Barbour v BHP Steel Pty Limited
[2004] NSWWCCPD 41
•12 July 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Intercast & Forge Pty Ltd v Sahi [2004] NSW WCC PD 41
APPELLANT: Intercast & Forge Pty Ltd
RESPONDENT: Amit Sahi
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Ltd
FILE NUMBER: WCC 12153-2003
DATE OF ARBITRATOR’S DECISION: 3 February 2004
DATE OF APPEAL DECISION: 12 July 2004
SUBJECT MATTER OF DECISION: Issue estoppel; lack of reasons for decision or inadequacy of reasons.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: McCulloch & Buggy Solicitors
Respondent: Buttar, Caldwell & Company Solicitors & Barristers
ORDERS MADE ON APPEAL: The Arbitrator has failed to make a decision or determination in accordance with the Workplace Injury Management and Workers Compensation Act 1998.
The matter is remitted back to the Arbitrator concerned for determination in accordance with these reasons.
THE APPEAL
On 19 February 2004 Intercast & Forge 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 3 February 2004. The matter had been lodged in the first instance as a Question of Law. The President determined on 15 December 2003 that the issue was not novel or complex and refused leave to refer the question of law, directing the Arbitrator to determine the issue.
The Respondent to the Appeal is Amit Sahi (‘the Respondent Worker/Mr Sahi’) and the relevant insurer is NRMA Workers Compensation (NSW) (No.2) Pty Ltd (‘the Insurer’).
The decision of the Arbitrator was a direction, made in the following terms:
At the telephone conference on 3 February, 2003 [sic] … the following directions were made:
1.The Respondent maintained that the applicant’s claim for permanent impairment should not be permitted on the basis of issue estoppel arising from proceedings for weekly benefits in the matter, WCC 4968-2002. I find that there is no judgement in those proceedings, capable of giving rise to an issue estoppel in this matter.
2.I direct that the matter be referred to an Approved Medical Specialist for assessment of the permanent impairment dispute in accordance with my request dated 23 October 2003.
3.I admit, the surveillance report of Lyonswood Investigations dated 16 August 2002 and direct that a copy of this be furnished to the Approved Medical Specialist as one of the Respondent’s documents.
The appeal was referred to me for review on 30 April 2004. All three copies of the appeal documents lodged by the Appellant Employer were still on file and none had been returned to the Appellant Employer. There was no Reply in the file and it was not apparent that the Respondent Worker was aware in fact, that an appeal had been lodged. The file was returned to the Registrar on 7 May 2004 for appropriate action. I requested that a transcript of the telephone conference be provided given that, included in the grounds of appeal, it is submitted that the Arbitrator failed to provide any or adequate reasons for his decision. I was informed on 21 June 2004 that the teleconference was not recorded and consequently, no transcript is available.
Directions were issued on 10 May 2004 by the Registrar, directing that the Appellant Employer serve on the Respondent Worker, a sealed copy of ‘Appeal Against Decision of Arbitrator’, and an ‘Application to Admit Late Documents’, and directing the Respondent Worker to provide written submissions in reply by 1 June 2004. No response was received. The Registrar issued further Directions on 8 June 2004 in relation to these matters, requiring responses from both parties by 16 June 2004.
A ‘Certificate of Service’ dated 16 June 2004 was provided by the Appellant on that date, certifying that the ‘Appeal Against Decision of Arbitrator’ and the ‘Application to Admit Late Documents’ had been served on the Respondent Worker on 14 May 2004. On the same date, the Respondent Worker lodged submissions in Reply to the appeal. The Respondent Worker did not lodge a ‘Certificate of Service’ but the Solicitors for the Appellant Employer confirmed on 23 June 2004 that the submissions in Reply were served.
The ‘Application to Admit Late Documents’ referred to a supplementary statement dated 8 March 2004, lodged in the Commission on 9 March 2004, by the Appellant Employer. However, a ‘Certificate of Service’ of this document was provided at that time.
All relevant documents have now been served. The file was returned to me on 23 June 2004.
The Commission documents known collectively as the ‘Arbitrator’s file’ were destroyed on 4 March 2004, and are no longer available. I do not know what was contained in the ‘Arbitrator’s file’. However, there is no statement or note of reasons for the Arbitrator’s decision, on the Commission file that is before me.
