BBY v The Geo Group Australia Pty Ltd

[2023] NSWPICPD 60

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60
APPELLANT:	BBY
RESPONDENT:	The GEO Group Australia Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A2-W2285/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	28 September 2023
ORDERS MADE ON APPEAL:	1.     The Member’s Certificate of Determination dated 11 October 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – the opportunity to make submissions is not an invitation to raise a new ground of appeal and leave to do so is required – University of New South Wales v Lee [2021] NSWPICPD 4 applied – s 15(1)(a) of the Workers Compensation Act 1987 – ascertainment of the deemed date of injury – Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 discussed and applied – whether error in the exercise of discretion to admit late evidence – Hamod v State of New South Wales [2011] NSWCA 375; Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Acorn Lawyers
Respondent:
Mr P Barnes, counsel and Ms Holly Ulmer, solicitor
Moray & Agnew Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr N Read
DATE OF MEMBER’S DECISION:	11 October 2022

INTRODUCTION AND BACKGROUND

1. The appellant worker was employed by The GEO Group Australia Pty Ltd (the respondent) as an immigration detention officer at the Villawood Detention Centre from 30 August 1998 to 31 November 2001. After ceasing work with the respondent, the appellant pursued employment in the nature of security and risk management with various other entities. The appellant ceased employment on or about 20 January 2017.

2. On 1 June 2017, the appellant made a claim for compensation under the Comcare workers compensation scheme, nominating the Department of Immigration and Border Protection as his employer. He alleged that he had suffered post-traumatic stress disorder, major depressive disorder and anxiety as a consequence of his duties, predominantly at the Villawood Detention Centre. The appellant concurrently lodged a claim for psychological injury against a subsequent Commonwealth employer.

3. The claims were denied and the appellant commenced proceedings in the Administrative Appeals Tribunal (AAT) against both the respondent and the subsequent employer. Prior to the matter being determined, the appellant discontinued the claim against the Department of Immigration and Border Protection on the advice that he was in fact employed by a different, non-government entity that had contracted to the Department of Immigration and Border Protection to perform the work. The claim against the subsequent employer proceeded to a determination on 7 November 2019 in which a Senior Member of the AAT determined that the appellant’s work with the respondent, as well as the appellant having criminal charges laid against him by the Federal Police, contributed to the appellant’s psychological condition.

4. The Senior Member found that the work with the Commonwealth employer “did not contribute to a significant degree to the ailment [the appellant] suffered in 2016 which resulted in his incapacity to work.”[1] (emphasis in original) That is, the appellant did not suffer an “injury” for the purposes of the relevant Commonwealth legislation.

   [1] XPCK v Comcare (Administrative Appeals Tribunal, Dr I. Alexander, Senior Member, 7 November 2019, 2017/7282, unreported), [170] (Application to Resolve a Dispute (ARD), p 185).

5. On 19 January 2021, the appellant, through his solicitors, made a claim for weekly payments of compensation from 20 January 2017, as well as for treatment expenses. The appellant nominated the respondent as his employer and described the date of injury as having occurred between 3 August 1998 and 31 November 2001.[2] In support of his claim, the appellant attached a report of Dr Thomas Oldtree Clark, psychiatrist, dated 13 November 2020.

   [2] ARD, p 17.

6. Although some correspondence passed between the appellant and the respondent’s insurer, a determination as to liability for the claim was not made by 10 June 2021, when the appellant commenced proceedings in the Personal Injury Commission.

7. The respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 July 2021, disputing liability for the claim on a number of bases.[3] Relevantly, the respondent:

   (a)    disputed that the appellant had given notice of the injury before ceasing his employment, as required by s 254 of the 1998 Act;

   (b) asserted that the appellant had failed to make a claim for compensation within 6 months of the injury as prescribed by s 261(1) of the 1998 Act;

   (c)    determined that the appellant had not provided evidence of a reasonable cause for not having made the claim within 3 years of the injury (s 261(4)(a) of the 1998 Act), and

   (d)    considered that there was no evidence that the appellant suffered permanent disablement so that the appellant could not make the claim outside of the 3 year period (s 261(4)(b) of the 1998 Act).

   [3] Reply to Application to Resolve a Dispute (Reply), Application to Admit Late Documents (AALD) dated 7 July 2021, pp 14–21.

8. The dispute was listed for conciliation and arbitration on 2 November 2021 before a non-presidential member of the Commission, Member McDonald, at which time the appellant sought to amend the particulars of injury. The injury was originally pleaded in the ARD as a “personal” injury, that is, an injury pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). The amendment sought described the injury as an injury pursuant to s 4(b)(i) of the 1987 Act, which was a “disease” injury. The description of injury provided greater detail in respect of the mechanism of injury. Member McDonald declined to grant the appellant’s application, which was opposed by the respondent, and the appellant sought an adjournment. The adjournment application was also refused, however after being informed by the appellant that he intended to appeal the refusal to allow his proposed amendment, the Member granted an adjournment for that purpose. Before the arbitration was adjourned, the appellant withdrew his claim for weekly compensation. The claim thereafter proceeded only on the basis of a claim for treatment expenses pursuant to s 60 of the 1987 Act.

9. The appellant lodged an appeal from the Member’s interlocutory decision to refuse the amendment to the pleadings in respect of the injury description, and the appeal was allocated to Parker SC ADP. Acting Deputy President Parker SC issued a Determination of Appeal Against a Decision of the Commission Constituted by a Member, in which he:

   (a)    granted leave to appeal the interlocutory decision;

   (b)    allowed the appeal;

   (c)    revoked the Member’s determination to refuse leave to amend the pleadings in respect of the description of injury, and

   (d)    amended the pleadings in accordance with appellant’s application.

10. The Acting Deputy President remitted the matter to another Member of the Commission for determination.

11. The dispute came before Member Read for arbitration on 24 August 2022. The Member issued a Certificate of Determination on 11 October 2022. He determined that the date of the appellant’s injury was deemed to be 20 January 2017 and that the appellant’s claim was barred by operation of s 261(1) of the 1998 Act.

12. The appellant appeals that decision.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

   “(3)    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 and enabling legislation without holding any conference or formal hearing.”

2. Both parties agree that this appeal can be determined on the basis of the documents and their submissions.

3. I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

2. The appellant’s grounds of appeal raise a complaint that the Member erred in refusing the admission of a statement dated 22 August 2022, which was annexed to an AALD of the same date and made by the appellant’s solicitor, Mr James Govan. The appellant sought to tender the statement at the arbitration on 24 August 2022. The Member’s decision to refuse the admission of the document was delivered as an ex tempore decision at the commencement of the arbitration.

3. Section 352(3A) of the 1998 Act provides that there is no appeal under s 352 against an interlocutory decision except with the leave of the Commission.

4. The respondent submits that that decision was in the nature of an interlocutory decision, and therefore leave is required to appeal from it. The appellant asserts that the decision is not interlocutory and leave to appeal it is not required because it affected the final decision made by the Member, and leave is not required when the final decision is the subject of the appeal.

5. The decision made by the Member to decline to admit the statement of Mr Govan was clearly interlocutory in nature. However, if an interlocutory determination is made as a step in the process leading up to final judgment, leave to appeal the interlocutory decision will normally be granted.[4]

   [4] Crowley v Glissan [1905] HCA 13; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; Bunning v Cross [1978] HCA 22.

6. I have summarised below the Member’s reasons for reaching his final determination and I have read the transcript of the proceedings (T) that took place on 24 August 2022. The Member dealt with the admission of the AALD (wrongly referred to as dated 28 August 2022) at T2.34 to T14.28.

7. The document is not in evidence before the Commission. The appellant indicated that Mr Govan’s statement and its annexures addressed the issue raised in respect of when the appellant gave notice of injury and when the claim for compensation was made. He said that it addressed matters pertaining to the steps taken by Mr Govan to pursue the appellant’s workers compensation claim, and in relation to an event occurring in 2000.

8. The Member’s consideration of the admission of the AALD and his rejection of the document were clearly steps taken in the process of determining the issues in dispute and in arriving at his final determination. So far as is necessary, in accordance with s 352(3A) of the 1998 Act, I grant leave to the appellant to appeal that decision. The grounds of appeal relevant to that decision are discussed below.

THE EVIDENCE

1. Given the limited issues that the Member was required to determine, it is not necessary to summarise the whole of the evidence in this matter. The summary that follows includes only the evidence pertaining to the issues as to the deemed date of the appellant’s injury, when the appellant first became aware of his injury, when he gave notice of his injury and whether he made his claim within the time frames set out in s 261 of the 1998 Act.

The appellant’s statement evidence

1. The appellant provided a statement dated 7 June 2021.[5] He confirmed that he had been employed by the respondent from 30 August 1998 to 30 November 2001. He provided details of the employment he pursued after leaving his employ with the respondent, including subsequent employment (the subsequent employer) in which he was exposed to sensitive information and investigation of the work of criminals and criminal organisations, following which he developed paranoia. He said that he left that employment and pursued other work. He said that by 2015, he was dependent upon anti-depressant medication. He disclosed that in 2016, he was subjected to criminal investigation and charges were laid on 2 December 2016, following which there was a protracted prosecution, ultimately resulting in no convictions being recorded. He stated that the “prosecution took an enormous toll” on him and that he “became incapable of working from mid-January 2017.”[6]

   [5] ARD, pp 1–3.

   [6] Appellant’ statement dated 7 June 2021, ARD, p 2, [15].

2. The appellant said that he first suffered psychological difficulties in 1998 in relation to his work with the respondent and he was formally diagnosed with depression by his general practitioner, who referred him to a psychiatrist, Dr Souza. He said he has been on anti-depressant medication since then. The appellant advised that he had consulted Mr Stephen Woods, psychologist, who referred him to Dr Anthony Henderson, psychiatrist, who continued to treat the appellant.

