Car v Vanguarde Pty Ltd - [2020] NSWWCCPD 71

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	CAR v Vanguarde Pty Ltd [2020] NSWWCCPD 71
APPELLANT:	CAR
RESPONDENT:	Vanguarde Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-4934/19
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	31 August 2020
DATE OF APPEAL DECISION:	9 December 2020
SUBJECT MATTER OF DECISION:	Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – factors to take into account when determining whether to allow a reconsideration of a decision – Samuel v Sebel Furniture Ltd [2006] NSWCCPD141; 5 DDCR 482 applied; s 267 of the 1998 Act – the objectives of the Commission.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Horan, counsel
Turner Freeman
Respondent:
Mr S Grant, counsel
Hall & Willcox
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 31 August 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Mr CAR (the appellant) was employed by Vanguarde Pty Ltd (the respondent) as a Senior Property Manager. The appellant’s employment with the respondent was terminated on 1 December 2017. The appellant was dismissed after a random compliance check disclosed irregularities in the respondent’s trust account wherein payments from the trust account were made into the appellant’s personal bank account.
The appellant made a claim for compensation, alleging psychological injury as a result of an “overbearing workload, feeling of hostility from other staff and due to an ordeal in which he accidently misappropriated funds.”[1] The date of injury was deemed to be 1 December 2017. The respondent initially accepted liability and paid weekly compensation and treatment expenses.
[1] Application to Resolve a Dispute (ARD) Part 4 – Injury details.
On 4 April 2019, the respondent disputed liability for the injury, raising the following issues:
(a)    the appellant did not suffer an injury pursuant to s 4(a) and s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);
(b)    the appellant’s employment was not the main contributing factor to any disease injury (s 4(b)(i) of the 1987 Act) or to the aggravation acceleration, exacerbation or deterioration of a disease (s 4(b)(ii) of the 1987 Act);
(c)    the psychological injury was caused by the reasonable action taken by the respondent with respect to performance appraisal, discipline or dismissal and was therefore not compensable (s 11A(1) of the 1987 Act);
(d)    at the time of the injury, the appellant was acting in contravention of statutory or other regulation applicable to the appellant’s employment, so that the injury was solely the result of serious and wilful misconduct in the form of a fraud (s 14 of the 1987 Act);
(e)    treatment expenses were not reasonably necessary, and
(f) the appellant did not give notice of injury or make a claim within the time prescribed by ss 260 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2]
[2] ARD, pp 49–55.
The appellant commenced proceedings in the Commission, claiming ongoing weekly payment of compensation, treatment expenses and 24% whole person impairment pursuant to s 66 of the 1987 Act.
The matter was listed for conciliation and arbitration on 22 November 2019. The matter did not proceed to arbitration because the matter was resolved by written consent orders tendered by the parties.
The Consent Orders were made by Arbitrator John Wynyard (the original arbitrator) in the following terms:
“By and with the consent of the parties, the determination of the Commission in this matter is as follows:
1.     There will be an award for the respondent in respect of the claim for weekly benefits under s 37 of the 1987 Act from 5 October 2018.
2.     There will be an award for the respondent in respect of the claim for medical expenses under s 60 of the 1987 Act from 22 November 2018.
3.     There will be an award for the respondent in respect of the claim for permanent impairment under s 66 of the 1987 Act.
4.     The balance of the claim is discontinued and I dispense with the necessity for the applicant to file a Notice of Discontinuance.
Note
A.    The respondent will make the following payments to the applicant on a compromise, voluntary, without prejudice and without admission of liability basis as follows:
(i)Pursuant to s 37 of the 1987 Act, $500 gross per week from 25 January 2018 to 4 October 2018 agreed to equal $18,000;
(ii)Pursuant to s 60 of the 1987 Act, $2,000 incurred up to 22 November 2019 upon production of accounts, receipts and/or Medicare Notice of Charge.
B.    The applicant agrees and admit that:
(i)On payment of the amount of weekly compensation noted in paragraph A of the notations, the applicant will have received all of his entitlments to weekly compensation and medical expenses arising out of his emploment with the respondent to date.
(ii)From 22 November 2019 the applicant has fully recovered from the effects of the injuries sustained with the respondent.
(iii)The applicant will be able to earn the same, if not more, than his pre-injury average weekly earnings with the respondent from 22 November 2019.
C.    The settlement is on a compromise, without prejudice and without admission of liability basis and the respondent makes no admission about the allegations made by the applicant.
D.    I note the Consent Orders signed by the parties, initialled by me and retained by me.”
Within two days of the matter settling, the appellant took issue with the resolution. The appellant applied to the Commission to have the Consent Orders reconsidered. The application for reconsideration was heard by a different arbitrator, Mr C Burge. This appeal concerns the Arbitrator’s refusal to reconsider the Consent Orders.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’.

THRESHOLD MATTERS

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.

THE EVIDENCE

It is not necessary to refer in detail to all of the evidence that was before the original Arbitrator when the matter came to conciliation and arbitration on 22 November 2019. The summary of the evidence that follows is relevant to the question of whether the Arbitrator erred in the exercise of his discretion by refusing to reconsider the Consent Orders.

The factual evidence in relation to injury and the defence pursuant to s 11A of the 1987 Act

The appellant’s evidence

The appellant provided statements dated 10 December 2018[3] and 13 June 2019.[4] The appellant, a licenced real estate agent, disclosed a past history of anxiety and depression and described difficulties in prior employment related to the former employer’s business practices. The appellant said he then commenced employment with the respondent as a Senior Property Manager and provided details of his duties in that role.
[3] ARD, pp 1–17.
[4] ARD, pp 18–31.
The appellant referred to there being a high turnover of staff, including the termination of employment of some staff, which put pressure on him to perform and made him unpopular. The appellant recounted difficult interactions with the principal of the company, Mr Timothy Breckell. He complained of an enormous workload.
The appellant said that because of the excessive workload, he was not concentrating on his work and on the morning of 1 December 2017, he inadvertently paid some personal bills from the company account. He said that when he realised, he transferred the money back immediately, but the error was made known to Mr Breckell. The appellant said that he was handed a notice terminating his employment. He said he was shocked and shaking and went home, worrying what would happen and whether the police would become involved.
The appellant stated that in April 2018, NSW Fair Trading sent him correspondence indicating that they had found he had misappropriated funds (a finding which he subsequently appealed) and asking him to “show cause” as to why his real estate licence should not be cancelled. The appellant said that this event had changed his life completely and had significantly affected his psychological well-being.
In his second statement, the appellant provided extensive allegations of difficulties in the workplace, including difficulties relating to the reconciliation of the respondent’s bank accounts, which the appellant said he did not understand. The appellant said that he was not authorised to perform all transactions on the accounts, and he could only upload transactions. He said that, on one occasion, he found there was an outstanding deposit and was unsure and confused about that. The appellant said he transferred money from his own account to the trust account to remedy that situation. The appellant also referred to an occasion when he noticed the account had not been reconciled in over a month and was out of balance, with unpresented cheques and outstanding deposits.

The respondent’s evidence

The appellant’s factual allegations of difficult workplace conflict were challenged by Ms Vicheka Yoeun[5] and Mr Breckell in statements made by them.[6]
[5] Reply to Application to Resolve a Dispute (reply), pp 31–38.
[6] Reply, pp 39–55.
Mr Breckell also responded to the appellant’s version of events in respect of the allegations of misappropriation of funds. Mr Breckell said that he had been advised by his general manager of the incident on 1 December 2017. He said the allegations were not an isolated incident and involved the setting up of fake accounts and work orders by the appellant using his personal bank account on many occasions, which the appellant meticulously tried to conceal. Mr Breckell said that, once the allegations were established to be true, he had no choice but the terminate the appellant’s employment. Mr Breckell advised that the appellant had admitted the allegations, and the fraud was not an innocent mistake but “was deliberate and purposefully perpetrated”.[7]

The relevant medical evidence

[7] Mr Breckell’s statement, reply, p 53, [72].

Dr Christopher Canaris, consultant psychologist

Dr Canaris was asked to examine the appellant and provide a forensic medical opinion on the appellant’s behalf. He provided a report dated 8 July 2019.[8]
[8] ARD, pp 59–67.
Dr Canaris took a history of what could be described as somewhat toxic relationship difficulties experienced by the appellant in the respondent’s workplace. Dr Canaris also recorded the history of the appellant’s employment being terminated on 17 December 2017 following allegations of a misappropriation of funds in the vicinity of a total of $13,000 and the revocation of the appellant’s real estate licence for five years. Dr Canaris noted that the appellant claimed that Mr Breckell had put the money in his bank account from the respondent’s trust account, and the appellant was not in a position to have made the transfer. Dr Canaris recorded that the appellant said it had been asserted that the appellant had misappropriated funds because he needed the money, but that the respondent had never looked at his accounts which would have disclosed that he had funds available. The appellant alleged it was a “set up” by the respondent’s principal. Dr Canaris further noted that the appellant was convicted in the Local Court, fined and sentenced to community service, which the appellant said occurred because a different solicitor had appeared on his behalf. Dr Canaris noted the appellant’s ongoing symptom complaints, which included the inability to concentrate.
Dr Canaris provided the following opinion:
“I note that his employer provides a different account as often happens reporting inter alia difficulties in his relationship with other employees, some difficulties around his work practices, difficulties over the importation of his rent roll from his previous employer, as well as of course the reported misappropriation of funds which his employer suggested had taken place over a period of time and had involved a range of stratagems.
It is of course not up to me as a psychiatrist to determine which version of events is to be preferred. However, I note that in his original statement in this matter, your client asserts that the misappropriation of funds took place after he had accidentally paid some personal bills out of a company account and that he had rectified the error as soon as he discovered what had taken place. By contrast, he told me that he had been somehow set up by his employer. Clearly, it is a matter of some significance to determine which of what appear to be three versions of events is more likely to be correct. Should his employer’s account be considered the more likely, his psychological injury would clearly fall within the ambit of Section 11A.”[9]
[9] ARD, p 65.

Mr Chafic Awit, registered psychologist

Mr Awit, who the appellant had attended on 12 occasions, provided a report dated 21 May 2019 for the purposes of proceedings in the NSW Civil and Administrative Tribunal.[10] Mr Awit noted that the appellant had previously been convicted under the Crimes Act 1900 of dishonestly obtaining for himself a financial advantage by deception. Mr Awit diagnosed the appellant as suffering from anxiety disorder with persistent depressive mood.
[10] ARD, pp 68–76.
Mr Awit offered the following opinion:
“[The appellant] has a long history of suffering Anxiety and Depression. He advised that he has experienced a number of significant stressors in his life that range from personal to work related stressors. ... The writer is of the professional opinion that there is a psychological nexus between CAR's condition and the offence before the court. He advised that he did not weight the consequences of his decision appropriately at the time. He advised that this all started because he was too fatigued and unmotivated to go withdraw money from the bank. He advised that in the lead up to the offending period he allowed a number of responsibilities and bills to lapse, because he could not muster the motivation to deal with it all. CAR advised that he was not thinking clearly when he made these decisions.”[11]
[11] ARD, p 74.

Dr Yajuvendra Bisht, psychiatrist

Dr Bisht was qualified by the respondent to examine the appellant and provide an opinion on causation. In his report dated 21 February 2019,[12] Dr Bisht opined:
“The symptoms of his psychological condition are primarily caused by the termination
of employment. He did have some symptoms prior to that date, but these symptoms
would qualify as a normal emotional response, I believe, as the worker’s functioning
in various domains of life, was not substantially affected. His functioning at work was
affected by over work rather than a psychiatric condition, prior to the termination of
his employment.”[13]
[12] Reply, pp 24–30.
[13] Reply, p 29.
In a supplementary report dated 20 August 2019,[14] Dr Bisht reiterated that “[m]y finding was that the injury occurred predominantly as a result of the termination of employment.”[15]
[14] Reply pp 22–23.
[15] Reply, p 22.

Dr Ercel Ozser, general practitioner

Dr Ozser, who had been the appellant’s general practitioner for 15 years, provided a report dated 28 August 2019.[16] He diagnosed the appellant as suffering from major depression with features of anxiety since December 2017, which was a significant exacerbation of previous anxiety and depression. Dr Ozser attributed the exacerbation to the period of the appellant’s employment with the respondent “during and following his employment …”[17] and was of the opinion that the appellant’s employment was a substantial contributing factor to the injury within the meaning of s 9A of the 1987 Act.

The evidence relied upon in the application for reconsideration

[16] ARD, pp 98–99.

[17] Dr Ozser’s report, ARD, p 98.

The appellant’s application for reconsideration

On 25 May 2020, the appellant, who was not legally represented at that time, wrote to the Commission seeking to have the Consent Orders set aside and orders made in his favour. The appellant was critical of the original Arbitrator’s conduct on the day of the conciliation/arbitration. The appellant said that:
“On the day of the Conciliation, I did not know what was going on the whole time I was there. I was so confused and anxious. I was not feeling well as I am taking Lexapro. When the Arbitrator brought everyone together in the room, I thought that, that was the start of the process, as it turned out. It was not.”[18]
[18] Reconsideration request, p 2.
On 29 May 2020, the appellant forwarded a large bundle of unpaginated documents in support of his application for reconsideration. Relevantly, those documents included:
(a)    an email for sent by the appellant’s former solicitor on 22 November 2019 (the day of the conciliation) at 5.28 pm in the following terms:
“As you are aware, your matter came up for hearing today before arbitrator John Wynyard.
Based on our advice you settled the case on the basis of you being given a payment of $20,000 made up of $18,000 for weekly benefits and up to $2000 for medical expenses, upon the provision of tax invoices and a Medicare Notice of Charge.
We will under separate cover send you a copy of the orders.
We took a view that it was in your best interests to settle the matter on the above basis.
There were problems with the question of liability.
There were also problems in relation to the question of quantum.
There was a real risk that the arbitrator would have found for the Respondent.
Indeed he explicitly said so in our presence and he afterwards expressed the same view to you that there would be an appeal which by definition means that he would have found for the Respondent.
The advantage in achieving the settlement is that there will be no published judgement.
There was a real risk that if there was a published judgement it would have contained adverse findings of credit made against you, which would have deleterious effects not only on your job prospects but also on your health.
For this reason we were satisfied to recommend a settlement and you correctly in our view accepted our advice.
There were many other extraneous issues in your case which would have had a deleterious effect on your workers compensation case, including but not limited to, the finding in relation to the section 32 application.
This is effectively brings [sic] to an end your workers compensation proceedings and entitlements.
You theoretically could bring another claim in the future if there was a dramatic change in circumstances. This is not likely based on the present evidence and your position.
We consider that this was the best result achievable by you.
It therefore follows that effectively this puts an end to your proceedings.
… ”
(b)    a response from the appellant responded to his former solicitor’s email as follows:
“Hi Con,
Thank you for your email.
I am very disappointed with this outcome and I feel like I was played so that everybody could go home early.
Not once did we all sit together and discuss the issues with the other side.
I have been in Residential Tribunals before and both sides should have had a discussion in front of each [other] and then the Arbitrator advises on possible outcomes.
Why didn’t this happen?
The way that you both behaved in regards to the Arbitrator, left me speechless. It is like you both didn't want to argue with him to prove my case. I am still stunned as this is what I was waiting for to begin. Settlement offers usually come after a discussion with all parties, not 5 minutes after entering the room.
I made it very clear, numerous times, that I did not come this far to settle. I told you this when you were sitting next to me and when all the commotion was going on where people were walking in & out of the room.
On Monday morning I am going to contact the Workers Compensation Commission and WIRO and make a formal complaint. I feel that procedures have not been followed properly.
I don’t care about the repercussions, I have already lost plenty so there is nothing else to lose now. The [Arbitrator’s] conduct was disgraceful. He was arrogant and very cocky. I will not sign any documents from the [Insurer’s] Solicitor till my case is reheard. I will also be complaining about the phone conference that day in your office and how it was cut short and the way that this has dragged on.
EML accreted [sic, accepted] liability till I told Madeline that I was being sent to a Psychiatrist. I do not understand why you did not dispute the Liability decision back in April 2019, I could have still been receiving, instead you waited for 7 months to do so, so that you could do the PI Claim & Liability Claim, all in one go.
I have had no income except $200 pw from Centrelink. My mother is not rich. She is 74 and had to mortgage the house so that we could survive.
$20K offer is a joke. This won’t even cover any of my expenses that are all in arrears. I am at the Repossession Stage now for my Car and my property will still be in arrears.
I am not fully recovered yet.
Also please note, that on the day of the hearing I had a Certificate of Capacity which states that I should not have been put into environment where I can become stressed. If I knew this was going to happen, I would have brought a family member with me.”
(c)    a letter from the appellant dated 25 November 2019 directed to the President of the Commission, making the following complaint:
“I refer to my recent experience on 22 Nov 2019 at the Workers Compensation Commission (Commission).
The Arbitrator was John Wynyard.
…
I was in attendance for a Conference and Hearing regarding my matter.
The proceedings did not run in accordance with the Commissions guidelines. I found the whole process confusing and the [Arbitrator’s] conduct should be called into question.
I had read the [Commission’s] website about the process for today. I was waiting for the Hearing to begin. I assumed that we would all meet together first, acknowledge who we were, then told to have a discussion. If we could not agree or even try to settle the matter, we would then separate or just agree to tell the Arbitrator that we needed his guidance or that he would be involved at all times with our discussions.
Nothing like this happened at all.
