Yan Qian Miu v Julie Duetoft
[2004] NSWWCCPD 86
•8 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Yan Qian Miu trading as Roselands Florist v Julie Duetoft & WorkCover Authority of New South Wales [2004] NSW WCC PD 86
APPELLANT: Yan Qian Miu trading as Roselands Florist
FIRST RESPONDENT IN THE APPEAL: Julie Duetoft
SECOND RESPONDENT IN THE APPEAL: WorkCover Authority of New South Wales
INSURER:WorkCover Authority of New South Wales
FILE NUMBER: WCC6507-04
DATE OF ARBITRATOR’S DECISION: 23 July 2004
DATE OF APPEAL DECISION: 8 December 2004
SUBJECT MATTER OF DECISION: Failure to properly exercise discretion in removing appellant from proceedings and to join proceedings; misapprehension or mistake as to the effect of section 145 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Gary Byron, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Camly & Co Solicitors (no longer acting for the Appellant Employer)
First Respondent: Villari & Co Solicitors
Second Respondent: WorkCover Authority of New South Wales
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 23 July 2004, is revoked and the following decision is made in its place:
The Appellant Employer is restored as a party to the substantive proceedings in this matter. The matter is to be listed and referred to the Arbitrator in Yan Qian Miu trading as Roselands Florist v WorkCover WCC 9268-04 for determination together with those proceedings.
No order is made as to costs.
BACKGROUND TO THE APPEAL
Julie Duetoft, the first Respondent in this appeal, was employed by Yan Qian Miu trading as Roselands Florist, the Appellant Employer in this appeal, and whilst so employed, suffered an injury. Ms Duetoft made a claim for workers compensation but the Appellant was not insured for workers compensation. The WorkCover Authority of New South Wales has paid Ms Duetoft a considerable amount of money and has sought to recover this amount as a debt due to it, from the Appellant Employer. That matter is pending in the Local Court. However, the issues in relation to the injury, including a claim for permanent impairment and medical expenses are in dispute, as is the quantum of the claim. This is the substantive dispute before the Arbitrator. The WorkCover Authority is the second Respondent in this appeal and a Respondent in the dispute before the Arbitrator, from which this appeal has arisen.
A second dispute, WCC9268-04 in relation to the same injury, is presently before the Workers Compensation Commission constituted by another Arbitrator, in relation to the recovery action taken by WorkCover against the Appellant Employer in this appeal, pursuant to section 145 of the Workers Compensation Act 1987 (the 1987 Act). This relates to the payments made by WorkCover to Ms Duetoft, as outlined in paragraph 1.
By letter dated 22 July 2004. the Appellant Employer wrote to the Commission, briefly outlining the circumstances as set out in paragraphs 1 and 2 above, and stated:
“On behalf of the uninsured Second Respondent [the Appellant], we have filed a Defence in the Local Court proceeding seeking a stay until such time as the issue of work injury with the uninsured Second Respondent or not and liability for compensation entitlement is finally determined by this Commission in s145(3) proceedings.
Accordingly we make formal request that the matters in the Commission referred to above be heard together or consolidated in the interest of conserving the costs of WorkCover, the Applicant and the uninsured second Respondent.
Would you kindly consider this request prior to the TeleConference tomorrow.”
The request was put before the Arbitrator at the teleconference. Insofar as it relates to this appeal, the Arbitrator made the following statement and order:
“1. I note there is no dispute that at the date of injury the Respondent was not insured, and no issue that Workcover in those circumstances is an appropriate Respondent.
2. The issue has been raised as to whether the uninsured Respondent is properly a party to these proceedings. I am informed that there are separate proceedings 9268/04 in respect of S145 (3) WCA determination of liability. However, that set of proceedings can only be for actual not prospective liability. I am informed by Workcover that they do not dispute liability and have voluntarily paid weekly payments and medical expenses to date and continuing.
3. In the circumstances, I consider that to join the other proceedings, as Mr Hickey of Counsel proposes is likely to extend and delay this matter. Accordingly I decline that application. I order that the Second Respondent be removed as a party to these proceedings.”
On 19 August 2004, the Appellant Employer lodged in the Commission an Appeal Against Decision of Arbitrator. The documents were returned to the Appellant for completion of submissions “on threshold” and these were received in the Commission again on 25 August 2004. All documents, including Ms Duetoft’s submissions, were lodged in the Commission on or before 5 October 2004, in accordance with Directions made by the Commission.
There are no written submissions from WorkCover on the file in relation to the Arbitrator’s decision, and I am not aware of any submissions made by or on behalf of WorkCover, as to the issues the subject of this appeal, in the proceedings before him. Those proceedings were not recorded and consequently, no transcript of evidence is available.
ISSUES IN THE APPEAL
The issues in the appeal are whether the decision of the Arbitrator to dismiss the uninsured Appellant Employer from the proceedings is a denial of natural justice; whether the decision of the Arbitrator not to join the proceedings with Application WCC9268-04 and have both heard and determined together “so that evidence in one be evidence in the other” is a denial of natural justice to the uninsured Respondent Employer, or alternatively, if the Arbitrator was exercising his discretion, “he misapprehended or was mistaken as to the effect of the law relevant to proceedings brought pursuant to section 145(3) and section 144(1), (2), (3) of the 1987 Act such as to amount to an error of law.”
JURISDICTION
Before proceeding to deal with an 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 1998 Act).
In this matter I am satisfied that the appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act). Notwithstanding that the documents were returned to the Appellant Employer when received in the Commission on 19 August 2004, Rule 77(7) of the Workers Compensation Commission Rules 2003 (the Rules) provides that for the purposes of the section, an appeal is made when the application for leave to make the appeal is lodged as required by subrule (1).
The first Respondent to this appeal submits that there is no amount of compensation at issue on the appeal as the “amount that the applicant may have to pay WorkCover is not a benefit or can in any way been [sic] said to be compensation.” However, this matter before the Arbitrator is not a dispute between WorkCover and the Respondent Employer. (That is the subject of the proceedings WCC9268-04, to which joinder of this matter was sought). Rather, this is a claim for compensation for permanent impairment and further medical and associated expenses by Ms Duetoft against the Appellant Employer and WorkCover, in which the Appellant Employer denies liability. I am satisfied that the amount of compensation at issue on appeal, being the whole of the claim, is at least $5,000 (section 352(2)(a) of the 1998 Act). 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).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
The Appellant Employer submits that there are complex legal issues involved in this appeal, and that a hearing might assist the Commission. The first Respondent offers no submission on the issue. The Appellant Employer’s Solicitors are no longer available to participate in a hearing as they advised the Commission by letter dated 26 November 2004 that they have ceased acting for her. However, having regard to Practice Directions Numbers 1 and 6, the documents that are before me, including the written submissions already made, 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.
FRESH EVIDENCE
The Appellant Employer seeks to have a range of documents admitted as fresh evidence. These documents are submitted under an Application to Admit Late Documents, received in the Commission on 22 July 2004, prior to the date of lodgement of the appeal. The documents relate to the substantive issues before the Arbitrator. They are of no substantial assistance in the appeal, other than to demonstrate a point that is already well established and is not in dispute. That is, that the events in the instant case are the same events out of which Application WCC9268-04 arose. The Application to Admit Late Documents is refused, for the purposes of this appeal. The Application to Admit Late Documents is only relevant should the Appellant Employer succeed in this appeal, and the proceedings continue against her before an Arbitrator.
SUBMISSIONS
The Appellant Employer submits that, by initiating the proceedings pursuant to section 145 of the 1987 Act, in WCC9268-04, she is resisting the claim made by WorkCover, for reimbursement of compensation paid by WorkCover to Ms Duetoft. She is concerned that “there is scope for the doctrine of issue estoppel to apply as against [her] in the section 145(3) proceedings even though the parties in both sets of proceedings are different [sic] as the WorkCover Authority of New South Wales is a common party to both sets of proceedings.” She submits that she ought to be able to defend the claim made by Ms Duetoft and denies liability for any injury, notwithstanding that WorkCover has conceded liability in the earlier claim arising out of the same events. She has also lodged a defence to a claim for reimbursement made on her by WorkCover in the Local Court, in relation to the payments made to Ms Duetoft.
The Appellant Employer submits in effect, that the decision of the Arbitrator in removing her as a party to these proceedings and in refusing to join the proceedings to WCC9268-04, preclude her from being able to properly defend the claim of liability made against her by Ms Duetoft.
The Appellant Employer seeks the revocation of the Arbitrator’s decision; an order restoring her to the proceedings before the Arbitrator in this matter, and joinder of the proceedings to WCC9268-04, so that the common and relevant issues can be determined in relation to both matters.
Finally, the Appellant Employer seeks other orders in relation to a stay of proceedings and leave to file and serve orders for production of documents “as set forth in the Application to Admit Late Documents.” These are fresh issues that do not arise from the decision of the Arbitrator, and are not relevant for the purposes of this appeal.
Ms Duetoft submits that the Arbitrator’s decision is correct and that he exercised his discretion properly not to join the proceedings. She submits that the matters have nothing in common, as she made her claim against WorkCover which has properly exercised its discretion to determine that claim and pay the compensation to her. She further submits that if the Appellant Employer is dissatisfied with a determination yet to be made in WCC9268-04 (the pending application made pursuant to section 145(3) of the 1987 Act), the Appellant Employer may exercise her right of appeal to the Commission constituted by a Presidential Member.
Ms Duetoft also submits that “The Act does not permit an employer, uninsured or otherwise, to defend a claim against a worker directly.” This is not correct. The Legislation provides for a respondent employer to defend a claim brought against her/him in the Commission by an applicant, for payment of workers compensation.
DISCUSSION AND FINDINGS
The events and injury alleged that gave rise to the proceedings in the matter before the Arbitrator and the proceedings in WCC9268-04 before a different Arbitrator are the same events and the same alleged injury. In this matter, the Appellant Employer has denied liability for the disputed claim. In WCC9268-04 the Appellant Employer is proceeding against WorkCover pursuant to section 145(3) of the 1987 Act, in relation to liability, following a claim made by WorkCover for reimbursement of an amount of $49,308.70, which it has paid by way of weekly workers compensation payments to Ms Duetoft. Again, the Appellant Employer relies on her claim that she is not liable for any injury sustained by Ms Duetoft. It is difficult to understand why both matters should not be determined together, given that the question of liability is the central issue in both matters, and much the same issues and evidence arise in each case.
However, while the issue of liability is common to both matters, the proceedings in WCC 9268-04 relate to weekly payments of compensation and some medical expenses, and the dispute before the Arbitrator in these proceedings relates to a claim for permanent impairment and further medical expenses. Removal of the Appellant Employer from these proceedings, preclude her from exercising her right to answer and resist the claim for permanent impairment and ongoing medical expenses. Moreover, the uninsured Appellant Employer does not agree with WorkCover that liability rests with her at all, for any injury sustained by reason of Ms Duetoft’s employment with her.
Notwithstanding that WorkCover is a party to both proceedings, ultimate liability, should it be established, rests with the Appellant Employer. The Appellant Employer denies liability in both proceedings now before the Commission. As already stated, she does not agree with WorkCover’s concession of liability for weekly payments and has defended the action taken in the Local Court by WorkCover for reimbursement of the moneys paid to Ms Duetoft.
Removal of the Appellant Employer from these proceedings has effectively denied her the opportunity to defend the claim made in respect of permanent impairment and payment of further medical expenses. In my view the Arbitrator has erred in the exercise of his discretion in ordering that the Appellant Employer be removed as a party to the proceedings. Moreover, having regard to the fact that both proceedings before the Commission arise out of the same events and that liability is in issue in both, it is appropriate, fair and desirable that both sets of proceedings should be listed and determined together. This is all the more so, now that the Appellant Employer’s Solicitors have advised that they are no longer acting for her and that applications are on foot, yet to be dealt with by an Arbitrator, for the admission of late documents relating to the substantive issues between the parties.
In the circumstances, I propose to restore the Appellant Employer to the proceedings and to order that the substantive proceedings in this matter be consolidated with the proceedings in WCC9268-04, to be dealt with together.
DECISION
The decision of the Arbitrator, made on 23 July 2004, is revoked and the following decision is made in its place:
The Appellant Employer is restored as a party to the substantive proceedings in this matter. The matter is to be listed and referred to the Arbitrator in Yan Qian Miu trading as Roselands Florist v WorkCover WCC9268-04, for determination together with those proceedings.
COSTS
No order is made as to costs.
OTHER
The Appellant Employer apparently no longer has the benefit of legal representation. The Registrar should draw this to the attention of the Arbitrator to whom the substantive dispute is to be referred.
Gary Byron
Deputy President
8 December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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