Stojanovic v State Rail Authority of NSW
[2006] NSWWCCPD 151
•18 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Stojanovic v State Rail Authority of NSW [2006] NSWWCCPD 151
APPELLANT: Boris Stojanovic
RESPONDENT: State Rail Authority of NSW
INSURER:Self insurer
FILE NUMBER: WCC20037-04
DATE OF ARBITRATOR’S DECISION: 30 March 2005
DATE OF APPEAL DECISION: 18 July 2006
SUBJECT MATTER OF DECISION: Leave to appeal; section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; admission of fresh evidence; admission of late documents; error of fact; evidence and weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: J.M.Thompson, Solicitor
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 30 March 2005, is refused.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Mr Boris Stojanovic, the Appellant Worker, was employed as a carriage cleaner by the State Rail Authority of NSW (‘State Rail/the Respondent’), at all relevant times. State Rail is self- insured.
On 28 July 2002 Mr Stojanovic injured his back while at work and subsequently aggravated that injury on 11 August 2003 after returning to work on light duties. He was certified unfit for work from 11 August 2003 to 10 November 2003. On 17 December 2003 he was again placed on light duties and remained partially incapacitated for employment.
On 19 March 2004 State Rail issued a notice to Mr Stojanovic indicating that as a result of Dr Vago’s (Mr Stajonovic’s Nominated Treating Doctor (‘NTD’)) failure to comply with the Injury Management Plan (‘IMP’) signed by all parties, the management of the worker’s rehabilitation would not progress. State Rail also advised that as a result of this failure, Dr Vago was not recognised as the NTD and Mr Stojanovic was requested to provide details to State Rail of an alternate NTD. State Rail referred to section 57 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and stated:
“… failure to comply may result in the suspension of your Weekly Benefits”.
On 6 April 2004 State Rail issued a further notice which stated that it was dissatisfied with Dr Vago, the NTD, as he had failed to increase Mr Stojanovic’s hours of work in line with the proposed ‘Return to Work Plan’. Mr Stojanovic was again requested to provide the name of an alternate NTD and further reference was made to section 57 of the 1998 Act.
On 13 April 2004 State Rail indefinitely suspended payments being made to Mr Stojanovic pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). State Rail contends that Mr Stojanovic is disentitled to the payment for allegedly failing to participate in, and co-operate with, establishing an IMP pursuant to sections 47(1), 47(3) and 57(1) of the 1998 Act, and alleges that his incapacity is such that he is able to earn in “suitable employment” the same income as he would be able to earn, had he not been injured. Mr Stojanovic’s benefits ceased as of 12 April 2004.
On 26 August 2004 Mr Stojanovic made an Application to the Workers Compensation Commission (‘the Commission’) for an Interim Payment Direction (‘IPD’) for weekly compensation and medical expense compensation. On 5 October 2004 the Commission accepted Mr Stojanovic’s application for the IPD against State Rail, which was directed to pay to him weekly compensation at the rate of $265 per week from 28 July 2004 until 5 October 2004.
On 7 December 2004 Mr Stojanovic lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission. He sought weekly compensation in the amount of $265 from 12 April 2004 to date and continuing.
An arbitration hearing was held on 11 March 2005. Neither party gave oral evidence. The Arbitrator made a decision based on the papers before her, being the Application, the Reply and the documents attached to them.
The Arbitrator issued a Certificate of Determination dated 30 March 2005.
On 22 April 2005 Mr Stojanovic lodged an ‘Appeal against Decision of Arbitrator’ (‘Appeal’) with the Commission and an ‘Application to Admit Late Documents’ which included the report of Dr Maniam dated 22 December 2003; x-ray report of Dr Lazurus dated 31 January 2005, and a further report of Dr Maniam (requested but not then received).
On 26 April 2005 the Commission rejected the Appeal for, “Failure to attach reasons to address why the leave application and appeal cannot be determined on the papers”. It also stated that as the Appeal application would be re-lodged out of time, submissions detailing arguments in favour of the granting of an extension of time would be required.
On 16 November 2005, nearly 7 months later, Mr Stojanovic re-lodged an Appeal including submissions seeking an extension of time to lodge his Appeal, as well as Dr Maniam’s reports, (referred to in paragraph 10, above) dated 19 August 2005. It is noted that two such reports were lodged in the Commission. Both are dated 19 August 2005. One is an updated report following on from the 22 December 2003 report, and the other is an Impairment Assessment report.
On 21 February 2006 State Rail filed a ‘Notice of Opposition’ under cover of an ‘Application to Admit Late Documents’, with the Commission.
On 22 February 2006 Mr Stojanovic’s solicitors wrote to the Commission alleging in effect that State Rail’s solicitors had falsely certified the date of service of State Rail’s ‘Application to Admit Late Documents’ and ‘Opposition’ upon them.
