McBride v M & B Couriers Pty Ltd

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	Peter McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD 12
APPELLANT:	Peter McBride
RESPONDENT:	M & B Couriers Pty Ltd
INSURER:	Employers Mutual Indemnity (Workers Compensation) Limited
FILE NO:	WCC1642-2002
DATE OF DECISION:	17 April, 2003
PRESIDENTIAL MEMBER:	Deputy President, Gary Byron
DECISION UNDER APPEAL:	Notwithstanding that the contract was between the company that employed the Appellant and the Respondent, section 20 of the Workers Compensation Act 1987 does not apply.
DATE OF DECISION UNDER APPEAL:	17 December, 2002
HEARING:	Telephone Conference 1 April, 2003 and otherwise determined on the papers.
REPRESENTATION:	Appellant: Hansons Lawyers
Respondent: Arnold Lawyers
ORDERS MADE ON APPEAL:	Leave to Appeal Refused. No order made as to costs.

THE APPEAL

On 23 January, 2003 the Applicant Peter McBride (“the Appellant”) lodged an appeal under cover of a letter dated 21 January, 2003, with the Workers Compensation Commission (“the Commission”) against a decision dated 17 December, 2002. The Arbitrator decided that the contract of employment was between the Respondent Company M & B Couriers Pty Ltd, (“the Respondent”) and P & T Couriers Pty Ltd, and not the Appellant. Consequently, the deemed employment of worker provisions in Schedule 1 Clause 2 of the Workplace Injury Management and Workers Compensation Act, 1998 (“the Act”) do not apply. The Arbitrator further decided that even though the contract existed between the Respondent and P & T Couriers Pty Ltd, and that the Appellant was employed by that Company, “he does not come within section 20 of the 1987 Act”, being the Workers Compensation Act 1987 (“the 1987 Act”).
The first part of the Arbitrator’s decision regarding the deemed employment of worker provisions in Schedule 1 of the Act, is not the subject of this appeal. The ground of appeal is “That the Arbitrator erred in finding that the worker is not able to rely on Section 20 of the 1987 Act.”
The issues in dispute in the proceedings before the Arbitrator were summarised by the Arbitrator as follows:
·“Was the Applicant a person covered by the Workers Compensation Act 1987.
·Did the Applicant receive an injury arising out of or in the course of employment (WCA s).”

THE ISSUES IN DISPUTE IN THE APPEAL

The issues in dispute in this appeal may be summarised as follows:
(1)Whether in the circumstances, Section 20 of the 1987 Act applies so that the Respondent is liable to pay compensation to the Appellant by reason of the fact that he was employed by P and T Couriers Pty Ltd, which was contracted to do work for the Respondent, at the time that an injury was sustained by the Appellant while he was performing work for the Respondent.
(2)Whether there is jurisdiction to determine the appeal, as it was lodged out of time and not within 28 days of the making of the decision appealed against, as required by section 352(4) of the Act.
Both parties lodged written submissions and subsequently participated by their representatives, Ms Woods for the Appellant and Mr. De Vries for the Respondent, in a telephone conference with me on 1 April, 2003. The conference was held amongst other things, to ensure that both parties had received copies of all relevant documents that had been lodged, as this was not readily apparent from a perusal of the file. The parties indicated that all relevant documents had been received.

JURISDICTION TO HEAR THE APPEAL

There is no dispute that the decision made by the Arbitrator in this matter was made on 17 December, 2002 and the Certificate of Determination was issued on the same day. As stated above, the appeal was received in the Commission on 23 January, 2003 under cover of a letter dated 21 January, 2003, that is, it was not lodged within 28 days of the making of the decision appealed against, pursuant to section 352(4) of the Act.
The Respondent objected to the appeal proceeding and to leave being granted, because it was lodged out of time. In his response lodged in the Commission on 7 March, 2003, in relation to the question of jurisdiction, the Respondent stated:
“Provision has not been made in the said Act or the Rules and Practice Directions for an application for leave to appeal to be made out of time and there is no jurisdiction for the present application.
The applicant has not provided or served a copy of the transcript of proceedings before the Arbitrator and has not stated whether or not, if leave were to be granted, the appeal ought to be dealt with on the papers.”
The Respondent indicated at the telephone conference that he did not press the issue of the failure to provide a copy of the transcript of the proceedings before the Arbitrator. Both parties have indicated their view that the matter can proceed on the papers, the Appellant having done so in a letter of 17 February, 2003, that was received in the Commission on 18 February, 2003.
The Respondent lodged a supplementary submission dated 17 March, 2003, canvassing in more detail, the issue of jurisdiction and the failure by the Appellant to lodge the appeal within the prescribed time. The Respondent said:
“The application for leave to appeal against the decision of the arbitrator in this case is dated 21 March (sic), 2003, which is about 36 days after the date that the arbitrator made his decision.
The application for leave to appeal in this case was filed on or after 21 March (sic), 2003, in which case the appeal was therefore made outside the 28 day time pursuant to section 352(4).
It appears there is no provision in the Acts or Rules or Practice Notes which would give the Commission with (sic) any discretion or power to extend the time for lodgment of an application for leave to appeal from an arbitrator’s decision.
The time period of 28 days is provided in the Act (and is repeated in Rule 50(2) of the Interim Rules). There is power expressly provided in CCR Part 4 Rule 2 for the Commission to extend the time period provided in order or directions or the Rules, but this power does not extend to time periods provided in the Act.
Where a relevant time period is provided in an Act, one would expect that any power to extend the time period (if it was intended that there be any such power) would also be found in the Act (because subordinate legislation such as rules and regulations etc. would usually be found to be beyond power if it purported to modify the primary statute in such a way.
Accordingly, there appears to be no discretion or power for the Commission to deal with an appeal from an Arbitrator’s decision if the application for leave to appeal is not lodged within 28 days after the making of the decisions by the arbitrator and this appeal ought consequently be dismissed.”
Mr. De Vries pointed to an error in this written supplementary submission and said that the references to 21 March, 2003 in that document, should have been in fact, 21 January, 2003.
The Appellant did not refer to the late lodgment of the appeal in the written submissions. At the telephone hearing Ms Woods for the Appellant referred to Compensation Court rule 4.4 that deals with the running of time. She referred to subparagraph (1) and quoted:
“In the period from the beginning of 25 December until the end of 9 January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the rules or by any decision or order of the Court.”
She went on to say:
“Now, the decision was made on 17 December. My appeal went in on 21 January. If we take out the period from 25 December to 9 January, I’ve lodged the appeal within 19 days, which is within time.”
In response to my question Ms Woods said that the Compensation Court Rules apply to proceedings in the Workers Compensation Commission. In response Mr. De Vries said that he had seen nothing to indicate that the Compensation Court Rules do apply to the Commission and that the Commission has its own Interim Rules that apply to proceedings in the Commission. He went on to say that there is no specific interim rule that covers the event, and that he doubted that Compensation Court Rule 4.1 upon which the Appellant relies, refers to the Workers Compensation Commission.
Ms Woods submitted that in fairness, and given that this time included the Christmas holiday period, a party should not be prejudiced by public holidays etc. and the Registry closing down. She added, “I’d just assumed that the Compensation Court Rules would apply in this instance, and we would rely on that.” Ms Woods went on to say that the Arbitrator’s reasons for decision were not received by her until 19 December, 2003 and this together with the public holiday period, cut down the time available to get the appeal lodged.
In discussing the Respondent’s objection to the fresh evidence, being documents lodged by the Appellant with the ‘Appeal Against Decision of Arbitrator’, Ms Woods said that this was not lodged as fresh evidence but rather, in respect of the threshold requirements in section 352(2) of the Act, regarding leave to appeal. On that basis, the Respondent withdrew the objection, given that it was not produced as fresh evidence in relation to the substantive issues in dispute.
Section 352 of the Act provides:
‘352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by the Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
Section 364 of the Act provides, inter alia:
“364 Rules of the Commission
(1)The Minister may from time to time by order make Rules of the Commission for or with respect to any aspect of procedures to be followed in connection with the jurisdiction or functions of the Commission, including provision for or with respect to:
……….
(g)the extension or abridgment of any period referred to in this Part, …”
The reference in the section to “this Part” is to Part 9, Proceedings before Commission, and includes sections 349 to 365, inclusive.
The rules made under the Act are the Interim Workers Compensation Commission Rules 2001 (“the Rules”).
