Arifaki v Waste Wise Environmental Pty Ltd
[2025] NSWPIC 65
•28 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Arifaki v Waste Wise Environmental Pty Ltd [2025] NSWPIC 65 |
| APPLICANT: | Haitham Arifaki |
| RESPONDENT: | Waste Wise Environmental Pty Ltd |
| MEMBER: | Adam Halstead |
| DATE OF DECISION: | 28 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application pursuant to section 57(1) of the PIC Act to reconsider and rescind Certificate of Determination; rescission requested to allow application for appeal of Medical Assessment Certificate per section 327(3) of the 1998 Act; Samuel v Sebel Furniture Limited considered; mistake or oversight by a legal adviser primary issue; Held – insufficient grounds made out for exercise of discretion; application dismissed. |
| DETERMINATIONS MADE: | The Commission determines: 1. The application for the Commission to reconsider and rescind its earlier decision made in this matter contained in the Certificate of Determination of 17 April 2024 is dismissed. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
This further application in these proceedings comes before the Personal Injury Commission (Commission) by way of a request for reconsideration contained in a letter dated
19 December 2024 from the applicant’s solicitor.The proceedings were originally initiated by way of an Application to Resolve a Dispute (ARD) filed by the applicant on 21 December 2023 seeking compensation for permanent impairment of 20% in relation to psychological injury. Consent orders were made by the Commission on 12 February 2024 to resolve the ARD when it was agreed between the parties for the matter to be remitted to the President of the Commission for referral to a Medical Assessor for assessment of whole person impairment.
The Medical Assessor appointed by the President, Dr Michael Hong, issued a Medical Assessment Certificate (MAC) on 14 March 2024 wherein he found whole person impairment for the applicant of 7% for major depressive disorder.
On 17 April 2024 the Commission determined (in its Certificate of Determination of the same date) that the “applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 14 September 2021” based upon the MAC.
The applicant’s 19 December 2024 letter seeks to have the determination made by the Commission on 17 April 2024 reconsidered and rescinded so as to permit consideration of an appeal of the MAC.
ISSUES FOR DETERMINATION
The following issues require determination by the Commission in this application are whether:
(a) there are grounds for discretion to be exercised for the rescission of the earlier Certificate of Determination, and, if so;
(b) the matter should be remitted to the President for consideration of whether there are grounds for an appeal of the MAC.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. There is no dispute as to the issues to be determined.
The current application was before the Commission on 30 January 2025 for preliminary conference when the applicant was represented by his solicitor, Mr Kaled Kheir of Kheir Lawyers. The respondent was represented by Mr Christopher Michael of Moray & Agnew Lawyers. Each party made brief oral submissions that referred to written submissions previously filed in relation to the reconsideration request; those for the applicant dated
19 December 2024 and the respondent’s dated 7 January 2025.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, filed 21 December 2023;
(b) Reply and attached documents, filed 16 January 2024;
(c) Commission’s Certificate of Determination – Consent Orders, made
12 February 2024;(d) MAC, issued 14 March 2024;
(e) Commission’s Certificate of Determination, made 17 April 2024;
(f) applicant’s letter of 19 December 2024 requesting reconsideration and rescission of 17 April 2024 Certificate of Determination, including submissions and enclosures, and
(g) respondent’s letter of 7 January 2025 with submissions in response.
APPLICABLE LAW
The applicant requests the Commission to reconsider and rescind its determination of
17 April 2024 (the determination) pursuant to the discretion at s 57 of the Personal Injury Commission Act 2020 (the PIC Act).Section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides for appeals against a medical assessment and includes the grounds upon which an appeal may be made as well as applicable time limits for making an appeal.
Rescission of the determination pursuant to s 57 of the PIC Act is an essential threshold step to allow the applicant’s proposed appeal against the MAC to be considered. This is because of the restriction imposed by s 327(7) of the 1998 Act that provides there is to be no appeal against a medical assessment once the dispute has been the subject of determination by the Commission. In this case the determination made on 17 April 2024. The effect of s 327(7) is that unless that determination is rescinded, the applicant’s intended appeal cannot be considered.
The principles relevant to the exercise of discretion in reconsideration applications were summarised in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Sebel) with reference to the now repealed s 350 of the 1998 Act; where s 57 of the PIC Act is current equivalent. In that decision, Roche DP considered (at [58]):
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
The parties’ submissions relate to several factors identified in Sebel that are directly relevant to this application: delay, the public interest, mistake or oversight by a legal adviser and justice between the parties.
Applicant’s submissions
The applicant’s submissions as to the basis of the request for the Commission to exercise discretion under s 57 of the PIC Act are that:
“We sought the Applicant’s instructions as to the findings of Dr Michael Hong and after conferring with counsel briefed to advise in this matter on 9 April 2024, the Appellant provided instructions to proceed with lodging an appeal.
On 9 April 2024, Yasmine Kheir of Kheir Lawyers contacted the Personal Injury Commission Registry by telephone and spoke with Anna to confirm the last date for lodgment of the appeal of the MAC of Dr Michael Hong. Our records indicate ‘Ann’ from the Personal Injury Commission advised that the last date for lodging the appeal was on 17 April 2024.
On 11 April 2024, further advice was received from counsel providing proposed submissions to be lodged in support of the application for appeal and in accordance with that advice, Mr Kaled Kheir was to review the submissions along with the Application noting its readiness for filing. However owing to Eid celebrations/holiday which occurred over the preceding three days, this was delayed on the basis that, the understanding was despite the readiness of the application, we were of the belief that the Personal Injury Commission had granted leave for filing until 17 April 2024.
On 17 April 2024, Yasmine Kheir attempted to access the matter on the Personal Injury Commission Portal to attend to lodging the appeal of the Medical Assessment Certificate however the matter had been closed on the portal.
On 17 April 2024 at approximately 2:12pm, Yasmine Kheir sent an email to the Personal Injury Commission confirming her discussions with the Personal Injury Commission and seeking the matter be reopened to allow lodgment of the appeal as our office had been advised the last day for lodgment of the appeal was by COB, 17 April 2024.
Our office received an email response on the same day at 3:37pm seeking reasons for lodging the appeal outside the 28 day timeframe.
Our office responded on the same day and reiterated that our office had been advised by a representative of the Personal Injury Commission that the last day for lodgement of the appeal was 17 April 2024.
On 19 April 2024, our office received an email from the Personal Injury Commission seeking clarification as to the whom our firm had spoken with.
As of 10 May 2024, Yasmine Kheir ceased employment with our office.
After conducting a review of the matter, our office sent a follow up email to the Personal Injury Commission on 22 July 2024 as to the status of the appeal and our office received a response on the same date advising that the Commission was awaiting submissions as to the late lodgement for further consideration.”
Respondent’s submissions
The respondent opposes the applicant’s request for the determination to be rescinded and made the following submissions:
“1. The Medical Assessment Certificate which is the subject of the proposed appeal was issued on 14 March 2024.
2. The last day for filing the appeal was 11 April 2024.
3. The unsealed appeal is dated 3 May 2024, however the Submissions as to late lodgement are dated 12 September 2024.
4. There are unexplained periods of delay from 19 April 2024 to 22 July 2024, from 22 July 2024 to 12 September 2024, and from 12 September 2024 to 19 December 2024.
5. The Applicant’s submissions make it clear that the worker had the benefit of both solicitor and Counsel representation as at 11 April 2024.
6. Experienced practitioners ought be in a position to calculate the time period for an appeal, without resorting to information purportedly provided by staff of the Commission.
7. In Samuel v. Sebel Furniture Limited [2006] NSWWCCPD 141, ADP Roche at [58] outlined the relevant authorities and principles relevant to reconsideration applications, including, inter alia:-
• Whilst the discretion is a wide one, it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration.
• One of the factors in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely.
• A mistake or oversight by a legal advisor will not give rise to a ground for reconsideration.
8. It is respectfully submitted that the delay in this matter is significant and that the reasons for the delay are unsatisfactory.
9. The Respondent further submits that the failure to file an appeal within the prescribed time period represents a mistake or oversight by the Applicant’s legal representatives and that the authorities outlined in Samuel (above) clearly establish that this does not provide the basis for reconsideration.
10. Moreover, the Respondent submits that Samuel (above) establishes an overarching obligation to do justice between the parties according to the substantial merits of the case.
