South Eastern Sydney Area Health Service v Berry
[2006] NSWWCCPD 32
•1 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32
APPELLANT: South Eastern Sydney Area Health Service
RESPONDENT: Alison Berry
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC13049-04
DATE OF ARBITRATOR’S DECISION: 29 December 2004
DATE OF APPEAL DECISION: 1 March 2006
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time to make an appeal; Rule 77 of the Workers Compensation Commission Rules 2003; sections 36, 37 and 38 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Phillips Fox, Lawyers
Respondent: Lee, Peisley & Foley
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 29 December 2004, is refused.
The Appellant is ordered to pay the costs of this appeal.
APPEALS WERE LODGED BY EACH OF THE PARTIES AGAINST THE DECISION OF THE ARBITRATOR, DATED 29 DECEMBER 2004. BOTH APPEALS WERE DETERMINED TOGETHER. ALL RELEVANT DETAILS IN RELATION TO EACH APPEAL ARE SET OUT IN THE REASONS IN THIS APPEAL. FOR ORDERS MADE IN ALISON BERRY’S APPEAL, SEE Berry v South Eastern Sydney Area Health Service [2006] NSWWCCPD 33.
BACKGROUND TO THE APPEAL
Ms Alison Berry, the Respondent Worker in this appeal, was employed by the Appellant, Sydney Hospital and Sydney Eye Hospital, South Eastern Sydney Area Health Service (‘SESAHS’), from approximately 1994 until 13 February 2004. The Respondent Worker’s compensation insurer at all relevant times was GIO Workers Compensation (NSW) Limited (‘GIO/the Insurer’).
Ms Berry claims to have suffered a total incapacity for work and suffered an injury that arose out of and in the course of her employment with the SESAHS as a clinical sexual health counsellor. She claims an injury in the nature of a psychological injury, which occurred over a period from “2002 to 13 February 2004”.
Ms Berry notified SESAHS of the injury on 13 February 2004, and on the same day lodged a claim with GIO for weekly benefits.
On 10 March 2004 GIO advised Ms Berry that it denied liability for the claim for weekly benefits.
On 6 August 2004 Ms Berry lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The Application was registered with the Commission on 25 August 2004. The basis of her claim is that she suffered psychological injury arising from the “nature and conditions” of her employment with SESAHS, from January 2003 to 13 February 2004. She claims weekly benefits compensation and expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In due course, the matter was listed before an Arbitrator on 8 December 2004.
The Arbitrator determined the dispute on 29 December 2004.
On 21 February 2005 SESAHS lodged an ‘Appeal Against Decision of Arbitrator’ in the Commission, against that decision. The Appeal was registered with the Commission on 2 March 2005.
On 22 March 2005 Ms Berry lodged an ‘Opposition to Appeal Against Decision of Arbitrator’, in the Commission.
On 6 May 2005 Ms Berry also lodged an ‘Appeal Against Decision of Arbitrator’ and an ‘Application to Admit Late Documents’, against the decision of the Arbitrator dated 29 December 2004.
In summary, an appeal has been lodged by SESAHS, and a separate appeal has been lodged by Ms Berry. Each appeal is made against the same decision of the Arbitrator, dated 29 December 2004. Both appeals are dealt with together, as set out hereunder. For orders made in the appeal brought by Ms Berry see also, Berry v South Eastern Sydney Area Health Service [2006] NSWWCCPD 33.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 December 2004 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $1,196 from 13 February, 2004 to 13 August, 2004 under s36 of the Workers Compensation Act, 1987 (‘the 1987 Act’).
2.That the Respondent pay the Applicant weekly compensation at the rate of $1,196 from 14 August, 2004 to 20 October, 2004 under s37(1A) of the 1987 Act.
3.That the Respondent pay the Applicant weekly compensation at the rate of $956.80 from 21 October, 2004 to date under s38 of the 1987 Act.
