Allen v Roads and Maritime Services - [2015] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Allen v Roads and Maritime Services [2015] NSWWCCPD 39
APPELLANT:	Melanie Allen
RESPONDENT:	Roads and Maritime Services
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-14338/12
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	10 March 2015
DATE OF APPEAL DECISION:	1 July 2015
SUBJECT MATTER OF DECISION:	Extension of time to appeal; less than satisfactory explanation for why the appeal was not lodged in time; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; application for increase in weekly compensation under s 55 of the Workers Compensation Act 1987; previous award decreased in absence of application for a decrease by the respondent; determination of matter on basis not argued; denial of procedural fairness; principles in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Emery Partners
Respondent:	Thompson Cooper Lawyers
ORDERS MADE ON APPEAL:	1. Time to appeal is extended to 9 April 2015. 2. The Arbitrator’s determination of 10 March 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination. 3. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. Costs of the arbitration before Arbitrator Caddies, and of the re-determination, are to follow the outcome of the re-determination.

INTRODUCTION

In proceedings in the Commission in 2005 and 2006, the appellant worker received an award of weekly compensation for a partial incapacity due to a back injury suffered in the course of her employment in 2002. In the present matter, she has sought an increase in that award because of an alleged deterioration in the condition of her back.
Her claim for an increase is under s 55 of the Workers Compensation Act 1987 (the 1987 Act). That section provides that any weekly payment of compensation may, because of a change in circumstances, be “reviewed” by the Commission on the request of the employer or the worker or the WorkCover Authority of NSW (s 55(1)). On any such review, the weekly payment may be “ended, reduced or increased” (s 55(2)).
Though the Workers Compensation Legislation Amendment Act 2012 has repealed s 55, it applies in this case because the worker was an existing recipient of weekly compensation (under the earlier award) immediately before 1 October 2012 (cl 6 of Pt 19H of Sch 6 to the 1987 Act).
The appellant alleges, among other things, that the Arbitrator denied her procedural fairness by reducing her award of weekly compensation in circumstances where the only application before the Commission was her application for an increase in that compensation and the employer had not sought a decrease. For the reasons explained below, that argument must be upheld and the matter must be re-determined before a different Arbitrator.

BACKGROUND

The appellant worker, Melanie Allen (formerly Colquhoun) started work for the respondent employer as a trainee part-time telephone services operator in March 2001 when she was 19 years old. At that time, the employer was known as the Roads & Traffic Authority of New South Wales. It is currently known as Roads and Maritime Services and, under s 46(1) of the Transport Administration Act 1988, is a corporation.
Ms Allen’s duties changed to that of a receptionist from April 2002. In each of her positions, Ms Allen worked 20 hours per week and was paid $310.75 per week. While loading paper into a photocopier on or about 1 May 2002, she injured her back. She claimed compensation and liability was initially accepted.
On 24 July 2002, the day before a disciplinary interview about an allegation that Ms Allen had accessed the respondent’s database for an unauthorised purpose, Ms Allen resigned. A letter from the respondent dated 12 September 2002 states that Ms Allen’s resignation was not accepted and that her employment was terminated.
Between 16 August 2002 and 8 February 2004, Ms Allen worked as a casual call taker in the dispatch centre for Newcastle Taxis. Her hours fluctuated between nil and 26.5 per week. Her average weekly earnings were $208.05. Ms Allen gave evidence that her employment with Newcastle Taxis ceased because she could not cope (because of her back pain) and her doctor put her off work.
In a Medical Assessment Certificate (MAC) issued on 15 October 2004, an Approved Medical Specialist, Dr Ostinga, stated that Ms Allen’s history was consistent with “an intradiscal rupture producing severe pain that has gradually resolved to low grade symptoms”. He assessed her to have, as a result of her injury, a six per cent whole person impairment (DRE lumbar category II with a one per cent allowance for restricted activities of daily living). The respondent unsuccessfully appealed against this assessment.
In proceedings in the Commission in matter No 3656/04, Ms Allen sought weekly compensation from 1 May 2002 to date and continuing, medical expenses and lump sum compensation. After a contested hearing, an Arbitrator awarded her weekly compensation for $310.75 per week from 1 May 2002 to 18 August 2002, but made an award for the respondent for weekly compensation thereafter. He also awarded lump sum compensation of $7,500 in respect of the six per cent whole person impairment assessed by Dr Ostinga and made a general order for the payment of medical expenses under s 60 of the 1987 Act.
Ms Allen appealed that decision. Acting Deputy President Snell (as he then was) determined that appeal on 13 June 2006. He confirmed the order for payment of weekly compensation from 1 May 2002 to 18 August 2002 but revoked the award for the respondent and ordered the respondent to pay Ms Allen $102.70 per week from 19 August 2002 to date and continuing under s 40 (the first award).
Relying on evidence from Professor Ghabrial, orthopaedic and spinal surgeon, who, in a report dated 9 December 2009, assessed Ms Allen to have a 13 per cent whole person impairment, Ms Allen sought additional lump sum compensation because of a deterioration in her back.
On 11 August 2010, Ms Allen gave birth to her first child.
In a MAC issued on 1 April 2011, Dr Ostinga assessed Ms Allen to have a seven per cent whole person impairment. He took a history from Ms Allen that “overall” her backache was worse than when he saw her in 2004. Her legs were also worse and ached a lot. At the examination, which took place on 24 March 2011, Dr Ostinga recorded that Ms Allen was “quite heavily pregnant”.
Dr Ostinga’s physical examination of Ms Allen revealed complaints of altered sensation, which were not anatomical, involving the whole of the right leg. Her reflexes were normal and, in testing power, Ms Allen demonstrated “cog-wheeling but no real loss”. Dr Ostinga assessed Ms Allen to have a seven per cent whole person impairment. The increase over his previous assessment was because, on this occasion, he allowed two per cent “from her description of activity of daily living”, whereas he had only allowed one per cent for that item in his first report.
As a result of Dr Ostinga’s assessment, an award for an additional one per cent of lump sum compensation ($1,250) was made on 9 May 2011.
On 5 July 2011, Ms Allen gave birth to twins.
By letter dated 27 September 2011, Ms Allen’s solicitors sought an increase in the weekly compensation in the first award.
On 13 November 2012, Ms Allen’s solicitor lodged with the Commission an Application to Resolve a Dispute (the Application). Relying on s 55, Ms Allen sought to have the weekly compensation awarded in the first award increased to $232.05 per week from 28 April 2011 to 10 September 2014. The claim for an increase closes on 10 September 2014 because, from that date, Ms Allen’s entitlement to weekly compensation is the subject of a work capacity decision issued by the insurer on or about that time and the parties agree that the Commission has no jurisdiction beyond that date.
At the arbitration hearing on 8 July 2014, Ms Allen gave oral evidence and was cross-examined. As there was no time for oral submissions, the Arbitrator directed the parties to provide written submissions. In a written decision delivered on 10 March 2015, the Arbitrator varied the first award by reducing it to $20 per week from 28 April 2011 to 10 September 2014.
In summary, the Arbitrator’s reasoning was as follows:
(a) he accepted that Ms Allen’s symptoms had increased (since the first award) and that that increase established a change in circumstances within the meaning of s 55(1) ([34]);
(b)     this founded a basis for him to have jurisdiction to review the first award ([35]);
(c)     it was therefore necessary for him to consider the five steps required by s 40 of the 1987 Act, as explained in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell);
(d)     the principles in Hirst v Illawarra Area Health Service [2000] NSWCC 22; 21 NSWCCR 82 (Hirst) were applicable. In that case, Neilson CCJ held that “pursuing the process of giving birth to a child and breastfeeding it or otherwise nursing it in its early years is an activity incompatible with employment” ([34]);
(e)     for similar reasons to those given in Hirst, Ms Allen’s “entitlement during the period claimed should be reduced to a nominal sum” ([40]);
(f)      he was satisfied that, at all relevant times during the period the subject of the claim, Ms Allen “had no intention of pursuing any work of a restricted duties nature having regard to her partial incapacity” ([40]) and he was “required to have regard to this fact in the exercise of the Commission’s discretion under section 40” ([40]). This was because Ms Allen was expecting and because she then intended to continue looking after her first baby for a proposed two years and then, within that time span, she was expecting twins and proposed looking after the twins for two years thereafter, and
(g)     this had the effect that, throughout the period claimed, he should, in the exercise of the discretion at step four (of Mitchell), award the nominal sum of $20 per week.
In the exercise of his discretion in s 55(2A), the Arbitrator did not direct the overpayments of compensation up to 10 September 2014 to be refunded.
The Commission issued a Certificate of Determination on 10 March 2015 in the following terms:
“1.The decision of the Commission in matter 14338/12 is varied to reduce the award of weekly payments pursuant to section 40 from $102.70 per week to $20 per week from 28 April 2011 to 10 September 2014.
2. Credit to be given to the respondent for payments already made.
3.Order that there be no order to refund the monetary difference between the reduced award and the amounts already paid by the respondent under section 55(2A) of the Workers Compensation Act 1987 (as in force prior to the Workers Compensation Legislation Amendment Act 2012).
4. No order as to costs.”
In an appeal initially lodged on 9 April 2015, but which did not proceed because of procedural defects, principally, the failure to attach any proper submissions seeking an extension of time, and filed again on 23 April 2015, Ms Allen seeks an extension of time to appeal the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