ISSUES IN DISPUTE
The issues in dispute are set out as grounds of appeal, as follows:
The Arbitrator was in error in finding that:-
(a)No issue estoppel had arisen from the findings in the earlier proceedings;
(b)That there was no issue estoppel arising from the earlier proceedings that the Applicant’s injury had resolved and that his condition had settled;
(c)He failed to provide any reasons for his decision;
(d)He failed to provide adequate reasons for his decision.
JURISDICTION
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’).
In this matter I am satisfied that:
·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 as no amount of compensation was awarded in the decision appealed against, section 352(2)(b) of the 1998 Act has no application in this matter (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
·A decision includes a direction (section 352(8) of the 1998 Act).
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.
The Appellant Employer submits that the appeal may be determined on the papers but is prepared to make oral submissions if that will assist. The Respondent Worker submits that this is a complex matter and that oral submissions “may be necessary on the appeal.” 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.
APPLICATION TO ADMIT LATE DOCUMENTS
The ‘Application to Admit Late Documents’ relates to a further submission by the Appellant Employer about the question of leave to appeal and whether the appeal can be determined on the papers. This submission was required by the Registrar, to be filed by 9 March 2004. It was in fact, filed on that date. In the circumstances, the ‘Application to Admit Late Documents’ was unnecessary. In any event, there is no prejudice to the Respondent Worker in admitting this submission, which contains information that is routinely required and filed in connection with appeals. The Respondent Worker has offered no objections to the admission of the submission. There is no reason to disallow the admission of the document.
BACKGROUND TO THE APPEAL
The Respondent Worker was injured on 4 July 2002. An ‘Application to Resolve a Dispute’ was lodged in the Commission on 6 December 2002. The dispute went to arbitration, and was determined by an Arbitrator on 12 June 2003. The basis of the claim was that the Respondent Worker suffered a partial incapacity for work and suffered an injury that arose out of and in the course of his employment as a manual labourer. Liability was denied and the disputed claim was for payment of weekly benefits and medical expenses. The Arbitrator, not being the same Arbitrator who made the decision in the instant matter, found as follows:
In summary the resolution of the issues in dispute is as follows:
·On 4th July 2002, Amit Sahi received an injury to his lumbar spine arising out of or in the course of his employment as a labourer with Intercast and Forge Pty Ltd
·Amit Sahi’s employment was a substantial contributing factor to his injury
·Amit Sahi was partially incapacitated for work as a result of his injuries for a closed period from 4th July 2002 to the 12th September 2002
·Mr Sahi’s entitlement to weekly benefits of $726.12 per week based [on] his pre-injury award rate for that closed period
·Mr Sahi’s medical and related expenses incurred as a result of treatment, services or assistance that were reasonably necessary for the compensable injury expenses are to be paid based on receipts and accounts attributable to the medical attendances I have noted in this Statement of Reasons
·Non-economic loss entitlement is not applicable.
Based on those findings the Arbitrator determined:
1.That the Respondent pay the Applicant weekly compensation at the rate of $726.12 per week from the 4th July 2002 to the 12th September 2002 under Section 38 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s expenses under Section 60 of the Workers Compensation Act 1987 up to the sum of $1,153 on production of accounts or receipts.
3.That the Respondent pay the Applicant’s costs as agreed as [sic] assessed.
On 11 July 2003 the Respondent Worker lodged a further ‘Application to Resolve a Dispute’ in the Commission claiming lump sum compensation of $45,500.00 for permanent impairment of his back. The matter was allocated to a different Arbitrator who conducted a teleconference with the parties on 3 February 2004 and on that date, made the decision set out at paragraph 3, above.
SUBMISSIONS
Appellant Employer
The Appellant Employer submits that in support of the current claim, the Respondent Worker relies upon substantially the same medical evidence as previously relied upon. It is submitted:
In particular, he relies upon the report of Dr. Habib dated 1st November, 2002 in support of his claim for lump sum compensation. The only other medical evidence tendered by the Respondent Worker is a report of Dr. Ali dated 30th September, 2003. Dr. Ali is a psychiatrist. The report was served late and it was admitted into evidence on the basis that the content thereof would simply support the Respondent Worker’s claim for compensation pursuant to Section 67 and not to support the Respondent Worker’s Section 66 claim.
