Issue 3: March 2016

Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6

Claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the 1987 Act by the 2012 amending Act applies to pre-2002 injuries; cls 3 and 15 of Pt 19H of Sch 6 to 1987 Act; cl 11 of Sch 8 to the 2010 Regulation; BP Australia Ltd v Greene [2013] NSWWCCPD 60 discussed and distinguished

Roche DP

3 February 2016

Facts:

Prior to the 2012 amending Act (the 2012 amendments), workers who received an injury that resulted in a degree of permanent impairment of 10 per cent or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment (s 67 of the 1987 Act). Section 67 was repealed by the 2012 amendments. Therefore, subject to the application of the relevant savings and transitional provisions, and subject to certain specific exceptions, the amendments abolished workers’ rights to receive compensation for pain and suffering.

The relevant savings and transitional provision was cl 11 of Sch 8 of the 2010 Regulation. It provides:

“(1)  The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.

(2)   Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”

The worker injured his back and legs in the course of his employment in 1997, and weekly compensation and medical expenses were paid by the insurer.

On 27 January 2015, the worker claimed compensation for pain and suffering under s 67. The insurer asserted that as the claim (for lump sum compensation) was “lodged after 19 June 2012”, the worker was not entitled to compensation for pain and suffering, as s 67 was repealed.

The Arbitrator determined that the legislature intended to remove entitlements to lump sum compensation for pain and suffering, except in very specific circumstances. As the worker’s claim did not come within those circumstances, his claim failed. The worker appealed.

The issue in dispute on appeal was whether the Arbitrator erred in refusing to award the worker lump sum compensation for pain and suffering under s 67.

Note: This appeal was determined at the same time as the appeals in Cicuto v Terrafirma Terrazzo Pty Ltd [2016] NSWWCCPD 7 (Cicuto) and Suine v Area Refrigeration Pty Ltd [2016] NSWWCCPD 8 (Suine), which raised the same issue. In determining Frick, the Commission had regard to the submissions made in all three matters.

Held: The Arbitrator’s determination was confirmed.  

Discussion and findings

1. The appeal turned on whether, when dealing with cl 11, the “totality of the amendments made by schedule 2 [to the 2012 amending Act] are treated as a single entity”. The appellant presented no persuasive argument that the Arbitrator’s statements that there was no grammatical warrant for the “all or nothing” approach to cl 11 (as the appellant had contended) and the plural “amendments” in cl 11 was intended only to ensure that the clause was read to include all the amendments in Sch 2 to the 2012 amending Act “insofar as each of them is applicable to claims for compensation made before 19 June 2012” [38]–[39].

2. The Deputy President stated that, as with all amendments to legislation, “[t]he amendments” introduced by Sch 2 to the 2012 amending Act only apply as far as they are applicable or relevant. That is determined by the application of the savings and transitional provisions. There was no basis for the assertion that they either all apply or none apply. That was especially so where one of the amendments introduced by Sch 2 was the repeal (as opposed to the amendment) of a provision. The effect and operation of that repeal depended on the interpretation of cl 11 [39].

3. The amendments made by Sch 2 to the 2012 amending Act extend to “a claim for compensation made before 19 June 2012, but not a claim that specifically sought compensation under section 66 or 67 of the 1987 Act” (Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 (Goudappel No 2) applied). It did not matter that Goudappel No 2 concerned an injury received after 1 January 2002 [40].

4. As the worker claimed compensation before 19 June 2012, but had not specifically sought compensation under s 66 or s 67 prior to that date, the amendments introduced by Sch 2 to the 2012 amending Act applied to him unless there was a sound reason why they should not. The critical amendment was the repeal of s 67. The worker therefore had no entitlement to compensation under s 67 because, by the time he made his claim for that compensation, the section had been repealed and he did not come within any of the applicable exemptions [41]–[42].

5. While the above was sufficient to dispose of the appeal, the Deputy President made the following observations for completeness [42].

6. The worker’s reliance upon BP Australia Ltd v Greene [2013] NSWWCCPD 60 (Greene) was misplaced. Greene concerned the effect of the 2012 amendments to s 66. Greene was distinguished on the basis that the 2012 amendments did not repeal s 66, but only amended it. That meant that the amended version of s 66 had to be reconciled with the pre-2002 version of that section, which was saved by cl 3 of Pt 18C of Sch 6 of the 1987 Act. When one attempted to do that it resulted in a section that made no sense [44], [50].

7. The present case was different. It concerned the repeal of s 67, not its amendment. It therefore did not matter that some of the amendments in Sch 2 of the 2012 amending Act could not apply to lump sum provisions as they existed before the 2001 amendments took effect on 1 January 2002. That fact did not affect the repeal of s 67. The repeal of s 67 can be applied and, in the absence of an applicable exception, must be applied [51].

8. Whether the repeal of s 67 applied to workers in Mr Frick’s position depended on the relevant savings and transitional provisions, namely cl 11. There being little room for debate about the construction of cl 11, it followed that the repeal of s 67 applied and prevented the recovery of compensation for pain and suffering in this case, and in Suine and Cicuto [52].

9. The worker’s references to s 67 in the pre-2002 forms of ss 65(3), 66B(1) and 67A(4) were irrelevant. Those provisions simply had no work to do. The express terms of the statute, as amended by the 2012 amendments, read with cl 11 of Sch 8 provided “very strong grounds” (Saraswati v The Queen [1991] HCA 21; 172 CLR 1 per Gaudron J at 17) for the conclusion that the legislature intended the repeal of s 67 to apply to pre-2002 injuries, regardless of the fact that the pre-2002 versions of ss 62(3), 66B(1) and 67A(4) still refer to s 67 [53].

10. The entitlement to compensation for pain and suffering under s 67 continues where an exception is made (see BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48). Such an exception is made in cl 11 of Sch 8. However, that exception only applies where a claim was made before 19 June 2012 that specifically sought compensation under s 66 or s 67. That did not apply here. (As to the operation of the exception in cl 11 generally, see Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250) [54].

11. There are also exceptions in cls 25 and 26 of Sch 6 to the 1987 Act, which state that the 2012 amendments do not apply to police officers, paramedics and firefighters and coal miners. There was no equivalent provision for s 67 for pre-2002 injuries [55].

12. The worker’s approach involved imputing to the Parliament an intention that was not only not supported by the words used, but was inconsistent with those words. When it is said that the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation” (emphasis included) (Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]; 241 CLR 252 at 264) [56].

13. In other words, the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions (Certain Lloyd’s Underwriters v Cross [2012] HCA 56 per French CJ and Hayne J at [26]; 248 CLR 378, at 390). Moreover, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41 at [47]; 239 CLR 27 at 46–7) [57].

14. The intention manifested by the words in cl 11 was clear. For a worker in Mr Frick’s circumstances, the right to recover compensation for pain and suffering had been abolished. As there were no distinguishing features between this case and Suine and Cicuto, the same result followed in those matters [58].

Scott v JR Corney & SM Morrisey t/as Digquip [2015] NSWWCCPD 11

Worker; application of indicia; control; matters not argued at arbitration; leave to argue new matters on appeal; appellant bound by conduct of counsel at arbitration; application of principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; principles in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341 discussed; application for leave to cross-examine; exercise of discretion in refusing leave to cross-examine; not accepting evidence of claimant in circumstances where leave to cross-examine first respondent refused; non-compliance with Practice Direction No 6

Roche DP

17 February 2016

Facts:

In 2010, the claimant worked in his own business as a diesel mechanic and welder. In August 2010, the claimant was engaged by Mr Corney of the first respondent to work a couple of days per week as an independent contractor. The claimant’s case was that in 2011, the nature of his working relationship changed from independent contractor to full-time employee.

On 22 July 2013, the claimant attended Glenn Innes Council Quarry with Mr Corney to prepare a dump truck to be transported. When working on the dump truck, the claimant injured his back lifting batteries.

The claimant made a claim for compensation against the first respondent. As the first respondent was uninsured, the Workers Compensation Nominal Insurer was joined as the second respondent. The claim form was subsequently altered by the claimant to claim against Metric Minerals, the third respondent and owner of the dump truck.

The Arbitrator determined that the claimant was not a worker or a deemed worker and entered an award for the three respondents. The claimant appealed.

In summary, the grounds of appeal alleged that the Arbitrator erred in:

(a) not accepting Mr Scott’s evidence/refusal to allow cross-examination;

(b) his assessment of the control test, and

(c) his assessment of business expenses, work from other clients and insurance.

In addition, the claimant sought leave to raise a new matter on appeal, namely that the Arbitrator had erred in not applying the test in Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 (Langford) and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341 (On Call).

Held: The Arbitrator’s determination was confirmed.  

Ground 1: not accepting Mr Scott’s evidence/refusal to allow cross-examination

1. An issue regarding Mr Corney’s credit arose because of the alteration of the claim forms. Counsel for the claimant made an application to cross-examine Mr Corney, which was denied by the Arbitrator. The claimant’s challenge to that finding was rejected [19].

2. First, there is no right to cross-examination in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 per Bryson JA at [37] (Handley JA and Bell J agreeing) (Zheng)) [26].

3. Second, whether cross-examination is allowed is a matter for the Arbitrator’s discretion (Zheng at [25]) [27].

4. Third, as the issue was already dealt with in the documentary evidence, it was open to the claimant to attack Mr Corney’s credit even though he had not been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]) [28], [36].

5. Given the way the claimant presented his case, the Arbitrator’s refusal to grant leave to counsel for the claimant to cross-examine Mr Corney had no relevant impact on the outcome. It was open to the Arbitrator to weigh the evidence as he did. He looked at other objective evidence that could not be disputed. Therefore, even if the Arbitrator erred in refusing leave to cross-examine, given the objective or undisputed evidence, it had not affected the outcome [37]–[40].

Grounds 9, 10 and 11: control

6. The Arbitrator was well aware that, consistent with Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751, the application of the control test required consideration of the scope for control and not the actual exercise of control. It was open to the Arbitrator to conclude that, on the day of the injury, the claimant was not under Mr Corney’s control [56].

7. The claimant conceded that his relationship with Mr Corney was initially one of contractor and principal. His case was that the relationship changed in late 2011 to being a full-time employee of the first respondent. The objective evidence in the financial records confirmed that that assertion was incorrect [59].

8. The Arbitrator accepted that Mr Corney told the claimant what to do. On its own, that did not establish that the claimant was a worker employed by the first respondent. Nor did it mean that the Arbitrator was obliged to make that finding [60].

9. The Arbitrator was entitled to give weight to the fact that the claimant worked unsupervised for a large part of the time. As the nature of the work was specialised, particularly the diesel mechanical work, the Arbitrator’s finding that “Mr Corney did not exercise control over much of the work carried out by [the claimant] but relied on [the claimant’s] specialist qualifications and experience” was consistent with the agreement the claimant and Mr Corney first entered into in July/August 2010, being one of independent contractor and principal. The finding was open on the evidence and disclosed no error [64]–[65].

10. The claimant had refused to do certain jobs. That was not consistent with an employment relationship [68].

11. However, contrary to the first and second respondent’s submissions, it is not necessary that the putative employer exercise control in the manner in which the particular tasks are performed. It has long been established that, especially in the case of employees who have specialised skills, an employer cannot supervise the mode of performance of the work. It will be enough that the employer retains “lawful authority to command so far as there is scope for it”, if only in “incidental or collateral matters” (Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561 at 571). The Arbitrator was not satisfied that Mr Corney retained such authority to command the claimant in the present case. That finding was open on the evidence [69].

12. The mode of charging involved the claimant submitting regular invoices. That was consistent with a contractor invoicing a principal. It did not evidence control [71].

13. Though the Arbitrator did not directly determine the issue of whether the claimant needed permission to be absent from work, he found that the hours of work were fixed by the claimant, to suit his convenience, and that he worked as long as it took to complete the jobs assigned to him. This implied that the Arbitrator did not accept the claimant’s assertion that he needed permission to be absent from work. This conclusion was open on the evidence [73], [78].

Ground 12: business expenses, work from other clients and insurance

14. The Arbitrator accepted that a claimant could have a business and still be a worker employed by another entity. He distinguished the facts in Hoskins v Boshane Pty Ltd & Anor [1994] NSWCC 33; 10 NSWCCR 698 and found that the claimant ran his own business and was not employed by the first respondent [88].

15. Normally, the provision by a claimant of his or her own tools and equipment indicates that the person is an independent contractor (Hollis v Vabu [2001] HCA 44; 207 CLR 21 at [56]). However, that is not always so. In the present case, the Arbitrator was well aware that the claimant left some of his own tools at the first respondent’s premises and clearly considered that fact in his determination. He was also aware that the first respondent provided tools and equipment. It was not accepted that the Arbitrator’s approach on this issue was erroneous [88].

16. The authorities make it clear that it is difficult to give much weight to arrangements about insurance (or taxation) (ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 per Buchanan J (Lander and Robertson JJ agreeing) at [37]). However, in the present case, Mr Corney expressly raised (at the outset of the arrangement) the issue of insurance, and the need for the claimant to have his own. In these circumstances, the Arbitrator was entitled to consider the fact that the claimant carried his own income protection insurance as pointing to him being a contractor. It was not determinative and he did not treat it as if it was [82], [90].

Ground 13: not applying selected indicia

17. Contrary to the claimant’s submissions, the Arbitrator considered the majority of the indicia listed and determined that they did not support the claimant. His conclusions were open to him and disclosed no error. The points that the Arbitrator did not consider, several of which were not the subject of submissions by the claimant, made no difference to the outcome [95].

