Kemp v Geoffrey L Steinmetz t/as Crescent Head Bottle Shop
[2016] NSWWCCPD 18
•22 March 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Kemp v Geoffrey L Steinmetz t/as Crescent Head Bottle Shop [2016] NSWWCCPD 18 | |
| APPELLANT: | Christine Kemp | |
| RESPONDENT: | Geoffrey L Steinmetz t/as Crescent Head Bottle Shop | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-670/15 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 14 December 2015 | |
| DATE OF APPEAL DECISION: | 22 March 2016 | |
| SUBJECT MATTER OF DECISION: | Application to extend time to appeal; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; whether substantial injustice if time to appeal not extended where appeal has no prospect of success; claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the Workers Compensation Act 1987 by the Workers Compensation Legislation Amendment Act 2012 applies to pre-2002 injuries; cls 3 and 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied and followed; BP Australia Ltd v Greene [2013] NSWWCCPD 60 discussed and distinguished | |
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Whitelaw McDonald |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The application to extend time to appeal is refused. 2. The Arbitrator’s determination of 14 December 2015 is confirmed. | |
INTRODUCTION
Among other things, Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) repealed s 67 of the Workers Compensation Act 1987 (the 1987 Act). That is, subject to certain specific exceptions, and subject to the relevant savings and transitional provisions, it repealed a worker’s right to recover compensation for pain and suffering. The issue in this appeal is whether the repeal of s 67 applies to injuries received before 1 January 2002.
The issue is the same issue that the Commission determined in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick). In that case, the Commission held that the repeal of s 67 applies to workers who have received an injury before 1 January 2002, and who made “a claim for compensation” before 19 June 2012, but did not claim compensation for pain and suffering until after 19 June 2012, the date on which the relevant 2012 amendments took effect.
Applying Frick, the appeal has no prospect of success. The appeal was filed out of time. For the reasons discussed below the application to extend time to appeal is refused and the Arbitrator’s determination is confirmed.
BACKGROUND
On 25 October 1999, the appellant worker, Christine Kemp, received injuries in the course of her employment with the respondent employer. She made a claim for compensation for her injuries and the respondent accepted liability for that claim.
On 27 June 2003, the parties entered short minutes of order in the former Compensation Court of New South Wales. That agreement provided for the payment of permanent impairment compensation for a 10 per cent permanent impairment of the back, 10 per cent permanent loss of use of the right leg below the knee and $7,000 compensation for pain and suffering under s 67.
On 18 October 2012, that is, after the commencement of the 2012 amending Act on 19 June 2012, Ms Kemp claimed additional permanent impairment compensation under ss 66 and 67, because of a deterioration in her condition.
The respondent’s insurer disputed liability on the ground that Ms Kemp had already made one claim for permanent impairment compensation and s 66(1A), introduced by the 2012 amending Act, prevented the making of a second claim.
In an Application to Resolve a Dispute (the Application) lodged with the Commission on 10 February 2015, Ms Kemp sought additional permanent impairment compensation under ss 66 and 67. The Commission referred the assessment of Ms Kemp’s impairments as a result of her injury to an Approved Medical Specialist (AMS) for assessment.
On 30 July 2015, the AMS assessed Ms Kemp to have, as a result of her injury in 1999, an additional or further permanent impairment of her back and additional loss of use of each leg. The respondent agreed to honour the AMS’s assessments, under a direction from the WorkCover Authority of NSW, and to pay further compensation under s 66, but maintains that s 66(1A) prevents the making of a second claim in a case such as Ms Kemp’s. (The respondent has not sought and is not entitled to a refund of the further s 66 compensation it has paid.)
At a teleconference on 20 October 2015, the Commission noted that the parties had settled the claim for additional lump sum compensation under s 66 and Ms Kemp discontinued that part of her claim. The parties remained in dispute about Ms Kemp’s entitlement to additional compensation under s 67, which was the only issue before the Arbitrator.
Applying BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48 (Bailey), the Arbitrator held that the repeal of s 67 meant that Ms Kemp had no entitlement to further compensation under that section. The Commission issued a Certificate of Determination on 14 December 2015, dismissing the claim for compensation under s 67.
In an appeal filed out of time, Ms Kemp seeks an extension of time to appeal the Arbitrator’s determination.
PRELIMINARY MATTERS
On the papers
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”
Ms Kemp submitted that the appeal cannot be determined on the papers because there are two conflicting decisions of the Commission, Bailey and BP Australia v Greene [2013] NSWWCCPD 60 (Greene). In the circumstances, she contended that “an oral hearing is required”. The respondent consents to the appeal being conducted on the papers.
I do not accept that the decisions of Bailey and Greene are in conflict. More importantly, the parties have had every opportunity to provide detailed written submissions, both before the Arbitrator and on appeal, and have done so. I do not believe an oral hearing is necessary for the proper determination of the matter.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by respondent that the appeal can proceed to be determined on the basis of these documents, 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.
Extension of time to appeal
The last day on which the appeal could have been filed in time was Monday 11 January 2016. Ms Kemp filed her appeal on 19 January 2016, eight days out of time.
In support of her application to extend time to appeal, Ms Kemp has submitted that she unsuccessfully sought legal aid from the Independent Legal Assistance and Review Service conducted by the Workers Compensation Independent Review Office (WIRO). Her application for legal aid was refused on 22 December 2015, 5 January 2016 and 15 January 2016. In addition, she said that her solicitor was on leave from 23 December 2015 until 11 January 2016.
Ms Kemp submitted:
“Therefore, given that [Ms Kemp’s] legal representative’s office was closed from 23 December 2015 for the Christmas/New Year break, and that the acting representative did not return until 11 January 2016, and further the time elapsed for WIRO reconsideration re-requesting funding, [Ms Kemp] seeks an extension of time (noting 5 days out of time), [Ms Kemp] submits that if extension of time is not granted there would be demonstrable and substantial injustice to [her] given the consequences of the issues referred to in the further submissions of the Appeal.”
The respondent has opposed the application to extend time to appeal, noting that Ms Kemp filed the appeal notwithstanding that legal aid was refused. It submitted that the appeal could have been filed within the required timeframe following Ms Kemp being advised on 22 December 2015 or 5 January 2016 that funding would not be provided.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted.
Considering Pt 16 r 16.2(11) of the Commission’s 2006 Rules, which was in the same terms as Pt 16 r 16.2(12) of the current provision, Allsop P (as his Honour then was) in Bryce v Department of Corrective Services [2009] NSWCA 188 (Beazley JA (as her Honour then was) and Giles JA agreeing) said, at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction …”
More recently, in an application to extend time to appeal by over three months, where the notice of intention to appeal was filed in time, Basten JA (Beazley P and Leeming JA agreeing) observed in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, at [9]:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
When the above principles are applied in the present case, four factors point strongly to extending time. First, the extent of the delay is relatively short, second, the Christmas vacation fell in the middle of the 28-day period, third, delay was occasioned while Ms Kemp sought legal aid, and, last, there is no apparent prejudice to the respondent.
Against this, however, I must consider the prospects of success in the proposed appeal. The appeal raises an issue that the Commission has recently determined in Frick, a decision that has not been appealed. There are no features that distinguish the present case from Frick and no reasons why the result would be any different. It follows that the appeal must fail. In these circumstances, there is no injustice (let alone a substantial injustice) if time to appeal is not extended.
The application to extend time to appeal is therefore refused. If I am wrong on this issue, I will deal with the substance of Ms Kemp’s arguments.
ISSUE IN DISPUTE
The notice of appeal purports to identify two issues: first, whether claims in respect of pre-1 January 2002 injuries are subject to the one claim provision in s 66(1A) and, second, whether Ms Kemp is entitled to claim compensation under s 67. However, as the respondent paid the claim for additional s 66 compensation, because of a policy decision to do so, the issue of whether Ms Kemp was caught by s 66(1A) does not arise.
I note that the issue of whether a pre-2002 injury is caught by s 66(1A) is expressly covered in cl 19 of Sch 8 to the Workers Compensation Regulation 2010 (the Regulation). Greene noted (at [128]) that, assuming that cl 19 was validly made, it applies s 66(1A) to pre-2002 injuries. Ms Kemp has put nothing that has persuaded me that that statement was wrong. It follows that the only issue on appeal is whether the Arbitrator erred in finding that the repeal of s 67 applies to Ms Kemp. That question requires consideration of the relevant transitional provisions.
THE RELEVANT TRANSITIONAL PROVISIONS
The relevant transitional provisions are cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act, cl 3 of Pt 18C of Sch 6 to the 1987 Act, and cl 11 of Sch 8 to the Regulation. Clauses 3 and 15 of Pt 19H relevantly provide:
“3 Application of amendments generally
(1)Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
…
(2)An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.
…
15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 3 of Pt 18C provides:
“3 Lump sum compensation amendments
(1)The lump sum compensation amendments [the 2001 amendments] do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows…”
(The 2001 amendments include the amendments introduced by the Sch 3 of the Workers Compensation Legislation Amendment Act 2001 and Sch 2 of the Workers Compensation Legislation Further Amendment Act 2001. As it has not been argued that any of the exceptions listed in cl 3 apply to the present matter, I have not listed them.)
Clause 11 of the Regulation provides:
“11 Lump sum compensation
(1)The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2)Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
DOES THE REPEAL OF SECTION 67 APPLY TO PRE-2002 INJURIES?
Submissions
Ms Kemp submitted that, in respect of injuries received before 1 January 2002, cl 3 of Pt 18C preserves entitlements to compensation under ss 66 and 67 in the form that they existed immediately before that date. She contended that:
“… there is nothing in the reasoning in Greene to suggest that the reasoning process which held that [the 2012 amending Act] does not apply to old section 66 claims does not equally apply to old section 67 claims. In fact, on the basis of the reasoning in Greene there is no basis for drawing any distinction between old section 66 claims and old section 67 claims, insofar as their continuing application unaffected by [the 2012 amending Act] is concerned.” (emphasis included in original)
Ms Kemp contended that Bailey was wrong. She said that, for injuries before 1 January 2002, claims for compensation under ss 66 and 67 were under the version of those provisions as they existed prior to 1 January 2002. That is because cl 3 of Pt 18C provides that the lump sum compensation amendments (introduced in 2001) do not apply in respect of an injury sustained before that date.
It was argued that cl 11 of Sch 8 is ambiguous and should be interpreted as having a “mere temporal operation”. Such an interpretation limits its operation to “new section 66 claims and new section 67 claims, excepting such claims that specifically sought compensation before 19 June 2012 under Section[s] 66 and 67” (emphasis included in original). Clause 11 of Sch 8 only extends the amendments (introduced by the 2012 amending Act) to claims which relate to injuries that are the subject of the amendments. That is, so it was argued, injuries received on or after 1 January 2002.
In additional submissions, prepared after the Commission drew the parties’ attention to Frick, Ms Kemp submitted that the reasoning in Greene “is incorrect”. She argued that the 2012 amending Act left cl 3 of Pt 18C untouched and, as a result, left untouched those versions of ss 66 and 67 that applied prior to the amendments introduced by the 2001 Act. Those versions continue to apply after 19 June 2012, because cl 3 of Pt 18C has not been amended.
Last, Ms Kemp addressed the statement in Bailey to the effect that the entitlement to compensation for pain and suffering under s 67 continues where an exception has been made. She argued that the version of s 67 applicable to injuries received prior to 1 January 2002 was not amended by the 2012 amending Act and, as such, an exception for its continued existence was not required.
Discussion and findings
The issue on appeal has been determined in Frick and Ms Kemp’s submissions cannot be accepted.
Nothing in Greene supports Ms Kemp’s position. That case concerned the operation of cl 3 of Pt 18C and its application to a claim for permanent impairment compensation under s 66 for an injury received before 1 January 2002. Clause 3 of Pt 18C provides that the lump sum compensation amendments introduced on 1 January 2002 by the 2001 amendments do not apply in respect of an injury received before that date, even if the injury is the subject of a claim after that date.
Greene concerned the effect of the 2012 amendments on s 66 and only s 66. It did not consider s 67. The amendments could only apply to a pre-2002 injury if they were read with s 66, in its form saved by cl 3 of Pt 18C, which had not been repealed. When one attempted to do that, the provision did not work and was nonsense (see Greene at [125]–[126]).
Greene held that there was no clear intention to abolish “entirely” the pre-2002 scheme for permanent impairment compensation and that the inclusion of cls 18 and 19 of Sch 8 of the Regulation, which deal expressly with injuries received before 1 January 2002, in the context of claims under s 66, suggested the opposite ([128]). It followed that, contrary to the employer’s argument in that case, there was no implied repeal of cl 3 of Pt 18C. Therefore, for the purposes of a claim for compensation under s 66, for injuries received before 1 January 2002, cls 3 and 15 of Pt 19H had to be read subject to cl 3 of Pt 18C ([150]). This meant that the pre-2002 version of s 66 applied and that the amendments to that section introduced by the 2012 amending Act did not apply.
There is no provision similar to cls 18 or 19 of the Regulation, which deal only with s 66 entitlements, that points to s 67 being saved for pre-2002 injuries. It was not necessary to include such a provision in circumstances where the Parliament did not amend s 67, but repealed it. Unlike s 66, which has merely been amended, s 67 has no continuing operation (save for that provided by the savings and transitional provisions and relevant exemptions), because it has been repealed. Whether the repeal of s 67 applies to injuries received before 1 January 2002 depends on the operation of cl 11 of Sch 8.
There is no ambiguity in cl 11 of Sch 8. Its text is tolerably clear and “there is little room for debate about” its construction (Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [25], per French CJ, Crennan, Kiefel and Keane JJ (Goudappel)). By operation of cl 11, the effect of which is to “override cl 15” (Goudappel at [42], per Gageler J), the amendments made by Sch 2 to the 2012 amending Act extend to “a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act” (emphasis added).
As Ms Kemp made “a claim for compensation” before 19 June 2012, the amendments introduced by Sch 2 to the 2012 amending Act apply to her claim for additional compensation under s 67, regardless of when she received her injury. The critical amendment is the repeal of s 67. Ms Kemp therefore has no entitlement to further compensation for pain and suffering because, at the time she made her claim for that further compensation, on 18 October 2012, the section had been repealed and she does not come within any of the applicable exemptions.
As to the operation of cl 11 of Sch 8 where a worker “specifically sought” compensation under s 66 or s 67 before 19 June 2012, see Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid). Any potential unfairness resulting from Cram Fluid has been addressed, to a limited extent, by cl 11A of Sch 8. The parties have not argued that cl 11A applies in the present matter.
There is no justification for reading cl 11 in the manner suggested by Ms Kemp. To do so would involve a significant re-writing of the clause. The clause does not refer to “new section 67 claims”. It extends the amendments made by Sch 2 to the 2012 amending Act to “a claim for compensation made before 19 June 2012”.
There is nothing in the context or history of the legislation that points to a different conclusion. The question is not whether the 2012 amending Act left cl 3 of Pt 18C untouched, but whether, by operation of cl 11 of Sch 8, the repeal of s 67 applies to Ms Kemp. For the reasons explained above, which apply the reasoning in Frick, it clearly does.
CONCLUSION
For the above reasons, if time to appeal were extended, the appeal would have failed. There is therefore no injustice if time to appeal is not extended.
DECISION
The application to extend time to appeal is refused.
The Arbitrator’s determination of 14 December 2015 is confirmed.
Bill Roche
Deputy President
22 March 2016
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