Bullock v Kincare Health Services Pty Ltd
[2023] NSWPIC 688
•21 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bullock v Kincare Health Services Pty Ltd [2023] NSWPIC 688 |
| APPLICANT: | Patricia Dawn Bullock |
| RESPONDENT: | Kincare Health Services Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 21 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Request for reconsideration by the respondent employer of Certificate of Determination containing an award of weekly benefits in favour of the applicant worker, on the ground that there was an error in the pre-injury average weekly earnings (PIAWE) used by the Member to calculate the award; the error arose as a result of an incorrect assurance given by the respondent at the arbitration hearing that the PIAWE pleaded in the Application to Resolve a Dispute was correct when, according to the respondent, it was subsequently ascertained not to be correct; this error was acknowledged by the respondent’s solicitor; consideration of section 57 of the Personal Injury Act 2020, the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 and the observations of Roche ADP in Samuel v Sebel Furniture Pty Ltd as to the power of reconsideration; consideration also of Ceccato v Australian Steel Mill Services Pty Ltd (No 2) and Fairfield City Council v McCall (No2); review of the Samuel observations as they applied to the facts of the case; consideration of Atomic Steel Constructions v Tedeschi, Sorcevski v Steggles Pty Ltd, and Steggles Pty Ltd v Sorcevski; Held – request for reconsideration refused. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent’s request to reconsider my decision in the Certificate of Determination dated 28 August 2023 is refused. |
STATEMENT OF REASONS
BACKGROUND
On 17 August 2015 Dawn Bullock (the applicant/Ms Bullock) sustained an injury arising out of or in the course of her employment as a home carer with Kincare Health Services Pty Ltd (the respondent), and a further injury in that employment on 28 August 2017.
Following the injury of 28 August 2017 the applicant was in receipt of weekly payments of compensation from the respondent’s insurer, Employers Mutual Limited (EML). On
14 January 2021 EML issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) bringing her weekly payments to an end (the work capacity decision). In that notice EML recorded a decision under s 43(1)(c) of the Workers Compensation Act 1987 (the 1987 Act) indicating that
Ms Bullock could earn $237.69 per week in suitable employment, working nine hours per week.That decision of EML was confirmed on 8 April 2021 when it issued to the applicant a further notice under s 78 of the 1998 Act in the same terms as the work capacity decision.
The applicant commenced the current proceedings in the Personal Injury Commission (Commission) with the lodgement of an Application to Resolve a Dispute (ARD) on
16 May 2023, which proceeded to an arbitration hearing before me on 15 August 2023.On 28 August 2023 the Commission issued a Certificate of Determination (COD) and attached Statement of Reasons (Reasons) as follows:
“1. The applicant has no current work capacity.
2. The role of a medical receptionist, or alternatively admissions clerk, does not constitute suitable employment.
3. The respondent is to pay the applicant weekly benefits pursuant to s 38 of the Workers Compensation Act 1987 as follows:
(a) $227.94 per week: 27 April 2021 to 30 September 2021;
(b) $230.66 per week: 1 October 2021 to 31 March 2022;
(c) $234.90 per week: 1 April 2022 to 30 September 2022;
(d) $242.82 per week: 1 October 2022 to 31 March 2023, and
(e) $252.86 per week; I April 2023 to date and continuing.”
On 31 October 2023 the solicitors for the respondent lodged with the Commission a request for reconsideration of the COD pursuant to s 57 of the Personal Injury Commission Act 2020 (the PIC Act). The reconsideration is requested solely in relation to the applicant’s pre-injury average weekly earnings (PIAWE) and the rate of weekly benefits awarded in the COD.
The respondent does not seek reconsideration of orders [1] and [2] in the COD. The respondent requests order [3] be amended to the following:
(a) $204.93 per week: 27 April 2021 to 30 September 2021;
(b) $207.23 per week: 1 October 2021 to 31 March 2022;
(c) $211.01 per week: 1 April 2022 to 30 September 2022;
(d) $218.31 per week: 1 October 2022 to 31 March 2023, and
(e) $227.44 per week: 1 April 2023 to date and continuing.
The respondent’s submissions in support of the request for reconsideration of the COD are summarised hereunder.
On 3 November 2023 the applicant lodged a response to the applicant’s request for reconsideration opposing the request.
The applicant’s reasons for opposing the request are summarised hereunder.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Should the respondent’s request for reconsideration of the COD be acceded to because of error on the part of the respondent’s solicitors in advising the Commission at the conciliation/arbitration hearing on 15 August 2023 that there was no issue with PIAWE pleaded in the ARD?
(b) Has the Member committed an error of law in finding the applicant’s PIAWE as pleaded in the ARD, based on the advice received from the respondent’s solicitors at the conciliation/arbitration hearing on 15 August 2023?
(c) Is the matter that is the subject of the reconsideration request most appropriately dealt with by way of reconsideration rather than an appeal of the Member’s decision, given that the issue that is the subject of the reconsideration request has arisen due to an error of the respondent’s solicitors, as opposed to an error by the Member?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was the subject of a preliminary conference on 28 November 2023 at which the solicitors for both the applicant and the respondent advised that they did not wish to make any further submissions in addition to those dated 31 October 2023 (respondent) and 3 November 2023 (applicant).
The parties were informed of my intention to determine the dispute without holding a conciliation conference or formal hearing.
Notwithstanding the advice given by the solicitor for the respondent referred to in [13] above, on 30 November 2023 that solicitor wrote to the Commission indicating that the respondent relied on the decision of Atomic Steel Constructions Pty Ltd v Tedeschi[1] and requested a timetable to allow the respondent and the applicant to file submissions addressing Tedeschi. On 1 December 2023 the solicitor for the applicant opposed this request.
[1] [2013] NSWWCCPD 33 (Tedeschi).
I granted the respondent’s request, and further submissions addressing Tedeschi, referred to hereunder, were received from the respondent and the applicant.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Certificate of Determination and Statement of Reasons dated 28 August 2023;
(d) respondent’s request for reconsideration dated 31 October 2023 (respondent’s request);
(e) applicant’s response dated 3 November 2023 (applicant’s response);
(f) respondent’s further submissions dated 11 December 2023 (respondent’s submissions 11 December 2023), and
(g) applicant’s response dated 14 December 2023 to respondent’s submissions 11 December 2023 (applicant’s submissions 14 December 2023).
SUBMISSIONS
Respondent’s request
The respondent notes that at the conciliation/arbitration hearing on 15 August 2023, Hall & Wilcox, the respondent’s solicitors, inadvertently advised that there was no issue with the PIAWE pleaded by the applicant in the ARD, and that accordingly the Member in the COD adopted and awarded the PIAWE rate claimed by the applicant in the ARD.
The respondent asserts that the rate pleaded in the ARD was not agreed to by EML, and Hall & Wilcox erred in advising the Member that there was no issue with the PIAWE claimed.
The respondent submits that the EML had in fact determined a different PIAWE rate in the work capacity decision dated 14 January 2021.[2] Due to the error of Hall & Wilcox the PIAWE was not disputed by the respondent at the conciliation/arbitration when it should have been, due to the respondent’s position as to PIAWE.
[2] ARD p 27, noting that the page references in this Statement of Reasons are to those in the electronic records of the Commission.
The respondent submits that EML should not be penalised due to an error by its representatives, and respectfully requests that the weekly benefits rates awarded in the COD be amended to reflect the correct amounts under the relevant legislation.
The respondent notes that the PIAWE rate claimed in the ARD is $284.92 and it is this rate upon which the rate of weekly benefits was determined by the Member.
The respondent submits that the PIAWE rate claimed by the applicant is based on the pre-injury earnings inclusive of overtime, shift loading and allowances, as evidenced by the earnings report at pp 166 to 190 of the ARD.
The respondent submits however that pursuant to s 44C(1)(b) of the 1987 Act (as in force in respect of the applicant’s date of injury 28 August 2017) overtime, shift loading and allowances are excluded in the calculation of PIAWE after the first 52 weeks of weekly benefits. As the applicant had already received more than 52 weeks of weekly benefits, calculation of PIAWE for weekly benefits for the period claimed in the ARD should have excluded overtime, shift loading and allowances.
The respondent’s position is that, as notified in the work capacity decision, the correct PIAWE rate is $248, being the applicant’s pre-injury earnings excluding overtime, shift loading and allowances.
The respondent submits that the weekly benefits awarded in the COD are not in accordance with s 44C(1)(b) and are incorrect in law, whilst acknowledging that this occurred due to the error by Hall & Wilcox and not any error by the Member or the applicant.
The respondent submits that the correct weekly benefits rates (as indexed) pursuant to
s 38 of the 1987 Act (being 80% x PIAWE of $248) are as follows:
Weekly Benefits Period
Awarded s38 Rates
Correct s38 Rates
Difference
27 April 2021 to 30 September 2021
$227.94 pw
$204.93 pw
$23.01 pw
01 October 2021 to 31 March 2022
$230.66 pw
$207.23 pw
$23.43 pw
01 April 2022 to 30 September 2022
$234.90 pw
$211.01 pw
$23.89 pw
1 October 2022 to 31 March 2023
$242.82 pw
$218.31 pw
$24.51 pw
1 April 2023 to date and continuing
$252.86 pw
$227.44 pw
$25.42 pw
The respondent submits the matter which is the subject of this reconsideration request is most appropriately dealt with by way of reconsideration rather than an appeal of the Member’s decision given the issue that is the subject of the reconsideration request has arisen due to the error of the respondent’s solicitors (as opposed to an error by the Member) and addressing the matter by way of a reconsideration will be timelier and more cost effective for the parties.
The respondent advises that the error made by Hall & Wilcox was identified after the COD was issued and Hall & Wilcox first attempted to resolve the issue by seeking the consent of the applicant to amendment of the COD however such consent was not able to be obtained. As such the respondent now submits a Reconsideration request, seeking the assistance of the Commission to resolve the matter outlined herein.
The respondent submits that the error made by Hall & Wilcox was identified after the COD was issued and Hall & Wilcox first attempted to resolve the issue by seeking the consent of the applicant to amendment of the COD, however such consent was not able to be obtained. As such the respondent now submits a reconsideration request, seeking the assistance of the Commission to resolve the matter outlined herein.
The respondent notes the application for reconsideration was served on the applicant’s solicitors on 31 October 2021, prior to submission [to the Commission] of the request for reconsideration.
Applicant’s response
The applicant submits that the reasons outlined by the respondent do not fall into the subject matter as intended by s 57 of the PIC Act, as there is no “obvious error”, and there has been delay by the respondent in seeking review.
The applicant submits that the respondent’s current application should properly have been dealt with by way of an appeal pursuant to s 352 of the 1998 Act.
The applicant submits that, acknowledging that the Commission has a wide discretion in respect of the reconsideration of a previous decision, it is not an unrestrained discretion.
The applicant submits that the relevant factors that the Commission is obliged to consider on an application for reconsideration were referred to in Samuel v Sebel Furniture Ltd,[3] in which Roche DP observed that a reconsideration is not usually the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators, such complaints being more appropriately addressed by an appeal brought pursuant to s 352 of the 1998 Act.
[3] [2006] NSWWCCPD 141 (Samuel).
In respect of the respondent’s submission that the Member made an error of law in respect of the awarded weekly benefits in that payment for overtime, shift loading and allowances should have been excluded from the PIAWE awarded, the applicant submits that such error should have been addressed by way of appeal rather than an application for reconsideration.
The applicant refers to the decision of Acting Deputy President Parker at [29] in Fairfield City Council v McCall (No 2)[4] that:
“The discretion to reconsider is to be exercised for reasons and with a view to advancing the objects of the 2020 Act. It is not, in my view, intended to be a substitute for the rights of appeal given by s 353 of the 1998 Act.”
[4] [2022] NSWPICPD 29 (McCall (No 2)).
Whilst the applicant concedes that this decision was in respect of a decision by a Presidential Member of the Commission, she submits that the principle remains applicable to decisions of non-presidential Members, as in the present case, and to the relevant right of appeal under s 352 of the 1998 Act.
The applicant further submits that the discretion of the Commission does not extend to allowing a reconsideration of a COD, it being clear that s 352 delineates the time and manner which is prescribed by the legislature if a party wishes to challenge the content of the certificate.
In respect of “obvious error”, the applicant submits that while s 57 may be broad in its application, it is clear that for it to be considered there must be an obvious error. The applicant submits that if the Member has erred, it is certainly not obvious. Section 57(6) of the PIC Act and Practice Direction 4 of the Commission provide examples of obvious error which the applicant cites.
The applicant submits that there is no obvious error, as there is certainly no accidental slip, no defect of form, no inconsistency between the stated reasons and decisions, nor any obvious clerical or typographical error.
The applicant submits that the error relied upon by the respondent is an error of omission by the respondent’s solicitors which does not constitute an obvious error in accordance with s 57 of the PIC Act.
In respect of delay, the applicant submits that the COD was issued on 28 August 2023 and it was not until 31 October 2023 that the respondent sought reconsideration. The applicant observes that the reasons given by the respondent for delay are as a result of the respondent unsuccessfully attempting to obtain the applicant’s consent to amend the COD.
The applicant notes that the respondent advised the applicant on 19 September 2023 of an intention to request reconsideration, and the applicant advised that it would oppose such request on the same day. The applicant attaches to her submissions copies of that correspondence. The respondent then, on 6 October 2023 wrote to the applicant requesting consent to amendments to the COD for the same reasons as presented in the correspondence of 19 September 2023. A copy of that correspondence is attached to the applicant’s submissions. The applicant observes that almost six weeks had elapsed by that time since the COD was issued.
The applicant then notes that the respondent did not seek reconsideration until
31 October 2023, constituting a further delay of 25 days after the request for consent, despite the applicant’s expression of opposition to the proposed changes.The applicant submits that the reasons put forward by the respondent are not a satisfactory explanation for the delay. The length also prevents an appeal pursuant to
s 352 of the 1998 Act.The applicant draws attention to s 45 of the PIC Act which provides:
“45 Making of applications and appeals
An application or appeal to the Commission is to be made in the time and manner prescribed by enabling legislation or the Commission rules.”
The applicant submits that the request for reconsideration should be refused, and in the absence of any ability to appeal, the COD should be upheld.
Respondent’s submissions dated 11 December 2023
The respondent notes that PIAWE was in dispute from the pleadings, and submits that the s 78 notice dated 14 January 2021[5] was the start of the dispute. That notice clearly states that the PIAWE was $248 per week and that 80% of that amount is $198.40 per week. The respondent submits that the applicant appreciated that there was an issue about the PIAWE as it included wage records in the ARD.
[5] ARD p 24.
The respondent submits that at the time of the s 78 notice the applicant was in receipt of weekly compensation presumably at the rate of $198.40 consistent with the notice. The respondent notes that the applicant has not sought any adjustment of the arrears of compensation, suggesting that she accepts that the payments were correct.
The respondent submits that the issue of whether there can be a reconsideration in circumstances where there has been an error by a legal practitioner was considered by Deputy President Roche in Tedeschi. The respondent notes in that matter that consent orders had been made, and the barrister acting for the insurer did not have instructions for the settlement in those orders. The arbitrator declined to reconsider the orders. On appeal the Deputy President considered whether there can be a reconsideration due to a mistake by the legal representative.
The respondent submits that the current case is similar in that the concession made about the PIAWE was made without instructions to that effect even though the barrister believed that he had those instructions.
The respondent then quotes the discussion and findings of Roche DP at [42] – [55] in Tedeschi, discussed hereunder.
The respondent notes that the Deputy President found that the consent orders should be reconsidered and set the orders aside, referring to the issue determined in that case considered from [64] onwards. The respondent submits that the critical matters were that there was prejudice to the insurer if the consent orders were enforced, and the merits of the case overall.
The respondent notes that the Deputy President cited Bartlett v Coomber[6] where Mason P observed (at [28], Hodgson J agreeing) that the “overriding principle is that the court is concerned with the interests of justice and cannot allow its processes to become an instrument of injustice or abuse”. In the same case Bryson AJA referred (at [88]) to the court’s power to decline to make orders giving effect to a compromise where it is unjust to enforce a compromise or it is in the interests of justice that the matter proceed to trial.
[6] [2008] NSWCA 100 (Bartlett).
The respondent submits that in the current matter the orders have failed to take account the provisions of s 44C of the 1987 Act which provide for a reduction in PIAWE after 12 months.
The respondent submits that it had never given instructions that the PIAWE was ever anything other than what was asserted in the s 78 notice. The concession made at the hearing was made without instructions.
The respondent submits that the consequence of the error is that it will be liable to pay an amount of weekly compensation greater than the amount to which the applicant is entitled. The additional amount will continue for the years to age 68, and the additional amount will increase with indexation. The prejudice to the respondent is significant. On the other hand, the applicant will be merely reduced to receiving her proper entitlement. The prejudice to the applicant is that she will not receive a windfall in excess of her entitlement.
The respondent submits that the error was not of the type referred to in Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd,[7] where there had been a delay of many years and the reconsideration application was generally of little merit.
[7] [1953] WCR 29 (Hurst).
The respondent submits that in this case the error was from momentary inadvertence. The concession was made without instructions. There has been no appreciable delay and the interests of justice are that the reconsideration is simply to provide that the correct amount of weekly compensation is paid.
Applicant’s submissions dated 14 December 2023
The applicant submits that the error in Tedeschi was in respect of mathematical miscalculations made by the solicitor for the respondent in the proceedings, where an incorrect sum of compensation was arrived at as a result of that miscalculation. This is to be distinguished from the circumstances of the current matter in that the alleged error made by the respondent is in respect to their legal representative having omitted any objection to the proposed sum on the basis of the application of s 44C(I)(b) of the 1987 Act concerning the exclusion of overtime, shift loading and allowances from the calculation of PIAWE after the first 52 weeks of weekly benefits.
The applicant submits that the reconsideration sought by the respondent is in respect of an error of law, or otherwise an error of fact or discretion. It is not an error of mathematical miscalculation of otherwise agreed upon liability, as was the case in Tedeschi, but an alleged error in the misapplication, or lack of application, of a statutory provision. The applicant submits that the simple fact that this alleged error of law was permitted by the omission of the legal representative for the respondent is insufficient to alter the nature of the error which is asserted by the respondent - being an error of law.
