Ballantyne v WorkCover Authority of New South Wales - [2006] NSWWCCPD 94

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 and Ballantyne v Work Cover of New South Wales (No 2) [2007] NSWWCCPD 241
CITATION:	Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94
APPELLANT:	Michael and Alana Ballantyne
RESPONDENT:	WorkCover Authority of New South Wales
INSURER:	Uninsured
FILE NUMBER:	WCC 18935-04
DATE OF ARBITRATOR’S DECISION:	15 March 2005
DATE OF APPEAL DECISION:	22 May 2006
SUBJECT MATTER OF DECISION:	Section 145 Workers Compensation Act 1987; uninsured employer; reimbursement of WorkCover
PRESIDENTIAL MEMBER:	Acting Deputy President Anthony J. Candy
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea, Lawyers
Respondent:	Turks Legal, Lawyers
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 15 March 2005 is confirmed.
The Appellant is to pay the costs of the Respondent.

BACKGROUND TO THE APPEAL

The partnership of Michael and Alana Ballantyne (‘the employers’) at all relevant times owned and operated a fishing vessel ‘Episode’ in waters off the coast of Australia. They had workers compensation insurance under the laws of Victoria but did not have New South Wales workers compensation insurance.

Michael Andrew Crofton (‘the worker’) was employed on the vessel as a deckhand and suffered injuries while so employed in December 1999 and on 6 February 2000, the latter injury being suffered at the wharf at Eden, New South Wales. A claim was made on the Victorian insurer and that claim was accepted and payments of compensation made. There was and is no dispute as to the employment of the worker or injury.

The worker also commenced proceedings in the Compensation Court of New South Wales (No. 57891 of 2001). The employers and WorkCover Authority of New South Wales (‘WorkCover’) were named as respondents. These were listed before Armitage J on 9 April 2003 when the employers through counsel consented to various awards of compensation under sections 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). These totalled $35,841.00. Further orders were made by consent as to the non-insurance of the employers, WorkCover to pay the compensation awarded and the employers to reimburse WorkCover in respect of compensation and costs. Provision was made in the further orders for the employers to apply to WorkCover for waiver of reimbursement within 60 days.

There were further proceedings in the Workers Compensation Commission (‘the Commission’), namely, WCC11302-2003 decided on 4 March 2004 in which weekly compensation was ordered from 17 June 2003. Although the employers and WorkCover were both named as respondents, the determination of the Arbitrator was that “the Respondent ... pay” compensation and costs. In the Arbitrator’s Statement of Reasons it appears that he was satisfied as to service of the Application to Resolve a Dispute on the employers, who however took no part in the proceedings. WorkCover for its part conceded that the worker was entitled to a full and continuing award of weekly compensation and this was the determination of the Arbitrator.
A waiver application was made on behalf of the employers in writing on 28 May 2003. WorkCover did not respond to this application but a Notice to Reimburse under section 145 of the 1987 Act was served by it on the employers on or about 23 September 2004. The Notice is dated 26 August 2004. There was an earlier dispute about the manner and date of service of the Notice but this is not of importance in the present appeal. The Notice under section 145 specified an amount of $88,523.25 as being the sum to be reimbursed.
After the service of a section 145 Notice the employers applied to the Commission seeking waiver by WorkCover of reimbursement of amounts paid and to be paid by WorkCover. A Commission Arbitrator on 15 March 2005 dismissed the application. This Application by the employers to Appeal Against Decision of an Arbitrator was lodged on 11 April 2005.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 15 March 2005 records the Arbitrator’s orders as follows:
“1. Award for the respondent.
2. No order as to costs.”
It is clear from the Application and Written Submissions that what the employers were seeking from the Commission was a waiver of liability to reimburse pursuant to section 145(2) of the 1987 Act. It was this which the Arbitrator held she could not do. Hence the order in favour of WorkCover.

ISSUES IN DISPUTE

The sole issue in dispute in this appeal is whether the Commission has power to waive the employers’ liability to reimburse WorkCover.

ON THE PAPERS REVIEW

Both parties seek an oral hearing. The employers on the basis that the matters to be raised will be complex and earlier decisions of the Court and the Commission should not be followed. WorkCover, although seeking a hearing also, has not given any reasons as to why this is sought.
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 Numbers 1 and 6 and the documents that are before me, 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. The question posed is a purely legal one. The parties have had an opportunity to refer to the relevant authorities and to make submissions in relation to those authorities.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
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 is $88,523.25 and the whole of this amount is at issue in the appeal. Section 352(2) is thus satisfied and leave to appeal is granted.