EXTENSION OF TIME TO APPEAL

The last day for lodging the appeal within the 28-day period allowed by s 352(4) was Tuesday 7 April 2015. The appeal was initially lodged on 9 April 2015. The Commission issued a direction on 10 April 2015 requiring submissions on, among other things, the issue of extending time to appeal. An amended appeal was filed on 23 April 2015. This document has attempted to remedy the omissions in the first document. However, as will be seen, the further submissions filed in support of the application to extend time are far from satisfactory and would not be a model to be followed.
In support of the application that time to appeal be extended, counsel for Ms Allen, Ms Dulhunty, submitted:
(a)     the appeal was emailed and facsimiled to the Commission on 8 April 2015, so it was one day late and was sent within 28 days of receipt of the determination (on 11 March 2015);
(b)     the Arbitrator’s determination was received on 11 March 2015 and this reduced Ms Allen’s time to seek advice and instruct her legal representatives and lodge the appeal;
(c)     the time was further reduced by the intervention of the Easter holidays;
(d)     the respondent has suffered no prejudice by the appeal being filed one or two days late;
(e)     Ms Allen will suffer a substantial injustice if time is not extended as she may potentially lose the benefit of an additional $22,747.71 in increased weekly compensation and may be exposed to a claim by the respondent for a refund of $14,420.28 because the Arbitrator did not merely dismiss her claim but reduced her benefits, and
(f)      there are significant issues to be determined in the appeal in relation to the correct and fair application of the legislation and authorities.
The respondent has opposed an extension of time to appeal. Its counsel, Mr Mansfield, submitted that:
(a)     Ms Allen has not established a satisfactory explanation for lodging the appeal out of time;
(b)     the submissions in support of the application do not support an extension of time to prevent a “demonstrable and substantial injustice” because the Application seeking an increase in weekly compensation was not filed until 14 November 2014, seven months after the date from which the increase is sought (28 April 2011), and there is no evidence of hardship if time is not extended, and
(c)     the Arbitrator declined to order a refund of the overpayment and Ms Allen will therefore not be exposed to a risk of the respondent seeking a refund.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.

Considering Pt 16 r 16.2(11) of the Commission’s 2006 Rules, which was in the same terms as Pt 16 r 16.2(12) of the current provision, Allsop P (as his Honour then was) in Bryce v Department of Corrective Services [2009] NSWCA 188 (Beazley JA (as her Honour then was) and Giles JA agreeing) said, at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, …”
More recently, in an application to extend time to appeal by over three months, where the notice of intention to appeal was filed in time, Basten JA (Beazley P and Leeming JA agreeing) observed in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, at [9]:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success on the proposed appeal.”
In the present case, I have found Ms Dulhunty’s submissions to be most unsatisfactory. She has not attempted to explain why the appeal was filed out of time. The fact that Ms Allen’s solicitors received the determination on 11 March 2015, the day after it was issued, and that Easter fell within the 28-day period, provides no explanation. In the circumstances, I infer that the appeal was lodged late because of an error or oversight by Ms Allen’s legal advisers. On their own, inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances (Department of Education & Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55).
However, if the explanation for the delay is less than satisfactory, or if the opponent suffers substantial prejudice, it may be relevant that the claimant shows that his or her case has more substantial merit than merely being fairly arguable (Hodgson JA in Tomko v Palasty (No 2) [2007] NSWCA 369 at [14]). The first part of his Honour’s statement is relevant in the present matter.
The submission that Ms Allen’s solicitors initially forwarded the appeal to the Commission on 8 April 2015 was correct, but that does not advance Ms Allen’s position. The time recorded on the document forwarded is “18:45”, that is, 6.45 pm, well after the registry closed at 4.30 pm. The document was therefore not “lodged” with the Commission until the next day (Pt 8 r 8.1(5)) and it was misleading to suggest otherwise. In any event, even if the appeal had been lodged before 4.30 pm on 8 April 2015, it would still have been out of time. Ms Dulhunty’s submission was without substance and was made without reference to the Rules.
The submission that the appeal was sent within 28 days of receipt of the Certificate of Determination demonstrated an erroneous approach to the calculation of time to appeal and, in any event, was incorrect. The Commission has explained in several cases how time to appeal under s 352 is calculated (see Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 at [23]).
An appeal under s 352 must be made within 28 days “after the making of the decision appealed against” (s 352(4)), not 28 days of receipt of the Certificate of Determination. An Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act” (Pt 16 r 16.2(2)). Applying s 36 of the Interpretation Act 1987, time is calculated exclusive of the date on which the Certificate of Determination is issued. In this case, the Certificate of Determination was issued on 10 March 2015. Calculating time from 11 March 2015, and counting 11 March 2015 but not 10 March 2015, the last day on which the appeal could have been lodged in time was Tuesday 7 April 2015.

Ms Dulhunty’s submission in reply, that the application to extend time was “made as a precaution and for completeness”, demonstrates a surprising misunderstanding of the relevant time limits in s 352 appeals. On any view of it, the appeal was lodged out of time and should have been accompanied by detailed submissions explaining why it was out of time and why time should be extended, including details of the alleged demonstrable and substantial injustice that losing the right to appeal would allegedly cause.
Though the explanation for the delay in lodging the appeal was less than satisfactory, I am satisfied, not without considerable hesitation, that there are exceptional circumstances that justify the extension of time to appeal. My reasons are as follows:
(a)     the appeal is out of time by only a few days;
(b)     there is no prejudice to the respondent if time is extended, and
(c)     as the Arbitrator’s decision involves a fundamental error, the appeal must succeed. Thus, in the circumstances, Ms Allen will suffer a demonstrable and substantial injustice if time is not extended because she will lose the right to have her claim determined according to law.
Time to appeal is extended to 9 April 2015.

ISSUES IN DISPUTE

Ms Dulhunty has identified several alleged grounds of appeal. However, the appeal turns on one critical ground, namely, whether the Arbitrator denied Ms Allen procedural fairness in reducing her award of weekly compensation in circumstances where the respondent made no application for a reduction and without giving Ms Allen the opportunity to address on whether the award should be reduced. As this ground must succeed, and the matter must be re-determined before a different Arbitrator, it is not necessary to consider the remaining grounds, many of which are misconceived and demonstrate a fundamental misunderstanding of the legal principles involved.

