Ceccato v Australian Steel Mill Services Pty Ltd (No 2)

DETERMINATION OF A RECONSIDERATION APPLICATION IN RESPECT OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:	Ceccato v Australian Steel Mill Services Pty Ltd (No 2) [2021] NSWWCCPD 6
APPELLANT:	Michael Ceccato
RESPONDENT:	Australian Steel Mill Services Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-739/20
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	28 April 2020
DATE OF APPEAL DECISION:	14 September 2020
DATE OF RECONSIDERATION DECISION:	29 January 2021
SUBJECT MATTER OF DECISION:	Reconsideration application pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Griffiths, solicitor
Melinda Griffiths Lawyers
Respondent:
Ms R Hickie, solicitor
Moray & Agnew lawyers
ORDERS MADE ON RECONSIDERATION:	1. The appellant’s application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 to reconsider the Commission’s decision dated 14 September 2020 is refused.

INTRODUCTION

This matter involves a psychological injury suffered by Michael Ceccato (the appellant) in the employ of Australian Steel Mill Services Pty Ltd (the respondent). The dispute was originally determined by Arbitrator McDonald on 28 April 2020.[1] The Arbitrator accepted that the respondent had established a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). An award was entered in the respondent’s favour. The appellant brought an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appeal was lodged out of time and could not be made in compliance with s 352(4) of the 1998 Act in the absence of an extension of time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 (the Rules).
[1] Ceccato v Australian Steel Mill ServicesPty Ltd [2020] NSWCC 131 (arbitral decision).
I dealt with that appeal and a decision was issued on 14 September 2020. After a consideration of the grounds on their merits, I concluded that the appeal did not have reasonable prospects of success. Additionally, I found the appellant had not demonstrated the presence of ‘exceptional circumstances’ within the meaning of r 16.2(5) of the Rules. I concluded that loss of the right to appeal would not work demonstrable and substantial injustice. I declined the appellant’s application to extend time.[2]
[2] Ceccato v Australian Steel Mill ServicesPty Ltd [2020] NSWWCCPD 58 (appeal decision), [135]–[137].
The factual background to the proceedings, together with a summary of the Arbitrator’s reasons, are set out in the appeal decision.[3]
[3] Appeal decision, [1]–[5] and [6]–[24] respectively.

