Southern Pathology Services Pty Ltd v Bragg
[2005] NSWWCCPD 25
•18 April 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Southern Pathology Services Pty Ltd v Bragg [2005] NSW WCC PD 25
APPELLANT: Southern Pathology Services Pty Ltd
RESPONDENT: Karen Bragg
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: 15497-2003
DATE OF ARBITRATOR’S DECISION: 17 February 2004
DATE OF APPEAL DECISION: 18 April 2005
SUBJECT MATTER OF DECISION: Appeal filed late; factors relevant to an extension of time.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal Department
Respondent: Hansons Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
BACKGROUND TO THE APPEAL
On 3 March 2004, QBE Workers Compensation (NSW) Limited (‘QBE’), the insurer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 17 February 2004. Included with QBE’s application for leave was its grounds of appeal.
The Respondent to the Appeal is Karen Bragg, the worker in these proceedings.
The appeal is against the Arbitrator’s decision to award Ms Bragg weekly compensation of $450.80 from 21 September 2003 to 5 February 2004 and continuing.
Ms Bragg’s solicitors lodged their submissions in reply on 9 March 2004.
On 19 May 2004, the Commission wrote to QBE stating that its application was incomplete and requesting that the following defects be addressed by 27 May 2004:
(i)failure to attach a copy of the decision appealed against;
(ii)failure to attach copies of any authorities relied upon to support the arguments; and
(iii)failure to attach a statement as to whether the leave application and appeal should be determined on the papers, and if not, why not.
The letter noted that failure to comply with the Commission’s request would result in QBE’s application being rejected.
QBE did not respond to the Commission’s letter. However, by letter purportedly dated 26 June 2004 but in fact received by the Commission on 7 June 2004, QBE lodged a fresh ‘Appeal Against Decision of Arbitrator’ in respect of the same decision. By letter dated 16 June 2004, the Commission wrote to QBE noting that the defects identified in QBE’s first application had not been addressed and returning that application, thereby rejecting it. However, the Commission accepted QBE’s second application received on 7 June 2004 for filing. With its letter of 16 June 2004, the Commission enclosed a Direction requiring that QBE serve their application and a copy of the Direction on the Respondent together with submissions, and file a Certificate of Service in relation to this, by 1 July 2004.
On 20 July 2004, the Commission learned that QBE’s in-house solicitor had not received a copy of the Commission’s letter and Direction dated 16 June 2004 and faxed the solicitor a copy. Contact was also made with Ms Bragg’s solicitors. By letter dated 22 July 2004, received on 26 July 2004, Ms Bragg’s solicitors noted they had not received the specified documents from QBE and submitted that QBE’s application should be rejected for failure to comply with the Direction. No further correspondence has been received from QBE in relation to this matter.
Although in its letter purportedly dated 26 June 2004, QBE said that a statement as to whether the leave application should be determined “on the papers” was enclosed with the application, no such statement was received by the Commission. Ms Bragg’s solicitors have also not stated a view on this issue.
ISSUES IN DISPUTE
The first issue to be determined is whether leave should be granted. In particular, the appeal was not made within 28 days of the decision appealed against (as required by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
If leave is granted, the second issue to be determined is whether the Arbitrator’s decision to award Ms Bragg weekly compensation of $450.80 from 21 September 2003 and continuing should be confirmed or revoked.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me and the submissions by the parties, 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 particular circumstances of this case, I do not regard the parties’ failure to address the issue of the nature of the review in their submissions as a critical factor.
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, which provides:
“352Appeal 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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was not lodged within 28 days of the Arbitrator’s decision as required by section 352(4) of the 1998 Act. The decision was made on 17 February 2004. The appeal was lodged on 7 June 2004. QBE has not provided any explanation for the late lodgment.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘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 was lost. The onus of proving exceptional circumstances rests with the Appellant.
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. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479 where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (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 if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22.
DISCUSSION AND FINDINGS
I have taken the above factors into account in considering the circumstances of this case. I note that QBE’s first application was rejected for failure to comply with the Commission’s request to address the defects in its application, pursuant to the Commission’s Practice Direction No 6. In its second application, no explanation was provided for its failure to lodge a valid application within the required timeframe, the application failed to address the question of whether the application could be dealt ‘on the papers’ and QBE failed to comply with the Commission’s Direction dated 16 June 2004, as detailed under the heading ‘Background’ above.
I also note that QBE’s representative withdrew from the arbitral hearing on 5 February 2004 pleading lack of instructions with respect to what Ms Bragg’s solicitors claimed to be an outstanding issue, that is the quantum of continuing weekly payments from 21 September 2003. There appears to be no firm evidence about what exactly was said at the earlier teleconference on 15 January 2004 about whether the weekly payments in dispute included both those under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’), in respect of partial incapacity, and those under section 37 of the 1987 Act in respect of total incapacity. At the arbitral hearing, QBE’s solicitor claimed that the solicitor representing QBE at the teleconference had objected to the inclusion of the claim for section 37 payments. The Arbitrator had no note of this. In the Statement of Reasons for her decision, the Arbitrator said her notes from the teleconference showed only that the dispute over the statutory rate was being discussed by the parties.
In Ms Bragg’s solicitors’ submissions filed on 9 March 2004 in reply to QBE’s first rejected application, the solicitors note that in Ms Bragg’s original ‘Application to Resolve a Dispute’ filed on 29 September 2003, the application sought weekly payments of compensation from 10 October 1998 and continuing. The application also identified Ms Bragg’s two dependent children: Adam born on 27 May 1992, and Jessie born on 27 September 1994. While at the time of Ms Bragg’s application she was entitled to weekly compensation in respect of partial incapacity pursuant to section 40 of the 1987 Act, she subsequently became totally incapacitated as a result of back surgery.
QBE’s solicitor now submits that QBE was denied procedural fairness and natural justice by the Arbitrator, who purported to make a decision on facts for which there was no evidence or no adequate evidence. In my view, the Arbitrator was clearly in a difficult position as a result of QBE’s solicitor withdrawing from the arbitral hearing. The transcript of the hearing shows that the Arbitrator sought to weigh up the interests of the parties, including that of procedural fairness for QBE, and decided that the greater injustice would be done to Ms Bragg if she did not continue with the hearing. In the particular circumstances, this was a position the Arbitrator was entitled to take.
QBE’s solicitor also submitted that the Arbitrator failed to give adequate reasons for her decision and that her reasons were not based on any evidence. Ms Bragg’s solicitors denied this. In the absence of any further argument by QBE to support its position and in the light of what happened at the hearing referred to above, I am not persuaded by what amounts to a mere assertion by QBE, that the Arbitrator’s reasons were inadequate.
I conclude that the prospects of QBE succeeding in its appeal should leave be granted are not substantial. Pursuant to Rule 77(8) of the Rules, QBE has not demonstrated exceptional circumstances and I am not persuaded by the other factors discussed above that I should exercise my discretion to grant QBE leave to file its appeal out of time.
DECISION
Leave to appeal is refused.
COSTS
The Appellant is to pay the costs of this application, as agreed or assessed.
Robin Handley
Acting Deputy President
18 April 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MR ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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