McGuire v State Transit Authority of NSW No.1
[2007] NSWWCCPD 18
•19 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:McGuire v State Transit Authority of NSW (No. 1) [2007] NSWWCCPD 18
APPELLANT: Edward McGuire
RESPONDENT: State Transit Authority of NSW
INSURER:Self insurer
FILE NUMBER: WCC4390-05
DATE OF ARBITRATOR’S DECISION: 29 November 2005
DATE OF APPEAL DECISION: 19 January 2007
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time to seek leave to appeal; admission of Respondent’s wage schedule in preference to Appellent’s wage schedule, and inadequate reasons for admission of wage schedule.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Steve Masselos & Co
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: Leave is granted to extend time to appeal to 24 January 2006.
The decision of the Arbitrator, dated 29 November 2005, is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND
Mr Edward McGuire, the Appellant Worker, was employed as a bus driver by the Respondent, State Transit Authority of NSW. State Transit is self insured.
Mr McGuire was born on 15 May 1943 and is married with two children. He commenced employment with State Transit in 1990. In about February 1992 he started to experience lower back pain in the course of his duties as a bus driver. He reported his condition to State Transit and lodged a claim for compensation. Mr McGuire continued to work and took painkillers and anti-inflammatory medication for his condition.
On 6 September 2001 while driving a State Transit bus, Mr McGuire was physically assaulted by a passenger during an altercation over a bus pass. He was taken to the Prince of Wales Hospital and was treated for cuts and bruises to his face and head, and a broken right index finger. The following day Mr McGuire, suffering from shock and experiencing pain, consulted his general practitioner, Dr Nigro at Hurstville.
On 8 September 2001 Mr McGuire lodged a claim with State Transit for weekly compensation as a result of the incident on 6 September 2001 and claimed psychiatric/psychological injury, and injury to the right hand/finger. State Transit accepted Mr McGuire’s compensation claim under cover of letter dated 20 September 2001.
Mr McGuire returned to work with State Transit on selected duties on 27 May 2002 and remained in receipt of weekly payments of compensation pursuant to section 40 Workers Compensation Act 1987 (‘the 1987 Act’)). He was found incompetent to commence a rehabilitation program, which involved a graduated return to bus driving duties with peer support. He was absent from work from 18 June 2002 until October 2002 despite attempts to encourage him back to work. Mr McGuire’s doctors certified that he was still not fit to return to work as a bus operator during this time.
On 24 October 2002 State Transit advised Mr McGuire that it was terminating his employment due to his inability to undertake active duties concurrent with his classification as a bus operator, and that his termination of service would be effective on 4 December 2002.
On 25 October 2002 State Transit advised Mr McGuire that his claim for workers compensation entitlements on the basis of an alleged psychological condition was declined because he “no longer suffered from a psychiatric disorder or stress related illness which can be reasonably attributed to your employment with the State Transit Authority”.
On 7 November 2002 Mr McGuire lodged an ‘Application to resolve a Dispute’ in the Workers Compensation Commission (WCC3961-02). He claimed weekly benefits compensation, section 60 (of the 1987 Act) benefits, and compensation for permanent impairment and pain and suffering.
On 23 January 2003 Mr McGuire’s termination of employment with State Transit was rescinded and arrangements were made for him to be employed as a bus cleaner. This new employment arrangement was subject to several conditions including undergoing a medical examination to confirm his fitness to carry out cleaning duties.
On 26 February 2003 Mr McGuire lodged an ‘Agreement to Discontinue Proceedings’ in the Commission in proceedings number WCC3961-02.
Mr McGuire commenced working as a bus cleaner with State Transit on or about 15 February 2004.
On Saturday 19 June 2004, in the course of his duties as a bus cleaner, Mr McGuire had fuelled a bus and was driving it within the State Transit bus depot when he collided with another bus, which was stationary. After the incident Mr McGuire alleges that he was devastated and upset, and suffered severe pain in his back and arms. He immediately reported the incident to the depot inspector and lodged an Accident Report form. Mr McGuire worked the next day, Sunday, and alleges that he became depressed as a consequence of the incident. He consulted his local medical practitioner, Dr Corrier on Monday 21 June 2004 who certified him unfit to work.
