Coles Myer Limited v Tabassum

[2005] NSWWCCPD 16

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Coles Myer Limited v Tabassum [2005] NSW WCC PD 16

APPELLANT:  Coles Myer Limited

RESPONDENT:  Rukhsana Tabassum

INSURER:Coles Myer Limited

FILE NUMBER:  WCC 18161-04

DATE OF ARBITRATOR’S DECISION:          8 February 2005

DATE OF APPEAL DECISION:  18 March 2005

SUBJECT MATTER OF DECISION:                Refusal to admit late document; denial of procedural fairness

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant: Landers & Rogers Lawyers

Respondent: McDonnell Schroder Solicitors & Conveyancers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant is to pay the Respondent Worker’s costs in this appeal, as agreed or assessed.

THE APPEAL

1. Mrs Rukhsana Tabassum, the Respondent Worker (Mrs Tabassum) commenced employment as a checkout operator with Coles Myer Limited, Chatswood, at some time in 1995.  Coles Myer Limited (Coles) is the Appellant in this appeal.  Ms Tabassum left soon after and had her second child on 3 July 1996.  In February 1998, she resumed part-time employment with Coles at Chatswood, on a part-time basis, working approximately 21 to 24 hours per week.  Mrs Tabassum transferred to Coles at Winston Hills in July 2000, and worked about the same hours that she worked at Chatswood.  She described her work as a checkout operator as being repetitive and involving lifting items of various weight, scanning and placing them in a plastic bag.  On some occasions, Mrs Tabassum said that she received assistance from other employees who would place the items in the customer’s trolley. 

1. Mrs Tabassum first experienced pain on 13 November 2001, which she claims arose from an injury suffered as a result of the nature and conditions of her employment.  She has provided details of further developments, medical treatment, and the further history of this dispute, arising out of these circumstances.

1. Mrs Tabassum filed an Application to Resolve a Dispute in the Workers Compensation Commission on 5 November 2004, and Coles filed a Reply in response.  The matter came before an Arbitrator at a teleconference held on 8 February 2005.

1. The Arbitrator made the following Direction:

“The Commission therefore directs:

1.The medical dispute is to be referred to an AMS.

2.For the purposes of the referral to the AMS:

-     I admit the late report of Dr Lethlean dated 13 January 2005.

-     I reject late the [sic] report of Dr Jones dated 20 December 2004 as I am not satisfied that the delay in service of the report was reasonable.

-     the surveillance video is not relied on and the report of Quantum Investigations dated 26.2.03 should be removed from the file sent to the AMS.

3.The Respondent is to provide, on or before 30 March 2005, comparable wages information from December 2003.  The Applicant is to provide a wages schedule with supporting documents on or before 15 April 2005.

4.This Direction is to be issued to the parties.”

1. Coles lodged an appeal against this decision in the Commission on 11 February 2005.  The appeal was rejected initially, and then re-filed on 18 February 2005, following compliance with directions issued by the delegate of the Registrar.

1. Coles submits that the order of the Arbitrator allowing the report of Dr Lethlean and not allowing the report of Dr Jones, is a “denial of procedural fairness, natural justice and prejudicial to the respondent.”

1. In this matter I am satisfied that:

   ·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

   ·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),

   ·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5); Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7), and

   ·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).

2. Before proceeding further, I note that in this matter the Appellant is referred to variously as “Coles Myer Limited” and “Coles Supermarkets Pty Ltd”.  The initial proceedings were brought against “Coles Myer Limited” and the name “Coles Supermarkets Pty Ltd” has crept into the file along the way.  I propose to regard Coles Myer Limited as the Appellant, as set out in the citation of this appeal.

ON THE PAPERS REVIEW

1. 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 (6) without holding any conference or formal hearing.”

1. Both parties have indicated that the matter should proceed on the papers.  I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. Mrs Tabassum has lodged an Application to Admit Late Documents, being her submissions in this appeal.  The document was filed on 23 February 2005 and is not in fact, late.  The submissions should have been filed under cover of a Reply to the appeal.  However, the failure to do so is not fatal.  The submissions having been served on Coles, are admitted and are taken into account.

