Transfield Pty Limited v Bertinato
[2004] NSWWCCPD 57
•20 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57
APPELLANT: Transfield Pty Limited
RESPONDENT: Luigi Bertinato
INSURER:NRMA Workers Compensation (NSW) (No. 2) Pty Limited
FILE NUMBER: WCC11454-2003
DATE OF ARBITRATOR’S DECISION: 4 December 2003
DATE OF APPEAL DECISION: 20 August 2004
SUBJECT MATTER OF DECISION: Leave to file Appeal Out of Time; Remittal for Arbitrator to provide reasons; Absence of Transcript.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: Hicksons, Lawyers
Respondent: Di Lizio & Associates, Solicitors
ORDERS MADE ON APPEAL:
1.The application for an extension of time, until 27 May 2004, for the filing of the appeal is granted.
2.Leave to Appeal is granted.
3.The Respondent Worker is to file a statement of his evidence on or before 30 August 2004.
4.The matter is remitted back to the Arbitrator who determined the matter, for the provision of written reasons for the decision of 4 December 2003, on or before 13 September 2004.
5.The parties may file and serve further submissions on the appeal on or before 5 October 2004.
6.The appeal is to be listed for hearing before me in the week beginning 11 October 2004.
THE APPLICATION TO APPEAL
On 27 May 2004 Transfield Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 December 2003.
The Respondent to the Appeal is Luigi Bertinato (‘the Respondent Worker’).
The appeal was referred to me for review on 16 August 2004.
I am satisfied that the amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)), and no amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
THE DECISION UNDER REVIEW
Mr Bertinato filed an ‘Application to Resolve a Dispute’ in the Commission on 25 June 2003. The dispute concerns a claim for payment of weekly compensation from 8 July 2000, to date and continuing, and associated medical expenses.
The dispute was referred to an Arbitrator who held a telephone conference on 23 September 2003, and a conciliation and arbitration conference on 17 November 2003, with the parties and their legal representatives. On 4 December a Certificate of Determination was issued as follows:
“The determination of the Commission in this matter, made with the consent of the parties, is as follows:
-The Respondent Insurer – Transfield - is liable to pay to the Applicant s.40 weekly compensation at the full statutory rate for a worker beginning 8 July 2000 to date and continuing.
-The Respondent Insurer- Transfield - to reimburse the Applicant in accordance with the HIC Notice of Charge and other medical expenses listed in the Statement of Evidence, the sum of $4,784.50.
-The Respondent Insurer – Transfield - to pay costs as agreed or assessed.”
The attached ‘Statement of Reasons - ExTempore Orders’ stated that ‘a sound recording of the reasons given is available to the parties’, however the Registrar has since advised that no sound recording exists.
ISSUES IN DISPUTE
The threshold issue to be decided is whether or not leave should be granted to extend the time for filing of the appeal. Section 352(4) of the 1998 Act provides that an appeal must be lodged within 28 days of the Arbitrator’s decision. In this matter the appeal was filed more than five months after the decision was made.
The substantive grounds of appeal submitted by the Appellant are:
· “The arbitrator allowed the applicant to give unsworn and unrecorded evidence in breach of rules 38 and 66 [Workers Compensation Commission Rules] 2003.
· The arbitrator wrongly refused to allow an adjournment to enable the Respondent insurer interests to consider, investigate and respond to the applicant’s fresh evidence.
· The Arbitrator failed to give, or at least record, adequate reasons.”
LEAVE TO FILE OUT OF TIME
In normal circumstances leave would not be granted for the filing of an appeal more than five months after the Arbitrator’s decision. Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes (section 367 of the 1998 Act). A party who has the benefit of an order is entitled to rely on the finality of that order. In this matter, for reasons unknown to me, the Order in favour of the Worker appears not to have been met, despite the fact that it was made in December 2003.
Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) effective from 1 July 2003, relevantly provides that:
“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 Rules do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an appeal against the decision of an Arbitrator. Ultimately the discretion must be exercised to ensure that ‘justice between the parties’ is achieved (Gallo v Dawson (1990) 93 ALR 479; Wykanak v Rockdale City Council & Ors [1999] NSW CA 65; Halliday v High Performance Personnel Pty Ltd(in Liq) (formerly SACS Group Pty Ltd) (1993) 113 ALR 637).
As I stated in Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22,
“The courts have frequently considered this issue. Guidance as to the factors that a court or Tribunal should have regard to when exercising the discretion to extend time is found in the leading case of Gallo v Dawson (1990) 93 ALR 479. In that case Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court and set out the following guiding principles:
‘. . . The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: 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 judgement” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.’”
I have taken the matters referred to by Justice McHugh into account in the particular circumstances of this case, in particular the history of the proceedings and conduct of the parties.
The Appellant has submitted that the “application for leave to appeal has been brought out of time as a result of a regrettable series of incidents beyond the Appellant’s control and is itself a reason for appeal”. These ‘incidents’ are, in summary, as follows:
·On 25 November 2003, one week following the arbitration, the Appellant wrote to the Registrar asking for a copy of the transcript of the proceedings before the Arbitrator. No written response was received to this request until 4 May 2004.
·On 15 December the Appellant applied to the Registrar for an extension of time to file the appeal. No copy of this correspondence appears on the Commission file, however the Respondent Worker lodged a Reply to the Application for Extension of time, on 23 December 2003. The Registrar took no action on the application.
·On 25 March 2004 the Appellant again wrote a letter to the Registrar enclosing copies of all previous applications and correspondence. This letter reports that the Appellant had been advised by an officer of the Commission that no application to extend time was currently before it. The letter concludes with a request that the Registrar consider the application to extend time as a matter of urgency. No reply was made to this letter.
·On 2 April 2004 the Appellant again wrote to the Registrar requesting urgent consideration of the Application to extend time for the filing of the appeal.
·On 16 April 2004 the Registrar wrote to the Appellant advising that ‘Despite an extensive search, the Commission is unable to locate the application and related correspondence”. She requested that all documents be refiled.
·On 19 April 2004 the Appellant refiled the correspondence of 25 March 2004 and 2 April 2004.
·On 4 May 2004 the Registrar wrote to the Appellant advising that the letter of 25 March 2004 had been found, however that “In order for this request [for time to be extended for the filing of the appeal] to be considered, please lodge an Application for Appeal against the decision of the Arbitrator [sic]”.
·On 27 May 2004 the Appellant filed and served the ‘Application against Decision of Arbitrator’.
·On 28 May 2004 the Registrar wrote to the Appellant repeating the request that it lodge the application, for which it was seeking an extension of time.
·On 31 May 2004 the Registrar issued Directions that the Appellant and Respondent respectively file and serve the Appeal and the Reply to the Appeal. Time was subsequently extended to allow the Respondent to file submissions late. The Respondent’s submissions were filed on 7 July 2004.
·It appears that the Arbitrator’s file containing copies of the evidence and submissions that were before her cannot be found and has most likely been destroyed.
The Respondent Worker submits that: “The Arbitrator heard and determined this matter on the 17th November 2003. It is now many months since then and the Applicant has been kept out of his money for all this time”.
I am satisfied that exceptional circumstances exist to extend the time for the filing of this appeal. Given the conduct of the matter by the Commission to date, it would be unfair and unjust to do otherwise. The Appellant took a series of steps to put the Commission and the Respondent on notice of its intention to appeal. The request for transcript was made prior to the issue of the Certificate of Determination and the request to extend time for the filing of the appeal was made well within the statutory 28 day appeal period. The delay occasioned in this matter is not due to the tardiness of the parties. The Appellant Employer would be denied the right of appeal if leave is refused. I have taken into account that the Respondent Worker has been prejudiced by the delay. However, weighing all of the factors together, I have concluded that it would be unfair and unjust to refuse the grant of leave to file the appeal out of time.
The application for an extension of time, until 27 May 2004, for the filing of the appeal is granted.
Leave to appeal is granted.
DISCUSSION AND FINDINGS
Both parties have submitted that the appeal may be determined ‘on the papers’ in accordance with section 354(6) of the 1998 Act. However, the Appellant Employer also submits that the ‘papers’ are deficient because there is no transcript of the proceedings before the Arbitrator and, therefore, of the reasons for decision. The Appellant submits that:
“As there are no reasons recorded it is impossible to examine the decision of the arbitrator to establish whether or not the decision was in accordance with the facts or law, whether evidence was properly admitted or not and whether the reasoning for the decision was sound. Therefore the appeal must be allowed.”
No statement of evidence by the worker has been filed, in accordance with Rule 38. The ‘Statement of Evidence’ filed by the Respondent Worker’s legal representative is a summary document. The Appellant Employer submits that the Respondent Worker should be ordered to file a statement in the appeal. This would amount to the filing of fresh evidence on the appeal, which may only occur with leave.
The Respondent Worker submits that the Arbitrator correctly treated the summary statement of evidence as the Worker’s evidence, in accordance with Rule 38. ‘Short oral evidence’ was also given by the worker.
Without a copy of the transcript I am not informed as to whether the Arbitrator exercised her discretion to dispense with the requirements of the Rules, in the interests of fairness, to allow Mr Bertinato to give oral evidence. I have no record of that oral evidence.
I am not satisfied that this matter can be determined on the papers on the basis of the documents that are before me at this time. I agree with the Appellant Employer’s submissions, that to proceed to review the Arbitrator’s decision, in the absence of the worker’s evidence and the reasons for decision, would be unfair. In my view it is not possible to review the decision in this matter without a record of the reasons or the evidence that were before the Arbitrator. However, I do not agree that the consequence of the failure to record the arbitration is that the decision should be automatically overturned on appeal. This must depend on the circumstances of each case, including whether or not there is real opportunity for a fair review by a Presidential Member on the material before him or her on the appeal.
This is not the first matter in the Commission where these issues have arisen (see Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 41; Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). A Presidential Member has a statutory obligation to ‘review’ the decision on appeal wherever it is possible to do so. While the jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator, it is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).
Where fairness to the parties will be advanced by referral of the matter back to the Arbitrator in order that written reasons be provided, this should be affected. The parties are entitled to exercise their right of appeal to a Presidential Member. Without a record of the reasons for the decision they are frustrated in that right. The alternative is to set aside the Arbitrator’s decision and remit the matter to a different Arbitrator for determination afresh. While this course may be appropriate in some circumstances, it is a costly and time-consuming exercise and is not generally consistent with the Commission’s objectives.
In proceeding in this way in this case, I am mindful of the fact that there has been significant delay in the progress of the appeal in the Commission and that the record of the oral evidence given at the arbitration is not available. However, on balance, I am of the view that the appeal cannot proceed without the Arbitrator’s reasons. In preparing the reasons she will have before her all the documentary evidence that was filed at first instance and her own notes of the oral evidence given at the arbitration.
I accept the Appellant Employer’s application that the worker be required to file his evidence in written form. The summary statement filed by his solicitor does not meet the requirements of the Rules and the absence of the transcript of his oral evidence leaves the record of the evidence that was before the Arbitrator incomplete and inadequate.
To this end I propose to review the Arbitrator’s decision in two stages. I have considered the threshold ground of appeal that concerns the failure to provide reasons for decision. Having found that no reasons have effectively been provided, I propose to remit the matter back to the Arbitrator for this to occur.
DECISION
The application for an extension of time, until 27 May 2004, for the filing of the appeal is granted.
Leave to Appeal is granted.
The Respondent Worker is to file a statement of his evidence on or before 30 August 2004.
The matter is remitted back to the Arbitrator who determined the matter, for the provision of written reasons for the decision of 4 December 2003, on or before 13 September 2004.
The parties may file and serve further submissions on the appeal on or before 5 October 2004.
The appeal is to be listed for hearing before me in the week beginning 11 October 2004.
Dr Gabriel Fleming
Deputy President
20 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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