Teofilo v New South Wales Police Service
[2007] NSWWCCPD 200
•25 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Teofilo v New South Wales Police Service [2007] NSWWCCPD 200
APPELLANT: Adam Teofilo
RESPONDENT: New South Wales Police Service
INSURER:Allianz Australia Insurance Limited
FILE NUMBER: WCC1984-07
DATE OF ARBITRATOR’S DECISION: 21 May 2007
DATE OF APPEAL DECISION: 25 September 2007
SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998; meaning of “ready willing and able” in section 38A(2)(a) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Walker Legal
Respondent: DLA Phillips Fox
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 14 June 2007 Adam Teofilo (‘the Appellant Worker/Mr Teofilo’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 May 2007.
The Respondent to the Appeal is the New South Wales Police Service (‘the Respondent Employer’).
This matter has been the subject of a previous determination (the first arbitration) and an appeal determined by Acting Deputy President Moore (‘ADP Moore’) on 4 September 2007 (New South Wales Police Service v Teofilo [2007] NSWWCCPD 190). A detailed background to the claim was set out by ADP Moore at paragraphs [3] to [10]:
“3. Mr Teofilo was born on 2 August 1974. He commenced employment with the Appellant in 2000 as a general duties police officer. He claimed that on 31 January 2003 he injured his back lifting a corpse. After a brief period off work, he continued on full duties until he sustained a further injury in an accident on 16 August 2005. On that occasion, he was dismounting his push bike and suffered further injury to his back.
4. Following the incident on 16 August 2005, Mr Teofilo was off work until 28 November 2005 when he resumed employment with the Appellant on ‘light duties’ three days a week, four hours per day.
5. On 2 February 2006, Mr Teofilo was charged with a criminal offence. He was suspended from employment with the Appellant on full pay. He was convicted of the offence on 30 August 2006, and on 10 October 2006 was sentenced to four months imprisonment. He subsequently lodged an appeal.
6. Following his conviction on 30 August 2006, Mr Teofilo’s pay was withdrawn.
7. On 31 October 2006 Mr Teofilo filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 30 August 2006 to date and continuing pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
8. On 16 November 2006, Mr Teofilo was served with an Order pursuant to section 181D(1) of the Police Act 1990 under the hand of the Commissioner of Police wherein he was removed from the New South Wales Police Service, and his employment terminated.
9. In its Reply filed on 21 November 2006, the Appellant claimed, inter alia, that as a result of Mr Teofilo’s criminal conviction and subsequent termination of employment, he was not ready, willing or able to undertake employment, and that he was no longer incapacitated in any event as a consequence of the back injury he sustained on 16 August 2005.
10. The parties attended a conciliation/arbitration hearing on 26 February 2007. The Arbitrator gave an ex-tempore decision contained in the transcript of that date. His Certificate of Determination was issued on 12 April 2007. The Arbitrator’s determination was as follows:
‘1. That the Respondent pay the Applicant weekly benefits in the amount of $321.93 per week for the period 31 August 2006 to date and continuing.
2. That the Respondent pay the costs of the Applicant as agreed or assessed.
3. That this is a complex matter and proceeded direct [sic] to arbitration for the purposes of Item 4.11 of the Workers Compensation Regulation.’”
On appeal, ADP Moore revoked paragraph one of the first Arbitrator’s determination and made the following order in its place:
“(i) That the Respondent pay the Applicant weekly benefits in the amount of $200.00 per week for the period 31 August 2006 to date and continuing.
(ii) Credit to the Respondent for any payments made to date.”
Though it is not stated in her reasons, it is clear that the orders made by ADP Moore in paragraph [4 (i)] above were made under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 27 February 2007 (the day after the first arbitration) Mr Teofilo’s solicitor wrote to the Respondent Employer in the following terms:
“We note that the Workers Compensation Commission has found that our client is fit for suitable duties. For the record our client would like to perform suitable duties within your organisation and he instructs us to formally request that you provide to him suitable duties in accordance with the enclosed report from Doctor Bodel.
We formally make a request on his behalf for you to provide him suitable duties within the Police and we ask that you respond within the time limits set by the legislation.”
The report from Dr Bodel was not enclosed.
On 20 March 2007 Mr Teofilo filed an Application to Resolve a Dispute (‘the second Application’) in the Commission alleging that he sustained injuries to his back, legs and a psychological injury as a result of incidents at work on 31 January 2003 and 16 August 2005, and claiming weekly compensation from 27 February 2007 to date and continuing. The Application did not identify the sections of the 1987 Act on which Mr Teofilo relied to ground his entitlement to compensation.
By its Reply filed on 11 April 2007 the Respondent Employer identified several issues, including estoppel and that there had been no change in circumstances to justify a ‘review’ under section 55 of the 1987 Act.
On 12 April 2007 the Respondent Employer filed an appeal against the first arbitration decision.
The second Application was listed for conciliation and arbitration before a Commission arbitrator on 17 May 2007 when each side was represented by counsel. It was not until the teleconference and hearing that the basis of the second Application became clear. Mr Teofilo sought a review under section 55 of the 1987 Act and to have the first award varied to be an award under section 38 of the 1987 Act from 27 February 2007 to date. The Respondent Employer argued, for reasons that were not supported by any reference to the legislation or authorities, that the proceedings were a nullity and, in the alternative, that there were no grounds for reviewing the first Arbitrator’s decision or for making an award under section 38. After lengthy submissions from both sides, the Arbitrator gave an ex tempore decision in which he found the proceedings to be a nullity and, as a result, ordered that they be struck out.
Mr Teofilo seeks leave to appeal that order.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998’) 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 submissions 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 May 2007, records the Arbitrator’s orders as follows:
“1.That the proceedings be struck out pursuant to Rules 1.6 and 15.1 of the Workers Compensation Rules 2006.
2.No order as to costs.”
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Interlocutory
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352 of the 1998 Act, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), 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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.(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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
Clause 200B of the Workers Compensation Regulation 2003, as amended, provides that “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.
The distinction between a ‘final’ and an ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.”
His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:
“…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”
In my view, the order made by the Arbitrator was clearly a preliminary or interim order of an interlocutory nature as it has not disposed of or determined any of the parties’ rights. The authorities of Little v State of Victoria (1998) 4 VR 596 (‘Little’) and Wickstead v Browne (1992) 30 NSWLR 1 at 11 (‘Wickstead’) provide clear statements of principle that are applicable to the present matter. In Little, an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory. In Wickstead, an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was held to be interlocutory. Similarly, the Arbitrator’s order in the present matter has not finally determined the parties’ substantive rights in the principal claim. Mr Teofilo is free to issue further proceedings seeking the same relief, if he wishes to do so. The Arbitrator made no orders or findings that will restrict or inhibit that being done. Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and was not a ‘decision’ against which leave to appeal can be granted.
Therefore, leave to appeal must be and is refused.
Monetary Threshold
In light of my decision that the Arbitrator’s determination was of an interlocutory nature, it is not necessary to determine if the monetary thresholds have been satisfied.
OTHER MATTERS
Given the nature of the proceedings and the issues that were argued at the second arbitration, it is appropriate that I make some general observations about this claim.
First, the manner in which the claim under section 38 of the 1987 Act was particularised was inadequate. Neither the second Application, nor the correspondence that preceded it, fairly or adequately particularised the nature of the relief being sought or the basis on which it was alleged that Mr Teofilo had an entitlement to compensation under section 38 of the 1987 Act. That should have been done. That failure, however, did not render the proceedings a nullity (see Fletcher International Exports Pty Limited v Barrow & anor [2007] NSWCA 244 and Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364).
The Commission is not a court and is not bound by strict pleadings. Nevertheless, claims must be fully and adequately particularised so that a ‘dispute’ can be identified and properly assessed by the employer or its insurer (see Part 4 of the 1998 Act) and the appropriate notice of dispute issued under section 74 of the 1998 Act. Though no notice of dispute was issued in the present matter the dispute was properly referred to the Commission as there was a failure to determine the claim as and when required by the 1998 Act (see sections 289(1)(b) and 274 of the 1998 Act).
The insurer’s failure to issue a notice of dispute under section 74 was of no consequence in the present matter because the Application was filed prior to 1 May 2007 (see clause 2 of Schedule 6 Part 18J of the 1987 Act). If any further claim is issued it will naturally be caught by the new notice provisions.
Second, as the proceedings unfolded it became apparent that Mr Teofilo sought a ‘review’ of his first award under section 55 of the 1987 Act and sought an award under section 38 of the 1987 Act from 27 February 2007 to date and continuing. These matters should have been fully particularised in correspondence before the Application was filed in the Commission. The correspondence merely stated that as a request had been made by Mr Teofilo’s solicitor that his client be provided suitable duties then, if suitable duties were not going to be provided, Mr Teofilo “has to be paid pursuant to section 38” (see letter from Steve Walker & Associates to Allianz dated 1 March 2007). That letter fell well short of what was required to properly notify the insurer of what was being claimed and why.
Third, compensation is not payable under section 38 of the 1987 Act unless the worker is “seeking suitable employment” (section 38(4)). A worker is not to be regarded as seeking suitable employment unless, among other things, the worker is “ready, willing and able to accept an offer of suitable employment from the employer” (section 38A(2)(a)). This phrase has been considered in numerous authorities. Essentially, what is required is that a worker’s entitlement to an award under section 38 of the 1987 Act involves the existence of “an element of mutuality” (R J Brodie (Holdings) Pty Limited v Pennell (1968) 117 CLR 665 at 669 (‘Pennell’)). The High Court (Kitto, Taylor, Windyer and Owen JJ) added in Pennell that:
“There can, of course, be no ‘failure’ on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee’s conduct is inconsistent with the necessary degree of co-operation on his part.” (emphasis added)
There cannot be a failure to provide suitable employment if the circumstances are such that it can be seen that the worker is not ready, willing or able to enter the employ of the pre-injury employer (Pennell at 669). In the text Workers Compensation (New South Wales), second edition, by C P Mills, the author stated that there is no failure by the employer to provide suitable employment where the worker “engages in an activity which is incompatible with employment by that employer” (page 304). Though the reference to ‘activity’ was a reference to the worker engaging in other employment that would be inconsistent with the worker being “ready, willing and able” to engage in suitable employment with the employer, in my view it is also applicable to a situation where a worker has engaged in any ‘conduct’ that is inconsistent with the degree of necessary mutuality that is required before a worker can obtain the benefit of section 38 of the 1998 Act.
In the present matter Mr Teofilo resumed employment with the Respondent Employer on suitable duties on 28 November 2005. On 2 February 2006 he was charged with a criminal offence and was suspended from employment on full pay. He was convicted of the offence on 30 August 2006. His appeal against his conviction was dismissed though the penalty was varied. By notice under section 181D(1) of the Police Act 1990 dated 16 November 2006, the Commissioner of Police removed Mr Teofilo from the New South Wales Police.
As it is not necessary for me to decide this issue I have not formed a concluded view on it. However, it seems to me to be arguable, on the basis of the above authorities, that Mr Teofilo’s conduct whilst on suitable duties was ‘incompatible’ with his continued employment with the Respondent Employer. In these circumstances it is difficult to see how the required “element of mutuality” can be said to be present in this case.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
25 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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