Klose v QAF Meat Industries Pty Ltd
[2004] NSWWCCPD 37
•28 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Klose v QAF Meat Industries Pty Ltd
[2004] NSWWCCPD 37
APPELLANT: Colin Eward Klose
RESPONDENT: QAF Meat Industries Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC 17987-2003
DATE OF ARBITRATOR’S DECISION: 4 February 2004
DATE OF APPEAL DECISION: 28 June 2004
SUBJECT MATTER OF DECISION: Decision by the Arbitrator to admit Respondent’s late Reply
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: QBE Compensation In-House Legal
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
On 13 February 2004, Colin Edward Klose (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 February 2004.
The Respondent to the Appeal is QAF Meat Industries Pty Ltd (‘the Respondent Employer’).
The appeal was referred to me for review on 4 May 2004. I returned the file to the Registrar on 5 May 2004 as it was not evident from the file that a copy of the decision appealed against had been given to the Respondent Employer. It was subsequently ascertained that a copy of the written decision of the Arbitrator had not been given to either party. A copy was provided to each party under cover of the Registrar’s letter of 5 May 2004. An inquiry was made on 10 May 2004 to ensure that the parties had received the document and to ascertain if they wished to make submissions. On 11 May 2004 an email communication was received by the Registrar from Karen Bowley, of Adams Leyland Solicitors, for the Appellant raising some matters and stating “The written directions of the Arbitrator that the Commission sent to us by letter dated 5 May, 2004 do not accord completely with my notes of the teleconference.” On 20 May 2004 Ms Bowley filed “final submissions” which were received in the Commission on 25 May 2004, following the Registrar’s direction of 17 May 2004 that submissions were to be made and filed in accordance with proper procedure. A Certificate of Service indicates that a copy of the final submissions was served on the Respondent. A copy of the Registrar’s letter of 17 May 2004 and a copy of Ms Bowley’s email were provided to the Respondent. On 10 June 2004 a brief submission dated 7 June 2004 was received in the Commission from the Respondent, in response to all documents that were provided. The Respondent Employer has made no other submissions in this appeal, except that in reply, it simply lodged a further copy of the ‘Application to Admit Late Documents’ and the attachments that were before the Arbitrator. The matter was referred back to me on 17 June 2004.
ISSUE IN DISPUTE
The issue in dispute in the appeal is the decision by the Arbitrator to extend the time for the Respondent to file a Reply to the ‘Application to Resolve a Dispute’ that was before the Arbitrator. In making his decision the Arbitrator said:
Each party made oral submissions. I was not offered what I consider to be a satisfactory explanation for the Respondent’s delay, however, note that is not the sole determining factor. Refusal to allow the Reply to be filed would not necessarily prejudice the Applicant repeating, as it does, the Respondent’s denial of June 2003. Nor, would it delay the matter. I find there would be prejudice to the respondent.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of 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.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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.
SUBMISSIONS
The Appellant’s submissions may be summarised as follows:
·The Workers Compensation Commission Rules 2003 (‘the Rules’) ought to be followed and to allow the lodgment of late replies without reasonable excuse to become the normal and accepted practice would undermine the integrity of the legislation and the Rules. The discretion to allow late admission of documents should only be exercised in exceptional circumstances (Adco Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 at paragraph 17).
·The reason for the delay in filing the Reply was that it was Christmas and the Solicitors were too busy and understaffed. This is not a satisfactory explanation and not an exceptional circumstance. QBE Workers Compensation (NSW) Limited (‘the Insurer/Respondent Employer’s Solicitors’) were given notice of the claim on 2 April 2002 and denied the claim on 6 June 2002. There has been ample time for preparation of the case. Other Arbitrators have refused applications in similar circumstances and it is desirable and necessary that the Commission have a consistent approach to this issue.
·Documents attached to the Reply do not support the Respondent Employer’s denial of liability and to exclude them would not cause prejudice to the Respondent Employer.
The Appellant made the further submissions set out below, following receipt of the Arbitrator’s written decision from the Commission:
Our notes of the teleconference state that the Arbitrator made an order, after his admission of the Reply, that no employer or delegate would be able to give evidence at the hearing of this matter on the grounds that no statement had been filed with the Reply. However, this does not appear in the Directions sent to us.
The Reply lists as an issue in dispute that the Respondent is currently obtaining a full statement from the employer and an employer’s delegate will be required to either produce a written statement or verbal evidence at the hearing of this matter. If our appeal fails and the Reply is admitted as per the original decision of the Arbitrator, then this statement, which we have not seen, would be admitted and oral evidence given at the hearing despite the order of the Arbitrator at the teleconference on 4 February 2004.To allow such admission of the statement and hence oral evidence, would be a breach of procedural fairness and would prejudice the Applicant.
In submissions made by the Respondent Employer, in support of the ‘Application to Admit Late Documents’, reference is made to Practice Direction No. 9 Lodgment of Late Documents (‘the Practice Direction’). The submissions may be summarised as follows:
·There is no prejudice to the Appellant. Correspondence has passed between the parties and the Appellant Worker’s solicitors have been furnished with any medical reports upon which the Respondent Employer will rely.
·There will be extreme prejudice to the Respondent Employer if the Reply and the accompanying documents are disallowed. The claim is for weekly benefits. The denial of the claim has been consistent throughout and the dispute relates to incapacity, level of impairment and “section 68A”.
·The nature of the dispute requires close consideration of the evidence of both parties in order for a fair decision to be made in accordance with the Commission’s objectives. It is grossly prejudicial to the Respondent Employer for a matter of this quantum to proceed unless the material is admitted and to proceed without it, would be a miscarriage of justice.
·The interests of natural justice are not served by excluding the material, as the Reply includes contemporaneous medical evidence and the claim forms. This is probative, relevant and essential evidence in the fair determination of the matter.
·All reasonable efforts were made to deal with the Application in accordance with the Commission’s timetable and the Respondent Employer should not be penalised. The late Reply has not delayed the determination of the matter, notwithstanding that it was filed out of time.
·“Objective E of the commission’s objectives statement says that one of the aims of the commission is ‘to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the workers compensation acts’. Our respectful submission is that this objective cannot be met if either of the parties are effectively ‘held to ransom’ by not allowing any of the material into the proceedings for consideration. This is especially the case here, where all efforts were made to comply with the rules, however filing of the reply was late. Granted, that there are circumstances where a gross transgression of the rules will require the Commission to exclude a reply, however we submit that this is not such an instance.”
The Respondent Employer made further submissions following receipt of the copy of the Arbitrator’s decision and the documents received under cover of the Registrar’s letter of 17 May 2004, in the following terms:
The issue here is that the Applicant resigned voluntarily from his employment.
There is data contained with the Applicant’s own Application to Resolve a Dispute confirming this fact.
The Reply, as admitted by the Arbitrator, does not prejudice the Applicant in any way.
Naturally, we would not be seeking to call oral evidence in the proceedings but rather admit a statement which has been flagged in the Reply.
On admission of statement, the Applicant will, under the rules, have the ability to reply within seven days.
The Applicant is not prejudiced by the Respondent’s Reply.
DISCUSSION AND FINDINGS
There is no indication on the Commission file that the teleconference held on 4 February 2004 was recorded. There are no transcripts, notes or other documents on the file that assist me to know what occurred and what was said between the Arbitrator and the parties, other than the written decision of the Arbitrator, headed up “Direction”, dated 4 February 2004 and stamped with the seal of the Commission. The Appellant Worker’s Solicitors submit that their notes of the teleconference indicate that the Arbitrator made a further order, as outlined above. The Respondent Employer makes no comment on the suggestion that the Arbitrator made a further order. I am left to deal with the formal order of the Arbitrator, given the absence of anything on the file to indicate he did make a further order in the terms suggested. In the circumstances, I am not satisfied that he did make such an order.
The Respondent Employer has indicated that it would not be seeking to call oral evidence in the proceedings before the Arbitrator, as suggested by the Appellant Worker. Rather, it will seek to admit a statement “which has been flagged in the Reply. On admission of statement, the Applicant will, under the rules, have the ability to reply within seven days.” I note however, that the Respondent Employer did in fact indicate in the late Reply that “We are currently obtaining a full statement from the Employer and the Employer’s delegate will be required to either produce a written statement or verbal evidence at the hearing of this matter.” This issue has now been clarified to the extent that the Respondent Employer has stated that it will not seek to call oral evidence in the proceedings before the Arbitrator. However, the question of admission of particular statements either by the Respondent Employer or its delegate in those proceedings is a matter for the Arbitrator, who will ultimately need to deal with it. In the circumstances, it does not follow as submitted by the Appellant Worker, that if the appeal fails the statements, which have not yet been produced would be admitted automatically, and oral evidence would be given before the Arbitrator. As stated, I cannot be satisfied that the Arbitrator has made any formal decision on this particular issue, but the parties will have the opportunity to make their own submissions to the Arbitrator, in due course.
I can take this issue no further in this appeal, in which the only decision appealed against and under review is the decision to extend the time for the Respondent to lodge the late Reply.
The powers of a Presidential Member of the Commission to confirm, or revoke a new decision and make a new decision in its place are exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172). While no reasons have been recorded for the Arbitrator’s decision, he did state that the explanation for the late lodgement of the Reply was not acceptable, but that it was not the sole determining factor. He considered the question of prejudice to the parties and found that there would be prejudice to the Respondent Employer by refusing to admit the Reply. This is indicative that the Arbitrator did give proper consideration to the issue and there is nothing before me to demonstrate that his decision is not well founded or properly made. In the absence of anything to demonstrate that the discretion by the Arbitrator has been exercised unfairly or unlawfully, the decision should not be overturned.
The Appellant Worker referred to Adco Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 in submitting that the Rules ought to be followed and that to allow the lodgment of late replies without reasonable excuse to become the normal and accepted practice, would undermine the integrity of the legislation and the Rules. He also referred to the matter of Rania Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34 in this regard. I agree entirely with the Appellant Worker’s statement of principle. Nevertheless, each application made to the Commission to extend time for the purpose of lodging late documents must be dealt with on its own merits and be determined accordingly. There is nothing before me to suggest that this has not been done.
DECISION
The decision of the Arbitrator is confirmed.
Gary Byron
Deputy President
28 June 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
0
0