Tagg v International Flavours and Fragrances (Australia) Ltd
[2003] NSWWCCPD 5
•5 March 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Steven Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5 |
| APPELLANT: | International Flavours and Fragrances (Australia) Ltd |
| RESPONDENT: | Steven Tagg |
| INSURER: | CGU Workers Compensation (NSW) Limited |
| FILE NO: | WCC 2925- 2002 |
| DATE OF DECISION: | 5 March 2003 |
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming |
| DECISION UNDER APPEAL: | Application for Leave to appeal against a decision of an Arbitrator |
| DATE OF DECISION UNDER APPEAL: | 18 December 2002 |
| HEARING: | Leave determined on the papers |
| REPRESENTATION: | Appellant: Leigh Virtue & Associates |
| Respondent: P W Turk & Associates | |
| ORDERS MADE ON APPEAL: | Leave to appeal the decision of the Commission constituted by an Arbitrator dated 18 December 2002 is refused. |
THE APPEAL
On 21 January 2002 International Flavours and Fragrances (Australia) Limited (‘the Appellant’ in this appeal and the Respondent in the substantive proceedings) lodged an ‘Application to Appeal Against the Decision of an Arbitrator’ in the Commission. The relevant workers compensation insurer is CGU Workers Compensation (NSW) Ltd.
The appeal concerns a decision to grant an adjournment of a telephone conference in a dispute over payments of workers compensation to Steven Tagg (‘the Respondent’ in this appeal and the Applicant worker in the substantive proceedings). The application to appeal states that:
a) The employer appeals against the decision of the Commission constituted by an Arbitrator:-
i)Granting the Applicant’s application for an adjournment.
ii)To not identify him or herself.
iii)To not give reasons for the decision to grant an adjournment.
iv)To grant the Applicant worker’s adjournment before the Respondent employer was aware of that application, or in the alternative before the Respondent employer was given the opportunity of making submissions in relation to that adjournment application.
v)To not allow the Respondent employer to make submissions in relation to that adjournment application.
b)In making this Appeal the Respondent reserves its position to amend its Appeal in circumstances where no written decision nor reasons written or otherwise for any such decision have been provided. The Respondent is unaware of the exact date on which the Arbitrator‘s decision was made and for the purposes of this Appeal has assumed that decision is constituted by the notice provided to the Respondent employer’s Solicitor dated 2 January 2003 (attachment 3 to the Application).
c)The Respondent employer seeks the following orders on Appeal:-
i)That the decision of the Arbitrator be set aside.
ii)That the order rescheduling the Teleconference for 30 January 2003 at 10.30 a.m. be revoked.
On 31 January 2003 the Registrar (through her delegate) issued directions in the appeal. On 14 February 2003 the Respondent filed a written response to the appeal submitting that leave should not be granted. The President referred the appeal to me on 20 February 2003.
DETERMINATION ‘ON THE PAPERS’
The President’s Practice Direction 6B of 2002, provides that:
Where the Presidential Member is satisfied that sufficient information has been supplied in connection with the application for leave to appeal he or she may grant or refuse to grant leave without holding a conference or formal hearing, i.e. ‘on the papers’ (s 354(6) of the Act). It is expected that most applications for leave to appeal a decision of an Arbitrator and, if necessary, leave to give new evidence, will be determined on the papers unless the Presidential Member otherwise directs.
The Appellant has submitted that the matter can be dealt with on the papers if leave is granted and the appeal allowed but otherwise the matter cannot be dealt with on the papers and an urgent hearing date is required.
The Respondent submits that this matter is suitable to be determined on the papers.
I am satisfied that sufficient information has been supplied in connection with the application for leave to appeal to enable me to determine that issue without holding a conference or formal hearing i.e. ‘on the papers’ (section 354(6) of the Act).
It is also in the interests of the parties that the substantive issue in dispute in this matter, namely the determination of a dispute about payment of weekly compensation to Mr Tagg, be resolved as quickly as possible. Given the passage of time and the nature of the decision under review, the remedy sought by this application is futile. A Presidential member on appeal is empowered to either confirm the decision under review or to revoke it and issue a new decision (section 352 (7) of the Workplace Injury Management and Workers Compensation Act 1997). To do either of those things in relation to the adjournment of the proceedings that were set for 9 January 2003 is now meaningless in any practical sense. In the particular circumstances of this appeal I have proceeded to determine both the leave issue and the substantive issue on the papers.
HISTORY OF THE APPEAL
The original application, reply and supporting documents are to be found in the Commission file, which forms part of the documents before me. Also before me are submissions in support of the application for leave to appeal filed by the Appellant on 21 January 2003 and submissions filed by the Respondent on 14 February 2003. In order to fully understand the nature of these proceedings and the relevance of a chronology, I have set out the history as it presents itself on the documents.
· On 1 October 2002 Steven Tagg, through his legal representative Mr Edwards, filed an ‘Application to Resolve a Dispute’ and attached medical reports in the Commission. The application sought an order for weekly payments of compensation from 2 February 2002 ‘to date and continuing’. A Certificate of Service of the Application was filed on 9 October 2002.
· The Respondent filed a ‘Reply to the Application’ on 18 October 2002. Directions to Produce were issued at the request of the Respondent on 21 October 2002 and the relevant access periods for both parties expired on 21 November 2002.
· On 13 December 2002 the Registrar referred the dispute to a Commission Arbitrator for resolution.
· On 16 December 2002 the parties were advised by way of a written ‘Notice of Commencement of Proceedings’ that a teleconference had been scheduled for Thursday, 9 January 2003. They were also advised in the same notice that the matter would proceed to a Conciliation Conference/Arbitration Hearing on 29 January 2003.
· On 18 December 2002 there were various exchanges of correspondence among the Commission, the parties’ legal representatives, and the Arbitrator. Mr Tagg’s legal representative wrote to the Commission asking that the teleconference on 9 January 2003 be adjourned because he could not attend. Advice of this request was sent to the Respondent’s legal representative who replied in writing that he wished to make oral submissions in relation to the adjournment application. This letter (sent by facsimile at 15.32 pm) also includes the words “ . . . although we note your advice that that application has already been granted by the arbitrator (whom we note you refuse to identify)”. It appears from the documents on the Commission file that the Arbitrator decided the adjournment application in the absence of any response from the Respondent. The Arbitrator noted on a facsimile to the Commission, also dated 18 December 2002 (sent at 12.07 pm), that the teleconference of 9 January 2003 and the hearing of 29 January 2003 were to be vacated.
· On 2 January 2003 the Commission advised the parties in writing that the matter had been adjourned and a new date for the telephone conference was set for 30 January 2003.
· On 7 January 2003 the Respondent’s legal representative again wrote to the Commission. This letter noted that no response had been received to the request for reasons contained in the letter of 18 December 2002. The letter also asked the ‘Dispute Management Officer’ to whom it is addressed “to identify the Arbitrator who granted the adjournment”.
· As at the date of this decision no reasons for the decision of the Arbitrator to grant the adjournment of the teleconference of 9 January 2003 have been recorded on the Commission file.
As a result of the filing of this appeal on 21 January 2003 the teleconference re-listed for 30 January 2003, and later rescheduled to 31 January 2003, was cancelled. The reasons for taking this course are not clear to me but the consequence is that the substantive proceedings have been at a standstill.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’), as follows:
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
GRANT OF LEAVE
In support of the claim that leave to appeal should be granted, the Appellant relies upon the provisions of section 352(2) of the Act and the determination of Deputy President Byron in the matter of Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD5 (‘Mawson’). This reasoning in Mawson supports the proposition that where the ‘decision’ under appeal does not involve the making of a monetary award the threshold requirements of section 352(2)(b) can have no operation. Consistent with the definition of ‘decision’ in section 352(8) it is possible to appeal against an interlocutory decision, involving no ‘award’. The definition of ‘decision’ in section 352(8) encompasses interim awards, rulings and directions.
Section 352(2) has two limbs that must be satisfied. Section 352(2)(a) provides that the Commission is not to grant leave to appeal unless the ‘amount of compensation at issue on the appeal is . . . at least $5000’. Not all ‘decisions’ made by a Commission Arbitrator will be able to meet this statutory requirement. In Mawson the ‘decision’ under appeal was the refusal to issue a ‘Direction to Produce Documents’. The Deputy President accepted the argument that such a decision had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the appeal. Such an argument would also be persuasive where, for example, the decision was one as to the jurisdiction of the Commission to hear the claim, or concerned a direction in relation to the admission of evidence in an appeal. French, J. of the Federal Court observed in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 584 that:
“[I]nterlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings”.
Courts have often been asked to review interlocutory decisions that are procedural in character and have been cautious in their approach to doing so (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177). In Coles Myer Limited v Victorian WorkCover Authority and Frew [2002] VACA 144 (10 September 2002) the Victorian Court of Appeal considered an application to review an interlocutory procedural decision which, if settled, would contribute to uniform practices in the jurisdiction below. At the same time, if the decision were allowed to stand it “would not work a substantial injustice to the appellant”. Winneke, P. observed that:
“The judge's order might be relevant to a preferred view of the scheme of operation of an Act [the Accident Compensation Act 1985 (VIC)] which is frequently employed in this State and, in respect of which, it is no doubt desirable to have settled and uniform practices. But it is not a decision which determines the substantive rights of the parties in this litigation. For my own part, I regard the judge's order as one of the kind to which the oft-repeated words of Jordan, C.J. in In re Will of Gilbert (decd)[1] can aptly be applied. His Honour said:
‘There is a material difference between an exercise of discretion on a point of practice and procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of the judge at first instance, the result would be disastrous to the proper administration of justice.’”
The circumstances of each case, in particular whether the decision appealed against causes a ‘substantial injustice’ to one of the parties, are relevant to a determination of whether a ‘decision’ concerns purely procedural or substantive issues (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170).
The Commission is not a court and the limits of its powers are set out in the Workplace Injury Management and Workers Compensation Act 1998. There is nothing in that Act which contradicts the principle referred to above in Re Will of Gilbert. The application of section 352(2) is a matter of interpretation in its statutory context. It might be said that an onus is imposed on the Commission to keep a ‘tight rein’ on matters that impact on its practice and procedure in order that it may meet the statutory objectives contained in section 367 of the Act. It was clearly not the intention of the legislature that all decisions of Arbitrators be amenable to appeal to a Presidential Member.
Section 352 refers to the ‘amount of compensation at issue on the appeal’. This ‘amount’ may be different from the amount of compensation at issue in the dispute as a whole. A party may, for example, have received an award that results in partial success in relation to the amount of the original claim. In my view an appeal against a decision to grant an adjournment of a telephone conference does not concern the amount of compensation at issue in the dispute, nor in the appeal. There is no evidence that the grant of the adjournment in this matter put in issue the amount of the Appellant’s claim, affected the ability to pursue the amount claimed in the Commission or caused the Appellant a substantial injustice. The granting of an adjournment in this case was purely procedural and does not meet the threshold test in section 352(2)(a).The Appellant will have a full opportunity to conduct its case before the Commission at a later date. The right of appeal in relation to the Arbitrator’s decision on the substantive issues remains.
For these reasons I propose to refuse the application for leave to appeal. The appeal has raised a number of other issues that merit comment. Even if I took the view that the appeal was maintainable under the test in section 352(2) I would in any event refuse to revoke the decision to grant the adjournment for the reasons set out below.
SUBMISSIONS
The Appellant’s submissions may be summarised briefly as follows:
i.The Registrar has a mandatory obligation under section Part 5 Rule 28(2) of the Workers Compensation Commission Interim Rules 2002 to advise the parties of the identity of the Arbitrator who is to hear the matter. Natural justice also requires this.
ii.The President’s Practice Direction 2 of 2002 restricts the grant of adjournments to exceptional circumstances, which in this case were not satisfied.
iii.The failure to provide reasons for the decision is an error of law.
iv.The decision to grant the adjournment is affected by a denial of natural justice in contravention of section 354(6) of the Act.
v.The decision to grant the adjournment is ‘ultra vires’ by reason of the failure of the Arbitrator to first use his best endeavours to bring the parties to a settlement of the dispute in accordance with section 355(1) of the Act.
The Respondent’s legal representative did not make submissions on these issues, restricting his submissions to the argument that the appeal was without substance and the relief sought was of no effect.
DISCUSSION AND FINDINGS
The Appellant refers to Part 5, Rule 28(2) of the Workers Compensation Commission Interim Rules 2002, which provides as follows:
The Registrar is to notify the parties of the reference of the dispute to an Arbitrator or of a matter for medical assessment and of the identity of the Arbitrator or approved medical specialist, as appropriate.
The Appellant argues that this rule imposes a mandatory requirement on the Registrar to notify the parties of the identity of the Arbitrator ‘prior to any decision being made’. To interpret the Rule in this way is to unduly restrict the statutory powers of the Registrar and potentially fetter her ability to properly manage the business of the Commission. Section 349 of the Act provides that the arrangement of the business of the Commission is to be determined by the Registrar, subject to the Regulations. Regulation 83 of the Workers Compensation (General) Regulation 1995 provides that the Registrar determines which Arbitrator will hear any matter other than an appeal against a decision of an Arbitrator or an application for leave to appeal.
Rule 28 provides for the Registrar to exercise her discretion in notifying the parties of the Arbitrator who is to hear the matter ‘as appropriate’. It does not require her to do so at any particular point in the proceedings, although clearly the parties will be advised of the identity of the Arbitrator and afforded a full opportunity to present their case before a final decision is made on the substantive issues in the dispute. Rule 28 does not restrict the Registrar in the determination of purely procedural matters, nor require her to advise the parties of the identity of an Arbitrator who determines these matters. In any one case in the Commission there may be a number of procedural steps that the Registrar determines personally, or under delegation, or by allocation to an Arbitrator. It may also be necessary to reallocate a matter to a different Arbitrator between her issuing of a listing notice to the parties and the telephone conference and arbitration hearing of a matter. The Commission processes hundreds of applications at any one time and the Registrar must have the ability to adopt flexible procedures to meet the Commission’s objectives.
The role of the Registrar in the allocation and supervision of the business of the Commission is similar to the judicial role in the case management of a specific case or caseload. The overriding principle is that consideration be given to the demands of justice in the circumstances of the instant case. In Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 the High Court considered the factors relevant to judicial discretion, in the context of an application to allow the amendment of pleadings, and made the following observation:
Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.
It is common in other tribunals and in the courts for parties to be notified of the member or judge who is to hear the case only on the day of the hearing. In the uncommon event that a conflict of interest involving the decision-maker arises, that issue can be dealt with on the day. To expect the Registrar to organize the business of the Commission on the basis that a conflict may arise in each and every case and to impose upon her a mandatory requirement to advise the parties of the identity of the Arbitrator allocated to hear the matter at the earliest time, is to unreasonably restrict the Registrar’s discretion as to the conduct of the business of the Commission. This is not what is intended by the Act nor by the rules governing the procedures in the Commission.
The Appellant’s submission in relation to the application of President’s Practice Direction 2 of 2002 essentially amounts to a claim that the Arbitrator has erred in the exercise of a discretion to adjourn the teleconference listed for 9 January 2003. The President’s Practice Direction does not restrict an Arbitrator in this discretion but sets out the general practice, procedure and guiding principles to be considered. The Practice Direction clearly states that:
The Commission has the discretion to grant an adjournment, other than in accordance with this Direction, where procedural fairness in the instant case requires it.
The circumstances surrounding the grant of the adjournment in this case are clear. The Applicant’s legal representative requested an adjournment because he was going on annual leave. The Arbitrator granted this request in the absence of hearing from the Respondent. Section 354(6) of the Act does not require the holding of a formal conference or hearing to determine the application. However I accept that the failure to hear the Appellant on the application prior to making the decision ‘on the papers’ amounted to a ‘denial of natural justice’ as claimed by the Appellant. As such it is also an error of law. The point is now moot because there is no effective remedy to the Appellant in this matter. The original date of the proposed teleconference is long past.
The failure by the Arbitrator to give reasons is a further ground of the appeal.
Section 294 of the Act provides as follows:
294 Certificate of Commission’s Determination
(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3) . . . . .
Rule 41 essentially repeats this provision stating “where a dispute is determined by the Commission a certificate of determination must be issued with attached written reasons”. The question that arises is, when is a dispute ‘determined’ by the Commission? A dispute may be ‘determined’ in the sense that it is ‘decided’, or that the proceedings are ‘finally brought to an end’ (Proust v Blake (1987) 17 NSWLR 267). Ultimately it is a matter of statutory interpretation in context. Both section 294 and Rule 41 connect the determination of the dispute with the issue of a ‘Certificate of Determination’. The word ‘determination’ is used here in contrast to the use of ‘decision’ in Part 9 of the Act which concerns ‘Proceedings before the Commission’. As noted above, ‘decision’ in section 352 encompasses directions, awards, interim determinations and rulings. In my view the drafters have deliberately and carefully used the word ‘determination’ in section 294 and Rule 41 to signify something different to a ‘decision’, namely the final step in the proceedings. A matter is thus ‘determined’ in the Commission when the Arbitrator has made a final decision on the merits of the case and the respective rights and liabilities of the parties (GIO v O’Donnell (1996) 70 IR 1; Workcover Authority Of New South Wales v Charlie Sam Celea And Anor. [1998] NSWIR Comm 179). On this reasoning a decision to grant an adjournment does not ‘determine the dispute’ and does not require a written statement of reasons or the issue of a ‘Certificate of Determination’.
While I find that section 294 and Rule 41 do not require an Arbitrator to provide written reasons for a decision that does not finally determine the rights of the parties to a dispute, Arbitrators are also bound by the principles of procedural fairness in the exercise of their statutory role. It is generally accepted in administrative tribunals that the giving of reasons is an integral part of a fair and just decision-making process (Absolon v. NSW TAFE [1999] NSWCA 311; Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, 273). What amounts to adequate reasons will be determined by the nature and context of the decision and of the decision-maker (see Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCC PD 6, Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits.
The decision to grant or refuse an adjournment does not warrant detailed, lengthy, written reasons by an Arbitrator. To do so would undermine the Commission’s objectives. Procedural fairness in this context is satisfied if the Arbitrator records succinct reasons for the decision on the Commission file which may be communicated to the parties if requested. The reasons for the decision should state briefly why the adjournment was granted or refused, the application of the President’s Practice Direction and any other relevant factors that the Arbitrator has taken into account, for example the prejudice, if any, to the other party. The purpose of giving reasons is to enable the parties to understand why the decision has been made. In this case the Arbitrator failed to provide any reasons and was in error in failing to do so.
The Appellant’s final point of appeal is that “the decision to grant the adjournment is ‘ultra vires’ by reason of the failure of the Arbitrator to first use his best endeavours to bring the parties to a settlement of the dispute in accordance with section 355(1) of the Act”. Section 351 provides that the Commission constituted by an Arbitrator is not to make an award, or otherwise determine a dispute referred to the Commission for determination, without first using his or her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. As discussed above, the granting of an adjournment is not the ‘determination of the dispute’; it is a procedural step in the preparation and conduct of the matter in the Commission. An adjournment does not result in a settlement of the dispute. In my view section 355(1) has no role in such an interlocutory step. To expect an Arbitrator to conciliate between the parties in relation to an adjournment is to create unnecessarily cumbersome and time-consuming procedures in the Commission. It is ultimately inconsistent with the legislative directive to act with “as little formality and technicality as the proper consideration of the matter permits” (section 354(1)). This is not to say, as discussed above, that the Arbitrator should not seek the views of the parties in relation to the application for adjournment and take them into account in making the decision.
DECISION
Leave to appeal the decision of the Arbitrator to grant an adjournment of the teleconference scheduled for 9 January 2003 is refused.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) . .
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2) . . .
(3) . . .
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Appellant lodged this appeal on 21 January 2003. The part of the proceeding to which it relates, the telephone conference, was originally listed for 9 January 2003. I accept that the Appellant was not provided with a written decision nor reasons. At the same time it is clear that the Appellant knew of the decision to grant the adjournment on the same day that the decision was made, ie. 18 December 2002. The Appellant’s legal representative acknowledged, by letter to the Commission on that day, that he had been advised of the decision. The Commission notified the parties in writing of the adjournment on 2 January 2003. Had the Appellant wanted an effective remedy in relation to the decision, the appeal should have been lodged some time after 18 December 2002 but certainly prior to 9 January 2003. In the circumstances of this case the appeal is futile and the Appellant knew it to be so at the time of filing.
The only practical result of the appeal has been to delay the proceedings and deny the Arbitrator the real opportunity to use his ‘best endeavours’ to bring the parties to a resolution of the dispute. Nonetheless the Respondent to the Appeal has been put to the task of making written submissions in response to the appeal and the Commission has fulfilled its statutory obligation to properly consider it. This of course takes time and resources away from the Commission’s ability to progress the rest of its caseload in a timely way.
The comments of their Honours in Beitseen and Others v. Johnson and Others (1989) 29 I.R. 336 have relevance to the appeal in this matter. In Beitseen the Full Federal Court, sitting in its industrial division, declined to proceed with the further hearing of the appeal having been advised that the issues in dispute between the parties in that case no longer had any real practical significance. Their Honours said:-
`When the judicial system is in an apparently permanent state of stress, and Courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result - ...'
Having given careful consideration in this case to the question of whether to order the Appellant to pay an administration fee of $1000 to the Authority I have decided, on balance, not to do so. The bringing of the appeal has been futile and there are clearly grounds to justify such an order. However, I have taken into account that the Commission is a relatively ‘new’ authority, governed by novel statutory provisions and with practices and procedures not yet well known, or well enough appreciated, amongst legal practitioners.
The Appellant has been unsuccessful on the appeal and should bear the costs in accordance with the Act and the Regulations.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission
Registrar Date:
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