3. The appellant stated that the only source of income he had since February 2017 was income protection payments paid pursuant to an insurance policy in place with his latest employer. The appellant asserted that it appeared generally accepted in the medical evidence adduced in the proceedings in the AAT that the traumatic work with the respondent was “the genesis of what would become PTSD and Major Depression/Anxiety”. The appellant asserted that the Senior Member in the AAT accepted that his employment with the respondent “contributed, to a significant degree to the deterioration of his pre-existing psychological condition which resulted in an incapacity for work.”[7]

   [7] Appellant’ statement dated 7 June 2021, ARD, p 3, [26].

4. The appellant provided a supplementary statement dated 12 August 2022.[8] He advised that he first gave notice of his injury in about July or August 2000 when he was required to deal with a hunger strike by the detainees that lasted for five days. He said that, a few days after the incident, he spoke to the respondent’s residential psychologist complaining of flash backs, nightmares and night sweats. He said that he was given four weeks’ leave at that time. The appellant listed other traumatic events that occurred when in the employ of the respondent but said that he did not recall lodging a claim in respect of those events.

   [8] AALD dated 12 August 2022, pp 2–4.

5. The appellant advised that he did not give notice of injury about the traumatic events because he did not know he was required to do so. Further, he said that he was unaware that he was developing a psychological injury that would result in a compensation claim much later. He said that he made a timely claim for compensation as soon as he became aware of a connection between his psychological injury and his employment with the respondent, which was in January or February 2017.

6. The appellant pointed to the medical evidence from his treating psychologist, Mr Woods, who, in a report dated 6 February 2017, diagnosed a major depressive disorder with co-morbid post-traumatic stress disorder and noted that the experiences in the employ of the respondent were the most traumatic. The appellant says that, at the time, he did not consider making a claim because he was severely incapacitated by his psychological condition, and he was dedicating his time and energy into preparing his defence to the criminal charges laid against him in December 2016.

7. The appellant advised that on 20 June 2017, he lodged a claim under the Comcare scheme for psychological injury against the Department of Immigration and Border Protection and his subsequent employer, believing that the Department of Immigration and Border Protection was his employer, who was a Commonwealth employer. He said that on or about 9 October 2017, he received advice from a Comcare delegate that the employer was a different entity (the respondent) and not a Commonwealth employer. The appellant stated that he then retained Mr James Govan from Acorn Lawyers who he relied upon for advice and management of his claim.

8. The appellant confirmed that he continued to receive income protection payments and in 2021 received a lump sum payment for total and permanent disability. He asserted that he was seriously and permanently disabled as a result of his psychological injury.

Documentary evidence

1. A Workers Compensation Claim Form provided by Comcare and submitted by the appellant on 1 June 2017 was in evidence. The information recorded in that document disclosed that the appellant nominated the Department of Immigration and Border Protection as his employer and that the appellant first noticed his symptoms on 6 February 2017.[9]

   [9] ARD, pp 4–7.

2. An additional Workers Compensation Claim form provided by Comcare and completed by the appellant on the same date was in evidence, which was directed to the subsequent employer and nominated the same date in respect of when the appellant first noticed his symptoms.[10]

   [10] ARD, pp 12–16.

3. On 19 January 2021, Mr Govan of Acorn Lawyers wrote to GIO, the respondent’s insurer, claiming weekly payments and treatment expenses commencing from 20 January 2017 to date and continuing. The letter nominated the date of injury as 3 August 1998 to 31 November 2001 and described the injury as “various frank injuries of indeterminate date”.[11]

   [11] ARD, p 17.

4. Further communications between the appellant’s solicitor and GIO were exchanged in relation to the delay by the respondent in determining the claim.[12]

   [12] ARD, pp 18–24.

5. The letter dated 9 October 2017 from the Comcare delegate referred to by the appellant in his statement 12 August 2022 was in evidence.[13] The delegate advised the appellant that at the time the appellant worked at Villawood Detention Centre, the Department of Immigration and Border Protection had contracted with Australasian Correctional Services Pty Ltd to operate and manage the facility, which entity in turn contracted with the respondent. The delegate added that the respondent was not a contractor to the Commonwealth.

   [13] AALD dated 12 August 2022, pp 5–6.

LEGISLATION

1. Section 15 of the 1987 Act relevantly provides as follows:

   “15    Diseases of gradual process—employer liable, date of injury etc

   (1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process:

   (a) the injury shall, for the purposes of this Act, be deemed to have happened:

   (i) at the time of the worker’s death or incapacity, or

   (ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

   (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due,

   …”.

2. Sections 254 and 261 of the 1998 Act relevantly provide:

   “254 Notice of injury must be given to employer

   (1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

   (2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.

   (3)     Each of the following constitutes special circumstances—

   (a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,

   (b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,

   …”.

   And:

   “261  Time within which claim for compensation must be made

   (1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

   (2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

   (3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

   (4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—

   (a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

   (b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

   …”.

THE MEMBER’S REASONS

1. The Member provided a brief summary of the procedural background to the matter. He noted that, at the telephone conference on 3 August 2022, the appellant amended the pleadings to nominate the date of injury as deemed to have occurred on 19 January 2021, which was said to be the date upon which the appellant first made a claim for weekly compensation. The Member noted that, as agreed between the parties, there was a “preliminary threshold” issue in dispute as to whether the appellant was barred from claiming compensation because of the operation of s 254 and s 261 of the 1998 Act, and a determination of that dispute also required consideration of the question of the appellant’s date of injury for the purpose of s 15(1) of the 1987 Act.

2. The Member summarised the appellant’s employment history. He noted that the appellant had also been charged with criminal offences, to which the appellant pleaded guilty in December 2016. He further noted that the appellant conceded that the criminal charges and the process that followed had a significant impact upon him, and he ceased work in January 2017. The Member observed that there was no evidence that the appellant suffered any incapacity for work prior to that time.

3. The Member reviewed the evidence. He referred to the report of Dr Henderson dated 27 April 2017, in which Dr Henderson diagnosed the appellant as suffering from Major Depressive Disorder and Panic Disorder and detailed traumatic experiences suffered by the appellant in his employment and during the police investigation. The Member noted that the appellant had made a claim for compensation, mistakenly against Comcare, in which the appellant alleged he suffered from Post Traumatic Stress Disorder, Major Depressive Disorder and Anxiety and that he had first noticed those symptoms on 6 February 2017. The Member further noted that the appellant said he first sought treatment from Dr Henderson on 1 June 2007. The Member considered that that date must have been a typographical error because the appellant had said that he first noticed the symptoms on 6 February 2017.

4. The Member pointed out that the appellant was advised by Comcare on 9 October 2017 that his employer was not a Commonwealth employer, and it was apparent that he would be required to make the claim against the respondent. The Member observed that the appellant had brought a claim against the subsequent employer in the AAT, following which the appellant was represented by experienced counsel and the solicitors who represented him in the current proceedings. The Member referred to the reasons provided by the Senior Member in the AAT decision dated 7 November 2019 and noted that the appellant did not make a claim against the respondent for over a year after having received the unfavourable decision.

5. The Member observed that the claim made in the current proceedings sought weekly compensation from 20 January 2017 on an ongoing basis, as well as treatment expenses. The Member said that, in his statement dated 7 June 2021, the appellant had stated that he had first experienced psychological symptoms in 1998, as a result of work with the respondent, was first diagnosed with depression in 2007 and had been prescribed anti-depressant medication since that time.

6. The Member referred to the appellant’s extract of part of a paragraph from the AAT’s decision that purportedly said that the appellant’s employment with the respondent “had contributed, to a significant degree to the deterioration of his pre-existing psychological condition which resulted in an incapacity for work.”[14] The Member observed that the appellant had omitted to include in that quotation the words “and the AFP raid in November 2016” that was also said to have contributed to the deterioration in the condition. The Member said that the reason for the omission was not “explored” but possibly could have been explained as an attempt to mislead the Commission by putting himself in a better position to meet the requirement in s 4(b)(i) of the 1998 Act that the employment was the main contributing factor to the injury. The Member remarked that in any event, he was not bound by the findings in the AAT.

   [14] Appellant’s statement dated 7 June 2021, ARD, p 3, [26].

7. The Member reproduced a significantly long passage from the appellant’s statement dated 12 August 2022, summarised by me at [28] to [32] above, in which the appellant stated that:

   (a)    his failure to give notice of his injury was caused by his ignorance of the requirement to do so, and he was unaware of his developing psychological condition, and

   (b)    he gave “timely” notice of his claim for compensation when he first became aware of the connection between his employment and his psychological condition, which was in or about January or February 2017.

8. The Member noted that the appellant referred to the report of Mr Woods dated 6 February 2017 in which Mr Woods identified the appellant’s experiences with the respondent as being the most traumatic. He further noted the appellant said that he did not lodge a claim at that time because of his severe incapacity and because he was involved in preparing his defence to the criminal charges that were laid against him in December 2016. The Member considered that the appellant’s evidence was confusing because the appellant had pleaded guilty to the charges on 13 December 2016.

9. The Member cited s 254 of the 1998 Act and noted that the appellant bore the onus of proving, on the balance of probabilities, the matters referred to in that section. He said he firstly had to determine the date of injury, in accordance with s 15(1) of the 1987 Act. He referred to GIO Workers Compensation (NSW) Ltd v GIO General Ltd[15] and said that the reference to compensation in that section was a reference to the incapacity for which the compensation is claimed. The Member referred to the appellant’s submission that the notice provisions did not apply to him because of the operation of s 15(1) of the 1987 Act, which deemed his injury to have occurred in January 2021 when he made his claim for compensation. The Member further referred to the respondent’s submission that the deemed date was in July 2000 when the appellant was incapacitated for work because of events during the detainees’ hunger strike.

   [15] (1995) 12 NSWCCR 187 (GIO).

10. The Member indicated that he was not persuaded by the respondent’s submission. He said that the appellant’s claim was that he suffered a disease as a result of traumatic exposure between 1998 and 2001 and not simply the July 2000 trauma. That is, the “nature and conditions” claim could be distinguished from the event in 2000. He added that he was also not persuaded that the date of injury should be the date he made the claim for compensation on the respondent, which ignored the fact that the appellant made a valid claim for weekly compensation in January 2021. He said that it was immaterial that the appellant had discontinued the weekly payments claim because to do so did not nullify the fact that a claim had been made.

