New South Wales Police Service v Shelley - [2011] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		New South Wales Police Service v Shelley [2011] NSWWCCPD 57
APPELLANT:		New South Wales Police Service
RESPONDENT:		Candida Shelley
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		A1-10675/10
ARBITRATOR:	Mr D Nolan
DATE OF ARBITRATOR’S DECISION:		9 May 2011
DATE OF APPEAL DECISION:		18 October 2011
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; no satisfactory explanation for appeal being filed 10 weeks out of time; no reasonable prospects of success if time to appeal extended; unmeritorious application; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Burston Cole & Associates
ORDERS MADE ON APPEAL:		The application to extend time to appeal is refused. The Arbitrator’s decision dated 9 May 2011 is confirmed.

BACKGROUND

The respondent worker, Candida Shelley, is a police officer. On 12 May 2008, she was stationed at Auburn and was rostered to attend a training course at the New South Wales Fire Brigade Headquarters at Homebush Bay. She attended the training day with other officers who were also based at Auburn. At the end of the course at about 2.00 or 3.00 pm, Sergeant Coluccio drove Ms Shelley and three other officers back to Auburn Police Station in his private car.
Though it was an extremely warm day, Ms Shelley wore a jumper in the lecture room at the course. Before getting into the front of Sergeant Coluccio’s car, Ms Shelley said that she was cold and she put a jacket on over her jumper. About halfway back to Auburn, Ms Shelley pulled the hood of her jacket over her head, saying that she was cold.
About a minute later, she slumped in the seat and Sergeant Coluccio noticed that she was foaming from the mouth, sweating and that her eyes had rolled back in her head. He stopped outside the Auburn Police Station and yelled for someone to call an ambulance. He then opened the passenger door and could see that Ms Shelley was suffering a fit. When he pulled the hood of her jacket back, she started to struggle, shake and wave her arms.
Sergeant Coluccio could see that Ms Shelley was very hot. He undid her seatbelt and tried to remove her jacket. While he was taking her jacket off, Ms Shelley swung her arms and resisted. With the aid of another officer, Sergeant Coluccio tried to control her. As she was shaking, they had to apply a “fair amount of force” as they tried to get her out of the car. They pulled her forcefully and eventually managed to get her jacket off, but stopped their attempts to remove her from the car. Ms Shelley then said that her arm and shoulder were hurting.
Ms Shelley was taken by ambulance to Auburn Hospital. It was later discovered that Ms Shelley had dislocated her left shoulder. Counsel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading New South Wales Police Service v Shelley

Details

AGLC: New South Wales Police Service v Shelley [2011] NSWWCCPD 57
Case: [2011] NSWWCCPD 57
Decision Date: 18 October 2011

CaseChat Overview and Summary

In the case of New South Wales Police Service v Shelley, the applicant sought an extension of time to lodge an appeal against a decision of the Arbitrator. The dispute arose from the applicant's dismissal from the New South Wales Police Service, and the decision of the Arbitrator was rendered on 9 May 2011. The application to extend time to appeal was heard in the Industrial Relations Commission of New South Wales.

The primary legal issue before the court was whether the applicant's application to extend the time to appeal should be granted. The applicant's appeal was filed 10 weeks out of time, and the court needed to determine whether there was a satisfactory explanation for the delay. Furthermore, the court had to assess whether there were reasonable prospects of success if the time to appeal was extended, and whether the application was unmeritorious.

The court found that the applicant had not provided a satisfactory explanation for the delay in filing the appeal. The applicant had relied on the fact that they had experienced personal difficulties in preparing the appeal, but the court held that this was not a sufficient explanation for the delay. Additionally, the court found that there were no reasonable prospects of success if the time to appeal was extended, and that the application was unmeritorious. The court held that the application was contrary to the provisions of Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, which requires that an application to extend time to appeal must be made within a reasonable time, and that the delay must be satisfactorily explained.

The court refused the application to extend time to appeal, and confirmed the Arbitrator’s decision dated 9 May 2011. The court held that the application was unmeritorious and that there were no reasonable prospects of success if the time to appeal was extended. The court held that the applicant had not provided a satisfactory explanation for the delay in filing the appeal, and that the application was contrary to the provisions of Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011.

Orders

Orders of the court

The application to extend time to appeal is refused.

The Arbitrator’s decision dated 9 May 2011 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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