THE PROCEDURAL BACKGROUND

The appellant forwarded the reconsideration application to the Commission’s Registry on 7 October 2020. It seeks the admission of 15 annexed documents as items of new evidence.[4] It seeks orders that the Arbitrator’s decision be rescinded and that a weekly award be made in favour of the appellant.[5] It identifies 18 “Grounds for Reconsideration”,[6] which are in the nature of appeal grounds alleging error. The application sets out submissions dealing with why there was delay in bringing the reconsideration application.[7] It makes submissions dealing with why the decision should be reconsidered rather than appealed.[8] The reconsideration application then sets out 62 pages of submissions in support of the 18 identified grounds.[9] It also has 23 pages of attached annexures.[10]
[4] Reconsideration application, pp 1–2, p 10.
[5] Reconsideration application, p 11.
[6] Reconsideration application, p 11.
[7] Reconsideration application, p 13.
[8] Reconsideration application, p 14.
[9] Reconsideration application, pp 14–76.
[10] Reconsideration application, pp 77–100.
The respondent’s solicitors lodged submissions in reply dated 27 October 2020. These refer to the summation by Roche ADP, in Samuel v Sebel Furniture Ltd,[11] of the principles governing reconsideration applications. (The appellant refers to the same passage although attributes it to an arbitral decision in which it was applied.) The respondent submits that the material in the schedule of new evidence, on which the appellant relies, involves material that had already been dealt with on the appeal, material that was available at the time of the arbitration hearing, or material that could have been obtained at the arbitration hearing with reasonable diligence. It submits that the appellant seeks to cavil with the arbitral and Presidential decisions, which is an improper use of the reconsideration power. It submits the position of the respondent also should be considered. This includes costs implications. It submits there is a public interest that litigation should not proceed indefinitely, and the discretionary power to reconsider should not be exercised in the circumstances. The respondent submits the reconsideration power should not be used to correct alleged errors of fact, law or discretion.[12]
[11] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel), [58].
[12] Respondent’s submissions, [4], [6]–[8], [10]–[12].
The reconsideration application, in its heading, referred to both the arbitral decision dated 28 April 2020 and the Presidential decision dated 14 September 2020. The orders sought identified the arbitral decision as that which should be rescinded. The submissions referred extensively to alleged error in the arbitral decision, but also made some references to the Presidential decision.[13] The Commission initially proceeded on the basis that reconsideration was sought of the arbitral decision and arranged a telephone conference in the matter with the Arbitrator. The Commission subsequently wrote to the appellant informing him that the telephone conference was cancelled and that I was to deal with the reconsideration application.[14] The appellant requested that an alternative member deal with the reconsideration application as it “points out errors not only in the findings of the Arbitrator, but also the DP”.[15] He said he did not believe that he would “receive a fair hearing”.
[13] See for example Reconsideration application, [1.5.2] and [4.3.1].
[14] Email from Mr Hampson to the appellant, 11/11/2020.
[15] Email from the appellant to Mr Hampson, 12/11/20.
The Commission’s Director, Legal Services, in an email dated 16 November 2020, advised the appellant that the “pathway for appeals is from an arbitrator to a presidential member and then to the Court of Appeal”. The email stated that in the “current application the matters that are raised appear to be arguments about errors of fact, law or discretion”. The letter stated that an “arbitrator does not have the power to consider the correctness of the decision of a presidential member”. It said the reconsideration application “must be dealt with by a presidential member”. The correspondence referred to Practice Direction No. 17 which provides that reconsideration applications will usually be determined by the original decision maker. The Director stated that disagreement with the outcome did not of itself establish that there may be a lack of fairness. He said the Commission would not depart from its usual practice. He asked whether the appellant wished to proceed with the reconsideration application, noting the other recourse was an appeal to the Court of Appeal.[16]
[16] Email from Mr Wright to the appellant, 16/11/20.
The appellant responded in a letter that was attached to an email dated 18 November 2020. It stated that the appellant wished to proceed with the reconsideration application. The appellant said that his concerns related to the handling of evidence in the matter. The letter set out approximately three pages of submissions which were critical of alleged errors in both the arbitral and Presidential decisions. The Director responded in an email dated 19 November 2020. He noted that the appellant wanted his reconsideration application to proceed to a Presidential member. He stated that in accordance with Practice Direction No. 17 the reconsideration application would be referred to me.
The Commission, on 19 November 2020, forwarded the further items of correspondence from the appellant, that post-dated the reconsideration application itself, to the respondent’s solicitors, stating that it was “not clear what parts of this correspondence [have] been copied to the respondent”.[17] The respondent was given until 3 December 2020 to respond to those further submissions. The respondent did not put on additional submissions.
[17] Email from Mr Hampson to Ms Hickie, 19/11/20.
The appellant, in the index to the reconsideration application, described himself as the author of the “Grounds for Reconsideration” and the various submissions in that document. There was no reference in the lodged document to him being legally represented on the reconsideration application.
Following a query from the respondent’s solicitors regarding whether the appellant was represented, the Commission on 19 November 2020 forwarded an email to the appellant enquiring whether he was unrepresented, or represented by Melinda Griffiths Lawyers, who previously acted for him on the appeal. The appellant advised by email on the same date that he was represented by Melinda Griffiths Lawyers. On 20 November 2020 the Commission forwarded copies of the emails exchanged, from 11 November 2020 onwards, to Melinda Griffiths Lawyers. On 25 November 2020 Melinda Griffiths Lawyers confirmed, by email, that that firm was acting for the appellant, and that the appellant’s correspondence would be forwarded through the firm.
The appellant forwarded a further email to the Commission dated 23 November 2020. It attached a 15 page document headed “Submissions for Reconsideration Application Teleconference”. It was described as a document that stated “the principles I rely upon” in considering the reconsideration application, and a “summary of the main points that I prepared as verbal submissions for the teleconference”. It also sought to add an additional document, an email from the managing director of Mentor Services stating that neither the appellant or any representative of his had contacted that firm requesting case notes, prior to the appellant’s request on 29 April 2020.

SOME PRINCIPLES GOVERNING RECONSIDERATION APPLICATIONS

The reconsideration power is to be found in s 350(3) of the 1998 Act:
“(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.”
In Hilliger v Hilliger[18] Street CJ dealt with a provision, similarly worded to s 350(3) of the 1998 Act, in the Landlord and Tenant Amendment Act 1948. The decision of Hilliger was applied by the Court of Appeal, to the exercise of the reconsideration power (at the time s 36(2) of the Workers’ Compensation Act 1926) by the then Workers Compensation Commission of New South Wales, in Hardaker v Wright & Bruce Pty Ltd.[19] Their Honours Owen and Walsh JJ referred to “the width of the power” and said:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision to see that justice is done between the parties.”[20]
[18] [1952] SR (NSW) 105 (Hilliger), 108.
[19] [1962] SR (NSW) 244 (Hardaker).
[20] Hardaker, 248.
Schipp v Herfords Pty Ltd[21] involved the reconsideration power, at a time when it was found in s 36(2) of the Workers’ Compensation Act 1926, and the provision for appeal to the Supreme Court was found in s 37(4) of that Act. Samuels JA (Reynolds JA agreeing) said:
“To my mind, there was much more involved here than delay alone. First, the worker had not brought the appeal to this Court for which s 37(4) provides. It seems to me that the terms of s 37 as a whole clearly intend that the primary mode of challenge to errors of law is to be by appeal to the Supreme Court. I say ‘primary’ because such errors may be dealt with also under s 36(2). But I do not think that these review provisions are to be regarded as fully alternative to the right of appeal. They may be capable of doing the same work, but the extent to which they should be permitted to perform the same function ought properly to be controlled, and the means of control is to be found in the discretion.”[22]
[21] [1975] 1 NSWLR 412 (Schipp).
[22] Schipp, 426C–D.
In Maksoudian v J Robins & Sons Pty Ltd Bishop J said:
“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.”[23]
[23] [1993] NSWCC 36; 9 NSWCCR 642 (Maksoudian).
In Galea v Ralph Symonds Pty Ltd, O’Meally J said “[t]here is a distinction between fresh evidence and more evidence”.[24]
[24] [1989] NSWCC 4; 5 NSWCCR 192.
It is helpful to quote the passage from the decision of Roche ADP in Samuel that was referred to in the submissions of the parties:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.     the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
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 (‘Schipp’);
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 (‘Hilliger’);
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 (‘Maksoudian’);
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 (‘Hurst’), and
9.     the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”[25]
[25] Samuel, [58].