The Appellant Employer submits that it filed a Reply in which it raised issues in the dispute as to whether a medical dispute exists; whether the Respondent Worker is entitled to compensation under Section 66 of the Workers Compensation Act 1987 (the 1987 Act), and whether the Respondent Worker is estopped from denying that his condition has resolved.
The Appellant Employer’s further submissions may be summarised as follows:
· The Arbitrator in the earlier matter found that by early September 2002 the Respondent Worker’s injury had resolved; that on the balance of probabilities, had settled at the time of assessment by Dr Noll on 2 August 2002, and that the continued complaints were exaggerated or of non-organic or non-work-related causes.
·That in Blair v Curran (1939) 62 CLR 464 at 531, Dixon J stated: “A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior Judgment, decree or order necessarily established as the legal foundation or justification of its conclusion…”.
·It is not necessary that an identical issue be in dispute in both sets of proceedings. Accordingly, even though the Respondent Worker was only claiming weekly payments in the earlier proceedings, and is claiming lump sum compensation in the current proceedings, it does not prevent an issue estoppel arising. As stated by Dixon J in the case cited, the findings of the Commission which are legally indispensable to the conclusion create an issue estoppel. The Appellant Employer outlined its estoppel argument and objected to the matter being referred to an Approved Medical Specialist.
·An issue estoppel can occur in a negative sense such as in the instant case where it was found that the condition had resolved, that is, that the Respondent Worker no longer suffered an injury. In the earlier proceedings the Arbitrator was asked to make a determination regarding the Respondent Worker’s capacity to work. The Arbitrator found that by early September 2002 the injury had resolved. This finding was a finding that was indispensable to the ultimate determination regarding the capacity to work. An issue estoppel therefore arises from this finding.
·The evidence before the Arbitrators in both proceedings is substantially the same. There is no new orthopaedic evidence in the evidence from Dr Ali, which in any event, was tendered conditionally on the basis that it only went to quantum of the Section 67 claim and not to the Section 66 claim.
·Although not strictly an estoppel issue, the Arbitrator in the first matter made findings in relation to Dr Habib’s opinion and expressed her preference for the Appellant Employer’s doctors, Drs Edwards and Noll. In the absence of further medical evidence it is not open to the Arbitrator in the instant matter to come to an alternative view.
·The Arbitrator should have determined what the relevant findings were which were made by the Arbitrator in the first matter. He should have then determined which of those findings were germane to the issues before the Commission in relation to the instant matter. He was then required to determine whether issue estoppel arose as a consequence of the earlier decision. If the Arbitrator was of the opinion that no issue estoppel arose, he was required to give adequate reasons.
Respondent Worker
The Respondent Worker submits that no issue estoppel issue arises. The Arbitrator in the earlier matter found in favour of the Respondent Worker in relation to the issue of injury and substantial contributing factor. It is submitted that the only issues before the Commission in the current matter are injury, substantial contributing factor and permanent impairment. The Arbitrator in the earlier matter did not make any findings in relation to permanent impairment as it was not an issue that she was required to decide. As a result of the findings that the work injury had resolved by early September 2002 and that the injury had settled by 2 August 2002, the Arbitrator made a finding on the “ultimate issue” of incapacity, that is, that the Respondent Worker was only entitled to a closed period of weekly compensation.
The Respondent Worker further submits that the ultimate issue in relation to the current application is the level of permanent impairment, which has not been affected by any findings made by the Arbitrator in the earlier matter.
It is further submitted that the determination of the Arbitrator in the earlier matter did not directly dispose of the issue of permanent impairment. In Blair v Curran (1939) 62 CLR 464 cited by the Appellant Employer, Dixon J stated at 531, “The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion…”.
Finally, it is submitted that the matters that were necessary to establish no ongoing incapacity are distinguishable from matters necessary to establish the impairment. Moreover, a worker may have impairment arising out of an injury, which would not necessarily give rise to incapacity. The Arbitrator correctly referred this matter to an Approved Medical Specialist.
The Respondent Worker made no submissions as to whether the Arbitrator in the instant matter failed to give reasons or adequate reasons.
