Power Stream Cleaning Pty Limited v Hassani
[2005] NSWWCCPD 117
•11 October 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Power Stream Cleaning Pty Limited v Khadigeh Hassani [2005] NSW WCC
PD 117
APPELLANT: Power Stream Cleaning Pty Limited
RESPONDENT: Khadigeh Hassani
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC1016-05
DATE OF ARBITRATOR’S DECISION: 1 April 2005
DATE OF APPEAL DECISION: 11 October 2005
SUBJECT MATTER OF DECISION: Leave to appeal, appeal filed out of time; refusal by Arbitrator to allow a late Reply.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: A O Ellison & Co
Respondent: Brydens Law Office
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator dated 1 April 2005 is refused.
BACKGROUND TO THE APPEAL
On 24 June 2005 Power Stream Cleaning Pty Limited sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 April 2005. An earlier, defective appeal had been lodged on 15 June 2005 and returned on 16 June 2005.
Allianz Australia Workers Compensation (NSW) Limited is the relevant workers compensation insurer. It acted for and on behalf of the employer in the Commission proceedings.
The Respondent to the Appeal is Khadigeh Hassani, who was employed by Power Stream Cleaning Pty Limited as a cleaner.
The appeal is clearly both out of time and interlocutory in nature. It was referred to me for review on 7 October 2005.
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 (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· Should leave to appeal be granted?
· Did the Arbitrator err in refusing to allow the Insurer to file a Reply to Ms Hassani’s application?
If leave to appeal is refused it will be unnecessary to consider the second issue.
JURISDICTION
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’).
In this matter I am satisfied that:
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act) being the amount of compensation claimed by Ms Hassani,
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
However the appeal was not filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
SHOULD LEAVE TO APPEAL BE GRANTED?
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that:
“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.”
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator. In Gallo v Dawson (1990) 93 ALR 479, Justice McHugh considered an application to extend time for the filing of a notice of appeal in the High Court. He set out a number of factors that are relevant to the exercise of the discretion to extend time, considered on the facts in each case. These include:
(i)the history of the proceedings,
(ii)the conduct of the parties,
(iii)the nature of the litigation,
(iv)the consequences for the parties of the grant or refusal of the application for extension of time,
(v)the prospects of the applicant succeeding in the appeal, and
(vi)the respondent’s right, after the expiry of the time to appeal, to rely upon the decision made.
Ultimately these factors must be weighed to ensure that the discretion to extend time is exercised to ensure that justice between the parties is achieved and that strict compliance with the Rules does not result in an injustice to the Appellant.
The first issue to be determined is whether leave to appeal should be granted. The appeal was first filed (on 15 June 2005), approximately six weeks after the 28 days for appeal had passed (i.e. 29 April 2005); section 352(4) of the 1998 Act. It was rejected by the Commission and returned to the Insurer because it did not address the matters required of the relevant Practice Direction (No. 6).
It was re-filed, addressing the relevant matters, on 24 June 2005, some eleven and a half weeks after the decision appealed against was made. The appeal was served on the worker on 30 June 2005.
The Insurer submits that leave to appeal should be granted for the following reasons:
· The ‘Application to Resolve a Dispute’ was not received by the Insurer until after the telephone conference on 1 April 2005.
· The Reply and documents relied upon by the Insurer were filed on 6 April 2005, under cover of an ‘Application to Admit Late Documents’.
The Insurer wrote to the Commission on 15 April 2005 and 4 May 2005 requesting the matter be re-listed before the Arbitrator for reconsideration of the decision to refuse to admit the Reply. The Insurer complains that no reply was received to this correspondence. This is not surprising as the matter had been referred to an Approved Medical Specialist (‘AMS’) on 4 April 2005 and by letter of 6 April 2005 the parties had been advised of the medical appointment.
The Insurer submits that the lodging of the appeal was delayed in the expectation that the correspondence asking the Arbitrator to reconsider the decision to refuse to allow the admission of the late Reply was to be put before the Arbitrator. The Commission file records that this correspondence and the request was put before the Arbitrator on 10 May 2005, however there is no record of the Arbitrator taking any action in relation to it. The Insurer argues that the delay in filing the appeal was occasioned by it waiting to have the matter relisted before the Arbitrator.
In my view this is not an acceptable reason for the delay of nearly six weeks in filing the appeal. The Insurer was legally represented and thus should have known that time limits apply to the filing of an appeal. Having not had a response to its request for reconsideration from the Commission, it was incumbent upon the Insurer’s legal representative to lodge an appeal before the closure of the appeal period on 29 April 2005. A request for an Arbitrator to reconsider a decision does not amount to an application for leave to appeal against the decision of an Arbitrator and may not have the same result. Although the Arbitrator did not, in fact, reconsider the decision, it was equally likely that the decision would be affirmed and therefore the appeal would remain out of time. The Insurer waited a further six weeks from the date of its latest correspondence with the Commission (4 May 2005) before in fact filing the appeal (first, defectively, on 15 June 2005 and then properly on 24 June 2005).
The history of these proceedings does not reflect well on the conduct of the Insurer. As Ms Hassani submits, the Insurer was on notice of the claim from October 2003. It had notice of the application to the Commission and of the telephone conference, at which it was represented by an officer of the company. The Insurer was served with the application on 27 January 2005 but did not act to instruct a legal representative until after the telephone conference on 1 April 2005. This is in large part the ground upon which it seeks leave to appeal and also seeks to have leave granted to admit the late Reply. The fact that the Insurer did not instruct legal representatives until this late stage is not, in my view, a sufficient reason to grant either of these requests.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes. In the time that has passed since the Arbitrator’s decision Ms Hassani had been examined by an AMS, a Medical Assessment Certificate had been issued and Ms Hassani has lodged an appeal to a Medical Appeal Panel. On 6 June a further telephone conference was listed to resolve any outstanding issues post the Medical Assessment Certificate. This was adjourned following the filing of the appeal on 15 June 2005.
Ms Hassani is entitled to rely upon the outcome of referral to the AMS and to be able to pursue any rights of appeal in relation to the Medical Assessment Certificate. If leave were now granted to extend time for the filing of this appeal the result could be that the AMS process would need to be repeated to allow the medical reports contained in the late Reply to be referred to the AMS. This would likely mean that Ms Hassani would have to be re-examined by the AMS and that further delay in the determination of her dispute would occur.
In considering the prospects of the Insurer succeeding in the appeal, I am not satisfied that leave should be granted to extend time. To succeed on the substantive issues in dispute in the appeal the Insurer must demonstrate that the Arbitrator’s decision to refuse to allow the admission of the late Reply was affected by legal, factual or discretionary error. The Arbitrator’s decision appears consistent with the Rules of the Commission and with its objectives (section 367 of the 1998 Act). It is not disputed that the Insurer was served with the original application to the Commission, nor that it was represented at the telephone conference. There is no explanation for why, given proof of service, the Insurer claims not to have received the original application prior to the telephone conference. In these circumstances I am not satisfied that the Insurer has been denied procedural fairness.
The consequences of refusing to grant the Insurer leave to appeal is that it must accept the orders made by the Arbitrator and will be unable to rely upon the filed Reply, and attached evidence. The matter now awaits referral to the Medical Appeal Panel and the Insurer has the opportunity to put submissions to that Panel in relation to the medical assessment that has been given by the AMS.
For the above reasons I am not satisfied that exceptional circumstances exist such that to lose the right to seek leave to appeal would work demonstrable and substantial injustice to Ms Hassani. Therefore leave is refused.
DECISION
Leave to appeal against the decision of the Arbitrator dated 1 April 2005 is refused.
COSTS
The parties have not made submissions on the question of the costs of the appeal.
Dr Gabriel Fleming
Deputy President
11 October 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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