On 1 March 2006 Mr Stojanovic informed the Commission that his employment with State Rail was terminated as of 28 February 2006.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination’ dated 30 March 2005 records the following determination:
“1.The Respondent to pay the Applicant compensation under s 40 of the Workers Compensation Act 1987 for the period 12 April 2004 to 3 May 2004 at the rate of $265 per week.
2.Award for the Respondent from 4 May 2004.
3.The SRA to pay Mr Stojanovic’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether leave to appeal the decision of the Arbitrator should be granted;
(2)whether leave to include Mr Stojanovic’s ‘fresh evidence’ should be granted;
(3)whether the Arbitrator erred in finding that Mr Stojanovic was capable of returning to full-time duties with State Rail from 4 May 2004, and
(4)whether the Arbitrator’s decision was against the evidence and weight of evidence, in particular, failing to take into consideration the report of Dr Maniam dated 22 December 2003, lodged by State Rail.
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.”
Mr Stojanovic submits that the appeal cannot be determined on the papers as: “…the sound card of the hearing in front of the Arbitrator was inaudible. Inquires were made with James of the WCC on 21 April 2005 who located the sound card, but told us that it was ‘totally inaudible’ and did not send a copy of the Card out to us for this reason”.
It was also submitted that at the arbitral hearing “… Mr Stojanovic was told by the Arbitrator not to submit any additional Medical Evidence. Mr Stojanovic complied with this although the report of Dr Maniam he was waiting on would have won him the case”. The reports of Dr Maniam, both of which are dated 19 August 2005, were lodged with the Appeal submissions, as fresh evidence.
State Rail submits that the Appeal can be dealt with on the papers. It further submits that as Mr Stojanovic was aware of the problem with the ‘sound card’ prior to the lodgment of his Appeal application on 22 April 2005, he should have included the submissions on the need for an oral hearing at that time.
Having regard to the submissions, evidence and 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, insofar as the issue of leave to proceed is concerned at least, in the first instance.
LEAVE TO APPEAL
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 amount of compensation at issue is $265 per week from 12 April 2004 and continuing and therefore exceeds the $5,000 threshold as prescribed in section 352(2)(a), and also satisfies the threshold in section 352(2)(b) as the whole of the award is in issue in this appeal.
Section 352(4) provides that an appeal can only be made within 28 days after the making of the decision appealed against.
As discussed above, the Appeal was initially lodged on 22 April 2005, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act. The Commission rejected the Appeal on 26 April 2005 for failure to include submissions as to whether the appeal should be determined on the papers, stating that submissions would be required in relation to arguments in favour of granting an extension of time [in the event that the Appeal would be lodged afresh], outlining the “demonstrable and substantial injustice that would be caused if the appellant was to lose the right to appeal”.
Mr Stojanovic’s submissions on the time for filing the appeal
Mr Stojanovic re-lodged the Appeal on 16 November 2005, some eight months after the Arbitrator’s decision. Mr Stojanovic provided the following brief submissions, in summary, in support of the granting of an extension of time:
· the Arbitrator told Mr Stojanovic at the arbitration not to submit any additional medical evidence and that he complied with the Arbitrator’s request. However he was waiting on the report of Dr Maniam, which would have “won him the case”;
· the reports of Dr Maniam dated 19 August 2005 were finally received and have been included in the Appeal submissions lodged on 16 November 2005, and
· [the request in the covering letter of 14 November 2005] “Please treat this letter as submissions detailing arguments in favour of granting the extension of time and the demonstrable and substantial injustice that would be caused if Mr Stojanovic was to lose the right to appeal.”
State Rail’s submissions on the time for filing the appeal
In reply, State Rail argue that as Mr Stojanovic’s solicitors conceded that they were aware of the difficulty of the “sound card” on 21 April 2005, and they should have included submissions that the application could not be determined on the papers at the time of lodging the appeal on 22 April 2005. Furthermore, once the application had been rejected, State Rails submits, “… submissions should have been immediately forthcoming to that effect noting that at that time, the applicant’s appeal would still have been within the 28 day period prescribed by Section 352 ss.[sic](4)”.
State Rail further submits that the submissions made by Mr Stojanovic to extend the time for filing the Application to appeal, fail to disclose “exceptional circumstances” or “demonstrable and substantial injustice”. It is further submitted that Mr Stojanovic was legally represented throughout the relevant period and he has failed to provide any explanation for the delay of seven months in the Application being re-lodged. State Rail submits that leave should not be granted to extend time for Mr Stojanovic to lodge his Appeal.
State Rail also seeks relief pursuant to Part 1 Rule 5(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’) in respect to the late filing of their ‘Opposition’. It submits that Mr Stojanovic’s application to appeal against a decision of the Arbitrator was filed on 16 November 2005 and was not served on it until 22 December 2005. They state that, “the appeal was served in extremely close proximity to Christmas and other public holidays”. It was also noted that State Rail’s solicitors did not receive instructions to act in respect of the appeal until 18 January 2006 and that the delay between the service of the appeal and the referral of the application to them can be explained by the Christmas holiday period and leave taken by appropriate staff. Prior to the drafting of the Opposition submissions it was necessary to obtain the prior file from archives, peruse same, and undertake research. It is submitted that Mr Stojanovic faces no prejudice by the acceptance of the late ‘Opposition’ however State Rail would be gravely prejudiced by the exclusion of such documentation. State Rail relies upon several authorities, in particular the decision of Outboard Marine Australia Pty Limited v Byrnes (1974) 1 NSWLR 27.
The question of leave to appeal must to be dealt with in the first instance, followed if necessary, by the consideration of the application for admission of the other late documents and fresh evidence lodged, including the late ‘Opposition’ lodged by State Rail.
Discussion and Findings on the question of leave to appeal
Rule 77 of 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 appeals such as, 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.
Mr Stojanovic’s solicitor’s letter requesting an extension of time to appeal was originally dated 6 September 2005. However, that date is struck out and an amended date of 14 November 2005 has been handwritten, in lieu. There is no explanation for the delay in lodging the appeal in the Commission, of some 8 months from the date of decision of the Arbitrator; of 7 months from the date of rejection by the Commission of the first Appeal, or of almost 3 months from the date of Dr Maniam’s reports of 19 August 2005 that have been put forward as fresh evidence.
The requirement by the Commission for Mr Stojanovic to address the requirement of Rule 77(3)(d) in re-lodging the Appeal was not onerous. Had the Appeal been re-lodged within 2 days of rejection, it would still have been filed within 28 days from the date of the Arbitrator’s decision. In any event, a relatively simple addition to the Appeal documents ought reasonably to have been made within a week or two, and some plausible explanation is due in this appeal to explain what is on any view, an inordinate delay. In the absence of such explanation, there is no indication that Mr Stojanovic has pursued this matter with any great sense of priority.
.
Mr Stojanovic did not give notice to State Rail of his intention to seek the extension of time in which to appeal until 21 December 2005. He did not put forward to the Commission, nor to State Rail, the “arguments to be put in favour of granting the extension”, except that some of the substantive arguments on appeal may be construed perhaps inferentially, as such argument, to a degree. As stated in paragraph 36 above, Mr Stojanovic provided no explanation for the delay, which is a fundamental consideration to be taken into account. There is at least a failure to comply with Rule 77(9)(a), but perhaps there is an incidental compliance with Rule 77(9)(b).
Mr Stojanovic alleges, but does not provide any substantive submissions in relation to, the “demonstrable and substantial injustice that would be caused if the appellant was to lose the right to appeal” except to state that the Arbitrator had told him not to submit any additional medical evidence, and that the report of Dr Maniam that he was waiting for “would have won him the case”. Further, Mr Stojanovic does not point to any “exceptional circumstances” that I should take into account in finding “demonstrable and substantial injustice” that would result should he lose the right to appeal.
Extension of time to lodge an appeal in the Commission is not granted routinely. The requirements of Rule 77(8) are reasonably strict. In order to determine whether an order extending time for appeal should be made, the factors set out in Gallo provide the framework for a consideration of the application. An examination of these factors will determine whether it is proven that strict compliance with the Rule will work an injustice upon Mr Stojanovic.
(a) The history of the proceedings
A brief history of the background and the proceedings is set out above and need not be restated.
Mr Stojanovic was represented before the Arbitrator at all relevant times. His solicitors state that he was an unrepresented litigant who did not have the benefit of legal advice, when he first filed an ‘Application to Resolve a Dispute’ in the Commission, in July 2004. However, the ‘Application to Resolve a Dispute’ to which the proceedings in the instant matter relate, is the Application lodged and registered in the Commission on 7 December 2004. The Application was lodged by Maurice Blackburn Cashman, Solicitors, instructed by Mr Stojanovic. Clearly, he was not without the benefit of legal advice and representation in the proceedings before the Arbitrator. This is particularly relevant in light of Mr Stojanovic’s current solicitors’ assertions that the Arbitrator induced or compelled Mr. Stojanovic not to produce any more medical evidence and “no oral evidence was given”.
The Arbitrator rejected State Rail’s submission that Mr Stojanovic failed to comply with his obligation under section 47(3) of the 1998 Act and made an award in his favour for payment of compensation for a closed period pursuant to section 40 of the 1987 Act. However, the Arbitrator found that the sole reason for the drop in Mr Stojanovic’s income since then “has been the reduction in hours”. Accordingly, applying the test in section 40(2) of the 1987 Act, she found that there had been no reduction in Mr Stojanovic’s income for the period after 4 May 2004.
(b) The conduct of the parties
The unexplained, inordinate delays in pursuing this Appeal against the Arbitrator’s refusal to make a continuing order for weekly payments, have been outlined and need not be repeated.
As already stated, Mr Stojanovic has not addressed himself to the statutory requirements placed upon the Commission under Rule 77(8), before an order can be made to extend time for lodging an appeal. The only reference made is a request to “Please treat this letter [dated 14 November 2005 – amended in handwriting from 6 September 2005], as submissions detailing arguments in favour of granting the extension of time and the demonstrable and substantial injustice that would be caused if Mr Stojanovic was to lose the right to appeal.” No arguments are in fact detailed, and the only issues addressed in the letter and the accompanying documents refer to the threshold requirements for the Appeal and a substantive issue before the Arbitrator, together with a copy of fresh evidence dated August 2005, some 5 months after the date of the Arbitrator’s decision.
Mr Stojanovic did not notify State Rail that he intended to make application for an extension of time to lodge his appeal until 21 December 2005, thereby failing to comply with Rule 77(9)(a) of the Rules.
No failure, procedural or otherwise, is evident on the part of State Rail.
(c) The nature of the litigation
No further comment is required, in addition to what has been set out, above.
(d)The consequences for the parties of the grant or refusal of the application for an extension of time to lodge the appeal
The consequence for Mr Stojanovic if the application for extension of time to bring his appeal is denied, is that the decision of the Arbitrator not to award continuing payments of workers compensation pursuant to section 40 of the 1987 Act will not be reviewed.
The consequence for State Rail if the application is granted, is the converse.
However, Mr Stojanovic has not demonstrated that strict compliance with the Rules will work an injustice upon him, as he is required to do (Gallo – see also Rule 77(8)). He was invited by the Commission to make relevant submissions, but his submissions in this regard, while not required to be lengthy or unduly detailed, are token and quite inadequate.
(e) Mr Stojanovic’s prospects of success on appeal
I am mindful of the fact that Mr Stojanovic was legally represented from the outset in relation to the proceedings before the Arbitrator. His representations on appeal, to some extent, ignore this fact. Notwithstanding that the sound card on which the record of the proceedings were made is defective, it is not a reasonable proposition, nor is it alleged in so many words, that his legal representatives in the proceedings remained silent, did not represent him in a competent way, and did not pursue the matter on his behalf. The submissions made by Mr Stojanovic’s current legal representatives, make no reference to the legal representation that he had before the Arbitrator, and appear to invite an inference that he was at some sort of disadvantage in this regard, when clearly, he was not.
It is true that the Arbitrator did not make specific reference in her ‘Statement of Reasons for Decision’, to the medical report dated 22 December 2003 from Dr Maniam, submitted by State Rail, and to other documents before her. However, she did take into account all of the evidence put forward by Mr Stojanovic in support of his claim, and he achieved a measure of success before the Arbitrator. Whether she took into account Dr Maniam’s report is not entirely clear, although she did state that she had taken into account all documents then before her, that had been lodged by the parties, and that included Dr Maniam’s report, which accompanied State Rail’s ‘Reply’.
Mr Stojanovic now wishes to rely in this appeal, on further documents, including a later report by Dr Maniam, which he has secured. These documents post date by 5 months, the decision of the Arbitrator. There is no explanation provided as to why these documents were not, and could not have been obtained at an earlier date, and filed with Mr Stojanovic’s Application lodged in the Commission on 7 December 2004, in accordance with Rule 38(1), so that they could have been in evidence before the Arbitrator. None of these documents were filed with the Application, nor were they specified in Mr Stojanovic’s Application in accordance with rule 38(2), as documents upon which he intended to rely.
In my view, Mr Stojanovic’s prospects of success on appeal may be somewhat doubtful.
(f) The vested right of State Rail to retain the award
Apart from the assertion that State Rail provided a false date of service of a document, there is no indication that it has done anything to diminish its right to retain the award made by the Arbitrator. Indeed, the proceedings have been unnecessarily prolonged by the inordinate and unexplained delays caused by Mr Stojanovic, who has failed to demonstrate, in accordance with the requirements in Gallo and under Rule 77(8), that he would suffer demonstrable and substantial injustice, if the application to extend time to appeal is not granted.
Conclusion
Having regard to the foregoing, I am not satisfied, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice to Mr Stojanovic.
DECISION
Leave to appeal is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
18 July 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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