CITATION: Demkowski v Waycon Services Pty Ltd [2005] NSWWCCPD 102

INSURER: Employers Mutual Indemnity (Workers Compensation) Limited

SUBJECT MATTER OF DECISION: Appeal out of time; factors relevant to discretion to grant leave; leave refused.

PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President

ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator, dated 6 April 2005, is refused.

1. On 10 June 2005 Mr Demkowski has lodged an application for leave to appeal against the decision of a Commission Arbitrator, dated 6 April 2005. The decision concerns Mr Demkowski's claim for compensation for permanent impairment, pain and suffering, and medical expenses arising out of an injury that occurred in the course of his employment with both Addimost Pty Ltd ('Addimost') and Waycon Services Pty Ltd ('Waycon').

2. This Arbitrator issued two Certificates of Determination.

3. The first gave effect to an agreed settlement of Mr Demkowski's claim against Addimost and awarded him lump sum compensation for permanent impairment to his neck and back arising out of injuries sustained on 11 March 1997 and 18 March 1998. It also awarded him weekly compensation for certain periods between 9 July 1997 and 1 October 2001.

4. The second Certificate of Determination was issued by the Arbitrator with a 'Statement of Reasons'. It states that Waycon was not liable to pay lump sum compensation to Mr Demkowski however it was liable to pay him weekly compensation for the period 12 December 2001 to 18 February 2002. It also orders that Waycon meet Mr Demkowski's medical expenses in relation to his injury.

5. The appeal appears only to challenge the decision as affects Waycon. Addimost have therefore taken no active role in the appeal.

6. Mr Demkowski is not legally represented in the appeal. He has made extensive written submissions as to why he does not agree with the Arbitrator's decision. He has asked that the matter be considered urgently as he is in great financial difficulty and is awaiting a final determination of the matter so that he can return to live with relatives in Poland.

7. Waycon are legally represented in the appeal and have objected to it proceeding on the basis, among other things, that it has been filed 'out of time'.

8. Mr Demkowski has asked that the matter be decided on the papers. 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.

9. The first issue to be determined is whether leave to appeal should be granted. The appeal was not filed within twenty-eight days of the decision appealed against (section 352(4) of the 1998 Act). It was filed approximately five weeks after the twenty-eight days for appeal had passed.

10. Rule 77(8) of the Workers Compensation Commission Rules 2003 ('the Rules') 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."

11. 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. In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, Justice McHugh considered an application to extend time for the filing of a Notice of Appeal in the High Court. He set out a number of factors that are relevant to the exercise of the discretion to extend time, considered on the facts in each case. These include:

(i) the history of the proceedings;

(ii) the conduct of the parties;

(iii) the nature of the litigation;

(iv) the consequences for the parties of the grant or refusal of the application for extension of time;

(v) the prospects of the applicant succeeding in the appeal, and

(vi) the respondent's right, after the expiry of the time to appeal, to rely upon the decision made.

12. Ultimately these factors must be weighed to ensure that the discretion to extend time is exercised to ensure that justice between the parties is achieved and that strict compliance with the Rules does not result in an injustice to the Appellant.

13. This dispute has a long history in both the Compensation Court and the Commission. The Commission files, which I have before me in the appeal, show that:

• On 16 December 1999 Mr Demkowski lodged an 'Application for Determination' in the Compensation Court.

• A large amount of evidence was filed in the court proceedings however those proceedings were not finalised before the closure of the Court and the dispute was subsequently transferred to the Commission in January 2004.

• Mr Demkowski was legally represented in the Commission proceedings by Gajic & Co, until 28 September 2004. He was also legally represented from 22 December 2004 until 4 February 2005. After this time he represented himself in the proceedings.

• In April 2004 the Registrar issued directions concerning the filing of all documents relied upon by both parties.

• Mr Demkowski did not comply with these directions and on 5 May 2004 Waycon, through its solicitor, made application for the matter to be struck out.

• A telephone conference was held, with Mr Demkowski's legal representative and the legal representatives of Addimost and Waycon, on 14 July 2004. The Arbitrator issued further directions to Mr Demkowski to file all the documents that he wished to rely upon by 31 July 2004. Mr Demkowski wrote to the Commission following this conference alleging that his legal representative had not allowed him to participate in that conference.

• A further telephone conference was held, with Mr Demkowski personally and the legal representatives of Addimost and Waycon, on 8 November 2004. Following this, the medical dispute was referred to an Approved Medical Specialist for a medical assessment.

• On 7 January 2005 the Medical Assessment Certificate was issued.

• A further teleconference was held on 7 March 2005 attended by all parties.

• On 31 March 2005 the parties attended a conciliation and arbitration and,

• On 6 April 2005 the Certificates of Determination and reasons were issued.

14. Mr Demkowski has filed written submissions as to why leave should be granted to file the appeal out of time. He argues that, in summary,

• He was not sure what to do with the decision when he received it.

• He saw several solicitors "without success". He also spoke to friends, his local member of parliament and legal aid, also without success. This search for legal assistance was the "main reason" his appeal was filed late.

• His previous solicitors had been dishonest and did not file the whole of the medical evidence in his case.

• The decision is wrong and unfair as to weekly compensation from 12 December 2001, "to date".

15. Waycon also filed written submissions on the issue of the late filing of the appeal. It submits that Mr Demkowski contacted its legal representatives on 18 April and 3 May 2005 in relation to an appeal against the decision- both dates were within the 28 days allowed for the filing of an appeal. It submits that Mr Demkowski has not provided an adequate reason as to why the appeal was filed late. It is noted that these proceedings were begun in the Compensation Court in 1999 and that Waycon was joined in 2002. It submits that the appeal has little prospect of success in any event. Award monies have now been paid to Mr Demkowski by Waycon and it argues that the grant of leave to file the appeal out of time would cause it substantial prejudice.

16. Mr Demkowski has also submitted 'fresh evidence' on the appeal. Waycon has submitted that Mr Demkowski had ample opportunity to file his evidence and that to admit the 'new evidence' at this stage would raise new and complex issues in the dispute. In my view, the evidence is of questionable relevance to the issues that were articulated in his claim and was, in any event, available well before the Arbitrator's decision. Even if leave were granted to appeal out of time, there are no reasons to allow this evidence at this late stage of the proceedings.

17. Proceedings in the Commission must accord with the statutory objectives to provide a fair, cost effective and timely resolution of workers compensation disputes. In the time that has passed since the Arbitrator's decision Waycon has met its obligations under the orders made. It is entitled to rely on the finality of these orders, particularly in the circumstances where the matter has been on foot for over five years.

18. The consequences of refusing to grant Mr Demkowski leave to appeal are that he must accept the orders made by the Arbitrator and will not be able to obtain ongoing weekly payments of compensation for his injury. It is noted that the Arbitrator's orders are substantially in Mr Demkowski's favour and that he has achieved a substantial award. I have reviewed the documents that were before the Arbitrator and submitted by Mr Demkowski on appeal and I am not satisfied that there is a likely prospect of his achieving a higher award if the appeal is allowed.

19. In my view the Commission staff and the Arbitrator have taken extra care to ensure that Mr Demkowski has not been disadvantaged because he did not consistently have legal representation. This is consistent with the Commission's commitment to self-represented litigants under its 'Access and Equity Charter'. I am satisfied that Mr Demkowski has had a fair and reasonable opportunity to put his case to the Arbitrator and to hear the case against him. At the conciliation and arbitration conference on 31 March 2005 the Arbitrator successfully assisted Mr Demkowski and Addimost to come to an agreed resolution of the dispute between them. Waycon did not consent to the agreed resolution or to any of the findings or matters agreed between Mr Demkowski and Addimost. The Arbitrator then proceeded to determine the dispute between Mr Demkowski and Waycon on the basis of the evidence that was before him. He issued written reasons for his decision on 6 April 2005. The reasons explain adequately and fully the findings the Arbitrator has reached and his application of the relevant law to the facts of the case.

20. For the above reasons I am not satisfied that exceptional circumstances exist for the granting of leave to appeal out of time. I am also not satisfied that to lose the right to appeal would work demonstrable and substantial injustice to Mr Demkowski. Therefore leave to appeal is refused.

21. Leave to appeal the decision of the Arbitrator, dated 6 April 2005, is refused.

Dr Gabriel Fleming

Deputy President

2 September 2005

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.