Shoalwelding Pty Ltd v Magin
[2006] NSWWCCPD 75
•4 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Shoalwelding Pty Ltd v Magin [2006] NSWWCCPD 75
APPELLANT: Shoalwelding Pty Ltd
RESPONDENT: Bruce Magin
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC14929-04
DATE OF ARBITRATOR’S DECISION: 24 November 2004
DATE OF APPEAL DECISION: 4 May 2006
SUBJECT MATTER OF DECISION: Failure to file a Reply and attend Teleconference; procedural fairness.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal
Respondent: Nagle & Maguire, Solicitors
ORDERS MADE ON APPEAL: 1. Leave to appeal is refused.
2. The decision of the Arbitrator dated 24 November 2004 is confirmed.
BACKGROUND TO THE APPEAL
Bruce Magin (‘Mr Magin’) was employed by Shoalwelding Pty Ltd (‘Shoalwelding’) as a fitter. He claimed that he was injured at work on 22 October 2001 when his left elbow was struck by a slide beam.
He has remained off work since and has undergone a number of surgical procedures to repair a left elbow distal biceps tendon rupture.
He has received payments of weekly compensation at various rates pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) thereafter.
Mr Magin filed an ‘Application to Resolve a Dispute’ in the Commission on 6 August 2004 being matter number 12097-04 seeking permanent impairment/pain and suffering compensation in relation to the injury to his left arm.
I do not have the file in relation to that claim however, in an Affidavit sworn on 29 March 2005, Mr Magin’s solicitor claimed that Shoalwelding filed a ‘Reply’ and that its insurer was named as “QBE Workers Compensation (NSW) Limited, Locked Bag 32, Wollongong. NSW. 2500” and a contact person identified.
Those proceedings were listed for Teleconference on 3 November 2004. Both parties participated in that Teleconference and the proceedings ultimately resolved. Shoalwelding was represented by QBE Workers Compensation (NSW) Limited by its Sydney “In-House Legal Department” (‘QBE Sydney’).
On 12 November 2004, the Arbitrator in those proceedings issued a ‘Certificate of Determination – Consent Orders’ in the following terms:
“1. That these proceedings be discontinued and the requirement to file a Notice of the Discontinuance pursuant to Rule 74 is dispensed with.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed to the following:
(a) The Respondent shall pay to the Applicant:
i. $18,750.00 pursuant to s66 of the Workers Compensation Act 1987 for a 25% loss of use of the left arm at or above the elbow;
ii. $12,500.00 pursuant to s67 of the Workers Compensation Act 1987.”
Just prior to the filing of the Application, QBE through its Wollongong office (‘QBE Wollongong’) wrote to Mr Magin’s solicitor on 29 July 2004 advising that “… weekly benefits under Section 40 …” were to be reduced. On 11 August 2004, Mr Magin’s solicitor replied to that office as follows: “You are requested to urgently review the situation and make retrospective payments at the maximum statutory rate for s40.”
Mr Magin’s solicitor, in the Affidavit referred to earlier, claims that: “No reply was received to that letter …”
On 22 September 2004 Mr Magin filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 29 July 2003. That Application is the subject of this appeal. Mr Magin again nominated QBE Wollongong as the relevant insurer and the author of its letter of 29 July 2004 as the relevant contact person. A ‘Certificate of Service’ of that Application on both Shoalwelding and QBE Wollongong was completed on 6 October 2004 and registered with the Commission on 7 October 2004. No Reply was filed by Shoalwelding or QBE Wollongong.
The Commission wrote to all parties including QBE Wollongong (quoting QBE Wollongong’s claim number) on 2 November 2004 advising of a Teleconference scheduled for 24 November 2004.
At that Teleconference, there was no appearance by Shoalwelding or QBE Wollongong. Following the teleconference, the Arbitrator issued the following orders:
“ORDERS
This direction is issued pursuant to the Workers Compensation Commission Rules 2003.
ORDERS
1. Award for the Applicant pursuant to his claim under s40 WCA 1987, the Respondent to pay him the maximum award rate being $323.00 per week for [sic] 23 August 2004 and continuing.
2. The Respondent to pay the applicant’s costs as agreed or assessed.
Brief Reasons:
1. The Respondent has not filed a Reply to the Application.
2. The Applicant has filed a certificate of Service.
3. The Respondent was unavailable for the teleconference despite numerous attempts by Telstra to find someone at the respondent’s offices at the time of the teleconference to deal with the matter.
4. The Applicant appears to have a good claim.”
On 1 February 2005, Mr Magin’s solicitors again wrote to QBE Wollongong enclosing a copy of the Arbitrator’s “Award” set out above and noting that “…the Respondent was ordered to pay the Applicant weekly payments at the maximum rate … we note that the Applicant’s weekly payments have still not been made. Please attend to payment without further delay.”
On 14 February 2005, QBE Sydney wrote to the Commission seeking “Reconsideration of Direction dated 24 November 2004” stating that it was unaware of the Teleconference on 24 November 2004 and that it was first advised of the Arbitrator’s decision by letter dated 1 February 2005 from Mr Magin’s solicitors. QBE Sydney outlined its involvement in the earlier proceedings being No. 12097-04, and noted that on 24 November 2004, the date of the Teleconference, “The solicitors… were in their office … no attempts were made to ring the Respondent’s solicitors.”
QBE Sydney went on to state that “… the Applicant’s solicitors continued to write to the Respondent’s Insurer’s offices in Wollongong when it knew the Sydney office was defending the related proceedings.” QBE Sydney claimed that: “… the Respondent was denied procedural fairness …” essentially because Mr Magin’s solicitor apparently failed to advise the Arbitrator of the recently resolved related proceedings. QBE Sydney concluded that letter noting: “To protect its rights the Respondent will be filing an Application for Appeal against Decision of Arbitrator.”
On the following day, i.e, 15 February 2005, QBE Sydney then filed its appeal. That document was rejected by the Commission on a number of grounds, in particular, that it was out of time, and failed to attach submissions in support of an extension of time.
The appeal was resubmitted on 4 March 2005 and registered by the Commission on that date. On this occasion, the appeal contained a copy of the ‘reconsideration’ letter, an Affidavit by QBE Sydney’s solicitor sworn 15 February 2005 and included submissions dealing with the ‘on the papers’ issue.
QBE Sydney listed five grounds of appeal as follows:
“1. The Commission failed to give any or any proper reasons or adequate reasons;
2. The Commission had no power to make orders by way of “summary judgment” or “default judgment”;
3. The Commission had not been properly satisfied that the Appellant/Respondent had been served with the Application;
4. The Appellant/Respondent had been denied procedural fairness;
5. The second order [costs] was made contrary to the provisions of schedule 6 clause 2(1) of the Workers Compensation Regulations, 2003”.
On 30 March 2005, Mr Magin filed a “Notice of Opposition to Appeal’ which incorporated the Affidavit of Mr Magin’s solicitor sworn 29 March 2005 referred to previously and included lengthy submissions in reply.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) however, the appeal was filed more than two months after the date of the Arbitrator’s decision, in contravention of the requirements of section 352(4) of the 1998 Act.
QBE Sydney claims that it was only notified of the Arbitrator’s decision on 1 February 2005. Curiously, that ‘notification’ was by way of a letter from Mr Magin’s solicitor addressed to QBE Wollongong. Its appeal was then filed initially on 15 February 2005.
There is no explanation in the appeal documents as to why QBE Wollongong failed to file a Reply nor attend the Teleconference. The inference from QBE’s correspondence to the Commission by way of its ‘Reconsideration’ Application dated 14 February 2005 seems to be that because QBE Sydney was “… defending the related proceedings …”, Mr Magin’s solicitor ought to have assumed that it would also ‘defend’ the weekly payments claim and presumably correspond with QBE Sydney accordingly.
However, as Mr Magin’s solicitor points out in his Affidavit of 29 March 2005, QBE Wollongong was named as the relevant insurer in both proceedings. Moreover, subsequent correspondence from Mr Magin’s solicitors relating to registration of a section 66A agreement under the 1987 Act following settlement of proceedings No. 12097-04, was also addressed to QBE Wollongong.
The Application for ‘Permanent Impairment Compensation’ was completed by Mr Magin’s solicitor on 23 July 2004, forwarded to the Commission and registered by it on 6 August 2004. It was not until 29 July 2004 that QBE Wollongong wrote to Mr Magin’s solicitor advising of the reduction in weekly benefits. Further correspondence ensued with QBE Wollongong before the Application for weekly benefits was eventually filed on 22 September 2004. Clearly at the time the earlier proceedings were brought, there was no issue in relation to any claim for weekly benefits compensation. Subsequently, the two proceedings to some extent overlapped.
It may well be that QBE Wollongong assumed that QBE Sydney would ‘defend’ the weekly benefits claim at the Teleconference on 24 November 2004 but there is simply no evidence before me to explain the circumstances as to why QBE Wollongong failed to attend that Teleconference. Mr Magin’s solicitor in his Affidavit of 29 March 2005 says that: “At no stage was I aware that the same solicitor was acting in relation to the subject claim for weekly payments being matter No. 14929-04.” Moreover, as he quite properly points out, “In my experience, it is common for other solicitors to be allocated to different claims arising between the same parties. Some matters are held in-house by certain insurers and other matters are briefed to legal firms.”
In any event, as I said earlier, all correspondence from Mr Magin’s solicitor was directed to QBE Wollongong.
The issue of a failure to file a Reply and procedural fairness was considered at length by Deputy President Fleming in Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCC PD8 (‘Carrette’s case’). The decision ultimately turned on an unrelated jurisdictional point, but the circumstances were similar. At paragraph 31, she noted:
“The Appellant Employer submits that its failure to lodge a Reply to the application, to file evidence, and to respond to the Commission’s correspondence was due to three factors, namely; that the insurer was the subject of a take-over and restructure at the time and as a result a number of different claims officers had conduct of the matter; that the same parties were involved in two proceedings in the Commission and this led to confusion; and, that the particular claims officer responsible for the conduct of the teleconference was ill at the relevant time. The Appellant Employer submits that its failures would more appropriately be cured by ‘costs’ rather than the proceedings being determined in its absence.”
Deputy President Fleming went on to note at paragraph 39:
“While the Commission is bound to give the parties an opportunity to present his or her case, it cannot force a party to take that opportunity (Sullivan v Deputy of Transport (1978) 28ALR 323). Where, for example, an Arbitrator is satisfied that a Respondent is on notice of the application and aware that the matter is to be heard or determined on a particular date, it is not a denial of procedural fairness to proceed to make a determination in the matter.”
Further, at paragraphs 41 and 42, she stated:
“In this matter I am satisfied that the Appellant Employer was properly served with the application, was notified of the time and date of the telephone conference and was advised, in writing, of the directions that were made at that conference. The letter sent to the Insurer … gave the insurer ample opportunity to either comply with the Arbitrator’s directions to file submissions or to seek to have the matter relisted so that other directions could be made.
The submissions made by the Appellant, as to why it took no part in the proceedings before the Arbitrator, do not support a finding that it was denied procedural fairness.”
In the present case, I am satisfied that Shoalwelding and its insurer, QBE Wollongong, were properly served with the Application the subject of the appeal, and were notified of the time and date of the Teleconference, such that Shoalwelding had ample opportunity to either file a Reply or forward the matter to QBE Sydney if it so wished. Although her notes are brief, the Arbitrator records that attempts were made to contact a representative “of the Respondent”, and this is confirmed by Mr Magin’s solicitor in his Affidavit.
There is no adequate explanation in the appeal by QBE Sydney as to why QBE Wollongong failed to file a Reply nor to attend the Teleconference on 24 November 2004, and was therefore unaware of the outcome of that Teleconference. Similarly, there is no adequate explanation as to why QBE Sydney became aware of the outcome of the Teleconference in a letter from Mr Magin’s solicitor to QBE Wollongong dated 1 February 2005, but was unaware of earlier correspondence and service of documents on QBE Wollongong.
QBE Sydney’s submissions do not address this issue, but merely assert that Mr Magin’s solicitor should have informed the Arbitrator of the related proceedings and presumably, by so doing, then invited QBE Sydney to participate in the Teleconference.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) permits the Commission in “exceptional circumstances” to extend the time for making an appeal. No particular factors are identified in Rule 77(8) to guide the exercise of the discretion to extend time to lodge an appeal. Nonetheless, “exceptional circumstances” must be identified, such that to lose the right to seek leave to appeal would work demonstrable and substantial injustice. There is little evidence before me of any substantial injustice in circumstances where the parties agreed Mr Magin clearly had a significant injury to his left arm, and was in receipt of weekly benefits which had been reduced by QBE Wollongong.
Rule 77(9)(a) requires a party seeking an extension of time to give notice to the other party of its intention. There is no evidence in the present case that this Rule has been complied with.
Rule 77(9)(b) also requires a party seeking the extension of time to provide full details of the arguments to be put in favour of granting an extension.
The only argument identified is that QBE Sydney was unaware of the outcome of proceedings which apparently involved QBE Wollongong.
CONCLUSION
1. Shoalwelding's submissions on appeal do not adequately explain why the appeal was lodged out of time nor do they identify any argument in favour of granting an extension of time as is required by the Rules.
2.Its failure to take part in proceedings before the Arbitrator does not amount to a denial of procedural fairness as discussed in the decision of Deputy President Fleming in Carrette’s case, and there is no other basis identified to justify granting an extension of time.
DECISION
1. Leave to appeal is refused.
2. The decision of the Arbitrator dated 24 November 2004 is confirmed.
COSTS
I order Shoalwelding to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
4 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
1
0
0