The applicant repeats her reliance on the decision in (McCall (No 2)), referred to at [37] above.
The applicant submits that the decision in Tedeschi is inappropriate for application to the circumstances of the current case. The error is one of law and should therefore have been the subject of appeal, rather than reconsideration, only the latter being of relevance in Tedeschi. A reconsideration is not to be a substitute for appeal in such circumstances where an appeal is clearly appropriate.
The applicant submits that, through its unreasonable delay, inclusive of the time consumed by the current exchange of submissions in respect of Tedeschi, the respondent has neglected to appeal within the relevant period pursuant to s 352 of the 1998 Act. As a result, the applicant again submits that the application for reconsideration be dismissed and that, in the absence of an ability to appeal, the COD is upheld.
The applicant submits that in the case that error in the COD is held not to be an error of fact, law or discretion or that the decision in Tedeschi is otherwise still held to be relevant for the present matter, the applicant draws attention to the comments of Roche DP at [100] and [101] in that case in respect of the merit of a reconsideration of consent orders:
“100. It follows that the question in the present matter is whether it is in the interests of justice that the consent orders be set aside. Essentially, this question comes down to whether there is some practical unfairness or injustice in allowing the orders to stand.”
“101…As Fraser JA observed in Broadbent, the mere fact that a lawyer lacks actual authority to compromise litigation does not constitute injustice that justifies the setting aside of the consent orders. Much more is required. If that were the test, then (arguably) any mistake in the preparation of consent orders could result in those orders being challenged.”
(The reference to Broadbent is to Broadbent v Medical Board of Queensland.[8])
[8] [2010] QCA 352.
The applicant submits that in Steggles Pty Ltd v Sorcevski,[9] relied upon and followed in Tedeschi, it was held that a decision being set aside on the basis of the actions of counsel outside of instructions is improbable and would require “highly unusual circumstances.”
[9] NSWCA, No 40693/91, 29 July 1994 (Sorcevski).
The applicant submits that, on the merits of the case, the error of the respondent’s legal representative in agreeing to the proposed sum at the conciliation/arbitration of
15 August 2023 is insufficient to enliven s 57 of the PIC Act, as detailed in the applicant’s previous submissions. It is also insufficient to justify the setting aside of the current consent orders.The applicant further submits that, while the error in Tedeschi may have satisfied the requirement for “highly unusual circumstances” in respect of an error by counsel, the current circumstance of an error by omission does not.
FINDINGS AND REASONS
Legislation
Section 57 of the PIC Act provides:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
Practice Direction 4 referred to by the applicant at [40] above is dated 30 October 2018 and was issued pursuant to r 18 of the Workers Compensation Commission Rules 2011. These rules were repealed by s 67 of the PIC Act. Practice Direction 4 is now replaced by Procedural Direction WC7 – Reconsiderations of decisions of the Commission (PDWC7), which applies to the Workers Compensation Division of the Commission, and which commenced on 16 August 2022.
Clause [15] of PDWC7 provides:
“15. The following matters may be considered in deciding the reconsideration application:
(a) the objects of the Commission under ss 3 and 42 of the PIC Act;
(b) the reason for and extent of any delay in bringing the application;
(c) any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker;
(d) the public interest in finality of litigation;
(e) that mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and
(f) the interests of justice.”
Obvious error
The applicant makes submissions in respect of the concept of “obvious error” in the COD, submitting that there is no such error in accordance with the examples given in s 57(6) of the PIC Act. The respondent does not specifically address this concept in its submissions, asserting simply that the error of Hall & Wilcox in respect of PIAWE should be remedied by reconsideration of [3] of the COD.
Two things may be said about this submission. Firstly, on any view of the matter, the error in the COD asserted by the respondent is not an obvious error according to the examples thereof in s 57(6), apart from perhaps (emphasis added) being either an accidental or inadvertent slip or omission on the part of Hall & Wilcox. However, I do not think that
s 57(6) is referring to such a slip or omission on the part of a lawyer for one of the parties. In my view it is a reference to a Member of the Commission in the making of a decision. In this regard I accept the submission of the applicant that the error put forward by the respondent is not an obvious error.In any event, it is the President of the Commission who must be satisfied that the decision of the Commission contains an obvious error, and who may:
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(s 57(2) and (3) of the 1998 Act). An application to correct an obvious error must be made to, or referred to, the President.
Section 57 (1) and (2) address different situations in which a litigant may find him/her self. Subsection (1) gives the Commission a wide discretion to reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by it. Subsection (2) allows correction of an obvious error.
Reconsideration
Section 57(1) of the PIC Act is in the same terms as s 350(3) of the 1998 Act with appropriate reference to the Commission in the Workers Compensation Division following the repeal of s 350 as a consequence of the commencement of the PIC Act on
1 March 2021.At [82] of the Reasons it is noted that counsel for the respondent confirmed that there was no issue with the PIAWE claimed. This was as a result of an admitted error on the part of the solicitors for the respondent. That error is the basis of the application for reconsideration.
In Maksoudian v J Robins & Sons Pty Ltd Bishop J in the Compensation Court of NSW said of the reconsideration power of the Court:
“There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v Hilliger (1952) 52 SR (NSW) 105.”[10]
[10] [1993] NSWCC 36; (Maksoudian).
Deputy President Michael Snell referred to this excerpt with approval at [16] in Ceccato v Australian Steel Mill Services Pty Ltd (No 2),[11] and noted that it was helpful to quote the passage of Roche ADP in Samuel, which appears at [58] of the Acting Deputy President’s reasons, as follows (omitting authorities except for Anshun):
[11] [2021] NSWWCCPD 6.
“1. the section gives the Commission a wide discretion to reconsider previous decisions;
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration;
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely;
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result;
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration, and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case.”
In McCall (No2), Acting Deputy President Parker said at [27] – [28], after quoting the foregoing excerpt from Samuel:
“27. Section 354 of the 1998 Act (‘Procedure before Commission’) was also repealed. Section 354(3), referred to above in Samuel, provisioned that ‘[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’, similarly to ‘Guiding Principle to be applied to practice and procedure’ outlined in s 42 of Part 5, Division 5.1 of the 2020 Act.
28.Nevertheless, it is s 57 of the 2020 Act which must be applied.”
Parker ADP then went on to say at [29] what is quoted at [37] above.
The observations of Roche ADP in Samuel remain sound and relevant despite the amendment to s 352 by the Workers Compensation Legislation Amendment Act 2010 (the 2010 Amendment Act) to restrict appeals to determinations of whether the decision was affected by any error of fact, law or discretion, and to the correction of any such error. The power of revue was removed by the 2010 Amendment Act.
I will deal with the observations of Roche ADP in Samuel that are relevant to the current proceedings as follows.
Observation [2] permits the Commission, pursuant to s 57 of the PIC Act, to reconsider a decision contained in a COD.
Exercise of the wide discretion in observation [3] is self-explanatory. I will discuss any reason for, and the extent of, any delay in bringing the reconsideration request hereunder.
Observation [4] is relevant. The respondent has now lost the opportunity to appeal the finding in respect of PIAWE, subject to any application it might make to extend the time allowed for appeal in s 352 of the 1998 Act. It is not clear as to whether the applicant has received any of the compensation she was awarded in the COD but if not, the respondent’s application for reconsideration has delayed receipt of the weekly payments awarded.
Observation [6] is discussed above, and is not relevant other than to observe that s 352 of the 1998 Act gives a party an opportunity to lodge an appeal for a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. In this case, the respondent is claiming an error in the calculation of PIAWE (an “error of omission by the respondent’s solicitors” as submitted by the applicant). If that is the case, it is in my view an error of fact. I note the respondent’s submission that an error of law has been committed as the weekly benefits awarded in the COD are not in accordance with s 44C(1)(b) of the 1987 Act. It may be considered an error of law if the PIAWE is as now submitted by the respondent, $248, in that it does not comply with s 44C(1)(b) of the 1987 Act (as in force in respect of the applicant’s date of injury 28 August 2017). However it is not necessary for me to decide if there is also an error of law for the purpose of my decision in this matter.
Observation [7] is not applicable.
Observation [8] is clearly relevant. An error on the part of the respondent’s solicitors is acknowledged.
Observation [9] is relevant. Apart from the issue of delay, and the fact that the applicant may have been denied receipt of payments awarded to her in the COD, it is to be observed that the amount awarded to the applicant for each period is a relatively modest sum. However this must be considered in the context of number of hours each week that the applicant had capacity to work in suitable employment, nine hours.[12] The difference claimed by the respondent between the awarded s 38 rates, and what is claimed to be the correct s 38 rates referred to above at [27], is approximately 10% of the awarded rates for each period listed. That is not insignificant, both to the applicant and respondent.
[12] See Reasons at [22].
The figures submitted by the respondent’s solicitor in the email to the applicant’s solicitor dated 19 September 2023 at 8:55am as to what the respondent says award should be are:
“1. 172.80 per week - 27 April 2024 to 30 September 2021;
2. $175.20 per week – 1 October 2021 to 31 March 2022;
3. $178.40 per week – 1 April 2022 to 30 September 2022;
4. $184.80 per week – 1 October 2022 to 30 March 2023;
5. $192.80 per week – 1 April 2023 to date and continuing.”
In that email the solicitor for the applicant was asked whether he agrees that the correct PIAWE rate is $184.97 and, if he maintains his PIAWE rate set out in the ARD, some detail so that the respondent’s solicitor could review it further.[13]
[13] applicant’s response p 4.
What must also be considered in this context is that there does not appear to have been a concession by the applicant that the “correct” PIAWE, now submitted by the respondent to be $248, is in fact the correct figure. In the correspondence attached to the applicant’s submissions, the applicant’s solicitor said in an email at 1:00pm on 19 September 2023 in response to the abovementioned email of the same date setting out what the respondent claimed at that time was the correct s 38 award:
“I am instructed to oppose any reconsideration of the matter.
Noting the matter has been decided by a member of the PIC, I do not propose to review the PIAWE calculations.”[14]
[14] applicant’s response p 4.
A further email was submitted by the respondent’s solicitor to the applicant’s solicitor on
6 October 2023 setting out how the COD should be amended as set out in [27] above, based on a PIAWE of $248.[15] There does not appear to have been a response from the applicant’s solicitor to this email.[15] applicant’s response p 6.
The point of highlighting these exchanges is that there is no agreement between the parties as to the correct PIAWE figure. If the respondent’s request is granted, there may have to be a further hearing or submissions to enable a determination as to what the respondent says is the correct PIAWE figure, thus prolonging the litigation.
In proceedings in the Commission, part of the purpose of a preliminary conference between an applicant and respondent is to ascertain if the matter can be resolved at that stage or if not, if the issues can be clarified and narrowed. In an application that involves a claim for weekly benefits, the parties are urged to reach agreement if possible on, inter alia, an applicant’s PIAWE.
A further consideration is that a party to proceedings is bound by the way his or her lawyer presents the case at the hearing.[16] In this case at the arbitration hearing, an assurance was received from counsel for the respondent that there was no issue on the PIAWE pleaded by the applicant in the ARD. A decision maker is entitled to rely on such an assurance.
[16] Coulton v Holcombe [1986] HCA 33; Metwally v University of Wollongong [1985] HCA 28.
Clause [15(a)] of PDWC7 refers to the objects of the Commission under ss 3 and 42 of the PIC Act. Section 3(c) includes as an object of the PIC Act “to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.” Section 42 sets out the guiding principle to be applied to practice and procedure, and includes in subsection (1):
“The guiding principle for this Act and the Commission 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.”
Atomic Steel Constructions v Tedeschi
The respondent submits that the applicant appreciated that there was an issue about the PIAWE as it included wage records in the ARD. It then goes on to submit that at the time of the s 78 notice dated 14 January 2021 the applicant was in receipt of weekly payments “presumably at the rate of $198.40 consistent with the notice.” That is an assumption for which I can find no acknowledgement by the applicant in the evidence, although it may have been the case. The respondent then suggests that as the applicant has not sought any adjustment of the arrears of compensation, she accepts that the payments were correct. I do not think that such assumption is warranted. The only issue remaining in dispute in the current proceedings was “whether the applicant has capacity to work nine hours a week in the suitable employment identified by the respondent, that is, as a medical receptionist, or alternatively an admissions clerk.”[17]
[17] Reasons [22].
In short, there has been no agreement or acknowledgement by the applicant that the PIAWE now put forward by the respondent is the correct PIAWE, having regard to
s 44C(1)(b) of the 1987 Act.There are attached to the ARD details of the applicant’s previous earnings.[18] The solicitor for the applicant in his email to the solicitor for the respondent at 1:00pm on
19 September 2023, noting that the matter has been decided by a Member of the Commission, declined to review the PIAWE calculations.[18] ARD pp 166 – 190.
The respondent’s submissions refer to the discussion and findings of Roche DP at [42] – [55] in Tedeschi. Deputy President Roche from [42] referred to the decision of Burke CCJ in the Compensation Court in Sorcevski. At [44] – [47] Roche DP said:
44. “Burke CCJ accepted (at 329F) that a solicitor (or barrister) retained by a client in respect of litigation has authority to bind his or her client to a compromise settlement of that litigation. However, if the solicitor had no actual authority to effect a particular compromise in the litigation, the client may not, depending on the circumstances of the case, be bound by such a settlement.
45. His Honour held that, under s 17(4) of the Compensation Court Act 1984 (repealed), the Compensation Court had a discretion to set aside a prior award. His Honour concluded at 330F:
‘In summary, the position appears to be that under section 17 of the Compensation Court Act 1984, and at common law, it is possible, though improbable, that a disposal of litigation, concluded by counsel for a party in a manner outside instruction and such being unknown to the other side, could be set aside by the Court. Such would require highly unusual circumstances.’(emphasis added)
46. After considering the evidence in detail, his Honour held that, in the circumstances before him, it was appropriate to take the ‘extraordinary step’ (336D) of rescinding the prior award. His Honour’s ultimate findings were:
‘I am therefore of the view that the worker has shown that she did not consent to the determination on 25 November 1985 of a sum the payment of which would redeem the employer’s liability to make weekly payments in respect of any back injury.