THE APPELLANT’S ‘FRESH EVIDENCE’

Neither party has sought an oral hearing. It is appropriate in the circumstances to deal with the application ‘on the papers’.
My power to deal with the reconsideration is pursuant to s 375 of the 1998 Act. The appellant seeks leave to admit ten items of fresh evidence which are described in the Schedule of New Evidence. The principles governing the admission of fresh evidence pursuant to s 352(6) of the 1998 Act apply. These were discussed in the Presidential decision.[26] This included discussion of the decision in CHEP Australia v Strickland,[27] and the two alternative threshold questions in s 352(6) identified in that decision. The second of those threshold questions is where unavailability of the evidence would cause ‘substantial injustice’, in the sense that the result would be different if the evidence were taken into account. In the context of a reconsideration application, it is additionally necessary that the fresh evidence, if it is to change the result, be evidence that satisfies the criteria in Maksoudian (see [16] above).
[26] Presidential decision, [36]–[42].
[27] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
I will not attempt to summarise the appellant’s submissions dealing with fresh evidence on the reconsideration application in their entirety. The documents and a brief summary of the basis on which leave is sought appear below.

Annexure No. 1 – email from Mr Bartkowiak (re: 2016 performance appraisal) dated 21 February 2017

The appellant states that the respondent’s insurer previously had a copy of this document; it was included as an attachment to the appellant’s applications to the insurer for review of its decisions pursuant to either or both of the s 74 and s 78 notices. The appellant submits he asked his previous solicitors to include such attachments in his Application to Resolve a Dispute (ARD) but was told this was not possible as it would make the ARD too large. He submits his former solicitors included some but not all of the attachments. He submits the email provides “tangible evidence” of “a breach of s 344 of the Fair Work Act”, and “irrefutable evidence of pressure and undue influence” on him to sign “the employment contract”. He submits that the failure of his previous solicitors to include “all the attachments to the Request for Reviews” was his reason for changing lawyers after the issue of the Certificate of Determination.[28]
[28] Reconsideration application, p 3.
The document was clearly available for use at the arbitration hearing. It was not, on the appellant’s submissions, included in the ARD by his then solicitors. The appellant’s current solicitors obtained his file on 20 May 2020,[29] after the arbitral decision was issued. The reconsideration that is sought is of the Presidential decision. The last date when an appeal could have been lodged within time was 26 May 2020.[30] The appeal was successfully lodged on 29 May 2020. The appeal included multiple items of ‘fresh evidence’ in respect of which leave was sought pursuant to s 352(6) of the 1998 Act, including a letter and a different email from Mr Bartkowiak.[31]
[29] Presidential decision, [60].
[30] Presidential decision, [74].
[31] Appeal against decision of Arbitrator, p 4.

Settled principles governing reconsideration applications require that fresh evidence, relied on in support of such applications, be “material that with reasonable diligence could not have been put before the Court at the time of the original proceedings” (see [14] and [16] above). Item no. 1 could, with reasonable diligence, have been put before the Commission at the time of the arbitration proceedings. The Commission did not have an arbitrary limit on the size of an ARD. Additionally, there is no apparent reason why leave could not have been sought to rely on Annexure no. 1 in the course of the appeal proceedings. The application in respect of Annexure no. 1 is refused.

Annexures nos. 2(a) – (e), Annexure no. 11: Coversheet and case notes of Ms Rowe dated 23 February 2017, 31 May 2017, 21 June 2017 and 5 July 2017, emails between the appellant and Mentor Services

The appellant sought to admit the case notes as fresh evidence, pursuant to s 352(6) of the 1998 Act, in his appeal proceedings. He submits that, in the appeal, it was mistakenly submitted that these notes were with his original solicitors. The appellant submits that an enquiry he made after the arbitration result indicated this was not correct. He submits his email enquiry of Mentor Services (which had possession of the notes) dated 29 April 2020, and the email dated 6 May 2020 from that entity, state the material was not previously with his lawyers. He submits in respect of the notes that “their existence was not previously known”; the appellant argues the material would have changed the result and this enlivens the discretion pursuant to s 352(6) of the 1998 Act.
Annexure no. 11[32] contains copy emails between the appellant and Mentor Services dated 29 April 2020 and 6 May 2020. The first of these states the appellant confirms his conversation of that date, and requests advice regarding whether clinical notes from his consultations with Ms Rowe are available and the process to obtain them. The second is a copy email from the administration manager of Mentor Services which attaches “a letter of attendance for the dates you accessed our service”. Annexure no. 2(a) is a letter dated 6 May 2020 signed by Ms Rowe, which confirms that the appellant accessed “our service through Australian Steel Mill Service’s Employee Assistance Program on four occasions”, being 23 February 2017, 31 May 2017, 21 June 2017 and 5 July 2017.[33] The appellant relies also on a document attached to his “Teleconference submissions”, from Dr McNamara of Mentor Services.[34] That document, which is dated 2 November 2020, states that the first contact from the appellant or his representative was when the appellant requested the file on 29 April 2020. It indicates the appellant’s previous solicitors contacted the practice on 6 May 2020 to obtain a copy of the clinical file, which was provided. The appellant knew he had been treated there, his statement refers to having four sessions with a lady at Mentor Services in Wollongong, from 23 February 2017 to in or about July 2017.[35] Obtaining information appears to have been as simple as requesting it. There is no basis to conclude that, with reasonable diligence, the notes could not have been available for use at the arbitration.
[32] Reconsideration application, p 95.
[33] Reconsideration application, p 78.
[34] Teleconference submissions, Annexure 16.
[35] Appellant’s statement 15/1/20, [147], ARD, p 31.
The clinical notes of Ms Rowe for the above consultations were attached to the appellant’s Appeal Against Decision of Arbitrator lodged on 29 May 2020. They were the subject of an application to rely on fresh evidence[36] which was dealt with in the appeal decision.[37] These documents were put before the Commission on the Presidential appeal, which is the decision the appellant seeks to reconsider. These notes are not fresh evidence on the reconsideration application. They are evidence that was previously the subject of an unsuccessful application for leave pursuant to s 352(6) of the 1998 Act. The application in respect of annexures nos. 2(b) to (e) is refused. Annexure no. 2(a) is the letter dated 6 May 2020, which could with reasonable diligence have been available for use on the presidential appeal, and which would not affect the result. The application in respect of the case notes and other material from Mentor Services is refused.

Annexures nos. 3 and 4 – text messages

[36] Notice of Appeal, p 4.

[37] Presidential decision, [41]–[52].

Annexure no. 3 is constituted by two text messages between the appellant and Marc Smith on 28 June 2017. Annexure no. 4 is a text message to Peter McConchie (I infer from the appellant) dated 5 July 2017. The text message from the appellant to Marc Smith said that emails sent to the appellant were being sent to “Joy and Richard”, that the appellant was “stuck between a rock and a hard place”, and that the appellant had been directed that he could not “talk to colleagues about work and I take that to mean my situation”. The message from Marc Smith to the appellant essentially acknowledged the appellant’s message and said to let him know if the appellant needed “anything sorted out here” or if the appellant needed someone with him when he spoke to Richard. The text message to Peter McConchie (Annexure no. 4) said the appellant had another appointment with his psychologist, and that “Richard B has directed me that I’m not allowed to talk to colleagues about work and I take that to mean my situation, which has left me feeling very alone”.
The appellant refers to a passage in the Presidential decision which is said to state that the reason “why some actions were not assessed for reasonableness was that the Arbitrator said that the actions occurred after the [a]ppellant ceased work”. This is not referenced to specific passages in either the arbitral or presidential decisions.[38] The appellant submits it is in error, and if it can be established that actions “taken after cessation of work are very relevant” and that they were “deliberate” and contributed to the injury, this new evidence would have produced a different result.
[38] Reconsideration application, p 6.
I cannot see that evidence of the text messages could not, with reasonable diligence, have been obtained for use at either the arbitration hearing or in the presidential appeal. There is no submission that they were not available previously. The appellant went off work from 18 May 2017.[39] Annexures nos. 3 and 4 are evidence of complaint by the appellant about anxiety and his situation at work, to two work colleagues, in June and July 2017. They also indicate the appellant had been instructed not to talk to work colleagues about work. There was evidence in the appellant’s statement that he was anxious around the time he ceased work and that he was directed not to talk to work colleagues.[40] The evidence in annexures nos. 3 and 4 simply tends to corroborate this. The basis for this fresh evidence to enliven the discretion to reconsider the appeal decision is not present. The application in respect of Annexures nos. 3 and 4 is refused.
[39] Appellant’s statement 15/1/20, [124], ARD, p 28.
[40] Appellant’s statement 15/1/20, [122], [135], ARD, pp 27, 29.

Annexure no. 5 – Mr Bartkowiak’s correspondence – frequently asked questions

This is a document dated 14 April 2015 headed “Frequently Asked Questions Change to Terms and Conditions of Employment and Motor Vehicles”. It is addressed to “All ASMS & ECOCEM Staff”. The appellant submits the document “validates the evidence that the Arbitrator excluded from the COD – namely that the option existed to retain the vehicle at the end of the lease with a continuing frozen salary”. The appellant states that “this correspondence was cited verbatim” in the ARD. He submits “the exclusion of this information and of its implications” led to an incorrect finding in the arbitral decision at [176]. It is also submitted there was “error and incompleteness” in the appeal decision at [7].
The nature of the choice offered to employees (including the appellant) in 2015, regarding retention of a company car, was set out in the appellant’s statement in the ARD.[41] The “Car Policy Change” described in Annexure no. 5 is generally consistent with how that issue is described in the appellant’s statement. There is no suggestion that Annexure no. 5 was not available with reasonable diligence to be relied on at the arbitration.
[41] Appellant’s statement 15/1/20, [20]–[21], [31]–[35], ARD, pp 2–5.
Annexure no. 5 was the subject of an application to be relied on as fresh evidence pursuant to s 352(6), in the earlier appeal proceedings. It was dealt with in those reasons at [55]. I observed that the document was “generally consistent with the evidence (from other sources) that was before the Arbitrator regarding the change in policy regarding the provision of cars”. I concluded it is “unclear how it would have changed the result”. The appellant now seeks to reagitate the unsuccessful application.
The document does not satisfy the requirements for the admission of fresh evidence necessary to enliven the discretion to reconsider. It was, with reasonable diligence, available to be used at the arbitration. It is not apparent how it would change the result. The application in respect of Annexure no. 5 is refused.

Annexures nos. 6 and 7– 2020 EBA and 2014 EBA

Annexure no. 6 is a page of the Australian Steel Mills Services Pty Ltd Enterprise Agreement 2020. It includes provision at subparas 26.8(a) and (b) for redundancies. Annexure no. 7 is a page of the Australian Steel Mills Services Pty Ltd Enterprise Agreement 2014. It includes provision at subparas 26.7(a) and (b) for retrenchment and redundancies.[42] The appellant’s submission on what flows from the two documents, and the new contract the respondent sought to introduce, is not easily understood. The changes to redundancy entitlements in the new contract, and the capping of such entitlements for employees such as the appellant, are described in the appellant’s statement which was included in the ARD.[43]
[42] Reconsideration application, pp 88–89.
[43] Appellant’s statement 15/1/20, [28]–[30].
The appellant submits that Annexure no. 6 (the 2020 EBA) provides “factual evidence of the considerable ongoing loss of benefit he would have experienced under the new contract and that its use would change the result”. He submits Annexure no. 6 was signed on 4 August 2020, subsequent to both the arbitration hearing and lodgment of his appeal. He submits they could not have been included previously.
In Northern NSW Local Health Network v Heggie, Sackville AJA said:
“In my opinion, the better view is that the reasonableness of an employer’s action for the purposes of s 11A(1) of the [1987 Act] is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries.”[44]
[44] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [61].
Basten JA to similar effect, in the same case, said:
“In short, in assessing the reasonableness of the action taken by the general manager, the relevant material was that in existence at or prior to the time when the decision was made and communicated to the respondent.”[45]
[45] Heggie, [14].
The appellant submits that he wishes to tender the 2014 Enterprise Agreement “merely for confirmation purposes”, that the new agreement had a “maximum redundancy entitlement period of 49 weeks”. The 2014 agreement could have been available, with reasonable diligence, in the proceedings before the Arbitrator. It is described as evidence that is “confirmatory”. It is not established that it would be likely to change the result. I cannot see that evidence of the 2020 Enterprise Agreement, a document entered into well after the relevant actions of the employer in this case, is relevant to the issue of ‘reasonableness’ that was before the Arbitrator. Additionally, there was already evidence to the effect that changes to the redundancy arrangements contained in the new contract were disadvantageous from the appellant’s point of view. There is a distinction between fresh evidence and more evidence (see [17] above). The application in respect of Annexures nos. 6 and 7 is refused.

Annexure No. 8 – Dr Lal’s report dated 21 February 2019

This a report from a treating psychiatrist to the appellant’s general practitioner. The appellant submits the respondent had previously seen the report as its insurer paid for consultations with Dr Lal and obtained a copy of the report directly from Dr Lal. He submits it was an oversight on the part of the appellant’s original solicitors not to include Dr Lal’s report (I infer, in the ARD). It is submitted that Dr Lal’s report is “paramount to the [a]ppellant’s submissions, particularly in light of the challenge to Dr Whetton’s findings”.[46]
[46] Reconsideration application, p 8.
The appellant previously sought to rely on this report of Dr Lal, as fresh evidence pursuant to s 352(6), in the appeal. That application was dealt with in the appeal decision at [53] and [56]. I observed that the report assisted the appellant’s case on the s 11A(1) issue. I observed that Dr Lal’s history was recorded over eighteen months after the appellant ceased work duties with the respondent, and it was not apparent how it would change the result.[47] I observed there was no explanation of the appellant’s failure to use the report at the arbitration.[48] An explanation is now proffered of oversight. The explanation of how the respondent was said to have previously been in possession of the report, set out in the preceding paragraph, was not made on the application in the earlier proceedings. It was there asserted the report (with other documents) was provided by the respondent to the appellant.[49] It is now submitted this explanation was “an error on the [a]ppellant’s lawyer[’s] behalf”.[50]
[47] Presidential decision, [53].
[48] Presidential decision, [56].
[49] Presidential decision, [56].
[50] Reconsideration application, p 8.
Clearly the report could have been available, with reasonable diligence, to be used at the arbitration. It is a report that the appellant unsuccessfully sought to rely on in the earlier appeal. The appellant now seeks to reagitate his earlier unsuccessful application to rely on it as fresh evidence. Whilst it may assist the appellant’s case, the submissions do not explain how it would change the result. The requirements for satisfaction of the test to rely on fresh evidence in support of a reconsideration application are not present. The application in respect of Annexure no. 8 is refused.

Annexure no. 9 – text messages

Annexure no. 10 – email to Gavin Tory dated 13 January 2017

Annexure no. 9 contains four short text messages, dated 31 December 2016, between Peter Reeves and (I infer) the appellant. The first two involve an interchange of wishes for a happy new year; the appellant (I infer) says in one “here’s hoping for a better 2017 for us all”. There is a message from Mr Reeves that says “Just drop the keys off on Monday mate …”. There is a message from (I infer) the appellant. “It’s getting hard. I’m seeing firsthand some really unethical practices of Bourke/Cross”. The submission in support of the admission of these messages says “Refer as per Annexure 10 reasoning below.”
There was an incident on the night of 4 January 2017 in which a pot carrier drove through a boom gate without it being opened. There was a series of emails dated from 5 January 2017 to 12 January 2017, between the appellant, Mr Bartkowiak and others, regarding the incident and safety precautions to guard against such incidents. These are included in the ARD.[51] Annexure no. 10, the email the appellant now seeks to admit as fresh evidence, is one from himself to Gavin Tory dated 13 January 2017. It states “As discussed. Need to read from the original email below. That’s the end of the matter for me as the ramifications are pretty clear if I pursue, but very disappointing that OH&S issues are handled like this now at ASMS.” The “original email below” is one from the appellant to Mr Bartkowiak dated 11 January 2017.[52] It appears to include interchanges between the appellant and Mr Bartkowiak.
[51] ARD, pp 44–61.
[52] See ARD, pp 55–57.
The appellant’s submissions on admission of this material refer to s 55 of the Evidence Act 1995, which he suggests the Arbitrator has failed to comply with. It should be noted that the Commission is not bound by the rules of evidence: s 354(2) of the 1998 Act.
The appellant submits Annexures nos. 9 and 10 are inconsistent with the following finding of the Arbitrator at [158] of her reasons:
“The overwhelming tenor of the evidence is that the issues which led to the injury and the cessation of work were those related to the contract. Those were the only issues about which Mr Ceccato told Dr Tut and, with one exception, the only issues of which he complained to ASMS in his correspondence.”
The appellant submits Annexures nos. 9 and 10 capture his “contemporaneous complaints to others about the role [of] interference issues, but they also record the psychological impact that these issues were having on the [a]ppellant”.[53] He submits the material is admissible on the basis of the second of the threshold questions identified in Strickland.
[53] Reconsideration application, p 9.
As noted above, the relevant email chain dealing with the incident on 4 January 2017 is already included in the ARD. This includes an email to Barnabas Mate dated 17 January 2017, attaching the same email that is also forwarded to Mr Tory on 13 January 2017. In the email to Mr Mate the appellant says “if you read this, you’ll see that I have to shut up or else I’m going to [be] sacked”.[54] In another email to Mr Mate on 17 January 2017, the appellant says “Must admit the whole episode has left me feeling pretty low. Attached are the docs relating to the original incident.”[55] I cannot see that Annexures nos. 9 and 10 add in any significant way to the material that is already in the ARD dealing with that incident. I do not accept that the material in those annexures is of such a nature that it would change the result. It is more evidence, not fresh evidence (see [17] above). The material was available to the appellant to be used at the arbitration, the submissions do not suggest otherwise. The application for leave to rely on Annexures nos. 9 and 10 is refused.
[54] ARD, p 55.
[55] ARD, p 54.
The appellant’s multiple applications for leave to rely on fresh evidence have failed. With the exception of the “2020 EBA”, which for reasons given above was not relevant, all of the other annexures were evidence that was available, or with reasonable diligence could have been available, to be used in the arbitration. The appellant’s submissions essentially proceeded on the basis that if the various pieces of evidence could be argued to be relevant, they should be admitted pursuant to s 352(6) of the 1998 Act. The test, in the second of the threshold questions identified in Strickland, is a more demanding one than that. Additionally, for fresh evidence to represent a basis for reconsideration pursuant to s 350(3) of the 1998 Act, it is necessary that the fresh evidence be material that with reasonable diligence could not have been put before the Court at the time of the original proceedings (see [14] and [16] above). If the ‘fresh’ evidence does not satisfy that criterion, it cannot be evidence that would change the result, and hence cannot satisfy the second of the threshold questions in Strickland.
If one of the threshold questions in Strickland is satisfied, admission of the fresh evidence remains discretionary. The passage from Hardaker, quoted at [14] above, makes it clear that a party should produce all of the available evidence at the original hearing. A failure to do so militates against exercise of the discretion pursuant to s 352(6). This is consistent with the following passage from the decision of Roche DP in Drca v KAB Seating Systems Pty Ltd to which I referred in the Presidential decision:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.”[56] (emphasis in original)
[56] [2015] NSWWCCPD 10, [28].

EXERCISE OF THE DISCRETION PURSUANT TO SECTION 350(3) OF THE 1998 ACT

The arbitral decision was issued on 28 April 2020. The Presidential appeal was successfully lodged on 29 May 2020, out of time by a matter of days. The Presidential appeal was accompanied by an application to extend time pursuant to r 16.2(5) of the Rules. After a full consideration of the grounds, the application to extend time was refused, on the basis that loss of the right to appeal would not work demonstrable and substantial injustice. This was because the appellant had not demonstrated the presence of ‘exceptional circumstances’ and the appeal did not have reasonable prospects of success. The decision in the Presidential appeal was issued on 14 September 2020. The appellant lodged the reconsideration application under cover of an email to the Registry on 7 October 2020. He was, at that point, within time to lodge an appeal pursuant to s 353 of the 1998 Act, had he wished to do so.
The workers compensation legislation and Rules do not make provision for when a reconsideration application pursuant to s 350(3) may be brought. It is necessary that an applicant for reconsideration “move with appropriate speed and diligence” to bring the matter that is relied on to the Commission’s attention (see [16] above). The reconsideration has proceeded on the basis that it seeks reconsideration of the Presidential decision. The application was lodged within 28 days of that decision. The appellant’s reconsideration application includes submissions dealing with “the delay in the making of the reconsideration application”.[57] It may be these submissions were made under the misapprehension that the appellant was seeking a reconsideration of the arbitral decision. I cannot see that there is any delay requiring explanation in the application to reconsider the Presidential decision.
[57] Reconsideration application, p 13.
The appellant submits that he was diagnosed with a significant health problem in July 2020, which required surgery in mid-2020, with subsequent complications. He submits that this condition, in combination with his psychological injury, made it difficult to cope. He says he developed palpitations which required cardiac monitoring involving an ECG and Holter monitoring.[58] Annexures are attached to the reconsideration application which deal to an extent with these matters.
[58] Reconsideration application, p 14.
The appellant, in his submissions, describes at least one of the medical documents as “highly personal”. In deference to the appellant’s privacy I will refer to the medical matters in a relatively general way. There is a report from a surgeon in March 2020 which refers to some longstanding symptoms, a risk of a serious diagnosis, and the need for a biopsy.[59] A document from St Vincent’s Hospital indicates that investigations and scans were carried out on 16 July 2020.[60] The appellant’s submissions refer to an “operation”[61] but it is unclear from the medical material whether surgery was performed or its nature.
[59] Annexure 13, reconsideration application, p 97.
[60] Reconsideration application, Annexure 12.
[61] Reconsideration application, p 14.
There is a copy of a progress note from the appellant’s general practitioner in May 2020.[62] It says “[f]eels stressed related to a recent decision” and says the appellant is appealing. It includes “Palpitation. No chest pain.” The actions include blood tests, an ECG and a 24 hour Holter monitor. These are diagnostic tests. Dr Tut gave the appellant a prescription for Valium. There is no medical evidence that supports a causal link between discovering the result of the arbitral decision and experiencing palpitations. It is understandable that a lay person might perceive the existence of such a connection. There is no evidence that the cardiac investigations revealed anything untoward.
[62] Reconsideration application, p 100.
The appellant submits he is concerned that an appeal to the Supreme Court would “take an additional toll on his health”. He submits he has not worked for over three years and has a disabled son; he has had and will have expenses associated with treatment of his health condition. He submits he has not received unemployment benefits and that court proceedings would add to his “financial burden”. He submits he does not believe he “can face those rigours if he was to have a concurrent court case”. He submits the decision should be reconsidered rather than appealed.[63]
[63] Reconsideration application, pp 13–14.
The respondent submits there are “cogent reasons which militate against the Commission exercising its discretion to entertain the reconsideration application”. It submits there is a public interest in finality in litigation. It submits the new or additional evidence could have been obtained for use at the arbitration hearing with reasonable diligence. It submits the reconsideration power should not be used for the correction of error. It submits the appellant is seeking to cavil with the decisions of the Arbitrator and the Presidential member.[64]
[64] Respondent’s submissions, [10]–[12].
There is no medical evidence that deals, with any specificity, with the treatment which the appellant has required and will require for his medical condition, its extent and duration, and why this would be inconsistent with the institution of an appeal pursuant to s 353 of the 1998 Act. The Presidential decision was issued on 14 September 2020. On 7 October 2020, the appellant lodged the reconsideration application, a document 76 pages in length, plus annexures. According to the index the appellant was the author of the whole of this document except for the annexures. The evidence as a whole does not support the proposition that the appellant was not able to form a decision, give instructions, and otherwise appropriately involve himself in an appeal pursuant to s 353, if that was the appropriate chosen course.
The appellant’s submissions raise, obliquely, the cost of an appeal. The appellant refers to his “financial burden”. His submissions refer to the treatment costs of his non-work-related condition. It is not apparent whether the figure quoted is one before or after any relevant Commonwealth or medical fund entitlements. The submissions regarding the appellant’s financial position do not indicate his assets or whether he has investment income. There is no evidence regarding the comparative costs of pursuing a reconsideration application as opposed to an appeal pursuant to s 353. One would anticipate the costs of pursuing an appeal pursuant to s 353 would likely be greater. The extent of this would depend on factors such as whether solicitors and counsel were engaged. This is unexplored.
If it is assumed that the appellant’s state of health, and financial position, are relevant matters to consider in deciding whether the discretion should be exercised, what is put forward in the submissions is of little weight.
The reconsideration application is not, in any real way, based on fresh evidence. The fresh evidence the appellant seeks to rely on, to the extent that it is relevant, is evidence that was available, or could with reasonable diligence have been available, for use in the proceedings before the Arbitrator. Hardaker explains that a “party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again”.
The appellant relies on 18 “Grounds for Reconsideration”.[65] These grounds seek to identify error. They read as if they were grounds of appeal. The lengthy accompanying submissions seek to identify error in the arbitral decision and include references to alleged error in the Presidential decision. What the appellant seeks to do in the reconsideration application is to reargue, at length, multiple points which were decided in the arbitral decision, which was then confirmed in the Presidential decision. There is a public interest that litigation should not proceed interminably (see [14] above). The appellant seeks to use the reconsideration power as a full alternative to the provision in s 353 for appeal to the Court of Appeal.
[65] Reconsideration application, pp 11–13.
The 1998 Act provides for an appeal from an arbitrator to a Presidential member pursuant to s 352, and for an appeal from a Presidential member to the Court of Appeal pursuant to s 353. In Schipp the Court of Appeal concluded that failure by a party to use an available right of appeal, provided for in the legislation, was a matter that militated against the exercise of the discretionary power to reconsider. Their Honours said that the terms of s 37 of the 1926 Act (which at the time dealt with the right of appeal to the Supreme Court) “clearly intend that the primary mode of challenge to errors of law is to be by appeal to the Supreme Court”. It was said that the extent to which the reconsideration power should be permitted to perform the same function as the appeal provisions “ought properly to be controlled, and the means of control is to be found in the discretion”.
Section 353(1) provides for appeal by a party aggrieved by a decision in point of law. Section 353(4) provides that various appeals, including an appeal from an interlocutory decision, may only be made with leave of the Court of Appeal. To allow unrestricted challenge against a decision of a Presidential member, by way of reconsideration, has the potential to be inconsistent with how the legislature has provided for a Presidential decision to be challenged in the Court of Appeal. This is consistent with the need, explained in Schipp, to properly control the exercise of the power in s 350(3) by exercise of the discretion. The primary mode of challenge to alleged error of law by a Presidential member is by way of appeal pursuant to s 353 of the 1998 Act, which specifically provides for appeal from a Presidential member to the Court of Appeal. I am not persuaded, in the circumstances of this case, that the Commission’s discretionary power to reconsider should be exercised.
For the reasons given above, the appellant’s application for reconsideration of the Presidential decision in this matter, pursuant to s 350(3) of the 1998 Act, is refused.

DECISION

The appellant’s application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 to reconsider the Commission’s decision dated 14 September 2020 is refused.

Michael Snell
DEPUTY PRESIDENT

29 January 2021

[2021] NSWWCCPD 6

14 September 2020