Transfield Pty Limited v Bertinato - [2004] NSWWCCPD 57

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWWCCPD 57
Decision Date: 20 August 2004

CaseChat Overview and Summary

Transfield Pty Limited, an employer, appealed against a decision made by an Arbitrator in the Workers Compensation Commission (the Commission) in favour of Luigi Bertinato, the worker. The Arbitrator determined that Transfield was liable to pay compensation to Bertinato, including weekly payments and reimbursement of medical expenses, and ordered Transfield to pay costs. The appeal was brought more than five months after the Arbitrator's decision, thus outside the 28-day statutory appeal period. The Appellant sought leave to file the appeal out of time and to have the matter remitted back to the Arbitrator to provide written reasons for the decision. The Respondent argued that the delay prejudiced his right to finality and that the appeal should be dismissed.

The court considered whether exceptional circumstances existed to grant leave for the late filing of the appeal, focusing on the history of the proceedings and the conduct of the parties. The Appellant took steps to notify the Commission and the Respondent of its intention to appeal, but the Commission's administrative delays caused the delay. The court found that the Appellant would be denied the right of appeal if leave was refused, and it would be unfair to do otherwise given the circumstances. The application for an extension of time to file the appeal was granted, and leave to appeal was also granted.

The court found that the appeal could not proceed without the Arbitrator's reasons and the worker's evidence, as the absence of a transcript of the proceedings before the Arbitrator made a fair review impossible. The matter was remitted back to the Arbitrator for the provision of written reasons for the decision on or before 13 September 2004. The worker was ordered to file a statement of his evidence on or before 30 August 2004. Further submissions on the appeal could be filed by 5 October 2004, and the appeal was to be listed for hearing in the week beginning 11 October 2004.

Orders