Nott v The Western Stores Limited
[2007] NSWWCCPD 83
•27 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Nott v The Western Stores Limited and ors [2007] NSWWCCPD 83
APPELLANT: Robyn Nott
FIRST RESPONDENT: The Western Stores Limited
SECOND RESPONDENT: Grace Brothers Limited
THIRD RESPONDENT: Myer Stores Limited
FIRST RESPONDENT’S INSURER: MMI Limited from 1966 to 30 June 1987 and
Allianz Australia Workers Compensation (NSW) Limited from 1 July 1987 to 11 August 1988
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
THIRD RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited from October 1993 to 17 September 1997
FILE NUMBER: WCC8940-06
DATE OF ARBITRATOR’S DECISION: 11 October 2006
DATE OF APPEAL DECISION: 27 March 2007
SUBJECT MATTER OF DECISION: Leave to appeal; orders of an interlocutory nature; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether compensation is “at issue” on appeal when an Application to Resolve a Dispute is struck out by Arbitrator.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
FirstRespondent: No appearance
Second Respondent: Hicksons Lawyers
Third Respondent: No appearance
ORDERS MADE ON APPEAL: Leave to appeal the Arbitrator’s order dated 13 October 2006 is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 1 November 2006 Robyn Nott (‘the Appellant Worker/Mrs Nott’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2006.
The Respondents to the Appeal are The Western Stores Limited (‘the First Respondent’), Grace Brothers Limited (‘the Second Respondent’) and Myer Stores Limited (‘the Third Respondent’).
On 13 June 2006 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming weekly compensation from 18 September 1997, lump sum compensation and medical expenses against all three Respondents.
The matter was listed for teleconference before a Commission Arbitrator on 6 September 2006 when the Arbitrator issued the following Directions to the parties:
“1.The Applicant will file and serve an amended Wages Schedule within 14 days.
2.The Respondent may file and serve a response to the Applicant’s amended Wages Schedule within 14 days of receipt of the Applicant’s amended Wages Schedule.
3.The Applicant will file and serve the documents numbered 9 to 13 inclusive in the index at page 101 of the Application within 14 days.
4.The Applicant will reply to the request for particulars made by Messrs Hicksons, Solicitors dated 17 July 2006 within 14 days.
5.The Applicant will request the WorkCover Authority to search and ascertain which insurer or insurers was on risk for the Respondents between 1996 and 11 August 1998, and will file and serve the result of such search.”
At a further teleconference on 11 October 2006 the Appellant Worker’s solicitor advised, as recorded in the Arbitrator’s Statement of Reasons – Ex tempore Orders, page one:
“1.In relation to Direction 1, a Wages Schedule had not been filed, but one had been faxed to the solicitor for the second and third Respondents at 5pm on 10 October 2006. Consequently, the Respondent was unable to comply with Direction 2.
2.He had not complied with, and did not intend to comply with Direction 3.
3.He had not complied with, and did not intend to comply with Direction 4.
4.He did not write to the WorkCover Authority pursuant to Direction 5 until 28 September 2006 and, although no reply had been received, he did not follow up this request with a view to obtaining the required information in time for the teleconference scheduled for 11 October 2006.”
Because of the failure to comply with the above Directions the Arbitrator determined that the proceedings were a nullity under Rule 6(4) of the Workers Compensation Commission Rules 2003 and ordered:
“1. That these proceedings are struck out.”
The Commission issued a Certificate of Determination on 13 October 2006 to that effect.
The Appellant Worker seeks leave to appeal that order.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending 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 an Arbitrator.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
In light of these amendments and the issues raised in the appeal, I issued the following Direction to the parties on 14 February 2007:
“1. The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, ‘any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations’.
Under Clause 200B of the Workers Compensation Regulation 2003, as amended, ‘for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed’.
Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 ‘apply in respect of a claim for workers compensation made before the commencement of the amendments’.
2.In light of the above amendments the parties are invited to make written submissions on the following issues:
·whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,
·the basis on which leave to appeal should be granted.
3. In addition, the parties are directed to the provisions of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) which provides:
‘(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.’ (emphasis added)
4. Given that the order made by the Arbitrator does not affect an ‘amount of compensation’ and does not have the capacity to put in issue the amount of compensation claimed in the Application to Resolve a Dispute (see Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27]), submissions are required on the question of the monetary thresholds in section 352(2) of the 1998 Act.
5. The Appellant Worker’s submissions are to be filed and served on or before Thursday 1 March 2007 and the Respondent Employers’ submissions are to be filed and served on or before Thursday 15 March 2007.”
In response to the above Direction the Appellant Worker filed further submissions on 6 March 2007 in which the following points were made:
a) the Arbitrator’s order was not an order of an interlocutory nature because it determines and finalises the proceedings and finalises the Appellant Worker’s rights at this time;
b) it is irrelevant that the Appellant Worker could recommence proceedings;
c) the order on 13 October 2006 was not interlocutory as it finalised the proceedings;
d) the Court of Appeal has held that an order by a District Court judge dismissing a claim because of a failure to comply with the Court’s Rules “could be the subject of an Appeal on specified bases” (Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 (‘Micallef’);
e) the Appellant Worker either had complied with the Arbitrator’s Directions of 6 September 2006 or there was no basis for compelling compliance with those Directions;
f) leave to appeal should be granted because the Arbitrator’s order was harsh and unjust and against the principles of the Commission;
g) the Arbitrator had no power to make the Directions made on 6 September 2006 and he therefore acted wrongly and leave should be granted to ventilate this properly on appeal;
h) the 20% threshold in section 352(2)(b) does not apply when no amount of compensation has been awarded (Mawson v Fletchers International Exports [2002] NSWWCCPD 5 (‘Mawson’));
i) in Fletchers International Exports v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held that the admissibility of a medical report might affect the amount of compensation payable and leave to appeal was granted, and
j) the Commission has effectively failed to award any compensation to the worker. That the worker has her rights intact does not militate against the current decision.
The Appellant Worker made no submissions about whether the amendments to section 352(8) are retrospective.
The Respondent Employer filed further submissions on 13 March 2007 in which it made the following points:
a) the provisions of section 352(8) and clause 200B of the Workers Compensation Regulation 2003 (‘the Regulations’) have the effect of removing from the Commission (constituted by a Presidential member) jurisdiction to grant leave to appeal from an interlocutory determination;
b) the amendment has retrospective effect because it applies to “a claim for compensation made before the commencement of the amendments” (Schedule 6 Part 18J Clause 5 Workers Compensation Act 1987 (‘the 1987 Act’) (‘Schedule 6’);
c) the determination is clearly of an interlocutory nature in that it does not finally dispose of the Appellant Worker’s rights;
d) an order striking out proceedings because they do not disclose a cause of action was held to be interlocutory in Little v State of Victoria (1998) 4 VR 596 (‘Little’);
e) an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was held to be interlocutory in Wickstead v Browne (1992) 30 NSWLR 1 at 11 (‘Wickstead’));
f) there is no amount of compensation “at issue” on appeal, and
g) irrespective of the outcome of the appeal, the Appellant Worker’s entitlement to compensation is unaltered and can be pursued in fresh proceedings.
The first question is whether the amendment to section 352(8) is retrospective. The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation (D C Pearce and R S Geddes Statutory Interpretation in Australia 5th edition, page 250). The authority cited in support of this proposition is Maxwell v Murphy (1957) 96 CLR 261 where Dixon CJ said at 267:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.”
The authors also quote the following passage from Fisher v Hebburn Ltd (1960) 105 CLR 188 where Fullagar J said at 194:
“There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment, - is prima facie to be considered as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.”
The wording of Schedule 6 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on each of the three Respondents by letters dated 27 March 2006. Therefore, it is my view that the amendments to section 352 made by the amending Act do have retrospective operation and apply to the present appeal.
Whilst the present case is not an appropriate one in which to make any general statement as to what is or is not a matter of an ‘interlocutory nature’ for the purpose of proceedings in the Commission, in my view the order made by the Arbitrator was clearly interlocutory in nature. The authority cited by the Appellant Worker does not support her argument. In Micallef the Court of Appeal stated that an order dismissing a claim under Part 18 Rule 3 of the District Court Rules was interlocutory and, therefore, leave to appeal was required before the appeal could proceed. Leave to appeal was granted in that case and the Court’s judgment dealt with whether the trial judge had erred in making the disputed order. There is now no provision for the Commission to grant leave to appeal where the only order or determination challenged on appeal is a “preliminary or interim” order “of an interlocutory nature”. However, if the order or determination was a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 141 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal the Commission’s ultimate Certificate of Determination will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549).
Whilst common law authorities are not automatically applicable to the unique legislative framework within which the Commission operates, I believe that the authorities of Little and Wickstead provide clear statements of principle that are applicable to the present matter. The Arbitrator’s order has not finally determined the parties’ substantive rights in the principal claim. The Appellant Worker is free to issue further proceedings seeking the same relief. The Arbitrator made no orders or findings that will restrict or inhibit that being done. Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and is not a ‘decision’ against which leave to appeal can be granted. Therefore, leave to appeal must be and is refused.
If I am wrong in my finding on whether the Arbitrator’s order was interlocutory it is appropriate (since both parties have made submissions on the issue) that I consider whether the monetary thresholds in section 352(2) have been satisfied.
Before the amendments to section 352 noted above, it was possible to appeal against an interlocutory decision where no monetary compensation has been awarded, but only where the decision or order had a real capacity to put the award of compensation in issue in the appeal. In Regan it was noted:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).” (emphasis added)
In the present case the amount of compensation claimed exceeded the threshold in section 352(2)(a). However, as no compensation was awarded, and as the Appellant Worker is entitled to recommence proceedings without penalty or prejudice, there is no compensation “at issue” on appeal. Even if leave to appeal were granted, no decision I could make would affect the compensation to be awarded. All that could happen is that the matter would be restored to the Commission’s process and be allocated to a different Arbitrator for determination. That can happen by the Appellant Worker simply reissuing a fresh Application.
In these circumstances the appeal does not meet the thresholds in section 352(2) and leave to appeal is refused on this ground as well.
DECISION
Leave to appeal the Arbitrator’s order dated 13 October 2006 is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
27 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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