Madafiglio v Arnotts Biscuits
[2006] NSWWCCPD 36
•3 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Madafiglio v Arnott’s Biscuits Limited [2006] NSWWCCPD 36
APPELLANT: Dana Madafiglio
RESPONDENT: Arnott’s Biscuits Limited
INSURER:Royal & Sun Alliance Workers Compensation (NSW) Ltd.
FILE NUMBER: WCC17920-03
DATE OF ARBITRATOR’S DECISION: 20 September 2004
DATE OF APPEAL DECISION: 3 March 2006
SUBJECT MATTER OF DECISION: Leave to appeal; section 352(4) Workplace Injury Management and Workers Compensation Act 1998; Rule 77(8) & (9) Workers Compensation Commission Rules 2003; decision not supported by the evidence; weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers.
REPRESENTATION: Appellant: Maurice Blackburn Cashman,
Lawyers
Respondent: Moray & Agnew, Solicitors
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 20 September 2004, is refused.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Mrs Dana Madafiglio, the Appellant, was employed by Arnott’s Biscuits Limited (‘Arnotts’), the Respondent, from 20 September 1995 until the termination of her employment on 17 October 2003. Mrs Madafiglio was employed as a technician, being a machine operator, operating a mixer. Royal & Sun Alliance Worker’s Compensation (NSW) Ltd (‘the Insurer’) was Arnott’s workers compensation insurer at all relevant times.
Mrs Madafiglio claims to have suffered an injury to her back on 30 September 2002, when she stepped up to an oven, and then slipped and fell into a sitting position. Mrs Madafiglio claims that she suffered a partial incapacity for work as a result of an injury that arose out of and in the course of her employment with Arnotts.
On 30 September 2002 Mrs Madafiglio notified Arnotts of the injury.
On 1 October 2002 Mrs Madafiglio lodged a claim with the Insurer for weekly benefits and medical expenses.
On 18 February 2003 the Insurer advised Mrs Madafiglio that it denied further liability for the claim; that payment of weekly benefits would cease on 2 March 2003, and that medical benefits would cease forthwith.
It was established at the arbitration hearing on 9 September 2004, that Mrs Madafiglio continued to receive weekly benefits until 8 August 2003. The payments beyond 2 March 2003 were inadvertently made on the part of the Insurer, however Arnotts did not request any repayments at that stage.
On 11 November 2003 Mrs Madafiglio lodged an ‘Application to Resolve a Dispute’ (‘Application’) in the Workers Compensation Commission (‘Commission’). The Application was registered in the Commission on 17 November 2003. The basis of her claim is that she suffered injury to her back on 30 September 2002, arising from the “nature and conditions” of her employment with Arnotts. The claim was for weekly compensation payments and “section 60 expenses”.
The matter was listed for an arbitration hearing in the Commission, on 9 September 2004. Both parties were legally represented.
The Arbitrator made a determination in the matter on 20 September 2004.
On 30 September 2004 Mrs Madafiglio lodged a further ‘Application to Resolve a Dispute’ with the Commission. The application was registered in the Commission on 11 October 2004, and was assigned the number WCC16271-04. The basis of this claim is that Mrs Madafiglio suffered injury to her back as a result of an injury sustained on 30 September 2002, arising from the “nature and conditions” of her employment with Arnotts.
On 29 July 2005 Mrs Madafiglio lodged an ‘Appeal Against Decision of Arbitrator’ (‘Appeal’) in the Commission, against the decision of 20 September 2004, in relation to the first matter that was brought to the Commission.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 20 September 2004 records the Arbitrator’s orders as follows:
“1.Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.Award in favour of the Respondent in respect of the Applicant’s claim for medical expenses under section 60 of the Workers Compensation Act 1987.
3.No order as to costs.”
ISSUES IN DISPUTE
The principal issues in dispute in the appeal are:
(1)whether leave to appeal should be granted;
(2)whether the Arbitrator erred in relying on the Medical Assessment Certificate of Dr Hitchen to support his determination, and
(3)whether the Arbitrator erred in finding that the weight of evidence established that the consequences of the injury would have been transitory.
ON THE PAPERS REVIEW
Section 354(6) Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Mrs Madafiglio submits that the appeal may be determined on the papers and the Respondent, Arnotts, has offered no objections. Having regard to the submissions, evidence and 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.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000 and the Arbitrator made an award in favour of Arnotts, in respect of the whole of the amount of compensation claimed. Consequently, sections 352(2)(a) and (b) of the 1998 Act are satisfied.
The chronology of events and Mrs Madafiglio’s submissions in support of extension of time in which to lodge the appeal
The appeal was initially lodged in the Commission on 25 May 2005, eight months after the decision of the Arbitrator dated 20 September 2004. This is in breach of section 352 (4) of the 1998 Act which provides:
“ (4)An appeal can only be made within 28 days after the making of the decision appealed against.”
On 30 May 2005 the Commission rejected the Appeal on the basis that it failed to attach submissions on various threshold issues relating to granting of leave to appeal; the failure to detail the amount of compensation the subject of the appeal; arguments in favour of the review, and arguments in support of the granting of an extension of time to make the appeal. The Commission also referred Mrs Madafiglio to Practice Direction No 6 and to the current version of ‘Application – Appeal Against Decision of Arbitrator - Form 9’ available on the Commission’s website.
On 8 June 2005 Mrs Madafiglio’s Solicitors wrote to the Commission addressing the threshold issues including the issue of leave to appeal out of time by referring to paragraph 11 of her original appeal submissions dated 25 May 2005, which states:
“11.The Certificate of Determination was issued on September 20, 2004. The Applicant first instructed me on October 14, 2004. The time to file an Appeal expired on October 18, 2004. At that date I had not yet received the file from the Applicant’s previous solicitors. Accordingly on October 18, 2004, I filed an Application for an extension of time pursuant to Rule 77(8). I have since obtained the Applicant’s file from her previous solicitors and now file her Appeal. Further, as at October 18, 2004 the medical certificate of Dr Noll was not available.”
The Appeal was registered in the Commission on 29 July 2005.
On 1 August 2005 the Registry sent a sealed copy of the Appeal to Mrs Madafiglio’s Solicitors along with a Direction which included:
“The Registrar directs that:
1. The Appellant serve on the Respondent a sealed copy of the Appeal Against the Decision of an Arbitrator and documents attached thereto, including a copy of letter addressed to Registrar of the Commission dated 8 June 2005, and a copy of this Direction, by 9 August 2005.
2. The Appellant file with the Commission a Certificate of Service in relation to the above by 16 August 2005.
3. The Respondent file with the Commission and serve on the Appellant by 23 August 2005, written submissions in reply.”
On 29 August 2005 the Registrar wrote to Mrs Madafiglio’s Solicitors stating that if a ‘Certificate of Service’ was not lodged within 7 days of the date of the letter, the appeal application would be struck out without further notice.
On 1 September 2005 Mrs Madafiglio’s Solicitors filed a ‘Certificate of Service’ in the Commission.
On 8 September 2005 the Registrar ordered the appeal proceedings to be a nullity and that they be struck out pursuant to Rule 6(4) of the Workers CompensationCommission Rules 2003 (‘the Rules’).
On 12 September 2005 the Solicitors for Mrs Madafiglio wrote to the Registrar requesting that the Order striking out the appeal proceedings be rescinded in accordance with section 350(3) of the 1998 Act, on the basis that the direction dated 29 August 2005 was complied with.
The Solicitors conceded that the Appeal was not initially served on 9 August 2005, as required, due to their error. In asking the Registrar to review the Order dated 8 September 2005, they referred to the objectives of the Commission as stated in sections 354 and 367 of the 1998 Act. They also referred to the decision in Adco Construction Pty Limited v Kenneth Ian Ferguson (2003) NSW WCC PD 21 (‘Adco’) at paragraph 20 where Deputy President Fleming states that the following issues should be taken into account when dispensing with the requirement of the Rules, summarised as follows:
“1. Our explanation for the delay
2.The prejudice suffered by the Applicant by refusal to rescind the Order
3.The prejudice, if any, that would result to the other party
4.Whether or not the delay in serving the appeal in time was attributable to the legal representative and not the party personally
5.The nature of the proceedings
6.General considerations of fairness and justice between the parties.”
It was also submitted that a refusal to rescind the Order would not only affect the current proceedings but also the related proceedings matter WCC16271-04, which is currently awaiting the outcome of this Appeal. They concluded by stating:
“In considering our compliance with the Direction dated 29 August 2005, the anticipated delays in finalising both matters, the potential of costs of further Appeal proceedings, the lack of prejudice to the Respondent, prejudice to the Applicant and absence of fault on behalf of the Applicant, we kindly ask you to rescind your Order and to make a costs order against us.”
On 19 September 2005 the Registrar noted that the ‘Certificate of Service’ was provided to the Commission on 1 September 2005 and that on 8 September 2005, being the date of the Registrar’s Order to strike out the proceedings, this document was not on the Commission file because of an administrative oversight. In these circumstances, the Registrar decided to rescind her Order of 8 September 2005 in accordance with section 350(3) of the 1998 Act.
On 26 September 2005 Arnotts lodged its ‘Notice of Opposition to Appeal Against Decision of Arbitrator’.
On 28 September 2005 the Solicitors for Mrs Madafiglio informed the Commission that they had not attached their letter of 8 June 2005 and a copy of the Direction dated 1 August 2005, to their letter serving the ‘Appeal Against Decision of Arbitrator’ on Arnotts. These documents were forwarded to Arnotts under cover of a letter dated 28 September 2005.