Leave to raise new matters on appeal

18. The claimant sought leave to argue that the Arbitrator erred in applying the test in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (the test the claimant submitted at the arbitration should be applied) and in not applying the test in Langford and On Call (for a summary of that test, and its application in the Commission, see Amalgamated Pest Control Pty Ltd v Chaaya [2015] NSWWCCPD 53 at [26] and Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 at [183]) [97]–[101].

19. A party is bound by the conduct of his or her case at first instance. Except in the most exceptional circumstances, it is against all principles to allow a party to raise on appeal a new argument that he or she failed to put during the hearing (Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (at 7–8); University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598;  Mamo v Surace [2014] NSWCA 58 at [75]) [103].

20. To determine if exceptional circumstances existed that would justify permitting the claimant to argue the new matters on appeal required consideration of the merit of the new matters. Having regard to the lengthy history of the matter and, in particular, having regard to the fact that the application of the principles in On Call made no difference to the outcome, the Deputy President did not accept it was either expedient, or in the interests of justice, that the claimant be permitted to challenge the decision on a basis never argued [108].

21. Applying the approach outlined in On Call, the end result was the same and no relevant error was demonstrated. For completeness, though it was not strictly necessary, the Deputy President considered the claimant’s further submissions in support of grounds 2–8 [134].

Ground 2: the applicable test;

Ground 3: right to have a particular person do the work;

Ground 4: right to exclusive services of Mr Scott;

Ground 5: place of work and hours of work;

Ground 6: the subcontracting of warranty work;

Ground 7: mode of remuneration, and

Ground 8: provision of own tools

22. These grounds overlapped with the matters considered earlier, but relied on the approach in On Call. Regardless of which approach was adopted, these matters made no difference to the result [135]–[136], [139]–[140], [142], [144]–[145], [147], [149].

Maruf v Target Australia Pty Ltd [2016] NSWWCCPD 12

Interlocutory order; leave to appeal; dismissal of proceedings by Arbitrator; s 352 of the 1998 Act

Keating P

18 February 2016

Facts

This matter concerned an appeal against an Arbitrator’s interlocutory determination that the worker’s proceedings be dismissed for failure to prosecute the claim with due dispatch, pursuant to s 354(7A)(c) of the1998 Act and Pt 15 r 15.8 of the 2011 Rules.

At the time the matter came before the Arbitrator for a telephone conference the worker was in Bangladesh attending a religious festival. He could not be reached by telephone and it was unclear when he was due to return to Australia. His solicitors decided that when he returned to Australia further medico-legal examinations were to be arranged. It was clear that the worker did not have all the evidence upon which he planned to rely in support of his application and in the circumstances the Arbitrator dismissed the matter.

The worker appealed. As the Arbitrator’s determination was interlocutory, the worker required leave to appeal pursuant s 352(3A) of the 1998 Act. Section 352(3A) provides that the Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.

Held: Leave to appeal was refused.    

Discussion and findings

1. An order striking out proceedings is an interlocutory order because it has not finally determined the parties’ rights (Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439 applied in Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57) [20].

2. An order striking out proceedings where the worker allegedly failed to provide appropriate evidence in support of a claim is also an interlocutory decision (Cooper v Family and Community Services (Ageing, Disability and Home Care) [2014] NSWWCCPD 8) [21].

3. Contrary to the worker’s argument, the appeal was against an interlocutory decision. Applying the above principles, the President found that, as the Arbitrator did not make relevant findings on the merits, the order dismissing the matter had not determined the worker’s final rights. The worker was still entitled to re-commence proceedings without penalty [22].

4. The President found that granting leave to appeal was neither necessary nor desirable for the proper and effective determination of the dispute. The President observed that even if leave to appeal were granted and the appeal succeeded the outcome would merely result in the dispute being remitted to another Arbitrator for determination. He added, that same outcome could be achieved without prejudice by the worker lodging a fresh application to resolve the dispute when the matter is ready to proceed. Accordingly, leave to appeal was refused [24]–[26].

Tudor Capital Australia Pty Ltd v Christensen [2016] NSWWCCPD 14

Section 25 of the 1987 Act; causation of death of worker; onus of proof; proof in the absence of scientific certainty; consideration of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 and Tubemakers of Australia v Fernandez (1976) 10 ALR 303; standard of proof; factual error; s 9A of the 1987 Act; need to engage with evidence and to state reasons for findings in circumstances when there is conflicting expert evidence

O’Grady DP

25 February 2016

Facts:

The deceased worker was a Portfolio Manager for an international hedge fund. Originally from the Melbourne office, before transferring to London, in 2007 the deceased relocated from London to Sydney for family reasons. Upon his relocation, the worker experienced technological difficulties in the Sydney office that resulted in him having difficulties in implementing and using the trading system that he had developed in London. The relocation itself also resulted in a decline in the worker’s trading performance. Due to the decline in his performance, in August 2008, the deceased was placed on a “watch list”, which he learnt of about two months after being placed on it. He was also requested to produce a model of the trading results that he would have captured should he not have had these difficulties. The deceased also worked long hours into the night, trading on the London markets, which he had traded on prior to his relocation to Sydney. All of this placed significant stress on the worker who was missing regular sleep. Those, and other circumstances, had given rise to a deterioration in the worker’s state of health, he became run down and, as put by counsel, his immune system had become “debilitated”.

In the weeks leading up to the deceased’s death, he was ill. On the day of his death, he reported to a colleague that he was breathless. At about 11.30 pm on 8 September 2008, at home, he suffered ventricular fibrillation, entered into cardiac arrest and passed away.

The worker’s wife, the claimant, (for herself and their two dependent children) claimed compensation under s 25 of the 1987 Act following the deceased’s death. In proceedings before the Commission, both the claimant and the employer adduced a great amount of competing expert medical evidence as to the probable cause of the deceased’s death. The claimant, amongst other expert evidence, relied on the evidence of Associate Professor Richards (consultant cardiologist), and the employer relied upon, amongst other experts, the evidence of Professor Keogh (senior heart transplant cardiologist at St Vincent’s Hospital).

Following lengthy proceedings, a Commission Arbitrator determined that the deceased’s employment was “the main [sic] substantial reason for the breakdown of the deceased’s health and subsequent death”. In essence, the Arbitrator found that the deceased’s employment caused the deceased to contract a virus, and that that virus entered his heart, and the presence of that virus in the deceased’s heart caused the deceased to suffer a ventricular fibrillation that caused him to enter cardiac arrest which led to his death. The employer appealed. The assessment of apportionment between the claimant and the children was deferred until resolution of the appeal.