11. The Respondent submits that, for the reasons outlined below, none of the grounds of appeal have been made out and that the appeal ought not proceed in any event.”
CONSIDERATION
There has been a considerable delay in making the current application to allow an appeal to be brought against the MAC. The dates identified by the respondent are correct, that is the MAC was issued on 14 March 2024 and the 28-day time limit required any appeal to be made no later than 11 April 2024.
According to the applicant, there were communications with the Commission registry on
17 and 19 April 2024, yet no appeal was filed or related application made at that time. Some months later, on 22 July 2024, the applicant’s solicitor further communicated with the Commission registry and again nothing was done.It appears the applicant’s solicitor then gave the matter attention on 12 September 2024 (the date on the “Submission in Support of Late Lodgement” document prepared for the applicant’s intended MAC appeal), but without any related action to bring the matter before the Commission at that time. An application was ultimately made on 19 December 2024, some eight months after the usual appeal period expired, and which is now the subject of this determination. It is noted the applicant also relies on a ground of appeal that is not subject to the time limitation, namely with respect to additional evidence previously unavailable.
Notwithstanding the content of reconsideration request letter from the applicant’s solicitor of 19 December 2024, I accept the respondent’s submissions as to periods of unexplained delay. That letter does not describe or explain any cause for the delay other than to somewhat cryptically refer to the departure of an employee, presumed to be the solicitor with prior carriage of the matter.
The inference apparently to be drawn from the available information would seem to be that a prior employee failed to take action to bring an appeal within the required period, or shortly thereafter, before departing the firm acting for the applicant. That does not however explain the delay from 11 May 2024 (the day after the departure) until 19 December 2024, despite the matter having evidently been given some attention by the applicant’s solicitor during the interim on 22 July 2024 and 12 September 2024.
The delay of eight months from the expiry of the appeal period on 11 April 2024 to the date of the reconsideration and rescission application on 19 December 2024 is significant and the explanation for that delay entirely inadequate. The missed opportunities to give the matter attention in April, May, July and September 2024 likely fall within the category of “mistake or oversight by a legal adviser” that was identified in Sebel as not being grounds for reconsideration (Roche DP referred to the authority in Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 where the principle was established that the discretion is not so wide as to allow reconsideration because of mistake or inadvertence by a party’s solicitor).
As was further identified in Sebel, the public interest imposes an expectation that litigation be concluded. The finality of litigation is also anticipated by, and implicit from, s 327(5) of the 1998 Act that generally imposes a 28-day time limit on appealing a medical assessment in relation to two of the available grounds now relied upon by the applicant for his proposed appeal on the MAC. Acceding to the reconsideration request would be inconsistent with that expectation.
The applicant referred to the “statutory objectives of the Personal Injury Commission in providing a fair system of dispute resolution”, which is a submission that reflects the “guiding principle” and general procedure of the Commission found at ss 42(1) and 43(3) of the PIC Act respectively. This is unquestionably relevant for consideration, as was confirmed in Sebel. There is no doubt the applicant’s submission on this point is correct. It does however require a fair and just outcome for all parties to a proceeding, not only the applicant. To rescind the earlier determination on the scant grounds proffered by the applicant would be unfair and cause an injustice to the respondent in allowing a dispute that was previously resolved to be relitigated, with the associated time and cost involved.
I have reviewed the draft appeal that is apparently to be relied upon by the applicant in the event the reconsideration and rescission request succeeds. While I make no finding or provide any opinion as to its likely prospects of success, the grounds referred to therein do not disclose any that might be described as exceptional, unusual or out of the ordinary for such an appeal. I am also satisfied that any additional evidence intended to be relied upon by the applicant that may be relevant for the purposes of s 327(3)(b) of the 1998 Act would reasonably have been available to the applicant prior to the medical assessment.
Having considered the relevant factors as identified by Roche DP in Sebel, and in circumstances where the basis for the request is ambiguous, but essentially confined to a mistake or oversight by a legal adviser, there is no compelling reason to exercise the discretion at s 57 of the PIC Act.
SUMMARY
I do not consider there are sufficient grounds to reconsider the decision made by the Commission on 17 April 2024 and accordingly the applicant’s request for that decision to be rescinded is dismissed.
0
2
0