SUBMISSIONS BEFORE THE ARBITRATOR

To understand the issue on appeal, it is necessary to consider how the case proceeded before the Arbitrator.
Ms Dulhunty identified the claim as one for an “additional $129.35 in weekly benefits from 28 April 2011 to 10 September 2014 pursuant to Section 40”. She submitted that there had been a deterioration in Ms Allen’s back condition, as evidenced by the increase in whole person impairment assessed by Dr Ostinga, and that that alone was a sufficient change in circumstances to allow an increase in the weekly compensation in the first award.
Ms Dulhunty conceded that the birth of three children had “hampered [Ms Allen’s] return to the work force” and that, had Ms Allen returned to work after the vocational assessment in 2010, she “would most likely have been on maternity leave until at least 2012”. She contended that, for various reasons, Ms Allen “has reduced employability in the open labour market”. She added that, at the time of her injury, Ms Allen was a “trainee” and that “also [was] a change in circumstances”. That was because, had Ms Allen not been injured, she would have progressed beyond the position of a trainee.
Mr Mansfield conceded that the evidence probably supported the conclusion that Ms Allen remained partially incapacitated for work. He identified the issue to be whether there had been a change in Ms Allen’s circumstances “such as to entitle her to an increase in weekly payments” (emphasis added). He asked what had changed since 28 April 2011. He noted that there was virtually no difference between Dr Ostinga’s findings in 2004 and those in 2011.
Mr Mansfield accepted that a “change in circumstances” is not necessarily limited to a change or deterioration in the worker’s medical condition, but added that the most “important change [was] that Applicant giving birth to three children all of whom are very young in the period 2011 to 2014”. He said that Ms Allen’s “attitude in this regard can be gleaned from her consultation with Ms Kepreotes, a psychologist and rehabilitation consultant” in her report of 4 February 2010, where she said, “[Ms Allen] advised that she has no intention of returning to work prior to the birth of her baby also indicating that she would like at least two years off following the birth”.
Mr Mansfield concluded:
“Apart from the advent of children to look after and perhaps a change of accommodation, [Ms Allen] has not demonstrated the relevant change of circumstances such as to demand an increase in her weekly benefits compensation.”

THE ARBITRATOR’S DECISION

The Arbitrator noted that, for the period identified, Ms Allen sought an increase in the weekly compensation awarded in the first award and that the respondent denied liability “for the increase” ([2]). He said the parties agreed that the issues were whether there had been a change in circumstances to enable a review by the Commission in respect of the first award and, if so, the assessment of Ms Allen’s entitlement from 28 April 2011 to 10 September 2014.
After reviewing the evidence, the Arbitrator accepted that Ms Allen’s symptoms had increased after the first award. He added that it was also true that Ms Allen’s “circumstances, although not relied upon by [her] to justify a change in circumstances, were also in operation at the time of the alleged change in circumstances” ([34]). He was “comfortably satisfied that there is a change in circumstances within the meaning of s 55(1) of the 1987 Act” ([34]).
The Arbitrator said that this “founds a basis for me to have jurisdiction to review the award of weekly compensation” ([35]). He did not accept that Ms Allen was totally incapacitated, but accepted that her partial incapacity continued. He said that it was therefore necessary for him to consider the five steps required by s 40, as explained in Mitchell.
After setting out the five steps identified in Mitchell, the Arbitrator then quoted extensively from Hirst, a decision where Neilson CCJ considered the relevance of a worker taking maternity leave in a determination under s 40. The Arbitrator concluded, at [40]–[41]:
“40.Judge Neilson having found that step 4 [of the Mitchell steps] required a substantial reduction. It seems to me for similar reasons as given by Judge Neilson that [Ms Allen’s] entitlement during the period claimed should be reduced to a nominal sum. In this regard I am satisfied at all relevant times during the period the subject of this claim that [Ms Allen] had no intention of pursuing any work of a restricted duties nature having regard to her partial incapacity. This was stated by her to a number of professional witnesses. I am required to have regard to this fact in the exercise of the Commission’s discretion under section 40 having regard to the decided cases. This was because she was expecting and because she then intended to continue looking after her first baby for a proposed two years and then within that time span she was expecting twins and proposed looking after the twins for two years thereafter.
41.This has the effect that throughout the period claimed, I should in the exercise of the discretion at step 4 award the fairly nominal sum of $20 per week. This results in the award of Snell ADP being reduced from the date of claim to the date of cessation which I assess at $20 per week.”
The Arbitrator added that, in the circumstances, as it would cause considerable hardship to Ms Allen, he did not propose to direct the overpayment of weekly compensation up to 10 September 2014 should be refunded.

