Rapley v Briggs t/as Gordon Briggs Drilling
[2004] NSWWCCPD 35
•23 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rapley v Gordon Noel Briggins t/as Gordon Briggs Drilling [2004] NSW WCC PD 35
APPELLANT: Stephen James Rapley
RESPONDENT: Gordon Noel Briggins t/as Gordon Briggs Drilling
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 7163-2003
DATE OF ARBITRATOR’S DECISION: 23 October 2003
DATE OF APPEAL DECISION: 23 June 2004
SUBJECT MATTER OF DECISION: Appeal filed out of time.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:Determined On the Papers
REPRESENTATION: Appellant: Higgins & Higgins Lawyers
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: Leave to Appeal is refused.
THE APPEAL
On 24 December 2003 Stephen James Rapley (‘the Appellant Worker/Mr Rapley’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 23 October 2003.
The Respondent to the Appeal is Gordon Noel Briggins t/as Gordon Briggs Drilling (‘the Respondent Employer’) and the relevant insurer is Allianz Australia Workers Compensation (NSW) Ltd. The Respondent Employer filed a Reply to the Appeal on 7 January 2004.
The appeal relates to an ‘Application to Resolve a Dispute’ lodged by Mr Rapley, which alleges that he sustained injuries to his back and right arm due to the nature and conditions of his employment with the Respondent Employer. The Application claims payments of weekly compensation from 26 January 1998 to date and continuing, $56,500.00 for permanent impairment/pain and suffering and a general order for medical expenses.
Mr Rapley had previously obtained a judgment in the Compensation Court for a closed period of weekly compensation from 1 February 1998 to 29 June 1998 and ongoing medical expenses.
The Certificate of Determination, and attached ‘Brief Statement of Reasons’ records the Arbitrator’s orders as follows:
The Commission does not have jurisdiction to hear the Application as the Applicant’s claim has already been the subject of a decision of the Compensation Court. Therefore I order that the Application be struck out.
This written statement purports to incorporate the reasons given orally by reference to “[a] sound recording of the reasons given is available to the parties”. The Registrar advises that the Commission is unable to produce a sound recording of the arbitration proceedings.
The matter was referred to me for review on 22 June 2004.
ON THE PAPERS REVIEW
Section 354(6) of the WorkplaceInjury 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.
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.
ISSUES IN DISPUTE
The first issue in dispute in the appeal is whether or not the appeal should be allowed, as it was filed out of time.
If leave is granted to file the appeal out of time, the substantive issue in dispute is whether the Arbitrator erred in finding that she had no jurisdiction to hear the application.
LEAVE TO APPEAL OUT OF TIME
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 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.
(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.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s orders were issued to the parties in a Certificate of Determination dated 23 October 2003. The appeal was not lodged within 28 days of that decision, i.e. on or before 20 November 2003, in compliance with section 352(4) of the 1998 Act. The appeal was lodged on 24 December 2003, 62 days after the decision was made.
Rules 77(8) and (9) of the Workers Compensation Rules 2003 (‘the Rules’) effective from 1 July 2003, relevantly provides that:
(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 b eput in favour of granting the extension.
The Appellant Worker’s submissions on the issue of time are, in total, as follows:
The Arbitrator found no jurisdiction in the Workers Compensation Commission and the respondent suggested a possible jurisdiction in the Workers Compensation Court hence we applied by motion to the Compensation Court. His Honour initially struck the matter out for the above reasons on 11 November 2003 but then re-listed it at his own motion for 4 December 2003 for further argument and/or submissions in relation to costs on jurisdiction.
As the parties agreed to make no further submissions in that regard that date was vacated on 3 December 2003.
The Respondent Employer submitted that the Appellant Worker has not complied with Rule 77(9), in particular that the Appellant made no submissions on the late filing of the appeal, did not address ‘exceptional circumstances’, did not give notice of its intention to seek an extension and did not lodge an application for an extension of time with the appeal documents.
DISCUSSION AND FINDINGS ON LEAVE
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for an appeal against the decision of an Arbitrator to be filed in the Commission. Ultimately the discretion must be exercised to ensure that ‘justice between the parties’ is achieved (Gallo v Dawson [1990] 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd (in Liq) (formerly SACS Group Pty Ltd [1993] 113 ALR 637).
As I noted in Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22 the courts have frequently considered this issue. Guidance as to the factors that a Court or Tribunal should have regard to when exercising the discretion to extend time is found in the leading case of Gallo v Dawson (1990) 93 ALR 479. In that case Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court and set out the following guiding principles:
. . . 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 5; 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.
Applying these principles to this matter I find as follows:
The Appellant Worker has not properly addressed the issue of the ‘exceptional circumstances’ that would lead to leave being granted to file the appeal out of time. The Appellant Worker relies upon the fact that it pursued an application to the Compensation Court, following the Arbitrator’s decision. However the Court heard and dismissed that application on 11 November 2003. This was well within the 28 days for the filing of an appeal against the Arbitrator’s decision. There is no reason given as to why the appeal was not filed immediately following the unsuccessful application to the Court.
The nature of proceedings in the Commission is in accordance with the Commission’s statutory objectives (section 367 of the 1998 Act) to provide a fair, cost effective and timely resolution of workers compensation disputes. A telephone conference and a face- to-face conciliation and arbitration were held with both parties legally represented. The issue for determination by the Arbitrator was jurisdiction, specifically, whether the Compensation Court had previously determined precisely the same claim as was now before the Arbitrator. A copy of the application made to the Compensation Court, the evidence that was before the Court, a transcript of the proceedings in the Compensation Court and Justice Campbell’s decision were before the Arbitrator. I am satisfied the Appellant Worker had ample opportunity to argue his case before the Arbitrator, and to file all relevant evidence in relation to the claim.
I accept that the Appellant Worker will be disadvantaged, to the extent only that he will be unable to pursue the appeal. However, in the context of the fact that the issues in dispute have been on foot for some time and have been thoroughly canvassed before the Arbitrator, this disadvantage is outweighed by the disadvantage to the Respondent Employer in allowing the appeal to proceed. The substance of the dispute has been litigated in both the Compensation Court and, now, in the Commission. The Respondent Employer is entitled to rely upon the Arbitrator’s order.
I have also considered the prospects of the Appellant Worker succeeding on the appeal. The Appellant Worker relies upon new evidence, in the form of an MRI scan taken in 2002, to support his claim that he injured his neck, back and right arm at work in 1998, or as a result of the nature and conditions of his employment prior to that date. The facts disclose that the worker ceased work for the employer following his injury in 1998. The submission of the MRI scan, some four years after the worker ceased work, raises significant issues of causation that must be proven for the claim to succeed. The claim is not one of aggravation of an existing injury. The same injury was the subject of expert medical evidence in the Compensation Court and an MRI scan could have been filed in those proceedings. On balance, I am not satisfied that the prospects of success are such that leave to appeal out of time should be granted.
I have read the transcript of Justice Campbell’s decision on the Appellant Worker’s motion to re-open the matter in the Compensation Court (transcript of 11 November 2003). I do not, with respect, appreciate where the Arbitrator has misconceived what was being asked of her. The matter before the Arbitrator was not an application to reconsider a previous decision of the Commission pursuant to section 350 of the 1998 Act. The Compensation Court Repeal Act 2002 (Section 7) and the Compensation Court Repeal (Transitional) Regulation 2003 provide for the transfer of jurisdiction from the Compensation Court to the Commission in certain circumstances. However there is no legislative provision that allows a Commission Arbitrator to ‘reconsider’ a decision of the Compensation Court.
Taking all of the above matters into consideration, I am not satisfied that I should exercise discretion to grant the Appellant Worker leave to file the appeal out of time.
DECISION
Leave to appeal is refused
Dr Gabriel Fleming
Acting President
23 June 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE