Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Naidu v State of New South Wales [2020] NSWCA 147 Hearing dates: On the papers Decision date: 15 July 2020 Before: Basten JA; Leeming JA. Decision: 1. Extend the time within which to apply for leave to appeal to 18 May 2020. 2. Dismiss the summons seeking leave to appeal filed 18 May 2020, with costs. Catchwords: APPEALS – leave – extension of time – appeal from Workers Compensation Commission refusing substantial extension of time to appeal from arbitrator's decision – requirement of "exceptional circumstances" in order to grant extension – Deputy President found exceptional circumstances not established – Deputy President considered appeal not fairly arguable – no basis for grant of leave to bring a further appeal made out Legislation Cited: Workers Compensation Act 1987 (NSW), ss 65A, 66, 67 Workers Compensation Commission Rules 2011 (NSW), rr 1.6, 16.2 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353, 354 Cases Cited: Naidu v State of New South Wales [2019] NSWWCCPD 59 Category: Principal judgment Parties: Mala Ranjini Naidu (Applicant) State of New South Wales (Respondent) Representation: Counsel: R Kumar (Applicant) F Doak (Respondent) Solicitors: Oxbridge Associates (Applicant) TurksLegal (Respondent) File Number(s): 2020/148564 Publication restriction: Nil Decision under appeal Court or tribunal: Workers Compensation Commission Citation: Naidu v State of New South Wales [2019] NSWWCCPD 59 Date of Decision: 22 November 2019 Before: Deputy President Snell File Number(s): A2-8807/13 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant, Ms Mala Ranjini Naidu, seeks leave to appeal from the decision of the Workers Compensation Commission, constituted by a Deputy President, refusing leave to extend time to appeal from the decision of an arbitrator rejecting her claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (NSW). The arbitrator's decision was given on 13 October 2014; the appeal was filed in 2019. 2. In this Court, counsel retained for each side has filed written summaries of argument, dated 18 May and 15 June 2020, respectively, and both have consented to the application for leave being dealt with on the papers. On 19 June 2020 the Registrar advised the parties that that would occur. Factual background 1. The applicant had been employed collecting blood samples for pathology testing by an area local health district. She injured her right ankle and foot on 5 November 2007 while pushing a trolley. For that injury, a compensation claim was accepted and compensation was paid. 2. The applicant returned to work on restricted hours in March 2008. The applicant alleged that she had thereafter been bullied, and that she had been assaulted by her supervisor. She ceased working with the area local health district, this time permanently, from 14 July 2008. 3. The claim rejected by the arbitrator was a claim for psychological injury resulting from the bullying. It was made in 2013, more than five years after she had ceased employment. The decision of the arbitrator 1. The respondent had denied liability, on the basis that the applicant had not suffered any primary psychological injury. The respondent contended that the psychological injury was secondary to the ankle injury, and therefore the recovery of lump sum compensation was precluded by s 65A of the Act. 2. The dispute before the arbitrator was commenced by a s 74 notice dated 19 September 2013. There was a hearing on 26 September 2014, with both sides appearing by counsel. An application to cross-examine Ms Naidu was refused, on the basis that it might injure her health. The arbitrator reserved his decision. 3. In his reasons published a few weeks later, the arbitrator reviewed the medical notes from 2007-2008 and the various statements concerning the alleged bullying and assault and their denial. The arbitrator was critical of a number of aspects of the applicant's case. These included the way in which aspects of the conduct of which the applicant complained had been reported by her to the police, inconsistencies with the contemporaneous documents, inconsistencies between her alleged psychiatric condition and social media entries apparently made by her, and surveillance material tendered by the respondent. The arbitrator considered the latter to be "markedly inconsistent" with what the applicant had told her treating doctor. 4. The arbitrator then turned to delay. Noting that more than six years had elapsed since the applicant had worked for the employer where the bullying was said to have occurred, he concluded: "[50] Given the length of time which has elapsed since the applicant's physical injury and resulting psychological symptoms and because of my reservations as to her credibility, I find it difficult to accept that the applicant currently suffers from a psychological injury arising out or in the course of her employment with the respondent. In addition, even if one accepts the applicant's version of events in relation to the bullying by [her supervisor], it seems inconceivable that the applicant's claimed current level of psychological symptoms have continued unabated to the present time, given her absence from any stressors from her employment over a number of years. [51] Accordingly if the applicant did sustain a psychological injury in the course of or arising out of employment with the respondent, for the reasons stated above I find that it arose in consequence of her physical injuries of 7 November 2007 and is therefore a secondary psychological injury." 1. An award issued on 13 October 2014 in favour of the respondent. The appeal to the Deputy President 1. Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides that an appeal can only be made within 28 days after the making of the decision appealed against. Sub-clause (5) of r 16.2 of the Workers Compensation Commission Rules 2011 provides: "The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal." 1. However, an appeal was only filed in 2019. Some ineffectual steps had been taken by the solicitors formerly retained by the applicant to bring an appeal in late 2014. The Deputy President summarised them, but it is not necessary for present purposes to do so. So far as the Workers Compensation Commission was concerned, nothing occurred in 2015, 2016, 2017 or most of 2018. 2. The Deputy President determined the appeal on the papers, without holding a formal hearing. Section 354(6) of the Act provides that: "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." 1. The Deputy President published his decision on 22 November 2019: Naidu v State of New South Wales [2019] NSWWCCPD 59. 2. The delay and the need to identify exceptional circumstances were central to the reasoning of the Deputy President. It was addressed under the heading "The explanation of delay" at [43]-[53] of his reasons. Those reasons commenced with an explanation for some procedural steps within the Commission, whereby directions were issued for the filing of an appeal in November 2014, and there were various file notes of telephone conversations in December 2014. 3. Thereafter, [54]-[95] addressed the fourteen proposed grounds of appeal, identifying various flaws in them. In one respect, the Deputy President concluded that the arbitrator had erred in dealing with some of the evidence. However, he also observed that it was not sufficient to identify error, but that the applicant had to identify an error which vitiated the decision. 4. At [96]-[105], the Deputy President returned to the requirement to consider whether there were "exceptional circumstances" and, after referring to authorities, addressed the period from 2015 until 2018 as follows: "[104] The matter was then in the hands of three firms of solicitors until 30 May 2018. This period is described at [47] to [49] above. None of the firms, from the limited material available, took steps to lodge a fresh Application to Appeal the arbitral decision, with appropriate submissions on an extension of time. The appeal initially became out of time because, as originally lodged, it failed to comply with Practice Direction No 6, and this was not rectified when an Amended Appeal was lodged on 24 November 2014. The procedural matters that required rectification were spelled out in the Direction dated 13 November 2014. The need to lodge an appeal with submissions on the extension of time, if the appellant wished to bring an appeal, was discussed with the appellant by the Presidential Unit Manager on 8 and 19 December 2014. The reason why Firm Three did not take this step is apparent. It concluded there were not reasonable prospects of an appeal succeeding. The reasons why Firms One and Two did not take such steps at an earlier stage, while they held instructions, is unknown. The limited evidence put on by the appellant, on this topic, does not deal with what instructions she gave, or in any meaningful way with what communications passed between her and her solicitors from time to time. There is virtually no explanation of what happened from when Firm Three ceased to act (30 May 2018) to 10 May 2019 when the appellant commenced the current appeal. The only explanation is that the appellant spoke to the Registrar of the Supreme Court at an undisclosed time to see if she could lodge her case there. [105] The appellant carries the onus on the extension of time application, which includes the issue of 'exceptional circumstances'. The evidence dealing with the very lengthy period during which the matter is out of time, whether the events are viewed individually or in combination, does not establish the existence of 'exceptional circumstances'." 1. The Deputy President rested his decision on two considerations. The first was that "the appeal is not fairly arguable": at [114]. The second was at [115]: "The appeal is a long way out of time, a period of approximately four and a half years. For reasons given above, the extensive period of delay is not adequately explained. I am not satisfied that 'exceptional circumstances' are present. I am not satisfied that the appeal is fairly arguable. The various relevant factors do not support the extension of time. The lack of forensic diligence, on the part of the appellant and two of the solicitors that she instructed, also militates against the extension of time. I am not satisfied that loss of the right to appeal would work demonstrable and substantial injustice to the appellant. The appropriate order is that the appellant's application to extend time be refused." The application for leave to appeal to this Court 1. A further appeal lies to this Court, confined to cases where a person is aggrieved in point of law, and only by way of leave from an interlocutory decision such as that of the Deputy President, pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act. There was some further delay in filing the summons seeking leave, but that has been explained in the materials. There should be the requisite extension of time. 2. By her amended draft notice of appeal in this Court, the applicant identifies five proposed grounds. 3. The first proposed ground asserted error in failing to hold a conference or formal hearing. In her submissions, the applicant developed this, by claiming that the principles of procedural fairness require a formal hearing, and that the material was incapable of satisfying the Deputy President to exercise the power in s 354(6). No aspect of this proposed ground warrants a grant of leave. The applicant was legally represented and requested that the appeal proceed on the papers – both in her original application (when she was unrepresented) and in a further amended application dated 16 September 2019 (when she was represented). (In the same way, there is nothing procedurally unfair in this Court acceding to the applicant's request to determine her application for leave on the papers.) 4. The second proposed ground asserted that the Deputy President acted upon errors of legal principle when he failed to find that the arbitrator had misconceived his role or made errors based on speculation. This ground goes only to the merits of the application, not the extension of time. The respondent submits that it is difficult to understand the submission, and there is force in that. For present purposes it is sufficient to observe that on no view does this ground amount to an error that is plain on the face of the reasons of the Deputy President giving rise to a clear injustice. 5. The third proposed ground was that the Deputy President should have taken into account, but erroneously failed to take into account, certain material. The applicant seeks to establish that the Deputy President "failed to consider or turn his mind to the balance of the Attached Evidential Material". That is a reference to five documents, being an investigation report prepared by MJM Investigations, a medical report prepared by Dr Burman dated 13 August 2010, a statement from a solicitor dated 10 November 2014 and two statements from the applicant dated 8 May 2019 (one of which dealt with the delay, the other the underlying events). The applicant's submissions in this Court maintain that the Deputy President considered that "only the solicitor's statement of 10 November 2014 and the Applicant's statement of 8 May 2019 as to delay" were before him, and that he "failed to consider or turn his mind to the balance of the Attached Evidentiary Material, even though neither the chronology nor the grounds of appeal could be properly understood without consideration of the MJM Investigation's report, the report of Dr Burman and the Applicant's extended statement dated 9 May 2019". 6. The Deputy President was evidently conscious of this material, and dealt with it expressly at [42]: "The parties, submitting on the application to extend time, have relied on documents relevant to the extension which were attached to the previous versions of the Application to Appeal. Both parties have proceeded on the basis that such material is in evidence for the purposes of the extension application. Examples are the statement of the solicitor from Firm One dated 10 November 2014 (see [30] to [31] above), referred to by both parties, and the appellant's time statement dated 8 May 2019 (see [32] above), referred to by both parties. This is understandable, given that both parties initially addressed on the time issue before the Application to Appeal, which is now relied on, was lodged. The appropriate course is to regard the documentary material from the Amended Application, on which the parties addressed in respect of the extension application, or which is plainly relevant to the explanation of delay, as before me for the purpose of dealing with the application to extend time. This is generally consistent with s 354 of the 1998 Act, and with the approach which the parties have taken to such material." 1. It is clear that the Deputy President regarded as before him such of the material on which the parties made submissions in respect of the extension application, or which was plainly relevant to the explanation of delay. Two of the documents fell into that category: the applicant's statement of 8 May 2019 dealing with delay and the solicitor's statement. The report of Dr Burman, and the investigation report by MJM Investigations precede (by some years) the period for which explanation is required (from the end of 2014 until 2018). The second statement of the applicant does not bear upon the explanation for delay. 2. Enough has already been said to make it clear that (a) the inference sought to be drawn by the applicant is not established and (b) insofar as any of the material the subject of this ground bore upon the question of delay and establishing exceptional circumstances, it was taken into account. 3. It follows that this ground does not give rise to a basis for a grant of leave. 4. Proposed ground 4 is the only ground which addresses the conclusion that the applicant had not established exceptional circumstances so as to warrant the extension of time. The applicant submits that this ground gives rise to the following question: "was the exercise of discretion under r 1.6(2) of the Workers Compensation Commission Rules 2011 (NSW) a mandatory relevant consideration that the Deputy President failed to consider?" 1. In developing that question, the applicant made the following submission: "The Applicant's argument is that the Deputy President, not being satisfied that the discretion in r 16.2(5) ought to be exercised, was bound by the WIM Act to consider the exercise of discretion under r 1.6(2) of the Workers Compensation Commission Rules 2011 (NSW)." 1. Rule 1.6 is a power to dispense with compliance with the rules. 2. There is nothing in this ground warranting a grant of leave. It is not suggested that the Deputy President was ever asked to dispense with the rule, and so far as may be seen, he was not asked to do so. 3. The fifth proposed ground asserted that the arbitrator drew inferences which were not reasonable available. The conflicting material before the arbitrator has been summarised above. It sustained the adverse findings made by the arbitrator. In any event, the ground even taken at its highest does not materially detract from the difficulties faced by the applicant concerning the lengthy and substantially unexplained delay, and the failure to find exceptional circumstances. Conclusion and orders 1. No proper basis has been made out to impugn the finding that exceptional circumstances warranting an extension of time had not been established. The proposed grounds that challenge other aspects of the Deputy President's decision do not warrant a grant of leave. It follows that there is no sound basis on which there should be a grant of leave to appeal. 2. The Court's orders are: 1. Extend the time within which to apply for leave to appeal to 18 May 2020. 2. Dismiss the summons seeking leave to appeal filed 18 May 2020, with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2020