Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage
[2004] NSWWCCPD 18
•2 April 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Seymour v Western Sydney Area Health Service [2004] NSW WCC PD 18
APPELLANT: Diane Seymour
RESPONDENT: Western Sydney Area Health Service
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC7785-2003
DATE OF ARBITRATOR’S DECISION: 6 November 2003
DATE OF APPEAL DECISION: 2 April 2004
SUBJECT MATTER OF DECISION: Procedural Fairness, ‘On the papers’ decision
PRESIDENTIAL MEMBER: Deputy President, Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: McClellands Lawyers
Respondent: No Appearance
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 6 November 2003, is revoked.
I recommend that the Registrar refer the matter back to the Arbitrator who made the determination of 6 November 2003.
BACKGROUND
On 3 December 2003 Diane Seymour (‘the Appellant /Ms Seymour’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 6 November 2003.
The Respondent named in the Appeal is Ms Seymour’s employer, the Western Sydney Area Health Service (Westmead Hospital) (‘the Respondent’). The Respondent has not filed a Reply, nor any other documents, in response to the appeal.
The relevant insurer is the NSW Treasury Managed Fund (‘the Insurer’).
The appeal relates to a claim by Ms Seymour for workers compensation by way of weekly payments from July 2001, and continuing, and associated medical expenses. She claims to have suffered injury due to the nature and conditions of her employment as a cleaner with the Respondent at Westmead Hospital.
The Arbitrator determined the original dispute on the papers, following a telephone conference with the parties but without a conciliation/arbitration hearing. The Certificate of Determination, dated 6 November 2003, and brief ‘Statement of Reasons’ (‘the Reasons’) attached, records her orders as follows:
1. “That the Respondent pay Applicant (sic) weekly compensation at the rate of $117.10 per week from 25 July, 2001 and continuing pursuant to section 40 of the Workers Compensation Act, 1987. Such weekly payments to continue in accordance with the provisions of the Act.
2. That pursuant to section 60 of the Workers Compensation Act 1987 the Respondent pay the Applicant’s medical, hospital and rehabilitation expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
The matter was referred to me for review on 1 April 2004.
ISSUES IN DISPUTE
The Appellant submits that the parties were unaware that the Arbitrator was going to proceed to determine the substantive matter on the papers and that the parties had come to a mutually agreeable settlement of the matter. The Arbitrator’s orders do not reflect the parties’ agreed settlement of their dispute.
The Appellant identifies the issues in dispute as, in summary:
·The Arbitrator erred in law in denying the parties procedural fairness
·The Arbitrator failed to follow the Commission’s procedure as set out in Practice Direction No 1
·The Arbitrator erred in law in failing to try to bring the parties to a settlement of the dispute before making a determination, and
·The Arbitrator erred in calculating the worker’s earnings for the purpose of an award under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
ON THE PAPERS REVIEW
The Appellant submits that the appeal may be determined on the papers.
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.
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.
LEAVE
Before proceeding to deal with the appeal it is necessary to determine whether the requirements of section 352 of the 1998 Act are met.
Leave to appeal is granted on the basis that I am satisfied:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act);
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
·At least 20% of the amount awarded in the decision appealed against (section 352(2)(b) of the 1998 Act).
No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
EVIDENCE AND SUBMISSIONS
The original ‘Application to Resolve a Dispute’ was filed in the Commission on 12 March 2003, along with a request to issue ‘Directions for Production’ of documents to the Employer and the Insurer. The Employer filed a Reply to the application on 20 March 2004.
A telephone conference was held on 7 July 2003. Procedural directions were made and the matter was set to proceed to a conciliation and arbitration hearing on 18 July 2003.
At the conciliation/arbitration hearing the Respondent sought, and was granted, leave to amend the Reply filed on 20 March 2003, to add the issue of “Whether the decision of the Arbitrator in the District Court creates an estoppel?” With the consent of the parties the Arbitrator then made the following orders:
2. “The matter is stood over generally pending determination by me on the papers of the issue which is the subject of the amendment.
3. The Respondent has leave to file and serve written submissions limited to the amendment within 21 days.
4. The Respondent has leave to file and serve written submissions limited to the amendment within 21 days (sic).
5. The Applicant has leave to file and serve written submissions limited to the amendment within a further 21 days.
6. The parties have leave to file late documents relating to the District Court proceedings No. 6034/01 in support of their submissions with the submissions (sic).”
There is obvious repetition and lack of clarity in these directions.
No submissions were filed by either party, in accordance with the Arbitrator’s directions, prior to the Arbitrator’s determination of 6 November 2003, nearly four months after the conciliation/arbitration was held.
DISCUSSION AND FINDINGS
The Arbitrator’s decision disposes of the whole of the dispute and is not limited to the issue that was the subject of the amendment to the Reply, namely the question of estoppel.
The Arbitrator did not determine only the issue that was the subject of the amendment to the Reply, despite her direction to that effect. In my view she did not properly determine the ‘estoppel’ issue at all. Paragraphs 11-13 of the Statement of Reasons set out the Respondent’s claims in relation to the estoppel and extract principles from the decision of Bruce v Grocon Ltd (1995) NSWCCR 247. I do not understand the purported finding at paragraph 30 of the reasons which states:
“If the Respondent alleges estoppel then it bears the onus of proof. The Respondent has not made submissions and the documents before me do not lead to a conclusion that the matter relied upon by the Respondent was so relevant to the decision of the Arbitrator in the District Court that it would be unreasonable not to rely on it (Port of Melbourne Authority v Anshun Pty. Ltd. [1981] 147 CLR 589).”
The Appellant claims a denial of procedural fairness in the conduct of this matter and I agree with this submission.
The content of procedural fairness will depend upon the nature of the decision under review (Kioa v West [1985] 159 CLR 550). The Commission is bound by general law principles of procedural fairness and by the statutory provisions governing its procedure. The 1998 Act expressly modifies the content of procedural fairness as it applies to the Commission. Section 354 of the Act, provides as follows:
354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8). . .
The President has issued a Practice Direction, No 1 issued in July 2003, dealing with the procedure for the determination of matters on the papers. This provides, in part, that:
When an application is filed the Registrar may refer it to an Arbitrator. The Arbitrator will decide whether or not the matter may be suitable for determination on the basis of the documents that have been filed by the parties at that time.
Each matter referred to an Arbitrator will be the subject of a preliminary telephone conference. At this conference the Arbitrator will address a number of procedural issues including whether, in the particular circumstances of the case, to proceed to determine the matter on the papers. The Arbitrator will consider any objections raised by the parties. The Arbitrator will then advise the parties as to whether the matter is to be determined on the papers or whether the conciliation conference and arbitration hearing will proceed as scheduled.
The parties were entitled to rely upon the Arbitrator’s directions in relation to the ongoing conduct of this matter. They were not advised, in accordance with the above Practice Direction, that the substantive matter would be determined on the papers. In the circumstances of this case, I am of the view that they were not aware that the substantive decision was to be made and not aware that a further conciliation/arbitration would not take place. There has been a denial of procedural fairness in the determination of the substantive matter by the Arbitrator. A denial of procedural fairness is an error of law and a ground upon which a decision may be revoked.
The parties are not entirely without responsibility for this outcome. Neither party complied with the Arbitrator’s Directions of 18 July 2003, nor did they advise the Commission why they did not comply, or that the matter had been settled. The Commission has a statutory obligation to provide timely dispute resolution and will not, in normal circumstances, leave a matter ‘stood over’ for an indefinite time.
A Presidential Member does not have express power to refer a matter back to an Arbitrator. However the result of revoking the Arbitrator’s decision, without substitution of a different decision, is to leave the substantive dispute before the Commission for determination. In this circumstance I recommend that the matter could be referred back to the Arbitrator who made the determination, by the Registrar. This is, in effect, the order that the Appellant seeks.
DECISION
The decision of the Arbitrator is revoked. I recommend that the Registrar refer the matter back to the Arbitrator who made the determination of 6 November 2003.
COSTS
The appeal has been successful and costs fall to be determined by section 345 of the 1998 Act, which provides as follows:
345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The parties are allegedly close to settlement of this matter. As part of that process they are urged to come to an agreement as to costs of this appeal, in accordance with the above provisions.
Dr Gabriel Fleming
Deputy President
2 April 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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