YKK Australia Pty Ltd v Skoric
[2008] NSWWCCPD 44
•14 April 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44
APPELLANT: YKK Australia Pty Ltd
RESPONDENT: Marko Skoric
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC7143-07
DATE OF ARBITRATOR’S DECISION: 5 December 2007
DATE OF APPEAL DECISION: 14 April 2008
SUBJECT MATTER OF DECISION: Extending time to appeal; leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy
Respondent: NSW Compensation Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND
This matter has a long and most unsatisfactory history in the Commission. Marko Skoric first filed an Application to Resolve a Dispute seeking compensation in matter No. 16815 of 2004. That Application alleged that Mr Skoric sustained injury to his cervical, thoracic and lumbar spines and his right shoulder while lifting a bobbin at work for YKK Australia Pty Ltd (‘YKK’) on 25 June 2002. The matter was referred to an AMS who assessed a nil whole person impairment. Mr Skoric’s attempt to appeal to a Medical Appeal Panel under section 327 of the 1998 Act did not proceed because the Registrar was not satisfied that at least one of the grounds for appeal specified in section 327(3) had been made out.
In 2007, Mr Skoric filed Application No. 454 of 2007 in the Commission alleging that he sustained injury in the course of his employment with YKK on 14 February 1999 and 25 June 2002. He again alleged injury to his cervical, thoracic and lumbar spines and right shoulder. Mr Skoric discontinued this application on 17 April 2007 when the Arbitrator refused his application to amend to allege injury to his left shoulder (in lieu of the right shoulder).
Mr Skoric filed a third Application (matter No. 3151 of 2007) alleging injury to his neck, back, left arm at or above the elbow, left leg at or above the knee as a result of the nature and conditions of his employment from 14 February 1999 until 15 April 2003, and as a result of injury on 25 June 2002. Mr Skoric discontinued these proceedings.
Mr Skoric filed his fourth Application (matter No. 7143 of 2007) on 19 September 2007. This is the Application currently before the Commission. He alleges injuries as a result of the nature and conditions of his employment from 14 February 1999 until 15 April 2003, lifting a bobbin on 14 March (sic, February) 1999 and 25 June 2002. This Application alleges the same injuries as before save that the injury to the left arm (shoulder) is substituted for the right arm (shoulder). Mr Skoric claims weekly compensation from 25 June 2002 to date and continuing, medical expenses, lump sum compensation under the Table of Disabilities in respect of injuries to the neck, back, left arm and left leg in respect of the 1999 injury, and lump sum compensation for whole person impairment in respect of the 25 June 2002 injury.
The fourth Application has attached to it a document headed “Submissions in relation to section 329 [of] the Workplace Injury Management Act [sic] 1998”. Though this document wrongly refers to the District Court, the Arbitrator dealt with it as an application for a referral to an AMS in the Commission under section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) for a further assessment of Mr Skoric’s whole person impairment.
At the arbitration on 13 November 2007, the Arbitrator noted that several issues remained to be determined. They included, Mr Skoric’s entitlement to weekly compensation and medical expenses, and whether the matter should be referred again to an AMS for assessment of whole person impairment.
In a reserved decision delivered on 5 December 2007, the Arbitrator made the following orders:
“1.That pursuant to s.329 of the 1998 Act, the matter be remitted to the Registrar for a referral to a new AMS for further assessment of impairment as a result of an injury on 25 June 2002.
2.That the matter be remitted to the Registrar for referral to the same AMS (as the referral in order 1 above) for assessment of impairment and loss of use as a result of an injury in 1999.
3.That on or before 14 December 2007 the Applicant and Respondent file and serve submissions in writing (if any) on the draft terms of referral to the AMS and that if such submissions are received, the final terms of the referral will be decided by me on the papers. If there are no such submissions, the draft terms of referral will be the final terms of referral and the matter will then be referred by the Registrar to an AMS for assessment in accordance with the draft terms of referral.
4.That the draft terms of referral are as follows:
(a)A referral to an AMS for assessment of impairment/loss of use under the Table of Disabilities, based on an injury on 14 February 1999, for the neck, back, left arm at or above the elbow and left leg at or above the knee; and
(b)A referral to the same AMS, but not the original AMS, pursuant to s.329 of the 1998 Act, for a re-assessment of Whole Person Impairment of the cervical spine, thoracic spine, lumbar spine and left upper extremity (shoulder), as a result of injury on 25 June 2002.
(c)That the AMS be provided with the Application and annexures and Reply and annexures, as well as a copy of this determination.
5.That the Applicant’s claim for weekly compensation be deferred for a further arbitration hearing after the issue of the Medical Assessment Certificates.”
By an appeal filed out of time on 11 January 2008, YKK seeks leave to appeal the Arbitrator’s determination of 5 December 2007.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no issue that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Time
The appeal was initially filed on 3 January 2008, one day outside the 28-day limit in section 352(4) of the 1998 Act.
An extension of time in which to appeal is governed by Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). Rule 16.2(11) provides:
“(11) 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 question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VOLUNTARY REDUNDANCY 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 judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
YKK seeks an extension of time to appeal and submits:
a) on 20 December 2007, a legal secretary employed by YKK’s solicitors made enquiries of the Commission’s registry staff who informed her that public holidays were not included in the 28-day period in section 352(4);
b) relying on that incorrect advice, the solicitors filed the appeal on 3 January 2008 when it was rejected by the registry (by letter dated 9 January 2008) because it was out of time;
c) it would be against the interests of justice and prejudicial to it to refuse to extend time to appeal;
d) there is no prejudice to Mr Skoric, and
e) YKK’s solicitors advised Mr Skoric’s solicitors on 13 December 2007 that they intended seeking leave to appeal.
Mr Skoric submits:
a) there are no exceptional circumstances that justify an extension of time;
b) the rules are clear and well defined, 28 days means 28 days;
c) to allow an extension of time would be to reward YKK’s tardiness, and
d) YKK does not have “a good likelihood of success” as the Arbitrator gave reasons for her decision and it was open to the worker to claim under section 329.
Whilst the Commission regularly provides advice to parties and the legal profession on matters of practice and procedure, I cannot emphasise too strongly that legal practitioners should always rely on their own enquiries on substantive issues such as limitation periods. Nevertheless, in the circumstances of the present matter, YKK’s solicitors were clearly misled by the registry and this resulted in the appeal being filed one day out of time.
Even allowing that the incorrect advice from the registry amounts to exceptional circumstances, that is not sufficient, on its own, to justify an extension of time to appeal. The putative appellant must also establish that to lose the right to appeal would work a demonstrable and substantial injustice. That condition is not met in the present matter because the Arbitrator’s determination is clearly interlocutory and there is no right of appeal against such a determination.
Subsections (1) and (8) of section 352 of the 1998 Act, as amended by Act 113 of 2005, provide:
“(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.
…(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)
Under Clause 200B of the Workers Compensation Regulation 2003, as amended, “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”.
There is no doubt that the amendments have retrospective effect, as they apply to claims for workers compensation made before the commencement of the amendments (see Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 and P & O Ports Limited v Hawkins [2007] NSWWCCPD 87).
The Arbitrator’s decision has not finally determined any liability issues such as injury, worker or substantial contributing factor, but has merely referred certain questions for assessment to an AMS (see Arquero v D J & T Denning Pty Ltd t/as Capital Coast Steel [2007] NSWWCCPD 126). The referral to an AMS under section 329 of the 1998 Act has not determined any of the parties’ rights and is clearly a ‘preliminary order of an interlocutory nature’.
In these circumstances there is no injustice to YKK in not extending time to appeal because it has no right of appeal in any event because the determination it seeks to challenge is an interim determination of an interlocutory nature.
OTHER MATTERS
The timetable for submissions in this matter (set out in the Registrar’s Direction of 14 January 2008) directed the Respondent Worker to file and serve his Notice of Opposition to the appeal by 25 February 2008, and allowed the Appellant Employer until 10 March 2008 (that is, two weeks) to file its submissions in response. Whilst the Respondent Worker filed his Notice of Opposition on 21 February 2008, he did not serve that document on the Appellant Employer’s solicitor until 19 March 2008 (received by the Appellant Employer’s solicitor on 20 March 2008). Two weeks from 20 March 2008 is 3 April 2008. On 10 April 2008, the Appellant Employer filed by email submissions in response to the Respondent Worker’s Notice of Opposition.
The Respondent Worker’s failure to serve his Notice of Opposition until 19 March 2008 clearly breached the Registrar’s Direction that it be served by 25 February 2008. This unexplained non-compliance with the Registrar’s Direction is most unsatisfactory and should not occur again. Nevertheless, as I have not relied on the submissions made in the Notice of Opposition in reaching my decision, the late service has not resulted in any prejudice.
Notwithstanding the late service of the Notice of Opposition, the Appellant Employer has also been dilatory in preparing its response. Unless otherwise directed or ordered, an appellant has two weeks in which to respond to a Notice of Opposition, as per the Registrar’s usual Direction. YKK has offered no explanation as to why it filed its response three weeks after receipt of the Notice of Opposition. Parties should be aware that they are not at liberty to set their own timetables for the filing of documents on appeal.
Whilst I have read the submissions in response filed by YKK, those submissions make no difference to the outcome of the appeal as they do not address the critical defect in the appeal, namely, that is seeks to appeal an interlocutory order. Given that the amended provisions in section 352(8) have been now been in place for appropriately 18 months, it is surprising that parties are still seeking leave to appeal such matters.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
14 April 2008
I NING DONG CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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