EVIDENCE AND SUBMISSIONS

There were no relevant factual matters in issue before the Arbitrator. The relevant employers’ submissions were as to:
· Service of a valid section 145 Notice.
·     The effective date of service.
·     When time began to run after service.
·     Whether, if out of time, proceedings were a nullity or not.
· Whether WorkCover was estopped from issuing a section 145 Notice until it had made a determination.
· Reduction of the employers’ liability pursuant to section 145(2).
· Whether the employers had workers compensation insurance but were defeated by the Constitution, the States having sovereign rights in respect of workers compensation.
· Whether the existence of relevant Victorian insurance brought the employers within section 145(2)(b) (that is, the employers could not reasonably have been expected to regard themselves as employers at the relevant time within the meaning of the New South Wales legislation).
Of these submissions the Arbitrator determined the second, third and fourth in favour of the employers. The rest were determined in favour of WorkCover.
WorkCover in its reply and submissions raised the following:
· Whether the application was filed within time.
· Whether the Commission had jurisdiction to determine the application for a waiver pursuant to section 145(2).
· Whether the employers were entitled to seek a waiver from the Commission.
Reliance was placed on the decision in Joseph and Phyllis Polito v Uninsured Liability & Indemnity Scheme WCC 12011-2003, 30 March 2004 (‘Polito’).

EMPLOYERS’ SUBMISSIONS IN THE APPEAL

The employers submitted that:
·The Arbitrator wrongly construed section 145 as giving the Commission no power to waive the employers’ liability to WorkCover.
·The Commission may make a determination under section 145(4) of the employers’ liability to WorkCover.
·Polito and the earlier decision of Curtis J in Petersen v Tanseri (2001) 22 NSWCCR 602 (‘Petersen’) were wrongly decided.

WORKCOVER’S SUBMISSIONS IN THE APPEAL

Petersen and Polito were correctly decided and the Commission has no power to waive the liability of the employers under section 145(2).

OTHER AUTHORITIES RELIED ON

The employers have forwarded to the Commission a copy of the decision of Acting Deputy President Handley in Mackley v WorkCover Authority of New South Wales [2005] NSW WCCPD 32, 10 May 2005 (‘Mackley’).
I have had drawn to the attention of the parties two decisions which I considered may be relevant, namely:
(a)Raniere Holdings Pty Limited v Daley & Anor [2005] NSWCA 121, 22 April 2005 (‘Raniere’); and
(b)Meyenn v WorkCover Authority of New South Wales, Compensation Court of New South Wales No. 10770 of 1995, Quirk J, 29 July 2003 (unreported) (‘Meyenn’).
Further submissions were invited and have been received.

FURTHER SUBMISSIONS

By the Employers

On behalf of the employers the following submissions were made:
·The employers say that it is implicit in Raniere that there is a discretion in the Commission to review the discretion exercised by WorkCover in claims for reimbursement.
·The employers’ consent to the award in matter No. 57891 of 2001 was subject to reasonable consideration by WorkCover of a waiver application.
·Meyenn is said to support the view that the Commission may review WorkCover’s exercise of discretion under section 145(2).
·Mackley is said to confirm the Commission’s power to review a decision of WorkCover regarding contribution from an uninsured employer and the discretion of WorkCover is not unfettered.
·Mackley and Raniere are said to confirm that WorkCover has an obligation to act in good faith and adhere to the principles of natural justice in determining whether or not to exercise a discretion under section 145(4) [sic.].

By WorkCover

On behalf of WorkCover the following submissions were made:
·Raniere is said to support the decision of the Arbitrator in this case.
·Waiver is within the power of WorkCover and not the Court (or Commission).
·The liability to be determined under section 145 is that of the employers to the injured worker.
·The employers consented to an award in matter No. 57891 of 2001 and a determination was made by the Arbitrator in WCC 11302-2003.
·Meyenn is said not to be relevant.
Both parties ask that the determination of this appeal await a decision of the appeal from Mackley in the Court of Appeal.

DISCUSSION AND FINDINGS

I have considered whether I should defer deciding this appeal as has been requested. I have decided that I should not for the following reasons:
·The decisions in Polito, Petersen and Mackley support the proposition that WorkCover alone is empowered to consider a waiver application under section 145(2) and no review by the Commission of that decision is provided for.
·The decision in Raniere supports WorkCover’s position in this appeal.
·Whatever the decision in the appeal from Mackley it is unlikely, in my view, to affect the determination of this appeal.

The Decisions in Mackley and Nohil

Because of the employers’ reliance on the decision in Mackley, it is necessary to consider it in some detail. This decision was given on 10 May 2005, that is, 18 days after the decision of the Court of Appeal in Raniere. It does not appear that the Acting Deputy President was referred to that decision. Mackley concerned a worker and uninsured employer. WorkCover had made payments of weekly compensation and medical expenses pursuant to section 143(1)(a). A later claim was litigated before Geraghty J in the Compensation Court who found in favour of the worker and ordered further compensation to be paid. His Honour declined to make an order for reimbursement of compensation under section 144(5) on the basis that the employer could not reasonably have been expected to regard himself as an employer who was bound to have workers compensation. His Honour left it open to WorkCover to proceed pursuant to section 145. A Notice under that section was served and an Application for Determination was lodged with the Commission. The Arbitrator determined that the employer should pay to WorkCover the amount specified in the Certificate under section 145(5).
The employer in Mackley relied on the decision of the Court of Appeal in GRE Workers’ Compensation Insurance (NSW) Ltd v Nohil Pty Ltd & Ors (1996) 13 NSWCCR 74 (‘Nohil’). It was submitted in Mackley that Petersen was not correctly decided nor a later case of Hadchiti v Llandilo Staircases Pty Limited (2002) 23 NSWCCR 170 (‘Hadchiti’). Acting Deputy President Handley decided the Commission could not review the exercise of WorkCover’s discretion pursuant to section 145(2) or exercise the power of waiver. He went on, however, to take the view that the Commission was able to consider the broader questions as to whether a person should be liable to reimburse WorkCover. The Arbitrator in that case had taken a narrow view of the determination to be made under section 145(4). Reliance was placed by the Acting Deputy President on a passage from the judgment of Cole JA in Nohil at 81C where his Honour refers to the power on the hearing of an application under section 145(4) as being: “a plenary power ...”.
In Nohil, in the Compensation Court, Manser J had held that the employer’s workers compensation insurer was obliged to indemnify it and WorkCover. The employer was thus not uninsured. It was argued in the Court of Appeal that the trial judge was not entitled to make a reimbursement order under section 145 against the insurer. It is in this context that Cole JA made the following statement (at 81C):
“Subsection (3) permits determination as to ‘the person’s liability’. A person’s liability includes not only any obligation to pay compensation, but also that person’s right to any indemnity in respect of that compensation, for instance, from its insurer. Subsection (4) confers a power on the hearing of such an application to make ‘orders as to the payment of compensation ... in respect of the injured worker concerned’. That is a plenary power permitting the Court to make appropriate orders adjusting the rights of all persons or bodies who may have an existing or potential liability or entitlement to be relieved of liability because of insurance in respect of the compensation claimed by or awarded to the injured worker.”
Relying on what was said by Geraghty J in declining to order reimbursement the Acting Deputy President in Mackley exercised the broad powers he said were given in section 145(4) to relieve the employer of liability to reimburse WorkCover. He emphasised that he was not waiving the employer’s liability but rather exercising the power of the Commission to determine liability under section 145(4). The Acting Deputy President held that the reference in section 145(3) to “a determination as to the person’s liability” meant a determination as to the employer’s liability to reimburse WorkCover (paragraphs 25 and 29).

The Decision in Raniere

The decision of the Court of Appeal in Raniere is, I think, of relevance. The decision was given by Tobias JA with whom Hodgson JA and Stein A-JA agreed. This was an appeal from an order of Hughes J that the appellant/employer reimburse WorkCover amounts paid by it to the worker. The claim had been made for lump sum compensation under sections 66 and 67 of the 1987 Act. This was settled by Terms of Settlement between the worker and WorkCover. No orders for reimbursement were made. The employer was legally represented but did not consent to the settlement. The original judge before whom the matter was listed disqualified himself. At a later date the matter came before a different judge, Hughes J, who made the orders against which there was an appeal. The Court of Appeal allowed the appeal and set aside the order for reimbursement. The application under section 144(5) was remitted to the Commission for determination.
Paragraphs 45 and 46 of the judgment of Tobias JA make it clear that the liability which is determined by the Commission under section 145(3) and (4) is the liability of the employer to pay compensation to the injured worker. His Honour makes clear that an uninsured employer will only be held liable to reimburse WorkCover for payments of compensation where the employer has agreed to the worker’s entitlement to that compensation or has been found to be liable by a determination of the Court (or Commission) (paragraphs 48, 49 and 56 of his Honour’s judgment).
I consider that the decision of the Acting Deputy President in Mackley is inconsistent with that of the Court of Appeal in Raniere however, apart from Raniere, I would be reluctant to follow Mackley for the following reasons:
(a)WorkCover is given in section 145(2) guidelines as to matters to be considered in determining a waiver application. There are none for the Commission in making a determination under section 145(4). In my view, the determination must be based on legal considerations such as questions of employment, injury, entitlement to compensation and the like – not discretionary matters such as ignorance, hardship or interstate insurance. WorkCover may have made payments voluntarily to a worker under a mistaken view as to the liability of the employer. Section 145(4) empowers the Commission to relieve the employer of liability to reimburse in such a case or, allows the Commission to limit to a proper sum the amount which is required to be reimbursed. In Mackley the Acting Deputy President relied on the reasons given by Geraghty J for declining to order reimbursement, namely mistake and hardship.
(b)The primary liability to pay compensation falls on the employer. Nothing in Division 6 of Part 4 of the 1987 Act (sections 138 to 148A) (Uninsured Liability and Indemnity Scheme) relieves the employer of that liability. The provisions of Division 6 do however provide a means for securing an injured worker’s entitlement to receive compensation notwithstanding the employer being uninsured.
(c)It is unlikely that both the Commission and WorkCover would have been given power to do in effect the same thing by the legislation. I realise that in the case of WorkCover it is a waiver under section 145(2), whereas with the Commission it is said to be a determination of liability as nil. It has the same practical effect. This is not to say that the determination of no liability may not be made in an appropriate case on proper legal considerations.
The second proposition might be considered doubtful in light of the decision of Quirk J in Meyenn. That was a case determined on its own facts involving the attempted imposition of liability to pay compensation to a shearer on a hobby farmer, the last employer of the shearer, although only for four days. Pursuant to section 16 of the 1987 Act, the hobby farmer was liable to pay the compensation and, being uninsured, WorkCover made payments and sought reimbursement. There was a right to claim contribution from other relevant employers within the preceding twelve months (section 16(2) of the 1987 Act). No such contribution was sought by WorkCover as it could have been. The amount paid by the employer himself towards a commutation was held to be sufficient to satisfy his liability to WorkCover, although payments by WorkCover were much more.

I do not consider that this decision is consistent with that of the Court of Appeal in Raniere or with the views which I have expressed. It is however, in my view, an attempt to do justice between the parties on the particular facts of that case. It was not decided on such grounds as hardship or reasonable belief but rather by a calculation of what would have been the employer’s nett liability if recovery had been pursued from other employers.
In this case the employers have sought throughout a waiver of liability to reimburse WorkCover. There is no such power in the Commission. That question has been conclusively determined by decisions of the Compensation Court and the Commission.
However, the employers by relying on Mackley have, although not expressly, sought a determination of liability as nil based on the supposed “broad discretion” which Mackley provides. I do not consider that the Commission has any power to make a determination of liability which is other than that of the employers to the worker. In this case the employers on 9 April 2003 agreed to the worker’s entitlement to lump sum compensation and also agreed to an order for reimbursement. The employers cannot now seek from the Commission a fresh determination of that liability. So far as payment pursuant to the award of 4 March 2004 in WCC 11302-2003 is concerned, I note that the employers were served with an Application and chose not to take part in the proceedings. It is not necessary to decide in this appeal whether the order of the Arbitrator amounts to a determination that the employers were liable to pay the worker compensation under the Act.
The Arbitrator in this case did not make a determination of the liability of the employers under section 145(4). This is not surprising since it was not sought by the employers. As I have earlier said, the proceedings were simply dismissed. There is no appeal by WorkCover in relation to this.
In my view, no error or law, fact or discretion on the part of the Arbitrator has been demonstrated by the appellant/employers.

DECISION

The decision of the Arbitrator dated 15 March 2005 is confirmed.

COSTS

The appellant/employers to pay WorkCover’s costs.

Anthony J. Candy
Acting Deputy President
22 May 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY J. CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER

CITATION:Ballantyne v WorkCover Authority of New South Wales [2006] NSWWCCPD 94R
APPELLANT:  Michael and Alana Ballantyne
RESPONDENT:  WorkCover Authority of New South Wales
INSURER:Uninsured
FILE NUMBER:  WCC18935-04
DATE OF ARBITRATOR’S DECISION:          15 March 2005
DATE OF APPEAL DECISION:  22 May 2006
DATE OF RECONSIDERATION DECISION: 24 October 2006
SUBJECT MATTER OF DECISION: Section 145 Workers Compensation Act 1987; uninsured employer; reimbursement of WorkCover
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      Carroll & O'Dea, Lawyers
Respondent:    Turks Legal, Lawyers

ORDERS MADE ON APPEAL: The decision of the Presidential member dated 22 May 2006 is confirmed.

The Appellant is to pay the costs of the Respondent of the reconsideration.

RECONSIDERATION OF ORDER

On 22 May 2006 I issued the following determination in the appeal:
“The decision of the Arbitrator dated 15 March 2005 is confirmed.
The Appellant is to pay the costs of the Respondent.”
The Appellant referred to is the partnership of Michael and Alana Ballantyne, the uninsured employer of Michael Andrew Crofton. The Respondent is the WorkCover Authority of New South Wales which made payments of compensation to Mr Crofton and sought reimbursement by a notice served on the Appellant pursuant to section 145(1) of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 15 August 2006 the Appellant lodged an Application for Reconsideration of the Decision made on Appeal. The basis of the Application for Reconsideration is the decision of the Court of Appeal in WorkCover Authority of New South Wales v Mackley [2006] NSWCA 204 27 July 2006 (‘Mackley’). That appeal was brought from a decision of Acting Deputy President Handley who determined that the Commission had a broad discretion to relieve an uninsured employer of liability to reimburse WorkCover. In so doing, the learned Acting Deputy President emphasised that he was not waiving that employer’s liability but, rather, exercising the power of the Commission pursuant to subsections 145(3) and (4) to determine that person’s liability to reimburse WorkCover.
The decision of the Acting Deputy President in Mackley was brought to my attention in this appeal and I declined to follow that decision for reasons which I gave in my determination of the appeal in this matter on 22 May 2006. The Court of Appeal upheld the decision of the Acting Deputy President in Mackley and thus my determination of the appeal in this matter was erroneous in law.
The solicitors for both parties had sought that I should defer the determination of the appeal in this matter until the Court of Appeal had pronounced on the correctness of the Acting Deputy President’s determination in Mackley. I declined to do so because I considered the law was completely clear, especially in view of the decision of the Court of Appeal in Raniere Holdings Pty Limited v Daley & Anor [2005] NSWCA 121 (22 April 2005) (‘Raniere’). I had brought this decision to the attention of the parties and invited submissions on it as well as a determination of the Compensation Court and such submissions were duly received and considered. I placed reliance on a passage in the judgment of Tobias JA in Raniere which I considered was inconsistent with the determination made by the Acting Deputy President in Mackley. The passage is at paragraph 45 as follows:
“In my opinion, these provisions make clear that an employer upon whom a notice is served is entitled to apply to the Compensation Court for a determination as to its liability in respect of any payment made by the Authority to an injured worker under the Scheme. It must follow that that liability relates to that of the employer to pay compensation to an injured worker under the Act. Accordingly, subject to the provisions of section 145(5), the fact that the Authority has made a payment to the injured worker under the Scheme, whether of its own motion pursuant to section 143(1)(a) or pursuant to an order of the Compensation Court under section 144(3), is not conclusive of the employer’s liability to reimburse the Fund from which the payment is made. That liability, if not otherwise conceded by the employer, is to be determined by the Compensation Court pursuant to section 145(4).”(emphasis added)
The decision of the Court of Appeal in Mackley was given by Bryson JA with whom Hodgson and McColl JJA agreed. Bryson JA considered the decision of the Court of Appeal in Raniere. His Honour makes the following comment:
“44.In the submission of counsel for WorkCover Authority s145(2) provides machinery, and the only machinery for determination whether an employer is to reimburse the Authority, and the only justiciable issues left for consideration under s145(4) are issues relating to whether or not the employer was liable to the Authority. It was submitted that in the present circumstances where the liability of Mr Mackley to pay lump sum payments and s60 expenses has been established by the award of the Compensation Court, the only justiciable issue left which could be the subject of decision under s145(4) is whether Mr McLeod [the worker] had an entitlement to payments of weekly compensation. It was claimed that this submission was supported by Raniere Holdings but in my opinion there is no support in that decision for this view; in my reading the judgment of Tobias JA does not express a conclusion on or consider whether or not enforcement of the notice under s145(1) is open to further debate if it has been established that the claimant was a worker was entitled to compensation and that the employer was uninsured. Upon the facts in Raniere Holdings the employer has not been given a fair opportunity to debate any issue, and the judgment at first instance was set aside for that reason; that was not an appropriate occasion to state exhaustively what issues would have been open to debate in the hearing the opportunity for which had not been extended. Justice Tobias’ consideration was not directed to the existence or nature of any residual discretion conferred by the terms of s145(4).”

SUBMISSIONS ON BEHALF OF APPELLANT

The Appellant seeks a reconsideration of my decision of 22 May 2006 and also that the matter be remitted to the Commission Arbitrator to determine the appellant’s liability to the WorkCover Authority in accordance with the law as established in Mackley. The extent of the power for reconsideration under section 350(3) of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) is said to be a broad discretionary power and reference is made to the decision of Acting Deputy President Roche in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (‘Samuel’). The Appellant submits that the Court of Appeal has rejected the interpretation placed by me on section 145(4) of the 1987 Act. This is obviously correct.

SUBMISSIONS ON BEHALF OF RESPONDENT

The Respondent submits that reconsideration should not be entertained where a determination by a Presidential Member could be corrected by an appeal under section 353 of the 1998 Act.
The Respondent relies on the decision of Deputy President Fleming in Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 at paragraphs 52 to 66 (‘Comensoli’).
It is submitted on behalf of the Respondent that the Appellant’s Application for Reconsideration should be considered in a similar manner to the way in which the Court of Appeal determines an Application for Extension of Time to Lodge an Appeal. The respondent relies on the decision of the Court of Appeal in R v Unger [1977] 2 NSWLR 990 (‘Unger’). The respondent also relies on the decision of the Court of Appeal in Waverley Municipal Council v Cheowiry [2003] NSWCA 12 (‘Cheowiry’).
The Respondent further submits that the application of the principles in Mackley may have no effect on the eventual outcome of the Appellant’s Application for Waiver. It is submitted that the power to waive liability is strictly limited to exercise by the Authority.
It is further submitted that the Appellant has another remedy in seeking administrative relief in respect of the Authority’s failure to consider a waiver application made under section 145(2) of the 1987 Act.

DECISION

Deputy President Fleming in Comensoli stated at paragraph 64 the following propositions in relation to the exercise of the discretionary power to reconsider in section 350(3) of the 1998 Act. These are as follows:
·“The power is wide and discretionary, however an application for reconsideration of a Commission decision should only be granted where there are exceptional circumstances so that the reconsideration is necessary to address a ‘manifest injustice’ in the particular case.
·The member of the Commission who made the original decision should wherever possible, be constituted to hear an Application for Reconsideration of that decision.
·The factors relevant to the exercise of a discretion to reconsider a decision include whether;
oThe reconsideration is consistent with the public interest in the finality of the litigation, including whether there has been undue delay in the making of the application for reconsideration.
oThe reconsideration is sought on the basis of the same factual and legal issues as were before the original decision-maker. As Walker J said in Southern Tablelands ‘mistake or inadvertence by a party’s legal adviser is an insufficient ground to permit the exercise of the discretion’.
oAn alternative statutory remedy is available to the party seeking reconsideration, i.e. by way of correction of obvious error; by appeal to a Presidential member; by referral of a medical dispute to an AMS or appeal to a MAP.
oThe application concerns a matter that has no substantive impact on the final determination of the rights and entitlements of the parties under the Workers Compensation Acts (for example, a procedural direction).
oThe matter has previously been reconsidered on the same grounds.
oThe application for reconsideration is frivolous, vexatious or otherwise lacking in merit.”
In Samuel Acting Deputy President Roche at paragraph 58 stated the following principles applicable to the exercise of discretion under section 350(3) of the 1998 Act. These are as follows:
“(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 purpose of section 350(2) to include ‘an award, 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 a 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 353, (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 the 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 due justice between the parties according to the substantial merits of the case (‘Hilliger’) and section 354(3) of the 1998 Act).
The Respondent relies on a number of cases which deal with extension of time to lodge an appeal based on a changed interpretation of the law. In Unger an application to extend time to appeal was made in 1977 in relation to a conviction which had been entered on 27 June 1974 after the District Court in 1976 had taken a different view of the relevant legislation to that which had been taken earlier. Street CJ in that case referred to the judgment of the High Court in Piening v Wanless (1968) 117 CLR 498. In relation to that his Honour said:
“In that case a trial had been conducted upon a particular view of the law laid down in an earlier decision of the Supreme Court which, after the trial, was overruled in the High Court. The Court of Appeal ordered a new trial upon the basis that the subsequent High Court decision showed that the trial had been conducted under a misconception as to the true state of the law. In the High Court the Court of Appeal was overruled and the verdict of the jury was restored. The approach taken in the High Court is succinctly summarised by Menzies J in a short passage:
‘In my opinion the verdict in the trial which was conducted upon one basis cannot be set aside merely because the decision, upon which counsel presumably relied in determining how he would conduct his case has been overruled subsequently. It is for counsel to determine whether or not he will challenge it or accept a decision which stands in his way, and, having accepted it, his mistaken acceptance cannot be made the basis for setting aside any verdict which is returned by the jury upon the case submitted to them in order that a new and in some ways, an inconsistent case – as the course of argument seem to indicate – can be submitted to another jury.’
These authorities, both in the criminal and in the civil field, tend strongly against granting to the present appellant the extension of time that he seeks. Modifying appropriately the words of Lord Greene, it is not sufficient for the present appellant to come to the Court for an extension of time and say that a subsequent decision has disclosed an invalidity in the regulations that were fundamental to the Crown case in the original trial. The Court has an ultimate discretion in the matter but it is a discretion to be exercised by regard not only to all the facts and circumstances of their particular application, but also to what the Court of Criminal Appeal in R v Ramsden described as the alarming consequences flowing from a general policy of permitting the re-opening of cases in consequence of the subsequent exposure of a misconception as to the prior state of the law.”
The case of Cheowiry concerned a claim for damages brought against Waverley Municipal Council and after judgment was given against it the Council’s solicitors wrote to the plaintiff’s solicitors saying they were instructed not to appeal. At a later time the instructions were received that an appeal should be lodged and an extension of time was sought. The extension of time was refused and the President of the Court of Appeal, Mason P, said the following:
“One branch of the claimant’s argument were submissions that its belated decision was prompted by Waverley Council v Lodge (2001) 117 LGERA 447 and that Lodge’s case involved a significant development in the law as understood or at least propounded by appellate courts in this country. Let those propositions be assumed correct for the purpose of argument. On that hypothesis the claimant’s argument runs foul of the principles underlying the well-established doctrine that in civil and criminal appeals an extension of time for appeal will not be granted solely on the ground that a subsequent decision to that now sought to be appealed from has disclosed that the law as it was understood when the trial was conducted is no longer at law.”
The learned President goes on to refer to the reasons for the doctrine as explained by the Chief Justice in Unger’s case.
Having regard to the principles expounded in Comensoli and Samuel, in this case it appears to me that those which are relevant are as follows:
·Both parties sought that I should defer consideration of the appeal until the Court of Appeal had determined the appeal in Mackley.
·I am asked to reconsider my original decision.
·There was no undue delay in making the application for reconsideration.
·The alternative statutory remedy would have been by appeal to the Court of Appeal pursuant to section 353 of the 1998 Act. This does not appear to me to have the same facility as an application for review to a Presidential member under section 352 of the same Act.
Applying these considerations to the case, I am of the view that I ought exercise the power of reconsideration which is given by section 350(3) of the 1998 Act. I consider that this is an exceptional case and reconsideration is necessary to prevent perceived injustice.

On behalf of the Respondent it is submitted that what the Appellant sought from the Arbitrator was a waiver of liability which was not available. The learned Acting Deputy President in Mackley, in my view, made it clear that the Commission’s power pursuant to subsections 145(3) and (4) does not extend to reviewing the exercise of WorkCover’s discretion pursuant to section 145(2) or to exercise and the power of waiver thereunder. He went on to say at paragraph 29:
“… I have decided that I should exercise the broad powers with which the Commission is endowed by section 145(4) to relieve Mr Mackley of liability for reimbursing WorkCover. In so doing, I emphasise that I am not waiving Mr Mackley’s liability – rather I am exercising the power of the Commission pursuant to subsections 145(3) and (4) to determine the ‘persons liability’ (section 145(3)) to reimburse WorkCover the amount specified in the notice dated 11 December 2003.”
The approach of the learned Acting Deputy President in Mackley was endorsed by the Court of Appeal in that case.
The Appellant’s written submissions before the Arbitrator were headed “Applicant’s Submissions as to why the employer’s liability should be reduced pursuant to section 145(2)”. The oral submissions however before the Arbitrator on 25 February 2005 make clear that reliance was placed upon section 145(3) and (4). In the application to appeal against a decision of the Arbitrator, the Appellant gives the following reasons:
“3.1The Arbitrator construed section 145 as giving the Commission no power to waive the applicant employer’s liability to reimburse the WorkCover Authority.
3.2The applicant submits this is an incorrect construction of the Section.”
The question of pleadings in the Commission has been considered by Dr Gabriel Fleming, Deputy President, in Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 as follows:
“23.The system of pleadings common to adversarial proceedings in the courts does not have the same role in the Commission. It is trite but necessary to reiterate that the Commission is not a Court. It is an independent statutory tribunal whose powers and functions are set out in the Workplace Injury Management and Workers Compensation Act 1998 (the Act). The practice and procedure whereby the issues are defined in a dispute must be determined in accordance with the Commission’s statutory objectives. These objectives are set out at section 367 of the Act as follows:
367 Objectives of the Commission
(1) The Commission has the following objectives:
(a)to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b)to reduce administrative costs across the workers compensation system,
(c)to provide a timely service ensuring that the workers entitlements are paid promptly,
(d)to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e)to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts, to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
24.In the informal, less technical environment of the commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties. The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues. The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme. When the parties reach the Commission the issues that are in dispute between them should be clear. This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator must make a decision.
25.There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfil the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.”
Taking a broad view of the manner in which the proceedings were conducted before the Arbitrator, it seems to me that what was sought was a determination of liability but that determination was sought to be nil. In my reasons for determination of the appeal in this matter, I referred to the absence of a difference between a waiver and a determination of liability as nil. Such distinction still seems to me to be illusory.
The appellant has sought that the matter be remitted to the Arbitrator in order to determine the question of waiver. There appears to be no reason why I should not exercise the jurisdiction of the Commission pursuant to section 352(7) of the 1998 Act and section 145(4) of the 1987 Act rather than remit the matter to the Arbitrator.
The matters upon which the Appellant relied in the original application may, I think, be summarised as follows:
· The business of the Appellant was situated in Victoria.
·The Appellant had appropriate workers compensation insurance under the laws of the State of Victoria.
·The Certificate of Survey in respect of the vessel concerned was obtained from the Marine Board of Victoria. The appellant believed that there was appropriate workers compensation insurance in place with respect to its employees.
·The Appellant would not reasonably regard itself as being a New South Wales employer
The facts of this case must be contrasted with those in Mackley where the trial judge expressed real doubts as to whether the employer would reasonably regard himself as being the employer of the worker concerned, having regard to the circumstances of that engagement. That consideration does not apply here. The Court of Appeal in Mackley expressed the view that it would be appropriate for the Commission to have regard to the matters specified in section 145(2) in determining an application under section 145(3) and (4). These are as follows:
“(a) the amount is beyond the capacity of the employer to pay;
(b)the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time;
(c)the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy;
(d)the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up;
(e)the employer, being a corporation, has been dissolved; or
(f)it would not be commercially feasible for the Authority to attempt to recover the amount.”
In relation to these matters there is no evidence that the amount sought is beyond the capacity of the employer to pay; the employer could not reasonably have been expected to regard itself as not being an employer at the relevant time; there is no evidence that the employer is bankrupt; and, there is no evidence that it would not be commercially feasible for the Authority to attempt to recover the amount. The connection of the employer with the state of Victoria and the workers compensation insurance in that state are, I think, irrelevant considerations.
Having regard to all of these submissions as to why liability to reimburse the Respondent ought to be waived I am of opinion that such a determination ought not be made. I am mindful of the fact that the worker involved was a resident of New South Wales at the time of his injury, although there is no evidence as to where he entered into a contract of employment with the Appellant. The places of injury were in New South Wales. In my view the misunderstanding of the Appellant as to whether it was or was not a New South Wales employer is not sufficient to warrant making a determination pursuant to section 145(4) that the Appellant is not liable to reimburse any sum to the Respondent.
The result accordingly on the reconsideration is that I confirm my determination of the appeal of 22 May 2006.

COSTS

The Appellant is to pay the costs of the Respondent of the reconsideration.

Anthony Candy
Acting Deputy President
24 October 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESDIENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE