Maruf v Target Australia Pty Ltd
[2016] NSWWCCPD 12
•18 February 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Maruf v Target Australia Pty Ltd [2016] NSWWCCPD 12 | |
| APPELLANT: | Ashikur Maruf | |
| RESPONDENT: | Target Australia Pty Ltd | |
| INSURER: | Wesfarmers Group TeamCover | |
| FILE NUMBER: | A1-5429/15 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 11 November 2015 | |
| DATE OF APPEAL DECISION: | 18 February 2016 | |
| SUBJECT MATTER OF DECISION: | Interlocutory order; leave to appeal; dismissal of proceedings by Arbitrator; s 352 of the Workplace Injury Management and Workers Compensation Act 1998 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Peninsula Law |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is refused. | |
INTRODUCTION
This matter concerns an appeal against an Arbitrator’s interlocutory determination that the worker’s proceedings be dismissed for failure to prosecute the claim with due dispatch, pursuant to s 354(7A)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and Pt 15 r 15.8 of the Workers Compensation Commission Rules 2011.
As the Arbitrator’s determination is interlocutory, the appellant worker requires leave to appeal pursuant to s 352(3A) of the 1998 Act. For the following reasons leave to appeal is refused.
BACKGROUND
The appellant, Mr Maruf, was employed by the respondent, Target Australia Pty Ltd (Target), as a customer service officer performing various duties including operating cash registers. He commenced employment in November 2013.
Mr Maruf alleged that he suffered an injury to his left shoulder, neck, upper and lower back and spine in the course of his employment between mid to late 2014 and prior to 30 November 2014. He said that:
“[w]hilst lifting buckets containing heavy metal chains, lifting heavy, awkward boxes and lifting plastic large containers and general nature and conditions of employment with the respondent, [he] sustained the injuries referred to above.”
Target’s insurer accepted provisional liability for medical expenses and weekly benefits. However, on 24 June 2015, target’s insurer denied ongoing liability for weekly benefits and medical expenses. The insurer disputed that Mr Maruf sustained an injury arising out of or in the course of employment. If he did suffer any injury, it disputed that his employment was a substantial contributing factor to the injury.
Mr Maruf filed an Application to Resolve a Dispute (the application) in the Commission on 22 September 2015. He claimed weekly compensation from 9 November 2014 to date and continuing together with a claim to recover his medical expenses. The application pleaded an injury in August 2013, which is clearly an error as Mr Maruf did not commence employment until November 2013.
The matter came before Arbitrator Wynyard for a telephone conference on 10 November 2015. Mr Maruf was represented by Mr Bingham, solicitor, and Target was represented by Ms Walsh, solicitor.
At the time of the telephone conference Mr Maruf was overseas in Bangladesh. A telephone contact number for Mr Maruf had been conveyed to the Commission. However, contact could not be established with Mr Maruf for the purposes of his participation in the telephone conference.
On 11 November 2015, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. This matter is dismissed for want of due despatch [sic, dispatch].”
In a Statement of Reasons attached to the Certificate of Determination, also dated 11 November 2015, the Arbitrator said:
“1) When the teleconference was connected, some ten minutes late, I was advised that the applicant is in Bangladesh. Mr Bingham who appeared for him said that he was not aware that the applicant would be away for so long and had no instructions until he had recently received an email saying that the applicant was in Bangladesh for some festivals, which I understood were religious festivals.
2) Mr Bingam [sic, Bingham] also indicated that he had been awaiting the return of the applicant from Bangladesh so that he could have a medical Specialist examine him and report. I indicated that the lodging of reports by the General Practitioner in the form of answers to questions from the insurer, which I was not made aware of, is not an ideal way of proving his case. I pointed out to Mr Bingam [sic, Bingham] that the system required all the evidence upon which the parties were to rely to be lodged with the Application.
3) For these reasons I am satisfied that the applicant has infringed the provisions of s 354(7A)(c) of the 1998 Act and Rule 15.8 of the Workers Compensation Commission Rules 2011.
4) I am satisfied that the applicant has failed to prosecute his proceedings with due despatch [sic, dispatch].”
The telephone conference proceedings were not recorded and there is no transcript of what occurred.
Mr Maruf purports to appeal the Arbitrator’s determination. He disputes that the Arbitrator’s decision is interlocutory.
ON THE PAPERS
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 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.
INTERLOCUTORY
Legislation
Section 352(3A) of the 1998 Act provides that there is no appeal under that section against an interlocutory decision except with the leave of the Commission. The Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.
Submissions
Mr McManamey submits that the decision appealed against “is one to dispose of the entire proceedings and is nor [sic, not] interlocutory in nature”.
Ms Walsh submits that the decision appealed against is an interlocutory decision. She also submits that the Arbitrator did not finally determine the parties’ rights when he dismissed the proceedings on 11 November 2015 (Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439 at 443–444 (Licul); Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57 (Shams); Cooper v Family and Community Services (Ageing, Disability and Home Care) [2014] NSWWCCPD 8 (Cooper)).
Ms Walsh further submits that because the Arbitrator’s decision is an interlocutory decision, pursuant to s 352(3A) of the 1998 Act, the appeal cannot proceed without leave of the Commission. She submits that Mr Maruf is not prejudiced by the dismissal of the proceedings as he is entitled to recommence his proceedings without penalty.
Discussion and findings
I accept Ms Walsh’s submissions.
In Shams, Deputy President Roche noted at [37]–[38] that an order striking out proceedings is an interlocutory order because it has not finally determined the parties’ rights (Licul).
That principle has been consistently applied in the Commission. In Cooper the Commission determined that an order striking out proceedings where a worker allegedly failed to provide appropriate evidence in support of a claim was an interlocutory decision.
The same principle applies in the present case. As the Arbitrator has not made relevant findings on the merits, the order dismissing the matter has not determined Mr Maruf’s rights and he is entitled to re-commence proceedings without penalty.
I reject Mr McManamey’s submission that the decision appealed against “is one to dispose of the entire proceedings and is nor [sic, not] interlocutory in nature”. No authority or reasoned argument was advanced in support of that proposition.
Pursuant to s 352(3A) the Commission is not to grant leave to appeal against an interlocutory decision unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
Granting leave to appeal is neither necessary nor desirable for the proper and effective determination of this dispute. Even if leave to appeal were granted and the appeal succeeded the outcome would merely result in the dispute being remitted to another Arbitrator to determine. The same outcome will be achieved without any prejudice to Mr Maruf by issuing a fresh application, when he has returned to the jurisdiction, all evidence to be relied upon has been lodged and the matter is ready to proceed.
DECISION
Leave to appeal is refused.
Judge Keating
President
18 February 2016
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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