e-bulletin No. 103 - May 2020

Procedural requirements on arbitral appeals

Practitioners are reminded that arbitral appeals must comply with the procedural requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as set out in Practice Direction No 6 – Appeal against a Decision of an Arbitrator (Practice Direction No 6).

Appeal Applications and Notices of Opposition that do not comply with Practice Direction No 6 will be rejected (see Jeld-wen Australia Pty Ltd v Quilao [2019] NSWWCCPD 10, at [32]). If an Appeal Application cannot be re-submitted within the time required by s 352(4) of the 1998 Act, parties must make an application to extend time for the making of the appeal under r 16.2(5) of the Workers Compensation Commission Rules 2011. Practitioners are reminded that such applications will be considered having regard to whether exceptional circumstances exist.

Practitioners are encouraged to familiarise themselves with Practice Direction No 6, found on the Commission’s website here.

It is inappropriate for practitioners to contact Presidential Unit staff or the Registrar’s delegate by telephone to seek to cavil with a decision to reject an Appeal Application, a Notice of Opposition or a decision to issue a Direction. Minor procedural matters may be dealt with over the phone via the Commission’s Registry.

Grounds of appeal

The Appeal Application must state briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence. The grounds of appeal must identify:

1. the nature of the alleged error to have occurred, being either an error of law, fact or discretion;
2. any material findings it is said the Arbitrator should or should not have made; and
3. any material facts it is said the Arbitrator should or should not have found.

Submissions

Submissions must be divided into paragraphs and numbered consecutively. They must contain appropriate subheadings for each separate ground. All submissions must deal clearly and succinctly with each ground of appeal.

Filing of supplementary submissions following receipt of the Commission’s Official Transcript

It is not appropriate that parties file an appeal without grounds, or with no submissions in support, on the basis that submissions will be filed on receipt of the Commission’s official transcript.

An appellant is permitted to supplement their submissions on receipt of the official transcript. However, this is not an invitation to provide submissions or grounds of appeal, or to extend time to provide submissions, at a later point in time.

The Commission operates in a front-end loaded system. As such, parties are not permitted to “reserve their right” to file further submissions outside the standard timetable without leave.

Practitioners are required to keep notes of the essentials of what occurs in arbitration hearings, including the terms of orders and the elements of arguments put to Arbitrators.

A copy of the audio recording of an arbitration hearing and a transcript of an oral decision of an Arbitrator can be obtained by writing to the Commission at [email protected].

Online lodgment portal

Practitioners are further reminded that from 1 January 2020, the Commission no longer accepts hard copy or email lodgment for forms and other documents. Lodgments will be limited to the online portal, except for matters lodged by self-represented parties. Paper forms should not be uploaded onto the online portal.

Follow the links on the Commission’s website to use the portal

Judge Gerard Phillips
President