Aust Pharmaceutical Ind v Scarfone
[2004] NSWWCCPD 12
•9 March 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Australian Pharmaceutical Industries Pty Ltd v Scarfone [2004] NSW WCC PD 12
APPELLANT: Australian Pharmaceutical Industries
RESPONDENT: Francesca Scarfone
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9670-2003
DATE OF ARBITRATOR’S DECISION: 15 September, 2003
DATE OF APPEAL DECISION: 9 March, 2004
SUBJECT MATTER OF DECISION: Appeal against decision of the Arbitrator to refuse leave to file late evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Appeal determined ‘on the papers’
REPRESENTATION: Appellant: Pricewaterhousecoopers Legal, Lawyers
Respondent: Maurice May & Co, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant Employer is to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 October, 2003, Australian Pharmaceutical Industries Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 15 September, 2003. The application for leave to appeal was lodged in the Commission on 8 October, 2003 and was registered on 23 October, 2003.
The Respondent to the Appeal is Francesca Scarfone (‘the Respondent Worker’).
The Insurer is QBE Workers Compensation Insurance (NSW) Limited.
ISSUE IN DISPUTE ON APPEAL
The Appellant Employer has appealed against the decision of the Arbitrator to refuse leave to admit into evidence, the medical report of Dr Gibson, dated 16 July, 2002, as late evidence, and part of its reply, in the proceedings before the Arbitrator.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on appeal is at least $5,000. No amount was awarded in the decision appealed against, and therefore, section 352(2)(b) does not apply (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5. See also discussion in Fletchers International Exports Pty Limited v Andrew James Regan [2004] NSW WCC PD 7 at paragraphs 25–28).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of 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 Numbers 1 and 6, the documents that are before me, and the agreement 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.
SUBMISSIONS
The Appellant Employer
The Appellant Employer submits that the Arbitrator erred in the application of President’s Practice Direction No. 9. Referring to ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD21 (‘ADCO’), the Appellant Employer submits that the Arbitrator construed the matters set out in President’s Practice Direction No. 9, that ‘will be taken into account’ by the Arbitrator as being ‘determinative’ whereas they are merely ‘instructive’, that is, they should be considered, but not exclusively, by the Arbitrator in exercising his discretion as to whether or not to admit late documents. The Appellant went on to say (by comparison), “…the Arbitrator in this matter referred to the list of things that he ‘must take’ into consideration. He thereafter listed the matters and did not list any other matters which he took into account when exercising his discretion.” The Appellant Employer referred to a number of factors, set out at paragraph 20 of ADCO (supra), as examples of factors that are relevant to a determination of an application for the admission of late documents.
The Appellant Employer submits that the Arbitrator spent considerable time reviewing the question of prejudice to the Respondent Worker but did not properly consider the question of the prejudice caused to the Appellant Employer by not allowing the medical report of Dr Gibson into evidence. It submits “…that the improper balancing of the question of prejudice is reflective of the Arbitrator not taking into account other relevant matters (such as prejudice to the Respondent) instead of only referring to the matters outlined in Practice Direction 9.” The Appellant Employer relies on the general law in relation to ‘late amendments’ and notes authority to the effect that leave to make late amendments “is almost always given by the Common Law Courts unless the party is acting malafide or has prejudiced the other party; or the amendment is futile (Tillsly –v- Harper (1978) 10 ChD 393; Crooper –v- Smith (1994) 26 ChD 710; Shannon –v- Lee Chun (1912) 15 CLR 257; Horton –v- Jones 9No. 2) (1939) (39SR) (NSW) 305; Longhurst-Saunders –v- Cooper (1956) (73WM) (NSW) 455)”. It is submitted that another key issue in reviewing the question of prejudice has been that the power to permit amendments is provided so that the real question in dispute between the parties can be tried: “Curren v McWilliam (1995) 38 NSWLR 476; 128 FLR 263; Macquarie Bank v National Mutual Life Association of Australia (1996) 40 NSWLR 543; National Australia Bank v Nobile (1988) 100 ALR 227.”
The Appellant Employer submits that the Arbitrator overstated the potential prejudice to the Respondent Worker if the medical report was allowed into evidence. Referring to the fifth and sixth paragraphs of the Arbitrator’s Statement of Reasons for Decision, at page 3, the Appellant Employer submits that there was no evidence that the Respondent Worker intended to qualify a further medical specialist as suggested, “and the Arbitrator’s ruminations on what “might occur” are not fair and reasonable to the consideration of the prejudice which should be considered, that being the actual prejudice to the Applicant unless supposition is also applied to the potential prejudice to the Respondent”. The Appellant Employer submits that obtaining a supplementary statement addressing a singular point and obtaining a supplementary medical report from a doctor who has already provided a medical report is not onerous, expensive or time-consuming. It is submitted that parties regularly obtained further medical reports during the course of proceedings in the Compensation Court, prior to the creation of the Commission, “…when the Rules were introduced requiring the closure of pleadings at the reply stage…”. The Appellant Employer submits “Accordingly, where the Applicant’s representative had indicated how she could meet the late amendment we believe there is an inference to draw that the prejudice can be overcome. It was certainly never submitted by the Applicant to the Arbitrator that the late inclusion of the medical report was an insurmountable obstacle thereby creating a serious prejudice of which would be capable of defeating the Respondent’s application for the exercise of the discretion in its favour under Rule 40(3).”
The Appellant Employer further submits that the Arbitrator over emphasised the relative importance of an explanation for the delay in the provision of the report, as set out at page 4 of the Arbitrator’s Statement of Reasons for Decision, in considering whether to exercise his discretion under Rule 40(3) of the Workers Compensation Commission Rules 2003 (‘the Rules’).
The Appellant Employer further submits that the Arbitrator failed to give adequate weight to the fact that the Respondent Worker was aware of the medical report and had included a reference to it in her statement that was filed with her initial Application. Both the Commission and the Respondent Worker have been aware of the existence of the document since the commencement of proceedings. It is submitted that the Commission should get to the heart of the issue between the parties rather than to rule on a technicality in favour of one party or the other.
Finally, the Appellant Employer reaffirms that the Arbitrator failed to understand the effect of President’s Practice Direction No. 9. The Practice Direction does not override the provisions of the 1998 Act or the Rules and the Arbitrator should not have restricted himself only to a consideration of the matters outlined in the Practice Direction and should have given appropriate weight to the other matters referred to.
The Respondent Worker
Under Rule 77(5), a Reply to Appeal must be filed within 14 days of the party being served with an ‘Application to Appeal’. The Respondent Worker did not file anything in the Commission in reply to the appeal until 22 January, 2004, following a reminder letter from the Commission. The document ‘Submissions in Reply by Respondent to Appeal/Applicant in Relation to Application Pursuant to S.352 of the Workplace Injury Management & Workers Compensation Act’, had been prepared in November, 2003 but remained on the office file. A copy of the document was served on the Appellant Employer on 22 January, 2004. The Respondent Worker claims the delay in filing was an oversight and submits that there has been no prejudice to the Appellant by the late filing of the response. No further submissions by way of objection relating to the late filing or otherwise, were received in the Commission from the Appellant Employer, up until this matter was allocated to me in late February, 2004, or since then. The document in question is not in the nature of evidence and in any event, I must give close consideration to the Appellant Employer’s submissions and make findings, whether or not the submissions of the Respondent Worker are taken into account. The reason for the delay in filing the document was given promptly, and in direct and unequivocal terms. There was an intention to file the document, which had been prepared by Counsel, within the prescribed time. As stated in ADCO (supra), a consideration of the factors to be taken into account, as outlined in that case, “represents a balancing of interests as between the parties, and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives.” I accept the explanation for the oversight, which was remedied at the earliest opportunity. I can find no prejudice or injustice to the Appellant Employer. The Respondent Worker herself was not responsible for the delay, and the document is not as I have said, in the nature of substantive evidence in this appeal. In the circumstances, the document ‘Submissions in Reply by Respondent to Appeal/Applicant in Relation to Application Pursuant to S.352 of the Workplace Injury Management & Workers Compensation Act’ is taken into account, notwithstanding the late filing.
The Respondent Worker submits that speculation about the possibility of future claims is not relevant to the determination of the current Application between the parties. It is equally irrelevant where the instructions came from, in relation to the defence of the claim, as the matter now in dispute arose from the manner in which the proceedings were conducted.
The Respondent Worker submits that the quotation on page 3 of the Appellant Employer’s statement is incomplete. “The report of Dr Gibson does challenge the findings of the Applicant’s medical practitioners but the Arbitrator only brought this up in the context where the basis of that challenge is in part factual material which is not proved and the basis for which is obscure in particular as to statements of the Applicant’s previous medical history which forms the basis of the opinion which he expressed. It further omits the fact which is important in the formation of the opinion of Dr Biswas of the progressive increase in the Applicant’s symptoms between 14 August 2000 and 18 April 2002. In other words the Arbitrator is saying in considering the report of Dr Gibson that one of the matters that he takes into account is that the report is of minimal assistance and that there must be other documents or other sources from which the doctor obtained his information apart from the Applicant or the reports which the Applicant relies upon i.e. those of Dr Biswas and Dr Brooks that are not in evidence.”
The Respondent Worker further submits that the nature of the error of law claimed by the Appellant Employer, in the Arbitrator’s application of President’s Practice Direction No. 9 “is not revealed”. The Arbitrator was at liberty to take each of the matters in the Practice Direction into account, and has taken them into account in the context of the onus borne by the Appellant Employer to justify by reasons, why Dr Gibson’s report should be admitted. This required it to satisfactorily explain the various breaches of the Rules which led to the need to make the application to admit it. “This is why the prejudice of the Applicant was dealt with first and at length.” One of the considerations to be taken into account is the conduct of the party seeking leave and in particular, whether there is an acceptable explanation for the delay. “In this case there is not.” The Arbitrator found that there was in effect, no explanation given for the delay. In any event, the Respondent Worker, despite doing everything that she could possibly do, was unable to inspect the report. The reasons why Dr Gibson came to his view were not revealed until the service of the report at the last minute. The report was not in the documents provided in response to a request dated 13 August, 2002, seeking information and documentation pursuant to sections 73, 119 and 126 of the 1998 Act. It was not produced in response to a Direction to Produce filed with the Commission on 8 May, 2003. It was not filed with the Response on 26 May, 2003 and there was no indication in that document of any matter which could be reasonably referable to it. “It refers instead to the dispute being a medical issue relating to s.9A, a factual issue as to the method of work and requirement to lift actual weights nor does it mention Dr Gibson in part 4 where his report could have been referred to as a document on which the Respondent intends to rely but does not have it in his possession. Indeed the contents of the actual report were not, in spite of the repeated request of the Applicant, revealed until 11 August 2003.” It is submitted that the Arbitrator correctly concluded that the Appellant Employer had failed to provide essential information and then failed to provide a coherent explanation for its non-production.
While conceding the basic principles cited by the Appellant Employer in terms of the courts granting amendments “out of date”, the Respondent Worker claims that the interpretation put is out of date as such amendments are commonly refused, particularly in the District Court. ADCO (supra) is cited to demonstrate that the Commission is in an entirely different position. It is submitted that the Arbitrator was entitled to approach this issue with Rule 5 in mind, on the basis that the parties must substantially comply with the Rules. Although the Commission has power to dispense with compliance, this discretion is likely to be exercised only in exceptional circumstances and not as a matter of usual practice. “The common law authorities are therefore of limited relevance, similarly with common law principles. The Arbitrator therefore had a threshold to determine before he came to the prejudiced [sic] allegedly suffered by the Respondent as to whether the circumstances were sufficient to justify a consideration of prejudice.” The Arbitrator referred to the inadequacy of the Appellant Employer’s preparations, and appeared to appreciate the work required if he allowed the ambit of the dispute to be broadened by admitting the report.
The Respondent Worker submits that the ground for denying liability was that employment was not a substantial contributing factor, in addition to an issue as to the nature of the work. In the circumstances, it is difficult to see how, as claimed by the Appellant Employer, its entire case would be compromised if Dr Gibson’s medical report is not admitted. In any event, Dr Gibson’s report expresses a number of factual conclusions which are not supported by any other document in evidence, and without explanation, would not be admitted, or would be admitted with multiple deletions. Any claimed prejudice would be limited.
The Respondent Worker rejected the claim that the Arbitrator had over stated the potential of prejudice to the Respondent Worker, should the document be admitted.
In conclusion, the Respondent Worker states that she has done everything to compel production of documents and the Appellant Employer has “egregiously failed” to produce a medical report for several months. During this time, the Appellant Employer filed a Reply in which it gave grounds for disputing liability “which are completely different matters to those which are said to arise from the medical reports. It now says, contrary to earlier correspondence and contrary to the Reply, that the medical report is the centrepiece of its case. It is submitted that in those circumstances it should have got its case into order at a much earlier stage and worked out why it was denying liability.”
DISCUSSION AND FINDINGS
Claimed error in the application of President’s Practice Direction No. 9
On a reading of the Arbitrator’s ‘Statement of Reasons for Decision’, I am unable to agree that the Arbitrator sought to apply the factors set out in Practice Direction No. 9, to the exclusion of any other considerations. What the Arbitrator said must be read in the context in which it is found. His reference to President’s Practice Direction No. 9 is included at page 2 of his Statement of Reasons for Decision, where he (at pages 1 and 2) alludes to the dispute regarding the application to admit Dr Gibson’s report as late evidence, refers to the various Rules that apply to the dispute, and sets out the relevant provisions of the Practice Direction. I do not construe his words “I must take into consideration the following” as importing the intention attributed to him by the Appellant Employer in what was in effect, a formal recital of relevant provisions. The Appellant Employer cited ADCO (supra) and pointed to factors set out in that matter that the Arbitrator could have taken into account, in addition to the factors listed in the Practice Direction. Briefly, these are:
·whether there was an acceptable explanation for the delay
·whether or not the refusal to admit the evidence will cause a substantial prejudice to the party making the application
·the prejudice, if any, that would result to the other party
·whether or not the delay in filing the document was attributable to the legal representative and not the party personally
·the nature of the proceedings, including the nature of the relevant statutory scheme
·general considerations of fairness and justice between the parties
In canvassing the sequence of events with regard to Dr Gibson’s report, and in his deliberations on the application to admit the report into evidence, the Arbitrator touches upon, to a greater or lesser extent, all of the above considerations, except that the question of attribution of fault to the legal representative and not the party personally, was not mentioned. In particular, the Arbitrator found that there was no acceptable explanation for the delay, spoke at length on the question of prejudice, and referred to the statutory scheme that applies in workers compensation disputes in the Commission. I can find no error on the part of the Arbitrator in relation to this ground of appeal.
Prejudice
There are two issues here. First, it is submitted that the Arbitrator spent considerable time in reviewing the question of prejudice to the Respondent Worker but did not properly consider the question of prejudice caused to the Appellant Employer by not allowing the medical report of Dr Gibson into evidence. Second, it is submitted that the Arbitrator over stated the potential prejudice to the Respondent Worker if the medical report was allowed into evidence.