11. The Member observed that this case does not involve a claim for lump sum compensation but involved a claim made for weekly compensation and treatment expenses that were the subject of a claim made on the same day. He described those claims as “inextricably connected.”[16] The Member pointed to the appellant’s inability to cite any authority supporting the notion that a claim for weekly payments of compensation and a claim for treatment expenses could have separate dates of injury, particularly in circumstances where the claims commenced from the same date.

    [16] BBY v The GEO Group Australia Pty Ltd [2022] NSWPIC 636 (reasons), [55].

12. The Member was critical of the notion that a claim for weekly payments could be discontinued in order to create a different date of injury so as to avoid being caught by the statutory limitations in ss 254 and 261 of the 1998 Act. The Member said that the 2021 claim was for weekly payments from 20 January 2017 which was consistent with the appellant’s evidence that his only source of income from February 2017 was the income protection payments he received. He added that there was no evidence that the appellant was incapacitated prior to that date.

13. The Member concluded that, in this case, the deemed date of the injury was the date upon which the appellant was incapacitated by the injury the subject of the claim, that is 20 January 2017.

14. The Member noted that the appellant first gave notice of his injury on 19 January 2021, almost four years after the deemed date of injury. He observed that the appellant had not given notice of his injury before he left the employment with the respondent or as soon as possible after the injury, so that the appellant was required to establish that there were special circumstances in accordance with s 254(3) of the 1998 Act. The Member said that the appellant submitted that the respondent was not prejudiced by the delay because the respondent had initiated a factual investigation, but the Member observed that the events complained of occurred approximately 21 years earlier, which was a very significant delay. The Member referred to the decision of Acting Deputy President O’Grady (as he then was) in Westlake v Sydney Symphony Orchestra Subscribers Committee[17] as authority to say that the effluxion of time forms a reasonable basis upon which a presumption of prejudice may be made. The Member discussed the respondent’s submission that it was extremely prejudiced by the delay and discussed the lack of evidence to support that submission. He concluded that the respondent was not prejudiced by the failure to give notice of the injury within the time frame set out in s 254 and, as the appellant was only required to satisfy one of the special circumstances referred to in s 254(3), the appellant’s failure to give notice of the injury was not a bar to the recovery of compensation.

    [17] [2009] NSWWCCPD 12, [69].

15. The Member proceeded to consider whether the appellant was precluded from recovering compensation because of the operation of s 261 of the 1998 Act. He reproduced the section, emphasising s 261(4), which provides that a failure to make a claim within the requisite time is not a bar to recovery if it was caused by ignorance, mistake, absence from the State or other reasonable cause, and:

    (a)    the claim was made within three years, or

    (b)    if not made within 3 years, the claim was in respect of the death or serious and permanent disablement of the worker.

16. The Member also referred to s 261(6), which provides that, for the purpose of s 261, the injury is taken to have been received when the worker first becomes aware of the injury. The Member noted that the appellant’s claim was made on 19 January 2021, and that he had determined the appellant’s deemed date of injury to be the date of incapacity, which was 20 January 2017. He determined that the appellant had first become aware that he had suffered an injury in at least January or February 2017, when he had been advised of the connection between his psychological condition and his employment with the respondent. The Member said that that determination was consistent with the appellant’s statement evidence. The Member observed that, as the appellant had become aware of his injury in January or February 2017, he was required to make a claim on the respondent within 6 months, which would have been by September 2017. The Member remarked that the appellant did not make a claim until almost four years after the date of injury, so that he was precluded from making a claim unless he fell within the provisions of s 261(4) of the 1998 Act.

17. The Member reasoned that the claim made against Comcare on 6 June 2017 did not constitute a claim made on the respondent because there was no evidence that the respondent was given notice of the claim at that time. The Member said that the appellant’s assertion that the claim made on Comcare was a valid claim could not be accepted. The Member referred to the appellant’s submission that his failure to make the claim was occasioned by ignorance, mistake or other reasonable cause. The Member pointed out that the appellant was made aware that the respondent was not an employer covered by the Comcare scheme on 9 October 2017, following which he retained the solicitors who represent him in these proceedings. The Member said that, at that time the appellant elected to pursue his claim against his subsequent employer, a claim which the AAT ultimately rejected in November 2019. The Member observed that the claim against the respondent was still not made until over a year after that decision. The Member referred to the fact that the appellant was represented by experienced legal representatives that practise in the Commission and said that they ought to have advised the appellant of his rights and ought to have been aware of the time limitations for making a claim.

18. The Member said it could not be accepted that the appellant was ignorant of his obligation to make a claim against the respondent. Further, the Member did not accept that the appellant was prevented by his psychological condition from making a claim or by his preparation of a defence against his criminal charges. The Member reiterated that the appellant pleaded guilty to those offences on 13 December 2016. The Member said that, in any event, the appellant could have made a claim shortly after he was advised that the respondent was not an employer covered by the Comcare scheme.

19. The Member concluded that he was not satisfied that the appellant’s failure to make a claim for compensation was occasioned by ignorance, mistake or other reasonable cause and therefore the appellant could not recover compensation against the respondent. He added that it was not necessary to consider whether the claim was in respect of an injury that resulted in serious or permanent disablement. The Member entered an award for the respondent in respect of the claim for treatment expenses.

20. The Certificate of Determination issued on 11 October 2022 records:

    “The Commission determines:

    1.     The date of injury is 20 January 2017 (deemed).

    2. The [appellant’s] claim is barred by section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998.

    3.     Award for the respondent on the [appellant’s] claim for medical expenses.”

GROUNDS OF APPEAL

1. The appellant asserted seven grounds of appeal in the Appeal Against Decision of Member (appeal). Following lodgment of the appeal, a delegate of the President issued a direction dated 8 November 2022 providing for a date by which the respondent’s Notice of Opposition to Appeal Against Decision of Member (opposition) was to be lodged and a date by which the appellant was to lodge any submissions in reply to the respondent’s opposition.

2. On 11 November 2022, the delegate forwarded to the parties a copy of the transcript of the arbitration proceedings and directed the appellant to file and serve any submissions he wished to make in respect of the transcript by 25 November 2022. He directed that the respondent lodge any submissions with its opposition.

3. On 14 November 2022, the appellant filed “supplementary submissions” which were said to be relevant to matters arising from the transcript. The submissions raised a further ground of appeal. The respondent opposed the application for leave to raise a further ground of appeal.

4. The grounds of appeal, including the eighth ground, are expressed as follows:

   (a)    Ground One: The Member committed errors of law in his interpretation and application of section 15 of the 1987 Act by focusing upon a claim having been made for weekly compensation in the letter of claim;

   (b)    Ground Two: The Member committed errors of law by determining the claims for weekly compensation and medical expenses pursuant to section 60 of the 1987 Act were “inextricably linked”;

   (c)    Ground Three: The Member committed errors of law by determining the date of injury was 20 January 2017 (deemed);

   (d)    Ground Four: The Member committed errors of law by making findings/determinations of which the appellant was not on notice;

   (e)    Ground Five: The Member committed errors of fact by determining the claim for weekly compensation was discontinued for the purpose of circumventing the limitation periods in ss 254 and 261 of the 1998 Act;

   (f)    Ground Six: The Member committed errors of law in his application and interpretation of section 261 of the 1998 Act;

   (g)    Ground Seven: The Member committed error of discretion by not allowing the appellant’s solicitor’s statement to be admitted into evidence, and

   (h)    Ground Eight: The Member provided inadequate reasons for his decision to not admit the solicitor’s statement.

Whether leave should be granted to raise a late ground of appeal

1. Although the appellant was provided with the opportunity to make further submissions on receipt of the transcript, that opportunity was not one in which the appellant was given the liberty of raising a new ground of appeal.[18] The appellant requires leave to do so. The appellant did not make an application for leave to raise a new ground of appeal in those supplementary submissions made after the receipt of the transcript.

   [18] University of New South Wales v Lee [2021] NSWPICPD 4 (Lee), [29].

2. In its opposition, the respondent indicates that it objects to the appellant being able to bring an additional ground of appeal. The respondent submits that, in the circumstances where the 28 day period within which to lodge an appeal had expired before the new ground was raised, the appellant is required to seek leave to raise a fresh ground of appeal, which he has not done.

3. The respondent asserts that:

   (a)    the basis of the complaint made by the appellant would have been apparent to him;

   (b)    the “late provision of the transcript”[19] was not a reason for failing to plead all grounds of appeal in the appeal application,[20] and

   (c)    practitioners are required to keep notes of what occurs in proceedings.[21]

   [19] Respondent’s submissions, [128].

   [20] NSWPolice Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill), [113].

   [21] Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287.

4. The respondent adds that the recording of the proceedings was available at the request of the parties. The respondent submits that the purpose of the supplementary submissions was to afford the appellant the ability to provide detail of the specifics of its appeal.[22]

   [22] Challita v Assetlink Services Pty Ltd [2014] NSWWCCPD 9 (Challita).

5. The respondent contends that there were no exceptional circumstances to permit the Commission to extend the time to raise a further ground of appeal. The respondent says that, unless leave is granted to raise the late appeal ground, it makes no submissions as to the merits of the allegation of error on the part of the Member in respect of his reasons for refusing to admit the late documents. The respondent submits, however, that if leave is granted, it opposes the ground of appeal and seeks the opportunity to lodge further submissions in response.

6. The appellant responded to the respondent’s submissions in his submissions in reply. He submits that the respondent was on notice from the time of the appeal being filed that the submissions would be amended after the receipt of the transcript. The appellant points out that the Member’s determination to refuse the admission of the documents was an ex tempore decision. The appellant indicates that the respondent was advised of his additional appeal ground well before the respondent was required to respond to the appellant’s submissions, and so there was no prejudice to the respondent to allow the late ground of appeal.

7. The appellant refers to the respondent’s reliance upon Challita and Gurnhill and submits that both authorities can be distinguished. The appellant says that unlike this case, in Challita, substantive submissions had not previously been made, and the grant of leave to raise a late issue in this case does not require a new timetable to be set. Further the new ground of appeal is merely an extension of Ground Seven. The appellant submits that, in Gurnhill, unlike the present matter, the new ground of appeal was raised in the appellant’s submissions in reply. The appellant says that the respondent has had the opportunity to respond, which it did, without occasioning any delay in the proceedings and without any prejudice to the respondent.

Consideration

1. The appellant lodged the supplementary submissions raising the new ground of appeal on 14 November 2022, just one week after the initiating appeal. According to the timetable set by the delegate of the President, the respondent had until 20 December 2022 to respond to all the appeal grounds, including the new ground of appeal. Despite the fact that the respondent indicated that it did not respond to the ground because the appellant had not sought leave to raise it, the respondent indicated its objection to leave being granted and its opposition to the ground of appeal. The respondent referred to its submissions in respect of Ground Seven, in which it indicated that the Member gave reasons for his decision, and there was no error on the part of the Member.

2. In those circumstances, and in the context of my discussion below about the merits of the new ground of appeal, I grant the appellant leave to raise Ground Eight of the appeal. As indicated by Snell DP in Lee, the granting of leave in these circumstances is not intended to provide a general basis upon which leave will be granted to add a new ground of appeal, without leave, after the receipt of the transcript.

SUBMISSIONS

As to Ground One

The appellant’s submissions

1. The appellant points out that the appellant’s letter of claim claiming weekly payments of compensation from 20 January 2017 and treatment expenses was served on 19 January 2021. The appellant says that the claim for weekly payments was discontinued on the day of the arbitration before Member McDonald so that the dispute remaining to be determined by Member Read was in relation to a claim for medical expenses only.

2. The appellant submits that, as he submitted to the Member, the claim was not in respect of the appellant’s death or incapacity so that s 15(1)(a)(ii) of the 1987 Act provided for the date of injury to be the date of the claim. The appellant refers to Gow v Patrick Stevedores[23] as authority to say that the deemed date of injury is the date the claim is made. The appellant provides a list of authorities that he says explains why the date of injury is the date of the claim. The appellant says that the Member did not accept his submissions. He quotes from [53] to [56] of the Member’s reasons addressing those submissions, summarised by me at [48] to [52] above, and refers to [74] to [75] of the reasons, which are summarised by me at [55] to [56] above.

   [23] [2002] NSWCC 60 (Gow).

3. The appellant submits that the Member erred in determining the deemed date of injury was 20 January 2017, in that the Member’s conclusion is contrary to authority. The appellant quotes passages from Alto Ford Pty Ltd v Antaw,[24] Stone v Stannard Brothers Launch Services Pty Ltd,[25] Inghams Enterprises Pty Ltd v Thoroughgood,[26] and SAS Trustee Corporation v O’Keefe.[27]

   [24] [1999] NSWCA 234 (Alto Ford).

   [25] [2004] NSWCA 277 (Stone).

   [26] [2014] NSWCA 166 (Thoroughgood).

   [27] [2011] NSWCA 326 (O’Keefe).

4. The appellant submits that the Member erred in his interpretation of s 15 of the 1987 Act by focusing on the fact that a claim had been made for weekly payments of compensation. The appellant says that, in accordance with Basten JA’s observations in Thoroughgood, the Member was required to limit his considerations to the claim before him and not focus on the discontinued claim. He submits that, had the Member focussed on the claim before him, it would have been clear to him that it was not a claim for “incapacity” for the purposes of s 15 of the 1987 Act, but was a completely different claim. The appellant reiterates that the claim for medical expenses was a different claim than the claim for incapacity for the purposes of s 15(1)(a)(i) of the 1987 Act, as the authorities referred to above establish.

5. The appellant asserts that because the claim before the Member was for treatment expenses, on the basis of s 15 the deemed date was not based on his incapacity but was the date of the claim for compensation. The appellant submits that, consistent with the above authorities, s 15(1) provided for the fixing of a date of injury to a claim related to incapacity and a different date for a different type of claim. The appellant submits that, therefore, even if the claim for weekly compensation was made in the same letter of claim and had not been discontinued, a determination ought to have been made that the claim for treatment expenses had a different date to that of the weekly compensation.

6. The appellant submits that the Member failed to give regard to this submission and the Member thus erred in law. The appellant refers to the Member’s remark that it was immaterial that the appellant had discontinued the weekly payments claim because to do so did not nullify the fact that a claim had been made. He submits that that observation further demonstrates the Member’s misapplication and misinterpretation of s 15 of the 1987 Act. The appellant adds that the fact that he may be able to bring a claim for the weekly payments at a later stage did not matter to the identification of the date of injury.

The respondent’s submissions

1. The respondent says that the letter dated 19 January 2021 claimed weekly compensation from 20 January 2017 on an ongoing basis and treatment expenses. The respondent submits that it is significant that the claim for treatment expenses was for the same period as the weekly payments and was particularised from that date.

2. The respondent refers to the appellant’s submission that the only claim requiring adjudication by the Member was the claim for treatment expenses and asserts that the submission ignores the fact that the Member was required to determine the dispute in its totality, arising from the claim as originally made. The respondent refers to the primary objective of the Commission, which is that of dispute resolution. The respondent says that the appellant’s submission that the claim was not for death or incapacity overlooks the fact that the claim as originally made was in respect of incapacity. The respondent contends that the appellant clearly has an incapacity, which is confirmed by the letter of claim.

3. The respondent submits that the appellant was clearly aware of his injury when he received the advice from Comcare in correspondence dated 9 October 2017 that his claim should be brought against the New South Wales insurer. The respondent says that the appellant then sought legal advice and representation.

4. The respondent indicates that it issued a notice pursuant to s 78 of the 1998 Act, raising issues in respect of ss 254 and 261 of the 1998 Act and asserts that it is apparent that the appellant, in discontinuing the weekly compensation claim, was attempting to evade or avoid those provisions and potentially bring his weekly payments claim at a later stage.

5. The respondent notes that the appellant relies upon a number of authorities to support his argument as to the deemed date of injury. The respondent submits that Gow and the additional authorities relied upon can be distinguished as they involved both a claim for weekly payments of compensation and a lump sum claim. The respondent quotes a passage from the judgment of Geraghty CCJ in Gow, wherein his Honour observed that the worker was not incapacitated for work and there was no death, so that the only provision that applied was s 16(1)(a)(ii) of the 1987 Act, which was in the same terms as s 15(1)(a)(ii).[28] The respondent provides extracts from the judgments in Stone and Thoroughgood and the review by Handley JA of the observations made by Roche DP in Thoroughgood in respect of the application of P&O Berkeley Challenge Pty Ltd v Alfonzo[29] and of GIO.

   [28] Gow, [13].

   [29] [2000] NSWCA 214 (Alfonzo).

6. The respondent cites Bennell v Willoughby Council,[30] in which Member Wright (a non-presidential Member of the Commission) considered the deemed date of injury in respect of a claim for treatment expenses. The respondent noted that Member Wright observed that the date of injury could be different if there was no date of incapacity for weekly compensation and, in the circumstances of the case, the date the worker first sought treatment was the deemed date of injury.

   [30] [2022] NSWPIC 52 (Bennell).

7. The respondent says that in the earlier appeal from the interlocutory decision, Parker SC ADP did not determine the deemed date of injury in respect of these proceedings. The respondent recites the procedural history of this matter and submits that the Member correctly identified the facts as to when the appellant suffered an incapacity, made his claim for compensation, knew that Comcare was not the relevant insurer, and retained legal representation. The respondent asserts that the Member correctly observed that the appellant did not pursue his claim for weekly payments and treatment expenses until more than 12 months after the adverse AAT decision was handed down. The respondent refers to the Member’s reasoning that:

   (a)    despite the fact that the claim for weekly payments was discontinued, that claim could not be ignored when determining the deemed date of injury;

   (b)    the authorities referred to by the appellant were readily distinguishable, and

   (c)    the appellant did not cite any authority to support the assertion that a claim for weekly payments and a claim for treatment expenses could have different deemed dates of injury.

8. The respondent submits that, having applied the relevant legislation to the facts, the Member concluded that the deemed date of injury was the date of incapacity, that is, 20 January 2017, which conclusion was supported by the evidence as to when the appellant became aware of his injury. The respondent points out that the Member provided reasons for rejecting the notion that the appellant was ignorant of his entitlements or that the failure to make the claim was occasioned by mistake or other reasonable cause. The respondent submits that none of the appellant’s submissions establish that the Member erred in the interpretation of the legislation and this ground of appeal must fail.

The appellant’s submissions in reply

1. The appellant notes that the respondent is effectively arguing that the Member was required to determine the entire dispute, even though part of the dispute had been discontinued. The appellant asserts that the respondent’s reference to the objectives of the Commission does not assist the respondent. The appellant contends that there is no single cause of action in workers compensation and, in accordance with the authorities of Bruce v Grocon Ltd[31] and Israel v Catering Industries (NSW) Pty Ltd,[32] an injured worker may pursue one right independently of other rights. The appellant asserts that the respondent’s submissions are misleading.

   [31] (1995) 11 NSWCCR 247.

   [32] [2017] NSWWCCPD 53.

2. The appellant points out that the respondent, in referring to Stone, has not referred to numerous parts of the observations made by Handley JA and submits that, had the appellant considered the observations as a whole, he would have acknowledged that s 16 could fix a date for injury where the claim is related to incapacity and a different date could be fixed for a claim for lump sum compensation.

3. The appellant contends that the respondent’s argument that Thoroughgood and O’Keefe can be distinguished from this case because they both involved a claim for a lump sum is misconceived and unwarranted. The appellant asserts that the respondent has “failed to grapple with” the observations of Basten JA in those authorities, in which his Honour said that the date of injury was the date the claim was made and that s 16(1)(a)(i) of the 1987 Act only applied to a claim for weekly payments.

