K&W Haulage Pty Ltd v BCL (NSWPICPD1 2023)

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Key Takeaways

This decision confirms that an administrative error by a legal practitioner will not be considered ‘exceptional circumstances’ when considering if an extension of time to appeal should be granted by the PIC. While the insurer solicitor ultimately succeeded in obtaining an extension, this was despite their administrative error, not because of it.

Deputy President (DP) Wood also highlighted that a Member’s failure to engage with all relevant evidence when determining the facts or providing reasoning in support of their conclusions may amount to ‘substantial injustice’.

Brief Facts

K&W Haulage Pty Ltd employed the worker, BCL, in March 2020 and terminated his employment on 5 November 2020. On 13 April 2021, BCL brought a claim alleging a psychological injury. He claimed weekly compensation, medical and treatment expenses and lump sum compensation pursuant to the Workers Compensation Act 1987 (the 1987 Act).

BCL commenced proceedings in the PIC. On 6 July 2022 a Certificate of Determination (COD) was issued which determined BCL suffered a psychological injury, his employment was a ‘substantial contributing factor’, he remained unfit for work, required ongoing treatment and s11A of the 1987 Act was inapplicable as his termination was not the whole or predominant cause of his injury.

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that appeals against decisions made by non-presidential members must be made within 28 days or a longer period determined in accordance with rule 133A(5) of the 2021 PIC Rules. Rule 133A(5) provides that the time for appeal may be extended if a decision-maker is satisfied in exceptional circumstances, that refusing leave to appeal would work ‘demonstrable and substantial injustice’.

The employer lodged their appeal on 5 August 2022, two days after the 28 day deadline due to an administrative error by the employer’s solicitors allegedly caused by the solicitor with carriage being absent from work.

An extension of time to appeal was sought under s352(4)(b) of the 1998 Act.

Judgment

DP Wood confirmed the extent of the delay and the reasons for the delay are relevant considerations. She considered the employer’s solicitor’s evidence as to the timeline of steps they had taken to initiate the appeal. These steps included recommending an appeal on 18 July 2022, receiving instructions on 28 July 2022, engaging counsel to draft submissions on 31 July 2022 and failing to have the matter handled by another solicitor when the solicitor with carriage was absent.

Exceptional circumstances are those that are unusual, special or uncommon. DP Wood reiterated the Commission’s established position that administrative error does not constitute ‘exceptional circumstances’, noting that administrative errors ‘somewhat regularly occur’. Accordingly, ‘exceptional circumstances’ were not established.

However, the High Court have held applications of time to lodge an appeal require consideration of the prospects of success of the proposed appeal (Gallo v Dawson HCA 1990).

When turning to consider the prospects of success of the appeal, DP Wood determined three grounds had merit due to the flawed reasoning of the Member at first instance. She concluded that not extending the time to appeal would ‘cause a substantial injustice to the [employer]’ so it was determined the appeal should be allowed.

The 6 July 2022 COD was revoked and the matter remitted for re-determination by a different non-presidential member.

Implications

This decision is a timely reminder to legal practitioners and their clients, of the importance of diligence, organisation and time management. DP Wood reiterated that on its own, administrative error by a legal practitioner does not constitute ‘exceptional circumstances’ warranting the exercise of executive discretion. The assessment of administrative error is also not limited to the actions taken once a practitioner is aware of the error; the steps taken throughout the entire process are relevant considerations.

Assessing whether the refusal to grant leave to extend time to appeal would cause ‘demonstrable and substantial injustice’ necessarily requires consideration of the prospects of success of the proposed appeal. Even where exceptional circumstances are not made out, if a proposed appeal is found to have merit, time to appeal may be extended.

While it is important to be cognisant of whether procedural requirements have been complied with, ‘substantial injustice’ is a significant consideration in determining whether an application for an extension of time to appeal will succeed.