Practice Direction No 6 – Appeal against a decision of an Arbitrator
30 October 2018
1. This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (2011 Rules) and commences on 30 October 2018. It replaces Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator, dated 16 December 2013.
2. This Practice Direction applies to disputes under s 352 of the Workplace Injury Management and Workers Compensation Act 1998(the 1998 Act).
3. The purpose of this Practice Direction is to set out the practice and procedure of the Commission in relation to an appeal to a Presidential member against a decision of an Arbitrator under s 352 of the 1998 Act.
4. An appeal is commenced by lodging in the Commission an Application – Appeal Against Decision of Arbitrator (Form 9). If there are multiple respondents and/or multiple insurers, the appeal application must have attached a Form 9 Schedule – Additional Respondent Insurer Scheme Agent Schedule.
5. An appeal application will not proceed unless the Registrar is satisfied that it complies with the procedural requirements set out in s 352 of the 1998 Act, r 16.2 of the 2011 Rules, the regulations and this Practice Direction. In determining procedural compliance, the Registrar does not need to be satisfied of the merit of the substantive grounds of appeal.
6 The Registrar may issue a direction to rectify procedural deficiencies in the appeal application, as an alternative to refusing to accept, seal, issue or register the application. In these circumstances, the appeal application will not proceed further until the Registrar is satisfied that the appeal is procedurally compliant.
7. An appeal stays the operation of the decision appealed against. However, it does not affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal (s 352(5A) of the 1998 Act).
Threshold and preliminary matters
8. An appeal application must address the following threshold and preliminary matters.
9. An appeal can only be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act). An Arbitrator’s decision is made when the Commission issues a Certificate of Determination under s 294(1) of the 1998 Act (r 16.2(2)). Time to lodge an appeal commences to run on the day after the issuing of the Certificate of Determination. An appeal is made when the appeal application is registered by the Registrar (r 16.2(11)). An appeal is registered when it is accepted by the Registrar and affixed with the seal of the Commission (rr 1.4(2), 3.4).
10. In exceptional circumstances, the Presidential member may extend the time for making an appeal (r 16.2(12)). If the appeal application is lodged in the Commission more than 28 days after the date of the decision appealed against, the appealing party must provide:
(a) the reasons why the appeal has been lodged out of time;
(b) full details of the arguments in favour of granting an extension of time for the making of an appeal, and
(c) the demonstrable and substantial injustice that losing the right to appeal would allegedly cause.
11. An appeal must satisfy the monetary threshold requirements under s 352(3) of the 1998 Act. The amount of compensation at issue on the appeal must be at least $5,000 (or such amount as stipulated by the regulations) and at least 20% of the amount awarded in the decision appealed against.
On the papers
12. An appeal will be determined ‘on the papers’ without the need for a telephone conference or formal hearing, if the Presidential member determines there is sufficient information supplied in respect of the appeal (s 354(6) of the 1998 Act). Appeals will usually be determined on the papers.
13. The Presidential member may grant leave to appeal against an interlocutory decision but only if it is “of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A) of the 1998 Act).
Fresh evidence, additional evidence
14. Fresh evidence, additional evidence or substituted evidence will only be accepted on appeal with the leave of the Presidential member (s 352(6) of the 1998 Act). Leave will not be granted unless the Presidential member is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) that failure to grant leave would cause substantial injustice in the case.
15. If a party seeks to rely on fresh evidence, additional evidence or substituted evidence they must provide:
(a) a schedule of the fresh, additional or substituted evidence;
(b) a copy of the fresh, additional or substituted evidence;
(c) a brief outline of the fresh, additional or substituted evidence;
(d) the reasons why the fresh, additional or substituted evidence was not in the proceedings before the Arbitrator, and
(e) submissions on why the fresh, additional or substituted evidence should be admitted or rejected on appeal.
Grounds of appeal
16. An appeal is limited to the determination of whether the Arbitrator’s decision is affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.
17. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the Arbitrator should or should not have made, and
(c) any material facts it is said the Arbitrator should or should not have found.
18. It is not acceptable to merely allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.
19. The appeal application must also record:
(a) whether the appeal is from the whole or only part, and which part, of the Arbitrator’s decision;
(b) the decision or order/s sought on appeal, and
(c) any costs order sought in respect of the appeal and proceedings before the Arbitrator, if applicable.
20. All submissions must clearly and succinctly address each ground of appeal. The submissions must:
(a) be divided into numbered paragraphs with appropriate subheadings, which separately address each ground of appeal;
(b) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference;
(c) include the relevant page number to the evidence, in the appeal documents, Application to Resolve a Dispute, Reply and/or Application to Admit Late Documents, and
(d) include the relevant page and line number to the Commission’s official transcript of proceedings.
21. The submissions must be typed or printed in a neat, legible manner. They must be signed by the person who prepared them and have the following recorded under the signature:
(a) the name of the signatory,
(b) the signatory’s telephone number, and
(c) the signatory’s email address.
22. The appellant must attach a chronology to the appeal application. The chronology should not be limited to procedural history and should not be a chronology merely of matters of assistance to one party. It must include an objective summary of all relevant matters referred to in the evidence. The chronology should include references to the page number where the evidence is to be found in the Application to Resolve a Dispute, Reply and/or Application to Admit Late Documents.
23. In reply to the appeal application, the respondent/s may provide an alternative or supplementary chronology to that lodged by the appellant.
24. The following is a suggested form for chronologies:
|1 January 2010||Worker injures back lifting a box at work||Worker's statement - ARD, page 10|
|2 January 2010||Worker attends Dr Smith||Worker's statement - ARD, page 11|
List of authorities
25. A list of authorities referred to and relied on in the submissions must be attached to the submissions. The full and correct name and citation of each authority must be given. If the authority is an unreported decision, a full copy of the decision must be attached to the submissions. It is not necessary to provide copies of Commission decisions or decisions available on legal websites.
26. If a matter is listed for an oral hearing, at least five working days prior to the hearing, an updated list of authorities must be provided to the Presidential member hearing the matter.
27. If the Registrar is satisfied that the appeal application complies with the relevant procedural requirements, a copy of the application will be returned to the filing party with the seal of the Commission and a “date registered” stamp affixed to it, together with a direction outlining the timetable for the filing and serving of submissions and supporting documentation.
28. The Registrar will issue the parties with a copy of the transcript of arbitration proceedings and oral decision, if the matter was determined orally. Any supplementary submissions following receipt of the transcript/s must be lodged in the Commission and served on all parties to the proceedings within 28 days of the date of issue.
29. The appellant must serve a copy of the sealed appeal application on all parties to the proceedings within 14 days of registration of the appeal application or by the date referred to in the direction. The appellant must also serve a copy of the appeal application on the employer’s insurer, unless the employer is a self-insurer.
30. The appellant must lodge in the Commission a Certificate of Service (Form 4) within seven days of the date of service of the appeal application or by the date referred to in the direction, certifying service of the appeal application and direction on the other parties.
31. The respondent/s to the appeal may respond to the appeal application by lodging in the Commission an Opposition - Notice of Opposition to Appeal Against Decision of Arbitrator (Form 9A), within 28 days of service of the appeal application or by the date referred to in the direction. The Notice of Opposition must be complete and have attached submissions dealing with the threshold and preliminary matters (see above, -). It must respond clearly and succinctly to each of the appellant’s grounds of appeal and submissions in support (using the format described above at -). The failure to lodge a Notice of Opposition may result in the appeal being considered in the absence of any submission by the respondent/s.
32. The Registrar will return a sealed copy of the Notice of Opposition to the filing party. The respondent/s must serve a sealed copy of the Notice of Opposition on each other party by the date referred to in the direction.
33. The respondent/s must lodge in the Commission a Certificate of Service (Form 4) within seven days of the date of service of the Notice of Opposition or by the date referred to in the direction, certifying service of the Notice of Opposition on all other parties.
34. The appellant must lodge in the Commission and serve on each other party any submissions in reply to the Notice of Opposition/s, within 14 days of service of the Notice of Opposition/s or by the date referred to in the direction. The appellant must also lodge in the Commission a Certificate of Service (Form 4) certifying service of submissions in reply on each other party.
35. The legal representatives for the parties must certify that their client’s case has reasonable prospects of success pursuant to s 352(7A) of the 1998 Act and cl 2 of Sch 2 of the Legal Profession Uniform Law Application Act 2014. This certification appears in Pt 3 of the Application – Appeal Against Decision of Arbitrator (Form 9) and Part 3 of the Opposition – Notice of Opposition to Appeal Against Decision of Arbitrator (Form 9A).
Discontinuing an appeal
36. If the appellant seeks to discontinue the appeal prior to determination by a Presidential member it must lodge in the Commission and serve on all other parties an Election to Discontinue Proceedings (Form 14B).
37. If the parties agree to discontinue the appeal on terms, the parties must lodge in the Commission an Agreement to Discontinue (Form 14A). This must identify the terms of agreement and the proceedings to be discontinued.
Determination on an appeal
38. An appeal against a decision of an Arbitrator is determined by a Presidential member.
39. The Presidential member may issue directions as to the future conduct of the appeal. This may include whether further submissions are required and/or whether the matter will proceed to a telephone conference and/or a hearing. If the matter proceeds to telephone conference or hearing the parties will be informed by way of notice. If the matter proceeds to hearing, it is expected that the parties’ legal representatives will attend before the Commission.
40. If the appeal is determined on the papers or the decision is reserved following hearing, the Registrar will advise the parties of the decision in writing as soon as practicable after it is made. Where the Presidential member refuses to grant leave to appeal, the reasons for the decision will be given in writing.
41. In accordance with the Commission’s Policy on Publication of Decisions in the Workers Compensation Commission all Presidential decisions will be published on AustLII, BarNet JADE and LexisNexis, seven days from the date of the decision, unless an objection is raised.
His Hon Judge Greg Keating