SUBMISSIONS

1. The Appellant submits:

·The matter was referred to an Approved Medical Specialist by the Arbitrator with the consent of the parties.

·An application was made at the teleconference by Coles to formally admit into the proceedings, updated reports from Dr Lethlean, dated 24 December 2004, received 13 January 2005 and Dr Jones, dated 13 December 2004, received 20 December 2004.

·Mrs Tabassum objected to the reports on the basis that Coles had the reports in its possession for a period of approximately one month before the proceedings before the Arbitrator, and also on the basis of natural justice and prejudice to her.  Australian Pharmaceutical Industries Pty Ltd v Scarfone [2004] NSW WCC PD 12 (Scarfone) was cited by Mrs Tabassum.

·Coles responded by submitting that Mrs Tabassum attended the re-assessment with Dr Jones on 10 December 2004 and with Dr Lethlean on 16 December 2004.

·The updated medical reports of Drs Jones and Lethlean were included at item 4.2 in the Reply to Application to resolve a Dispute as information that was intended to be used in the proceedings, but that Coles did “not yet have”.

·The reports were received just prior to the Christmas and New Year period when Coles representatives had just commenced a period of leave.  Mr Parker from Coles, gave verbal evidence that he had not returned from the Christmas/New Year break until the beginning of February.

·It was argued that Mrs Tabassum would not be prejudiced by the reports being admitted into evidence as she and her representatives were aware of Coles’ intention to rely upon both reports.

1. With regard to the decision of the Arbitrator to admit the late report of Dr Lethlean and not to admit the late report of Dr Jones, Coles submit:

·The order is a denial of procedural fairness, natural justice and is prejudicial to Coles.

·The order defeats the purpose of disclosing material in a Reply, which the Respondent in proceedings befor an Arbitrator intends to use but does not yet have.

·Scarfone can be distinguished from the facts of this case.  In Scarfone the Appellant

Employer appealed against the decision of an Arbitrator who refused leave to admit as late evidence into evidence a medical report that formed part of the Reply.  However, the Appellant Employer was well aware of the document’s existence and was given opportunities to disclose the document by way of directions for production as well as a request pursuant to section 126 of the 1998 Act.  Moreover, the appellant employer in that case had not indicated in the Reply that it intended to rely upon the report.

·The order of the Arbitrator should be revoked to avoid actual injustice and unfairness to Coles, and the late report of Dr Jones should be allowed into evidence, and a copy provided to the Approved Medical Specialist.

1. Mrs Tabassum submits:

·The decision of the Arbitrator is not affected by legal, factual or discretionary error.

·Mrs Tabassum’s solicitor received Dr Jones’ report by way of facsimile transmission one day before the teleconference, some eight weeks after the date of the report.

·Had the Arbitrator allowed Dr Jones’ report into evidence and allowed Mrs Tabassum time to rebut it by referral to her doctor, there would have been a delay in referring the matter to an Approved Medical Specialist.

·The “aim and objective” of item 4.2 of the Reply is not to allow a Respondent in proceedings before an Arbitrator, to delay service of material.  Coles and its legal representatives ought to have ample resources and systems in place to overcome the situation outlined by Coles in its submissions on appeal, with regard to leave taken over the Christmas/New Year period.

DISCUSSION AND FINDINGS

1. The details of the circumstances surrounding the refusal by the Arbitrator to reject the late report of Dr Jones are not set out in any detail in the Arbitrator’s Direction of 8 February 2005.  However, the parties have provided that information, and having regard to both accounts, there is no dispute as to those circumstances.  Both parties have given every indication that they are fully aware of the Arbitrator’s reasons for his decision.  It is not clear to me why the Arbitrator distinguished between the reports of Dr Lethlean and Dr Jones, admitting the former into evidence but not the latter.  However, the admission of Dr Lethlean’s late report is neither an issue nor in dispute, in this appeal.

