Bennett v The Hills Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennett v The Hills Shire Council [2024] NSWPIC 518
APPLICANT:	Jacob Bennett
RESPONDENT:	The Hills Shire Council
MEMBER:	John Turner
DATE OF DECISION:	18 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A(1); psychological injury; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits; Irwin v Director General of Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Kooragang Cement Pty Ltd v Bates, A1 Granny Flats v Workers Compensation Nominal Insurer (icare), Ponnan v George Weston Foods Ltd, Dunn v Department of Education and Training, and Bottle v Wieland Consumables Pty Ltd considered; Held – the applicant’s accepted psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to performance appraisal, discipline and/or provision of employment benefits.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Admit Late Documents lodged by the respondent dated 7 June 2024 is rejected. 2. The reports of Dr Sameh Younan dated 24 May 2024, 29 May 2024 and 28 May 2024 and the letters of instruction to Dr Younan which appear at pages 1 to 38 of the Application to Admit Late Documents lodged by the respondent dated 5 June 2024 are withdrawn from evidence. 3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 5 March 2021 (deemed) – disease. (b) Body systems / parts: primary psychological/psychiatric disorder. (c) Method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents and associated video footage, (c) documents attached to Application to Admit Late Documents (AALD) lodged on behalf of the applicant dated 28 May 2024; (d) documents attached to AALD lodged on behalf of the respondent dated 28 May 2024, (e) documents and video attached to AALD lodged on behalf of the respondent dated 5 June 2024 with the exception of pages 1 to 38 of the attachments which are to be excluded for the referred documents, and (f) documents attached to AALD lodged on behalf of the applicant dated 12 June 2024.

STATEMENT OF REASONS

BACKGROUND

Jacob Bennett, the applicant, commenced proceedings in the Personal Injury Commission (Commission) with the filing of an Application to Resolve a Dispute (ARD) on 28 February 2024. On 21 March 2024 The Hills Shire Council, the respondent, filed a Reply in response to the ARD.
The supporting documents lodged by the respondent with the Reply relevantly included forensic medical reports of Dr Michael Hong, psychiatrist dated 19 May 2021, 27 July 2021, 2 February 2022, 5 December 2022 and 13 September 2023 as well as surveillance reports by Procare Investigations dated 12 January 2022 and 21 February 2022 as well as the associated video footage.
Not included among the documents filed by the respondent in support of the Reply was a report of Dr Hong dated 31 May 2022. On 7 June 2024 the respondent lodged an Application to Admit Late Documents (AALD) in respect to the report of Dr Hong of 31 May 2022.
The matter was the subject of a conciliation conference/arbitration hearing on 31 May 2024 with written submissions being completed by the parties following the conciliation conference/arbitration hearing. At the time of the filing of the AALD on 7 June 2024 the written submissions had not been completed. The respondent did not seek to have its AALD filed on 7 June 2024 determined and the report of Dr Hong of 31 May 2022 admitted into evidence for the purposes of the arbitration hearing but rather deferred the application until such time and in the event of the referral to a Medical Assessor for assessment of permanent impairment.
On 24 July 2024 a Certificate of Determination with a Statement of Reasons was handed down in this matter. The applicant is to be referred to a Medical Assessor for assessment of permanent impairment.
The respondent now seeks to have its AALD of 7 June 2024 considered and the report of Dr Hong dated 31 May 2022 admitted into evidence and referred to the Medical Assessor. The applicant opposes the application.
The respondent also seeks to withdraw from evidence the reports of Dr Sameh Younan, psychiatrist, along with the letters of instruction provided to Dr Younan. The reports are dated 24 May 2024, 29 May 2024 and 28 May 2024. The documents which the respondent is seeking to withdraw are attached at pages 1 to 38 of the respondents AALD dated 5 June 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) dispute as to the inclusion of the document attached to the respondent’s AALD filed on 7 June 2024 in the referral to Medical Assessor. The attached document is a supplementary forensic medical report of Dr Michael Hong, psychiatrist, dated 31 May 2022.
(b) The respondent’s application to withdraw from evidence the reports of Dr Sameh Younan, psychiatrist, along with the letters of instruction provided to Dr Younan. The reports are dated 24 May 2024, 29 May 2024 and 28 May 2024. The documents are attached at pages 1 to 38 of the respondents AALD dated 5 June 2024

PROCEDURE BEFORE THE COMMISSION

The parties were informed of my intention to determine the procedural dispute without holding a conciliation conference or arbitration hearing. The parties provided written submissions.