On 27 July 2004 State Transit declined Mr McGuire’s claim for compensation in respect of his alleged psychological injury. State Transit also informed Mr McGuire that payment of his section 60 expenses would cease.
On 1 August 2004 Mr McGuire commenced employment with Gleco Enterprises Pty Ltd, performing cleaning duties and miscellaneous tasks, including deliveries.
On 27 August 2004 State Transit wrote to Mr McGuire maintaining its offer to provide him with fulltime duties as a bus cleaner.
On 31 August 2004 Mr McGuire declined State Transit’s offer dated 27 August 2004, stating: “I am unable to return to full time duties due to my medical problems as specified by my doctors on the w/c certificates of which you have copies. State Transit workers compensation unit have [sic] denied my claim and I am at present following legal advice to expedite this matter.”
On 4 November 2004 Mr McGuire wrote to State Transit claiming compensation for injuries to his back and right hand and psychological/psychiatric injury, sustained during the course of his employment. He claimed compensation pursuant to section 66 and section 67 of the 1987 Act, on the basis of the assessments in the report of Dr P. Endrey-Walder, dated 14 October 2004.
On 21 March 2005 Mr McGuire lodged an ‘Application to resolve a Dispute’ (‘the Application’) in the Commission seeking weekly benefits compensation, reimbursement of expenses pursuant to section 60 of the 1987 Act benefits and compensation for permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act.
An arbitration hearing was held on 8 November 2005 and the Arbitrator issued a Certificate of Determination and ‘Statement of Reasons for Decision’ (‘Reasons’) on 29 November 2005.
On 24 January 2006 Mr McGuire lodged an ‘Appeal against Decision of Arbitrator’ with the Commission.
On 23 February 2006 State Transit Authority filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ with the Commission.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination’ dated 29 November 2005 records the following orders:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $93.94 from 1 March 2004 to 25 November 2005 under section 40 of the Workers Compensation Act 1987, such weekly payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses in relation to his right hand and back on production of accounts or receipts.
3.That the matter is determined as complex within the meaning of Clause 4.10 of Schedule 6 of the Workers Compensation (General) Regulation 1995.
4.That the Applicant be referred again, in accordance with section 329(1)(b) of the 1998 Act to the AMS for assessment of permanent impairment.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(1)erred in allowing the filing and admitting into evidence of State Transit’s wage schedule on the day of the hearing, and
(2)erred in accepting State Transit’s wage schedule over that of Mr McGuire’s and in failing to give reasons for doing so.
ON THE PAPERS REVIEW
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.”
Both parties submit that the Appeal can be decided ‘on the papers’.
Having regard to the submissions, transcript, 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 TO APPEAL
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 amount of compensation at issue in the appeal is greater than 20% of the amount awarded in the decision appealed against. Consequently, sections 352(2)(a) and (b) of the 1998 Act are both satisfied.
The Appeal was initially lodged on 22 December 2005, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
On 23 December 2005 the Commission wrote to Mr McGuire rejecting the Appeal for failure to “attach submissions on threshold issues relating to the granting of leave, including the amount of compensation the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal.” The Commission’s letter also noted that if the appeal was to be re-lodged out of time, submissions would be required detailing the arguments in favour of granting the extension of time, and the demonstrable and substantial injustice that would be caused if Mr McGuire was to lose the right to appeal.