4.That the Respondent pay the Applicant’s expenses under s60 of the 1987 Act on the production of accounts or receipts.
5.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)Whether leave to appeal should be granted to either party.
(2)Whether the Arbitrator misapplied sections 37 and 38 of the 1987 Act in calculating Ms Berry’s entitlement to weekly compensation. Both parties agree that the Arbitrator correctly calculated the rate of weekly compensation under section 36 of the 1987 Act; both parties agree that the Arbitrator has erred in calculating the rate of weekly compensation under section 37 of the 1987 Act, but they do not agree on the amount awarded, and finally, both parties dispute the Arbitrator’s decision with regard to section 38 of the 1987 Act, but for different reasons. SESAHS submits that the rate of compensation has been miscalculated and that the Arbitrator made the award on an incorrect basis and against the evidence, while Ms Berry submits in her appeal that the award of weekly payments is correctly made but should be “continuing”.
(3)Whether the Arbitrator erred in his finding that Ms Berry suffers from an ongoing partial incapacity for work.
ON THE PAPERS REVIEW
Section 354(6) of the Work Injury 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.”
SESAHS, submits that the appeal cannot be determined ‘on the papers’ on the basis “that if the Arbitrator sought to provide an ongoing Section 40 [of the 1987 Act] award rather than incorrectly awarding ongoing Section 38 [of the 1987 Act] payments, the issues relating to the application of that section [section 40 of the 1987 Act] will need to be freshly ventilated by the parties”.
Ms Berry submits that the Commission is able to determine the appeal ‘on the papers’.
Having regard to the submissions, the evidence and other documents that are before me, I am satisfied pursuant to section 354(6) of the 1998 Act, 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.
SESAHS submits that Ms Berry argues that the Arbitrator has incorrectly calculated the rate of $1,196.00 per week for the 10 week period of 14 August 2004 to 20 October 2004, and that the correct rate of $956.80 per week should have been awarded for that period, so that according to Ms Berry, the difference is a total of only $2,392. Ms Berry further submits that SESAHS argues that the total amount awarded to her is $52,624 in weekly payments, therefore the amount of compensation at issue in the appeal is not 20% of the amount awarded. However, both parties dispute the Arbitrator’s award under section 38 of the 1987 Act.
Ms Berry submits that the Arbitrator should have provided an award of weekly payments from the date of 29 December 2005 and continuing “as per the evidence that the Arbitrator states in his determination that he has based his decision upon.” Therefore, there is considerably more than $2,392 at issue between the parties in [each] appeal, and overall, the amount of compensation at issue in [each] appeal is more than 20% of the amount awarded by the Arbitrator.
Having regard to these submissions, and the additional submissions and calculations that are contained in the various documents lodged by the parties, and the totality of the issues in dispute between them, it is clear that there remains a considerable amount in dispute, and that the amount of compensation at issue on appeal in both cases, exceeds $5,000 and is at least 20% of the amount awarded in the decision appealed against. Consequently I find that sections 352(2)(a) and (b) of the 1998 Act are satisfied, in relation to both appeals.
SESAHS’ Appeal
The appeal, dated 27 January 2005, was initially lodged on 31 January 2005, more than 28 days after the Arbitrator’s decision. The appeal was made five days late and did not comply with section 352(4) of the 1998 Act. An ‘Application to Admit Late Documents’ accompanied the appeal application and was also lodged on the same date. The submissions in support of an extension of the time within which to make the appeal are:
“1. We note that on 30 December 2004, [the] Arbitrator issued a ‘Certificate of Determination’ in this matter. However, notwithstanding the date on the ‘Certificate of Determination’ in this matter, given the public holiday period between 1-3 January 2005, we were not in receipt of the ‘Certificate of Determination’ until 5 January 2005.
2.In spite of the disadvantage of time against the Respondent, we nevertheless served an ‘Appeal Against a Decision of Arbitrator’ on the Applicant’s solicitor undercover of correspondence dated 27 January 2005.
3.However, due to an administrative error in the office of Phillips Fox, the Appeal document was not filed in the Workers Compensation Commission on even date, and is only being filed on 31 January 2005.
4.The Respondent served full submission [sic] on the Applicant’s solicitors undercover of correspondence dated 4 February 2005.
5.We note that the subject of the Appeal relates to the fundamental misapplication of the legislation by [the] Arbitrator in calculating the Applicant’s entitlement to continuing weekly compensation.
6.We previously filed an ‘Application to Admit Late Documents’ in which the Respondent’s Appeal submissions were set out together with an ‘Application of Appeal Against a Decision of an Arbitrator’, dated 27 January 2005. These documents were rejected on the basis that the Respondent did not attach a statement setting out reasons for appeal, or provide reasons why appeal should not be determined on the papers.
7.In this respect, we note that the ‘Application to Admit Late Documents’ attached to the Appeal Application dated 27 January 2005 constituted the Respondent’s submissions.
8.In addition, we note that there is no direction or note in the Appeal Application requiring parties to address at the time of filing whether the appeal should be determined on the papers, and on this basis, we submit that it is unjust to deny the Respondent the opportunity of a right to appeal for this reason.
9.Accordingly, we have left the balance of the previous ‘Application to Admit Late Documents’ below, which set out the Respondent’s reasons for seeking an appeal.”
Some of these submissions are set out in the ‘Application to Admit Late Documents’ along with the following submissions:
“7.The Respondent submits that should the Commission prohibit the Respondent from filing the Appeal, the Respondent will suffer a substantial injustice with respect to the miscalculation of weekly compensation applied by [the] Arbitrator which is not only contrary to the legislative provisions, but also contrary to the mandate of fair and just determination of matters in the Commission. [sic] investigation of the Applicant’s claim.
8.Finally, the Respondent submits that there will be no prejudice to the Applicant
by the allowing the filing of the Appeal, as it cannot of [sic] evaded the Applicant’s solicitors that the Arbitrator’s determination of weekly benefits was incorrect, whereas conversely, the Respondent will suffer significant prejudice if the Commission does not allow these documents to be filed.”
The ‘Certificate of Determination’ was issued by the Arbitrator on 29 December 2004, not 30 December 2004 as stated by SESAHS, and it was sent via the DX facility to the offices of SESAHS’s solicitors under cover of correspondence dated 30 December 2004.
On 18 February 2005 the Commission rejected the Appeal initially filed, on the basis of failure to attach submissions on the threshold issues relating to the granting of leave, including the amount of compensation, the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal. It was also rejected for failing to attach reasons why the application for leave to appeal and the appeal, should or should not be determined on the papers, and if relevant, why a hearing was considered to be necessary.
On 21 February 2005 SESAHS lodged an ‘Amended Appeal Against Decision of Arbitrator’ and an ‘Amended Application to Admit Late Documents’ in the Commission. SESAHS made submissions in respect of the rejection of its initial appeal dated 27 January 2005, in which it submits that the ‘Application to Admit Late Documents’ attached to the ‘Appeal Against Decision of Arbitrator’, both dated 27 January 2005, constituted SESAHS’s submissions in relation to the threshold issues. In addition it was submitted that there is no direction or note in the “Appeal Application” requiring parties to address, at the time of filing, whether the appeal should be determined on the papers. On that basis it was submitted that it would be unjust to deny SESAHS the opportunity of a right to appeal.
On 23 February 2005 the Commission rejected SESAHS’s amended appeal documents, for failure to comply with the following requirements:
“1.Failure to attach submissions on threshold issues relating to the granting of leave, including the amount of compensation the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal.
I note Rule 77(3)(b) requires that an Appeal Application must include full details of the amount of compensation at issue on the appeal for the purposes of section 352(2) of the 1998 Act. A statement which merely reiterates section 352(2) does not satisfy this threshold requirement.
2.Failure to attach reasons to address why the leave application and appeal should or should not be determined on the papers, or why a hearing is deemed necessary.
I refer to Rule 77(3)(d) and note that the Amended Application does not address this requirement.
You may also wish to update your system to the current Form 9 – Appeal Against Decision of Arbitrator which can be downloaded from the Commission’s website.”
On 1 March SESAHS lodged a further ‘Amended Application Appeal Against Decision of Arbitrator’, which included the amount of compensation, the subject of the appeal and the percentage of the amount awarded, which is the subject of the appeal. Also attached, were submissions addressing the issues as to whether the matter should not be determined on the papers. The Appeal was registered with the Commission on 2 March 2005.
On 22 March 2005 Ms Berry filed in the Commission, an ‘Opposition to Appeal Against Decision of Arbitrator’.
On 6 May 2005 Ms Berry lodged an ‘Appeal Against Decision of Arbitrator’ and an ‘Application to Admit Late Documents’ against the decision of the Arbitrator, dated 29 December 2004.
SESAHS has not filed an ‘Opposition to Appeal Against Decision of Arbitrator’ in Ms Berry’s appeal.
On 6 July 2005 the Commission wrote to the SESAHS’s solicitors noting that they had not filed a ‘Certificate of Service’, in accordance with the Commission ‘Directions’ dated 3 March 2005, and stating that if the ‘Certificate of Service’ was not lodged within 7 days of the date of the letter, the appeal application would be struck out without further notice.
On 13 July 2005 SESAHS filed a ‘Certificate of Service’ with the Commission. The ‘Certificate of Service’ notes that a copy of the ‘Amended Application to Appeal Against Decision of Arbitrator’ and submissions attached to it, both dated 21 February 2005, were served on Ms Berry by fax and by mail on that date.
Ms Berry’s Appeal
Submissions in support of Ms Berry’s Appeal lodged in the Commission on 6 May 2005, were framed around the proposition that the Arbitrator should have provided an award of weekly payments from 29 December 2005 and continuing, “as per the evidence that the Arbitrator states in determination that he has based his decision upon.”
As stated in paragraph 21, the requirements of both sections 352(2)(a) and (b) are satisfied.
This appeal was filed in the Commission some months after the decision appealed against was made on 29 December 2004. This is well outside of the 28 eight days required by section 352(4).
In relation to making the appeal application out of time, Mrs Berry states:
“The Applicant seeks to file an appeal against a decision of the Arbitrator out of time on the basis that the Respondent has filed an appeal against this same decision and has sought to appeal the decision on the basis of ongoing weekly payments. The Applicant submits that the failure by the Arbitrator to indicate in his decision whether weekly payments were to be awarded is an administrative error and should be corrected pursuant to s.351(6) of the Act.”
Discussion and Findings on the question of leave to appeal.
Section 352(4) of the 1998 Act 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 (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), and the principles established 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 in Department of Education & Training v Mekhail [2006] NSW WCC PD 1, and Piening-Cochrane v P L and M R Wilde trading as Wilde Earthmoving [2006] NSW WCC PD 22.
The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262). In Gallo, McHugh J said that 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. He said that 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;
·The consequences for the parties of the grant or refusal of the application for extension of time;
·The prospects of the applicant succeeding in the appeal, and
·Upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
Ms Berry’s application for extension of time
Ms Berry’s application “to file an appeal against a decision of the Arbitrator out of time” is based only upon the fact that SESAHS lodged an appeal against the same decision. She has mounted no argument to demonstrate that the “exceptional circumstances” exist in which “demonstrable and substantial injustice” would arise if she lost the right to seek leave to appeal, in this matter.
The fact that SESAHS has appealed does not per se, give rise to exceptional circumstances, or ground “demonstrable and substantial injustice” as required by Rule 77(8).
Ms Berry lodged her appeal on 6 May 2005. The Arbitrator’s decision is dated 29 December 2004. SESAHS’s appeal was finally lodged in the Commission on 21 February 2005, and was registered on 2 March 2005. Ms Berry had already lodged her ‘Opposition to Appeal Against Decision of Arbitrator’ on 22 March 2005.
While it is argued by Mrs Berry that there could be prospects of some adjustments between the parties in the ultimate determination of this appeal, I am unable to say at this point, on a brief overview of the case, that Ms Berry’s prospects of success are obvious. However, she retains the advantage that she remains the Respondent in the appeal lodged by SESAHS, in this matter.
There is no explanation from Ms Berry to indicate why she left it so late to lodge her appeal, and no argument in support of the merits of her application for an extension of time. There is no doubt that she knew that the appeal of SESAHS was on foot because she had filed her ‘Opposition’ to it some six weeks before she lodged her appeal. She delayed making her appeal for an extraordinary length of time in the circumstances, notwithstanding that she claims that she lodged an appeal in the matter, solely because SESAHS had done so.
Ms Berry’s reference to section 351(6) of the 1998 Act is an irrelevant consideration in the instant case, as section 351 relates to the reference of a question of law on a compensation claim to the Commission constituted by a Presidential member. A grant of leave and/or the giving of an opinion under this section are matters for the President of the Commission. No question of law has been referred to the President, under section 351, and section 351(6) has no application in this appeal.
I can find no reason at all to exercise my discretion in Ms Berry’s favour, pursuant to Rule 77(8) to extend the time for making her appeal.
Leave to appeal the decision of the Arbitrator, dated 29 December 2004, should be refused.
SESAHS’s application for extension of time
SESAHS’s solicitors submit that they did not receive the Arbitrator’s ‘Certificate of Determination’ dated 30 December 2004, until 5 January 2005. The ‘Certificate of Determination’ was in fact dated 29 December 2004 and was forwarded to the solicitors by DX on Thursday 30 December 2004. Apart from the holiday period between 1-3 January 2005, there appears to be no explanation for the delay in the DX such that the document was not received until Wednesday 5 January 2005.
The ‘Appeal Against Decision of Arbitrator’ was served on Ms Berry’s solicitors, under cover of correspondence dated 27 January 2005. However, the ‘Appeal Against Decision of Arbitrator’ was not filed in the Commission until 31 January 2005, in contravention of section 352(4) of the 1998 Act, because of an administrative error. In these circumstances, the service on Ms Berry does not comply with Rule 77(4). The details and circumstances of the administrative error have not been disclosed by SESAHS.
SESAHS submits that it served full submissions on Ms Berry’s solicitors under cover of correspondence dated 4 February 2005.
According to the Commission file, the ‘Application Against Decision of Arbitrator’, dated 31 January 2005, was rejected on 18 February 2005 for failure to comply with Rule 77(3)(b) and (d).
The ‘Amended Application – Appeal Against Decision of Arbitrator’ lodged on 21 February 2005 was rejected on 23 February 2005, again for failure to comply with Rule 77(3)(b) and (d).
On 3 March 2005 the Registrar directed that the Appellant serve on Ms Berry, a sealed copy of the ‘Amended Appeal Against Decision of Arbitrator’ and the attached documentation that was by this time, lodged in the Commission. A copy of the ‘Amended Application to Admit Late Documents’ and a copy of the Registrar’s Direction were also required to be served on Ms Berry. Service was directed to be undertaken by 11 March 2005, and it was further directed that a ‘Certificate of Service’ should be lodged in the Commission by 1 April 2005.
On 6 July 2005 the Registrar wrote to SESAHS’s solicitors indicating that a ‘Certificate of Service’ had not been filed in accordance with the Commission Direction dated 21 March 2005. Notice was given that failure to lodge a ‘Certificate of Service’ in the Commission within 7 days of the date of the letter, “the appeal application will be struck out without further notice.”
A ‘Certificate of Service’ was filed in the Commission on 13 July 2005, certifying service of the documents on Ms Berry’s solicitors on 21 February 2005.
Ms Berry submits that the appeal should not be allowed because of SESAHS’s failure to comply with the provisions of Rule 77. She also claims that a sealed copy of the ‘Appeal Against Decision of Arbitrator’ was not served on her, but that she was served with an unsealed copy “that is different to the Application originally served upon us.”
SESAHS submits that it would be unjust to deny it the “opportunity of a right to appeal” on the basis that the original ‘Application to Appeal Against Decision of Arbitrator’ made no mention of the requirement to make submissions about whether the appeal should be dealt with on the papers. The form used by SESAHS is obsolete and has not been in use for some time. The current form is readily available on the Commission’s web site, and Rule 77(3)(d) and Practice Direction No 6 are clear on the point, and have applied since July 2003 and August 2003, respectively.
SESAHS’s primary concern appears to be the Arbitrator’s miscalculation, upon which both parties agree, of weekly compensation under section 37 of the 1987 Act. They do not agree on the amount. As outlined in paragraph 13, above there are other issues involved in this appeal, including the award and calculation of benefits under section 38 of the 1987 Act. SESAHS submits that if leave to appeal is not granted, it will be prejudiced by reason of the miscalculation of the weekly benefits.
Having regard to the history of the proceedings and the way in which SESAHS has dealt with its appeal thus far, there is little merit in its application for extension of time in which to file the ‘Appeal Against Decision of Arbitrator’. As outlined above, there is a history of failure to comply with the Rules and directions given. The Registrar has been required to pursue SESAHS in order to bring the matter this far.
Clearly, the prospects of success in relation to the correction of the calculations under section 37 of the 1987 Act are reasonably high, given that both parties agree that the Arbitrator is in error. Moreover, while the parties differ to a degree on their view of the Arbitrator’s decision in relation to section 38 of the 1987 Act, some adjustment may be likely in that regard, also.
Howver, SESAHS has not advanced substantial and persuasive arguments that demonstrate the “exceptional circumstances” required by Rule 77, nor that losing the right to seek leave to appeal would work “demonstrable and substantial injustice”. The discretion to extend time is given for the sole purpose of enabling justice to be done between the parties (Gallo). It is difficult to understand how a claim of “demonstrable and substantial injustice” in “exceptional circumstances” can be made in the instant matter, when this situation is substantially of SESAHS’s own making, and no fault of Ms Berry’s. In circumstances such as this, it is often the case that a measure of injustice will arise whatever the decision. However, on balance, and having regard to the history of this matter, the degree of injustice to Ms Berry, should leave to extend time to appeal be granted, would outweigh and be more substantial than, the degree of injustice occasioned to SESAHS in terms of the appeal as a whole, should leave be denied.
Insofar as the alleged errors and calculations by the Arbitrator are concerned, provision is made in section 350(3) for the Commission [constituted by the Arbitrator in this case] to consider any matter that has been dealt with and rescind, alter or amend any decision previously made or given by the Commission. That being so, it is open to the parties to request the Arbitrator to reconsider, and to address the concerns that they have with regard to the calculations, and for that matter, other aspects of his decision. In my view, the Arbitrator should accede to any such request by the parties, or either of them, particularly as there is a large measure of agreement between them that he has erred.
I am not satisfied that I should exercise my discretion under Rule 77(8) to extend time for making the appeal.
Leave to appeal the decision of the Arbitrator, dated 29 December 2004, should be refused.
DECISION
Leave to appeal the decision of the Arbitrator, dated 29 December 2004, is refused in each appeal.
COSTS
Ms Berry’s appeal was lodged well out of time and solely on the basis that SESAHS had lodged an appeal against the decision of the Arbitrator. On that basis, I do not consider that an order for costs should be made. Accordingly, no order is made as to costs of Ms Berry’s appeal.
In relation to SESAHS’s appeal, I order that SESAHS is to pay the costs of the appeal.
Gary Byron
Deputy President
1 March 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.
ASSOCIATE
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