Thinking | 12 April 2016
Time to appeal from workers’ compensation award
A recent decision handed down in the Supreme Court of the ACT, Agostino Jugovac v D Group Employment Pty Ltd  ACTSC 66 held that an appellant worker’s appeal be struck out as incompetent. The judgment considered the meaning of “award”, and when an award or other order of the Court is made for the purposes of determining the time for filing an appeal.
The worker alleges he was injured at work on 15 July 2011 when a truck he was driving hit electrical power lines and became electrified. The worker jumped from the vehicle, falling to the ground, and alleges that he suffered injuries as a result of both the electric shock and the fall. His workers’ compensation claim was initially accepted but later declined by the insurer. The worker filed an Application for arbitration disputing the declinature. Common law proceedings were also commenced against the employer for the alleged injuries.
Findings at first instance
The Chief Magistrate provided her decision on 4 March 2014 and found that the worker had suffered minor injuries only following the incident, which had resolved, and the worker had no entitlement to further compensation. Her Honour concluded that she could not be satisfied that the worker’s more extensive claimed injuries related to the workplace accident.
Unfortunately, the Court’s recording system failed during delivery of the oral decision and no transcript of the judgment was available, however the parties were provided with a copy of the Chief Magistrate’s draft reasons which formed the basis of her decision.
The worker appointed new solicitors in early 2015. The new solicitors wrote to the respondent employer’s solicitors in March 2015, inviting them to take out an award. When the parties could not agree on an award, the matter was relisted before the Chief Magistrate and ultimately an award was entered in favour of the employer.
Appeal and strike out application
The worker’s solicitor filed a notice of appeal from the award, and the respondent employer filed a strike out application shortly afterwards. The main issue to be determined on the application was whether the 28-day period for filing the appeal started running when the original judgment was handed down on 4 March 2014, or after the formal award was entered on 14 August 2015. The worker submitted that the latter construction was the correct one, particularly in circumstances where the Chief Magistrate’s decision was uncertain in light of the failure of the recording equipment. The employer argued that the award was made on the date of the original decision, as all matters were finally decided at that time.
Justice Burns in the ACT Supreme Court found that the award was made when the oral decision was delivered, and accordingly struck out the appeal as incompetent and ordered the worker pay the employer’s costs of the appeal. In doing so, he confirmed that the principles stated by Justice Kelly in Moore & White Pty Ltd v Mitojevic and David Jones (Aust) Pty Ltd v Arauner, and by Justice Gallop in David Jones (Canberra) Pty Ltd v Zapasnik were still applicable in the ACT.
Take home message
There are a number of important lessons arising out of this case.
First, the decisions referred to above stand for the principle that an order of the Court, whether characterised as a decision, order or award, is made when it is delivered unless all matters before the Court are not disposed of at that time. In workers’ compensation proceedings, it is common that the Court will find that a worker is entitled to compensation for past expenses or weekly compensation, but direct the parties to attempt to agree on the precise amounts which will be finalised at a later date. In those circumstances and where an appeal is likely, it is important to remember that the time for filing an appeal will not commence until all issues, including the precise amount of compensation payable, have been resolved.
Secondly, although rule 3964 of the Court Procedures Rules 2006 (ACT) requires a successful party to take out a formal award, it is rare that employers will do so as it generally has no practical effect. The rule is therefore more honoured in the breach than in the observance. If workers could circumvent the time restrictions for filing an appeal by later raising the employer’s failure to formalise the award, it would potentially expose employers to an appeal long after they believe a matter to be finally disposed of. The Court has usefully provided certainty to employers in this regard.
Finally, it is important in this day and age to remember that technology can fail at significant moments. Where a judgment is to be delivered orally, a representative of the parties involved should always be present to record the findings and orders made in case a dispute later arises.
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