TRIBUNAL: His Honour Deputy President Judge F.K. Cawthorne

Extension of time - Entitlement to overtime as component of notional weekly earnings - Exercise of discretion - Prejudice - Principles to be applied - Held - Undesirable to decide extension of time point in limine - Justice best met by hearing all relevant evidence as to worker's claim and any evidence as to prejudice, particularly from respondent's point of view - Workers Compensation and Rehabilitation Act 1986.

Santos Ltd. v. Workers Rehabilitation and Compensation Corporation (Unreported) Full Supreme Court JN S6839 11 September 1998.

Mr. T.J. O'Callaghan (of counsel) for the Respondent.

In this matter the worker, Andrew Kurt Berger, filed a Notice of Dispute on or about 31 May 1998 against a determination of the WorkCover Corporation (`the Corporation') contained in a letter to him of 27 September 1994 wherein the Corporation determined in general terms that he was entitled to weekly payments of income maintenance at the rate of $372.60 gross per week in respect of an injury to his neck sustained on 18 January 1994. The worker's complaint with that determination as expressed in the Notice was that overtime had not been included in the figure set by the Corporation and effectively that his notional weekly earnings should be set at a higher level than that determined by the Corporation to include a component for overtime. The notice of dispute was not filed within one month after the worker received notice of the reviewable decision as required by Section 90A of the Workers Rehabilitation and Compensation Act 1982 (`the Act') and thus he must have an extension of time if he is to proceed with his dispute about the determination in question. WorkCover through its agent Mercantile Mutual Insurance (S.A.) Workers Compensation Ltd. (M.M.I) has opposed the worker's application for an extension of time in conciliation and arbitration proceedings in the Tribunal and it now lies to me to determine that issue by judicial determination.

On the hearing before me a book of documents was tendered which contained amongst other things the relevant documentation relating to the dispute, a written statement of the worker and the worker's evidence in arbitration proceedings. Insofar as the worker was concerned the parties were content to rely on the evidence he gave at arbitration without the need for him to give evidence before me. In addition to the book of documents a bundle of the worker's taxation returns was tendered and other documents which it is not necessary for me to discuss at this stage.

I turn then to a consideration of the background to the matter.

The worker is a 31 year old man who at times material to this matter was employed by Adrad Pty. Ltd. as a second class machinist. The company was involved in the manufacture of radiators for motor vehicles. The worker's job was to operate machines which made the tubes for radiators. It was the worker's evidence that his hours of work varied according to the seasons. Whilst in the winter period he generally worked normal hours during the summer when the demand for radiators was high, considerable overtime was worked including substantial additional hours during the normal working week and on Saturdays and Sundays. It was his evidence that in summer on occasions he had worked 7 day weeks of 12 to 18 hour days. His evidence was that whilst in winter his weekly wage was of the order of $370 gross, in the summer his gross wage could be in the order of $600 to $700. It was his practice to save money from his wages in the summer for the winter period when his weekly wage was lower.

During the course of his employment with Adrad the worker suffered a number of work related disabilities for which he was paid compensation. They were however in most cases minor disabilities in respect of which the only compensation paid was for medical expenses. In October 1993 however he suffered an injury to his left middle finger in compensable circumstances and was paid weekly payments in respect of his absence from work as a result of the injury at the rate of $369.60 gross per week.

On 18 January 1994 the worker suffered an injury to his neck whilst in the employ of Adrad in compensable circumstances and made a claim for compensation in respect thereof. Whilst the claim was initially rejected by WorkCover on the basis that the worker had not completed an authority that would enable it to obtain a medical report the claim was eventually accepted on 27 September 1994 as outlined earlier in these reasons. In respect of the incapacity resulting from the injury the worker was paid in accordance with WorkCover's determination weekly payments of income maintenance at the rate of $372.60 gross per week which represented his rate of pay for a normal 38 hour week.

The worker remained incapacitated for work as a result of the neck injury until about early 1996 when he obtained work at a fishing tackle shop. However in the course of that employment he suffered further problems with his neck and ceased work because of this in late November 1996. He made a further claim for compensation which was accepted, his notional weekly earnings being fixed at about $425 per week gross.

It was the worker's evidence that in the course of his dealings with representatives of WorkCover and others in relation to his situation on a number of occasions he queried whether he should seek the assistance of a lawyer only to be told in words to the effect that there was no need for him to take such a course because there was nothing a lawyer could do for him.

By March 1998 however the worker considered it was time that he obtained legal advice. There were various reasons why he came to that decision but they are not relevant to the resolution of the dispute at hand. However when the worker consulted a lawyer, Mr. Palios, on 18 March 1998 he became aware that he may be entitled to an adjustment of his notional weekly earnings to reflect the overtime he worked whilst in the employ of Adrad. He thereupon issued instructions to his solicitors to file a notice of dispute in relation to that part of the determination of WorkCover of 27 September 1994 which set his weekly payments of income maintenance.

The most recent discussion of the principles relating to extension of time applications is to be found in the decision of the Full Supreme Court in Santos Ltd v. Workers Rehabilitation and Compensation Corporation (unreported) 11 September 1998, JN. S6839. From the judgment of the majority Doyle C.J. and Prior J. a number of principles emerged. They include:-

* The discretion will be exercised in favour of an applicant when, to do so, is in the interests of justice.

* The generality of the discretion requires the court to consider all material facts and circumstances.

* Prejudice to the respondent is always material, and in many cases may be decisive.

* Prejudice in the sense of something preventing or hindering the respondent obtaining a fair trial, as a result of the delay, is of particular importance and would often be decisive.

* Other types or aspects of prejudice associated with delay (such as a material change of position) should be considered.

* If the respondent relies upon actual or specific prejudice attributable to the delay, it will usually be incumbent upon the respondent to adduce evidence of the facts from which that prejudice is said to arise.

* If no evidence of specific or actual prejudice is identified by a respondent the court is likely to draw an inference that there is none. It does not follow from this that the court concludes that there will be no prejudice resulting to a respondent if an extension of time is granted. Whether the court should so conclude will depend upon the particular case.

* A court should bear in mind prejudice of the type that does not require specific proof.

* The failure to demonstrate actual prejudice may lead to the grant of an extension of time, especially if the plaintiff is `without fault'.

In the case at bar although there is satisfactory evidence of some material facts and circumstances such as the length of the delay and the explanation therefor, the evidence going to what I consider to be other material facts and circumstances and in particular the issue of prejudice to the respective parties is sparse. In terms of the worker's position whilst there is evidence that he did work considerable overtime during the summer both from his evidence at arbitration and the taxation returns tendered on the hearing, it is insufficient to enable me to form any impression as to the likelihood of success of his claim. On the other hand from the respondent's point of view its counsel from the bar table suggested that there was something akin to `change of position' prejudice on the part of the respondent on the basis, inter alia, that the Corporation had for 4 years paid the worker in good faith at a particular rate, had been using that rate in its actuarial calculations and used that rate as a reference for calculating the levy Adrad should be paying. He submitted that the Corporation had conducted its affairs on the assumption that the figure in question was correct and on the assumption that it was not going to be challenged. He suggested further that the time for recouping from Adrad any levy had passed. However there was no evidence directed to those issues and thus I am not in a position to assess their importance.

Given the general circumstances of the case, the state of the evidentiary material generally and the matters referred to above in particular, I have reached the conclusion that it is undesirable to decide the extension of time point in limine and that the justice of the case will best be met if I were to hear all relevant evidence as to the worker's claim that overtime should be included as a component of his notional weekly earnings and any further formal evidence that may go to the question of prejudice including from the respondent's point of view.

I will hear the parties at a mutually convenient time to discuss the further progress of this matter.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.