Strang Stevedoring Australia Pty Ltd v Fitzgibbon

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	Strang Stevedoring Australia Pty Ltd v Gregory Allan Fitzgibbon [2003] NSW WCC PD 14
APPELLANT:	Strang Stevedoring Australia Pty Ltd
RESPONDENT:	Gregory Allan Fitzgibbon
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NO:	WCC1032-2002
DATE OF DECISION:	12 May, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	That the Respondent [employer] is liable to make weekly payments of $200 per week from 20 April, 2001 and continuing. Application to review decision as to: failure to give sufficient weight to evidence of incapacity; error in finding that workers’ capacity to find work adversely affected by injury, or alternatively, failure to give sufficient reasons as to exercise of discretion pursuant to section 40(2); error in assessing probable earnings; error regarding extent of incapacity; failure to make findings on credit; failure to consider effect of prior consent award.
DATE OF DECISION UNDER APPEAL:	17 December, 2002
HEARING:	Determined on the papers
REPRESENTATION:	Appellant: Diana Benk, QBE Workers Compensation (NSW) Ltd
Respondent: Paul Mantach, MRM Solicitors, Newcastle
ORDERS MADE ON APPEAL:	Leave to appeal is refused. The Appellant is to pay the Respondent worker’s costs as agreed or assessed.

THE APPEAL

On 17 January, 2003 the Respondent in the proceedings before the Arbitrator, Strang Stevedoring Australia Pty Ltd, (“the Appellant”) lodged an appeal with the Workers Compensation Commission (“the Commission”) against a decision dated 17 December, 2002, that the Appellant “is liable to make weekly payments [to Mr. Gregory Allan Fitzgibbon, the Applicant in the proceedings before the Arbitrator, (“the Respondent”)] of $200 per week from 20 April, 2001 and continuing”. The Arbitrator found on the balance of probabilities that the Respondent’s injury “must” have some effect on his ability to sell his labour on the open market.
The issues in dispute before the Arbitrator, as summarised by him, were:
·For what period was the Applicant [Respondent] partially incapacited? (WCA s 40)
·In respect of any period of partial incapacity for work;
(a)what is the weekly amount which the Applicant would probably have been earning but for the injury had he/she (sic) continued to be employed in the same or comparable employment? (WCA ss 40(2)(a), 42, 43)
(b)what is the average weekly amount the Applicant is earning or would be able to earn in some suitable employment from time to time after the injury? (WCA ss 40(2)(b), (3), 42, 43, 43A (definition)).

THE ISSUES IN DISPUTE IN THE APPEAL

The grounds of the appeal are summarised as follows:
(1)The Arbitrator failed to give sufficient weight to the oral and documentary evidence in the case which established that the worker was not incapacitated for his pre-injury employment from 20.04.01 and that there should not be any weekly compensation awarded because of the facts in evidence.
(2)The Arbitrator erred in finding that the worker’s capacity to obtain work on the open labour market has been adversely affected by his injury. In the alternative, if the worker is found to have suffered some degree of partial incapacity as a result of injury, then:
(3)The Arbitrator erred in failing to give reasons or sufficient reasons as to the manner in which he exercised his discretion pursuant to section 40(2) of the Act.
(4)The Arbitrator incorrectly applied such discretion and should have exercised his discretion because of the circumstances and facts of the case, such that any mathematical difference between the worker’s actual earnings and the worker’s probable earnings resulted in either no economic loss or in a loss of no greater than $50 per week.
(5)The Arbitrator erred in assessing the worker’s probable earnings but for injury at an amount greater than that which is the statutory maximum.
(6)The Arbitrator erred in equating 10% loss of the use of the left leg below the knee to a 10% incapacity.
(7)Given the contradictions in the worker’s oral evidence, the Arbitrator failed to consider, ascertain and/or make any findings as to the credit of the worker when considering his capacity for his pre-injury employment.
(8)The Arbitrator failed to properly consider the effect of the prior consent award in respect of 10% permanent loss of the left leg below the knee when dealing with the issue of incapacity.
The Respondent worker’s response may be summarised as follows:
(1)The decision of the Arbitrator was made on 17 December, 2002 and the Application to appeal against the decision of the Arbitrator was filed on 17 January, 2003. The submission is that the Application was filed out of time contrary to section 352(4) of the Workplace Injury Management and Workers Compensation Act 1997 (“the Act”) which provides that an appeal can only be made within 28 days of the making of the decision appealed against.
(2)The grounds set out in the Application disclose no proper basis for an appeal.
(3)The decision of the Arbitrator is corrrect and there has been no legal, factual or discretionary error as alleged by the Appellant.
(4)Leave to appeal should not be allowed and the Appellant should be ordered to pay the Respondent worker’s costs in relation to the appeal.
In response to directions and following receipt of the transcript by the parties the Appellant made further submissions dated 11 April, 2003 concerning the threshold requirements, determination of the matter on the papers and “breach of section 352(4) of the Workplace Injury Management Act”.
The Respondent made further submissions dated 22 April, 2003 elaborating the points of response, summarised above.
Both parties agreed to the determination of the matter on the papers, pursuant to section 354(6) of the Act.