4. The appellant refers to the respondent’s reliance on Bennell and submits that the respondent was selective in its approach to the observations of Member Wright and that:

   (a)    the Member’s decision was not binding upon a Presidential member;

   (b)    the Presidential Member should follow the cases relied upon by the appellant, and

   (c)    Bennell could be distinguished because the issue in dispute concerned a claim for future surgery and not a claim for past treatment expenses.

5. The appellant submits that the respondent’s submissions are based upon the date of injury being predicated upon incapacity, which is contrary to authority.

As to Ground Two

The appellant’s submissions

1. The appellant submits that the Member erred in law by failing to find that the claim for treatment expenses was different to that of the claim for weekly payments. The appellant says that the authorities relied upon by him in the submissions to the Member demonstrate that for the purposes of ss 15 and 16 of the 1987 Act, “incapacity” distinguishes between claims for weekly payments and other claims. The appellant contends that Basten JA made that clear at [48] of his judgment in Thoroughgood, when his Honour observed that, for the purpose of s 15, there was a distinction between a claim for weekly payments based on incapacity and “another form of compensation.”

2. The appellant asserts that the Member did not explain his finding that claims made on the same date were “inextricably linked”, and submits that such a notion ought to be immaterial to a consideration of s 15 “because of the fact that a claim other than a claim for ‘incapacity’ had a different date of injury to a claim for ‘incapacity’.”[33] The appellant further asserts that the Member’s observation that there was no evidence of the appellant suffering from any incapacity prior to December 2016 or January 2017 was also irrelevant in the context of s 15, the clear intention of which was to deem a date of injury to be the date the claim was made, if the claim was not one of incapacity.

   [33] Appellant’s submissions, [72].

3. The appellant quotes from the High Court authority of SZTAL v Minister for Immigration and Border Protection,[34] in which Gageler J discussed the principles of statutory interpretation, and submits that for the purpose of s 15, the word “incapacity” should be read in its context, and there is no reason to include in its meaning a claim for treatment expenses, which the Member did. The appellant contends that the Member failed to have regard for the distinction between types of claims.

   [34] [2017] HCA 34.

4. The appellant refers to the authorities relied upon by him in Ground One of the appeal and says that those cases defined “incapacity”, and it was an error for the Member to treat the claim under consideration as having the same date of injury as a claim for incapacity when what he was required to determine did not pertain to incapacity.

The respondent’s submissions

1. The respondent submits that the matters raised under this ground of appeal focus on the same matters as those raised in the first ground of appeal. The respondent indicates that it relies upon its submissions already made.

The appellant’s submissions in reply

1. The appellant asserts that the respondent has not addressed the grounds of appeal.

As to Ground Three

The appellant’s submissions

1. The appellant asserts that the Member erred in law in the manner in which he concluded that the deemed date of injury was 20 January 2017. He relies upon his submissions made in respect of both Ground One and Ground Two. He submits that the Member did not need to consider the claim for weekly compensation and did not need to determine the date of injury on the basis of that incapacity.

2. The appellant asserts that the Member erred in law by failing to properly consider and apply s 15(1)(a)(i) of the 1987 Act because the Member failed to determine “incapacity” in the context of s 15(1)(a)(i) of the 1987 Act in line with the authorities discussed. The appellant refers to Thoroughgood and contends that the Member “did not assess whether there was an existence of an incapacity being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.”[35] The appellant submits that instead, the Member determined the date of injury to be 20 January 2017 in respect of the claim for treatment expenses by proceeding upon the basis that:

   (a)    a claim for weekly compensation had already been made that commenced on 20 January 2017;

   (b)    that claim was consistent with the fact that the appellant had no other income than income protection payments;

   (c)    that claim was also consistent the decision of the AAT, which recorded that the appellant first suffered incapacity for work in December 2016, and

   (d)    there was no evidence that the appellant had suffered any incapacity prior to 20 January 2017.

   [35] Appellant’s submissions, [84].

3. The appellant contends that the Member did not consider the terms of s 15 of the 1987 Act when determining whether “incapacity” was satisfied before determining the date of injury.

The respondent’s submissions

1. The respondent submits that, once again, this ground of appeal pertains to matters already raised in the first ground of appeal and relies upon its submissions already made.

The appellant’s submissions in reply

1. The appellant again asserts that the respondent has failed to address the ground of appeal.

As to Ground Four

The appellant’s submissions

1. The appellant refers to various authorities, including High Court decisions, that establish that it is an error of law to make a finding about which a party was not given the opportunity to address. The appellant asserts that the Member made adverse findings at [56] of his reasons without warning him and without giving him the opportunity to address the issue. He submits that the Member did not put him on notice at the telephone conference or at the conciliation and arbitration that he intended to make such findings so that he is caught by surprise.

2. The appellant contends that, had he been put on notice he would have made submissions addressing the findings, namely that the discontinuance of the claim for weekly payments was irrelevant to the task required. Further he submits that he would have made submissions that the focus was on the claim currently before the Member and not on other claims that were not the subject of these proceedings, and in relation to the Member’s “remarks pertaining to purpose,”[36] the appellant would have directed the Member to the exceptions contained in ss 254 and 261 and would have made submissions as to the application of Gow.

   [36] Appellant’s submissions, [96].

3. The appellant submits that a practical injustice occurred, and he was denied a fair hearing by not being in a position to respond to those findings. The appellant contends that it could not be said that, if he had been given the opportunity to make submissions or adduce evidence, it would not have affected the outcome because the findings made at [57] of the Member’s reasons were dispositive.

The respondent’s submissions

1. The respondent refers to paragraph [56] of the Member’s reasons and submits that the Member’s “commentary” does not amount to a “decision” within the meaning of s 352(5) of the 1998 Act and an appeal must be in respect of a “decision.” The respondent says that the commentary was simply part of the Member’s process of reasoning and at its highest was obiter dictum. The respondent submits that the comment is not a finding and cannot be a basis for an appeal.

2. The respondent describes the assertion that the appellant ought to have been put on notice of all commentary made by the Member as nonsensical. The respondent says that the matter has a long history, over which time the provisions of s 254 and s 261, which required determination of the date of injury, had always been in issue. The respondent adds that the discontinuance of the weekly compensation claim has always been at the forefront of the matters relevant to the issue.

3. The respondent asserts that the appellant had more than ample opportunity to adduce any evidence he sought to rely upon and to make submissions. The respondent contends that there can be no suggestion that the appellant has not been afforded a fair hearing.

The appellant’s submissions in reply

1. The appellant asserts that the respondent has misread s 352 of the 1998 Act. The appellant says that it is clear that the appeal is against a decision of the Member as the matters raised in respect of both Grounds Four and Five are in relation to the Member’s findings that informed his decision and are not mere commentary. The appellant says that the issue raised is the Member’s consideration of the purpose of the discontinuance of the weekly compensation claim.

2. The appellant submits that the respondent has not pointed out how or why the appellant was on notice that the Member would make those findings, or on what basis those findings were arrived at.

As to Ground Five

The appellant’s submissions

1. The appellant refers again to paragraph [56] of the Member’s reasons and submits that there was no evidence to support the Member’s conclusion as to the purpose for discontinuing the weekly payments claim and says that the basis for reaching that conclusion is not apparent. The appellant asserts that the Member made a critical finding of fact, which has no basis in the evidence and amounts to error.

The respondent’s submissions

1. The respondent reiterates that the Member’s comments do not constitute findings and are therefore not appealable.

The appellant’s submissions in reply

1. The appellant relies on his submissions made in reply in respect of Ground Four.

As to Ground Six

The appellant’s submissions

1. The appellant refers to the Member’s reasons at [73]–[83] (summarised by me at [55] to [58] above) and submits that the various findings made were not supported by the evidence and thus the Member’s ultimate finding that s 261(4) of the 1998 Act was not satisfied was erroneous. The appellant asserts that the Member merely looked at the timeline and did not take into account his reasons for the delay.

2. The appellant adds that the Member focussed upon the appellant’s legal representatives and what advice may have been given by them. The appellant asserts that the Member was not permitted to do so because there was no evidence upon which the Member could make an assumption and a determination about what advice was provided. The appellant points out that the Member did not allow the appellant’s solicitor’s statement into evidence and accordingly, the Member erred in law in failing to apply s 261 in its terms.

The respondent’s submissions

1. The respondent indicates that the appellant’s assertion is that the Member’s findings were not open to him. The respondent complains that the appellant’s submission is so broad and lacking in detail that the respondent is unable to respond. The respondent submits that the paragraphs of the Member’s reasons should be read in the context of the preceding reasons, in which the Member clearly reviewed the evidence before him and provided sound reasons for his conclusion in respect of the issues in dispute.

The appellant’s submissions in reply

1. The appellant makes no submissions in reply to the respondent’s submissions in respect of this ground.

As to Ground Seven

The appellant’s submissions

1. The appellant submits that the Member erred in the exercise of his discretion in refusing leave to the appellant to adduce the evidence from the appellant’s solicitor. The appellant submits that the principles enunciated in House v R[37] and in Micallef v ICI Australia Operations Pty Ltd[38] applied.

   [37] [1936] HCA 40 (House v R).

   [38] [2001] NSWCA 274 (Micallef), [45].

2. In his primary submissions lodged with the appeal, the appellant submitted that he was unable to properly address the Member’s reasons for failing to admit the document, and how the Member thus fell into error, until he had received the transcript of proceedings.

3. The appellant provided further supplementary submissions after the transcript had been issued. The appellant submits that the only reasons provided by the Member were those recorded in the transcript at T14.10–28. The appellant asserts that the respondent’s submissions, and the Member’s reasons, predominantly focused on the admission of the appellant’s statement. The appellant submits that, consistent with House v R and Micallef, the Member:

   (a)    made an error of legal principle;

   (b)    made a material error of fact;

   (c)    took into account some irrelevant matter;

   (d)    failed to take into account, or gave insufficient weight to, some relevant matter, or

   (e)    arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

4. The appellant observes that it appears that the Member did not admit the document because he was unsure of its relevance. The appellant asserts that it is plainly apparent that Mr Govan’s statement was relevant to the issue of giving notice of injury and making a claim for compensation in accordance with ss 254 and 261 of the 1998 Act. The appellant says that he made this clear to the Member. The appellant says that the statement addresses what had transpired from the commencement of his retainer, so that it is relevant to answer the issue raised by the respondent about the delay. The appellant says that, in most cases, including this case, evidence is adduced, and submissions are made in order to explain the delay and establish the exceptions provided for in the sections. The appellant adds that the documents annexed to the statement, particularly the chronology, were equally as relevant. The appellant submits that the Member failed to give regard to the purpose of the evidence and thus committed a material error of fact and failed to take into account a relevant matter.

5. The appellant asserts that the Member’s failure to admit the statement was unreasonable and unjust because the statement was unarguably relevant to the issues in dispute. The appellant observes that the Member did not find that the respondent was prejudiced by the admission of the document, nor did the Member give any other reason for failing to admit it.

6. The appellant submits that had the statement been admitted, the reason why he proceeded in the AAT and did not pursue his claim against the respondent would have been apparent. The appellant says that the reason for proceeding down that path “governed” the steps that he took. The appellant asserts that the respondent had not properly made a case that it would be prejudiced if the document was admitted but simply complained of prejudice if both statements were admitted.

7. The appellant submits that Mr Govan was the only person who could provide the evidence about the steps taken in progressing the appellant’s claim. The appellant says that it was unreasonable and unjust for the Member to fail to admit Mr Govan’s statement as the appellant was significantly prejudiced by that action.

The respondent’s submissions

1. The respondent describes the long procedural history of the matter and the fact that Mr Govan’s statement was not served until 22 August 2022, just two days before the conciliation and arbitration on 24 August 2022 and in breach of r 67 of the Personal Injury Commission Rules 2021 (the 2021 Rules). The respondent says that, at no stage prior to 22 August 2022 was the respondent put on notice that such evidence would be adduced. The respondent submits that the refusal to admit the document must be read in the context of the matter and contends that the appellant has conveniently overlooked the long history and the significant period of time that had passed during which the appellant could have prepared his case. The respondent submits that the appellant had never explained the delay in the provision of that statement but was given the opportunity to make submissions as to why it should be admitted. The respondent says that the Member then provided reasons for his decision, and the fact that the appellant did not agree with that decision is not sufficient to show that the Member was in error.

2. The respondent concludes that the Member provided reasons as to why he did not admit the document and the decision not to grant leave was open to him.

The appellant’s submissions in reply

1. The appellant contends that the respondent has not engaged with the circumstances required in order to disturb a discretionary decision and submits that the respondent’s submissions should be rejected. The appellant asserts that the respondent’s submissions contained reasons for the document to be rejected which were not the reasons given by the Member and were thus not relevant to the Member’s decision. The appellant says that the Member did not determine the application to admit Mr Govan’s statement for the reasons provided by the respondent.

As to Ground Eight

The appellant’s submissions

1. The appellant asserts that the Member’s reasons for rejecting the statement were inadequate and amounted to a failure to exercise his statutory duty to fairly and lawfully determine the application to admit the statement. The appellant says that the Member rejected the statement on the basis that it was not relevant and did not consider the submissions made as to why the statement should be admitted. The appellant says that he submitted that:

   (a)    the statement was relevant;

   (b)    the statement contained matters that only Mr Govan could give evidence about and therefore the respondent could not be prejudiced by its admission;

   (c)    prejudice would be occasioned to the appellant if the document was not admitted, and

   (d)    the statement addressed what had been done and when it was done in order to for the appellant to make the claim in accordance with the New South Wales compensation scheme.

2. The appellant submits that the Member failed to give any reasons other than pertaining to the statement’s relevance and, in determining its relevance, only took into account that some of the documents attached to the statement were already in evidence.

The respondent’s submissions

1. The respondent submits that if leave is granted to appeal the Member’s rejection of the statement of Mr Govan, then he relies upon his submissions made in respect of Ground Seven of the appeal. The respondent otherwise submits that there was no error on the part of the Member in refusing to admit the document.

The appellant’s submissions in reply

1. The appellant notes that the respondent objects to the appellant raising this ground of appeal and makes observations about why leave to raise the new ground of appeal should be granted. The appellant points out that the respondent was given the opportunity to respondent to the ground of appeal, which it did.

THE RELIEF SOUGHT

1. The appellant seeks to have the Certificate of Determination revoked and a new decision made that the deemed date of injury is 19 January 2021, and the appellant is therefore not barred from bringing his claim by ss 254 and 261 of the 1998 Act.

2. The respondent seeks to have the appeal dismissed and the Certificate of Determination dated 11 October 2022 confirmed.

CONSIDERATION

1. Both parties have referred to a number of authorities dealing with how the date of injury is to be calculated. The decision in Bennell was that of a non-presidential member of the Commission, so that I am not bound or required to follow the Member’s reasoning or conclusion in that case. I decline to follow it. The decision in Gow was a 2002 decision by a single judge of the New South Wales Compensation Court and pre-dates a number of Court of Appeal authorities. The decision does not add anything further to the observations made by the various appeal judges of the Court of Appeal in the authorities relied upon.

2. At this point, it is useful to consider the authorities that are relevant to this matter before addressing the grounds of appeal. In doing so, it should be noted that s 15 of the 1987 Act applies to “a disease of gradual process” (s 15(1)) and s 16 applies to an injury that “consists in the aggravation, acceleration, exacerbation or deterioration of a disease” (s 16(1)). However, s 15(1)(a) and s 16(1)(a) are identical provisions, so that in ascertaining the deemed date of injury in a “disease” case, the authorities dealing with s 16(1)(a) are equally applicable in respect of s 15 matters.

3. The most applicable authority, in my view, is Thoroughgood, in which the various earlier decisions of the Court of Appeal were considered. The facts of that case were that the worker was required to work for prolonged periods on a wet concrete floor, causing aggravation to his pre-existing varicose vein condition in his left leg. In September 2006, the worker sought appropriate footwear from the employer, as recommended by his treating doctor. The request was denied, and the worker resigned his employment on 10 October 2006. The worker pursued other employment and did not make a claim for weekly payments as he had no economic loss. The worker subsequently made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in January 2010. An Arbitrator of the former Workers Compensation Commission determined that, when the worker made a claim for appropriate footwear in 2006, he had made a claim for compensation within the six month period required by s 261 of the 1998 Act. That decision was confirmed on appeal by a Deputy President, but the Deputy President determined that the worker did not suffer an “incapacity” as a result of the injury because the incapacity must be one that establishes an entitlement to a claim for weekly compensation.

4. On appeal to the Court of Appeal, Basten JA (with whom McColl and Meagher JJA agreed) considered the various past decisions of the Court, namely GIO, Alto Ford, Alfonzo and Stone.

5. GIO involved a claim by a widow in respect of the death of her husband in 1993 from a metastasised melanoma. The Court (per Sheller JA, with Priestley JA and Clarke JA agreeing) held that the deceased was incapacitated briefly in 1983 and thus, in respect of the deceased’s claim, the injury was deemed to have happened at the time of incapacity. In respect of the widow’s claim, the injury was deemed to have happened at the time of the deceased’s death. In Thoroughgood, Basten JA observed that GIO “was authority for the proposition that a reference to incapacity, in s 16, is to the incapacity for which compensation is claimed.”[39]

   [39] Thoroughgood, [39].

6. In Alto Ford, the worker had claimed both weekly compensation and a lump sum in July 1996 in respect of an injury to his left eye. The injury had occurred in 1976 and the worker was paid compensation, however the worker subsequently underwent surgery to his eye, following which he had further time off work, returning to work in 1992. He ceased full time work in 1996 because of his loss of vision and lodged a claim for lump sum compensation. The trial judge determined that the incapacity relevant to the weekly payments claim arose in 1992 and in respect of the lump sum claim arose in 1996.

7. In Thoroughgood, Basten JA observed that the Deputy President had distinguished Alto Ford on the basis that, in Thoroughgood, the worker had no economic loss from his incapacity and had not claimed weekly payments.

8. Basten JA observed that, in Alfonzo, that case also involved separate periods of incapacity and separate claims for compensation against different employers. His Honour noted that in Alfonzo, Priestley JA said that s 34 of the 1987 Act made it clear that incapacity, for the purposes of Division 2 of Pt 3 of the 1987 Act is incapacity during the period when a worker becomes entitled to weekly payments for incapacity;[40] and “incapacity” has the same meaning in ss 15 and 16 of the 1987 Act.[41]

   [40] Alfonzo, [24].

   [41] Alfonzo, [29].

9. Basten JA also referred to Stone, in which the Court held that, in a case in which lump sum compensation was claimed, where there was no claim or entitlement to claim weekly compensation, s 16(1)(a)(i) did not fix a date of injury, so that the date of injury was the date the claim was made. The circumstances in Stone were that the worker had already ceased work and was paid compensation in respect of an earlier injury.

10. Basten JA observed that:

    “the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.”[42]

    And:

    “If those passages imply that ‘incapacity’ in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies ‘if the claim under consideration is for weekly compensation based on incapacity. If the claim is for another form of compensation, as the Deputy President correctly stated … ‘the relevant deemed date of injury was ... the date of the incapacity for which compensation is claimed or entitled to be claimed.’”[43]

    [42] Thoroughgood, [46]

    [43] Thoroughgood, [48].

11. Basten JA did not refer to the 2011 case of O’Keefe, in which his Honour referred to the authorities above and remarked that:

    “These cases also decided that s 16(1)(a)(i) only applies to a claim for weekly compensation, and that the section fixes different dates of injury for different purposes.”[44]

    And:

    “The cases establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant.”[45]

    [44] O’Keefe, [96].

    [45] O’Keefe, [101].

12. I note the appellant relies on those remarks. I do not accept that those remarks, which pre-dated the decision in Thoroughgood, change or add to Basten JA’s observations in Thoroughgood quoted above at [143].

