Irwin v Risk Cover
[2006] WASCA 60
•7 APRIL 2006
IRWIN -v- RISK COVER [2006] WASCA 60
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 60 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:153/2005 | 17 MARCH 2006 | |
| Coram: | MCLURE JA | 7/04/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted | ||
| B | |||
| PDF Version |
| Parties: | SUNEE IRWIN RISK COVER |
Catchwords: | Practice and procedure Extension of time within which to appeal Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) Workers' Compensation and Rehabilitation Act 1981 (WA), s 84E, s 84ZN, s 84ZX |
Case References: | Jackamarra v Krakouer & Anor (1998) 195 CLR 516 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Brown v Metro Meat International Ltd [2000] WASCA 123 Girando v Girando (1997) 18 WAR 450 Kwa v City of Stirling; unreported FCt SCt of WA; Library No 990169; 16 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IRWIN -v- RISK COVER [2006] WASCA 60 CORAM : MCLURE JA HEARD : 17 MARCH 2006 DELIVERED : 7 APRIL 2006 FILE NO/S : CACV 153 of 2005 BETWEEN : SUNEE IRWIN
- Applicant
AND
RISK COVER
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : MS P M HOGAN SM
Citation : IRWIN v ROYAL PERTH HOSPITAL
File No : CM 157 of 2001
Catchwords:
Practice and procedure - Extension of time within which to appeal - Turns on own facts
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 84E, s 84ZN, s 84ZX
Result:
Extension of time granted
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr G Porter
Solicitors:
Applicant : In person
Respondent : Talbot & Olivier
Case(s) referred to in judgment(s):
Jackamarra v Krakouer & Anor (1998) 195 CLR 516
Case(s) also cited:
Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Brown v Metro Meat International Ltd [2000] WASCA 123
Girando v Girando (1997) 18 WAR 450
Kwa v City of Stirling; unreported FCt SCt of WA; Library No 990169; 16 March 1999
(Page 3)
1 MCLURE JA: The applicant applies for an extension of time to appeal from a decision of Compensation Magistrate Hogan made on 19 September 2001 dismissing the applicant's application for an extension of time to appeal from a decision of Review Officer Boon made on 8 August 2001.
2 By an application dated 5 October 2001, the applicant applied exparte for leave to appeal to the Full Court of the Supreme Court against the Compensation Magistrate's decision. The application was filed out of time. On 7 December 2001 the Full Court ordered that the applicant have leave to appeal from the decision of the Compensation Magistrate on one ground. However, the applicant did not file a notice of appeal until 12 December 2005, over four years after the grant of leave. Under the Rules of the Supreme Court1971 (WA) the appeal should have been commenced by 4 October 2001. She filed this application for an extension of time in January 2006.
3 Further background is required. In October 1987 the applicant was injured in the course of her employment as an enrolled nurse at Royal Perth Hospital. She received weekly payments of workers' compensation until September 1991 by which time she had received the prescribed amount. On 8 January 2001, some nine years after the cessation of the weekly payments, the applicant applied for an order under s 84E of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") that the 1987 work accident had resulted in her permanent total incapacity for work. In the intervening period, the applicant had been involved in motor vehicle accidents in 1989, 1992 and 1998 for which she had made personal injury claims.
4 The s 84E application was heard by Review Officer Boon in July 2001. In written reasons handed down on 8 August 2001, the Review Officer found that the 1987 work accident did not result in the applicant's permanent total incapacity for work. A party may appeal to a compensation magistrates' court from a decision of a review officer where a question of law is involved: s 84ZN.
5 The applicant's application to appeal the Review Officer's decision to the Compensation Magistrates' Court was some four days out of time. The applicant sought an extension of time which was heard by the Compensation Magistrate on 19 September 2001. She concluded that all the grounds of appeal save one (ground 4) did not raise a question of law and that ground 4 lacked merit. Accordingly, she dismissed the application for an extension of time.
(Page 4)
6 Ground 4 of the proposed grounds of appeal provided:
"The learned Review Officer erred in law in not affording the Applicant … procedural fairness and breached her statutory duties imposed by sections 84ZA (2), (3), 84ZD (1) to (3), 84ZF (4) & 84ZH in that:
(a) the Applicant although not represented, had a limited understanding of the burden of proof and procedure of the Act due to ethnicity and English language difficulties, was not given an opportunity to call further medical evidence as to the cause of her current disabling psychiatric condition;
(b) the Applicant's established psychiatric condition was held to be irrelevant to the claim without referral to a Medical Assessment Panel or further medical report or expert opinion from Dr. De Tissera the reporting psychiatrist; or
(c) the Review Officer of her own motion failed to give the Applicant an opportunity to provide new information as to her psychiatric condition or inform herself pursuant to sections 84ZD (1) & (2) and 84ZF (4)."
7 A party may, by leave, appeal to the Supreme Court against a decision of a compensation magistrate on a question of law: s 84ZX. The only ground on which the Full Court granted leave to appeal in December 2001 is as follows:
"2. In finding that although Ground 4 raised some questions of law these grounds did not evince substantial merit, the learned Magistrate erred in law in finding that:
(a) Ground 4(a) as to language difficulties had little merit as the Applicant trained in England in 1971 and since 1974 worked in Australia when the ground complained of a lack of understanding of a need to clarify an ambiguity in a psychiatric report discovered by the learned review officer which the Applicant wasn't afforded an opportunity to correct;
- (b) Ground 4 (b) complains that the learned review officer failed to refer this disputed relevant psychiatric to a medical assessment panel, and
(c) Ground 4 (c) complains that the learned review officer didn't try and clear up her perception of an ambiguous causative issue in a psychiatric report using statutory powers of investigation conferred by Parliament,
as these grounds substantially raised issues of fact. Had fairness and procedural fairness been afforded to the Applicant by the learned review officer at the review hearing and it been found that her psychiatric condition was work injury related and compensable then the whole outcome of the initial review hearing would have been altered in favour of the Applicant."
8 In a case such as this where an applicant seeks an extension of time within which to commence an appeal, there are four main factors to be considered, namely the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent: Jackamarra v Krakouer & Anor (1998) 195 CLR 516.
9 By any measure, a delay of over four years in commencing an appeal is grossly excessive and a significant impediment to the grant of an extension of time.
10 The applicant provided some explanation for the cause of the delay. She is not legally represented and suffers from mental health problems. The evidence discloses that the applicant was an inpatient at Graylands Hospital from 4 July 2003 to 5 September 2003. Prior to her inpatient admission, she was a patient of the Mirrabooka Mental Health Service. In a letter dated 1 June 2005, Dr Chris Hodgson, a consultant psychiatrist, states:
"[The applicant] has a diagnosis of Delusional Disorder, which is a psychotic disorder, which causes paranoid delusions, disordered mood and disorganised thinking. [The applicant's] disorder has not responded to medication.
(Page 6)
- I believe that [the applicant] has been suffering from this disorder for many years and that this would explain the delay in [the applicant] proceeding with her Supreme Court appeal."
11 In the period February 2004 to October 2004 the applicant was in Thailand looking after her gravely-ill sister.
12 In her application to the Full Court, the applicant was assisted by an industrial agent, Mr B Stokes, who it appears, was unable to assist the applicant thereafter. It is apparent from the papers that from time to time since December 2001, the applicant sought legal and other assistance to progress her claim. In late 2004 and 2005, approaches were made on her behalf to the Mental Health Law Service, Legal Aid and Law Access, it appears without success.
13 I turn now to the merits of the appeal. The Full Court has already determined that there is one arguable ground of appeal and that relates to the correctness of the Compensation Magistrate's conclusion as to the merits of ground 4 of the proposed grounds of appeal from the decision of the Review Officer. Ground 4 raises the question of whether the applicant was denied procedural fairness by the Review Officer.
14 As I understand the respondent's submission on the merits, it is to the effect that there was no breach of procedural fairness because the applicant did not make her s 84E application on the basis that she suffered a psychiatric disability as a result of the 1987 work accident. The applicant appeared in person before the Review Officer. The initiating documents are not in the papers. However, the applicant tendered in the review proceedings an opinion from a psychiatrist, Dr De Tissera, that the applicant was suffering from an adjustment reaction with paranoid features as a consequence of "the accident" without expressly identifying the accident to which he referred. The Review Officer dealt with that matter as follows:
"It was clear from the medical reports and in particular from the report of Dr De Tissera who examined her on 9 and 31 August 1995 that [the applicant] was suffering from an adjustment reaction with paranoid features as a consequence of 'the accident'. As Dr De Tissera refers to two accidents, namely the motor vehicle accident on 7 June 1992 and a work-related injury on 1 October 1997 [sic 1987], it was not clear to me whether he was of the view that any condition from which she was suffering related to the work related injury. There is no
(Page 7)
- recent report from a psychiatrist in relation to [the applicant's] current psychiatric state and I am not satisfied on the balance of probabilities that any psychiatric condition from which she may or may not now be suffering resulted from the 1987 disability."
15 It is apparent from this extract that the Review Officer was of the opinion that an issue for determination was whether the applicant's psychiatric condition was caused or contributed to by the 1987 work accident. Nothing raised by the respondent requires me to revisit the conclusion of the Full Court in 2001 that the applicant had an arguable case.
16 However, it was apparent from the applicant's submissions in support of her extension application that she does not understand the very limited scope of the proposed appeal to the Supreme Court. Her submissions addressed the question of the merits of the Review Officer's decision that her physical and mental disabilities were caused or contributed to by the 1987 work accident. The Court of Appeal cannot and will not answer that question. If the applicant is granted an extension of time and her appeal is successful, the only possible result would be the remittal of the matter back to a review officer on the specific question of the connection between the work accident and her psychiatric disability.
17 The respondent, by its counsel, submitted in the course of oral submissions that it was open to the applicant to make a further application, I assume under s 84E of the Act. If that is correct, it may be a significant factor against extending the time for appealing. However, I am not in a position to assess the correctness of the respondent's proposition or whether the applicant could suffer a detriment if the finding made by the Review Officer in 1995 is not set aside.
18 I have found this a difficult judgment to make. Ordinarily, I would not countenance or excuse a delay of the magnitude in this case. On the other hand, I accept that the delay is caused by the applicant's psychiatric disability which she wishes to contend is caused or contributed to by the 1987 work accident. In these very exceptional circumstances, I propose to extend the time within which to appeal.
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