I note that on 20 June 2005 an order was made adjourning WCC16271-04 until the appeal in the instant matter is finalised. On 30 January 2006 the Commission made the decision not to join the related matters, WCC17920-03 and WCC16271-04, until this appeal is finalised.
Pausing here, I note that the Commission’s file reveals that Mrs Madafiglio’s Solicitors’ letter of 18 October 2004, requesting an order for an extension of time pursuant to Rule 77(8), states:
“…
5. I anticipate obtaining the file within the next seven days and being in a position to file an Appeal within 21 days thereafter.
I will today serve a copy of this appeal on the respondents.”
On 2 November 2004 Mrs Madafiglio’s Solicitors contacted the Commission by telephone and stated that they would be sending in the completed Appeal Application to be considered, along with their request for an extension of time in which to lodge the appeal.
On 8 November 2004 the Solicitors telephoned the Commission again and were advised by Registry staff that the request for an extension of time should be lodged with the Appeal.
As noted previously, Mrs Madafiglio’s Appeal was not initially lodged until 25 May 2005. This was a period of almost six months from their letter dated 18 October 2004 in which her Solicitors stated that they would be in the position to file an Appeal within approximately 21 to 28 days. No further explanation was put forward in the submissions accompanying the Appeal, as to why the appeal was filed out of time, except for the reasons given at paragraph 20, above. Moreover, no explanation was given for the failure to file the appeal within the 21 to 28 days nominated by the Solicitors, and for the further unduly lengthy delay of nearly six months before filing in the Commission was affected.
The lodging of the further ‘Application to Resolve a Dispute’ in related matter WCC16271-04 with the Commission on 11 October 2004, does not appear to provide any clarification as to the cause of the delay, except for the submission made in the letter dated 8 June 2005, in the instant matter, which states that “…Further, as at October 18, 2004 the medical certificate of Dr Noll was not available.” However, the medical certificate of Dr Noll has been provided to the parties’ legal representatives, but appears to be more relevant to the related matter, WCC16271-04.
Mrs Madafiglio continues to rely on the decision in Adco in relation to the issues that should be taken into account when dispensing with the requirements of the Rules.
There are no further submissions in support of the application for an extension of time to file the appeal, pursuant to Rule 77(8).
Fresh evidence
For the sake of completeness, the references to Dr Noll’s report in Mrs Madafiglio’s submissions raises the issue of the introduction of fresh evidence in this matter. There is nowhere in the Appeal documents, a specific request for leave to introduce fresh evidence as required by section 352(6), which provides:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
No formal application has been made to introduce Dr Noll’s report as fresh evidence in the appeal, and Mrs Madafiglio has made no submissions in support of any such application. For the sake of certainty, and in the circumstances, leave to introduce the document is refused.
Arnott’s submissions on the time for filing the appeal and the introduction of fresh evidence
In Arnotts’ ‘Notice of Opposition to Appeal Against Decision of Arbitrator’, dated 26 September 2005, it is submitted:
“12.The appellant has on two separate occasions now failed to commence a proposed appeal within the time prescribed by s352(4) of the Workplace Injury Management & Workers Compensation Act 1998 as well in accordance with orders made by the Commission and contrary to the appellant’s submissions otherwise, the respondent has been significantly prejudiced by these delays and the need to respond to this matter in circumstances where the arbitrator’s initial decision was submitted as long ago as 17 September 2004 [sic].”
In relation to the inclusion of Dr Noll’s report in Mrs Madafiglio’s appeal submissions, Arnotts submits:
“10.The appellant appears to wrongly relies [sic] on the subsequent medical assessment certificate of Dr Noll as evidence of the arbitrator’s previous decision being incorrect. Dr Noll’s medical assessment certificate was not available at the time the arbitrator entered his award and Dr Noll’s medical assessment is binding only in relation to the quantum of the appellant’s subsequent lump sum claim and can have no bearing on the overall question of liability, particularly with respect to the appellant’s prior unsuccessful claims for weekly benefits and s60 expenses.
11.In referring to or relying on Dr Noll’s medical assessment certificate the appellant appears to be seeking to introduce fresh evidence in contravention of s352(6) of the Workplace Injury Management & Workers Compensation Act 1998.”
I have already dealt with the issue of fresh evidence at paragraph 41 and no further comment or finding is required.
Discussion and findings on the application to extend time for lodging of the appeal
As outlined above, the appeal in this matter was initially lodged some eight months after the decision against which the appeal is filed was made, in contravention of section 352(4) of the 1998 Act.
Rule 77 provides in part:
“(1)A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
Rule 77 further provides, in part:
“(8)The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(9)A party who seeks an extension of time as referred to in subrule (8) must:
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. Nevertheless, the issue has been the subject of a considerable amount of judicial consideration. Ultimately, the discretion must be exercised to ensure that justice between the parties is achieved (Gallo v Dawson (1990) 93 ALR 479 (Gallo’); Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd 9 in Liquidation (formerly SACS Group Pty Ltd) (1993) 113 ALR 637).
In Gallo, McHugh J gave consideration to an application to extend time for the filing of a ‘Notice of Appeal’ in the High Court of Australia, he said, in part:
“The discretion to extend time is given for the sole purpose of enabling the court or
justice to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal; see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgement’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
These principles have been applied in a number of Commission appeal proceedings, including, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22; Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54; Uniting Care NSW.ACT t/as Uniting Care Caroona v Thomas [2004] NSW WCC PD 63, and more recently, in Department of Education & Training v Mekhail [2006] NSW WCC PD 1; Piening-Cochrane v P L and R M Wilde trading as Wilde Earthmoving [2006] NSW WCC PD 22, and South Eastern Sydney Are Health Service v Berry [2006] NSWWCCPD32.
I am satisfied that Mrs Madafiglio has given notice to Arnotts of the intention to seek this extension of time, pursuant to Rule 77(9)(a). The reasons for filing the appeal out of time are set out in the context of the chronology of events in paragraphs 18 to 39, above. She did not file the application with her ‘Appeal Against Decision of Arbitrator’ as required by Rule 77(9)(b), but filed it separately and before lodging the appeal.
Putting aside the issues that arose between Mrs Madafiglio and the Registrar in the process, and notwithstanding the initial reason put forward explaining why the appeal would be late (see paragraph 20, above), no reason is advanced to explain why the appeal was ultimately lodged eight months late. This is exacerbated by the fact that on 18 October 2004 the Registrar was informed in writing by Mrs Madafiglio’s Solicitors that the appeal would be lodged within 21 to 28 days of that date. The appeal in fact, was not lodged initially until 25 May 2005 and finally on 29 July 2005, contrary to the undertaking that had been given by Mrs Madafiglio’s Solicitors. The failure to provide what could reasonably be regarded as anything like “full details of the arguments to be put in favour of granting the extension”, clearly contravenes Rule 77(9)(b).
On this basis alone I cannot possibly be satisfied that there exist “exceptional circumstances” or that “to lose the right to seek leave to appeal would work demonstrable and substantial injustice”. It is distinctly unhelpful that no explanations, arguments or submissions are put forward that could lead me to this conclusion. The delay in pursuing this appeal has been quite extraordinary.
According to Gallo Mrs Madafiglio carries the onus of proving that strict compliance with the Rules will work an injustice upon her. That onus has not been discharged. The history of this matter and the conduct of Mrs Madafiglio and/or her Solicitors in the prosecution of this appeal, as set out above, is entirely unsatisfactory, exacerbated by the fact that no explanation has been provided for the unduly long delay in filing the appeal. It is a significant delay in the extreme, and obviously requires at least some explanation if Mrs Madafiglio hopes to discharge the onus upon her. The consequences for her if leave to extend the time for making the appeal is refused, are that she fails in her claim for an award of workers compensation. Given that there was so much at stake for her, it is difficult to understand why the appeal was not pursued vigorously and in as timely a manner as possible. The failure to explain such an extraordinary delay reflects little resolve, concern and commitment in the pursuit of the appeal.
I note at this point that without reaching any firm conclusions, a brief overview of the evidence before the Arbitrator and the substantive submissions in this appeal, does not in my view, provide a compelling reason for regarding her prospects of success in the appeal, as being particularly demonstrable, in any event (see Gallo).
Ultimately, the discretion to extend time under Rule 77(8) is given for the purpose of doing justice between the parties. Mrs Madafiglio has not only failed to satisfy me that I should reasonably exercise that discretion, but she has made little if any real attempt to argue her case for an extension of time to appeal, if indeed she has one. If she holds the view that failure to obtain the extension of time to lodge her appeal would be prejudicial to her and cause injustice, this is not reflected in the apparently casual approach that has been taken in the conduct of the matter, to date.
There is no doubt that to extend time for Mrs Madafiglio to appeal in the circumstances of this matter would result in significant prejudice to Arnotts. It would simply not “do justice between the parties”, as outlined by McHugh J, in Gallo.
I am not satisfied in terms of Rule 77(8), that exceptional circumstances exist, nor that to lose the right to seek leave to appeal would work demonstrable and substantial injustice to Mrs Madafiglio. To find otherwise, on what is before me, would work demonstrable and substantial injustice to Arnotts, given that none of the lengthy delay was its fault, and it is surely entitled to claim the benefit of the award made in its favour without any further delay.
Leave to appeal the decision of the Arbitrator, dated 20 September 2004, must be refused.
DECISION
Leave to appeal the decision of the Arbitrator, dated 20 September 2004, is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
3 March 2006
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
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