FINDINGS AND REASONS

Report of Dr Hong dated 31 May 2022

Procedural Direction PIC3 provides that in determining an AALD, the following matters will be considered:
(a)    the interests of justice;
(b)    the requirements of the workers compensation legislation and the Personal Injury Commission Rules 2021 (Rules);
(c)    the submissions of the parties including the adequacy of the moving party’s reasons for the delay in lodging the documents;
(d)    any prejudice that would result from granting or refusing leave to admit the documents;
(e)    the effect, if any, on the timely resolution of the dispute, and
(f) the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020 (the PIC Act).
Deputy President Byron in Coles Myer Limited v Tabassum [2005] NSWWCCPD 16 described at [18] the following factors which might be taken into consideration when considering the admission of late documents:
“-      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 representation and not the party personally
-       The nature of the proceedings, including the nature of the relevant statutory scheme
-    General considerations of fairness and justice between the parties.”
The onus is on the party seeking to have the documents admitted.[1]
[1] Nelson Bay Pest Service Pty Ltd v Morrison [2007] NSWWCCPD 135.
The objectives of the PIC Act are set out in s 3. The objects of the PIC Act include at s 3(c) “to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.
Section 42(1) of the PIC Act identifies the guiding principle for the Act and the Rules in their application to proceedings in the Commission is to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Rule 67 of the Rules provides:
“(1)    A party to applicable proceedings must lodge and serve on the other parties, with an application to commence proceedings or a reply to an application, the following—
(a) the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that—
(i)        are in the possession or control of the party, and
(ii)        that have not been lodged by a party in the current proceedings,
(b) the information or documents required to be provided with the application or reply by—
(i)         the approved form for the application or reply, or
(ii)        these Rules, or
(iii)       the procedural directions.
(2)     Subject to subrules (3) and (4), a party may not introduce evidence that has not been—
(a) lodged and served as required by subrule (1), or
(b)  provided to another party as required by enabling legislation or these Rules.
(3)     If a party to applicable proceedings wishes to rely on a document not lodged and served in compliance with subrule (1), the party must—
(a) as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties, and
(b) not later than 3 working days before a teleconference, on one occasion only and by the approved form, lodge all documents not previously lodged, and
(c) not later than 3 working days before a hearing, on one occasion only and by the approved form, lodge all documents not previously lodged, and
(d) not later than 14 working days before a medical assessment, on one occasion only and by the approved form, lodge all documents not previously lodged.
(4)     The appropriate decision-maker for the applicable proceedings may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if—
(a) the party complies with subrule (3), or
(b)the appropriate decision-maker gives the party leave to lodge additional documents following an attempt by the party, whether or not successful, to obtain consent to the lodgment from all parties to the proceedings.”
Whilst the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner it thinks appropriate and as the proper consideration of the matter before the Commission permits;[2] Rule 73 of the Rules provides that the evidence should be logical and probative, relevant to the facts and issues in dispute and not be based on speculation or unsubstantiated assumptions.
[2] Personal Injury Commission Act 2020 s 43.
The respondent submits that subrule 67(4) provides for the admission of late documents if the Commission is satisfied that it is necessary to do so in the interests of justice.
In the applicant’s submission, pursuant to subrule 67(4) of the Rules the Commission may, if satisfied that it is necessary to do so in the interests of justice, allow the report of Dr Hong to be admitted into evidence and referred to the Medical Assessor only if the respondent has complied with subrule 67(3).
In the applicant’s submission the respondent has not satisfied subrule 67(3)(a) noting that it is the respondent’s submission that the report of Dr Hong was on its solicitors file at the time that these proceedings were commenced. The applicant further submits that by the time that these proceedings were commenced, the respondent would have been in possession of the supplementary report for almost two years.
In the applicant’s submission the respondent has not complied with subrule 67(3) of the Rules and therefore the report should not be admitted into evidence or be referred to the Medical Assessor.
The respondent submits that irrespective of compliance with rule 67(3) the report of Dr Hong can be admitted under subrule 67(4)(b) if it is determined that it is in the interests of justice to do so.
Relevantly subrule 67(4) only allows for the admission of evidence in the interests of justice “if”:
“(a) the party complies with subrule (3), or
(b) the appropriate decision-maker gives the party leave to lodge additional documents following an attempt by the party, whether or not successful, to obtain consent to the lodgement from all parties to the proceedings.”
Relevantly subrule 67(3) provides that a party who wishes to rely on a document which has not been lodged and served with either the ARD or the Reply “the party must”:
“(a) as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties,…”
In my view the respondent has not complied with subrule 67(3) for the following reasons.
It is the respondent’s submission that the report of Dr Hong dated 31 May 2022 was not filed or served with the Reply due to an oversight by its solicitor with the report being present on the solicitors file at the time of the filing of the Reply “and the respondent’s insurer assumed it was filed along with the forensic evidence of the respondent in the Reply.” The oversight was discovered on 7 June 2024 during the preparation of the respondent’s written submissions following the arbitration hearing which was held on 31 May 2024. By way of explanation for the oversight the respondent submits that the Reply was prepared in circumstances where there was a very large volume of evidence.
The respondent submits that upon discovering the oversight on 7 June 2024, the respondent’s solicitor took immediate action lodging the AALD dated 7 June 2024.
Whilst I accept that the respondent’s solicitors have acted as soon as practicable to lodge and serve the medical report in issue after they discovered the oversight both the respondent’s insurer as well as the respondent’s legal representatives were in possession of the report of Dr Hong at the time of the filing of the Reply. The respondent through its insurer was also aware of the document at the time of the filing of the Reply with the insurer having requested the report from Dr Hong and having assumed that it had been lodged with the Reply.
In respect to being “aware” of the document subrule 67(3)(1)(a) goes to the awareness of the relevant “party” to the proceedings and not to the awareness of its legal representatives. The insurer who stands in the shoes of the respondent was aware of the document having commissioned and obtained the report and having assumed that it had been filed with the Reply.
In respect to subrule 67(4)(b) I am of the view that it has no application in respect to the current matter. In my view subrule 67(4)(b) applies where the additional document has not been lodged in the proceedings and the appropriate decision-maker gives the party leave for the additional document to be “lodged”.
The respondent submits that consent was sought from the applicant to lodge the additional report of Dr Hong by way of the service of the AALD dated 7 June 2024, and again when it sought to have the document included in the documentation to be referred to the Medical Assessor on 30 July 2024. This submission confuses lodgement with the admission of the document into the proceedings. The distinction between the two concepts is made clear by the wording of rule 67. In particular subrule 67(4) provides, as previously discussed, that “the appropriate decision-maker may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if” the party has served and lodged the documents in accordance with subrule 67(3) or the party is granted leave to lodge the additional documents. The lodging of the documents therefore precedes any consideration of the admission of the document into evidence in the proceedings.
In the current matter it has not been submitted that the document in question was not lodged with the Commission and was lodged with the AALD dated 7 June 2024.
There have been no submissions to the effect that I should dispense with a requirement of the Rules pursuant to rule 6.
For the above reasons the respondent’s AALD dated 7 June 2024 is rejected.

Reports of Dr Sameh Younan

The respondent seeks to withdraw the reports of Dr Sameh Younan, psychiatrist, along with the letters of instruction provided to Dr Younan. The reports are dated 24 May 2024, 29 May 2024 and 28 May 2024. The documents which the respondent is seeking to withdraw are attached at pages 1 to 38 of the respondents AALD dated 5 June 2024.
The reports of Dr Younan are forensic medical reports which were provided to the respondent.
The applicant objects to the reports being withdrawn on the basis that the applicant wishes to rely on the reports. The applicant has not provided any submissions that there is any legal impediment to the respondent withdrawing the reports.
The respondent submits that it has the right to withdraw the reports. In the respondent’s submission the reports were of no relevance to the defence raised pursuant to s 11A(1) of the Workers Compensation Act 1987 which has been the subject of a previous determination in these proceedings because the doctor was not asked to, and did not comment on what workplace events had “wholly or predominantly caused” the applicant’s injury
The respondent submits that the applicant cannot rely on the reports as they are not admissible due to the operation of Regulation 44 of the Workers Compensation Regulations 2016 (Regulations).
As previously noted the applicant has not made any submissions that there is any legal impediment to the respondent withdrawing the reports. I accept the respondent’s submission that the reports were of no relevance to the respondent’s s 11A(1) defence which was the subject of a previous determination and note that the Certificate of Determination and Statement of reasons does not refer to the reports of Dr Younan.
Regulation 44 relevantly provides that only one forensic medical report may be admitted on behalf of a party to proceedings. Where the injury has involved treatment by more than one specialist medical practitioner with different qualification then an additional report from a medical specialist with qualifications in that speciality may be admitted.
The applicant relies on forensic medical reports from the psychiatrists Dr Oldtree Clark and Dr Shannon Paisley. Dr Paisley reported on the applicant when Dr Oldtree Clark became unavailable to do so.
I accept that the respondent can withdraw the subject documents, and those documents cannot be adopted by the applicant as that would offend regulation 44.
The reports of Dr Sameh Younan dated 24 May 2024, 29 May 2024 and 28 May 2024 and the letters of instruction to Dr Younan which appear at pages 1 to 38 of the AALD lodged by the respondent dated 5 June 2024 are withdrawn from evidence.

SUMMARY

The Application to Admit Late Documents lodged by the respondent dated 7 June 2024 is rejected.
The reports of Dr Sameh Younan dated 24 May 2024, 29 May 2024 and 28 May 2024 and the letters of instruction to Dr Younan which appear at pages 1 to 38 of the Application to Admit Late Documents lodged by the respondent dated 5 June 2024 are withdrawn from evidence.
I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of permanent impairment.

[2024] NSWPIC 518

18 September 2024