Patrick Corporation Ltd v Sarkis
[2005] NSWWCCPD 48
•8 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Patrick Corporation Ltd v Sarkis [2005] NSW WCC PD 48
APPELLANT: Patrick Corporation Ltd
RESPONDENT: Salim Sarkis
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 1405-04
DATE OF ARBITRATOR’S DECISION: 11 May 2004
DATE OF APPEAL DECISION: 8 June 2005
SUBJECT MATTER OF DECISION: Challenge to the Arbitrator’s award in favour of the worker on the ground of procedural fairness, neither the employer nor the insurer having participated in the teleconference with the Arbitrator.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Gillis Delaney Brown, Lawyers
Respondent: Firths, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the Respondent’s costs as agreed or assessed.
BACKGROUND TO THE APPEAL
On 26 May 2004, Patrick Corporation Ltd sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 11 May 2004.
The Respondent to the Appeal is Salim Sarkis. Mr Sarkis, who was born on 8 December 1954 and is aged 51, worked for Patrick Autocare Pty Ltd at Ingleburn as a storeman. He was injured in an accident on 6 December 2000 when, in the course of stepping down from a forklift he had been driving, he slipped and fell, injuring his lower back. He notified his employer of the injury on 8 December 2000.
On 14 September 2001, Mr Sarkis lodged a claim for workers compensation. On 17 October 2002, the parties reached a settlement whereby Mr Sarkis would receive compensation for permanent impairment ($3,000 in respect of a further 5% permanent impairment of his back and $3,750 in respect of a further 5% loss of use of his left leg above the knee) together, apparently (no evidence having been produced to confirm this), with weekly compensation payments of $348. By letter dated 13 January 2003, the insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), notified Mr Sarkis that his weekly payments would be reduced to $52.86 from 15 January 2003.
By letter dated 4 February 2003, Mr Sarkis’ solicitors queried QBE’s letter with his employer’s solicitors. After some correspondence, the employer’s solicitors eventually responded by letter dated 19 August 2003 stating it was because of Mr Sarkis being certified fit for suitable duties, that QBE conducted a “section 40 assessment” (an assessment in relation to weekly benefits for partial incapacity under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’)). It was as a result of the assessment that Mr Sarkis’ weekly payments were reduced. The Employer’s solicitors stated they did not have instructions in relation to the section 40 claim and asked that all future correspondence be forwarded directly to QBE.
There then followed correspondence between Mr Sarkis’ solicitors and QBE and, on 21 January 2004, Mr Sarkis’ solicitors lodged an ‘Application to Resolve a Dispute’ with the Commission. The Application named Patrick Corporation Pty Ltd as the respondent and QBE as the insurer. The period of weekly compensation in dispute was stated to be from 13 January 2003 to date and continuing and the weekly amount in dispute $580.30. Copies of the Application were served on Patrick Corporation Pty Ltd and QBE on 22 January 2004. No ‘Reply’ was received by the Commission. On 22 January 2004, the Commission issued ‘Directions for Production’ of documents to both Patrick Corporation Pty Ltd and QBE, with a specified return date of 7 March 2004. Patrick Corporation Pty Ltd apparently responded; QBE did not. By letter dated 22 March 2004, Mr Sarkis’ solicitors wrote to QBE pointing out that QBE had neither lodged a ‘Reply’ nor produced any documents in answer to the ‘Direction for Production’. Having received no reply, they wrote to QBE again on 15 April 2004.
On 19 April 2004, the Commission issued ‘Notices of Commencement of Proceedings’ to all the parties, stating that a teleconference had been scheduled for 30 April 2004. On that day, the Arbitrator conducted a teleconference and gave the ex tempore decision set out below. No sound recording was made.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 11 May 2004, records the Arbitrator’s orders as follows:
“1. Award for the Applicant for weekly payments in the sum of $180.30 from 13.01.2003 per week to date and continuing less any voluntary payments.
2. Respondent to pay the Applicant’s costs.”It appears the figure of $180.30 was a typographical error and the figure should have been $580.30, the weekly amount stated to be in dispute by Mr Sarkis’ solicitors.
In her Statement of Reasons, the Arbitrator said that to ensure the parties received a timely determination of their dispute, reasons were given orally at the teleconference as follows:
“1. The Respondent Insurer (QBE) had not filed a Response.
2. The Applicant had written to the Respondent three times since the filing of this matter and had received no reply.
3. The Respondent’s representative who was available at the teleconference said that she did not have carriage of the matter and had not had it for some months and had no instructions. She managed to contact someone from another office who should have been able to give some instructions but that person was also unable to assist.”
ISSUES IN DISPUTE
Patrick Corporation Ltd submits that the issue in dispute in the appeal is a procedural one, namely that the Respondent named in the ‘Application to Resolve a Dispute’ was not Mr Sarkis’ employer. Mr Sarkis’ employer, Patrick Autocare Pty Ltd, was not aware of the teleconference and was, therefore, denied procedural fairness because it was unable to put its case.
Mr Sarkis’ solicitors drew attention to the non-compliance of the Respondent and the insurer in the proceedings before the Arbitrator. They submitted that the object of the Commission is to provide a process for the prompt, fair and efficient resolution of claims. Patrick Corporation Ltd is attempting to find a way to set aside a valid award of the Commission.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
Mr Sarkis’ solicitors submit that before Patrick Corporation Ltd can make a case that they have been denied natural justice, Patrick Corporation Ltd and QBE should be required to put on affidavits as to why evidence was not put forward at the teleconference. Mr Sarkis’ solicitors would then have the opportunity to cross-examine the deponents in relation to the allegations and any potential prejudice. Notwithstanding this submission, having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Patrick Corporation Ltd’s solicitors 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which states:
“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.
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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
With regard to section 352(2), the whole amount of weekly compensation awarded by the Arbitrator - $580.30 per week since 13 January 2003 and continuing – is in issue. Thus, I am satisfied that the threshold stipulated by section 352(2) has been met and I therefore grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Patrick Corporation Ltd has annexed two company searches to its ‘Appeal Against Decision of Arbitrator’ that have not previously been in evidence. These are relevant to its contention that Patrick Corporation Ltd was not the correct Respondent in the proceedings before the Arbitrator. Mr Sarkis’ solicitors have annexed to their submissions in reply a copy of documents from the previous Compensation Court of NSW proceedings in this matter together with an Australian Business Register search. These, too, are relevant to the correct name of the Respondent in the proceedings before the Arbitrator. Both sets of additional documents will be admitted since the name of the Respondent was not in issue in the proceedings before the Arbitrator, and because the documents are of probative value and, if not admitted, there could be an injustice to the party seeking their admission.
Mr Sarkis’ solicitors also provided copies of two letters. The first letter to QBE dated 22 March 2004 concerns QBE’s non-compliance, and was in evidence before the Arbitrator. The second letter, dated 15 April 2004, is addressed to “The Proper Officer, Patrick Corporation Pty Ltd”, notes the company’s compliance with the ‘Direction for Production’ of documents, but seeks details of the earnings of two comparable employees to Mr Sarkis. The second letter, which does not appear to have been in evidence before the Arbitrator, will be admitted as it also seems to be of probative value in terms of notice to Mr Sarkis’ employer of the forthcoming Commission proceedings.
SUBMISSIONS
In their submissions, Patrick Corporation Ltd’s solicitors stated that Patrick Corporation Pty Ltd is not a legal entity. Their instructions, which were received on 3 May 2004, were to act on behalf of Patrick Corporation Ltd in respect of this matter. Their office was not aware that the matter had been listed for teleconference on 30 April 2004. Their office:
“had been provided with a copy of a Refusal to make order for Application for Interim Payment Direction dated 20 January 2004. We note that this application nominates Patrick Auto Care Pty Ltd as the employer.”
Patrick Corporation Ltd’s solicitors submitted that the pleadings were defective and there was no evidence before the Commission “which entitled the Arbitrator to make an order against the respondent as employer”. In their supplementary submissions, they submitted that their client was denied procedural fairness because it was unable to put its case to the Commission.
Mr Sarkis’ solicitors drew attention to the fact that in previous proceedings in the Compensation Court the Respondent filed an answer alleging that the relevant legal entity is Patrick Stevedores Holdings (NSW) Pty Ltd. Mr Sarkis’ solicitors state that:
“the Rules do not provide for the payment of a company search to be undertaken and the Applicant herein relied on a business names search on the Australian Business Register. When no result was obtained from searching the name Patrick Autocare Pty Ltd a search was undertaken from the name Patrick and a search came back with Patrick Corporation Pty Ltd of the same registered address.”
Mr Sarkis’ solicitors noted that they had written to the Respondent’s solicitors in relation to the section 40 claim, were informed by those solicitors that they were not instructed to act, and that all further correspondence should be directed to the insurer (letter of 19 August 2003 appended to the ‘Application to Resolve a Dispute’).
Mr Sarkis’ solicitors submitted further that there had been no denial of natural justice because the Respondent had been represented at the teleconference by QBE’s representative. If there was any denial of natural justice it was to Mr Sarkis as a result of QBE’s conduct in relation to his weekly payments.
Mr Sarkis’ solicitors drew attention to their correspondence sent to Patrick Corporation Pty Ltd at the Hickson Road address (see paragraph 27 below), and noted that the Respondent has failed to provide any explanation as to why it had not instructed solicitors prior to the teleconference.
EVIDENCE
The two company searches provided by Patrick Corporation Ltd’s solicitors - extracts from the Australian Companies and Securities Commission (‘ASIC’) online database – are for Patrick Corporation Ltd and Patrick Autocare Pty Ltd. Although Patrick Corporation Ltd is incorporated in the Australian Capital Territory and its registered office is in Canberra, its principal place of business is at Lot 3 Pier 8/9, 23 Hickson Road, Sydney. Although Patrick Autocare Pty Ltd is incorporated in Victoria, its registered office is at the same address as Patrick Corporation’s principal place of business in Sydney. The company secretary of the two companies is the same person, there is one director common to both companies, and Patrick Corporation Ltd is recorded as Patrick Autocare Pty Ltd’s “ultimate holding company”.
The Compensation Court documents, copies of which were provided by Mr Sarkis’ solicitors, were filed in the earlier Compensation Court proceedings between the parties in this matter. They comprise the ‘Answer by the Respondent’ to Mr Sarkis’ claim for workers compensation, nominating the respondent in those proceedings as Patrick Stevedores Holdings (NSW) Pty Ltd, with their solicitors being the same as those acting for Patrick Corporation Ltd in the current proceedings.
Mr Sarkis’ solicitors attached a copy of the result of the search they conducted on the Australian Business Register. In fact, the search result is for Patrick Corporation Ltd and not Patrick Corporation Pty Ltd (my emphasis) as claimed. Nevertheless, it was in the name Patrick Corporation Pty Ltd that Mr Sarkis’ solicitors sought, and the Commission issued, a ‘Direction for Production’ of documents on 21 January 2004, addressed to the Hickson Road premises. A similar ‘Direction for Production’ was sent to QBE on the same date.
Documents were produced in response to the ‘Direction for Production’ issued on 21 January 2004 addressed to Patrick Corporation Pty Ltd. On 9 March 2004, the Commission faxed ‘Access Orders’ in respect of the documents produced both to QBE and Mr Sarkis’ solicitors. By letter dated 22 March 2004, Mr Sarkis’ solicitors wrote to QBE noting that the Respondent had not lodged a ‘Reply’ to Mr Sarkis’ ‘Application to Resolve a Dispute’ by 11 February 2004 as required, nor had the Respondent produced the documents in relation to two comparable employees as required by the ‘Direction for Production’ issued on 21 January 2004. By letter dated 15 April 2004, Mr Sarkis’ solicitors wrote to the Proper Officer, Patrick Corporation Pty Ltd, at the Hickson Road address, noting that the documents produced in response to the Direction “did not include the earnings of two comparable employees” and asking that it comply with its obligation under the Direction to do so as soon as possible.
On 19 April 2004, the Commission sent a ‘Notice of Commencement of Proceedings’ to both Patrick Corporation Pty Ltd (at the Hickson Road address) and QBE, notifying them of the teleconference scheduled for 30 April, and stating that the “Respondent Insurer and/or its representative” must attend. On the day of the teleconference, telephone contact was made with QBE’s representative by the Commission but, as the Arbitrator records in her ‘Statement of Reasons’, QBE’s representative “said that she did not have carriage of the matter and had not had it for some months and had no instructions”. Her attempt to obtain instructions was unsuccessful.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Patrick Corporation Ltd must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Patrick Corporation Ltd submits that the issue in dispute in the appeal is a procedural one, namely that the Respondent named in the ‘Application to Resolve a Dispute’ was not Mr Sarkis’ employer. Mr Sarkis’ employer, Patrick Autocare Pty Ltd, was not aware of the teleconference and was, therefore, denied procedural fairness because it was unable to put its case.
Firstly, there is ample evidence that QBE was notified of the proceedings and failed to fulfill its responsibilities: it failed to answer the Commission’s Direction to Produce documents, it failed to respond to correspondence from Mr Sarkis’ solicitors, and it failed to instruct its representative in relation to the teleconference on 30 April 2004. Yet, I note that by letter dated 19 August 2003, Patrick Corporation Ltd’s solicitors, in response to a letter from Mr Sarkis’ solicitors, directed all further correspondence to QBE in relation to Mr Sarkis’ weekly payments.
In my opinion, Mr Sarkis’ solicitors explanation for naming Patrick Corporation Pty Ltd as the Respondent in the proceedings before the Commission is perfectly reasonable given the use of the name Patrick Stevedores Holdings (NSW) Pty Ltd by the Respondent’s solicitors in the Compensation Court proceedings. Given that Patrick Corporation Ltd is the ultimate holding company of Patrick Autocare Pty Ltd, that Patrick Corporation Ltd’s registered office is the same as Patrick Autocare Pty Ltd’s principal place of business, and that the company secretary of both companies (and it would seem their solicitor) is the same, notwithstanding that the two companies are separate legal entities, there was, in my opinion, constructive notification of the forthcoming Commission proceedings to Mr Sarkis’ employer. Thus, his employer should have taken whatever steps it deemed appropriate in relation to those proceedings but, in particular, so that the responsibilities of the employer under the legislation were fulfilled. I note that documents were produced in response to the ‘Direction for Production’ issued by the Commission to Patrick Corporation Pty Ltd, clearly indicating that Patrick Corporation Ltd was aware, and by implication, that Patrick Autocare Pty Ltd, Mr Sarkis’ employer, should have been aware of the Commission proceedings.
The Commission’s objectives stated in section 367(1) of the 1998 Act include paragraph “(c) to provide a timely service ensuring that workers’ entitlements are paid promptly”. In terms of proceedings before the Commission, section 354(7) states:
“(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.”
In this matter, there was a total lack of co-operation from QBE, and no effort made by Patrick Corporation Ltd to amend the record in relation to the correct naming of Mr Sarkis’ employer when it was clearly in a position to do so. When there was no appearance by Mr Sarkis’ employer at the teleconference conducted by the Arbitrator, and with QBE’s representative contending that she was without instructions, in my opinion, the Arbitrator did not make an error of law when she decided to make orders in favour of Mr Sarkis including, in particular, to make an order in terms of the weekly compensation claimed. I do not accept that Patrick Corporation Ltd or Mr Sarkis’ employer were denied procedural fairness. What occurred was the product of their and QBE’s failure to keep abreast of the proceedings initiated by Mr Sarkis in relation to his claimed weekly compensation benefits.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs as agreed or assessed.
OTHER
I note there was a typographical error in the Certificate of Determination and accompanying Statement of Reasons with respect to the award of weekly payments, in so far as the specified amount clearly should have been $580.30 per week, the amount claimed by Mr Sarkis, and not $180.30 per week as stated. It is therefore appropriate that I refer the Certificate of Determination and accompanying Statement of Reasons to the Registrar of the Commission who, pursuant to section 294(3) of the 1998 Act, may issue a replacement Certificate or Statement to correct the error if satisfied that the issued Certificate or Statement contains an obvious error.
Robin Handley
Acting Deputy President
8 June 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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