Hrvat v Thiess Pty Ltd and Hachtief AG Australia

Hrvat brought a claim against Thiess Pty Ltd and Hachtief AG Australia in the Workers Compensation Commission of New South Wales. The claim arose from an incident where Hrvat sustained an injury at work, leading to a dispute over the extent of his permanent impairment and the compensation he was entitled to receive. The case was initially arbitrated by an arbitrator who issued a Certificate of Determination (COD) on 1 September 2009. Hrvat sought leave to appeal the decision, arguing that the arbitrator's determination was interlocutory and that the appeal time limit should be extended. Hrvat also sought to introduce new evidence, including an opinion from an Approved Medical Specialist (AMS), which conflicted with the arbitrator’s decision. The court was tasked with deciding whether the COD was interlocutory or final, and whether Hrvat's application for leave to appeal was within the statutory time limit. Additionally, the court had to determine if the new evidence should be admitted.

The court examined the nature of the COD to determine whether it was interlocutory or final. The court considered the definition of "interlocutory" as provided in various judicial decisions and the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005. The court concluded that the COD was not interlocutory because it finally determined the rights of the parties on the issue of permanent impairment, and hence, Hrvat's right to appeal was not precluded. The court also noted that the application for leave to appeal was made beyond the statutory time limit, and no exceptional circumstances existed to warrant an extension of time. Furthermore, the court held that the new evidence proposed by Hrvat did not meet the criteria for being admitted under Practice Direction No. 6 of the Workers Compensation Commission Rules 2006. The evidence could have been obtained with reasonable diligence and there was no high degree of probability that the outcome would have been different if the evidence had been considered at the arbitration.

The court denied Hrvat's application for leave to appeal, holding that the COD was final and the application was out of time. The court further held that the proposed new evidence did not warrant admission. As a result, the court ruled that Hrvat's application was refused and each party was to bear its own costs.