Howell v Stringvale Pty Ltd
[2004] NSWWCCPD 22
•30 April 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22
APPELLANT: Wayne David Howell
RESPONDENT: Stringvale Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9397-2003
DATE OF ARBITRATOR’S DECISION: 3 October 2003
DATE OF APPEAL DECISION: 30 April 2004
SUBJECT MATTER OF DECISION: Leave to file late Appeal Application. Factors relevant to an extension of time to file appeal.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Higgins & Higgins Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Commission constituted by an Arbitrator dated 3 October 2003 is refused.
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 December 2003 Wayne David Howell (‘the Appellant/Mr Howell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 3 October 2003.
The Respondent to the Appeal is Stringvale Pty Ltd (‘the Respondent/Employer’). The Respondent filed a Reply to the Appeal on 13 January 2004.
The relevant insurer is QBE Workers Compensation (NSW) Limited (‘the Insurer’).
The appeal relates to a claim by Mr Howell for workers compensation by way of weekly payments from 5 May 1992 and continuing; lump sum compensation for permanent impairment, pain and suffering, and payment of associated medical expenses. He claims to have suffered physical and psychological injuries due to the nature and conditions of his employment, working for the Respondent as a ‘General Hand’ in the crematorium.
Mr Howell had previously obtained monetary award as the result of a consent judgment of the Supreme Court of New South Wales. He alleges that his present claim relates to a different injury to that of the previous proceedings.
The matter was referred to me for review on 6 April 2004.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 3 October 2003 and a brief ‘Statement of Reasons’ (‘the Reasons’) records the Arbitrator’s orders as follows:
1. “The claim for physical and psychological injuries as a result of the nature and conditions of the employment of the Applicant by the Respondent is resolved in favour of the Respondent.
2. That I make no order as to costs.”
The Appellant seeks to have the Arbitrator’s decision set aside. The Appellant filed written submissions with the original application and further submissions on 17 December 2003.
The Respondent filed submissions in reply on 13 January 2004.
ISSUES IN DISPUTE
There are two threshold issues that must be determined in this appeal. The first is whether or not leave should be granted to extend the time for filing of the appeal. The second is whether or not the Appellant should be permitted to give fresh evidence on the appeal.
The grounds of appeal submitted by the Appellant are:
1. The Arbitrator erred in that his decision was against the medical evidence that proved the pre-existence of the Applicant’s work related back injury.
2. The Arbitrator failed to compel the respondent to comply with its statutory obligation to fully produce medical records in their possession.
3. The Arbitrator failed to distinguish between the frank injury to the back on 5 May 1992 and the nature and conditions claim prior thererto.
4. The Arbitrator failed to distinguish between the Applicant’s psychiatric injury as a result of the respondent’s work conditions and depression caused by his physical injuries.
5. The attached reports of Dr P Louda dated 14 November 2003 and Adrian Robinson dated 31 October 2003 confirm the Applicant’s allegations.
ON THE PAPERS REVIEW
The Appellant submits, “in view of the complexity of the matter the Leave to Appeal and Appeal itself should be determined by oral submissions”.
The Respondent submits that the matter should proceed to be determined on the papers.
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.
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
The application must meet the requirements of section 352 of the 1998 Act, which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s orders were issued to the parties in a Certificate of Determination dated 3 October 2003. The appeal was not lodged within 28 days of that decision, i.e. on or before 31 October 2003, in compliance with section 352(4) of the 1998 Act. The appeal was lodged 66 days after the decision was made.
Rule 77(8) of the Workers Compensation Rules 2003 (‘the Rules’) effective from 1 July 2003, relevantly provides that:
“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.”
The following sets out the progress of this matter in the Commission:
·On 30 April 2003, Mr Howell filed an Application to Resolve a Dispute.
·On 22 May 2003, the employer filed the Reply.
·On 17 June 2003, the Insurer sent a letter to the solicitors for the Appellant submitting that Mr Howell had exercised his election to pursue the matter as a common law claim in the Court and requesting that proceedings be discontinued without delay.
·On 11 August 2003, a telephone conference was held with the parties unable to resolve the dispute. The Arbitrator issued a direction for the Appellant and Respondent to file and serve the medical reports of Dr Parmegiani dated 3 October 2002 and Dr Bodel within 7 days respectively. These reports were duly filed.
·On 11 September 2003, a conciliation conference and arbitration hearing was held with the Arbitrator making a further direction for the Appellant to produce various medical reports, being reports that were prepared for the Supreme Court proceedings in 1996.
·In a letter dated 12 September 2003, the Respondent filed further submissions together with the following medical reports: Dr Cameron dated 20/8/92, Dr Clift dated 14/1/93, Dr Goulston dated 26/2/93, Dr Fathers dated 23/3/93 and 8/2/94 and Dr Slezak dated 4/6/93.
The Appellant submits that there are “special circumstances for the extension of time”. To this end the Appellant set out the matters he had attended to from the date of the issue of the Arbitrator’s decision on 3 October 2003, namely:
·On 22 October 2003 the Appellant requested WorkCover to investigate the Insurer’s conduct in this matter.
·On 23 October 2003, Dr Peter Louda was requested to clarify the apparent inconsistency between his reports and his records.
·On 27 October 2003, Dr Louda informed the Appellant that he required copy of his records, which had not been returned from the Commission.
·On 8 November 2003, the Appellant wrote to Dr Louda and provided a copy of his records.
·On 10 November 2003, a response was received from WorkCover informing that the Insurer had denied holding any relevant reports.
·On 14 November 2003, the Appellant wrote to WorkCover requiring the production of reports together with an explanation for the failure to produce them earlier.
·On 5 December 2003, the Application to Appeal was served and sent for filing.
The Respondent submitted that the ‘Application to Appeal’ should be refused as it was not lodged within 28 days as required by section 352 of the 1998 Act and is “clearly in breach of Part 13 Rule 77(1) of the Rules.”
In relation to the sufficiency of the medical evidence, the Respondent submitted that all available material was produced under direction on 12 September 2003 and was considered by the Arbitrator. In addition, the Respondent stated that, “The Arbitrator had a plethora of medical material dating back some 10 years in which to consider. Arbitrator Herrick clearly discussed this evidence and makes a finding based upon same”. The Respondent maintained that, based on the medical evidence that was available before the Arbitrator, there was no error of law in his decision.
DISCUSSION AND FINDINGS ON LEAVE
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for an appeal against the decision of an Arbitrator to be filed in the Commission. Ultimately the discretion must be exercised to ensure that ‘justice between the parties’ is achieved (Gallo v Dawson [1990] 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liq) (formerly SACS Group Pty Ltd [1993] 113 ALR 637).
The courts have frequently considered this issue. Guidance as to the factors that a court or Tribunal should have regard to when exercising the discretion to extend time is found in the leading case of Gallo v Dawson (1990) 93 ALR 479. In that case Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court and set out the following guiding principles:
. . . The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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. 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, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott [1986] 12 FCR 187 at 194 5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson [1979] 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgement” unless the application is granted: Vilenius v Heinegar [1962] 36 ALJR 200 at 201.
I have taken the matters referred to by Justice McHugh into account in the particular circumstances of this case.
The Appellant’s submissions in relation to the extension of time for leave to appeal do not adequately address the reasons for the delay in filing the appeal. They chronicle certain steps the Appellant took, without any explanation of why the appeal could not have been filed in any event. The ground of appeal identified by the Appellant is that the “Arbitrator erred in law and on the facts in finding all the applicant’s injuries and incapacities are all related to the incident of 5 May 1992 and subsumed by that settlement”. The chronology of events that followed the issue of the Arbitrator’s decision do not establish why an appeal on such a broad ground, could not have been filed within the time required by the Rules.