In relation to the first issue, the Appellant Employer puts the proposition that the “improper balancing of the question of prejudice is reflective of the arbitrator not taking into account other relevant matters (such as prejudice to the Appellant Employer) instead of only referring to the matters outlined in Practice Direction 9.” As previously stated, it is clear from a reading of the Arbitrator’s Statement of Reasons for Decision that he did take into account a range of relevant considerations, and did not restrict his deliberations in the manner alleged by the Appellant Employer. While the Arbitrator was not particularly expansive on the matter of potential prejudice to the Appellant Employer, it is clear that submissions made in this regard, were taken into account by the Arbitrator in arriving at his decision. Reference to this is found in the first paragraph at page 3 of his Statement of Reasons for Decision. In referring to the submission the Arbitrator said: “This submission, to my mind, mis-states the proper balancing that needs to be undertaken in determining whether or not to allow the report into evidence.” He then proceeds to elaborate this by reference to the relative relevance of the contents of Dr Gibson’s report, the impact of its admission on the Respondent Worker (including the potential to broaden the dispute), and the repeated failure by the Appellant Employer to produce the report until the last minute, notwithstanding the opportunities that were available to do so both at the time when the initial application was made to the Commission to resolve the dispute, and subsequently. In the whole of the circumstances, it is difficult to see how the “entire case” of the Appellant Employer would be compromised by the exclusion of the report.
As to the second issue, there was evidence before the Arbitrator that the Respondent Worker knew of the existence of Dr Gibson’s medical report, had sought to obtain copies of all medical and other documents that were relevant to the dispute before the Arbitrator, and that the Appellant Employer had consistently failed to produce the report or in any way indicate, until the last minute, that it intended to produce it or place reliance upon it. In the circumstances, the Respondent Worker was entitled to conclude that it would not be used by the Appellant Employer, and the Arbitrator proceeded to outline his view of the prejudice, in the circumstances, that could result. Moreover, he noted the failure of the Appellant Employer to provide an adequate explanation for this failure to produce the report at the appropriate time or times, notwithstanding that every opportunity existed to produce it. The fact that the Respondent Worker and the Commission were aware of the existence of Dr Gibson’s report does not place any particular onus on either, as implied by the Appellant Employer. Whether it was tendered or not was a matter for the Appellant Employer. In any event, the Respondent Worker endeavoured to obtain disclosure of all medical and other information and the Appellant Employer consistently failed to oblige.
In my view, the question of prejudice was adequately considered and addressed by the Arbitrator, in all of the circumstances, contrary to the submissions of the Appellant Employer.
Opportunity to produce the document
The Arbitrator sets out in his Statement of Reasons for Decision, a brief chronology of the events surrounding this matter, and the various opportunities that were available for the Appellant Employer to include Dr Gibson’s report in the proceedings. This is set out at pages 3–5 and does not need to be reproduced here. The file before me contains various documents that were also before the Arbitrator, and bear out his account of what occurred. There was no lack of opportunity for the Appellant Employer to include the document at an earlier and more appropriate stage, and the failure not to do so was entirely a matter for that party. The Respondent Worker makes comment that the Appellant Employer filed a Reply that gave grounds for disputing liability “which are completely different matters to those which are said to arise from the medical reports. It now says, contrary to earlier correspondence and contrary to the Reply, that the medical report is the centrepiece of its case.” As previously indicated, there was no lack of opportunity over a considerable period of time for the Appellant Employer to provide the document to the other party and to include it amongst the body of documents upon which it sought to rely, in pursuing its case in the Commission.
The Statutory Scheme
The objectives of the Workers Compensation Commission and the provisions that govern its procedures are enshrined in the 1998 Act, and together with the Workers Compensation Act 1987, (‘the 1987 Act’) and supplemented by the Rules and the President’s Practice Directions, comprise the Statutory Scheme for the determination of workers compensation disputes in New South Wales. The Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/as Ascot Freightlines & Anor [2003] NSWCA 146). The practices of the courts, as outlined by the Appellant Employer, do not displace the procedures established under the Statutory Scheme. The Arbitrator was not obliged to look elsewhere for guidance in this regard, subject to complying with the requirements of the law.
In my view the Arbitrator has made no error of fact, law or discretion and it was open to him to refuse the application to admit as late evidence, the medical report issued by Dr Gibson on 16 July, 2002.
DECISION
The appeal is not allowed. The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is ordered to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.
Gary Byron
Deputy President
9 March, 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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