkCover for restoration of his previous accreditations. This is a far more practical course than to continue to focus on the decisions taken in 2004 and 2005.

22 In this regard, WorkCover’s submissions note that on 13 March 2007 Mr Hawke filed an application for review in the Tribunal said to relate to fresh applications made by him to WorkCover for accreditation as a trainer, as a general assessor and as an assessor for explosive power tools and formwork. Doubt has been raised as to whether any actual determinations in response to his new applications have yet been made by WorkCover. If that has not occurred, there may, again, be a jurisdictional problem preventing the Tribunal from dealing with Mr Hawke’s latest review application. The Tribunal directed Mr Hawke to supply evidence that decisions had been made on these matters by WorkCover. Those applications remain pending before the Tribunal.

23 In summary, as to the present matter I am satisfied that the Tribunal was engaged in the exercise of a broad discretion. It took account of relevant considerations and relevant material. I do not agree that Mr Hawke was denied procedural fairness. Furthermore, in my view, there is no utility in allowing Mr Hawke’s previous applications to proceed given that he is now pursuing fresh applications going to the same matters with WorkCover.

Orders

1. Leave to appeal refused

2. Appeal dismissed

3. Respondent to file and serve any submissions in connection with costs within 14 days from the date of this decision. Appellant to file and serve any submissions in reply within a further 14 days. Determination to be made on the papers without a hearing, as permitted by section 76.