On 11 January 2006 solicitors for Mr McGuire wrote to the Commission stating that the Commission’s letter of 23 December 2005 “has now only come to the writer’s attention following his return from leave” and provided submissions addressing the amount of compensation the subject of the appeal and the percentage of the amount awarded. It was also submitted, that pursuant to Rule 77(3) of the Workers Compensation Commission Rules 2003 (the 2003 Rules), (now Rule 16.2(4) of the Workers Compensation Commission Rules 2006 (the 2006 Rules)), full details of the amount of compensation in issue on the Appeal were already contained in the relevant Appeal submissions and that the submissions already contained sufficient information to determine whether the Appeal was likely to comply with Rule 77(3). Mr McGuire also submits that “the Appeal was initially lodged in time; the error, if any, is of a minor technical nature and does not deal with substantive matters in the Appeal; and that the Appeal was served on the Defendant prior to the expiration of 28 days from the date of the Award.” Finally it was submitted that a “failure to allow the Appeal to be lodged in the circumstances would potentially deprive the Applicant of substantial weekly payments of compensation if successful over what is arguably a non-existent or at most, minor technical breach of the Regulations.”
On 16 January 2006 the Commission wrote to Mr McGuire, referring to his letter of 11 January 2006, noting that the Appeal application was returned to him undercover of letter dated 23 December 2005 and requested that the Appeal application be re-lodged.
On 24 January 2006 Mr McGuire re-lodged his Appeal application with the Commission, along with a copy of his letter dated 11 January 2006.
State Transit argue that “the Certificate of Determination is dated 29 November 2005 and the appellant had until 29 December 2005 (taking into account the public holidays of the 26 and 27 December 2005) to comply with Section 352(4). The appellant did not lodge its grounds of appeal until 24 January 2006, some 26 days later.”
State Transit further submits that in reference to Rules 77(8) and 77(9) “the appellant has failed to comply with the procedure for an extension of time and furthermore, in the respondent’s submissions, has failed to address the criteria in any way …that the current circumstances are not exceptional circumstances.”
Rule 77(3) of the 2003 Rules and Rule 16.2(4) of the 2006 Rules are substantially identical.
Rule 77 of the 2003 Rules further provided the following:
“(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 equivalent 2006 Rule is Rule 16.2 (11) and (12), which provides:
“(11)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.
(12) A party who seeks an extension of time as referred to in subrule (11) 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.”
Again, Rule 77(8) and (9) of the 2003 Rules and Rule 16.2(11) and (12) of the 2006 Rules are identical.
The Commission provided Mr McGuire with a sealed copy of the Appeal undercover of letter dated 2 February 2006. Mr McGuire served a sealed copy of the Appeal, including submissions in favour of granting the extension of time, on State Transit Authority on 6 February 2006.
The Rules do not set out the factors that should be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, the issue has been the subject of a good deal of judicial consideration, over time. 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 (in Liquidation) (formerly SACS Group Pty Ltd (1993) 113 ALR 637. The principles established have been applied in a number of Commission appeal proceedings, including the more recent appeal decisions in Department of Education & Training v Mekhail [2006] NSWWCC PD 1, Piening-Cochranev P L and M R Wilde trading as Wilde Earthmoving [2006] NSWWCC PD 22, and South Eastern Sydney Area Health Service v Berry [2006] NSWWCC PD 32.
The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262). In Gallo, McHugh J said that 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. He said that 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, the consequences for the parties of the grant or refusal of the application for extension of time, the prospects of the applicant succeeding in the appeal, and upon the 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.
In this matter the appeal was initially lodged within the time limit of 28 days prescribed by section 352(4) of the 1998 Act, but was rejected because certain threshold submissions as to the grant of leave to appeal and the way in which the matter should be determined, were not included. Solicitors for Mr McGuire wrote to the Registrar indicating in effect that while specific submissions were not made on the points referred to, the contents of the submissions and material provided on the lodgment of the appeal, substantially contained all of the information required. The Registrar responded to the solicitors requesting that the appeal be re-lodged, along with the submissions required and an application for an extension of time. The solicitors duly complied with the directions of the Registrar.
The letter from the Registrar rejecting the initial appeal was dated and presumably dispatched on 23 December 2005, and the solicitors responded on 11 January 2006 stating that the letter had only then “come to the writer’s attention following his return from leave.” The solicitors responded promptly to the Registrar’s directions of 16 January 2006, to re- lodge the appeal, together with the further documents requested.
Having regard to the circumstances, the time of the year and the prompt responses by Mr Mcguire’s solicitors, there is little real cause for criticism. While there was not strict compliance with the Rules in terms of what was required initially in making submissions on appeal, the solicitors rightly submit that a reading of the documentation lodged on appeal substantially pointed to the relevant aspects, notwithstanding the lack of specific submissions on them. While compliance with the Rules is a fundamental requirement of the Commission, the Rules envisage that circumstances arise from time to time that attract special consideration. Given that the 28 days from the date of the Arbitrator’s decision expired on 27 December 2005, there was no possibility that Mr McGuire’s solicitors could have responded to the Registrar within that time, having regard in particular, to the time of the year.
The consequences for Mr McGuire in not being able to pursue this appeal by reason of these particular circumstances would appear to be quite disproportionate and unreasonable. It is inappropriate that he should be personally caught by the particular set of circumstances that surround the filing processes of the appeal in this matter. I take into account that the initial lodgment was made on time. The narrow issues in dispute on appeal ought to be dealt with, having regard to the submissions made by both parties, and what transpired in part, before the Arbitrator. The extension of time is required in order that justice between the parties may be done (Gallo). In that event, I am satisfied that to lose the right to seek leave to appeal may work demonstrable and substantial injustice to Mr McGuire. In any event, in the circumstances of this case, the issues on appeal ought to be resolved for the benefit of both parties. On the other hand, there is nothing before me to suggest that to extend time to seek leave to appeal would cause any injustice or prejudice to State Transit.
In the circumstances, the time for lodging the appeal in this matter is extended to 24 January 2006.
Leave to appeal is granted.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
The powers of a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit back to the same Arbitrator or a different Arbitrator for determination in accordance with a decision of or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249. His Honour said: “The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, it must be such that but for the error, a different decision would likely have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
SUBMISSIONS AND EVIDENCE
Mr McGuire submits that the Arbitrator’s decision dated 29 November 2005, awarding him weekly compensation pursuant to section 40 of the 1987 Act, was based upon the wage schedule filed and tendered into evidence by State Transit on the day of the hearing. The wage schedule alleged that Mr McGuire’s earnings as a cleaner were $965.24 per week. Mr McGuire argues that State Transit’s representatives were asked to provide further evidence to support their wage schedule and although telephone calls were made, no further evidence was produced.
Mr McGuire submits that the wage schedule filed and tendered on his behalf sets out his earnings as a bus cleaner at $607.07 per week and included a letter from State Transit confirming this amount.
Mr McGuire further submits that both wage schedules were before the Arbitrator and that the Arbitrator accepted State Transit’s wage schedule over Mr McGuire’s. However he failed to give any reason as to why he did so. Mr McGuire relies on the decisions in Oxley County Council v MacDonald BC 9904977 CA 4011797 [1999] NSW CA 126 (‘MacDonald’) and Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (“Soulemezis’) to support this ground of appeal.
It is further submitted by Mr McGuire that the decision of the Arbitrator to admit into evidence State Transit’s wage schedule on the day of the hearing denied him ‘natural justice’ by not providing him with an opportunity to obtain further evidence to contradict State Transit’s wage schedule.
Mr McGuire seeks an order to have the Arbitrator’s award of weekly payments of compensation dated 29 November 2005 set aside and substituted with an award based on the wage schedule relied on him in the proceedings.
State Transit submits that at the hearing “the parties were unable to agree on the appellant’s probable earnings but for injury but, it is submitted, did agree on the appellant’s actual earnings whilst he was employed as a bus cleaner. The appellant’s counsel did not raise as an issue the appellant’s actual earnings as a bus cleaner in submissions before the arbitrator. In fact it was conceded that the appellant’s actual earnings from 29.02.04 to 19.06.04 were $15,443.85 which equates to $965 [per week]”.
In its Opposition submissions State Transit refer to page 34 of the Transcript of Proceedings (‘Transcript’) where the Arbitrator asks Mr McGuire’s counsel:
“Arbitrator: Could you just clarify there is – in the applicant’s wages schedule it is showing that gross earnings from 15 February ’04 to 31.3.04 was [sic] 608 per week? Is that still asserted?”
Mr McGuire’s counsel states:
“… I haven’t done the mathematical calculations on this. We relied upon [the respondent’s] team to do that. Do you assure me that 15,000 is correct there?”
State Transit’s solicitor replies: “Yes”. To which Mr McGuire’s counsel states:
“All right. Well, then, the respondent’s wage schedule is right in that regard.”
State Transit submits “the arbitrator inquired as to the relevant actual earnings of the appellant during the relevant period in which he was performing bus cleaning duties, and received the concession by the appellant that the respondent’s wage schedule was correct “in that regard”. The arbitrator, therefore, was quite entitled to rely upon the respondent’s wage schedule in respect of the actual earnings, once that concession was made.”
Furthermore, State Transit argues that it is not certain as to which documents Mr McGuire refers to in his submissions and that there is no foundation for Mr McGuire’s allegation that “the applicant’s wage, as a cleaner, was $604.07 [sic] per week”. It is submitted that if that figure is an award wage, then this is not the appropriate figure as Mr McGuire received wages in excess of the award both as a bus operator and as a bus cleaner.
It is also submitted by State Transit that as the Arbitrator found that Mr McGuire lacked credit (paragraph 42 of the Reasons) it was open to the Arbitrator to prefer the evidence of State Transit over that of Mr McGuire’s.
State Transit further submits that it had unsuccessfully sought to tender into evidence before the Arbitrator its letter dated 13 April 2005. This letter set out the actual earnings of Mr McGuire from 24 June 2001 to 9 April 2005 together with the earnings of alleged employees for the same period. As a result of Mr McGuire’s objection to this letter and the Arbitrator’s subsequent rejection of the letter into evidence, the Arbitrator was left with two wage schedules, neither of which were supported by any primary wage figures.
In response to Mr McGuire’s ground of appeal that the Arbitrator failed to give any reason for accepting State Transit’s wage schedule over Mr McGuire’s, State Transit submits that the authority cited ( Soulemezis’) by Mr McGuire to support this ground does not apply in the strict sense to an arbitrator of the Commission and cites in the alternative the decision of Water Board v Mile Cindric unreported Court of Appeal CA 40495/89 17 December 1992 (‘Cindric’s case’). State Transit submits that the reasoning in Cindric’s case is supported by section 367 and section 369 of the 1998 Act. State Transit concludes “the arbitrator when faced with two competing wage schedule [sic] preferred the figures as set out by the respondent. This is not an error, and his reasoning is sufficient in the circumstances”.
FINDINGS, DISCUSSION AND DECISION
The Commission’s file reveals that Mr McGuire’s letter dated 14 October 2005 was marked as ‘Admitted’ and appears to have been signed by the Arbitrator on 20 October 2005 during the teleconference held that same day. The Arbitrator subsequently issued Directions, dated 20 October 2005, directing that:
“2. The documents attached to the Applicant’s letter of 14 October 2005 are admitted into the proceedings …”
A copy of the Direction dated 20 October 2005 was provided to both parties on 21 October 2005.
The Transcript at page 1 refers to the admission into evidence, with no objection from State Transit, the letter from Mr McGuire’s solicitors to the Commission dated 14 October 2005. The letter had the following documents attached:
1.Letter to State Transit’s solicitors serving documents (listed below) dated 14 October 2005;
2.‘Applicant’s Amended Wages Schedule’ dated 14 October 2005;
3.Mr McGuire’s PAYG payment summary from Gleco Enterprises Pty Limited dated 10 October 2005;
4.Mr McGuire’s Notice of Assessment for the year ending 30 June 2005; and
5.Letter from Mr McGuire to previous solicitors dated 12 October 2005.
At the hearing the Arbitrator admitted State Transit’s Wages Schedule dated 8 November 2005 and the State Transit letter dated 29 November 2002 detailing wages for Mr McGuire and three comparable employees from 30 June 2000 to 9 November 2002 (page 3 of the Transcript). State Transit also sought to have admitted its letter dated 13 April 2005, which was alleged to establish a calculation of the figures of the ‘comparables’. Mr McGuire’s counsel at the hearing objected to the admission of these documents however the Arbitrator eventually allowed the inclusion of the wages schedule dated 8 November 2005 and the letter dated 29 November 2002 into evidence.
The Arbitrator in his Reasons states at paragraph 24:
“At the time of the 2001 injury the Applicant was earning $1059.18 [as a driver] per week and at the time of the claimed 2004 injury, $965.24 [as acleaner].”
In determining the weekly amount Mr McGuire would have been earning if uninjured (section 40(2)(a) of the 1987 Act) the Arbitrator states at paragraph 51 of his Reasons:
“The Applicant submitted in his Wages Schedule that, based on a Senior Bus Operator working a Broken Shift, which is a shift worked by the Applicant for 60 hours a week, the gross earnings uninjured should be $1057.69. The Respondent submitted a Wages Schedule that showed the Applicant was paid from 15/2/04 to 29/2/04 to the Applicant’s union representative, this is the Applicant’s average pay as a Bus Operator calculated over a period of 1 year immediately prior to the 6/9/01 injury. I therefore adopt the Respondent’s slightly higher figure of $1059.18 for the period from 15/2/04 as being the Applicant’s pre-injury earnings.”
In respect of determining the average weekly amount Mr McGuire was earning or able to earn after the injury (section 40(2)(b)) the Arbitrator noted at paragraph 53 of his Reasons:
“Where there is no actual earnings or they are not a proper test, the onus then of proving the balance of probabilities that the worker is able to earn income in some suitable employment lies with the Respondent: Tipper v Orbital Engine Co Pty Ltd (Supreme Court of Western Australia – Full Court Appeal No 208 of 1991). As discussed by Burke J in Mangion v Vissy Board Pty Ltd (1992) 8 NSWCCR 175, the approach to assessing what a worker could earn in some suitable employment is not a theoretical exercise but one having regard to the actual labour market accessible to him and having regard to the worker’s actual circumstances.”
The Arbitrator found that there are three separate periods to consider being:
“54.1.From 15/2/04 to 20/6/04 when the Applicant worked for the Respondent as a bus cleaner;
54.2. From 21/6/04 to 31/7/04 when the Applicant did not work at all; and
54.3From 1/8/04 to 24/9/04 when the Applicant worked for Gleco Enterprises up to the time section 40(2A) applies.”
The Arbitrator then continues:
“55. In the first period, based on the Respondent’s Wages Schedule, the Applicant was paid from 15/2/04 to 29/2/04 at his pre-injury rate. Thereafter he was paid at the weekly rate of $965.24 to 20/6/04.”
The Arbitrator provides no additional explanation as to why he based his decision on what Mr McGuire was earning in the first period on State Transit’s Wages Schedule in preference to Mr McGuire’s. As indicated above, the issues before the Arbitrator were considerably wider than those in this appeal, which are restricted to the admission of State Transit’s wage schedule in preference to that of Mr McGuire, and the reasons or lack of reasons, for doing so.
The Transcript of the hearing reveals the discussion between the parties and the Arbitrator, which led to the Arbitrator’s acceptance of State Transits’ figure of “$965.24 per week to 20/6/04” [as the amount Mr McGuire earned as a cleaner during the period]. At page 31 of the Transcript the Arbitrator states:
“One of the things I was going to raise is that there seems to be a dispute between the two wage schedules as to what was actually earned from 15 February to 19 June ’04. I’d like to have that clarified in due course.”
The issue of the wage schedules is resumed again by the Mr Saul, Counsel for State Transit, at page 33 of the Transcript as follows:
“Mr Saul:Yes, we’ve got the figures. He was actually earning between 29 February ’04 and 19 June ’04, which is when the collision occurred, $15,443.85. So what was that on a weekly basis did we work that out to be? Divide that by four months. Divide that by four. $965.24, and that’s as a cleaner. The between 15 February – oh, what was the earlier period when he was actually on the greater rate? Where is that one?
Arbitrator: In your wages schedule you show 1,055 …
Mr Saul: Yes, that’s the one. That’s it.
Arbitrator: And that was, I think, only for bus driving.
Mr Saul:That’s right. Now if I could just say something about that, on the one approach, we say because of our schedule, although I can’t support it because I wasn’t allowed to put evidence in, but our assertion is that his comparable earnings or probable earnings but for injury are based on the figure that we put in there. The alternative submission, however, which is … 997.
…
Mr Saul:I suppose as a fallback position, if you don’t adopt my position that the applicant has failed to discharge his own case of what he really does, the fallback position probably would be 1,050, being how much he was earning as a senior bus driver even when he was doing cleaning work.
Arbitrator: Is there anything you want to say?
Mr Harrington: Just the wage schedule. I haven’t admitted that material because we cannot fairly show what the comparables were earning. It shows one person below the applicant’s earnings at all times, and the Court of Appeal, to the extent that it’s relevant to this jurisdiction, has held that a wage schedule is evidence, and that has been on in this case since the Application to Resolve a Dispute was filed.
Arbitrator:Could you just clarify there is – in the applicant’s wages schedule it is showing that gross earnings from 15 February ’04 to 31/03/04 was 608 per week? Is that still asserted?
Mr Harrington: … I haven’t done the mathematical calculations on this. We relied upon Mr Saul’s team to do that. Do you assure me that that 15,000 is correct there?
Respondent’s solicitor: Yes
Mr Harrington: All right. Well then, the respondent’s wage schedule is right in that regard.
Arbitrator: Thank you.”
A perusal of the transcript of the arbitration proceedings before the arbitrator clearly confirms that the counsel for Mr McGuire in fact relied upon and accepted State Transit’s wage schedule for the relevant period because, as he said, he had not himself done the “mathematical calculations on this”. For that reason, Counsel was unable to assure the Arbitrator that Mr McGuire’s wage schedule was correct. He made it clear that reliance was placed on the wage schedule and calculations that had been submitted by State Transit. It is submitted on appeal that efforts were made on the hearing day to seek further evidence. Apparently, this did not succeed and counsel for Mr McGuire clearly accepted or at the very least, acquiesced in the admission of, State Transit’s wage schedule in the proceedings before the Arbitrator.
Mr McGuire is bound by the conduct of his own case before the Arbitrator (Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 (‘Metwally’)). In Metwally the High Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The principle was applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 in relation to appeal by way of rehearing. The Court held (per Gibbs CJ, Wilson, Brennan and Dawson JJ) that:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…”.
Counsel for Mr McGuire accepted State Transit’s wage schedule at the hearing before the Arbitrator. Mr McGuire has put forward nothing by way of exceptional circumstances to justify an argument that the Arbitrator should not have accepted it. It is not sufficient that Mr McGuire and/or his legal representatives may have changed their minds, subsequently.
The Arbitrator considered the matter, but equally was not obliged to pursue it further or give more reasons, once counsel for Mr McGuire agreed that the State Transit wage schedule and calculations were correct in respect of the actual earnings. Clearly, the parties were no longer in dispute as to the correctness of the State Transit wage schedule, in this regard. There was nothing more on this point for the Arbitrator to resolve. Mr McGuire accepted State Transit’s higher figure from the wage schedule in respect of his probable earnings, which was clearly to his benefit.
In the circumstances, Mr McGuire has failed to demonstrate any error of law, fact or discretion on the part of the Arbitrator.
The appeal must fail.
DECISION
The time to seek leave to appeal is extended to 24 January 2006.
The appeal is not successful. The decision of the Arbitrator dated 29 November 2005 is confirmed.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
19 January 2007.
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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