Mahal v State of New South Wales (No 6)
[2019] NSWWCCPD 43
•21 August 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Mahal v State of New South Wales (No 6) [2019] NSWWCCPD 43 | |
| APPELLANT: | Inderjit Mahal | |
| RESPONDENT: | The State of New South Wales | |
| INSURER: | Treasury Managed Fund – Employers Mutual Ltd | |
| FILE NUMBER: | A3-2135/16 | |
| ARBITRATOR: | Mr J Harris | |
| DATE OF ARBITRATOR’S DECISION: | 16 April 2019 | |
| DATE OF APPEAL DECISION: | 21 August 2019 | |
| SUBJECT MATTER OF DECISION: | Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011, “exceptional circumstances”, “demonstrable and substantial injustice”, “merits of appeal” | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | SMK Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
The appellant was employed by the respondent as a parking patrol officer between 13 January 1997 until 4 December 2001. The appellant suffered various injuries in the course of her employment which have been the subject of multiple applications before this Commission. These matters are referred to in more detail in my decision in Mahal v State of New South Wales (No 5).[1]
[1] [2019] NSWWCCPD 42 (Mahal No 5).
BACKGROUND
In Mahal No 5, I dealt with the appeal from the decision of Arbitrator Harris of 18 February 2019.[2] After filing the appeal in that matter, the appellant filed an Application to Refer a Question of Law to the President of the Commission. The question of law sought to be referred was as follows:
“Section 39 and Schedule 6, Part 19H, clause 25 of the Workers Compensation Act 1987 (NSW) (‘WCA’) are invalid by virtue of s 109 of the Constitution due to their inconsistency with provisions of the Disability Discrimination Act 1992 (Cth) (‘DDA’).”
[2] Mahal v State of New South Wales [2019] NSWWCC 65 (18 February 2019 Reasons).
This matter was referred to Arbitrator Harris who issued a decision in relation to that application on 16 April 2019.[3] It is from this decision that an appeal has been lodged by the appellant.
[3] Mahal v State of New South Wales, 2135/16 (16 April 2019 Reasons).
ON THE PAPERS
Section 354(6) of the 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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.
THRESHOLD MATTERS
Monetary threshold
It is conceded that the monetary thresholds in s 352(3) of the 1998 Act have been met.
Extension of time
I will deal with the issue of the appellant’s application for an extension of time to file her appeal later in this decision.
EVIDENCE
The evidence in this matter is dealt with in Mahal No 5, and I do not seek to elaborate on that here. For reasons that will become obvious, it is not necessary to refer to that evidence for the purposes of this decision.
THE ARBITRATOR’S REASONS
The Certificate of Determination (COD) issued by Arbitrator Harris on 16 April 2019 records:
“Order
1. The application to refer the question of law to the President of the Workers Compensation Commission is refused.”
The Arbitrator referred to paragraphs [40] to [66] of his 18 February 2019 Reasons, and noted his observation that the Commission and the President of the Commission cannot determine constitutional questions.[4] The Arbitrator found that there was no relevant submission within this Application that his Reasons as referred to above were wrong. The appellant’s written submissions did not otherwise address how the President, exercising functions in the Commission, was purportedly a “Court of the State”.[5]
[4] 16 April 2019 Reasons, [8].
[5] 16 April 2019 Reasons, [9].
Arbitrator Harris found that the appellant may have accepted the President cannot decide the constitutional issue in stating, “His Hon. President may not decide the question of law by himself but to refer the constitutional issues to the Court of Appeal”.[6] Further, the appellant had not referred to any power whereby the President could refer any question of law to the Court of Appeal.
[6] 16 April 2019 Reasons, [10].
The Arbitrator found the application was futile because the President has no power to determine the issue or otherwise refer the question to the Court of Appeal. The application was rejected.
LEGISLATION
Section 39 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Clause 25 of Schedule 6, Pt 19H of the 1987 Act provides:
“25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
Section 106 of the 1998 Act provides:
“106 Authority may intervene in proceedings
(1) The Authority has a right to be heard in any proceedings before the Commission.
(2) The Authority may, for that purpose, be represented by a legal practitioner or a member of staff of the Authority or by any other person.
(3) In any such proceedings the Authority may apply for an order for which any party may apply in those proceedings.”
Section 351 of the 1998 Act provides:
“351 Reference of question of law on compensation claim to Commission constituted by Presidential member
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President.
(2) The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.
(3) The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
(4) If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.
(5) Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter.
(6) On the determination of a question referred to the Commission under this section:
(a) if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or
(b) if an award has been made in the matter in which the question arose, the award must be varied in such a way as will make it consistent with the opinion of the Commission on the question.
(7) The reference of a question of law under this section may be by stating a case on a question of law.
(8) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”
Section 352(4) of the 1987 Act provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Rules 16.1 and 16.2 of the Workers Compensation Commission Rules 2011 (2011 Rules) provide:
“16.1 Referral of question of law
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may be referred under section 351 of the 1998 Act for the opinion of the Commission constituted by the President only if a certificate of determination has not been issued in respect of the proceedings.
(2) A party to any proceedings applying for the reference by an Arbitrator of a question of law in the proceedings under section 351 of the 1998 Act must lodge the application and serve it on the Arbitrator, the Authority, and the other parties to the proceedings as soon as practicable.
(3) An application referred to in subrule (2) must include, or have attached, full details of the question of law and the reasons for seeking its referral, including the reasons why it is alleged that the question involves a novel or complex question of law as referred to in section 351 (3) of the 1998 Act.
(4) When a party seeks to oppose an application referred to in subrule (2) the party must, within 14 days of being served with the application, lodge and serve on the Arbitrator, the Authority, and the other parties notice of that opposition.
(5) A notice of opposition must include, or have attached, full details of the reasons for opposing the application.
(6) Where an application is lodged under subrule (2), and a party wishes to object to the matter of leave to refer the question of law being decided solely on the basis of the written application and any written notice of opposition lodged, the party must state that objection, including the reasons for the objection in full, in the application or notice of opposition lodged by the party.
(7) Where an Arbitrator, on the application of a party, seeks leave to refer a question of law under section 351 of the 1998 Act, the Arbitrator must give to the Registrar, as soon as practicable and in any case before any certificate of determination is issued in respect of the proceedings:
(a) the application served on the Arbitrator under subrule (2), and
(b) any notice of opposition served on the Arbitrator under subrule (4), and
(c) any statement of the question of law that the Arbitrator wishes to be considered by the President.
(8) Where an Arbitrator, of the Arbitrator’s own motion, decides to seek leave to refer a question of law under section 351 of the 1998 Act, the Arbitrator must, as soon as practicable, give to the Registrar a notice of that decision including, or having attached, full details of the question of law and the reasons for seeking leave to refer it, including the reasons why it is alleged that the question involves a novel or complex question of law as referred to in subsection (3) of that section.
(9) Where an Arbitrator seeks leave to refer a question of law under section 351 of the 1998 Act and decides not to make an award in the matter in which the question arose (as authorised by subsection (5) of that section), the Arbitrator must give to the Registrar a notice of that decision including, or having attached, the reasons for the decision.
(10) The Registrar must, as soon as practicable, give to the parties copies of any notice under subrule (8) or (9) received by the Registrar.
16.2 Appeal against Arbitrator’s decision
(1) A party to a dispute in connection with a claim for compensation may appeal under section 352 of the 1998 Act against a decision of an Arbitrator by application to the Registrar within 28 days after the making of the decision appealed against or within such extended time for making the appeal as may be ordered under subrule (12).
(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.
(3) If the Registrar is not satisfied that the requirements of section 352 of the 1998 Act, or any applicable rules, regulations and Practice Directions as to the making of the appeal, have been complied with, he or she may particularise the non-compliance in a Direction to rectify procedural deficiencies, as an alternative to refusing to accept, seal, issue or register the document. The appeal will not proceed further until the Registrar is satisfied the appeal is procedurally compliant.
(4) An application referred to in subrule (1) must have attached to it a copy of the certificate as to the determination of the dispute referred to in subrule (2), and must include, or have attached, full details of:
(a) the arguments in support of the appeal and, if necessary, arguments in support of leave to appeal an interlocutory decision, and
(b) for the purposes of section 352 (3) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and
(c) any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352 (6) of the 1998 Act, and
(d) if the party lodging the application wishes to object to the appeal being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for the objection, and
(e) an objective chronology of all key events leading up to the commencement of the proceedings. The chronology should not be a chronology only of those matters of assistance to the party preparing it.
(5) The party lodging an application referred to in subrule (1) must serve a sealed copy of the application, including any attachments, on:
(a)all other parties to the proceedings, and
(b)where any of those parties is an employer (but not a self-insurer), the employer’s insurer,
during the period of 7 days commencing on the day on which the Registrar registers the application.
(6) The appellant must lodge a certificate of service within 7 days of the date of service, certifying service of the sealed application on the other parties.
(7) Where a party seeks to oppose an application, that party must, within 28 days of being served with the application, lodge and serve on the other parties notice of that opposition.
(8) A notice of opposition referred to in subrule (7) must include, or have attached, full details of:
(a) the arguments in support of opposing the appeal and, if necessary, arguments in opposition to the granting of leave to appeal an interlocutory decision, and
(b) for the purposes of section 352 (3) of the 1998 Act, the amount of compensation alleged to be at issue in the appeal, and
(c) any new evidence in respect of which leave is to be sought, by the party lodging the notice of opposition, in accordance with section 352 (6) of the 1998 Act, and
(d) if the party lodging the notice wishes to object to the appeal being decided solely on the basis of the written application and any notice of opposition lodged, the reasons for the objection.
(9) The party opposing the application may file an alternative or supplementary chronology of events to that filed by the appellant in accordance with rule 16.2 (4) (e).
(10) The party opposing the application must lodge a certificate of service within 7 days of the date of service, certifying service of the sealed notice of opposition on the other parties.
(11) For the purposes of section 352 (4) of the 1998 Act, an appeal is made when the application is registered by the Registrar.
(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.
(13) A party who seeks an extension of time as referred to in subrule (12) 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 to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
GROUNDS OF APPEAL
The appellant relies upon the following four grounds of appeal:
“1.(a) As a special tribunal set up for the resolution of Workers Compensation disputes, the arbitrator being a member of WCC, and constitutional invalidity of s 39 from the operation of 2012 Amending Act by the operation of clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 under section 5 and 6 of ‘DDA’ (Cth).
(b)The Arbitrator erred in not forming an opinion as to the constitutional validity of clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 and, therefore, not properly establishing that he had the jurisdiction to come to the determination that he did.
(c) Alternatively to the above Ground of Appeal, the Arbitrator erred in finding that the President was not a court that had the authority to determine in law whether clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 was constitutionally valid.
2.(a) The arbitrator’s decision not to use his discretion of statutory criteria reasonably under s 351 of the WIM Act and Rule 16.1 of the WCC Rules 2011 to refer the issues on constitutional invalidity of section 39 of Amending Act 2012 under s 5 and s 6 of the Disability Discrimination Act 1992 (Cth) to the Honourable President of WCC is unreasonable.
(b) The arbitrator has in error exercised the power of the President to decide the novel and complex issues including the constitutional invalidity issues raised by the appellant only reserved for the President, either as a Judge of the District Court, being a Specified Tribunal for the purposes of section 48(2)(h) of the Supreme Court Act 1970, by refusing to refer such issues under section 251 of the WIM Act.
(c)The conduct of the arbitrator in failing to exercise his discretion under s 351 of the WIM Act and Rule 16.2 of the WCC Rules to refer the proceedings to the President of the Commission was in error and was unreasonable within the meaning of the High Court’s decision in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.
3.(a) The arbitrator erred in declining to invite, involve or hear SIRA in the proceedings as his conduct in so declining amounts to unreasonableness as stated by the High Court in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.
(b)The arbitrator’s decision without providing any reasons to decline to invite, involve and hear SIRA in spite of both the parties consented SIRA should be involved and should represent in those constitutional issues is an error of justice and law.
4.The impugned decision of the arbitrator is illogical, non transparent, without evidence and intelligible justification based upon Minister of Immigration and Citizenship v Li [2013] 249 CLR 332 decided by the High Court, submission at paragraphs, since the reasoning is adopted in a Workers Compensation matter by the High Court of appeal in a comment of Sackville J in Jaffarie v Quality castings Pty Ltd [2015] NSWCA 335.”
These grounds of appeal are identical to the first four grounds of appeal advanced in Mahal No 5. They seek to impugn the same decision reached by Arbitrator Harris made in his earlier decision of 18 February 2019, much of which has been repeated in the 16 April 2019 reasons.
SUBMISSIONS
Appellant’s submissions in chief
Ground One
The appellant in this appeal seeks to impugn the constitutional validity of s 39 of the 1987 Act and again relies upon submissions drafted by Dr Scott Calnan, a teaching fellow in constitutional law at the University of New South Wales Law School as to issues of “collateral jurisdiction”. The appellant refers to the judgment of Deputy President Jarvis of the Administrative Appeals Tribunal in Re Walsh and Commission of Taxation[7] and Basten JA in Sunol v Collier[8] amongst other cases, in asserting that the Arbitrator ought to have reached an opinion about the constitutional argument and if that opinion was to the effect that there was “unconstitutionality”, he should have declined to exercise the statutory provision found to be unconstitutional.
[7] (2012) 130 ALD 200 at [19].
[8] [2012] NSWCA 14 at [20].
As in her submissions in Mahal No 5, the appellant submits that I, as President of the Commission, am in fact “acting as a judge of the District Court and not in [my] personal capacity” and that as a consequence it may mean that I am a State court or my actions are those of a State court for the purposes of the Federal Constitution. The appellant says that the specific tenure granted to the President as a judge means that I am a court, especially when exercising power under s 351 of the 1998 Act. She submits that the doctrine of persona designata has no public law validity.
Further detailed submissions on the constitutional validity of s 39 and Sch 6 Pt 19H, cl 25 of the 1987 Act and their asserted constitutional invalidity are made in Part C of the appellant’s submissions in chief. These submissions are noted to have been prepared by Dr Calnan and assert that various aspects of the 2012 amendments amount to both direct and indirect disability discrimination. These submissions are identical to those submitted in Mahal No 5 in respect of this issue, and I do not repeat them here.
Ground Two
The appellant alleges that the Arbitrator erred by failing to exercise his discretion under s 351 of the 1998 Act and rr 16.1 and 16.2 of the 2011 Rules to refer issues regarding constitutional invalidity as asserted by the appellant to the President of the Commission.
Secondly the appellant alleges that the Arbitrator has in error exercised the power of the President to decide the constitutional invalidity matter when such a decision was reserved for the President. The appellant alleges that the President has the exclusive powers to decide such a novel and complex issue and that it was “capricious, immature, arbitrary and illogical” for the Arbitrator to use that power to decide the validity of the constitutional points, that is, whether I, as President, am a court. The appellant complains that the Arbitrator ought to have used his discretion under s 351 of the 1998 Act to refer the matter to the President and the failure to exercise this power was unreasonable.
Ground Three
The appellant asserts as follows:
“The arbitrator further failed to take an action, albeit was advised by the respondent to invite SIRA as an intervenor to discuss and resolve the constitutional issues concerning the arguments raised by an expert on Law and lecturer in law Dr. Scott Calnan that s 39 of the 1987 Act contravened s 109 of the Commonwealth Constitution.”[9]
[9] Application to Appeal, p 13, [3a].
The appellant asserts that the Arbitrator’s decision, without providing any reason to decline to invite, involve and hear SIRA when both parties consented to this course, was illogical and immature and that it was procedurally unfair to decline this request to invite the appearance of a statutory intervener. The appellant further submits that by not inviting the statutory intervener, the interests of justice were not met and as a result the Arbitrator has misdirected himself as to his powers and discretions. The appellant relies upon Minister for Immigration and Citizenship vLi[10] in that it was an unreasonable and illogical exercise of power in terms of the Arbitrator’s failure to invite SIRA to be heard.
[10] [2013] HCA 18; 249 CLR 332 (Li).
Ground Four
The appellant asserts that the Arbitrator’s decision in relation to two matters enlivens the High Court Authority of Li. The appellant asserts that the Arbitrator’s decision in relation to the intervention of SIRA and his denial of a referral under s 351 is “unreasonable if there is no evident, transparent and intelligible justification for it within the decision making process. Similarly, a decision is unreasonable according to the Court in Li because it is arbitrary, capricious and without common sense (see Li at [28] and [110]).”[11]
[11] Application to Appeal, pp 12–13, [1(f)(xii)].
This submission is repeated in more detail by the appellant at [3(a)–(i)] at pp 13–14 of the Application to Appeal. The appellant further submits that the Arbitrator incorrectly confused the office of Presidential Member with President in respect of the President’s non-delegable powers.
Respondent’s opposition
The respondent refers to the appellant’s Grounds of Appeal as set out in Part 2.8 and 2.9 of the appellant’s submission and the Arbitrator’s Reasons in respect of the question of constitutional validity as set out in paragraphs [40]–[66] of the 18 February 2019 COD.
The respondent’s Opposition is limited to submissions in response to the issue of the referral of a question of law under s 351 of the 1998 Act, noting it understands the appellant’s position to be:
“(a) The Arbitrator erred in finding that the President was not a Court, with jurisdiction to determine the question of constitutional invalidity [p 9 (1)(c)];
(b) The Arbitrator erred in not exercising the discretion conferred under s 351 of the WIMA to refer the question of constitutional invalidity of s 39 to the President [p 9 (2)(a)–(c)].”
The respondent submits the appellant’s grounds of appeal do not satisfy s 352(5) of the 1998 Act, in that they do not disclose any error of law, fact and/or discretion. The respondent submits that in circumstances where the authorities relied upon by Arbitrator Harris clearly establish that that the Commission is (1) not a Court and (2) is unable to determine matters arising under the Constitution, and the Commission is bound by such authorities, no error has been disclosed with the manner in which the Arbitrator has exercised the discretion to refer what amounts to a constitutional question to the President.
Appellant’s reply
The appellant’s reply contains introductory submissions, submissions in reply to the respondent’s Opposition and further submissions which appear to go beyond the ambit of reply submissions.
Under ‘Introduction’, the appellant submits that due to her advancing age since the date of her injuries over 20 years ago, she has been indirectly discriminated against under s 15 of the Age Discrimination Act 2004 (Cth) (AD Act). The appellant submits that under s 15(2) of the AD Act, the insurer has imposed unreasonable conditions or requirements that disadvantage the appellant and that it is unreasonable to deny her weekly compensation when there is evidence of her having 30% whole person impairment.
Under ‘Submissions’, the appellant submits that I have referred to myself as ‘Judge’ in a number of recent decisions and reiterates her primary submissions in respect of my capacity to hear the constitutional issues raised by the appellant by virtue of being a District Court Judge and as President of the Commission.
In her reply submission, the appellant submits her circumstances are extraordinary such that an extension of time to appeal should be granted. The appellant submits the respondent failed to acknowledge the delegable and non-delegable statutory powers allocated to the members of the Commission under s 368 of the 1998 Act, which she submits were also ignored by the Arbitrator when he erred in making a “an arbitrary and capricious decision on the constitutional issues”.
The appellant submits that by failing to respond to the appellant’s grounds of appeal and submissions in this appeal, the respondent has in effect conceded these grounds and as such a decision in her favour should be made.
Under ‘Further Submissions in Appeal’, the appellant submits that given the respondent has not opposed her reliance on fresh evidence, namely Dr Khan’s report of 14 March 2019, it should be read into evidence. She submits that she would experience substantial injustice and prejudice if the 2019 report were not admitted and that it could not have reasonably been relied upon before this appeal was lodged. The appellant submits the earlier reports of Dr Khan submitted with the 2016 Application to Resolve a Dispute are stale, and seeks a referral to an Approved Medical Specialist for a fresh Medical Assessment Certificate for the injuries in dispute, relying on Matilda Cruises Pty Ltd v Sweeny[12] for this submission.
[12] [2018] NSWWCCPD 37.
EXTENSION OF TIME
The Certificate of Determination was dated 16 April 2019. Section 352(4) of the 1998 Act provides that an appeal pursuant to s 352 “can only be made within 28 days after the making of the decision appealed against.”
The appellant’s appeal has been filed two days out of time.
By email dated 17 April 2019, that is the day after Arbitrator Harris delivered his decision, the following email was forwarded by the appellant to the Commission:
“Ref: Appeal against the Decision of arbitrator dated 16 April 2019
WCC Matter number A1-2135/16
Dear Ms. Taylor
I have received the Certificate of determination by arbitrator Mr. John Harris on my application to refer the question of law to the President of WCC yesterday.
I intend to appeal against his decision pursuant to s 352(5) of the 1998 Act and part 16 Rule 16.2(4) of the 2011 Rules.
I can file the appeal within 28 days from the date of decision made by the arbitrator.
I have already filed an appeal to the President of WCC on 11 March 2019 which is under process and I have not received the decision on that appeal.
Since the grounds of this appeal are common and identical with the earlier appeal, please advise me whether I need to file an appeal against this decision or my previous appeal in which I have taken all the same grounds are sufficient and without filing an appeal against this second decision of the arbitrator can be impugned in my earlier appeal.
Kind Regards
Inderjit Mahal” (emphasis added)
On the same day, the following email response was forwarded to the appellant from Commission staff:
“Dear Ms Mahal
We refer to your email below.
If you seek to lodge an appeal against Arbitrator Harris’s decision dated 16 April 2019, you must file an Application - Appeal Against Decision of Arbitrator (Form 9), copy attached…”
By email dated 3 May 2019, the appellant attached a letter which she described as her “response to the decision of arbitrator Mr Harris on 16 April 2019”. This letter relevantly provides as follows:
“I can see your precision in reply to my email on 17 April 2019 in reference to my appeal against the second decision of Arbitrator Mr. Harris dated 16 April 2019 and my previous appeal dated 11 March 2019 which is under process.
I have several medical conditions arising from work related injuries as well as my eye sight issues after the cataract surgeries in 2017. The continuous symptoms of photophobia, redness, dryness and floating bodies in my eyes are due to scarring on the posterior capsule of the left eye and wrinkles on the posterior capsule of both eyes after the cataract surgeries went wrong.
I feel frustrated having to repeat many arguments of legal and personal nature. The arbitrator’s decision of 16 April 2019, I am not formally appealing has not added any further reasons or grounds which are already subject to my appeal filed on 11 March 2019.
…
Due to my health issues and comorbidity and resulting disabilities, I have decided not to file a formal appeal. The decision not to file an appeal cannot be viewed, I respect submit, as acquisitions or estoppel, this cannot arise against any point of jurisdiction or law, I have already mentioned in a comprehensive manner in my appeal on foot in which the respondent have sought extension of time which I have agreed.
…
I have formally complained to the outgoing and incoming minister for wrongful refusal of legal aid by WIRO. Depending upon the reply by the respondent I will be seeking assistance from WCC for a direction to WIRO to fund my legitimate appeal rights for preparation of a further reply to the Notice of opposition.” (emphasis added)
This correspondence was then answered by an email from the Commission.
“Dear Ms Mahal
I refer to our telephone conversation on Tuesday, together with your email correspondence to [Ms Taylor] dated 17 April 2019, 3 May 2019 and 7 May 2019.
…
In your correspondence dated 17 April 2019 and 3 May 2019 you indicated an intention to appeal against Arbitrator Harris’ decision dated 16 April 2019 (the second decision). However, in our telephone conversation on Tuesday you indicated that you did not know whether you would appeal against Arbitrator Harris’ second decision and that you required further time to consider your options.
I note the following matters:
a. your concerns set out in your letter (the letter) attached to your email to Ms Taylor dated 3 May 2019, relating to difficulties lodging an appeal;
b. that you are currently not legally represented, and
c. your submission in your email to Ms Taylor dated 17 April 2019 that the proposed grounds of appeal against Arbitrator Harris’ second decision are ‘common and identical’ with the appeal against Arbitrator Harris’ first decision.
As discussed over the telephone, in the unique circumstances of this matter, if you intend to appeal against Arbitrator Harris’ second decision the Commission will dispense with the formal requirement to file a Form 9 – Appeal Against a Decision of an Arbitrator. However, you will still be required to satisfy the other procedural requirements for lodging an appeal as set out in the attached Practice Direction No 6 – Appeal Against a Decision of an Arbitrator.
If you appeal Arbitrator Harris’ second decision, the Commission will hear that appeal concurrently with the appeal against Arbitrator Harris’ first decision.
…”
This email was responded to by the appellant on 13 May 2019 which ultimately asked the following question:
“I refer to your email on 10 May 2019 and I have concern to the below paragraph with two sentences and each is inconsistent with the other.
Without filing Form 9, Practice Direction 6 cannot be satisfied.
…
Kindly explain how it is expected to be reconciled and how can the Practice Direction 6 be followed without having to file Form 9?”
This request was then answered by an email from the Commission to the appellant dated 15 May 2019. In that email the appellant was advised that the Commission would treat the appeal against Arbitrator Harris’ first decision as an appeal against his second decision. However the following was stated:
“However, if you propose to rely on different grounds of appeal and submissions in support you will then be required to satisfy the procedural requirements as set out in Practice Direction No 6. While you will not be required to file a Form 9, you will still be required to satisfy the relevant procedural requirements. In particular, you will be required to:
• clearly and succinctly state the grounds of appeal (each ground of appeal must be directed to the particulars of the alleged error of fact, law, or discretion), and
• set out submissions, using appropriate subheadings, that separately address each ground of appeal.”
The appeal was subsequently filed by the appellant on 16 May 2019, which is not in compliance with the 28-day requirement found in s 352 of the 1998 Act. The appellant filed a lengthy Form 9 document notwithstanding the Commission’s offer to waive this formal requirement.
In her covering email which filed the Application to Appeal (Form 9) on 16 May 2019, the appellant made the following submissions:
“The due time to submit the application for appeal pursuant to s 352(4) of the WIMA 1998 to file an appeal was 14 April 2019. The reasons of delay in filing the appeal only 2 days after the expiry of 28 days of the arbitrator’s decision are as follows:
(1) The appellant is a self represented litigant and lacks knowledge of technical, procedural requirements and formalities to file an appeal.
(2) Delays in correspondence with the Commission ([Ms Taylor] dated 17 April 2017 and 3 May 2017), further with [Ms Camp] (Principle [sic] Lawyer) on the 10 May 2019, 13 May 2019 and on 15 May 2019), attached herewith, marked with letter ‘D’ in the annexure.
(3) Appellant’s health issues explained in a letter to WCC on 3 May 2019 in the Email/letter of Reply to the Decision of Arbitrator, attached herewith, marked with letter ‘E’ in the annexure.
…
I look forward to receiving an acknowledgement and grant of leave for extension of time on my appeal application.”
The respondent to this appeal, quite properly, has acknowledged that it will suffer no prejudice in terms of responding to the appeal if time is extended. Secondly, the respondent also takes no issue with the existence of exceptional circumstances in terms of this matter, although the respondent does say “however whether exceptional circumstance are said to exist is ultimately a matter for the Commission.”[13]
[13] Respondent’s submissions p 3, [7].
I agree with and accept this submission. It is a matter for the Commission to be satisfied as to whether or not exceptional circumstances exist in accordance with r 16.2(12) of the 2011 Rules and the decided cases.
Consideration
The extension of time is governed by r 16.2(12) of the 2011 Rules, which provides:
“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.”
It is appropriate, in exercising the discretion, to have regard to the principles discussed in the judgment of McHugh J in Gallo v Dawson.[14] These principles were summarised by Roche DP in Allen v Roads and Maritime Services[15] as involving the need to have regard to the following:
“(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 extension of time is granted.”
[14] [1990] HCA 30; 64 ALJR 458, [2].
[15] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[16] the Court of Appeal said:
“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.”
[16] [2014] NSWCA 34 per Basten JA (Beazley P and Leeming JA agreeing), [9].
A Presidential member, dealing with an application to extend time pursuant to r 16.2(12), is required to consider the presence of ‘exceptional circumstances’, as “a matter within jurisdiction as opposed to a precondition”.[17]
[17] Bryce v Department of Corrective Services [2009] NSWCA 188 per Allsop P (Beazley and Giles JJA agreeing), [8].
Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[18] dealt with the phrase “exceptional circumstances”, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
[18] [2007] NSWCA 290 (Yacoub), [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. Similarly, I have held that where the phrase appears in r 16.2(12) of the Commission’s Rules, it is appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.
Applying these principles to the present case, the following becomes evident:
(a) As described by the appellant, the grounds of this appeal are “common and identical with the earlier appeal”. I have decided the earlier appeal in Mahal No 5. It is true that in Mahal No 5 the issues which the appellant seeks to agitate in this matter have been dealt with at length. There is therefore no prejudice to the appellant as she has had the matters that she wished to be determined in this appeal considered and determined in Mahal No 5.
(b) There is nothing in the conduct of the parties or the nature of the litigation, save and except for what I will say in one regard, which is out of the ordinary or unusual. The one exception however is this. The appellant in her submission of 16 May 2019 set out three matters which she asserts ought be taken into account in explaining the delay. Whilst I might accept that the appellant is a self-represented litigant, the exchange which I have set out above at length between the appellant and the Registry shows that the appellant is quite familiar with and aware of the procedural requirements and formalities to file an appeal. I do not accept the appellant’s assertion that she “lacks knowledge of technical, procedural requirements and formalities to file an appeal”. The day after Arbitrator Harris’ decision, the appellant emailed the Commission indicating her preparedness to appeal against this decision, properly identifying those provisions in the Act and the Rules that she would rely upon. Tellingly, the appellant said as follows: “I can file the appeal within 28 days from the date of decision made by the arbitrator.” Clearly the day after the offending decision was delivered, the appellant was aware of the provisions of the Act and the Rules that were relevant and the requisite appeal period of 28 days. By 3 May 2019, the appellant was indicating in a letter forwarded to the Commission that she had “decided not to file a formal appeal”. This was well within the expiry of the appeal period. Thereafter the Commission advised the appellant that the Commission would dispense with formal requirements under the Rules provided she complied with Practice Direction No 6. I consider this to be a proper and appropriate concession to have made to an unrepresented litigant and is consistent with the approach the Commission is to take to matters as described in s 354. Namely that:
“Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.”[19]
Thereafter the appellant then questioned how the appeal could proceed absent the filing of a Form 9, which communication reveals a sound working knowledge of the Commission’s processes on appeal.
(c) Next, the extent of the delay is not great and as the respondent has acknowledged, it will suffer no prejudice should leave be granted.
[19] Section 354(1) of the 1998 Act.
Nothing that has been submitted by the appellant, when properly viewed, would satisfy the requirement that exceptional circumstances exist as referred to by Campbell JA in Yacoub. The three reasons advanced by the appellant (see paragraph [48] hereof) are insufficient either individually or collectively to meet the Yacoub requirements. Rather, the appellant knew what was required of her the day after the decision was delivered and simply failed to file the appeal within the specified time limit.
Most telling however, is the fact that this appeal has no prospect of succeeding. As the appellant herself has noted, this appeal is “common and identical with the earlier appeal”. I have dismissed that appeal in Mahal No 5 for the reasons stated therein. Consequently this matter, which raises nothing different to that which I have decided in Mahal No 5, is also without merit. No injustice to the appellant arises as all these issues have been dealt with in Mahal No 5.
Not only does the respondent have a vested right to retain the judgment of Arbitrator Harris of 16 April 2019, it should not be put to the further cost and inconvenience of defending an appeal which is doomed to fail, having regard to what I have found in Mahal No 5.
Not only do I find that exceptional circumstances do not exist in this matter, I also find that this appeal has no prospects of success.
The application to extend time pursuant to r 16.2(12) and the Workers Compensation Commission Rules 2011 is refused and as a consequence this appeal cannot be maintained.
CONSIDERATION
The four appeal grounds advanced in this appeal have been dealt with at length in Mahal No 5. Whilst I do not repeat those reasons, I rely upon them here (see in particular paragraphs [226]–[292]).
There is nothing new in this appeal which would cause me to amend, alter or modify my reasons and decision in Mahal No 5.
DECISION
The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Judge Phillips
PRESIDENT
21 August 2019
0
11
0