1. For the purposes of these proceedings, Rule 40(2)(a) of the Workers Compensation Commission Rules 2003 (the Rules) provides that a Respondent in the proceedings may not introduce evidence that has not been lodged with the Reply unless a statement has been lodged and served with the Reply, on the other party, revealing the specific nature of the evidence; the reliance that is intended to be placed upon it; the reasons why the evidence is not available at the time of service, and the time when it is expected to be available. Rule 40(2)(b) provides that the evidence must be served on all other parties and lodged as soon as practicable after the evidence becomes available. This is qualified by Rule 40(3), which provides that the Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of Rule 40(2).

1. It is clear that the report of Dr Jones, dated 13 December 2004 came into the hands of Coles no later than 20 December 2004, being the Monday before Christmas Day.  Dr Lethlean’s report dated 24 December 2004 came into the hands of Coles no later than 13 January 2005.

1. I agree that the facts and circumstances of Scarfone are somewhat different to the facts and circumstances of the instant case.  However, some of the factors that an Arbitrator might take into account in considering the admission of late documents, including in circumstances such as existed in the proceedings before the Arbitrator in this case, are set out in paragraph 25 of Scarfone, referring to ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD 21 (ADCO).  Briefly these are:

·Whether there was an acceptable explanation for the delay

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

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

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

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

·General considerations of fairness and justice between the parties

1. There is little information available that enables me to assess the extent to which the Arbitrator took all of these, and other factors, into account in rejecting Dr Jones’ late report.

1. The Arbitrator clearly decided that the explanation for the undue delay in lodging Dr Jones’ report in the Commission and serving it on Mrs Tabassum, was not acceptable, for reasons that were obviously made clear to the parties.  I agree with his finding in this regard.  The report was in the hands of Coles’ solicitors before the beginning of the Christmas/New Year holiday break.  In any event, I agree with Mrs Tabassum that it was incumbent upon both the solicitors and Coles to ensure that the report was lodged and served in accordance with the requirement in Rule 40(2)(b), that is, “as soon as practicable after the evidence becomes available”.  Failure to do this should not be construed against Mrs Tabassum.  It is difficult to believe that everything, including compliance with statutory requirements in respect of proceedings in which they are involved, came to a halt in the offices of Coles and its solicitors, from and including 20 December 2004 until after the end of January 2005.

1. I do not agree that the order of the Arbitrator “defeats the purpose of disclosing material in the Reply which the respondent intends to use but does not yet have.”  The failure by Coles and its legal representatives to comply with Rule 40(2)(b was the direct cause of the delay, not the fact that the material was not available.  Clearly, it was available at least seven weeks before the teleconference and there was no lack of opportunity to produce it in plenty of time.

1. In terms of prejudice to the parties, admitting Dr Jones’ late report into evidence in the prevailing circumstances, and at that exceedingly late stage, would have given rise to prejudice to Mrs Tabassum.  Such prejudice clearly outweighs any prejudice to Coles that may have been occasioned by the Arbitrator’s decision to reject the report.  In essence, Coles’ own conduct in this matter was the cause of any prejudice to it that may have arisen.  It would be unjust to visit any prejudice upon Mrs Tabassum, in these circumstances.    

1. In my view, there is no justification for invoking Rule 40(3) as, in balancing the interests of the parties, there is little if any evidence of actual injustice to Coles.  On the other hand, injustice would arise if Mrs Tabassum were to be disadvantaged by the failure of Coles to comply with the Rules.

1. Coles submits that the order of the Arbitrator is a “denial of procedural fairness, natural justice and prejudicial to the respondent.”  There is no elaboration of this assertion, and in any event, I can find no evidence to support it.

1. I find that the Arbitrator has not made any error or law, fact or discretion in this case, and that the decision that he made to exclude the late report of Dr Jones was reasonable, in all of the circumstances.  The appeal is unsuccessful.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant is to pay the Respondent Worker’s costs of this appeal, as agreed or assessed.

Gary Byron

Deputy President  

18 March 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE