Piening-Cochrane v P L and M R Wilde trading as Wilde Earthmoving
[2006] NSWWCCPD 22
•20 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Piening-Cochrane v P L and M R Wilde trading as Wilde Earthmoving [2006] NSWWCCPD 22
APPELLANT: Terrence Piening-Cochrane
RESPONDENT: P L and M R Wilde trading as Wilde Earthmoving
INSURER:Vero Workers Compensation (NSW) Ltd
FILE NUMBER: WCC2879-05
DATE OF ARBITRATOR’S DECISION: 21 October 2005
DATE OF APPEAL DECISION: 20 February 2006
SUBJECT MATTER OF DECISION: Leave to appeal; rule 77 Workers Compensation Commission rules 2003; section 40 Workers Compensation Act 1987; errors of fact and discretion based on the evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Self represented
Respondent: Moray & Agnew, Solicitors
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 21 October 2005, is refused.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Mr Terrence Richard Piening-Cochrane, the self-represented Appellant, was employed by P P L & M R Wilde t/as Wilde Earthmoving (‘Wilde Earthmoving’), the Respondent, from approximately 2001 until 9 March 2004. Mr Piening-Cochrane was employed as a labourer.
Mr Piening-Cochrane claims to have suffered an injury to his back on 14 February 2003 when the seat mechanism failed on the scraper that he was using. He claims that he experienced a further injury to his back, right shoulder, right hips and legs on 1 and 2 September 2003 while stacking a large number of bricks. Mr Piening-Cochrane made a further claim in relation to pain in his back, right hip and right shoulder as a result of the nature and conditions of his employment with Wilde Earthmoving from 2001 until 9 March 2004.
On 7 December 2004 the Insurer, Vero Workers Compensation (NSW) Ltd (‘Vero’), informed Mr Piening-Cochrane that it denied liability for the claim lodged by him for weekly benefits on the ground that his incapacity was not due to a work related injury.
On 24 February 2005 Mr Piening-Cochrane lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), claiming weekly benefits from 17 March 2004 to 31 March 2004 at $720 per week, and from 1 April 2004 to date and continuing at $731.40 per week.
The parties agreed at the outset of the proceedings before the Arbitrator that Mr Piening-Cochrane’s weekly earnings but for the injury, would have been $950 per week and the maximum rate payable under section 37(2) is $519.30 per week.
Injury was in dispute before the Arbitrator, who identified the issues to be determined by him, as set out in paragraph 7 of his ‘Statement of Reasons for Decision’ (‘Reasons’) and reproduced at paragraph 11, below.
Mr Piening-Cochrane was successful in obtaining an award in his favour, on 21 October 2005. The award is reproduced at paragraph 10, below.
Mr Piening-Cochrane was legally represented at this point in time, and was represented at all times during the proceedings before the Arbitrator.
On 5 December 2005, Mr Piening-Cochrane filed in the Commission, an ‘Appeal against Decision of Arbitrator’. At this time he had dispensed with the services of his legal representatives. He apparently prepared the appeal documents and is self-represented in this appeal. He has submitted correspondence outlining difficulties that he claims to have experienced with his Solicitors. I note that the Solicitors wrote to him on 22 November 2005 confirming their previous oral advice that it would be in his interests to instruct another law firm to act on his behalf, advising him that, “you have 28 days to appeal the determination made by the Workers Compensation Commission on 21 October 2005.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 October 2005 records the Arbitrator’s determination as follows:
“1.That the Respondent pay the Applicant the sum of $190 per week from 7 March 2004 to date and continuing pursuant to s40 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
The issues in dispute before the Arbitrator, as set out in paragraph 7 of his Reasons, were as follows:
·“Was the Applicant’s employment a substantial contributing factor to his alleged injury? (the 1987 Act s 9A)
·Was the Applicant totally or partially incapacitated for work as a result of his injuries? (the 1987Act s 33)
·For what period was the Applicant totally incapacitated? (the 1987 Act ss 36 and 37)
·For what period was the Applicant partially incapacitated? (the 1987 Act s 40)
·In respect of any period of partial incapacity for work:
(a) what is the weekly amount which the Applicant would probably have been earning but for the injury had he continued to be employed in the same or comparable employment? (the 1987 Act ss 40(2)(a), 42, 43)
(b) what is the average weekly amount the Applicant is earning or would be able to earn in some suitable employment from time to time after the injury? (the 1987 Act ss 40(2)(b), 40(3), 42, 43, 43A (definition))
(c) did the Applicant seek suitable employment during any period of partial incapacity for work? (the 1987 Act ss 38, 38A and 52A)”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)Whether leave to appeal should be granted, and
(2)Whether the Arbitrator made errors of fact and discretion, based on the evidence.
While Mr Piening-Cochrane indicates that he wishes to appeal the outcome of the
Arbitrator’s decision, he does not say in his appeal documents what in his view, the
outcome ought to be or what orders should be made. Presumably, he seeks an award of
of weekly compensation at a higher rate than that awarded by the Arbitrator. Mr Piening-
Cochrane tenders the following documents as fresh evidence for the purposes of the appeal:
·letter to him dated 5 March 2004 from Vero;
·photocopies of his motor vehicle driver licence, business card of Peter Denovan, Job Placement Officer, Ada Maughan & Associates, his Job Network Job Seeker Card, and his Indigenous Employment Policy Wage Assistance Job Seeker Card, and
·medical report from Dr P Endrey-Walder as to permanent impairment, dated 19 February 2004, addressed to McCabe Partners, Lawyers.
In his submissions on appeal, Mr Piening-Cochrane canvasses and takes issue with the Arbitrator’s interpretation of, and findings on, the evidence in relation to the matters set out in paragraphs 47, 50, 53, 54, 57, 59, 60, 61 and 62 of the Reasons. Essentially, he is providing his viewpoint as to the evidence that was before the Arbitrator and questioning the way in which the Arbitrator dealt with some of it. He also makes comment in response to the Arbitrator’s view that the evidence that was put forward by him is lacking in certain respects, and comments as to other observations made and conclusions drawn by, the Arbitrator. While he is obviously not appealing the fact of the Arbitrator’s award, he is endeavouring to “correct the record” and apparently, is appealing the quantum.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
The parties have made no submissions as to whether the appeal should be determined on the papers. However, Mr Piening-Cochrane resides at Moree and I glean from a reading of the appeal documents that he has a distinct expectation that the matter will be determined on the papers. Having regard to the submissions, evidence and documents that are before me, 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.
ABSENCE OF LEGAL REPRESENTATION IN THE APPEAL
While in the circumstances, Mr Piening-Cochrane does not appear before me in a physical sense, I am mindful of the obligations of the Commission in dealing with an unrepresented worker in proceedings before the Commission. An unrepresented person will ordinarily be at a disadvantage because of his or her lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSW CA 126 June 1986 (‘Rjaski’)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski: Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski). (See also, Smith v New South Wales Police Service [2004] NSW WCC PD 77, and in particular, Reisner v Bratt [2004] NSWCA 22, in which the relevant issues in dealing with unrepresented litigants were discussed).
There is nothing on the Commission file to indicate that Mr Piening-Cochrane sought any particular advice from the Registrar in relation to this matter, apart from seeking guidance as to how he should go about preparing and lodging the appeal, and the process that would follow. This guidance was given, and the Registrar’s staff oversaw the process for service of documents, in order to ensure that it was carried out properly.
I am satisfied that the Commission has provided assistance to Mr Piening-Cochrane, to the extent that it was required by him, but without providing an advantage to him over Wilde Earthmoving.
LEAVE TO APPEAL
Relevant legislation and case law
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 amount of compensation at issue on appeal exceeds $5,000, and the Arbitrator made an award of compensation in the decision appealed against. It would appear that the amount of compensation at issue in the appeal is at least 20% of the amount awarded in the decision appealed against. Consequently, sections 352(2)(a) and (b) of the 1998 Act are satisfied.