There was nobody else in the Conciliation Room, when I arrived with my Solicitor … and his Barrister. I was expecting to see the Respondents there.
Not long after, a man walks in (who much later, I found out it to be the Arbitrator). I was asked to leave the room by the Arbitrator as he wanted to have a word with my Representatives.
About 5 mins later, I was called back into the room by my Representatives and the Arbitrator was gone. I went to sit down and join my Solicitor and Barrister, who both told me the following;
The Arbitrator had advised that he had limited time today, he had no intention of wasting ‘his’ valuable time with a liar and that nothing would change his mind. The Determination was already decided by him, in favour for the Respondent. If they wanted me to get something, then I should settle. They told me that he was like a bully and very determined to get his way.
I was stunned. How is this fair? I was being unfairly treated by the Arbitrator who already formed an opinion of me.
I was shaking and becoming anxious and couldn’t think. I would have brought a family member in with me, if I knew that I [was] going to be in this frame of mind.
The Arbitrator had already decided the outcome, that I did not suffer any injury and that there was no point for my Representatives to present a case. Isn’t he supposed to be impartial?
As I sat there in disbelief with what I was just told, the Arbitrator, John walks in and introduces himself to me, stating that he was there to assist us today. I didn’t know how to react after what he just told my Representatives. I noticed that he kept looking at his watch and then walked out of the room as quickly as he came in.
10 mins later…. in walks the Respondents who handed the Arbitrator a document.
It was a Certificate of Determination of Consent Orders.
It was already typed up. It was already prepared.
I had no idea what was going on, so I just sat there. Waiting for the Hearing to begin.
Everything was confusing and moving very quickly.
The Arbitrator handed out some papers around the table, everyone seemed to be signing and it missed me, so I was given a page to sign and I just signed in the middle. I later realised that there were two pages. They were not stapled or marked with Page 1 or Page 2.
I thought we had signed an acknowledgement of attendance for the hearing.
The Arbitrator then read the document as he recorded himself, then turned it off.
I found this strange as I thought the hearing was already being recorded.
I then turned to my Solicitor and said, “what was going on? Are we having a break?”
He said, “No, its over”
I was so mad and told what does he mean, he said, “you settled”
“I settled on what?” we had not had any group discussion about any of the issues or agree[d] to what consent orders were going to be made. I don’t recall
I had been waiting for this to happen since we arrived.
I was told that the Arbitrator had already made his decision. When I read through the Consent Orders, there is no way, I would have agreed to any of it, let alone sign it, especially consenting that I had fully recovered and that I was now able to earn even more money than before.
As far as I am concerned, the Arbitrator did not follow any ‘Code of Conduct’.
-There were no procedures in place.
-He allowed for consent orders to be made, without both parties being present.
-Documents were signed and not numbered. There could have been more than two pages …
-The Arbitrator did not act impartial
-The hearing was not recorded.
-There was no other representative of the Commission in the room, as a witness, like there is at NCAT.
…
I don’t want to be an inconvenience to anyone, but can I please request that consideration be given to allow for this matter to be determined again by a different Arbitrator.
I have lost so much already and thought that this was over, but the orders made are going to put me in a worse off position. The Arbitrator has treated me unfairly, not understanding me or showing [me] any empathy.
I want justice for what has happened to me, that’s all.
I hope that you will accept my request.”
(d)    a response the from the Registrar of the Commission dated 24 Januray 2020, in which the Registrar observed that:
“Mr Wynyard recalled the sensitive nature of the case. He advised that he introduced himself and explained how a negotiated settlement may be in your best interests and that he invited you to ask any questions about the proceedings. Mr Wynyard advised that he wanted to discuss the case with both barristers to ascertain whether there was any prospect of settling the case or whether it was required to go to an arbitration hearing. Mr Wynyard then left the conference room to allow the parties an opportunity to discuss the matter.
Mr Wynyard denies that he made any representations to your legal representatives that he had no intention of wasting his time with a liar and nothing would change his mind, and that he had decided your case in favour of the respondent.
The allegations are also not supported by your solicitor at the time, ... [who] reported that the conciliation conference proceeded in the usual way, and the parties were able to resolve the claim according to your instructions to settle the matter and that you signed the consent orders;”
(e)    in the same document, the Registrar dealt with a separate complaint made by the appellant about the conduct of a different Arbitrator during a telephone conference on 21 October 2019. The Registrar determined that he was satisfied, on the basis of the Arbitrator’s response which was corroborated by the response from the appellant’s former solicitor, that the Arbitrator had conducted herself appropriately and there had been no beach of the Code of Conduct;
(f)    in an email dared 26 November 2019, the appellant’s former solicitor advised the Workers Compensation Independent Review Office (WIRO) that the appellant’s entire proceedings had been settled for an amount of $20,000, including an award being entered in favour of the respondent for the claim for permanent impairment pursuant to s 66 of the 1987 Act. The solicitor wrote:
“The client instructed us to accept the offer, but later due to his medical condition, stated that he was going to complain …, principally because of the behaviour of the arbitrator.”
(g)    a copy of the Consent Orders bearing the signature of the appellant, his former solicitor and the solicitor for the respondent on the second page. The copy was consistent with the Consent Orders issued by the Arbitrator.