DISCUSSION AND FINDINGS
The fundamental issues in this appeal are whether the Arbitrator made an error of law in failing to give any or adequate reasons for his decision and in finding that no issue estoppel arises.
Reasons
As previously stated, there is nothing before me to indicate that the Arbitrator gave any or adequate reasons, for his decision. There is no transcript available, as the teleconference during which the decision was made, was not recorded. The conciliation phase of proceedings before an Arbitrator in which the Arbitrator is required to use his or her “best endeavours to bring the parties to a dispute to a settlement acceptable to all of them” (section 355 of the 1998 Act), is usually not recorded, as a matter of Commission practice. There is no requirement in the Commission ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’) for a teleconference to be recorded unless the proceedings have reached the arbitration phase. It is required that the arbitration phase of the proceedings be always recorded as a matter of policy and practice, whether or not this occurs at the teleconference or at a face to face hearing. While there is no statutory requirement for the Commission to record any proceedings, it is undertaken during the arbitration phase in the interests of fairness, utility and good practice.
An Arbitrator has a common law and statutory duty to provide adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) require the Commission to provide reasons for decisions in the determination of a dispute. See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247. This has been the subject of discussion in a number of decisions on appeal in the Commission, including Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 and Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31. Failure to provide adequate reasons is an error of law and may be a ground to revoke the decision of the Arbitrator. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (section 354 of the 1998 Act). Consequently, while lengthy and detailed written reasons are not necessarily required, reasons must nevertheless be given and must be adequate to convey why the decision was made. It is incumbent upon an Arbitrator to ensure that reasons for decision are given, that the reasons are adequate, and that they are available on the Commission record and to the parties.
In the unreported NSW Court of Appeal case, McIlvain v Gunnedah Shire Council NSWCA No. 40555/97 (2.10.98) (‘McIlvain’) it was held that the trial Judge failed to give reasons for finding that the appellant was not a deemed worker and as such this amounted to an error of law, and further, that the failure to give reasons for rejecting a relationship between an injury sustained on 13 October 1994 and the incapacity after 10 April 1995 also amounted to an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247 at 280 applied. In McIlvain Sheller JA said:
The failure by the trial Judge to give reasons for holding that the appellant was not a deemed worker is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376. As McHugh JA said in Soulemezis v Dudley (Holdings) Pty Limited 10 NSWLR 247 at 280 a superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding. It is necessary that the essential ground or grounds upon which the decision rests should be articulated and reasons given for preferring one conclusion to another. In the present case that judicial function has not been performed.
In Soulemezis v Dudley (Holdings) Pty Limited (supra) McHugh JA, also said that if an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons. He went on to say:
But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.
The history, rationale and scope of the duty to give reasons are discussed at length in Soulemezis v Dudley (Holdings) Pty Limited (supra). Mahoney JA said at 270:
In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it.
In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher JA said at 442 that the NSW Court of Appeal has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost: Clutha Ltd v Risby NSWCA No. 40460/94 (26.3.96) unreported, His Honour stated at 444:
In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.
The Commission is not a court but the principles outlined above apply, nevertheless. In the absence of reasons for the decision made by the Arbitrator, the substance of any submissions that may have been made to the Arbitrator, and of evidence or submissions from the Respondent Worker to me in relation to the claim that adequate or any reasons were not given by the Arbitrator, I am left to conclude that the Arbitrator made an error of law in that he has failed to determine the matter in a fair and lawful manner, and that sufficient grounds exist to revoke the decision pursuant to section 352(7) of the 1998 Act (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002)).
Issue estoppel
The question of issue estoppel is a significant threshold issue in the progress or otherwise, of the substantive dispute before the Arbitrator. As such, the determination of the issue has a critical impact on the outcome of the dispute between the parties. In the absence of reasons, it is clear that the decision cannot stand.
Role of Presidential Member on Appeal
Section 352(5) of the 1998 Act provides that an appeal is to be by way of review of the decision appealed against. The role of the Presidential Member is a specific and limited one. The review is not a hearing de novo and it was not the intention of the Legislature that a Presidential Member should conduct a full second hearing of the dispute. The review is essentially a rehearing in which the power of the Presidential Member to revoke and substitute a new decision is exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172. The conduct of the review in accordance with these principles is problematic, in the absence of reasons for the Arbitrator’s decision. I do not know what was put to the Arbitrator, nor the basis on which his decision was made. The role and function of a Presidential Member on appeal has been addressed in a number of Commission appeals, including, Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34; McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble 11” [2003] NSW WCC PD 22, and Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6.
The Workers Compensation Legislation Amendment Act 2004 commenced on 9 July 2004 and amends the 1998 Act by inserting at the end of section 352(7), “Alternatively, the matter may be remitted back to the arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Jurisdictional Error
Failure to provide any or adequate reasons by an Arbitrator is an error of law that goes to jurisdiction: Craig v State of South Australia (1995) 184 CLR 163 (‘Craig’). In that case the High Court found at 179, that such an error of law is jurisdictional error, which will invalidate any order or decision of the tribunal, which reflects it. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the High Court, at 351, referred to the decision in Craig, as follows:
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive … What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’), the High Court said that a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. However, the Court went on to say that the result of jurisdictional error might be that the decision is a nullity, but this is not always necessarily the case. Gleeson CJ said at 604:
To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.
His Honour also said at 603, that the requirement for people affected directly or indirectly by decisions, to know where they stand, means that finality (which is a possible outcome of the consideration of issue estoppel in the instant case) is a powerful consideration.
Whether or not the decision that is affected by error is a nullity, will depend upon the express or implied intention of the particular statutory provisions that govern it (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55). This must be determined by considering the language, objects and purpose of the particular statute, and the consequences of finding the decision invalid and of no effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
These considerations were succinctly addressed by Deputy President Fleming, with whose conclusions I agree, in Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31, as follows:
In this matter the relevant legislation is the Workers Compensation Acts (the 1987 Act and the 1998 Act). The purpose of the legislation is, inter alia, to provide a statutory benefits scheme for workers compensation claims. It is intended that the scheme be a comprehensive statement of workers’ entitlements and employers’ liabilities in relation to these claims. Section 9(1) of the 1987 Act provides that: ‘A worker who has received an injury…shall receive compensation from the worker’s employer in accordance with this Act.’ To this end, a decision that purports to determine those rights and liabilities on the basis of jurisdictional error, cannot be permitted to stand. The consequences of finding such a decision to be of no effect is that a dispute remains on foot before an Arbitrator and the applicant’s claim remains to be properly determined. Taking these factors into account, it is my view that the effect of jurisdictional error by the Commission in making a decision under the Workers Compensation Acts is to nullify that decision and deprive it of any effect.
In the instant matter, the issue estoppel dispute is critical, and depending on the decision made, may or may not have the effect of determining the substantive dispute that is before the Arbitrator. I find that the purported decision of the Arbitrator in the instant case is a nullity and that the issue estoppel dispute remains on foot, undetermined.
DECISION
The Arbitrator has failed to make a decision or determination in accordance with the Workplace Injury Management and Workers Compensation Act 1998.
The matter is remitted back to the arbitrator concerned for determination in accordance with these reasons.
COSTS
Clause 2 of Schedule 6 of the Workers Compensation (General) Regulations 1995 (the Regulations’) provides:
2Multiple claims or disputes in respect of any injury to be treated as a single claim or dispute
(1)In the event that more than one claim is made in respect of a particular injury or more than one dispute arises in respect of a claim, the maximum total costs for a type of activity or event in respect of the injury, regardless of how many times the activity or event is carried out, is the maximum set out in Column 4 of the table in relation to that type of activity or event.
(2)Subclause (1) does not apply if:
(a)a period of more than 12 months has elapsed between the making of the first claim in respect of the injury and the making of a subsequent claim (and the same applies to each claim subsequent to that claim), or
(b)a period of more than 12 months has elapsed between the notification of the first dispute in respect of the claim and the notification of a subsequent dispute (and the same applies to each dispute subsequent to that dispute), or
(c)the Commission or the Registrar orders that the claims or disputes are to be treated as separate claims or disputes for the purposes of the calculation or assessment of costs.
The parties may wish to consider the question of costs in the matter, in light of the provisions of the Legislation, including Clause 2 of Schedule 6 of the Regulations, outlined above, and are at liberty to make application for an order for, or assessment of, costs in due course.
Gary Byron
Deputy President
12 July 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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