The appeal was lodged on 5 December 2005, some 45 days after the decision of the Arbitrator, set out in the ‘Certificate of Determination’ dated 21 October 2005. This is in breach of section 352 (4) of the 1998 Act which provides:
“ (4)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’) provides, in part:
“(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.”
Rule 77 further provides, in part:
“(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 to 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.”
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. Nevertheless, the issue has been the subject of a considerable amount of judicial consideration. Ultimately, the discretion must be exercised to ensure that justice between the parties is achieved (Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’); Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liquidation) (formerly SACS Group Pty Ltd (1993) 113 ALR 637).
In Gallo, McHugh J gave consideration to an application to extend time for the filing of a ‘Notice of Appeal’ in the High Court of Australia. He said, in part:
“The discretion to extend time is given for the sole purpose of enabling the court or
justice to do justice between the parties: Hughes v National Trustees Executors &
Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the
discretion can only be exercised in favour of an applicant upon proof that strict
compliance with the rules will work an injustice upon the applicant. In order to
determine whether the rules will work an injustice, it is necessary to have regard to
the history of the proceedings, the conduct of the parties, the nature of the litigation
and the consequences for the parties of the grant or refusal of the application for
extension of time: see Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR
86 at 92; Jess v Scott (1986) 12 FCR 187 at 194; 70 ALR 185. When the
application is for an extension of time in which to file an appeal, it is always
necessary to consider the prospects of the applicant succeeding in the appeal: see
Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson
(1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an
application that, upon the expiry of the time for appealing, the respondent has ‘a
vested right to retain the judgement’ unless the application is granted: Vilenius v
Heinegar (1962) 36 ALJR 200 at 201.”
These principles have been applied in a number of Commission appeal proceedings, including Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22; Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54; Uniting Care NSW.ACT t/as Uniting Care Caroona v Thomas [2004] NSW WCC PD 63, and more recently, Department of Education & Training v Mekhail [2006] NSW WCC PD 1.
Mr Piening-Cochrane’s submissions on the time for filing the appeal
Mr Piening-Cochrane submits that the delay in filing his appeal was caused by the breakdown in communications between himself and his Solicitors. He said that he left numerous messages for his Solicitor to call him, but to no avail. However, by letter dated 22 November 2005 the Solicitors referred to and confirmed previous advice given to Mr Piening-Cochrane that it would be in his interests to instruct another law firm, and that he had 28 days from the date of the Arbitrator’s decision to lodge an appeal. Mr Piening-Cochrane lodged a photocopy of the letter with his appeal. No other details of communications between Mr Piening-Cochrane and his Solicitors were given and no other information, other than the alleged failure by the Solicitors to return his telephone calls, was advanced.
Mr Piening-Cochrane also filed with his appeal, a typed statement dated 22 November 2005, from Michelle Prince and one from himself, dated 29 November 2005, in support of his alleged inability to obtain appropriate and timely responses from his Solicitors. He pointed out that the advice in the Solicitors’ letter that he had 28 days to appeal, “was 1 week late”. Mr Piening-Cochrane alleged that he had given instructions to secretarial staff employed by his Solicitor to lodge “appeals”, but this was not done.
There is nothing more on the Commission file that provides any background information or insight into the underlying cause of the apparent breakdown in communications between Mr Piening-Cochrane and his Solicitors. However, a reading of the Solicitors’ letter suggests that some discussions at least, had taken place.
Wilde Earthmoving’s submissions on the time for filing and dealing with the appeal
Wilde Earthmoving submits that “exceptional circumstances” as required by Rule 77(8) have not been demonstrated by Mr Piening-Cochrane. It submits that he was represented during the 28 day period following the decision. It further submits that the appeal is misconceived in any event “and so, in all the circumstances, the respondent submits that the Commission should decline to exercise the discretion to extend time.” It asserts that Mr Piening-Cochrane has provided no satisfactory explanation as to why the application was lodged out of time, nor any arguments in favour of granting an extension of time.
