Stevedoring Employers Association Ltd (in Liquidation) v Keenan
[2004] NSWWCCPD 52
•13 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Stevedoring Employers Association Ltd (in Liquidation) v Keenan [2004] NSW WCC PD 52
APPELLANT: Stevedoring Employers Association Ltd (in Liquidation)
RESPONDENT: Samuel Keenan
INSURER:AMP Workers Compensation (NSW) Limited
FILE NUMBER: WCC2308-2002
DATE OF ARBITRATOR’S DECISION: 17 November 2003
DATE OF APPEAL DECISION: 13 August 2004
SUBJECT MATTER OF DECISION: Leave to Appeal Against Decision of an Arbitrator, Appeal filed out of time, Leave refused.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Moray &Agnew, Solicitors
Respondent: Turner Freeman Solicitors
ORDERS MADE ON APPEAL: Leave to Appeal against the decision of the Arbitrator is refused.
THE APPEAL
On 19 January 2004, Stevedoring Employers Association Ltd (in Liquidation) (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 November 2003.
The Respondent to the Appeal is Samuel Keenan (‘the Respondent Worker’).
The appeal concerns a decision by an Arbitrator ordering the Appellant Employer to pay Mr Keenan lump sum compensation for permanent impairment, the costs of reasonably necessary medical and hospital expenses and the costs of the proceedings.
The appeal was referred to me for review on 11 August 2004.
I am satisfied that I have sufficient information to proceed ‘on the papers’, pursuant to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
The first issue to be determined is whether leave should be granted to extend the time for the filing of the appeal beyond the 28 days specified in section 352 of 1998 Act.
LEAVE
Section 352 of the 1998 Act provides as follows:
“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.
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.”
Time
The appeal was lodged 63 days after the making of the Arbitrator’s decision and was thus not made in compliance with the section 352(4) of the 1998 Act.
Rule 77(8) of the Workers Compensation Rules 2003 (‘the Rules’) provides that:
“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.”
The Appellant Employer submits the reasons for the delay are that:
“(a) upon receipt of the certificate of determination, the appellant’s insurer initiated inquiries of other relevant insurers (being insurers under the Workers Compensation Act 1926) with a view to determining how many other claims are pending in which the same issue arises.
(b) the appellant’s insurer then determined that, because of the potential significance of the issue to it and all other insurers under the Workers Compensation Act 1926, it was appropriate to seek a general opinion on this issue from Senior Counsel.
(c) the opinion from Senior Counsel was received by the appellant’s insurer on 22 December 2003.
(d) because of the Christmas/New Year period and resultant office closures, there was a delay in the issue of instructions to appeal the decision and then a further delay in the preparation of the appeal documents.”
The Appellant Employer claims the delay in seeking leave to appeal is minimal in the context of the worker’s delay in filing the claim, 26 years after ceasing employment with the Employer. The delay in filing the appeal, argues the Appellant, does not prejudice the worker, nor effect the timely resolution of the dispute. The Appellant Employer argues that the circumstances are “sufficiently exceptional to warrant an order extending the time for making the appeal to 19 January 2004”.
The Respondent Worker submits that leave to extend time to appeal should be refused as it was not lodged within 28 days and is therefore in breach of the 1998 Act and the Rules. The Respondent Worker argues that the Appellant Employer was clearly on notice of the legal and factual issues in the case. The implications of the issues were well known when the matter was before the Arbitrator. This, submits the Respondent Worker, is not a good reason for the delay in filing the appeal. The Appellant Employer should have been aware of the decision in Gow v Patrick Stevedores No. 2 Pty Ltd (2002) 24 NSW CCR 626 when the claim was denied. The Respondent asserts that the Appellant is simply restating, on appeal, the arguments that were before the Arbitrator. The Respondent Worker also submits that the liability of the Appellant Employer to pay benefits under the Act is not a substantial injustice.
DISCUSSION AND FINDINGS
The Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator. 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 stated 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.”
I have taken the matters referred to by Justice McHugh into account in the particular circumstances of this case.
Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes (section 367 of the 1998 Act). The Appellant Employer had the opportunity to argue its case before the Arbitrator, and to file all relevant evidence and submissions in relation to the claim. A telephone conference was held on 7 November 2003 with both parties legally represented. Leave was granted to the Employer to file further submissions, on the same issue which it now disputes on appeal, as follows:
“Leave be granted to the Respondent to produce written submissions by 4.00pm Monday 10 November 2003 on what is the deemed [date] of injury for the applicant’s claim - ie whether the applicant’s current claim for skin Cancer to his face and body is a compensable disease under s.16 WCA 1926, taking into consideration Schedule 6 Part 6 Paragraph 5(b) of the WCA 1987.”
I agree with the Respondent Worker’s submission, that the substantive arguments now presented on appeal repeat those that were put before the Arbitrator. The Appellant Employer’s claim that these matters are of great import to it is undoubtedly correct. However, the issues were clear when the claim was made in June 2002 and when the matter was before the Arbitrator in November 2003. The Appellant Employer has had ample time to obtain the advice of Senior Counsel as to the critical issues in dispute. The submission that the delay in filing the appeal was necessitated by obtaining Senior Counsel’s advice at this late stage, in proceedings that had been on foot in the Commission since 10 September 2002, is not persuasive for the purpose of extending the time to appeal. In any event, the Appellant Employer states that such advice was available on 22 December 2003. Had the appeal been filed on that day it would have been only one week out of time. The fact that many offices take the Christmas and New Year period as a break is hardly exceptional and need not delay the lodging of the appeal for a further three weeks.
I accept that the Appellant will be disadvantaged, to the extent only that it will be unable to pursue the appeal. The disadvantage otherwise is not great. The Respondent Worker asserts that the quantum of the award is $8750 plus medical treatment expenses. It appears that the Appellant Employer seeks to have this matter dealt with as a ‘test case’ on the legal issues that were argued before the Arbitrator. The Appellant Employer asserts that it has a number of cases pending which raise the same legal issues. If that is the case it was incumbent, and clearly critical, for the Appellant Employer to file this appeal within time. It is not fair and reasonable that the Worker be put to the task of responding to an appeal for the reason that the Appellant Employer is now in a better position to present its arguments. The Respondent Worker is entitled to rely upon the Arbitrator’s order.
Although the Appellant Employer correctly points to the 26 years between the worker’s employment and his claim, the evidence was that the worker’s skin cancer was not apparent during all of this time.
I have also considered the prospects of the Appellant Employer succeeding on the appeal. I have considered the Appellant Employer’s submissions on the substantive issues. In particular, that the Worker’s failure to make the claim earlier disentitles him to compensation and that no compensation is payable under s66 of the 1987 Act. The Respondent Worker asserts that the case of Gow v Patrick Stevedores No. 2 Pty Ltd (2002) 24 NSW CCR 626 (‘Gow’) is on all fours with this matter and was correctly applied by the Arbitrator and that the Arbitrator was correct in her interpretation of the relevant statutory provisions.
Without coming to a concluded view on the prospects of success of the appeal, I am not persuaded that they are substantial. Unless, or until, the Court of Appeal overturns them, the legal principles that were the subject of the decision in Gow, represent the current judicial view of certain issues that arise in this case. I am not persuaded by the materials currently before me on the appeal, that the Appellant Employer is likely to be successful in demonstrating that the Arbitrator failed to determine the matter lawfully and fairly.
I am not satisfied that I should exercise discretion to grant the Appellant leave to file the appeal out of time.
DECISION
Leave to Appeal is refused.
Dr Gabriel Fleming
Deputy President
13 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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