The issues in dispute on appeal were whether the Arbitrator:

(a) reversed the onus of proof: at [271] of Reasons;

(b) made a number of erroneous findings of fact:

1. that the disarray present post mortem found on histological examination was caused by viral myocarditis: at [257] and [271] of Reasons;
2. that T cell lymphocytes entered the myocardium: at [272] and [229] of Reasons
3. that emotional stress was the cause of the viral illness: at [245] of Reasons;
4. that histological evidence of viral myocarditis was missed: at [262] of Reasons, and
5. that stress induced ill health “allowed the introduction of a viral illness” into the body of the deceased: at [266] of Reasons;

(c) erred in finding that the ventricular fibrillation that caused the death of the deceased was caused by viral myocarditis: at [229], [254], [267] and [269] of Reasons;

(d) failed to correctly apply s 9A of the 1987 Act to the facts: at [273] of Reasons, and

(e) wrongly rejected the evidence of Professor Keogh: at [260] of Reasons.

Held: The Arbitrator’s determination was confirmed.  

Ground one

1. The decisions of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes), Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 and St George Club Ltd v Hines (1961) 35 ALJR 106 are authority for the proposition that the whole of the evidence is to be considered in determining causation. That point was made clear by Mason J in Tubemakers of Australia v Fernandez (1976) 10 ALR 303 [76].

Onus of proof

2. The Deputy President was not persuaded that, read in the context of the Arbitrator’s reasons as a whole, his statement concerning a “need to demonstrate” the matter of denial of possibility constituted a reversal of the onus of proof. That conclusion was reached given the state of the evidence before the Arbitrator [83].

3. The respondent had adduced evidence of the possibility of both a causal nexus between stress and contraction of viral infection, and causal nexus between viral infection and death. Whilst there was no shift of the onus of proof, there may arise, once evidence of possibility is before the Commission, a shift of the tactical burden, as discussed in Sydney’s Tune Pty Ltd v Scala [2014] NSWWCCPD 64 at [99]–[102] (see C R Williams, Burdens and Standards in Civil Litigation [2003] SydLawRw 9) [84].

4. The words adopted by the Arbitrator, read in isolation were, regrettably, apt to mislead. At [271] the Arbitrator was addressing the state of the evidence, in particular, that concerning “disarray found on histological examination”, which disarray was consistent with either competing hypothesis as to cause of death [85].

5. The statement made by the Arbitrator at [271] seemed to be intended as a statement of his view as to the state of the evidence that he had earlier summarised and which he stated could not “be simply ignored as being irrelevant”. That evidence, together with other evidence stated as having been accepted by the Arbitrator, was likely to discharge the legal burden upon the respondent. There was, in his view, an absence of acceptable contradictory evidence. Taking into account the entirety of the Arbitrator’s reasons, the Deputy President concluded that the Arbitrator was making reference to an absence of a persuasive response by the appellant to a shift of the tactical burden as discussed by Williams as noted above. The Deputy President was not persuaded that the appellant had made out the assertion in this ground that the Arbitrator had reversed the onus of proof [86].

Standard of proof

6. Whilst the appellant’s submissions as to whether the Arbitrator erred as to the standard of proof had considerable force, it was apparent that they were founded upon statements by the Arbitrator which had been isolated from the text of the entirety of his Reasons. Those Reasons included an accurate and comprehensive consideration of the evidence and, importantly, that summary was accompanied by frequent evaluation by the Arbitrator of the evidence considered by him. The Arbitrator’s summary of the evidence was followed by discrete passages in which each major issue was finally determined [89].

7. The language of the Arbitrator which was relied upon by the appellant, may not be said to have “no precise meaning” as stated in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198. However, the Deputy President was of the opinion that this complaint was not made out given that a fair reading of the Arbitrator’s Reasons as a whole demonstrated that he had regard to correct principle concerning standard of proof. The appellant had failed to make out either complaint raised and this ground failed [91], [93].

Ground two

8. The Deputy President considered the appellant’s generalised objection to the Arbitrator reaching his conclusions by reason of a suggested absence of evidence as to the “mechanism” which was said to have caused the ventricular fibrillation; that the findings were “essentially speculative”, and that there was, at best, a “tenuous” relationship between the deceased’s viral illness and the emotional stress or frustration encountered with his employer. Dealing with the particular complaints of factual error as they appeared in the ground seriatim, the Deputy President found that no error was made out in each of them [94]–[95].

Ground three

9. This ground asserted that the Arbitrator erred in finding that the ventricular fibrillation, which the parties agreed caused death, was caused by viral myocarditis. The substance of the complaint was that the respondent’s expert evidence was, erroneously, accepted by the Arbitrator. The difficulty with the appellant’s argument advanced was that there was abundant evidence as to myocarditis being the likely cause of the ventricular fibrillation leading to death [96]–[97].

10. The weight to be attached to the evidence considered by the Arbitrator was a matter to be determined by him. The state of the evidence permitted the Arbitrator’s finding as to probable cause of death. That finding did not, as argued by the appellant, constitute “conjecture” as addressed by Kitto J in Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones) (at 305). The Deputy President considered that the facts proved formed a reasonable basis for the Arbitrator’s conclusion as discussed by Dixon CJ in Jones. This ground failed [102].

Ground four

11. It was clear that the Arbitrator at [273] had disregarded the deceased’s pre-existing cardiac condition as being a factor that “played any part in his death”. The Arbitrator at [273] was addressing the nature of the two distinct and conflicting hypotheses, being the presence of relevant myocarditis or relevant hypertrophic cardiomyopathy [106].

12. Upon an acceptance that the Arbitrator had erred in disregarding the evidence highlighted in the course of the appellant’s submissions, the Deputy President was of the opinion that such error had not affected the Arbitrator’s decision. The Arbitrator’s conclusion was that employment “was the main substantial reason for the breakdown of the deceased’s health and subsequent death”. The terms of s 9A(1) employ the indefinite article and, as found in Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49], “these words, particularly the use of the indefinite article, admit the possibility of other, possibly non-employment related, substantial contributing factors...”. Whilst it followed that there may be more than one substantial contributing factor to injury, the evidence left it open to the Arbitrator to conclude as he did. The Arbitrator’s finding concerning the requirements of s 9A was not vitiated by his apparent disregard of the suggested concession made by Associate Professor Richards. The Arbitrator had earlier stated his reasons for his acceptance of the ventricular fibrillation having been caused by myocarditis and it was open for him to conclude that employment, given the causal nexus discussed in the course of his Reasons, was a substantial contributing factor to the injury leading to the deceased’s death [107].

13. The question raised under this ground was whether, upon the assumption that the Arbitrator’s factual conclusions were correctly reached, the terms of s 9A had been met. In submissions, the appellant purported to respond to matters raised by s 9A(2). A difficulty arose with that submission having regard to the assertion made that “the injury occurred at 11.30 pm at the Deceased’s home when he was having a cup of tea”. The injury is not, and cannot be, the death of the deceased but rather his experience of stress which, as found by the Arbitrator, made him susceptible to the contraction of an infective virus. Another difficulty with that submission was that the appellant sought to, again, raise the question as to which of the hypotheses as to cause of death was the probable cause of death [108]–[109].

