South Sydney Leagues Club Limited v Pittas
[2006] NSWWCCPD 191
•21 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:South Sydney Leagues Club Limited v Pittas [2006] NSWWCCPD 191
APPELLANT: South Sydney Leagues Club Limited
RESPONDENT: Bill Pittas
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC 11923-05
DATE OF ARBITRATOR’S DECISION: 5 December 2005
DATE OF APPEAL DECISION: 21 August 2006
SUBJECT MATTER OF DECISION: Leave to file appeal out of time
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Beston Macken McManis
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator dated 5 December 2005 is refused.
South Sydney Leagues Club Limited to pay Bill Pittas’ costs of the appeal.
BACKGROUND TO THE APPEAL
On 5 January 2006 South Sydney Leagues Club Limited (‘South Sydney Leagues’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 December 2005.
The Respondent to the Appeal is Bill Pittas (‘Mr Pittas’).
Mr Pittas was born on 6 May 1949 and is 57 years of age. He commenced employment with South Sydney Leagues in 1998 where he was employed as a doorman.
On 25 June 2004 Mr Pittas had started work between 5.00 p.m. and 5.30 p.m. and had been performing his normal duties until approximately 7.00 p.m. At about 7.35 p.m. (Police Report) he was run down by a car in Chalmers Street, Redfern, in close proximity to South Sydney Leagues.
Compensation was initially paid, however, liability was denied on 4 March 2005. Mr Pittas commenced proceedings in the Commission on 19 July 2005 for weekly payments of compensation and medical expenses. An arbitration hearing took place on 24 November 2005.
It was Mr Pittas’ case that at the time of his injury, he was on an ordinary recess (meal break) and as such was entitled to compensation pursuant to section 11 of the Workers Compensation Act 1987 (‘the 1987 Act’). South Sydney Leagues argued that Mr Pittas, not being on an authorised absence or ordinary recess, had taken himself outside the course of his employment.
There was a significant factual dispute between the parties about what Mr Pittas was doing between 7.00 p.m. and 7.35 p.m. The Arbitrator after hearing oral evidence from Mr Pittas and examining documentary evidence, determined that Mr Pittas was injured during a recess or authorised absence and did not subject himself to any abnormal risk of injury during such recess or authorised absence (section 11 the 1987 Act).
Further the Arbitrator determined that the injury to Mr Pittas was not solely attributable to his serious and wilful misconduct (section 14 the 1987 Act).
South Sydney Leagues has appealed from this decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 December 2005 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $325.00 per week from 19 March 2005 to date and continuing under s40 of the Workers Compensation Act 1987.
2.The Respondent pay the Applicant’s section 60 expenses on production of accounts and/or receipts.
3.The Respondent pay the Applicant’s costs as agreed or assessed. I certify that this matter was complex and proceeded directly to Arbitration.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·whether the Arbitrator erred in determining that Mr Pittas suffered an injury arising out of or in the course of his employment;
·that the Arbitrator erred in applying the incorrect test as to whether the injury occurred within the course of Mr Pittas’ employment;
·whether the Arbitrator erred in the application of the facts to the law; and
·whether the Arbitrator provided adequate reasons.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace 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.”
South Sydney Leagues submit that an oral hearing is required because if the appeal is successful, the Presidential Member will be assisted by oral submissions when re-determining the matter. Mr Pittas adopts the submissions of South Sydney Leagues.
Having regard to Practice Directions Numbers 1 and 6 and the 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.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence.
LEAVE
Both parties at the time of preparing submissions, did not have access to the transcript of proceedings and sought leave to file further submissions upon receipt of the transcript, if appropriate. The transcript was forwarded to both parties on 3 March 2006 and further submissions have not been received from either party.
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal involves an ongoing award of weekly compensation and as such clearly meets the monetary threshold in section 352(2) of the 1998 Act.
Section 352(4) states that “An appeal can only be made within 28 days after the making of the decision appealed against”. Rule 77(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a decision is made when the Commission issues the Certificate of Determination. Accordingly as the Certificate of Determination was issued on 5 December 2005, the appeal had to be lodged by 2 January 2006 (28 days).
South Sydney Leagues lodged an appeal on 5 January 2006 which was rejected by the Registrar as it was filed out of time and failed to attach adequate submissions in support of granting an extension of time.
In the Application lodged on 5 January 2006 it was submitted by South Sydney Leagues that the 28 calendar days for lodging the appeal was exclusive of the public holidays on 26, 27 December 2005 and 2 January 2006 when the Commission Registry was closed. The Registrar, by letter dated 11 January 2006, advised the solicitors for South Sydney Leagues that an additional day is only added for public holidays when the return date or last day of the 28 day appeal period falls on the public holiday. As the last day of the 28 day appeal period fell on 2 January 2006, an additional day would be added to make the last day for lodging the appeal 3 January 2006. Accordingly the appeal was lodged out of time and properly rejected for failure to attach adequate submissions on the issue of extension of time (Rule 16(5) and Rule 77(3) of the Rules).
South Sydney Leagues then re-filed the appeal on 7 February 2006 and annexed submissions detailing their arguments in favour of granting the extension of time. The Registrar accepted the application and issued a direction that:
“(1)By 23 February 2006 the Appellant serve on the Respondent a sealed copy of the Application – Appeal Against Decision of Arbitrator and a copy of this Direction.
(2)By 2 March 2006 the Appellant file with the Commission a Certificate of Service certifying service of the application and this direction on the Respondent.
(3)By 9 March 2006 the Respondent file with the Commission and serve on the Appellant a Notice of Opposition and supporting documentation.”
A Certificate of Service has not been filed by South Sydney Leagues, however, the solicitors for Mr Pittas on 16 February 2006 filed with the Commission a Notice of Opposition annexing submissions and advised that a copy had been served on South Sydney Leagues. Mr Pittas’ solicitors in a covering letter filed with the Notice of Opposition advised that they had only been served with an unsealed copy of the Appeal that was filed by South Sydney Leagues on 5 January 2006. I am not aware if a copy of the appeal filed by South Sydney Leagues on 7 February 2006 has been served on Mr Pittas, however, his solicitors have made a general submission opposing leave being granted to South Sydney Leagues to file the appeal and I am satisfied I have sufficient material to deal with the question of leave.
Rule 77(8) of the Rules provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.
The Rules are silent on the matters to be considered in exercising the discretion to extend the time for filing an appeal against the decision of an Arbitrator. The leading case on the issue is Gallow v Dawson (1990) 93 ALR 47 where Justice McHugh 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.”
South Sydney Leagues submit that they received the Arbitrator’s Statement of Reasons on 7 December 2005 and sought instructions from the insurer to lodge the appeal on 20 December 2005.
It is further submitted by South Sydney Leagues that as the Arbitrator’s reasoning focused on the question of whether Mr Pittas was injured during a recess or an authorized meal break, they required additional time to prepare submissions. This was particularly so in the absence of transcript of the oral evidence and submissions.
In summary South Sydney Leagues submit that its failure to file the appeal in time was occasioned by genuine, but mistaken belief as to the reckoning of time and when this administrative error is combined with the need for extra time to develop submissions, this amounts to exceptional circumstances.
South Sydney Leagues submit that strict compliance with the Rules would lead to an injustice because, although Mr Pittas has a vested right to retain the Arbitrator’s determination, this is outweighed by the effect of the Arbitrator’s failure to expressly determine and give reasons for her decision about a fundamental element of workers compensation law. South Sydney Leagues submit that the appeal has reasonable prospects of success in that it is not an appeal against discretionary findings of fact, but is one where it is manifestly obvious the Arbitrator has misdirected herself as to law and failed to give reasons for so doing.
In my opinion, South Sydney Leagues has failed to show that exceptional circumstances exist and that it would suffer a substantial injustice if there is strict compliance with the Rules. I do not accept that South Sydney Leagues required additional time to prepare submissions due to the findings of the Arbitrator that Mr Pittas was injured during a recess or authorized absence. On reading the transcript of the submissions at the arbitration hearing, these very issues were covered in submissions by Counsel for South Sydney Leagues. In my view the main reason for the appeal being lodged out of time was due to administrative error.
Although South Sydney Leagues will be disadvantaged in that they will not be able to pursue the appeal, this is outweighed in my opinion by the disadvantage to Mr Pittas in allowing the appeal to proceed. Mr Pittas is entitled to rely upon the Arbitrator’s orders whereby he continues to receive weekly payments of compensation and reimbursement of medical expenses.
It is difficult to pre-determine success of the appeal, however, a brief review suggests that South Sydney Leagues’ prospects of success in the appeal are minimal. Although it is suggested that the Arbitrator failed to correctly apply the law, I am not satisfied that this is correct. Both parties were represented by experienced Counsel at the arbitration hearing who made thorough submissions on the appropriate law and it is not ‘manifestly obvious’ that the Arbitrator misdirected herself as to law or failed to give reasons for so doing. On my brief review of the matter I am not satisfied that this is not in effect an appeal ‘against discretionary findings of fact’. I do not see that the Arbitrator failed to determine the matter lawfully and fairly.
Accordingly I am not satisfied that I should exercise my discretion to grant South Sydney Leagues leave to file the appeal out of time.
DECISION
Leave to appeal against the decision of the Arbitrator dated 5 December 2005 is refused.
COSTS
South Sydney Leagues Limited to pay Mr Pittas’ costs of the appeal.
Julian Martin
Acting Deputy President
21 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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