I believe that the worker should not be held bound by the assent of her counsel to such a determination even though within his ostensible authority and that the other side acted upon it in good faith.
I find that such matters are grounds upon which the worker might be granted reconsideration of the award of 25 November 1985.
I am satisfied that to withhold reconsideration would inflict great hardship and injustice upon the worker.’
47. On appeal to the Court of Appeal (Steggles Pty Ltd v Sorcevski, NSWCA, No 40693/91, 29 July 1994, unreported), it was accepted that it was open to Burke CCJ to set aside the earlier award.”
The facts in Sorcevski were significantly different from those currently under consideration. Burke CCJ acknowledged that it was an extraordinary step he was taking in setting aside the earlier award, because it would inflict great hardship on the worker.
Deputy President Roche noted at [55] in Tedeschi that:
“It follows that, having regard to the principles in Sorcevski, and the context in which Hurst considered the relevance of a mistake by a legal adviser, the fact that counsel mistakenly signed consent orders that were beyond his instructions was not, in itself, determinative of whether relief should be granted.”
In Tedeschi, as noted by the applicant, the error of counsel was a mathematical miscalculation on the part of counsel. The settlement of the worker’s claim in that case was for a sum that exceeded the maximum compensation claimed by Mr Tedeschi. As noted by Roche DP at [75] – [76] of the decision, the orders sought to be set aside provided for the payment of compensation for two periods when Mr Tedeschi conceded that he had no entitlement to weekly compensation. The Deputy President noted that a determination of the claim on its merits could not have resulted in an award in terms of the consent orders, and if such orders stood, he would receive a windfall of at least $24,480.
That is not the case in the current proceedings. There has been no determination of the correct figure for PIAWE.
The respondent asserts in this case that it will suffer prejudice if the award of weekly benefits is not amended to accord with what it submits is the correct PIAWE, and that the only prejudice suffered by the applicant will be the loss of a windfall in excess of her entitlement. However, she will suffer prejudice if, on further enquiry as to what is the correct PIAWE, the figure put forward by her in the ARD is correct.
Whilst I accept that the Commission clearly has, pursuant to s 57(1) of the 1987 Act, jurisdiction to reconsider the COD I do not think that the decision of Roche DP in Tedeschi assists the respondent in seeking to have order [3] of the COD reconsidered.
In terms of what Mason P observed in Bartlett, I do not think that the Commission in this case, if it refuses the respondent’s application for reconsideration, is allowing itself to become an instrument of injustice or abuse. It must look at the interests of justice, that is justice to both the applicant and respondent.
Delay
At the preliminary conference in this matter on 28 November 2023 I was advised that neither the respondent nor the applicant wished to make any further submissions in support of their respective cases. I then determined, without demur from the parties, that the respondent’s request would be determined ‘on the papers’ having regard to the documentary evidence referred to in [17(a) – (e)] above. Documents in [17(f) – (g)] were received subsequently pursuant to my direction for further submissions on Tedeschi.
I therefore infer that the respondent does not take issue with the timeline of events since the date of the COD, referred to at [43] – [46] above. I do not accept the respondent’s explanation for delay and find that there has been unreasonable delay in the respondent bringing its request for reconsideration before the Commission.
The applicant in submissions makes mention of s 45 of the PIC Act which provides that an application or appeal to the Commission is to be made in the time and manner prescribed by enabling legislation or the Commission rules. There is no time limit prescribed within which an application for reconsideration must be made, but to paraphrase what Bishop J said in Maksoudian, the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Commission’s attention.
Section 43 of the PIC Act is also to be considered. It provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In my view, having regard to:
(a) the delay in bringing the respondent’s request before the Commission;
(b) the fact that there has been no agreement or determination on what is the correct PIAWE for the purposes of s 44C(1)(b) of the 1987 Act;
(c) the possible extension of the litigation if the respondent’s request is granted, and the public interest that litigation should not proceed indefinitely;
(d) the fact that an appeal pursuant to s 352 of the 1998 Act could have been pursued to determine if the COD was affected by any error of fact, law or discretion, and to correct any such error;
(e) the mistake or oversight by the respondent’s legal adviser, and
(f) the substantial merits of the case,
the respondent’s request should be refused.
Conclusion
The respondent’s request to reconsider my decision in the COD dated 28 August 2023 is refused.
0
10
0