Olympic Fencing Pty Limited v Anderson
[2006] NSWWCCPD 8
•30 January 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Olympic Fencing Pty Limited v Kevin Anderson [2006] NSWWCCPD 8
APPELLANT: Olympic Fencing Pty Limited
RESPONDENT: Kevin Anderson
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC6442-2003
DATE OF ARBITRATOR’S DECISION: 23 July 2003
DATE OF APPEAL DECISION: 30 January 2006
SUBJECT MATTER OF DECISION: Leave to appeal; whether Respondent worker was a worker employed by the Appellant; entitlement to weekly payments of compensation; weight of evidence, and error of law.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: QBE Workers Compensation – In-House Legal
Respondent: Bale Boshev Lawyers
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 23 July 2003, is refused.
The Appellant is ordered to pay the costs of this appeal.
BACKGROUND TO THE APPEAL
Mr Kevin Anderson, the Respondent Worker in this appeal, was the sole proprietor of a fencing business, Imperial Fencing. He worked as an independent fencing contractor under that name. Imperial Fencing came into existence around April 1998. It is claimed that Mr Anderson had an arrangement with Olympic Fencing Pty Limited, the Appellant (‘Olympic’), whereby Olympic would advertise and obtain fencing work, and then pass the details of various jobs on to Mr Anderson. Mr Anderson would then “bill” customers direct, for work that he completed.
Mr Anderson purchased the materials required for each job from Olympic. It is claimed that this arrangement had been in place for the duration of his working arrangement with Olympic, except for approximately six occasions at the beginning.
Mr Anderson came to experience financial difficulties during 2000. At that time he owed Olympic in excess of $10,000 for materials that he had purchased from it. Mr Graham Braithwaite, Managing Director of Olympic, requested a meeting with Mr Anderson. It is alleged that at this time Mr Braithwaite proposed a new arrangement whereby Mr Anderson would work for Olympic. It is claimed that under this new arrangement, Olympic would pay Mr Anderson a percentage of the income derived from the jobs that he performed, and the balance would be applied to reduce the outstanding debt that Mr Anderson owed Olympic for materials purchased.
On 26 October 2000 Mr Anderson attended the first job under the new arrangement, at Lake Munmorah High School. The materials had already been delivered to the site. Mr Anderson claimed that Mr Braithwaite was on site and gave him directions in relation to the job. Mr Anderson claims that he injured his back when he was moving sections of a strainer post, which he did at the direction of Mr Braithwaite. A few days later, Mr Anderson commenced another job with Olympic under this new arrangement, but was unable to continue the fencing work, due the injury to his back.
In February 2002 Dr Ghabrial performed surgery on Mr Anderson’s back. He alleges that since then, he has continued to suffer constant pain in his back.
Mr Anderson notified Olympic of the injury some time between 5 and 12 August 2002. On 9 October 2002, Olympic’s Insurer, QBE Workers Compensation (NSW) Limited, informed Mr Anderson that it denied liability for his claim of weekly benefits.
Mr Anderson lodged an ‘Application to Resolve Dispute’ in the Workers Compensation Commission under cover of a letter dated 20 January 2003.
Various items of correspondence were exchanged between the solicitors for Olympic before the dispute was finally referred to an Arbitrator.
A determination was made by the Arbitrator on 23 July 2003 and on 25 August 2003, the Appellant lodged in the Commission, an “Appeal against Decision of Arbitrator’.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 23 July 2003, records the Arbitrator’s determination as follows:
“The determination of the Commission in this matter is as follows:
a)The Respondent pay the Applicant weekly compensation pursuant to section 36 [of the Workers Compensation Act 1987 (‘the 1987 Act’)] at the rate of $451.40 per week from 26 October 2000 to 26 April 2001.
b)The Respondent pay the Applicant weekly compensation pursuant to section 37 [of the 1987 Act] at the rate of $291.10 as adjusted from 27 April 2001 to date. Such weekly payments to continue in accordance with the provisions of the Act.
c) The Respondent to pay the Applicant’s costs as agreed or assessed.”
At paragraph 7 of the Arbitrator’s ‘Statement of Reasons for Decision’, the issue in dispute is summarised as, “Was the Applicant a worker employed by the Respondent?” His summary “of the resolution of the issues in dispute” is stated as, “On 26 October 2000, the Applicant received an injury to his back arising out of or in the course of his employment as a fencer with the Respondent.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·whether the Arbitrator erred in failing to give due weight to the documentary medical evidence which established that Mr Anderson was not incapacitated by virtue of his pre-injury employment from 26 October 2000, and
·whether the Arbitrator erred in awarding weekly compensation.
The initial grounds of appeal were expanded and/or clarified by a document ‘Further Grounds of Appeal’ dated 26 August 2003, following the supply and perusal of the transcript of the proceedings before the Arbitrator. In this document it is contended that the Arbitrator made findings that gave rise to errors of law. The errors alleged are various and specific, and include the submission that the Arbitrator failed to give sufficient or any reasons as to the basis on which he found that Mr Anderson was an employee of Olympic.
FRESH EVIDENCE
The following submission is set out in the document ‘Further Grounds of Appeal’ dated 26 August 2003:
“The Respondent seeks leave to tender on the rehearing [sic] an affidavit in answer to the Applicant’s affidavit on the grounds that the Respondent has not previously, prior to the Arbitrator, sighted the Applicant’s affidavit or been given the opportunity to respond thereto.”
No affidavit was attached to the document.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 have indicated that an oral hearing is required. Given the brevity of, and the paucity of supporting comment in, the written submissions provided by the Appellant, and in the absence of further written submissions on the substantive issues in this appeal, an oral hearing might ordinarily, be necessary. However, I am satisfied, having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions made by the parties, that I have sufficient information to proceed ‘on the papers’ to determine the threshold issue of ‘leave to appeal’ without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act).
There is no dispute that section 352(2)(a) is satisfied in that the amount at issue in this matter is at least $5000. Furthermore, section 352(2)(b) is satisfied as the amount at issue is 100% of the amount awarded by the Arbitrator.
Section 352(4) provides that an appeal can only be made within 28 days after the making of the decision appealed against.
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’), relevantly provides in part:
“77 Appeal against Arbitrator’s decision
(1)A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.
(3)…
(4) …
(5) …
(6) …
(7)For the purposes of section 352(4) of the 1998 Act, an appeal is made when the application for leave to make the appeal is lodged as required by subrule (1).
(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 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.”
In this matter, the Appellant lodged the appeal on 25 August 2003. It was initially rejected by the Registrar, for non-compliance with Rule 77. Correspondence between the Registrar and the solicitor for the Appellant ensued. By letter of 23 September 2003, the solicitor for the Appellant responded in the following terms, in relation to two items raised by the Registrar:
“Your proforma letter indicates that you have not received the following documentation with the Appeal Application:
1.An Application seeking an extension of time in accordance with Rule 77(9)
In response to this item, it is submitted that the Application for Appeal was not out of time.
The Decision was received by our client insurer on 28 July 2003 and immediately forwarded to our Legal Department. Whilst the decision may have been delivered officially by the Arbitrator on 25 July 2003, neither the Respondent nor the insurer had any knowledge of the decision until 28 July 2003 and as such, the Appeal was filed within the 28 day time rule from date of receipt of the Judgment. The Application for Appeal was faxed to the Commission on 25 August 2003 for sealing. A copy of that document was also forwarded to the Applicant’s attorney in this matter. It is true that the decision was delivered on 23 July 2003 however, it was not received by my client until 28 July 2003. The Application for leave to appeal is not out of time.
2.Your letter requests a statement as to whether the leave application should be determined on the papers and if not, why not.
We have yet to receive a transcript in this matter and as such, are uncomfortable in answering this question. We have requested a transcript from the Commission on numerous occasions although our request has not been responded to.”
Item 3. addresses the same issue as in item 2.
The facsimile date on the covering letter forwarding the ‘Appeal against Decision of Arbitrator’, supports the Appellant’s contention that it was sent to and received in the Commission on 25 August 2003.
Given that the Appellant declined to comply with the Registrar’s request of 16 September 2003 and instead, contended that the appeal was not lodged out of time (amongst other things), the Registrar caused the administrative processing of the appeal to be completed. However, correspondence between the Appellant and the Registrar ensued for the next 12 months. This covered a number of issues, including the status of the appeal. Following this, the appeal was referred in the normal course, for determination by a Presidential member in order of priority.
The Appellant’s submission that the 28 days in which an appeal must be lodged runs from the actual date of receipt of the ‘Certificate of Determination’ from the Commission is incorrect. This is not the case, even on a liberal interpretation of Rule 77(1), (2) and (7), and even if Rule 19(6)(c) applies.
No evidence or submissions have been put forward in support of a suggestion that the ‘Certificate of Determination’ was not issued on 23 July 2003 and there is nothing in the relevant file to suggest that it was not issued on that date. According to the file, the ‘Certificate of Determination’ and ‘Statement of Reasons for Decision’ were despatched to “QBE Workers Compensation (NSW) Ltd” by Document Exchange (‘DX’) on 23 July 2003.
In any event, in the absence of anything to the contrary, the Appellant still had ample time to lodge an appeal within the prescribed time. If the Appellant was unable to meet the deadline, it was open to it to make an application for extension of time, pursuant to Rule 77(9).
It was the Appellant’s responsibility to meet the deadline in the first instance. However, the Registrar drew the Appellant’s attention to the requirements of Rule 77 in an attempt to assist the Appellant. The Appellant declined the Registrar’s advice, claiming that the appeal had in fact been lodged within 28 days. The Appellant’s response to the Registrar, and its interpretation of the relevant statutory requirements, including Rule 77 (1), (2) and (7), (and perhaps by inference, rule 19(6)(c) which was not referred to by the Appellant), are erroneous.
In the circumstances, the Appellant has not sought an extension of time in this matter pursuant to Rule 77(9) and as stated above, it specifically declined to do so.
In the circumstances, the Appellant has put no application and submissions before me in an attempt to satisfy me, that in exceptional circumstances, to lose the right to seek leave to appeal would work demonstrable and substantial injustice and that I should therefore make an order extending the time for making the appeal.
DECISION
Leave to appeal the decision of the Arbitrator, dated 23 July 2003, is refused
COSTS
The Appellant is ordered to pay the costs of the appeal.
Gary Byron
Deputy President
30 January 2006
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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