New South Wales Court of Appeal CITATION: Andrew Bryce v Department of Corrective Services [2009] NSWCA 188 HEARING DATE(S): 26 June 2009 JUDGMENT DATE: 26 June 2009 JUDGMENT OF: Allsop P at 1; Beazley JA at 13; Giles JA at 14 EX TEMPORE JUDGMENT DATE: 26 June 2009 1. Dispense with the need for filing any written application for leave to appeal. DECISION: 2. Grant leave to appeal. 3. Dismiss the appeal. 4. Order the appellant to pay the costs of the respondent on the application for leave and the appeal. LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 (NSW) CATEGORY: Principal judgment Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 CASES CITED: Sapina v Coles Myer [2009] NSWCA 71 State Transit Authority v Chemler [2007] NSWCA 249 PARTIES: Andrew Bryce Department of Corrective Services FILE NUMBER(S): CA 40387/2008 COUNSEL: J Gormly SC, D Shoebridge (Appellant) P R Stockley (Respondent) SOLICITORS: Kells The Lawyers (Appellant) Rankin Nathan Lawyers (Respondent) LOWER COURT JURISDICTION: The Workers' Compensation Commission of New South Wales LOWER COURT FILE NUMBER(S): 509/08 LOWER COURT JUDICIAL OFFICER: Roche DP LOWER COURT DATE OF DECISION: 16 October 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Department of Corrective Services v Bryce [2008] NSWWCCPD 116 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40387/08 ALLSOP P BEAZLEY JA GILES JA 26 June 2009 ANDREW BRYCE v DEPARTMENT OF CORRECTIVE SERVICES Judgment 1 ALLSOP P: This matter was originally constituted as an appeal from orders made by the Deputy President of the Workers' Compensation Commission upholding the appeal of the employer from a decision of an arbitrator granting an award in favour of the worker. 2 The appeal to this court was at all times an appeal in point of law under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1). One aspect of that appeal has now been abandoned. It had been argued that the Deputy President erred in point of law by embarking upon a review of the arbitrator's decision before finding error in the arbitrator's approach. That proposition was contrary to a number of Court of Appeal decisions and dicta, and in particular the decision of the Chief Justice in State Transit Authority v Chemler [2007] NSWCA 249, with whose judgment Basten JA and Bryson AJA agreed. Thus the proper approach governing the appeal by way of review under s 352 of the 1998 Act as at the date of the filing of the appeal was to be found in Chemler. On 6 April 2009 in another decision of this Court, Sapina v Coles Myer [2009] NSWCA 71, there was a comprehensive review of all the authorities in this Court dealing with the matter including Chemler and reiterated the position. This point has now been abandoned. 3 The only remaining point was a complaint that the Deputy President erred in point of law in granting an extension of time in which to file an application for appeal by way of review from the arbitrator's decision. The employer was one day out of time in filing the application. This being the only point in the appeal, the appeal requires leave on the basis that the matter appealed from was an interlocutory decision. It is necessary for the applicant/appellant to demonstrate, in effect, an error of law. 4 The Deputy President exercised the power under regulation 16.2 of the Workers Compensation Commission Rules 2006. Under subr (1) it is provided that any party to a proceeding applying for leave to appeal under s 352 of the 1998 Act against a decision of an arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subr (11). Subr (11) is in the following terms: "(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." 5 A question arises in the circumstances as to whether the phrase "in exceptional circumstances" is a jurisdictional fact required to be proved objectively or whether it is one of the matters in respect of which the Presidential member must be satisfied. I will return to this shortly. The balance of the subrule, other than this phrase, is clearly predicated on the satisfaction of the Presidential member. 6 In [23] of the presidential member's reasons he stated the following: "[23] Whilst the Department's explanation for the appeal being filed out of time is far from satisfactory, I have determined, not without considerable reluctance, that exceptional circumstances exist that justify the extension of time to appeal in this matter. My reasons are as follows: (a) the discretion to extend the time to appeal must be exercised in order to do justice between the parties; (b) the appeal was filed only one day out of time; (c) Mr Bryce has pointed to no prejudice he will face if time to appeal is extended by one day; (d) the appeal raises issues that are strongly arguable and, in these circumstances, strict compliance with the time limit will work demonstrable and substantial injustice to the Department, as it will lose the opportunity to have the matter determined according to its substantial merits, and (e) the Department's solicitor acted with reasonable promptness, once instructions to appeal were given." 7 This paragraph is to be understood in the light of the factual explanation found to be less than satisfactory which is contained in the combined appeal book at p 30. 8 There is some awkwardness of the structure and terminology of subr (11). The phrase "in exceptional circumstances," bounded as it is by commas, might conceivably be thought to be a jurisdictional fact. Aspects of the argument of the applicant put this today. In my view, the phrase "in exceptional circumstances" finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction. In coming to this conclusion I bear in mind the well known phrase of Dixon J, (as he then was), in Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 at 391, where his Honour said the following: "It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." 9 Looking at the rule in that fashion, whether or not there are exceptional circumstances and whether or not to lose the right of appeal would work demonstrable and substantial injustice, were conclusions which were substantially factual conclusions. What must be shown therefore on this application is that the conclusions to which the learned Deputy President came were simply not open to him or were reached by him in error in application of principle. 10 It was put that each of the five matters referred to by the Deputy President was not a consideration relevant to the conclusion of exceptional circumstances. I disagree. Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression. The background to [23] is of course what the Deputy President says in the first two lines, that the explanation for the delay was less than satisfactory. The Deputy President had earlier identified the material that had been put before him in that regard. 11 There was no error of principle, in my view, in the Deputy President's approach to the application and the operation of the composite phrase in subr (11). He did not misdirect himself as to the relevance of each of the matters in [23]. Bearing in mind the matters the Deputy President took into account in [23], the conclusions that he reached were, in my view, open to him given the relevance of those considerations to the various matters within the composite rule. In those circumstances, in my view, there is no legal error shown in either the approach or the conclusions of the Deputy President, his conclusions being open to him. 12 Leave is required. The matter has been carefully and conscientiously argued on behalf of the worker. In my view, leave should be granted but the appeal dismissed. 13 BEAZLEY JA: I agree. 14 GILES JA: I agree, and would add one further matter. I think I detected at the close of the applicant's submissions a submission to the effect that the Deputy President should be found to have misdirected himself in that he did not in fact apply the test under the rule, relevantly of exceptional circumstances, but instead applied some other and lesser test in the nature of what was just as between the parties; and that it should be so concluded because of the matters to which he referred in [23]. If that was submitted, it is not a matter which I would accept. The Deputy President set out the rule, and on my reading of his reasons he clearly was addressing his consideration to the requirements of the rule and did not sub silentio apply some other test. 15 I agree with the orders proposed by the President. 16 ALLSOP P: I agree with those additional comments - is there anything you want to say about costs, Mr Gormly? 17 COUNSEL ADDRESSED 18 ALLSOP P: The court is not persuaded that the usual rule should not otherwise apply. 19 The order of the court will be: 1. Dispense with the need for filing any written application for leave to appeal. 2. Grant leave to appeal. 3. Dismiss the appeal. 4. Order the appellant to pay the costs of the respondent on the application for leave and the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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