14. The facts as found by the Arbitrator included a finding as to the existence of stressful conditions experienced in the course of the deceased’s employment. The stress as found constituted the relevant injury and that injury had been found to have rendered the deceased more susceptible to contraction of the virus. That conclusion had not been successfully challenged on this appeal. The strength of the causal linkage between employment and injury had been found to be substantial. The Deputy President was not satisfied that the appellant had made out any error on the part of the Arbitrator in his evaluation of relevant contribution nor as to the strength of the causal linkage between the employment and the injury. This ground failed [110].

Ground five

15. It was made clear, having regard to the reasoning expressed by Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 (Wiki), that there is an obligation upon a fact finder, in circumstances such as the present when there is conflicting expert evidence, to engage with that evidence; and when a choice is made between conflicting evidence of experts, reasons should be provided for such choice. A determination founded upon demeanour alone is not a sufficient discharge of the duty to give reasons where rational examination and analysis is possible [113].

16. As was noted by the Arbitrator, Professor Keogh retracted, in terms that failed to satisfy the Arbitrator, her express view found in her first report that viral myocarditis was one explanation for the deceased’s death, although less likely than acute myocardial ischemia with primary arrhythmia. Her opinion concerning suggested myocardial ischemia was also retracted. Such retractions were not to be found expressly stated in the reports of Professor Keogh, but were unequivocally elicited in the course of her cross-examination concerning the content of her report dated 13 March 2015. Such evidence explained the Arbitrator’s hesitance in accepting the witness’s delayed explanation for her change of view. Whilst no submission had been made concerning the requirements of the Expert’s code of conduct, it remained a fact that the relevant changes of opinion were not expressly brought to the notice of the Commission as was required by cl 5(4) of that code [117].

17. As stated in Wiki, there is the further obligation to engage with the evidence. That the Arbitrator did so was beyond dispute. The Arbitrator’s reasons for his preference for the evidence of the respondent’s experts were plainly stated and his statements discharged his obligation, in the present circumstances, to provide reasons for his conclusion. This ground failed [119].

Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13

Psychological injury; application to admit late documents; application for leave to cross-examine; exercise of Arbitrator’s discretion; evidence of no current work capacity; presumption of continuance; out of date medical evidence; improper attempt to raise new issues in submissions in reply without seeking leave

Roche DP

23 February 2016

Facts:

The appellant employer challenged an Arbitrator’s refusal to grant leave to admit into evidence documents attached to an Application to Admit Late Documents (AALD) containing an investigation report, “website material”, “social media material” and a lay witness statement, filed with the Commission the day before the arbitration hearing, the refusal to allow cross-examination of the worker about “certain matters contained in the documents”, and the finding that the worker had no current work capacity.

The worker alleged that he suffered a psychological injury due to bullying and harassment at work between April 2014 and when he stopped work on 22 October 2014. He claimed weekly compensation from 22 October 2014 to date and continuing, and compensation for hospital and medical expenses.

On 2 November 2015, the Arbitrator found that the worker suffered a diagnosable psychiatric illness, either an Adjustment Disorder or a Major Depressive Disorder, and that the main cause of the illness was a history of difficult personal relations with several co-workers. The Arbitrator found that the worker had no current work capacity from 22 October 2014 to date and continuing and made an award for the payment of weekly compensation and medical expenses. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator erred in:

(a) refusing to admit the late documents;

(b) refusing to allow the worker to be cross-examined, and

(c) finding that the worker had no current work capacity.

Held: The Arbitrator’s determination was revoked in part and the worker’s entitlement to weekly compensation beyond 18 April 2015, if any, was remitted to a different Arbitrator for re-determination.

Issues in dispute

1. Without seeking leave, the appellant’s counsel raised several new issues in his submissions in reply. That was improper and should not have been done. It is analogous to filing additional submissions, without leave, after the conclusion of the case (see Bale v Mills [2011] NSWCA 226 at [57] and the cases there cited). Submissions in reply are restricted to responding to matters raised in the notice of opposition [14]–[15].

Refusal to admit late documents

2. At a telephone conference before the Arbitrator, the appellant’s solicitor said that the appellant would be filing the material contained in an AALD. However, the material was not filed until after the Registry had closed on the day before the hearing and was not given to the worker’s legal advisers until the morning of the arbitration. No relevant error had been established on this ground [18], [29].

3. Appellate courts exercise particular caution in intervening in decisions about matters of practice and procedure, such as applications to admit late documents (Hamod v State of New South Wales [2011] NSWCA 375 at [132], [134]–[136]. See also Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274) [30]–[32].

4. The Commission operates, and has always operated, a front-end loaded system. Parties must file the evidence upon which they rely prior to the hearing. Section 290 of the 1998 Act provides that when a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and to the Registrar such information and documents as the Rules require (see further Part 10 Rule 10.3 of the 2011 Rules) [33]–[34].

5. Where a party in default seeks to tender late documents, that party carries the onus of establishing why the Rules should not be enforced (see Iovanescu v McDermott [2004] NSWCA 106 and Coles Myer Limited v Tabassum [2005] NSWWCCPD 16). The appellant’s explanation for the delay in obtaining and serving the documents, and therefore for the non-compliance with the Rules, was less than satisfactory. The prejudice to the appellant, if any, if the material were excluded, was not articulated at the arbitration [35]–[40].

6.Counsel suggested that some submissions regarding prejudice to the appellant, made during the conciliation stage of the proceedings, were not recorded. The failure to record matters discussed at the conciliation stage was not an oversight by the Arbitrator. Consistent with the Commission’s policy on sound recording and transcription of proceedings, the conciliation proceedings are deliberately not recorded so that the parties will feel free to engage in a full and frank exchange of views in an attempt to resolve the dispute. If the parties discuss matters during the conciliation stage that are considered relevant to an issue in dispute, it is the obligation of the legal representative to repeat those points, as formal submissions, once the arbitration (and sound recording) commences. Counsel did not do that. Therefore, if points were made during the conciliation stage, which were not repeated during the arbitration, the Arbitrator did not err in not dealing with them [40]–[42].

7. Even accepting that the late material established that the worker was looking for work at the relevant time, that was not conclusive of whether he had no current work capacity. A worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury. A determination of the nature and extent of a worker’s incapacity requires consideration of all the evidence, especially the expert evidence (Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [33]) [47].

8. The prejudice to the worker was that, because of the extremely late service of the documents, his legal advisers had limited time in which to obtain instructions, which the Arbitrator accepted would require an adjournment. An adjournment would have delayed the resolution of the matter. Such a delay would have caused the worker irreparable prejudice (Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 (Aon) at [5]). The Arbitrator was right to take that into account in the exercise of his discretion to exclude the material. It was unreasonable to require the worker to prepare a response to it without having a reasonable time for his legal advisers to analyse it, take instructions, and consider what, if any, response was required. The Arbitrator held that an adjournment would have delayed the “proceedings unreasonably”. In view of the history of the matter, the Rules, and the lack of adequate explanation for the extremely late service of the documents, that conclusion was open to the Arbitrator [52]–[53], [56].

9. It was not accepted that the Arbitrator placed undue weight on the delay that may have been occasioned to the worker and no weight on doing justice between the parties on the substantial merits of the case. What may be just in the circumstances requires the Commission to take account of other litigants, not just the parties to the proceedings (Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841 at 843–4). Account should be taken of the interests of the public as a whole in the efficient use of publicly funded court resources (Aon at [5]). The interests of justice did not require the Arbitrator to admit the late material in circumstances where he determined that to do so would require an adjournment [57].

Refusal to allow cross-examination

10. The Deputy President’s observations about the approach to appeals relating to matters of practice and procedure, and to discretionary decisions generally, applied to this ground of appeal. The appellant had not established relevant error by the Arbitrator refusing leave to cross-examine [66].

11. There is no legal right to cross-examination in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 at [37] (Zheng)). The Commission “is not a court and is not expected to function as a court” (Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244 at [91]) [67].

12. As observed in Zheng at [25], whether cross-examination is allowed is a matter for an Arbitrator’s discretion. It was difficult to see the application for leave to cross-examine as anything more than an attempt to avoid the effect of the Arbitrator’s rejection of the late documents. It was within the Arbitrator’s discretion to refuse to permit cross-examination in those circumstances [68]–[70].

13. If the Arbitrator had allowed counsel to cross-examine on documents that were not in evidence, he would have denied the worker a reasonable opportunity to properly deal with relevant issues, something the Arbitrator had already determined could not be done without an adjournment, which was not appropriate. The refusal to allow cross-examination involved no unfairness to the appellant [71], [73].

Finding of no current work capacity

14. The Deputy President accepted that there was an absence of evidence addressing incapacity beyond 18 April 2015, that is, in the six months up to the arbitration. Essentially, though he did not expressly say so, in finding that the worker had no current work capacity at the time of the arbitration the Arbitrator relied on the presumption of continuance. The so called presumption of continuance is not a true presumption but a description of the process of reasoning by which inferences of fact can be drawn. “Whether an inference should be drawn depends on the particular circumstances and the chance or likelihood of intervening circumstances having altered the original state of affairs” (Beattie and Sutherland v Osman (No 4) [2009] NSWSC 834 at [45]) [103]–[105].

15. Whether the worker remained incapacitated beyond 18 April 2015, depended on a “deduction from probabilities and must always depend on the accompanying facts” (Axon v Axon [1937] HCA 80; 59 CLR 395 at 405). The “accompanying facts” in the present case were, for the period beyond 18 April 2015, extremely limited [106].

16. The Arbitrator erred in finding that the worker had no current work capacity from 19 April 2015 to the date of the award and continuing. On the other hand, there was no evidence that the condition had resolved by that time (the evidence that the worker was still seeing his treating psychologist in June 2015 clearly suggested that it had not). Given the state of the evidence, the only fair result was that the worker’s entitlement to weekly compensation beyond 18 April 2015 be re-determined by a different Arbitrator [109].

Charles Sturt University v Manning [2016] NSWWCCPD 10

Failure to engage with conflicting medical evidence; failure to properly analyse issue in dispute; whether process of fact-finding miscarried

Roche DP

8 February 2016

Facts:

This appeal involved a challenge to an Arbitrator’s determination that the worker’s need for proposed knee replacement surgery was reasonably necessary as a result of an accepted work injury. The main complaints on appeal were that the Arbitrator misunderstood the employer’s medical evidence and failed to give adequate reasons for his decision.

Since 1986, the worker (currently 59) was employed by the appellant as a groundsman where he performed heavy physical work as a gardener and labourer.

The worker had significant non-work related problems with his knees in his twenties, and had had two surgeries performed on his left knee. The worker gave evidence that over the 26 years he had worked for the appellant he hurt his left knee numerous times, but did not report those injuries to his employer, or take time off, as he considered them too minor.

On 9 December 2011, the worker suffered a non-work related injury to his left knee, jarring it when he jumped off his boat at home. His knee swelled and the worker attended hospital and had four days off work, before returning to work on full duties. He had an MRI scan on 12 January 2012 on referral of his GP, Dr Fleming.

On Friday 20 January 2012, while performing his normal duties at work, the worker stepped backwards into a circular drain with his left foot, falling to the ground, and felt pain in his left knee. The insurer accepted liability for this injury.

In 2012, the worker commenced proceedings in the Commission claiming compensation. Those proceedings were settled by consent on 4 June 2013. The insurer paid lump sum compensation in respect of a permanent impairment of 6 per cent as a result of the condition of the worker’s left knee, with a deemed date of injury of 20 January 2012.

In January 2013, the worker was reviewed by Dr Van der Rijt who said that the worker had “significant disease and restriction and ha[d] sufficient disability to warrant knee arthroplasty for definitive management”. In addition, a cyst in the left knee would be explored and evacuated as part of the arthroplasty and he would undertake an autograft of local bone for it (Dr Van der Rijt also referred to the findings in the 12 January 2012 MRI scan). The worker claimed for the cost of this surgery.

The insurer disputed liability in a s 74 notice dated 15 April 2013, relying on a report from Dr Clark, orthopaedic surgeon, who conceded that the surgery was reasonably necessary, but asserted that it was not related to the worker’s workplace injury of 20 January 2012.

On 10 March 2015, the worker commenced proceedings in the Commission, claiming the cost of the proposed surgery. The Registrar referred the matter to an AMS, Dr Machart, for a non-binding MAC. Dr Machart said that the worker had osteoarthritis in all three compartments of his knee and that the nature and conditions of employment did not cause the osteoarthritis. On 19 October 2015, a Commission Arbitrator determined that the nature and conditions of the worker’s employment causally contributed to the left knee symptoms and made an award for the worker pursuant to s 60 of the 1987 Act in respect of the worker’s claim for a total left knee replacement. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator erred in:

(a) misunderstanding the nature of the appellant’s expert evidence;

(b) finding a causal link and failing to properly address causation, by providing inadequate reasons as to why the appellant’s evidence was not preferred, and

(c) failing to consider and/or provide reasons as to the weight of the MAC.

Held: The Arbitrator’s determination was revoked and the matter was remitted to another Arbitrator for re-determination.  

Discussion and findings

1. The appellant’s complaints were largely correct, though, more accurately, they really amounted to a complaint that the Arbitrator’s process of fact-finding miscarried [51].

2. The extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). However, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other” (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed), quoted with approval by McColl JA in Hume v Walton [2005] NSWCA 148 at [69]) [52].

3. The Arbitrator was required to engage with the conflicting medical evidence (see Sant v Tsoutsas [2009] NSWCA 3; Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] and Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127; Eckersley v Binnie (1988) 18 Con LR 1 at 77–78, quoted with approval by Beazley JA in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133]). The Arbitrator erred in failing to properly engage with the conflicting medical evidence in the present case [53].

4. The issue for the Arbitrator to determine was whether the need for the surgery proposed by Dr Van der Rijt, a left knee replacement and autograft of local bone, was reasonably necessary as a result of the pleaded injury [54].

5. The appellant’s case was that the surgery was reasonably necessary because of the presence of osteoarthritis, which was caused by the injuries and subsequent surgery performed many years ago, and that neither the injury on 20 January 2012, nor the heavy work the worker performed over many years with the appellant, had caused or aggravated that condition. Therefore, the need for the surgery could not be due to the employment with the appellant. Dr Patrick, orthopaedic surgeon for the worker, expressed a contrary view [55].

6. The difficulty with the Arbitrator’s approach was that he failed to consider the contrary opinions expressed by the appellant’s experts. Rather than engaging with the experts’ competing views, and properly analysing them, to determine which was to be preferred and why, the Arbitrator merely referred to the histories recorded by Drs Home, Pillemer and Smith, but, said nothing about their opinions. He did not say, for example, that their opinions were based on an inaccurate history, and therefore had to be discounted. He did not consider their opinions at all [58].

7. While the Arbitrator referred to the parties’ submissions on Dr Machart’s evidence, he did not say which one he accepted. The clear inference was that, by accepting Dr Patrick’s evidence, the Arbitrator rejected Dr Machart’s evidence. The difficulty was that he did not say why. It was not sufficient to merely say that Dr Patrick had taken a proper history [59].

8. It was accepted that it is not necessary for an Arbitrator to consider the opinion of each witness before he can form an opinion on causation. That is especially so when each witness expresses a similar opinion. However, the issue in the present case did not depend solely, or even mainly, on the histories recorded by the various experts. It depended on which of the conflicting opinions on causation the Arbitrator accepted. That question was not answered by saying, as the Arbitrator said, that Dr Patrick took a proper history. It was not suggested that the histories recorded by the appellant’s experts were so defective that their opinions could not be accepted. Their opinions were not considered [60].

Other matters

9. The appellant had tendered five forensic medical reports, three of which were from orthopaedic surgeons. Without expressing a concluded view on the matter, the Deputy President observed that the appellant appeared to be in breach of cl 49 of the 2010 Regulation (Dr Machart’s report was exempt from cl 49: see Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 at [109]–[112]) [64].

10. The Deputy President also observed (without expressing a concluded view) that the pleadings appeared to rely on a personal injury received on 20 January 2012, but also purported to rely on the disease provisions in s 4(b)(i) and (ii). If there was evidence that the worker contracted the disease of osteoarthritis in the course of his employment, which would bring s 4(b)(i) into play, the parties had not referred to it on appeal [65]–[66].

11. Should the parties allege that the worker suffered an aggravation injury under s 4(b)(ii), the Deputy President also directed the parties to Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski) at [68]). He observed that applying Dimovski, if the worker’s injury on 20 January 2012 also aggravated an underlying disease, it was still a personal injury under s 4(a) [68]–[69].

12. The Arbitrator failed in his duty to explain adequately the basis for his conclusions on why the proposed surgery was reasonably necessary as a result of the pleaded injury. In these circumstances, the process of fact finding had miscarried (McColl JA (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (at [130]–[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [28]) agreed)) [70].

Grabovsky v Employers Mutual NSW Ltd and United Protestant Association of NSW Limited [2016] NSWWCCPD 15

Order made by Arbitrator pursuant to s 354(7A) of the 1998 Act that proceedings be dismissed; whether such order is an interlocutory decision; s 352(3A) of the 1998 Act; leave of Commission not sought by appellant; appeal dismissed in absence of any leave application

O’Grady DP

26 February 2016

Facts:

The worker commenced two proceedings in the Commission, one seeking resolution of a Workplace Injury Management Dispute and the other seeking weekly payments of compensation and payment of medical and associated expenses. Both applications had been filed by the worker’s husband, Mr Grabovsky. Both proceedings were to be heard together by a Commission Arbitrator. In all the telephone conferences (except one) and at all of the conciliation/arbitration proceedings at the Commission, Mr Grabovsky appeared and the worker was not present. No medical evidence was presented as to why the worker could not attend. The worker’s husband conceded that he was neither a qualified legal practitioner nor an agent within the meaning of s 356 of the 1998 Act and relied on a Power of Attorney signed by his wife as providing him with the power to appear for and represent the worker.

A Senior Arbitrator held a preliminary hearing to determine the issue of whether Mr Grabovsky was entitled to appear for the worker. The Senior Arbitrator granted Mr Grabovsky limited leave to make submissions for the purposes of determining the issue as to the worker’s representation. Leave to appear was subsequently refused. The Senior Arbitrator expressed concern that the worker was not present at the proceedings and adjourned the matter so that the worker could confirm that she wished to proceed with the proceedings.

Contact was not made by the worker and, on the next occasion, the proceedings were again adjourned. The Arbitrator made a direction that the worker personally contact the Commission and indicate her intention to proceed or otherwise with the proceedings by 8 October 2015. Failure to comply with that Direction would have the result, as ordered by the Arbitrator, that the matter would be dismissed “under section 354(7A) [of the 1998 Act] on the basis that [the worker] had abandoned the proceedings and has failed to prosecute them with due despatch”. The worker did not contact the Commission.

On 3 November 2015, the Commission issued a Certificate of Determination dismissing the proceedings pursuant to s 354(7A)(a) and (c) of the 1998 Act “on the bases that the proceedings had been abandoned and that [the worker] had failed to prosecute the proceedings with due despatch.” Mr Grabovsky filed an appeal against this determination.

The issue in dispute was whether the proceedings should have been dismissed.

Held: The Arbitrator’s determination was confirmed.  

On the papers

Mr Grabovsky filed the appeal and prepared the submissions in support of the appeal as well as signing them. The actions of Mr Grabovsky which had led to the institution of this appeal had been performed in complete disregard of the ruling of the Senior Arbitrator concerning Mr Grabovsky’s earlier application seeking leave to appear on behalf of the worker. Leave was granted to the worker to rely upon the written submissions prepared by her husband for the limited purpose of determining the preliminary question as to whether the Senior Arbitrator’s order was interlocutory in nature and, if so, whether leave should be granted pursuant to s 352(3A) of the 1998 Act [15]–[17].

Interlocutory

1. The Senior Arbitrator’s order was made pursuant to s 354(7A) of the 1998 Act. It was clear from the reasons stated by the Senior Arbitrator that reliance had also been placed by him upon the terms of Pt 15 r 15.8 of the 2011 Rules [25]–[26].