Ground One: The Member committed errors of law in his interpretation and application of section 15 of the 1987 Act by focusing upon a claim having been made for weekly compensation in the letter of claim

1. The appellant contends that because the claim for compensation was discontinued and the only claim on foot was for medical expenses, there was no “incapacity” within the meaning of s 15(1)(a)(i) of the 1987 Act. The appellant’s submission is contrary to the observations made by Hodgson JA in Stone and Basten JA in Thoroughgood (discussed above) that where there is a claim other than for weekly payments, the relevant deemed date of injury is the date of the incapacity for which compensation is claimed or entitled to be claimed. It is only where there is no incapacity in relation to the injury for which compensation is claimed that the deemed date of injury is the date the claim is made. The appellant claimed treatment expenses from 20 January 2017 in respect of a disease injury and the appellant was incapacitated from that date because of the injury for which the treatment was required. The appellant clearly had an incapacity for which he was entitled to make a claim for weekly compensation from 20 January 2017. Whether he prosecuted that claim or not, that incapacity arose on the same date as the claim for treatment expenses and in respect of the same injury.

2. While Thoroughgood also involved a claim for treatment expenses, the Court of Appeal determined that the date of injury was the date upon which the claim was made because the worker clearly had no economic incapacity flowing from the injury. In the present case, the appellant ceased work because of the injury, establishing an “incapacity” within the meaning of s 15(1)(a)(i). While the circumstances in Thoroughgood established that a claim for treatment expenses can have a deemed date of when the claim was made, that does not mean that that will always be the case. The first step is to enquire as to whether there is an incapacity flowing from the injury for which the compensation is claimed. If the answer is in the affirmative, then the date of the incapacity is the deemed date of injury.

1. The authorities referred to by the appellant do not assist him. In fact, his submissions are contrary to Basten JA’s observations in Thoroughgood that to say that “incapacity" in ss 15 and 16 is only satisfied where there is a claim, or at least a proven entitlement to claim for weekly compensation, arguably involves a misreading of the relevant authorities. The authorities establish that there “could” be a different deemed date of injury, not that it will always be the case.

2. The appellant makes no compelling submission that establishes error on the part of the Member by determining the date of injury to be the date of incapacity. Thus, the deemed date of injury giving rise to the claim for treatment expenses is 20 January 2017 and the Member did not err in so concluding. This ground of appeal does not succeed.

Ground Two: The Member committed errors of law by determining the claims for weekly compensation and medical expenses pursuant to section 60 of the 1987 Act were “inextricably linked”

1. The appellant submits that the Member failed to have regard to the fact that a claim for treatment expenses was a different claim to that for weekly payments. The appellant asserts that his incapacity was not relevant to the determination of the deemed date of injury for the claim for treatment expenses so that the Member erred in determining that the deemed date for the claim for treatment expenses was the same date as the appellant’s incapacity. The appellant asserts that the claim the subject of these proceedings did not relate to an incapacity.

2. The appellant’s assertions are rejected. It is plainly apparent that the appellant had an incapacity in respect of the injury the subject of the claim for treatment expenses. Applying the relevant authorities discussed above, it was incumbent upon the Member to determine whether there was an economic incapacity and in this case that economic incapacity manifested from 20 January 2017. It is only in the absence of such incapacity that the deemed date will be a different date, that is, the date of the claim for compensation. The Member was entitled to rely upon the evidence of incapacity in order to determine the deemed date of injury for the claim for treatment expenses. The authorities discussed above make it clear that the injury under consideration is the injury for which compensation is claimed, which in this case is the same injury that resulted in the appellant’s incapacity. The Member was not in error to describe that association as “inextricably linked”. This ground of appeal therefore fails.

Ground Three: The Member committed errors of law by determining the date of injury was 20 January 2017 (deemed)

1. The appellant relies upon his submissions made in respect of the first two grounds of appeal. The appellant adds that the Member did not need to consider the claim for weekly compensation or determine the date of injury on the basis of that incapacity. That assertion is patently wrong. In applying s 15 of the 1987 Act, the Member was required to look firstly to whether there was an incapacity resulting from the injury, which, in this case, there was. This was the same injury as the injury for which the claim for treatment expenses was made.

2. The appellant then asserts to the contrary that the Member failed to assess whether incapacity in the sense of an economic loss existed and the Member did not consider the terms of s 15 of the 1987 Act.

3. The Member clearly turned his mind to the existence of an incapacity and embarked on a consideration of the requirements of s 15. The fact that a claim was made for weekly compensation was evidence that went to the existence of an incapacity in the sense of an economic loss, as was the evidence that the appellant had no income from 20 January 2017. The Member took into account that the AAT decision recorded that the appellant was incapacitated and that the appellant had suffered no prior incapacity. These were matters that were relevant to an assessment of the deemed date of injury for the purpose of applying s 15. The appellant provides no basis upon which to intervene with the Member’s conclusion that the deemed date of injury was 20 January 2017. For the reasons set out above in respect of the earlier grounds of appeal, as well as these reasons, this ground of appeal fails.

Ground Four: The Member committed errors of law by making findings/determinations of which the appellant was not on notice

Ground Five: The Member committed errors of fact by determining the claim for weekly compensation was discontinued for the purpose of circumventing the limitation periods in ss 254 and 261 of the 1998 Act

1. The appellant refers to the Member’s reasoning at [56] of his decision, in which the Member said:

   “Moreover, discontinuing an application for weekly compensation for the purposes of attempting to obtain a different date of injury to circumvent the limitations periods in ss 254 and 261 of the 1998 Act is contrary to the purpose of having limitation periods in the first place.”

2. The appellant appears to assume that the Member imputed that the appellant discontinued the claim in order to circumvent the limitations imposed by ss 254 and 261. The Member did not attribute such a purpose to the appellant. He did nothing other than point out that if a discontinuance of a claim had the effect of avoiding the limitations, it would be contrary to the legislative purpose, which is a rational analysis relevant to the appellant’s argument that the prior weekly compensation claim was irrelevant.

3. The appellant says that, had he been aware that the Member intended to make such a comment, he would have submitted that:

   (a)     the discontinuance of the weekly payments claim was irrelevant;

   (b)    the focus was on the claim currently before the Commission and not other claims that were not part of the proceedings;

   (c)    the Member should consider the exceptions provided for in ss 254 and 261 of the 1998 Act, and

   (d)    the matter of Gow should be applied.

4. The appellant made submissions to the Member that the fact that there had been a claim for incapacity in the past was irrelevant and the focus was on the claim currently before the Commission.[46] The appellant also submitted that “there are no issues pursuant to sections 254 and 261 of the 1998 Act”[47] and submitted at length as to the application of Gow.[48] Having made those submissions that he asserts he would have made, the appellant cannot complain that he was not given the opportunity to be heard.

   [46] T34.10–13; T36.9–18.

   [47] T36.20–23.

   [48] T36.24–T38.31.

5. It follows that both Grounds Four and Five are not made out and fail.

Ground Six: The Member committed errors of law in his application and interpretation of section 261 of the 1998 Act

1. The appellant asserts that the Member’s reasons at [73]–[83] were not supported by the evidence. The appellant submits that the Member merely looked at the time-line of events and not the reasons for the delay and focussed upon the advice the appellant’s legal representatives might have provided to the appellant, which could only amount to an assumption as to what advice had been given.

2. The reasons referred to by the appellant firstly included the following:

   (a)    the appellant first became aware of the connection between his injury and his employment in January or February 2017;

   (b)    the appellant was required to make a claim within 6 months, that is by 17 September 2017;

   (c)    the appellant did not make a claim until 17 January 2021, almost four years after he became aware of his injury;

   (d)    the appellant was therefore required to establish the exceptions provided for in s 261(4) of the 1998 Act, and

   (e)    the claim on Comcare did not constitute a valid claim for compensation because there was no evidence that the employer was put on notice of the claim.

3. The Member then proceeded to consider the appellant’s submission that his failure to make a claim within the time frame was occasioned by ignorance, mistake or other reasonable cause. The Member rejected the submission on the following basis:

   (a)    on 9 October 2017, the appellant was made aware that the respondent was not a “Comcare employer”, following which the appellant retained his current legal representatives;

   (b)    it could be inferred that the appellant elected to pursue the proceedings in the AAT against the subsequent employer;

   (c)    the claim for compensation against the subsequent employer failed and the appellant was aware of that decision in November 2019, and

   (d)    the appellant did not make a claim on the respondent for more than a year after he was aware that the claim against the subsequent employer failed.

4. The Member noted that from the time of the AAT decision and thereafter the appellant was legally represented by his current solicitors, who were practitioners that appeared regularly in the Commission. He observed that it could not be said that the appellant was ignorant of his ability to claim compensation from the respondent.

5. Further, the Member did not accept that the appellant was prevented by his psychological condition from making a claim or by his preparation of a defence against his criminal charges. The Member observed that the appellant pleaded guilty to those offences on 13 December 2016. The Member further observed that the appellant’s psychological condition did not impede his ability to pursue the claim in the AAT, which concluded in November 2019. The Member said that, in any event, the appellant could have made a claim shortly after he was advised that the respondent was not an employer covered by the Comcare scheme.

6. The Member concluded that the delay in bringing the claim was not occasioned by ignorance, mistake or other reasonable cause. The Member did not simply focus on the timeline of events. The time frame within which the appellant:

   (a)    became aware of the connection between his psychological injury and his employment with the respondent;

   (b)    became aware that his employer was not a Commonwealth employer, and

   (c)    became aware he was not entitled to compensation from the later employer,

   are all matters that are very relevant to an assessment of whether the appellant complied with the time frames for making a claim for compensation.

7. The Member also considered whether the appellant was ignorant of his rights and whether there was a reasonable cause for not making the claim for more than a year after the proceedings in the AAT were finalised. In the context of the appellant being legally represented, there was no excuse for the appellant to have failed to make his claim for compensation in the fourteen or more months before the claim was eventually made. The Member weighed up all of the available evidence before reaching that conclusion.