Wilde Earthmoving also submits that pursuant to section 352(5) of the 1998 Act, an appeal against a decision of an Arbitrator is to be by way of review of the decision appealed against. It submits that the Appellant must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error, but as this has not been demonstrated, the Presidential member should not revoke the Arbitrator’s decision. In conclusion, it is submitted that the Arbitrator determined the matter on the basis of all of the evidence before him; that there was a sufficient evidentiary basis for all findings; that adequate reasons were given for his decision, and that the decision of the Arbitrator should be confirmed.
Discussion and findings
Dealing first with the principles in Gallo, outlined above, and referring to the Commission file, the history of the proceedings in the Commission, up to the date of determination by the Arbitrator appears to have been unremarkable, and Mr Piening-Cochrane was legally represented at all times. He was formally legally represented for some time following the Arbitrator’s decision, but at some stage between that date and 22 November 2005, the relationship between him and his Solicitors broke down.
In terms of the conduct of the parties, Wilde Earthmoving bears no responsibility for what has occurred. Mr Piening-Cochrane was properly assisted by the Commission staff, when requested by him. He was informed formally by his former Solicitors, in the letter of 22 November 2005 that he had 28 days to appeal from the date of the Arbitrator’s decision. He lodged the appeal on 5 December 2005, well after the time for lodging the appeal had expired.
Mr Piening-Cochrane in fact succeeded before the Arbitrator in obtaining an award in his favour, for payment of workers compensation.
The consequences for him if leave to extend the period for filing of the appeal is denied, is that the determination and orders made in his favour by the Arbitrator on 21 October 2005, stand. The consequences for Wilde Earthmoving is that it is bound by the determination and the orders made.
Turning now to the prospects of success should leave to appeal be granted, I have reviewed the evidence and submissions made in this matter, both before the Arbitrator and in the appeal. In my view, it is highly unlikely that Mr Piening-Cochrane could succeed. The Arbitrator has made what appear to be reasonable findings and a determination on the evidence, attaching appropriate weight to the evidence that was before him. Mr Piening-Cochrane does not demonstrate that the decision is affected by some error of law, fact or discretion. Such error must be demonstrated before a Presidential member can interfere with an Arbitrator’s decision (Allesch v Maunz [2000] 203 CLR 172; King Island Company Ltd v Deery [2005] NSW WCC PD 1; Regional Public Tenants Council Inc v Grant [2005] NSW WCC PD 2; Mayne Health Group v Sandford [2002] NSW WCC PD 6). Mr Piening-Cochrane for the most part, simply disagrees with the Arbitrator, mostly but not entirely on matters of detail rather than substance. He also comments on the weight of the evidence and the regard that the Arbitrator had to it, but again for the most part, he disagrees with the Arbitrator without demonstrating error. The fresh documentary evidence that he wishes to put forward does not appear to advance his case in any material way. His prospects in disturbing the Arbitrator’s award on appeal would appear to be quite minimal, should leave be granted.
Finally, I am also satisfied on what Mr Piening-Cochrane has put before me in this appeal, that the circumstances outlined by him are not exceptional as required by Rule 77(8), notwithstanding the sudden breakdown in communication between himself and his Solicitors. Some discussions had taken place between them, although the nature, extent and timing of those discussions are not revealed. Other options may have been available to him such as giving his Solicitors written or emailed instructions when he apparently could not make telephone contact, dealing direct with the Commission more promptly, or seeking alternative legal advice. In any event, the fact is that Mr Piening-Cochrane obtained an award of compensation in his favour. Even if the quantum is not acceptable to him, it cannot be said, “that to lose the right to seek leave to appeal would work demonstrable and substantial injustice” against him in this matter. This is all the more so, given that his prospects on appeal are not great, particularly as on a view of the evidence, there is little to suggest that the Arbitrator was not entitled to reach the decision that he made.
In all of the circumstances, I am not satisfied that Mr Piening-Cochrane has demonstrated exceptional circumstances or that he would suffer demonstrable and substantial injustice, if leave were to be refused, within the meaning of Rule 77(8). I find accordingly.
Having regard to the foregoing, Mr Piening-Cochrane’s application for extension of time to make the appeal should be refused.
DECISION
Leave to appeal the decision of the Arbitrator, dated 21 October 2005 is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
20 February 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.
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