JURISDICTION TO HEAR THE APPEAL

Section 352 of the Act provides:
“352Appeal against decision of the Commission constituted by an 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 the 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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Section 364 of the Act provides, inter alia:
“364 Rules of the Commission
(1)The Minister may from time to time by order make Rules of the Commission for or with respect to any aspect of procedures to be followed in connection with the jurisdiction or functions of the Commission, including provisions for or with respect to:
…
(g)the extension or abridgment of any period referred to in this Part,…”
The reference in the section to “this Part” is to Part 9, Proceedings before Commission, and includes all sections from section 349 to section 365.
The rules made under the Act are the Interim Workers Compensation Commission Rules 2001 (“the Rules”).
No rule has been made as to “the extension or abridgment of any period referred to in this Part”, pursuant to section 364(1)(g) of the Act.
Section 364(1) of the Act provides for the making of rules with respect to a whole range of matters that are set out in the section. One such rule is rule 5(2) which allows the Commission to dispense with compliance with the requirements of the rules. Consequently, “the Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.” Rule 5(2) applies to rule 50(2) which is complementary to section 352(4) of the Act, and which provides that an application for an appeal against the decision of an Arbitrator “must be lodged with the Registrar within 28 days after the making of the decision appealed against.” However, this is not enough to overcome the 28 day time limit prescribed in section 352(4) of the Act, as the section is not subject to the rules (including rule 5(2)), in the absence of a rule made pursuant to section 364(1)(g).
Similarly, Rule 64 gives the President a general power to extend or abridge time, but only as to time “fixed by any order or determination of the Commission”. There is no such order or determination under consideration in this matter, in which time has been fixed and, in any event, once again, the operation of section 352(4) is not subject to the rules, in the absence of a rule made pursuant to section 364(1)(g).
There is no other rule made under the Act, that operates, whether by the exercise of discretion or otherwise, to enable the 28 days prescribed under section 352(4) to be extended or abridged in any circumstances.
This issue was considered in Peter McBride v M & B Couriers Pty Ltd [2003] NSW WCC PD 12 on 17 April, 2003. In that matter, leave to appeal was refused having regard to the lack of jurisdiction of the Commission to deal with and determine the appeal.
In the submission of 11 April, 2003 the Appellant worker argued as follows:
“A certificate of determination in this matter was issued on 17 December, 2002. The documentation was posted on 23 December, 2002 and was date-stamped by the QBE in-House Legal Department on 31 December, 2002.
The Appeal Document was filed with the Commission on 17 January, 2003 and faxed to the Respondent Worker’s Solicitor on the same day.
Section 352(4) of the Workplace Injury Management Act states that: ‘an appeal can only be made within 28 days of the making of the decision appealed against.’
It is respectfully submitted that the leave to appeal should not be dismissed on the grounds of the document being technically three calendar days late given the extensive public holiday period throughout December/January.”
It is clear from an examination of the file that the Arbitrator’s Statement of Reasons for Decision and the Certificate of Determination were dated 17 December, 2002, as the Appellant claims. It is equally clear that the Statement of Reasons for Decision and the Certificate of Determination were posted by the Commission on 23 December, 2002 – some 6 days after the documents were completed and signed. I accept that the documentation was “date-stamped by the QBE in-House Legal Department on 31 December, 2002” – eight days after despatch by post, by the Commission.” Moreover, I understand the point being made in terms of all of this occurring over “the extensive public holiday period throughout December/January.” It is relevant to note for the sake of completeness, that pursuant to Rule 8, the Commission Registry is open for business over Christmas/New Year, except for Saturdays, Sundays and other public holidays or “days on which public offices are closed.”
There is no doubt that the Appellant has been disadvantaged, to some extent at least, as a consequence of the delay by the Commission, in posting the Statement of Reasons for Decision and the Certificate of Determination, and further, by the fact that the documents were not date stamped at QBE (and apparently did not come to notice) until 31 December, 2002. These factors combined, somewhat diminished the time and opportunity available to the Appellant to give consideration to the matter, and prepare and submit the appeal documents within the 28 days prescribed by the section. It is unhelpful that there is nothing in the file to suggest the reason for the delay by the Commission, in posting the documents. It is most unfortunate that the delay occurred at all, more especially given the time of year, and the obviously heightened potential for further delay to occur in the transmission and receipt of postal articles. It is also understandable that it took some eight days for the documents to be transmitted to and be processed by QBE, before they came to the notice of the Appellant worker’s legal representative. There were only three working days in this period. Whether the delay occurred wholly or partly in the postal system or within the offices of QBE, or a combination of both, is apparently not known. Whatever the causes of the delays, it is the Appellant worker ultimately, who suffered any disadvantage as a consequence of the delays.
In May, 2001 in Kucuk v Minister for Immigration and Multicultural Affairs, BC200102196 (unreported), a notice of objection to competency had been sent to the Federal Court by facsimile, by Australian Correctional Management staff at a detention centre on behalf of the applicant. It was sent to the wrong fax number and arrived at the Federal Court out of time. The Court held that it had no jurisdiction to extend time irrespective of the merits of an application for extension. Section 478(1)(b) of the Migration Act 1958 (Cth) provides that an application for review by the Federal Court of a decision of the Refugee Review Tribunal must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. An application is lodged with the Court when it is physically deposited with the Court, or when it comes into possession of the Court by some other means, including facsimile transmission: Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468. Section 478(2) of that Act prohibited the Court from making an order allowing, or having the effect of allowing, an applicant to lodge an application outside of the period specified in Section 478(1)(b). The Court said that the filing of an application within the time limit imposed by section 478(1)(b) is a condition of the Court’s jurisidiction to entertain the application. (It also observed that Full Court authority confirms that s478(2) means what it says and the Court has no jurisdiction to extend time irrespective of the merits of an application for an extension: Nirmalan v Minister for Immigration & multicultural Affairs [1998] FCA 672). Hely J. held that the terms of the statute and a line of authority establish that he had no power to grant an extension of time irrespective of the justice of doing so in the circumstances of a particular case.
There is no similar provision in the Workers Compensation Acts to section 478(2) of the Migration Act 1958 (Cth), section 478(1)(b). However, the Court held that filing the application within the time prescribed is a condition of the Court’s jurisdiction to entertain the application. It follows that the Court could not deal with the application absent compliance with this condition, whatever the substantive merits of the matter. A similar situation prevails in the instant proceeding before me.
In VDAQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 545 the Federal Court of Australia held that an application for a review of a decision of the Refugee Review Tribunal was not made within the time period prescribed by section 477 of the Migration Act 1958 (Cth). The applicant in that case did not initially, file an application for review with the Federal Court as he could not obtain legal advice and did not know how to file papers with the Court. He said that he had no money to retain a private lawyer, although at the time he was of the view that the Tribunal decision was wrong. He filed in due course but did not do so within twenty eight days of the notification to him, of the decision of the Tribunal. Goldberg J. said:
“It therefore follows that the Court has no jursidiction to entertain or hear the application. This situation may be productive of hardship and unfortunate results, but the Court is bound to observe and implement the legislative scheme. The Court has no power to extend the time within which the applicant may lodge an application for review of the Tribunal’s decision.”
He went on to say that the time limit is absolute and if the time limit is not complied with the Court has no jurisdiction to entertain any application filed subsequent to the expiration of that time.
As stated above, there is provision in section 364(1)(g) to make rules for the extension or abridgment of the time prescribed in section 352(4) within which an appeal must be filed. It has not been enlivened and consequently, no such rule exists to confer a power to extend or abridge the 28 days prescribed. It is unfortunate that this is so given the circumstances of delay outlined above, and the issues raised in the grounds of appeal. Filing within the statutory time limit of 28 days is a condition of the jurisidiction of the Commission to consider and determine the appeal. The fact remains, that I have no jurisdiction to proceed with the consideration and determination of this appeal. It is clear that the Legislature intended that such a power could be conferred on the Commission to extend or abridge time referred to in Part 9 of the Act, including the 28 days prescribed by section 352(4), within which an appeal must be lodged. If this power were to be conferred in the future, it would enable the Commission to extend the time for filing an appeal, if proper grounds to do so were established, having regard to the circumstances of a matter, and in particular to avoid undue disadvantage and/or injustice.
There is no dispute that the threshold requirements set out in section 352(2) of the Act are satisfied, however the matter cannot proceed because the Commission lacks jurisdiction for the reasons outlined.

DECISION AND DETERMINATION OF LEAVE TO APPEAL

Leave to appeal is refused.

COSTS

The Appellant is to pay the Respondent worker’s costs as agreed or assessed.

Gary Byron
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 14

12 May 2003