2. An interlocutory order is one that does not finally determine the rights of the parties (Licul v Corney [1976] HCA 6; 180 CLR 213). The argument advanced on behalf of the appellant which directed attention to the “permanence” of the decision (in dismissing the proceedings) was misconceived. Whilst the Senior Arbitrator’s order had force and effect and binds the worker and, in that sense, had permanence subject to any reconsideration, the fact remained that the order had no consequence so far as the worker’s rights under the workers compensation legislation were concerned. The worker was at liberty to institute proceedings in the Commission seeking appropriate relief at any time. Subject to the worker’s compliance with the rules and antecedent orders made by the Commission, such an application would be entertained and, in the ordinary course of the Commission’s business, will lead to a determination of the dispute between the parties (Preston v Randwick City Council [2012] NSWCA 178; 13 DDCR 342 applied) [27]–[28].

3. The worker had not sought leave to proceed with the appeal [29].

4. The Deputy President was of the view that it was clear that the Senior Arbitrator’s concern had, at all times, been focussed upon the unknown position of the worker. What was not known was her state of knowledge of the proceedings. Her failure to appear and the absence of any evidence explaining such failure compounded that concern, as did the general apprehension expressed by the Senior Arbitrator that there was, in all probability, a deficiency in the evidence presented on her behalf by her husband. That deficiency was well demonstrated by the absence from the evidence of a statement by the worker as to relevant facts and circumstances. That deficiency was not cured by the presence among the papers held by the Commission of a hand written document which, apparently, was written in the Russian language [31].

5. Many opportunities to communicate had been afforded the worker. None of those opportunities had been taken up. The inference drawn by the Arbitrator of abandonment of the proceedings was, in the Deputy President’s view, clearly open to him. No basis had been established in support of the suggestion that the worker had been denied natural justice [32].

6. Had there been an application made seeking leave to proceed with the appeal, such application would have been refused. In the absence of such an application, the Senior Arbitrator’s order was confirmed and the appeal was dismissed [33].

Suine v Area Refrigeration Pty Ltd [2016] NSWWCCPD 8

Extension of time to appeal; no prospect of success; no demonstrable or substantial injustice if time not extended; Pt 16 r 16.2(12) of the 2011 Rules; claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the 1987 Act by the 2012 amending Act applies to pre-2002 injuries; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied

Roche DP

3 February 2016

Facts:

In 1997, the worker injured his right knee in the course of his employment. The worker was paid compensation prior to 19 June 2012.

On 26 February 2014, the worker first claimed lump sum compensation, which included a claim for compensation for pain and suffering under s 67. On or about 30 June 2014, the parties entered a complying agreement under s 66A of the 1987 Act in which the respondent agreed to pay the worker compensation under s 66 for 20 per cent loss of efficient use of his right leg at or above the knee. The respondent disputed the worker’s claim for compensation under s 67, asserting that no such right existed because the section had been repealed.

On 19 May 2015, the worker commenced proceedings in the Commission claiming compensation under s 67. On 28 September 2015, a Commission Arbitrator determined that, having regard to the express wording of the 2012 amendments, which repealed s 67, and the relevant transitional provisions, the worker had no entitlement to compensation for pain and suffering. He made an award for the respondent. The worker appealed.

Note: This case presented the same issue as in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick) and Cicuto v Terrafirma Terrazzo Pty Ltd [2016] NSWWCCPD 7.

The issue in dispute on appeal was whether the Arbitrator erred in refusing to award the worker lump sum compensation for pain and suffering under s 67.

Held: The application to extend time to appeal was refused and the Arbitrator’s determination was confirmed.  

Preliminary

1. Appeals to a Presidential member under s 352 of the 1998 Act must be made within 28 days of the decision appealed against (s 352(4)). The last day on which the present appeal could be lodged in time was 26 October 2015. Documents lodged electronically with the Commission are received by it at the time the information is entered in the Commission’s email address. If that time is after 5 pm New South Wales standard time or New South Wales summer time on any day, it is taken to have been received on the next day (Pt 8, r 8.1(6) of the 2011 Rules) [15]–[16].

2. As the Commission received the appeal at 5.35 pm on 26 October 2015, it was not lodged until the following day and, as counsel for the appellant conceded, was therefore one day out of time. The appellant sought an extension of time under Pt 16, r 16.2(12) of the 2011 Rules [17].

3. The explanation for the appeal being lodged out of time was that the worker’s solicitor only received submissions from counsel via email at 4.00 pm on 26 October 2015 and that she was unable to download the relevant appeal form (Form 9) because the Commission’s website was “down” and by the time the form was completed and documents attached, the form was not emailed to the Commission until 5.35 pm the same day [19].

4. Counsel for the worker submitted that an extension of time should be granted, taking into account the fortuitous events involving a breakdown of technology on 26 October 2015, and that there would be demonstrable and substantial injustice to the worker if an extension were not granted as he would not be able to argue a novel point of law before the Commission. He added that the respondent would suffer no prejudice, if time were extended, because the issue is a legal argument [20].

5. The arguments that the worker’s counsel sought to present in the worker’s case were identical to those put and rejected in Frick. It followed that, for the reasons given in Frick, the appeal could not succeed. As there was no injustice if the worker lost the right to appeal, as the issue sought to be argued had been fully argued and determined against him, the application to extend time to appeal was refused [21]–[22].

Cicuto v Terrafirma Terrazzo Pty Ltd [2016] NSWWCCPD 7

Claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the 1987 Act by the 2012 amending Act applies to pre-2002 injuries; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied

Roche DP

3 February 2016

Facts:

In 1997, the worker injured his back and legs in the course of his employment and claimed and was paid compensation.

In 2013, the worker claimed compensation under s 66 of the 1987 Act for permanent impairment, including compensation for pain and suffering under s 67. On 19 December 2014, by consent, the insurer was ordered to pay the worker compensation under s 66. The insurer disputed the worker’s entitlement to compensation for pain and suffering on the ground that s 67 had been repealed.

On 29 October 2015, a Commission Arbitrator determined that the worker’s claim was caught by the 2012 amendments and, in light of the repeal of s 67, and by operation of the relevant transitional provisions, the worker had no entitlement to compensation for pain and suffering and made an award for the employer. The worker appealed.

Note: This case presented the same issue as in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick) and Suine v Area Refrigeration Pty Ltd [2016] NSWWCCPD 8.

The issue in dispute on appeal was whether the Arbitrator erred in refusing to award the worker lump sum compensation for pain and suffering under s 67.

Held: The Arbitrator’s determination was confirmed.  

Determination

The issue in the present case was the same issue determined in Frick and the worker’s submissions in support were the same submissions counsel put in that case. For the reasons given in Frick, the appeal was unsuccessful and the Arbitrator’s determination was confirmed [16].