Sullivan v Illawarra Newspapers Holdings Pty Ltd
[2006] NSWWCCPD 135
•3 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135
APPELLANT: Elizabeth Sullivan
RESPONDENT: Illawarra Newspapers Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19694-04
DATE OF ARBITRATOR’S DECISION: 10 June 2005
DATE OF APPEAL DECISION: 3 July 2006
SUBJECT MATTER OF DECISION: Leave to appeal; section 49 the Workplace Injury Management and Workers Compensation Act 1998; costs; frivolous; vexatious
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Turner Freeman
Respondent: Hicksons
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 August 2005 Elizabeth Sullivan (‘the Appellant Worker ’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 June 2005.
The Respondent to the Appeal is Illawarra Newspapers Holdings Pty Ltd (‘the Respondent Employer’).
The Appellant Worker commenced employment with the Respondent Employer on 18 December 1989 as a casual assistant copy controller. In about October 1991 she became a permanent part time employee working 28 hours per week (later 31 hours per week) as an advertising production coordinator. In 1995 her position became full time.
In or about 1999 she developed pain on the right side of her neck, headaches and right wrist pain. In September 1999 she made a claim for workers compensation benefits which was accepted. In October 2001 the Appellant Worker’s department was restructured and she became the display advertising book clerk, a job involving typing, filing and writing. Her symptoms continued and in March 2002 her hours were reduced to four per day five days per week because of the work injury. In about August 2002 she was transferred to the Respondent Employer’s classifieds section and again worked full time. After one week in this position her neck seized and she was declared unfit for work for two weeks. Since that time her hours have fluctuated.
As at October 2004 the Appellant Worker was working five hours per day five days per week. On 8 October 2004 she was advised that her employment was to be terminated because her inability to return to her pre injury duties. The termination was effective from 19 November 2004. At all times the Appellant Worker has been paid, and continues to be paid her entitlements to weekly compensation and her hospital and medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 1 December 2004 the Appellant Worker filed an Application to Resolve a Workplace Injury Management Dispute (‘the Application’) with the Commission alleging that suitable duties are available with the Respondent Employer and that by withdrawing those duties it is in breach of its Work Injury Management Agreement. The Application does not identify the relief sought but states the “Reason for Application” is “No suitable duties have been provided”.
On 21 December 2004 a Dispute Assessment Manager held a conciliation teleconference. At that conference it was ‘recommended’ that the Respondent Employer re-examine the available employment options for the Appellant Worker within its organisation.
By a letter dated 28 February 2005 the solicitors for the Respondent Employer stated that the Commission has no jurisdiction to hear the application and added that the Appellant Worker had commenced reinstatement proceedings in the Industrial Relations Commission of NSW (‘the Industrial Commission’) at about the same time as the proceedings in the Commission were commenced.
After a teleconference on 11 April 2005 a Certificate of Determination was issued on 20 April 2005 in which the parties were directed to prepare and file written submissions on the issue of whether the Commission had jurisdiction to hear and determine the Appellant Worker’s Application.
The matter was then allocated to a different (legally qualified) Arbitrator for determination of the ‘jurisdiction issue’ on the papers. Each side made lengthy submissions as per the direction of 20 April 2005. Those submissions are in the papers before me.
The Arbitrator determined that the Commission has no jurisdiction to make the orders sought and the Appellant Worker now seeks leave to appeal from that order.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 June 2005 records the Arbitrator’s orders as follows:
“1.That the Application is a nullity, and is struck out.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether:
1.the Appellant Worker is entitled to maintain proceedings in the Commission at the same time as the proceedings in the Industrial Relations Commission of NSW;
2.the Commission has power to order reinstatement of the Appellant Worker’s employment, and
3.the Commission has jurisdiction to make orders that the Respondent Employer provide suitable duties to the Appellant Worker who is no longer in its employ.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE TO APPEAL
Time
The decision appealed from was decided on 10 June 2005. The ‘Appeal Against Decision of Arbitrator’ was initially filed out of time on 5 August 2005 but was rejected by the Registrar because of a failure by the Appellant Worker to attach submissions on threshold issues relating to the granting of leave to appeal. The appeal documents were again filed on 12 August 2005. An appeal against a decision of the Commission constituted by an Arbitrator must be made within 28 days after the making of the decision appealed (see section 352(4) of the 1998 Act).
The Appellant Worker seeks an extension of time in which to lodge its appeal. The reasons for the late lodging of the appeal are set out on page 12 of the submissions filed in support of the appeal. The Workers Compensation Commission Rules 2003 (‘the Rules’) provide that the time for making an appeal may be extended in certain circumstances (see Rule 77). Rule 77(8) provides:
“(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.”
The Appellant Worker submits that upon receipt of the Arbitrator’s decision advice was sought from counsel. A brief was forwarded to counsel on 27 June 2005. Due to the brief being “misfiled” by counsel the advice and settled submissions were not received until 4 August 2005. The appeal was then lodged “forthwith” on 4 August 2005 but was rejected as noted above and was again lodged on 12 August 2005. It should be noted that the submissions filed in support of the appeal are, apart from four paragraphs on page 11, in identical terms to those filed in the Commission on 21 April 2005 pursuant to the direction issued on 20 April 2005.
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see 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 judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Respondent Employer opposes the time to appeal being extended and submits, correctly in my view, that there will be no “substantial injustice” if time to appeal is not extended because the Appellant Worker will be entitled to pursue her rights in the Industrial Commission where her application has currently been stood over generally (see Appellant Worker’s submissions page 10). The Appellant Worker will have lost nothing. She will be able to pursue her reinstatement application before a tribunal set up with the expertise and powers to hear and determine exactly such matters as she sought to argue before the Commission.
Whilst I have not formed a concluded view on the merits of the appeal, my prima facie view is that the Commission does not have jurisdiction to order the reinstatement of an employee whose employment has been terminated by his employer. The Commission’s powers are to those expressly set out in the relevant legislation (the 1987 Act and the 1998 Act together with such rules and regulations made under those Acts). The primary source of the Commission’s power to make awards is found in section 9 of the 1987 Act which provides:
“9 Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.” (emphasis added)
The term “compensation” is defined in section 4 of the 1998 Act as follows:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
That the Commission’s power is limited to the awarding of compensation in the circumstances set out in the relevant legislation is confirmed when one looks at the Commission’s enforcement powers in section 362 of the 1998 Act which provides:
“362 Recovery of amounts ordered to be paid
(1) For the purposes of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.
(2) A certificate given under this section must identify the person liable to pay the certified amount.
(3) A certificate of the Registrar under this section that is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment.” (emphasis added)
The Commission’s limited powers are to be contrasted with the express powers of the Industrial Commission found in Part 7 of the Industrial Relations Act 1996 (in particular section 94 of that Act) to order the reinstatement of injured workers in certain specified circumstances. There is no equivalent power in either the 1987 Act or the 1998 Act.
Considering all of the above matters the application to extend the time in which to appeal is refused because I am not satisfied that the refusal to extend the time in which to appeal will result in a “demonstrable and substantial injustice” to the Appellant Worker.
The Respondent Employer also submits that the Rules are invalid to the extent that they purport to grant a power to the Commission to extend the time in which to appeal as such a power is inconsistent with the words of section 352(4) and with ‘objectives of the Commission’ set out in section 367 of the 1998 Act (see Respondent Employer’s submissions page seven). I do not agree. This submission ignores section 364(g) of the 1998 Act which provides that the Minister may make Rules “with respect to the extension or abridgment of any period referred to in this Part”. There is nothing inconsistent in a rule which provides for an extension of time in which to appeal in “exceptional circumstances” and the provisions of section 367 of the 1998 Act. One of the objectives in section 367 is to provide a “fair” system for the resolution of disputes. That objective is consistent with the terms of Rule 77(8) which reduces the potential injustice that may result from an inflexible application of the time limit set out in section 352(4). Further, the Rule is consistent with section 354(3) which provides that “the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form”. I reject the submission that Rule 77(8) is invalid.
Monetary Threshold
If I am wrong in my decision to refuse to extend the time in which to appeal a further difficulty arises before leave to appeal can be granted. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. That section provides:
“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.”
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”.
The term “compensation” is defined in section 4 of the 1998 Act (see paragraph 22 above).
In the present case the Application did not seek an order for the payment of “compensation” but merely noted in the Application that “No suitable duties have been provided”. Therefore, no “compensation” is “at issue” on appeal and the appeal does not meet the threshold test in section 352(2).
The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The “. . . amount of compensation at issue on the appeal” is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
It is possible to appeal against an interlocutory decision where no monetary compensation has been awarded but only where the decision or order has a real capacity to put the award of ‘compensation’ in issue in the appeal. In Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27] it was noted:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).” (emphasis added)
In the present case as no ‘amount of compensation’ was claimed in the Application before the Arbitrator the thresholds in section 352 of the 1998 Act have not been met and leave to appeal is refused.
DECISION
Leave to appeal is refused.
COSTS
The Respondent Employer seeks costs in respect of the original proceedings and on appeal on the ground that the Application and the appeal “should be deemed frivolous or vexatious” as the claim was “so obviously untenable that it cannot possibly succeed” (see Respondent Employer’s submissions at page 16).
I am not aware of any authority where the terms of section 49 of the 1998 Act have been considered in the same factual setting presented in the present case. The Arbitrator’s decision in Denyer v B & D Roller Doors WCC11294-2003 dated 12 January 2003 is relevant but distinguishable on the facts as the worker in that case was still employed by the employer at the time of the application.
Reference is made to several authorities including Emeli Taeiloa v Forstaff Personnel
[2003] NSWWCCPD 8 where Deputy President Bryon said at [15]:
“The words/phrase ‘frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning. The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice; a frivolous objection characterised by lack of seriousness or sense’. ‘Vexatious’ is defined as ‘causing vexation; vexing, annoying...’: Mudie v Gainriver Pty Ltd & Anor [2002] QCA 546 (13 December, 2002) per McMurdo P and Atkinson J. These words (or this phrase) are variously used in different contexts, but in any event, indicate that something much more than lack of success needs to be shown before proceedings (or a claim) can be said to be frivolous or vexatious: Mudie v Gainriver Pty Ltd & Anor (supra). The words were discussed in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, where Deane J said that ‘vexatious’ means productive of serious and unjustified trouble and harassment. This meaning was approved by Mason CJ, Deane, Dawson and Gaudron JJ, in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. An action may be deemed frivolous or vexatious if it is so obviously untenable that it cannot possibly succeed or is ‘manifestly groundless, so manifestly faulty that it does not admit of argument’: L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621.”
It is then submitted that “one of the indicia of the groundless basis of the present claim is that it has no judicial support despite decades of existence of rights enabling an injured worker to seek suitable work from an employer” (see Respondent Employer’s submissions at page 17). The provisions in Chapter 3 of the 1998 Act have only been in force since 1 June 1998. That there is no authority dealing with section 49 is hardly surprising given that appeals to a Presidential member are by leave in the restricted circumstances set out in section 352 noted above.
Given the wording of section 49 of the 1998 Act and having regard to the Appellant Worker’s submissions on appeal I am not satisfied that either the original Application or the appeal could be fairly described as ‘vexatious’ or ‘frivolous’. The application for costs against the Appellant Worker is refused.
Given that leave to appeal is refused there is no jurisdiction to entertain any costs in respect of proceedings before the Arbitrator.
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
3 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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