Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited
[2004] NSWWCCPD 83
•25 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83
APPELLANT: Russell Morgan
RESPONDENT: Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited
INSURER:QBE Workers Compensation
FILE NUMBER: WCC700-04
DATE OF ARBITRATOR’S DECISION: 2 July 2004
DATE OF APPEAL DECISION: 25 November 2004
SUBJECT MATTER OF DECISION: Decision of the Arbitrator to strike out proceedings; lack of procedural fairness.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:26 October 2004
REPRESENTATION: Appellant: Bryan Gorman & Co Solicitors
Respondent: QBE Workers Compensation In-House Legal
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs.
THE APPEAL
On 29 July 2004 the Appellant, Russell Morgan sought leave to appeal against the decision of an Arbitrator, dated 2 July 2004. The appeal was lodged in the Workers Compensation Commission on 2 August 2004.
The Respondent to the appeal is Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited.
The matter was referred to me for review, and a hearing took place before me on 26 October 2004.
THE BACKGROUND
Mr Morgan filed an Application for Determination of his dispute in the Compensation Court on 24 July 2001. Mr Morgan claimed that he suffered an injury arising out of or in the course of his employment as a carpenter/supervisor, while loading bags of cement onto the back of a truck. He said that he felt pain in the back and neck. He claimed 20% permanent impairment of the back, 5% permanent loss of efficient use of the right leg at or above the knee, and 5% permanent loss of efficient use of the left leg at or above the knee. He sought orders pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and “other costs”.
Proceedings to resolve the dispute between the parties were initially commenced in the former Compensation Court on 24 July 2001. There is a history of activity that is well known to the parties and does not need to be restated here, except to note that the matter was set down for hearing in the Compensation Court on 11 July 2003. The hearing was vacated on the application of Mr Morgan’s Solicitors, on the grounds that he was residing in the United Kingdom and that arrangements had been made for him to be examined by an orthopaedic surgeon in the United Kingdom. However, it was submitted that the report of the examination would not be available until after the date of hearing. The Court was put on notice that efforts were being made to obtain the Respondent’s consent to the matter being heard in the United Kingdom. Mr Morgan’s current Solicitor assumed carriage of the matter as of 14 February 2003.
The dispute was transferred to the Workers Compensation Commission in 2003. Mr Morgan submitted to an examination by Dr Richard Evans, in Sydney on 25 March 2004 and had been examined by Dr Evans as long ago as 27 July 1999. The Solicitor for Mr Morgan claims that the “Respondent’s solicitors were advised as to the presence of the Appellant in Sydney but failed to organize any suitable appointment during that time – see copy of file note annexed hereto and marked D.” The file note is headed “Attendance Memorandum”, is dated 25/3/04 and says “Russell Morgan in town this week – 1 week – arrange exam if req [sic].” However, it seems that no advance notice of Mr Morgan’s visit to Sydney was given to the Respondent.
A telephone conference was arranged by the Commission for 29 April 2004. Mr Morgan’s Solicitor made contact with the Commission and sought to make alternative arrangements, as Mr Morgan had returned to the United Kingdom. The Solicitor states that she made attempts to contact Mr Morgan regarding the telephone conference, but it would appear that this was met with no response. On the morning of the telephone conference the Solicitor contacted the Commission to enquire “as to what the Commission’s alternative arrangements were”, as Mr Morgan had failed to make contact with her, or with the Commission, regarding his availability to participate in the telephone conference scheduled for later in the day. The teleconference proceeded on schedule at 2 pm on that day. Mr Morgan’s Solicitor attended the teleconference with the Arbitrator but there was no appearance of either Mr Morgan or the Respondent. Several attempts were made to contact the Respondent’s Solicitor during the course of the teleconference, but this was unsuccessful. Mr Morgan ‘s Solicitor states that she requested the Arbitrator to either grant an adjournment or make an order that Mr Morgan be referred for examination by an Approved Medical Specialist, in the United Kingdom. In her written submissions on appeal, she said that she informed the Arbitrator that her client had not made contact with her regarding his attendance at the telephone conference and that no offers of settlement had been made by the Respondent. She said that the Arbitrator “was advised that the matter was a simple lump sum claim, and that the applicant resided in the United Kingdom.” She acknowledged that the Arbitrator said to her “that he may have to strike out the matter.”
Mr Morgan’s Solicitor wrote to the Respondent’s Solicitor on 30 April 2004 requesting that contact be made with her as a matter of urgency. She also wrote to the Commission on two occasions seeking a “certificate of judgment”, following the teleconference.
A Certificate of Determination dated 2 July 2004 was issued in the following terms:
“In this matter a teleconference was held without the attendance of the Applicant who remains residing in England and with no indication being forthcoming from the Applicant’s solicitor as to when the Applicant would return to Australia if ever. I made an order that the matter be struck out.
1.The Application for Determination filed in the Compensation Court on 24 July 2001 be struck out.
2. No order as to costs.”
The decision of the Arbitrator was appealed and the matter was set down for hearing before me on 26 October 2004.
THE ISSUES IN DISPUTE
The issues in dispute are whether the Arbitrator erred in ordering that the Application be struck out and whether this amounts to a denial of natural justice. It is requested that the matter be restored to the Commission’s list.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The appeal in this matter was not filed within 28 days of the decision appealed against as required by section 352(4) of the 1998 Act. The Certificate of Determination was dated and issued on 2 July 2004. The Appeal Against Decision of Arbitrator’ was dated 29 July 2004, but was not lodged in the Commission until Monday 2 August 2004. Consequently, the appeal was filed out of time. The Respondent indicates that it is not prejudiced by this delay and no objection is offered on the basis that it was filed late.
The essence of the submissions put by the Appellant in relation to the substantive issues in the appeal, also impacts to some extent, on the question of leave to appeal, that is in particular, that the “consequences of the Arbitrator’s decision are serious and indeed, fatal to the Appellant’s rights under the Workers Compensation Act 1987, as amended.” In my view the Appellant should not lose the right to seek leave to appeal in these exceptional circumstances, that is, by reason only of the late lodgment of the appeal in the Commission, particularly as the Respondent offers no objection on this basis.
However, the Respondent does object on the basis that “the Appellant’s right to re-file means that clause (a) of s. 252(2) [sic] has not been satisfied.” The argument here is that there is no amount of compensation in issue. However, whether the Appellant’s rights are extinguished if the Arbitrator’s decision is upheld, is at the heart of this appeal and in fairness, should be determined as a substantive issue. I find therefore, that there is an amount of compensation at issue on appeal.
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
· No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
· No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal was granted at the hearing on 26 October 2004.
SUBMISSIONS
The Appellant
The Appellant has submitted that his claim should be restored to the list forthwith on the basis that he has been denied procedural fairness. He claims that he should not be unfairly prejudiced by virtue of the fact that he resides in the United Kingdom, and that “this is not sufficient reason for the matter to be struck out on this basis alone, notwithstanding the fact that neither the Respondent nor the Appellant himself were present during the teleconference.” (Kioa v West (1985) 159 CLR 550, at 584).
The Appellant further submits that there exists a common law duty to act fairly in making decisions that affect the rights, interests and legitimate expectations, subject only to the clear manifestion of a contrary intention; that the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry and the rules under which the tribunal is acting, and that the Appellant should have a reasonable opportunity to present his case. (Russell v Duke of Norfolk [1949] 1All ER 101, at 188; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at 552-553).
The Appellant submits that he was denied procedural fairness in that no explanation has been provided by the Arbitrator, in the absence of an appearance by the Respondent, as to the reason why the matter was struck out. No application was made by either party for such an order. The Appellant submits that the order was made in his absence, notwithstanding that such absence was explained to the Arbitrator by his legal representative, and this amounts to a denial of procedural fairness.
The Appellant further submits that he has “served appropriate medical evidence to support his claim and the Respondent was provided with an opportunity to have the Appellant examined, whilst in Australia, but failed to do so.”
It is further submitted that the Appellant’s interests have been affected by the Arbitrator’s decision, as he had a legitimate expectation from the outset that the Court and subsequently the Commission would conduct business on a procedurally fair basis.
Finally, the Appellant submits that the consequences of the Arbitrator’s decision are serious and indeed, fatal to the Appellant’s rights under the 1987 Act. The Appellant suggests that any difficulties can be overcome by the appointment of an Approved Medical Specialist in London, with the consent of the parties, in the event that the dispute cannot be resolved just on the medical evidence that is already before the Commission.
The Respondent
The Respondent submits that the decision of the Arbitrator should not be disturbed unless it can be shown that he has not exercised his discretion judicially or has acted on a wrong principle.
It is further submitted that section 354 of the 1998 Act modifies the common law rules of procedural fairness (Inghams Enterprises Pty Ltd v Zarb [2003] NSW WCC PD 15 at paragraph 25). It is conceded that a party has a fundamental right to be heard prior to any decision maker exercising a power to make a decision. However, the Appellant was informed by the Arbitrator that he “may have to strike out the matter” and was therefore on notice. “There is no suggestion that the solicitor was not allowed to put any submission. Indeed most of the material now put forward on the Appeal was available at that time.”
The Respondent submits that the matter has not been prosecuted with any due diligence and it was therefore open to the Arbitrator to strike out the proceedings.
Submissions at the appeal hearing on 26 October 2004
The submissions made at the appeal hearing by both parties were substantially in elaboration and clarification of the written submissions already filed in the Commission. No further matters were introduced (except that discussion took place regarding costs that had been incurred in the dispute to date and secondly, the possibility of the Appellant being medically examined by an Approved Medical Specialist in London). I have taken into account all submissions that were made and that are relevant to the appeal against the decision of the Arbitrator.
I note that there is an error in the transcript of the proceedings before me. The following comment at the bottom of page 4, was made by Mr Meakes, Counsel for the Appellant, but is incorrectly attributed to me:
“Right. Of course it doesn’t have to settle today, it can go over. I am not sure what you do about these situations but a suggestion may be that the – if the matter is allowed to remain on foot – you see, there is a big cost issue – we will get it out in the open.”
The suggestion that the matter could be adjourned was further discussed and was rejected by me, as set out at page 5 of the transcript. The issue of previous costs is not relevant to this appeal and cannot be taken into account.
DISCUSSION AND FINDINGS
Other than what is set out at paragraph 9 above, the Arbitrator provides no elaboration of his reasons for striking out the Application before him. Teleconferences are not routinely recorded and consequently, there is no transcript of the proceedings. However, this matter has been on foot since July 2001 and has made little progress since then. It is clear that the Arbitrator saw little or no prospect of the matter being advanced within a reasonable time, having regard to what was put to him by the Appellant’s Solicitor, and the unsatisfactory history of the matter up to the date of the teleconference. The Appellant’s Solicitor indicated in her submissions that the Arbitrator informed her at the teleconference that he was considering striking out the Application. The opportunity was available to address the issue with the Arbitrator at that time. I cannot agree that the Arbitrator struck out the Application simply because the Appellant resides in the United Kingdom, and “on this basis alone”. Nor do I agree that no opportunity was given to make submissions to the Arbitrator on the proposal to strike it out. Notwithstanding his brief statement, the reasons of the Arbitrator are clear enough with the benefit of the history and circumstances of the matter, these being known to himself as well as the parties.
On a reading of the Appellant’s Solicitor’s submissions, I note that no approach was made to the Workers Compensation Commission for arrangements to be made to progress the matter until after the notice of the teleconference was received. Moreover, attempts by the Solicitor to organise the participation of the Appellant in the teleconference failed, as the Appellant did not respond to her requests to him, in that regard. Indeed, it is not clear whether any discussions have taken place between the Appellant and his Solicitor, up to the date of the hearing before me, the only reference being to the possibility of organising a medical examination in London.
The Appellant’s Solicitor correctly states that the Respondent was notified of the Appellant’s presence in Sydney in March 2004 for one week. It is submitted that the Respondent could have organised a medical examination during that week. However, there is no evidence before me to suggest that the Respondent was notified in advance. The notification was forthcoming only during the week that the Appellant was in Sydney. Notification in these circumstances is inadequate, and it is not reasonable in my view, for the Appellant to expect that the Respondent could have been able to make suitable arrangements in that time, in the absence of sufficient notice. No reason is given for the failure to provide the Respondent with a reasonable period of notice.
I accept that the Appellant suffers from an unrelated medical condition that undoubtedly imposes certain restrictions and restraints upon him. However, it is clear that he has visited Australia on a number of occasions, two at least, since taking up residence in the United Kingdom. There is nothing before me to suggest that he is medically unfit and unable to travel at all, and further, nothing to explain why he could not have remained in Australia on each occasion that he has visited, with a view to prosecuting his claim before the Court and/or the Commission. The medical examination aside, the Appellant failed for reasons that are not clear, to respond to his Solicitor’s requests to make himself available for the teleconference before the Arbitrator. No explanation has been provided to the Commission for his failure to respond to his Solicitor or to participate in the teleconference.
The Appellant submits that an Approved Medical Specialist can be appointed in London so that a proper assessment can be carried out. That may be so, but it seems that the parties have done little or nothing to give effect to this apart from, I am told, some recent enquiries directed to the Registrar by the Appellant’s Solicitor.
The Appellant submits that the order striking out should not have been made, in the absence of an application for such an order, by either party. I do not agree. The power to strike out the proceedings before an Arbitrator is not contingent upon an application being made by either party. Rule 69 of the Workers Compensation Commission Rules 2003 (the Rules) provides:
“69 Procedural orders by Arbitrators
Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in those proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar.”
The word “proceedings” generally does not have a precise meaning but is a broad term (KBRV Resort Operations Pty Limited t/as Kingfisher Bay Resort & Village v Chilcott (2001) 51 NSWLR 516). For the purposes of the Commission’s jurisdiction, “proceedings” is defined in Rule 4 simply as “proceedings in the Commission”. This includes an application that has been referred to and is before the Arbitrator.
The Arbitrator did not make an order dismissing the proceedings, but did make an order purporting to strike it out. That being so, there would be nothing to prevent the Appellant from lodging a further Application in the Commission, notwithstanding that the proceedings were struck out (Rule 6(7)). In these circumstances, the Appellant’s submission that the consequences of the Arbitrator’s decision are serious, and fatal to his rights under the 1987 Act, is not correct, as the rights of the Appellant are not extinguished and may still be pursued. In New South Wales Insurance Ministerial Corporation v Anderson (NSW Court of Appeal 40430/93, 14 June 1994, unreported), the Court of Appeal considered the legality of striking out an action pursuant to the District Court Rules, and made a distinction between striking out an action and dismissing it. It said, inter alia:
“The expression ‘strike out’ is one that appears in Rules of Court with somewhat varying meanings. It is, for example, an expression that is commonly used in relation to pleadings; and where so used it ordinarily involves the possibility of a fresh pleading being filed.”
The Court went on to say that when an order for striking out is made under Rule 5B of the District Court Rules, the action does not stand dismissed but there is the potential for it to be reinstated by order of the Court. In the instant matter, there is no requirement for the Appellant to seek leave of the Commission to recommence proceedings. It is clear that he is at liberty to do so of his own volition, pursuant to Rule 6(7).
Rule 6 provides, in part:
“(4) If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.
(5) If the Commission does not make a determination as referred to in subrule (4) in respect of a failure to comply with a provision of these rules, the failure is to be treated as an irregularity only.
(6) …
(7) The striking out of proceedings under this rule does not prevent the proceedings from being recommenced.”
It is not clear from the brief statement by the Arbitrator whether he has made a determination that the proceedings are a nullity. Such a determination is a prerequisite to striking out. In the absence of such a determination the failure to comply with the Rules is to be treated as an irregularity, only. This was not the intention of the Arbitrator.
The Arbitrator’s statement reveals that the Appellant’s solicitor failed to provide any indication “as to when the Applicant would return to Australia if ever…”. The Solicitor was unable to progress the matter in the absence of the Appellant and apparently, his instructions as to what should occur. The Respondent also failed to appear at the teleconference. The Appellant’s Solicitor sought advice from the Commission shortly prior to the teleconference about “alternative arrangements”, but the teleconference had been listed in the normal course of events and it was expected that the Appellant would participate and progress his claim. As I have stated, no reason was given to the Arbitrator for his failure to respond to his Solicitor’s request for him to participate, and none has been put to me.
I am satisfied that Mr Morgan has had ample opportunity to prosecute this matter both before the Court and the Commission, since July 2001. I am satisfied that the Arbitrator provided an opportunity for the Appellant’s Solicitor to make submissions to him as to whether the matter should have been struck out. Further, I am satisfied that the Arbitrator made no error of law in arriving at that conclusion, having regard to the history and all of the circumstances of this dispute. While I have no difficulty in agreeing with the legal principles outlined in the Appellant’s Solicitor’s submissions, as to the standards of procedural fairness to be observed, I can find no breach of these requirements by the Arbitrator. The Appellant relies on the authorities cited (Russell v Duke of Norfolk [1949] 1 All ER 101, per Tucker LJ at 188, and R v Commonwealth Conciliation and Arbitration Commission: Ex parte Angliss Group (1969) 122 CLR 546, at 552-553) in submitting that the requirements of natural justice must depend upon the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, and the subjective matter that is being dealt with, but importantly, whatever standard is adopted, it is essential that a party should have a reasonable opportunity of presenting their case. That is so. What constitutes procedural fairness depends upon the nature of the decision under review (Kioa v West (1985) 159 CLR 550), but section 354 of the 1998 Act modifies the common law rules of procedural fairness applicable in the Commission, to some extent. However, the fundamental rule that a party is entitled to be heard in relation to the case against him or her, before the decision is made, is not displaced (Twist v Council of the Municipality of Randwick (1976) 136 CLR 106, at 110).
Notwithstanding his current medical condition, the Appellant has demonstrated that he is capable of travelling to Australia; no argument has been put forward to demonstrate he could not have remained in Australia for a period in order to attend to this matter on those occasions that he has visited this country; he has failed to respond to communications from his Solicitor in relation to the matter and in particular, to the requirement that he participate in the teleconference before the Arbitrator. Having regard to the whole of the history and the circumstances of this matter, I can find no basis to agree with the proposition that Mr Morgan has not had a reasonable opportunity of presenting his case. It is clear that there has been a distinct lack of reasonable diligence on the part of the Appellant in prosecuting this matter with a view to resolution.
The issue remaining is whether there is sufficient compliance with Rule 6(4), by the Arbitrator, in purporting to strike out the proceedings. On balance, I am not satisfied that the Arbitrator turned his mind to the requirement to determine that the proceedings were a nullity, before purporting to strike them out. That being so, I find that the Arbitrator erred in striking out the proceedings, without first having made a determination that the proceedings were a nullity. However, the error is not fatal to his decision.
In my view, the Arbitrator’s conclusion that the matter should be struck out was correct in principle, having regard to the objectives of the Commission, as set out in section 367 of the 1998 Act, and as exemplified in the 1998 Act and Rules. Furthermore, his conclusion is amply supported by the history, facts and circumstances of this matter. He was entitled to arrive at the conclusion. Section 352(7) of the Act enables me to confirm the decision of the Arbitrator, or to revoke it and substitute a new decision in its place. Alternatively, the Presidential member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made. Notwithstanding the Arbitrator’s apparently inadvertent omission, I find that the proceedings before the Arbitrator are and were at the relevant time, a nullity, and accordingly, I make that determination pursuant to Rule 6(4), on the basis that the proceedings were not being progressed in the Commission by the Appellant, for any good reason that was or is now apparent.
As previously stated, the Appellant is free to recommence proceedings in the Commission pursuant to Rule 6(7), when hopefully, he will be in a position to proceed in accordance with the Acts and the Rules. If the parties are unable to settle this dispute and the matter is to be recommenced, they may choose to approach the Registrar as to any practical procedural difficulties that present themselves, by reason of the Appellant residing overseas.
DECISION
The appeal is dismissed. The decision of the Arbitrator is confirmed.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
25 November 2004
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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