The history of these proceedings does not support the granting of an extension of time to appeal. This is a matter that has been in dispute between the parties for some years. It is a matter that should previously have been clearly articulated in order that the process of making the claim, investigation and refusal could take place in accordance with the statutory scheme of the 1998 Act. The claim was first made in 2003 but it relates to an earlier claim involving the same parties that was made several years earlier. The issues aired before the Arbitrator were not new, nor is the Appellant’s point of appeal. It concerns the central argument that was before the Arbitrator. Despite this, the appeal was filed nearly two months after the decision was made. The claim that the Appellant was not fully prepared to argue the appeal at the time when it was required to be filed does not excuse a failure to file at all.
The nature of proceedings in the Commission is in accordance with the Commission’s statutory objectives (section 367 of the 1998 Act) to provide a fair, cost effective and timely resolution of workers compensation disputes. The Appellant had ample opportunity to argue his case before the Arbitrator, and to file all relevant evidence in relation to the claim. A telephone conference and a face- to-face conciliation and arbitration were held with both parties legally represented.
I accept that the Appellant will be disadvantaged, to the extent only that he will be unable to pursue the appeal. However, in the context of the fact that the issues in dispute have been on foot for some time and have been thoroughly canvassed by the Arbitrator, this disadvantage is outweighed by the disadvantage to the Respondent in allowing the appeal to proceed. It is not the issue itself that the Appellant disputes on the appeal but the Arbitrator’s finding on that issue. The Respondent is entitled to rely upon the Arbitrator’s order.
I have also considered the prospects of the Appellant succeeding on the appeal. To this end it is relevant that the Appellant seeks leave to file fresh evidence. The Appellant submitted that the reports of Adrian Robinson dated 31 October 2003 and Dr Peter Louda dated 14 November 2003 should be admitted as fresh evidence. The Appellant claims that these reports were obtained post Arbitration, in order to clarify a number of inconsistencies in the evidence before the Arbitrator. The Appellant argues that the fresh evidence could not have been reasonably obtained before the Arbitrator due to the Respondent’s failure to produce documents. The Respondent objects to the introduction of any new evidence. The Respondent submits that the Appellant has not given sufficient reasons for their admission and consequently, any attempt to tender further evidence is in direct contravention of the Rules.
In my view the application to file fresh evidence should not succeed. The Appellant had ample opportunity to file medical evidence to address the issues in dispute. I am not satisfied that this evidence could not reasonably have been obtained by the Appellant and tendered in the arbitral proceedings (see Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7; M & S Shipman Pty Ltd v Matters [2003] WCC PD 19; Surgenor v Cenehill Pty Limited t/as Rocks Real Estate [2004] NSW WCC PD 4 and Practice Direction No. 6). Issues of the weight of the evidence were argued before, and determined by, the Arbitrator. I accept the general thrust of the Respondent’s submission, that the reason the Arbitrator failed to distinguish between the frank injury on 5 May 1992 and the nature and conditions is because he found there was no evidence to support such a distinction.
While it is not possible to pre-determine the success or otherwise of the appeal, in my view the Appellant’s prospects of success in the appeal are minimal. This is a matter to be considered in relation to whether or not leave should be granted. The errors alleged to have been made by the Arbitrator are matters that go either to the Arbitrator’s findings of fact, or to the Arbitrator’s discretion as to the relevance and weight of the evidence. There is no evidence, in the materials before me in the appeal, that the Arbitrator failed to determine the matter lawfully and fairly. The Appellant’s prospects of success on the appeal are further diminished in the event that he is not permitted to file fresh evidence in the appeal.
I am not satisfied that I should exercise discretion to grant the Appellant leave to file the appeal out of time.
DECISION
Leave to Appeal is refused
COSTS
The Appellant is to pay the costs of this application, as agreed or assessed.
Dr Gabriel Fleming
Deputy President
30 April 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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