SUBMISSIONS ON APPEAL

Mr Mansfield conceded that the Arbitrator found that increased whole person impairment by Dr Ostinga constituted a “change in circumstances” under s 55. He argued that, on a proper reading of s 55, “once enlivened the section permits the Commission to reduce the award on a discretionary basis”. He rejected the suggestion that the Arbitrator misapplied his discretion or denied Ms Allen procedural fairness in reducing the first award.
Mr Mansfield contended that the issue of Ms Allen’s pregnancies, and her attitude to returning to work in the relevant period, were “raised by the Respondent in submissions” before the Arbitrator.

DISCUSSION AND FINDINGS

The Arbitrator’s decision cannot stand.
It is correct that, on review under s 55, the relevant weekly payment “may be ended, reduced or increased” (s 55(2)). However, that provision is subject to the nature of the case presented and argued. While it is accepted that the Commission is not bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10), at no stage did the respondent seek a decrease in the first award. Mr Mansfield expressly acknowledged that the issue was whether there had been a change in circumstances “such as to entitle” Ms Allen to “an increase in weekly payments”.
Though Mr Mansfield referred to Ms Allen having given birth to three children, he did not submit that that fact would lead the Arbitrator to decrease the award. His concluding submission was that Ms Allen had not demonstrated a relevant change in circumstances “such as to demand an increase in her weekly compensation” (emphasis added).
I accept that an Arbitrator is not obliged to determine a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself (Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037 per Lord Wilberforce; Klein v Minister for Education [2007] HCA 2; 232 ALR 306 at [38] per Kirby J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [13] per Brennan CJ). However, if an Arbitrator is minded to determine a case on a basis not pleaded or argued, he or she is required to give the parties an opportunity to be heard.
By determining the case on a basis not claimed or argued, the Arbitrator denied Ms Allen procedural fairness (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]; 3 DDCR 1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]). In the circumstances, it was a fundamental error for the Arbitrator to decrease the award when he was not asked to do so, when the parties made no submissions on that possibility, and when he gave Ms Allen no opportunity to meet that issue. Though there is some force in the Arbitrator’s conclusion, I am not satisfied that the error “could have had no bearing on the outcome” (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145).
I considered a similar issue in Ross v State of New South Wales [2014] NSWWCCPD 74 at [24] where I said that, in a worker’s application for an increase in weekly compensation under s 55, the Commission should not, as a matter of basic procedural fairness, decrease or terminate an existing award in the absence of proper notice and particulars of a claim seeking such an order. Before the Commission will consider the reduction or termination of an existing award of weekly compensation, an application should (normally) be filed by the employer, with proper particulars in support outlining the grounds for that claim (Pt 10 of the Rules; Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9 at [34]). (It should be noted that, in the appropriate case, the Commission has power to dispense with compliance with the Rules: Pt 1 r 1.6(2)).

CONCLUSION

It follows that it was not open to the Arbitrator to reduce the first award without giving Ms Allen the opportunity to address on the issue or issues that allegedly gave rise to that result. This error requires that the Arbitrator’s determination be revoked and that the matter be re-determined anew by a different Arbitrator. None of the findings by Arbitrator Caddies remain on foot.
If the respondent seeks an order that the first award be reduced or terminated, it must file and serve an Application to Resolve a Dispute setting out full particulars in support of that assertion. Naturally, both applications should then be heard together.

DECISION

Time to appeal is extended to 9 April 2015.
The Arbitrator’s determination of 10 March 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination.
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. Costs of the arbitration before Arbitrator Caddies, and of the re-determination, are to follow the outcome of the re-determination.

Bill Roche
Deputy President

1 July 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE