ING Administration Pty Limited v Singh

Case [2008] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:ING Administration Pty Limited v Singh  [2008] NSWWCCPD 48

APPELLANT:  ING Administration Pty Limited

RESPONDENT:  Reema Singh

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC5625-07

DATE OF ARBITRATOR’S DECISION:          11 January 2008

DATE OF APPEAL DECISION:  7 May 2008  

SUBJECT MATTER OF DECISION: Acceptance of further submissions on appeal in the Commission; actual grounds of appeal not particularised in submissions on appeal; substantial compliance with the 1998 Act and Rules as to filing appeal in the Commission; Registrar’s powers to manage the business of the Commission; injury; section 4 Workers Compensation Act 1987; section 11A of the 1987 Act; error of law; error of fact; inadequate reasons for decision; findings unsupported by the evidence and weight of evidence.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:      Workplace Law         

Respondent:   Turner Freeman Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 11 January 2008, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.

No order is made as to the costs of this appeal.

BACKGROUND

  1. On 7 February 2008 ING Administration Pty Limited (‘ING’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 11 January 2008.

  1. The Respondent to the Appeal is Ms Reema Singh (‘Ms Singh’).

  1. The Insurer is QBE Workers Compensation (NSW) Limited.

  1. The background to Ms Singh’s claim for compensation, leading to the matter being brought to the Commission, is set out in the Arbitrator’s ‘’Statement of Reasons for Decision’ (‘Reasons’), and is briefly summarised hereunder.

  1. Ms Singh claims to have suffered a psychological injury for which compensation is payable under the workers compensation legislation.  She claims that the injury occurred by way of a frank incident during May 2006, and was also due to the nature and conditions of her employment from May 2006 to December 2006.

  1. In her statement of 19 May 2007 Ms Singh says that she commenced employment with ING in October 2005.  She states that in May 2006 she was assaulted by a colleague who threw a bundle of important and confidential documents at her, almost striking her in the face.  She indicates that this was not the first occasion that this particular colleague had mistreated her. 

  1. Ms Singh reported the incident to the Human Resource Department of ING, but she was dissatisfied with the way in which her complaint was being managed.  In particular, she considered that the issue of her colleague’s unacceptable behaviour was not being dealt with.  She states that in or around June 2006 her immediate line manager assured her that she would never again have to volunteer to work in the same team as that particular colleague, who at that point in time, had been promoted to a position of line manager.  However, Ms Singh says that on 23 November 2006 her…

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ING Administration Pty Limited v Singh [2008] NSWWCCPD 48
Case
[2008] NSWWCCPD 48
Decision Date

CaseChat Overview and Summary

The case before the court involves ING Administration Pty Limited and Ms Singh, with the dispute centred on the procedures followed in an appeal against an arbitrator's decision within the Australian Commission. The legal matter was heard and decided in the Federal Circuit Court of Australia. The primary issue the court needed to resolve was whether ING’s supplementary submissions, filed beyond the initial 28-day period as specified in section 352(4) of the Act, were permissible under the rules and practice directions governing appeals. The court was also tasked with determining if this procedural lapse caused any substantial prejudice to Ms Singh, thereby affecting the fairness and integrity of the appeal process.

In examining the case, the court meticulously reviewed the submissions from both parties, highlighting that while the initial appeal application did not list the grounds of appeal explicitly, the subsequent supplementary submissions provided sufficient detail to understand the arguments. The court referred to Practice Direction No. 6 and the Registrar’s Direction 1.5, which it found were appropriately followed. It emphasised that the omission of itemised grounds of appeal did not result in any prejudice or substantial inconvenience to Ms Singh, as she was afforded ample opportunity to respond to all submissions, including those supplementary ones. The court noted that Ms Singh had the chance to file a third set of submissions but chose not to, further indicating that the appeal process was not compromised.

The Federal Circuit Court of Australia concluded that the supplementary submissions were properly filed and did not breach any procedural requirements. The court found that the procedural lapse did not prejudice Ms Singh and upheld the validity of the appeal. This decision underscored the importance of substantial compliance with procedural rules while allowing for some flexibility to ensure a fair appeal process.

The court’s final order was that the appeal was validly filed and would proceed as scheduled, with all submissions considered. The court also directed that the matter should move forward with the substantive issues of the appeal being heard and decided based on the merits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Practice Direction No. 6, Appeal Against a Decision of the Commission Constituted by an Arbitrator, dated 15 November 2007 provides, in part, under “PROCEDURE FOR APPEALS AGAINST A DECISION OF AN ARBITRATOR”: The Directions issued by the Registrar were therefore, properly made and have been complied with, including Direction 1.5 of 8 February 2008. I note in the context of Ms Singh’s objections to the filing of ING’s supplementary submissions, that at page 5 of her own submissions attached to her ‘Notice of Opposition to Appeal Against Decision of Arbitrator”, she states: The procedures followed by both parties in this matter are based upon the provisions of the Act, the Rules and the Practice Directions. They are unexceptional and are routinely followed by parties to appeals in the Commission, and by their legal representatives. It may be arguable that an exception arises in this matter. ING’s grounds of appeal are not actually listed in the otherwise reasonably comprehensive first submissions on appeal lodged with the Appeal Application within the 28 days prescribed in section 352 (4). However, the submissions on appeal filed with the ‘Appeal Against Decision of Arbitrator’ are substantial and contain the arguments in support of the appeal, as required by Rule 16.2 (4) (a), notwithstanding that the actual grounds of appeal are not specifically itemized. The grounds of appeal may be construed, upon a reading of those submissions. I note that this is essentially what Ms Singh’s legal representatives have done in their ‘Submissions in Support of Opposition to Appeal’. The supplementary submissions filed by ING in the Commission, were filed in accordance with the Registrar’s Direction 1.5 referred to above, and the directions in her letter of 11 March 2008, which she sent to both parties, enclosing the transcript of proceedings that took place before the Arbitrator. In my view, there has been substantial compliance with the Act and Rules in terms of filing the appeal. Ms Singh’s legal representatives’ assertion that there is no provision for the filing of further submissions after the 28 days prescribed in section 352(4) of the 1998 Act, and that only the submissions filed with the initial Appeal Application are to be taken into account, is not correct. Having regard to the circumstances of this matter, I consider that the omission of the itemized grounds of appeal from ING’s first submissions does not give rise to any prejudice, injustice or substantial inconvenience to Ms Singh, particularly as she has had ample opportunity to respond to all of ING’s submissions on appeal, including the supplementary submissions that succinctly particularized the grounds of appeal. I note again in this regard, that immediately prior to consideration being given by me towards the determination of this appeal, Ms Singh was afforded an opportunity to file a third set of submissions, which, after due consideration, her legal representatives elected not to do (see [18] above of these Reasons).

Ratio Decidendi

Legal Principle Established

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