MLC Pest Control and Maintenance Service Pty Limited v Frank Gurney
[2003] NSWWCCPD 31
•4 November 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | MLC Pest Control and Maintenance Service Pty Limited v Frank Gurney [2003] NSW WCC PD 31 |
| APPELLANT: | MLC Pest Control and Maintenance Service Pty Limited |
| RESPONDENT: | Frank Gurney |
| INSURER: | NRMA Workers Compensation (NSW) (No. 2) Pty Limited |
| FILE NO: | WCC 2258-2002 |
| DATE OF ARBITRATOR’S DECISION: | 28 March 2003 |
| DATE OF APPEAL DECISION: | 4 November 2003 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision of an Arbitrator, Leave refused, Out of time, no explanation of delay. |
| PRESIDENTIAL MEMBER: | Deputy President Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Sparke Helmore Solicitors |
| Respondent: Brydens Law Office | |
| ORDERS MADE ON APPEAL: | Leave to appeal against the decision of the Arbitrator is refused. |
THE APPEAL
On 30 July 2003, MLC Pest Control and Maintenance Service Pty Limited filed (‘the Appellant Employer’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 28 March 2003. The Respondent to the appeal is Frank Gurney, (‘the Respondent Worker’) and the Insurer is NRMA Workers Compensation NSW (No.2) Pty Limited (‘the Insurer’).
The Application to Appeal did not address matters required by Practice Direction No. 6, issued by the President on 1 July 2003.
The Respondent filed a Reply to the appeal on 13 August 2003.
Further submissions were received from the Applicant on 19 September 2003 and the Application to Appeal was registered on 22 September 2003. The Appellant also filed amended submissions on 9 October 2003.
The matter was referred to me for review on 30 October 2003.
THE DECISION UNDER REVIEW
The Certificate of Determination issued by the Commission on 28 March 2003 sets out the decision of the Arbitrator as follows:
1.The Applicant suffered an injury to his left hand on 11 December 2000 in the course of his employment with the Respondent.
2.The Applicant’s claim for compensation under s66 and s67 of the Workers Compensation Act 1987 in respect of the injury to his left hand, is to be determined.
3.Pursuant to s65(3) of the Workers Compensation Act 1987, the Applicant is to be assessed by an approved medical specialist to determine the degree of permanent impairment he has suffered.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.
A brief statement of reasons was attached to the Certificate of Determination.
Following the decision of 28 March 2003 the “medical dispute” was referred to Dr Long, an Approved Medical Specialist (‘AMS’), who issued a Medical Assessment Certificate dated 13 June 2003, sent to the parties by the Commission on 9 July 2003.
The Appellant Employer seeks to have the above orders set aside. The Respondent also seeks orders that the statement of Cathy Russell, tendered in the proceedings before the Arbitrator, is admissible, and that the report of Dr Long, AMS, be admitted as fresh evidence in the proceedings.
ON THE PAPERS REVIEW
Subsection 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
354 Procedure before Commission
(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 President’s Direction No. 1, the submissions that have been made by both parties, and the documents that are before me, including the Commission’s file, 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 of this matter.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the1998 Act, as follows:
352Appeal 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 an 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.
TIME
The Arbitrator’s orders were given orally at the arbitration hearing on 26 March 2003. They were reduced to writing, signed and issued to the parties with a Certificate of Determination, dated 28 March 2003. The appeal was not lodged until some four months later. This clearly does not comply with subsection 352(4) of the 1998 Act.
At the time of the making of the decision, and during the relevant appeal period applicable to that decision, the Interim Workers Compensation Commission Rules 2001 (‘the Interim Rules’) applied to all matters in the Commission.
Section 364 of the 1998 Act provides for the making of rules of the Commission, for or with respect to “. . . the extension or abridgment of any period referred to in this Part”, being Part 9 of Chapter 7 of the 1998 Act. The Interim Rules, did not contain a rule allowing the 28 day appeal period specified, in subsection 352(4) of the 1998 Act, to be extended or abridged in any circumstances (see McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD 12 and Strang Stevedoring Australia Pty Ltd v Fitzgibbon [2003] NSW WCC PD 14).
The Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) commenced on 1 July 2003 and repealed the Interim Rules. The Appellant purports to rely upon Rule 77(8) of the 2003 Rules to obtain an extension of time for the making of the appeal. The Appellant argues that the report of Dr Long, AMS, assists its claims for review of the decision of the Arbitrator. The Appellant did not receive this report until 11 July 2003.
The Appellant’s purported reliance upon the 2003 Rules is misguided. The applicable Rules at the time of the decision, on 28 March 2003, were the Interim Rules. Certain rights and obligations crystallized, under the 1998 Act and the Interim Rules, on the making of the determination. This included the right of appeal pursuant to section 352 of the 1998 Act, which required the appeal to be made within 28 days, i.e. by 25 April 2003. The fact that the Appellant discovers evidence, approximately three and a half months after the decision was made, which it says will strengthen a claim for review of the decision, is irrelevant. The 2003 Rules do not have retrospective effect. A provision in the Act or the Rules limiting a right of appeal is a substantive not merely a procedural matter (John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503). According to the Rules applicable to the proceedings at the time of the Arbitrator’s decision, and the time within which an appeal could be made under those Rules, the parties could exercise the right of appeal only within 28 days. The subsequent amendment of the Rules cannot confer a right of appeal that had otherwise been extinguished prior to their commencement.
Leave to appeal must therefore be refused. As no application for costs was made it is appropriate that no order be made. The parties are referred to s345 of the 1998 Act in relation to costs in an appeal.
DECISION
Leave to appeal is refused.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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