8. The Member did not commit error in determining that the appellant had failed to satisfy the exceptions contained in s 261 of the 1998 Act and this ground of appeal fails.

Ground Seven: The Member committed error of discretion by not allowing the appellant’s solicitor’s statement to be admitted into evidence

1. The decision by the Member to refuse the admission of the statement made by the appellant’s solicitor was a discretionary decision The appellant relies upon the principles enunciated in Micallef.

2. In Micallef, Heydon JA explained (Sheller JA and Studdert AJA agreeing) that to succeed in an appeal against a discretionary decision, the appellant must demonstrate that the Member erred in exercising his discretion in that he:

   “(a)    made an error of legal principle,

   (b)     made a material error of fact,

   (c)     took into account some irrelevant matter,

   (d)     failed to take into account, or gave insufficient weight to, some relevant matter, or

   (e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[49]

   [49] Micallef, [45].

3. In Hamod v State of New South Wales[50] Beazley JA (as her Honour then was) made the following further observations (citations omitted):

   “The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.

   The court’s concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court’s statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings.

   For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration.”[51]

   [50] [2011] NSWCA 375 (Hamod).

   [51] Hamod, [134]–[136].

4. In Coles Myer Limited v Tabassum,[52] Deputy President Byron considered the issue of the admission of late documents and said that the following might be factors to take into account:

   “·     Whether there was an acceptable explanation for the delay;

   ·        Whether or not the refusal to admit the evidence will cause a substantial prejudice to the party making the application;

   ·        The prejudice, if any, that would result to the other party;

   ·        Whether or not the delay in filing the document was attributable to the legal representative and not the party personally;

   ·        The nature of the proceedings, including the nature of the relevant statutory scheme, and

   ·        General considerations of fairness and justice between the parties.”

   [52] [2005] NSWWCCPD 16, [18].

5. In Nelson Bay Pest Service Pty Limited v Morrison,[53] Acting Deputy President Snell (as he then was) also observed that “the unexplained failure to serve the documents at any time prior to the arbitration hearing, was a significant factor militating against the discretion being exercised in the Appellant Employer’s favour.”

   [53] [2007] NSWWCCPD 135, [42] (Morrison).

6. The statement was not admitted and so it is not before the Commission. The appellant did not seek leave to have the document admitted on the appeal so that the appellant’s allegation of error could not be assessed. I considered it appropriate that a copy of the document be sent to the Commission for the purpose of assessing whether an injustice flowed from the decision rejecting the document. A copy of the statement was therefore provided to me at my request. I also read the transcript of the arbitration, noting the submissions by both parties as to whether the statement should, or should not, be admitted.

7. The statement largely speaks of the steps taken by the appellant to notify the respondent of his injury. The Member found in favour of the appellant that he was not barred from claiming compensation because of the operation of s 254 of the 1998 Act, so that the evidence in terms of those matters is not relevant to the appeal. Relevant to this appeal, the statement did not disclose any reasonable explanation as to the delay in lodging a claim between the outcome of the AAT matter in November 2019 and the formal claim being made on 19 January 2021. Mr Govan speaks of notifying the respondent perhaps of an intention to claim but the details of that communication are not provided. The additional matters said to have been attended to comprised of the retention of counsel for the purpose of obtaining advice and arranging a medico-legal examination. The delay was in the order of fourteen months.

8. There was no explanation provided in the statement, or recorded in the transcript of the appellant’s submissions, that adequately explained the significant delay in seeking to adduce that evidence. In addition, as recorded in the statement, the inordinate time it took to attend to the matters in preparation for making the claim is surprising. The appellant succeeded in defeating the bar imposed by s 254 of the 1998 Act. The statement was otherwise less than useful in terms of establishing that the appellant was either ignorant of his obligations or had a reasonable excuse for failing to make his claim for compensation at the latest within a reasonable period of knowing the outcome of the claim against the subsequent employer. It cannot be considered that the evidence, had it been before the Member, would have resulted in a different finding.

9. The type of errors relevant to disturbing a decision of a Member, as identified in Micallef, are not made out and, as discussed in Hamod, an injustice cannot be said to have occurred by the Member not admitting the document.

10. This ground of appeal therefore fails.

Ground Eight: The Member provided inadequate reasons for his decision to not admit the solicitor’s statement

1. The minimum standard that a decision of a member of the Commission must reach in providing adequate reasons is defined by the Commission’s statutory framework.[54] Section 294(2) of the 1998 Act provides that a Member is to provide a brief statement setting out the Commission’s reasons for the determination. Rule 78(2) of the 2021 Rules requires the Member’s reasons to set out:

   (a)     his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based;

   (b)     the Member’s understanding of the applicable law, and

   (c)     the reasoning processes that led to the Member’s conclusions.

   [54] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [43].

2. Further, in accordance with r 78(3), the Member’s reasons must be sufficient to make the parties aware of the Member’s view of their case.

3. The obligations of a primary decision maker to provide reasons are also spelt out in various authorities and the above statutory obligations are consistent with those authorities. The principles were summarised by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd.[55] McColl JA also observed (citations omitted):

   “The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However, a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. 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’.”

   [55] [2009] NSWCA 110, [56].

4. The Member’s discretionary decision to reject the appellant’s solicitor’s statement was an ex tempore decision delivered at the commencement of the arbitration. It is noted that the statement, dated just two days earlier, was intended to address the reasons for the delay in giving notice of injury and making a claim for compensation, which had been a live issue in the proceedings from the outset. The appellant was advised of the issue on 7 July 2021 in a notice issued pursuant to s 78 of the 1998 Act, approximately 13 months prior to the date of the arbitration.

5. The appellant’s submissions relevant to the admission of the statements from both the appellant and Mr Govan were that:

   (a)    the statements address the issues raised as to giving notice of injury and making the claim;

   (b)    the matters contained in the statements were matters that only the deponents could address as to what actions they took, why they did those actions and when they were done, so that it was irrelevant that the statements were recent;

   (c)    at least some of the matters raised were matters that did not catch the respondent by surprise;

   (d)    the statements were relevant as they address matters in dispute, and

   (e)    the appellant would be prejudiced if the statements were not admitted.

1. The respondent made the submission that it would experience overwhelming prejudice if the documents were admitted, mainly because they alluded to an experience in 2000, which the respondent could not meet.

2. The Member jointly considered the question of admission of both statements. He admitted the statement made by the appellant. His reasoning process was relevantly as follows:

   “The principles regarding the admissions of late documents in the Workers Compensation Commission [sic, Personal Injury Commission] are clear. The Commission is, what’s commonly referred to, as a frontend loaded process.

   Relevant to the exercise of my discretion to the guiding principles under the Act which specifically are that the Commission is to facilitate just, quick and cost-effective resolution of the real issues in the proceedings, with that being section 42 of the Personal Injury Commission Act 2020.

   The key factors in considering whether to admit the late documents in the interests of justice and any prejudice that would result from granting or refusing leave to admit the documents. It’s also necessary to consider whether there’s any appropriate explanation for the delay in providing the documents and whether or not the refusal to admit the evidence would cause substantial prejudice to the parties.

   I’m also to have regard to the nature of the proceedings. These proceedings have been on foot an awful long time. The claim was initially made, or was the date of injury - the date of the alleged injury now on the 19th of January 2021. A section 78 notice was issued on or around the 7th of July, 2021 which squarely put in issue under a heading Out of Time issues. Issues were also raised in respect of the date of the injury claimed which has subsequently been on an excursion through the Presidential division of the Personal Injury Commission.

   Mr Adhikary submits that there can’t be any prejudice occasioned to the respondent because the issues have been previously raised and discussed in correspondence between the parties’ respective solicitors drawing my attention to a letter from his instructing solicitor on the 4th of August, 2021 and a recent letter from the respondent’s solicitors of the 23rd of August, 2022. He says the respondent couldn’t be caught by surprise by any of the information in the documents.

   …

   Mr Barnes in reply says that the prejudice is high to his client, that an issue arises as to the nature of the injury but that submission may well be made in respect of other issues that are before me, specifically consideration as to what is the date of injury in [the appellant’s] claim.

   …

   There hasn’t really been any acceptable explanation provided to, you know, in respect of the delay. There would be substantial prejudice to the [appellant] if the evidence wasn’t permitted. It would mean that there would be no evidence dealing with the issues of notice of injury, notice of claim, that may well be cured by other mechanisms.

   The nature of the proceedings there is an interest in finalising the proceedings. In my view, the interest in this case of dealing with the real and substantive issues in the case probably override any prejudice that might result to either party as a result of non-admission of the documents.

   …

   I’m not satisfied, therefore, that the prejudice to the respondent is so extreme that [the appellant’s] statement ought not be admitted into the proceedings and, therefore, I’ll admit that document. In respect of Mr Govan’s statement. Firstly, I was trying to understand the relevance of that document to any of the issues in dispute, a number of the documents attached to that statement are already in the proceedings.

   If the respondent wishes to rely upon any of the information that’s been served I’ll hear from the respondent in respect of that but I don’t propose to admit Mr Govan’s statement and – in its entirety …”.[56]

   [56] T11.21–T14.22.

3. The decision was made on an ex tempore basis and the reasons must be considered in their context. It can be inferred that the Member did not simply consider the document irrelevant as asserted by the appellant. His reasoning included consideration of matters as to prejudice and the delay in lodging the evidence. Importantly, the Member made observations about the significant delay and failure to explain that delay in seeking to have the documents admitted, a matter which Snell ADP considered was a significant factor militating against the discretion being favourably exercised in Morrison.

4. I do not consider that the reasons provided by the Member fell short of his obligations to provide adequate reasons, particularly in the context of my conclusion under Ground Seven that the statement was lacking in probative value in terms of the establishing of ignorance or other reasonable cause for failing to make the claim within the time frame. This ground of appeal fails.

CONCLUSION

1. The appellant has not established error on the part of the Member and the Member’s Certificate of Determination is confirmed.

DECISION

1. The Member’s Certificate of Determination dated 11 October 2022 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

28 September 2023