No specific rule has been made as to “the extension or abridgment of any period referred to in this Part…” notwithstanding that it was the clear intention of the Legislature that such a rule could (not must) be made.Rule 50(2) provides that an application for an appeal against the decision of an Arbitrator “must be lodged with the Registrar within 28 days after the making of the decision appealed against.”
Rule 5(2) provides that “the Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.”
In terms of the objection raised by the Respondent, as to the jurisdiction to determine this appeal, three issues exist. They are:
(1)Whether the Compensation Court Rules have any application to proceedings in the Commission;
(2)Whether Rule 5(2) of the Rules enables the Commission in appropriate circumstances, to dispense with the statutory provision in section 352(4) that an appeal can only be made within 28 days after the making of the decision appealed against, in addition to the requirement in Rule 50(2) to lodge the appeal with the Registrar within 28 days after the making of the decision against which the appeal is being made, and
(3)If there is jurisdiction to determine the appeal, whether sufficient grounds exist to proceed to a determination of the appeal, notwithstanding that it was lodged out of time.
As to the first of these questions, section 43 of the Compensation Court Act 1984 (“the Compensation Court Act”) provides that Rules of Court may be made with respect to the matters set out in the section. Subsection (4) provides that “if a rule under this section is inconsistent with a provision of the Workers Compensation Acts, that provision shall prevail to the extent of any inconsistency.” There is no power under the Compensation Court Act or any Act, to extend the operation of the Compensation Court Rules to the Commission, nor to make rules for the Commission. In any event, Section 364 of the Workplace Injury Management and Workers Compensation Act 1998, provides a rule-making power for the Commission that is inconsistent with the rules of the Compensation Court. Moreover, section 105(1) of the Act provides that, subject to the Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. Section 105(5) provides for the Compensation Court to have exclusive jurisdiction to examine, hear and determine all “existing claim matters except…” which does not include jurisdiction in matters being examined, heard and determined in the Commission. Consequently, the Appellant is unable to rely upon the Compensation Court Rules to calculate (and bring the lodgment of the appeal within) the time prescribed by section 352(4) of the Act, and contained in Rule 50(2) of the Commission Rules 2001.
Rule 5(2) of the Commission Rules 2001 allows the Commission to dispense with compliance with the requirements “of these rules”. Consequently, the Commission may in appropriate circumstances and subject to what follows, dispense with compliance with the Rules, (including rule 50(2)). The Rules are made pursuant to section 364(1) of the Act that allows the Minister to make Rules of the Commission “for or with respect to any aspect of procedures to be followed in connection with the jurisdiction or function of the Commission, including…” specific provision with respect to a whole range of matters that are set out in the section, including subsection (1)(g): “the extension or abridgment of any period referred to in this Part,…”. In the absence of a rule made pursuant to section 364(1)(g), there is no power to extend or abridge the statutory period of 28 days for lodging appeals prescribed by section 352(4) of the Act. While Rule 5(2) applies to the “requirements of these rules”, it cannot and does not apply to dispense with the provisions of section 352(4) of the Act. The link between the Rules and section 352(4) is a rule made pursuant to section 364(g), but such a rule does not exist. Rule 64 that gives the President a general power to extend or abridge time “fixed by any order or determination of the Commission,…”, similarly, does not give a power to extend or abridge the 28 days prescribed in the Act.
To summarise, the time within which an appeal against the decision of the Commission constituted by an Arbitrator must be lodged is prescribed by the Act and is repeated in the Rules made under the Act. A power contained in the Rules to dispense with or change the requirements of the Rules does not extend to a similar power in relation to the provisions of the Act, unless that power is conferred by the Act or some other Act. That power may be conferred by the Act, that is section 364(1)(g), but the fact is, that no rule to give effect to subsection (1)(g), has been made. The situation is quite different to the circumstances in Atco Industries (Aust) Pty Ltd (1981) 9 NTR 10 where no time was prescribed either in the legislation or the Rules. The Northern Territory Supreme Court held as a result, there was no limitation on the time within which appeals against determinations of the Workmen’s Compensation Tribunal should be brought, save that the time must not be so long as to work hardship upon the respondent or constitute in some other way an abuse of the process of the Court. See also Re O’Reilly; Ex parte Australena Investments Pty Ltd (1984) 58 ALJR 36, and Hospital Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1. In Solomons v District Court of New South Wales [2002] HCA 47 Kirby J stated at (at [98]) that it is increasingly accepted that the proper approach to statutory construction is to give effect to the purpose expressed by the legislation. In Section 364(1)(g) the purpose is clear, although the express option to invoke it by making a rule, has not been taken. The point is further made in considering that the words in a section have some meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Having regard to the foregoing, it follows that the Commission lacks the jurisdiction to deal with the substantive issues and to determine this appeal. However, in view of matters raised in the telephone conference in this appeal, I note that the Appellant received a copy of the Arbitrator’s decision on 19 December, 2002, that is, two days after the decision was made and the Certificate of Determination was issued. Moreover, pursuant to Rule 8, the Commission Registry is open for business over Christmas/New Year, except for Saturdays, Sundays and other public holidays or “days on which public offices are closed”. That was the case during the Christmas/New Year period in 2002.

DECISION

For the reasons stated, the Commission has no jurisdiction to deal with and determine this appeal. Accordingly, leave to appeal is refused.

COSTS

No application has been made for costs and I make no order as to costs.

Gary Byron
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President (name), Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 12

17 April 2003