THE ARBITRATOR’S REASONS

The Arbitrator provided a summary of the steps taken leading up to the issuance of the Certificate of Determination recording the relevant Consent Orders. The Arbitrator noted the terms of the Consent Orders and further noted that the appellant sought a reconsideration of the Consent Orders on the basis that those orders were unjust and were entered into without his proper consent.
The Arbitrator reviewed the Commission’s power to reconsider any matter which had been dealt with, and to rescind, alter or amend any decision of the Commission, in accordance with s 350(3) of the 1998 Act. The Arbitrator referred to the decision of Roche ADP (as he then was) in Samuel v Sebel Furniture Ltd,[19] and quoted from Roche ADP’s summary of matters that were relevant to the exercise of the Commission’s discretion to reconsider a decision. The Arbitrator observed that there were a number of Presidential authorities that adopted the same approach and that Harrison AsJ cited the decision with approval in Railcorp NSW v Registrar of the WCC of NSW,[20] saying that:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear-cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”[21]
[19] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
[20] [2013] NSWSC 231 (Railcorp).
[21] Railcorp, [56].
The Arbitrator said that there was no issue that the power to reconsider extended to a reconsideration of consent orders and in fact there was Presidential authority to that effect. The Arbitrator also observed that it was established in Samuel that, in an application for reconsideration, it was not necessary to show that exceptional circumstances existed, and the Commission should exercise its discretion in a beneficial manner.
The Arbitrator summarised the submissions made by both parties, noting that the appellant’s version of the events that transpired at the original arbitration was set out in the letter to the President of the Commission dated 25 November 2019. The Arbitrator said that in the appellant’s application, the appellant relied heavily on the fact that, at the original arbitration, the respondent produced consent orders that were already prepared and in typed form. The Arbitrator observed that where experienced practitioners appeared in the Commission, it was quite common that pro forma settlement documents would be pre-prepared, to which any appropriate alterations could be made on the day of settlement. The Arbitrator acknowledged that in the context of contentious litigation where the worker suffered from a psychological injury, the production of such a document might suggest that the legal representatives may have entered into the agreement without input from the worker. The Arbitrator said, however, that it was not suggested that in this case, the legal representatives had done so, and it was apparent that it was the appellant’s perception of the events as to what had occurred.
The Arbitrator referred to the appellant’s submission that the potential claim which had been brought by the appellant involved valuable weekly compensation and that it was not a fait accompli that the appellant’s case would fail. The Arbitrator observed that nonetheless, the nature of proceedings in the Commission is such that the parties are aware ahead of the proceedings of the issues in dispute and, in this case, there could be no doubt that the defence raised by the respondent pursuant to s 11A of the 1987 Act involved an extremely contentious argument.
The Arbitrator concluded that the appellant had failed to demonstrate circumstances which warranted a reconsideration of the matter. He provided the following reasons:
(a)    the appellant was represented at the original arbitration by competent and experienced counsel and solicitors;
(b)    on the day after the Consent Orders were entered, the appellant showed “remarkable acuity” in lengthy and detailed letters to various authorities, including the President of the Commission. This was inconsistent with the appellant’s claim that he was in a state of confusion;
(c)    there was no contemporaneous evidence about the appellant’s state of mind and ability to comprehend matters on or around the arbitration day, and little weight could be placed on the opinion of Dr Canaris as to the appellant’s state of mind months beforehand. In that regard, the only evidence about the appellant’s state of mind on the arbitration day was that of the appellant himself;
(d)    although the email forwarded to WIRO from the appellant’s former solicitors suggested that the Arbitrator’s attitude was less than diplomatic, there was nothing in the correspondence to various authorities that indicated that the appellant had not provided informed consent to the settlement;
(e)    there was no corroboration in that correspondence in respect of the appellant’s allegation that he was so over wrought that his state of mind and emotional state were impaired. Such characteristics would have been likely to have come to the attention of the appellant’s legal representatives;
(f)    the email from the appellant’s former solicitor indicated that the appellant had provided instructions to resolve the matter in the terms reflected in the Consent Orders and the fact that the appellant subsequently seeks to resile from the agreement is not of itself sufficient to warrant a reconsideration;
(g)    the importance of finality in litigation is significant;
(h)    the nature and character of the respondent’s defence brought pursuant to s 11A of the 1987 Act was a significant hurdle for the appellant to overcome if he had proceeded to have the matter determined, and
(i)    in the light of the inconsistencies in the histories provided to medical practitioners, together with the somewhat equivocal opinion of Dr Canaris in relation to the s 11A defence, the settlement represented a reasonable compromise of the appellant’s claim.
The Arbitrator observed that the actual application for reconsideration was filed approximately six months after the settlement. He did not consider that the delay involved any significant prejudice to the respondent, when the appellant had flagged his change of position in correspondence to the Commission just days after the Consent Orders were entered.
The Arbitrator said that, in accordance with the decision in Railcorp, he had weighed up the competing principles of finality of litigation and the requirement to put right any plainly apparent injustice. He concluded that he did not consider that the settlement represented any injustice to the appellant. He reiterated that the matter was contentious, and there was a real risk that if the appellant proceeded to arbitration, he would have lost. Further, the evidence from the appellant’s former solicitor, which the Arbitrator accepted, showed that the appellant had provided instructions to resolve his claim on a compromise basis in a manner consistent with the Consent Orders.
The Arbitrator said that in approaching the matter in a beneficial way, the settlement was a reasonable compromise and the facts did not establish that an injustice had occurred. The Arbitrator concluded that he would not exercise his discretion to reconsider the matter and, accordingly, refused the application for reconsideration.
The Certificate of Determination issued on 31 August 2020 records:
“The Commission determines:
1. The application for reconsideration is refused.”

GROUNDS OF APPEAL

The appellant’s grounds of appeal are somewhat poorly expressed. The appellant brings six grounds of appeal, alleging error on the part of the Arbitrator, (rephrased by me for clarification purposes) as follows:
(a)    Ground One: by failing to properly exercise the Commission’s discretion whether to grant the reconsideration sought by the appellant;
(b)    Ground Two: by not referring to and not taking into account the appellant’s submission in reply as to the appellant’s lack of understanding and consent to the specialised terms in the Consent Orders and their meaning, as opposed to the monetary value of the settlement;
(c)    Ground Three: by failing to find whether a durable and properly consented to settlement had been achieved;
(d)    Ground Four: by finding that the solicitor’s email dated 26 November 2019 recounted the provision of instructions to resolve the matter on the terms which were entered;
(e)    Ground Five: by finding that the settlement did not represent any injustice to the appellant because the contemporaneous evidence (which the Arbitrator accepted) established that the appellant provided instructions to compromise his claim in a manner consistent with the Consent Orders, and
(f)    Ground Six: by not addressing or not considering the lack of prejudice to the respondent when exercising his discretion.

LEGISLATION

Section 350(3) of the 1998 Act provides:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

SUBMISSIONS

Ground One