CSR Limited v Ewins - [2021] NSWPICPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	CSR Limited v Ewins [2021] NSWPICPD 1
APPELLANT:	CSR Limited
RESPONDENT:	Marion Ewins
INSURER:	Self-insured
FILE NUMBER:	A1-3290/18
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	6 October 2020
DATE OF APPEAL DECISION:	4 March 2021
CATCHWORDS:	WORKERS COMPENSATION – Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – interlocutory decision – Licul v Corney [1976] HCA 6; 180 CLR 213, 225, Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200, Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32, [21]–[22]discussed – Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 discussed and applied – acceptance or rejection of evidence – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118 applied – the exercise of discretion as to whether a matter should be referred for reconsideration of a Medical Assessment Certificate in accordance with s 329 of the 1998 Act – Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 discussed and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr D Adhikary, counsel
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal the interlocutory decision dated 6 October 2020 is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. In accordance with r 69 of the Personal Injury Commission Rules 2021, the time for lodging the Notice of Opposition is extended to 8 February 2021. 3. The Arbitrator’s Certificate of Determination dated 6 October 2020 is confirmed.

INTRODUCTION

Ms Marion Ewins (the respondent) suffered a psychological injury in the course of her employment with CSR Limited (the appellant). In 2018, the respondent lodged a claim in the (then) Workers Compensation Commission, claiming weekly payments, treatment expenses and a lump sum in respect of the whole person impairment resulting from the injury. The respondent’s claim for whole person impairment was referred for assessment by a medical assessor (previously known as an Approved Medical Specialist). The claim then followed a rather protracted path, detailed below. Ultimately, the respondent was certified as having a 17% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Several weeks after the assessment by the medical assessor took place, the appellant arranged for video surveillance of the respondent, which apparently disclosed that the respondent attended her local church, an activity which she had reported to the medical assessor that she did not do.
The appellant applied to the Workers Compensation Commission under s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for a reconsideration by the medical assessor of his assessment. The basis for the application was that the surveillance evidence conflicted with the history provided to the medical assessor, which history the medical assessor had considered when assessing the respondent’s social and recreational activities.
After the application for reconsideration had been heard and determined and before the appeal in this matter was finally determined, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[2] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, so that the respective decision makers involved in the respondent’s proceedings became Principal Member Harris and General Member Young. However, as at the time of the various orders made in the proceedings, both decision makers bore the title of Arbitrator, in this decision they will be referred to by their former title of “Arbitrator.”
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

BACKGROUND

The proceedings were commenced on 28 June 2018, pleading a (deemed) date of injury of 28 September 2017. The matter proceeded to:
(a)    arbitration before Arbitrator Harris on 12 September 2018;
(b)    a further arbitration on 9 October 2018;
(c)    several telephone conferences dealing in part with non-compliance of Arbitrator Harris’ directions;
(d)    an application by the appellant for Arbitrator Harris to recuse himself, and
(e)    an application by the appellant to have the respondent re-examined by its medico-legal specialist, Dr John Albert Roberts.
Arbitrator Harris conducted a conciliation conference on 22 March 2019, following which he issued consent orders that the respondent’s claim for whole person impairment was to be referred for assessment to a medical assessor and the claims for weekly payments and treatment expenses were to be determined after the medical assessor issued a Medical Assessment Certificate (MAC).
The respondent was assessed by Dr Wayne Mason, medical assessor, on 5 April 2019 and the medical assessor issued a MAC on 24 April 2019, certifying that the respondent suffered from 17% whole person impairment. The appellant appealed to the Medical Appeal Panel, then subsequently wrote to the Commission, seeking to file late evidence and to amend its grounds of appeal to include reliance on s 327(3)(b) of the 1998 Act. Section 327(3)(b) provides for a ground of appeal from a MAC where additional relevant evidence becomes available which was not available to, and could not reasonably have been obtained before, the medical assessment.
On 20 June 2019, the appellant filed a surveillance report dated 30 May 2019, the admission of which was opposed by the respondent.
On 24 July 2019, a delegate of the then Registrar determined in accordance with sub-s 327(4) of the 1998 Act that she was satisfied that at least one of the grounds of appeal as specified in sub-s 327(3) of the 1998 Act had been made out. She referred the matter to the Medical Appeal Panel (MAP), who confirmed the MAC.
The appellant appealed by way of summons to the Supreme Court. The matter was heard by Adamson J, who dismissed the summons. The appellant then applied to the Commission for a reconsideration of the MAC pursuant to s 329 of the 1998 Act. The matter came before Arbitrator Young (the Arbitrator) and proceeded to arbitration. The Arbitrator issued a Certificate of Determination on 6 October 2020, in which he refused the appellant’s application for a referral to the medical assessor for reconsideration. The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The appellant submits that an oral hearing is required because:
(a) the transcript of the submissions made at arbitration was not available at the time it prepared its submissions on appeal, and
(b) an oral hearing would enable submissions to be made about the appropriate test to be applied in a reconsideration application made pursuant to s 329 of the 1998 Act.
The respondent indicates that an oral hearing is not required, because:
(a)    the transcript has been provided to the parties and the parties have had the opportunity to make submissions with the benefit of the transcript;
(b)    both parties are legally represented, and the appellant has made submissions in relation to each ground of appeal through its legal representative, and
(c)    there is sufficient material before the Commission to enable a Presidential member to determine the appeal.

Consideration

After the appeal was lodged, a delegate of the former Registrar issued a Direction on 6 November 2020, attached to which was the transcript of the proceedings on 1 September 2020. The delegate provided the appellant with the opportunity to file and serve any submissions the appellant wished to make following receipt of the transcript by 20 November 2020. The appellant availed itself of the opportunity to do so on 17 November 2020, when it wrote to the Commission attaching short submissions in relation to the transcript.
The appellant raises alleged errors of fact and law, including an alleged failure to apply the “appropriate test” and a denial of procedural fairness. The appellant also asserts error on the part of the member in his consideration of the public interest. These are not unduly complex areas of law and are matters that are frequently considered at the primary level and on appeal. The appellant does not explain how submissions in relation to these issues could not be adequately traversed in written submissions, or why an oral hearing would be beneficial.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties. I am satisfied that I have sufficient information before me to proceed ‘on the papers’ and that an oral hearing is not required.

THRESHOLD MATTERS

Time and quantum

There is no dispute between the parties that the threshold requirements as to quantum and time to file the appeal pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The respondent, however, did not lodge her Notice of Opposition (Opposition) within the time directed by the then Registrar, which was 8 December 2020.
On 10 December 2020, the Commission sent an email to the respondent’s legal representatives, Gillis Delaney Lawyers, requesting the respondent to advise whether it wished to lodge any Opposition to the appeal application. The Commission received no response to this email and no Opposition was lodged.
The Commission again contacted the respondent’s legal representatives on 27 January 2021, who indicated they would follow the matter up with their counsel. The following day, the respondent’s solicitor contacted the Commission and indicated that counsel retained by him had advised that the Opposition and submissions, including submissions as to why leave should be granted to extend the timetable within which to lodge the Opposition, would be lodged the following day. Yet again, the respondent did not lodge any Opposition and/or application for an extension of time.
A delegate of the then Registrar issued a further Direction to the respondent dated 2 February 2021 in the following terms:
“On or before 4.30 pm on Monday 8 February 2021, the respondent is to make any application she wishes to make to extend time to lodge her Notice of Opposition and to lodge with the Commission and serve on the respondent any Notice of Opposition upon which she seeks to rely.
If the respondent does not lodge a Notice of Opposition and an application for an extension of time by 4.30 pm on 8 February 2021, this matter will be allocated to a Presidential member for determination.” (emphasis in the original)
A Notice of Opposition, which included submissions as to why the time for lodging the Opposition should be extended, was finally lodged on 8 February 2021.

The respondent’s submissions

The respondent indicates that the same counsel who appeared for her throughout the proceedings below and in the earlier (MAC) appeals was retained on 25 November 2020 to prepare the Opposition. The respondent advises that counsel failed to attend to this task and ultimately, the respondent engaged different counsel.
The respondent submits that the failure to lodge the Opposition within time was wholly attributable to the respondent’s legal representatives. The respondent submits that leave ought to be granted because the delay in lodgment was not due to her own acts or omissions but was due to the unfortunate error of her legal representatives, for which she should not be punished. The respondent submits that she would be significantly prejudiced and a substantial injustice would occur if leave was not granted as, without the benefit of having submissions made on her behalf, there is the potential that a determination against her interests may be made.
The respondent adds that the prejudice and injustice to her is compounded by the protracted nature of these proceedings which, despite the matter being remitted to the then Registrar for referral to a medical assessor on 22 March 2019, are yet to be finalised. The respondent describes the protracted history of the matter and submits that she is the one who has a vested right in retaining the judgment.
The respondent submits that, on the basis of her substantive submissions, the appeal does not have reasonable prospects of success. The respondent says that the absence of submissions from her would not facilitate a just outcome because the Presidential member would still be required to determine the appeal on its merits without the assistance of those submissions. The respondent refers to the fact that she also has other entitlements pending while the dispute about her lump sum entitlements is running its course.
The respondent asserts that the appellant would face no prejudice because it would still have the opportunity to respond to her submissions, which are not dependent upon the admission of further evidence. The respondent points out that there is no precondition that exceptional circumstances need to be made out, as would be the case if this was an application to lodge an appeal out of time, as was required by r 16.2(5) of the former Workers Compensation Commission Rules 2011. The respondent submits that, in any event, the circumstances of this case are exceptional in that they are not regularly, routinely, or normally encountered.

The appellant’s response

The appellant submits that whether the time for lodging the Opposition should be extended is a matter for the Commission. The appellant says that it cannot point to any prejudice to it by the respondent’s failure to comply with the Commission’s direction but submits that, if the respondent’s failure is excused, it may set a precedent in the Commission that there would be no consequences for failing to comply with the Commission’s directions.

Consideration

I have given consideration to the reasons for the delay in lodging the Opposition, the responsibility for which falls squarely at the feet of the respondent’s legal representatives and are totally unsatisfactory. Such dilatory conduct ought to attract some sanction. I have, however, had regard to the effect of refusing the extension of time. I note that:
(a)    the respondent herself was not responsible for that conduct;
(b)    she may be seriously disadvantaged if submissions on her behalf are not before the Commission;
(c)    the appellant does not in effect oppose the granting of leave, and
(d)    the appeal has to be determined on its merits in any event.
Taking those matters into account, I consider it appropriate to extend the time for lodgment of the Opposition and, in accordance with r 69 of the Personal Injury Commissions Rules 2021, the time for lodging the Opposition is extended to 8 February 2021.

Whether the decision is, or is not, an interlocutory decision

The appellant submits that the decision of the Arbitrator was not an interlocutory decision. The respondent contends that the appeal is against an interlocutory decision and says that the appellant requires leave to appeal the decision.
Sub-section 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by a member” (emphasis added). A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The meaning of “interlocutory” in subs 352(3A) is undefined.
The respondent submits that:
(a)    she commenced proceedings in the Commission claiming weekly payments, treatment expenses and lump sum compensation in respect of her whole person impairment resulting from her psychological injury;
(b)    on 22 March 2019, Arbitrator Harris referred her claim for whole person impairment to a medical assessor for assessment, following which the Arbitrator would determine the balance of the respondent’s entitlements, and
(c)    in accordance with the authority of Licul v Corney[3] and the decision of Snell AP (as he then was) in Adriaansen v Dungog & District Retirement Limited,[4] the decision of Arbitrator Young did not finally dispose of the rights between the parties.
[3] [1976] HCA 6; 180 CLR 213 (Licul), 225.
[4] [2016] NSWWCCPD 36 (Adriaansen), [37]–[43].
The respondent submits that leave should not be granted because the appeal is neither necessary or desirable for the proper and effective determination of the dispute. The respondent asserts that there would be unnecessary further costs incurred and unnecessary delay in finalising the dispute. The respondent refers to the lack of success of earlier challenges to the MAC. The respondent says that the granting of leave would mean that the issue of the degree of her whole person impairment would continue and, based on the past history would never be finalised. The respondent maintains that granting leave to appeal would be a bar to the proper and effective determination of the dispute.
The respondent adds that the appellant is effectively seeking to reventilate an issue that has already been determined by the MAP. It is also relying on the same evidence that was before the MAP, which the MAP considered. The respondent submits that this is a further example of how the granting of leave would not achieve a proper and effective determination of the dispute, that the appeal does not have reasonable prospects of success, and the appeal ought to be considered an abuse of process.

The appellant’s submissions in reply

The appellant maintains its position that the decision is a final determination that binds the rights of the parties in respect of the respondent’s entitlement to lump sum compensation. In the alternative, the appellant submits that, if the decision is found to be interlocutory, it is necessary or desirable to for leave to be granted in order to facilitate the proper and effective determination of the dispute because a determination to the contrary would only result in further delay.

Consideration

The dispute before this Arbitrator was limited to the question of whether the appellant should be afforded the opportunity to have the assessment by the medical assessor reconsidered. The respondent’s entitlements to weekly payments and treatment expenses await determination before a different arbitrator to the Arbitrator who determined this reconsideration application.
Section 352(3A) of the 1998 Act provides that the Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. It is therefore necessary to consider the nature of the dispute and the orders sought on appeal.

In Licul, Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[5]
[5] Licul, [11].
In Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2],[6] Kirby P (as his Honour then was) noted the words of Lord Denning MR in Salter Rex & Co v Gosh[7] that the distinction between final and interlocutoryorders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. In Southern Cross Exploration, Kirby P observed that:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another”.
And:
“The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequence.”[8]
[6] (1990) 21 NSWLR 200 (Southern Cross Exploration).
[7] [1971] 2 QB 597, 601.
[8] Southern Cross Exploration, 207.
The observations of the High Court and the Court of Appeal as to what constitutes an interlocutory order provide some guidance but need to be considered in the context of the legislative and procedural framework of the Commission. In this case, the issue in dispute between the parties was whether the claim for whole person impairment should be re-referred to the medical assessor for reconsideration of that entitlement.
Whether a decision made prior to a referral to a medical assessor is an interlocutory decision or is final and binding between the parties has been the subject of numerous Presidential decisions in the former Workers Compensation Commission, which are equally applicable in the Personal Injury Commission. In P & O Ports Limited v Hawkins,[9] the worker brought proceedings, claiming weekly payments, treatment expenses and a lump sum in respect of the worker’s whole person impairment. There was an issue between the parties as to the (deemed) date of the worker’s injury. The Arbitrator determined the deemed date of injury before referring the matter to a medical assessor for assessment. The appellant appealed the determination in respect of the deemed date of injury and Roche DP concluded that the decision was interlocutory in nature. Roche DP reasoned that:
“given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”[10]
And:
“The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”[11]
[9] [2007] NSWWCCPD 87; 6 DDCR 12 (Hawkins).
[10] Hawkins, [37].
[11] Hawkins, [44].
Acting Deputy President Snell (as he then was) considered Hawkins in Maricic v Medina Serviced Apartments Pty Limited.[12] In that case, the appellant brought proceedings in the Workers Compensation Commission claiming a lump sum for 21% whole person impairment pursuant to s 66 of the 1987 Act, together with an amount for the associated pain and suffering in respect of alleged injuries to her neck, left shoulder and back. The issue for determination by the Arbitrator was whether the appellant suffered injury to the left shoulder and neck in the incident that caused injury to the back. The Arbitrator found against the appellant in respect of both of those body parts and remitted the claim pursuant to s 66 to the Registrar for referral for assessment by a medical assessor of the appellant’s whole person impairment of the back. The appellant appealed that decision.
[12] [2007] NSWWCCPD 196 (Maricic).
Acting Deputy President Snell observed (citation omitted):
“The Arbitrator’s decision in the current matter, like that in Hawkins, involved the resolution of a matter not actually involving the awarding of compensation, but affecting the nature of the referral to an AMS. …
The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined’. Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning inHawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[13]
[13] Maricic, [19]–[20].
The authorities of Hawkins and Maricic have been considered in a number of subsequent appeals in circumstances where a decision that finally determined the rights of the parties was made before the matter was referred to a medical assessor. More relevant to this case, Snell DP considered two appeals in relation to applications for referral to a medical assessor for reconsideration pursuant to s 329 of the 1998 Act, which applications had been heard and determined by an arbitrator.
InAdriaansen, Snell AP (as he then was) reasoned that:
“In the current matter the proceedings remain on foot, they have not been finally determined. The issue dealt with by the Arbitrator was quite different to the sort of findings (such as ‘worker’ and ‘injury’) referred to in the above passage from Hawkins. If the Arbitrator had made the order sought by the appellant under s 329, this would not necessarily change the outcome, any further assessment of whole person impairment may or may not be greater than 10 per cent.
Even after the decision of the Arbitrator refusing to exercise her discretion pursuant to s 329, it remains theoretically possible that steps could be taken which could lead to a result different to that dictated by the most recent MAC. Prior to the issue of a Certificate of Determination, if there were some appropriate factual and legal basis, a further application pursuant to s 329 could be made, or a further appeal, for example pursuant to s 327(3)(a) or (b), may lie. I do not suggest that this is likely, but its potential availability demonstrates the interlocutory nature of the decision appealed against.”[14]
[14] Adriaansen, [41]–[42].
In his subsequent decision in Pidcock Panel Beating Pty Ltd v Nicolia,[15]Snell DP made the following further observations:
“The making of an order remitting the matter to the Registrar, for referral to an AMS for further medical assessment, does not finally dispose of the rights of the parties. The level of the respondent’s permanent impairment, which will be relevant at least to the application of s 39 of the 1987 Act, is unresolved. If the further lump sum claim pursuant to s 66 continues to be pursued, it is clearly not determined by the Arbitrator’s orders. At least on the pleadings, issues remain between the parties going to the application of s 66(1A) of the 1987 Act.
If the issue is considered purely from the standpoint of whether the respondent might obtain an assessment greater than either 20 per cent (‘worker with high needs’) or 30 per cent (‘worker with highest needs’), this does not finally dispose of the rights of the parties. The respondent’s entitlement to receive weekly compensation, for example, beyond the period specified in s 39 of the 1987 Act, remains dependent on his being otherwise entitled to the payment of weekly compensation pursuant to s 38: see the ‘Note’ to s 39(2).”
[15] [2017] NSWWCCPD 32, [21]–[22].
In the present matter, a Certificate of Determination has yet to be issued in respect of the respondent’s whole person impairment. The proceedings remain on foot and there are still issues to be determined. It is, as Snell DP pointed out in Adriaansen, theoretically possible that steps could be taken which could lead to a different result than that recorded in the MAC. If there were some appropriate other factual and legal basis, a further application pursuant to s 329 could be made. I am therefore of the view that the Arbitrator’s decision is interlocutory in nature and the appellant requires leave to appeal the decision in accordance with s 352(3A) of the 1998 Act.
I reiterate that, in accordance with s 352(3A) of the 1998 Act, leave to appeal can only be granted if I am of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. The respondent submits that there would be unnecessary further costs incurred and unnecessary delay in finalising the dispute.
I note the following factors, when considered together, weigh heavily in favour of the granting of leave:
(a)    the protracted history of the respondent’s claim for whole person impairment, which, after almost two years from the issuing of the MAC, is yet to be determined;
(b)    the proceedings before Arbitrator Young have concluded;
(c)    a consideration of the appeal would not unduly delay the matter, because the respondent’s claim for weekly payments and treatment expenses are proceeding to be determined by Arbitrator Harris regardless of this appeal;
(d)    it is appropriate that a consideration as to whether the Arbitrator erred in refusing the application is determined at this time, rather than after all claims brought by the respondent are finalised, and
(e)    as the issue will need to be determined in any event, it is more efficient to deal with the appeal brought now, rather than an appeal brought at some future time.
In accordance with s 352(3A) of the 1998 Act, I therefore grant leave to the appellant to appeal from the decision of Arbitrator Young dated 6 October 2020.

THE DOCUMENTS RELEVANT TO THIS APPEAL

The Medical Assessment Certificate dated 24 April 2019

The medical assessor recorded the following matters when assessing the respondent’s psychological impairment rating:
“Social and recreational activities: Ms Ewins said she no longer entertains friends at home, which they frequently did in the past, or visits other families. She said she has an occasional cup of coffee with a group of girls every few months if she is pushed. She went out with her husband for lunch on one occasion two weeks ago when she was in the city for a conference in relation to the workers compensation case. She said she no longer participates in her children’s sporting and social activities, but will go to their soccer games if accompanied by her husband. She has stopped attending her local Catholic Church. She is moderately impaired.”[16]
[16] MAC, p 5.
On the basis of those observations, the medical assessor rated the respondent’s impairment in social and recreational activities as Class 3 (moderately impaired), using the Psychiatric Impairment Rating Scale, and assessed the respondent’s whole person impairment at 17%.[17]
[17] MAC, pp 10–11.

The Decision of the Medical Appeal Panel

The MAP handed down their decision on 27 August 2019. The MAP noted that the appellant relied upon the following grounds of appeal:
(a)    the availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against) (fresh evidence): s 327(3)(b) of the 1998 Act;
(b)    the assessment was made on the basis of incorrect criteria: s 327(3)(c), and
(c)    the MAC contains a demonstrable error: s 327(3)(d).
The MAP indicated that the assessment of permanent impairment was conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).
The MAP considered the evidence before it and the relevant authorities dealing with new or additional evidence and proceeded to entertain the application to adduce new evidence in the form of the surveillance material.
The MAP formed the view that the material was not information that was not available to or could not reasonably be obtained before the assessment by the medical assessor. The MAP indicated that the information contained in the report was either irrelevant or of marginal relevance. The MAP observed that the material did not demonstrate that the respondent was socialising or performing any of the other categories identified in the PIRS. The MAP considered that the material was uninformative and should not be admitted in the appeal and determined that the ground of appeal based upon the additional material was not made out. The MAP proceeded to determine that the remaining grounds of appeal were also not made out.

The surveillance report

The surveillance report dated 30 May 2019 was included in the brief to the MAP.[18] The author of the report provided the following summary of what the investigator observed over the four days of surveillance:
“As requested, we have completed a period of observations on Mrs Marion Ewins, which we have conducted over four days commencing on Friday 17th May 2019 in an endeavour to confirm her current activities. During the surveillance period the claimant was observed not sighted to emerge on the Friday or Saturday and despite positioning at the residence for the entire morning period, no significant movement was detected. On Sunday 19th May 2019 however we followed the claimant from the stated address to a nearby residence where she collected a young child before driving to the St Frances Xavier Church in Lurnea where she attended the 9.30am service. At the conclusion of that service, the claimant departed with the two children and drove back to the residence … where she remained for some time whilst the children played outside before returning to the stated address. No further movement was observed from the claimant on that day however the following Sunday when observations continued, the claimant was again seen departing that morning to collect the same young child before attending the church service in Lurnea. The claimant then returned directly back home after church where she remained indoors and inactive on that day.”[19]
[18] Notice of Opposition to Appeal Against Decision of Approved Medical Specialist, pp 30–38.
[19] Notice of Opposition to Appeal Against Decision of Approved Medical Specialist, p 32.

THE ARBITRATOR’S REASONS

The Arbitrator briefly noted the history of the matter, that the matter involved an application for reconsideration of the MAC, and the grounds for the reconsideration were that:
(a) the respondent gave inaccurate, incorrect or misleading information to the medical assessor, or alternatively,
(b) the respondent’s psychological condition had immediately improved after the assessment by the medical assessor.
The Arbitrator further noted that the respondent had been unable to attend the teleconference on 1 September 2020 but was happy for the matter to proceed in her absence. He said that conciliation had been conducted but, despite his best endeavours, he had been unable to bring the parties to a resolution and the matter proceeded to arbitration. The Arbitrator recorded that the appellant’s counsel wished to make oral submissions in response to the respondent’s opposition to the application.
The Arbitrator summarised both parties’ submissions. He recorded that the appellant submitted that:
(a)    the surveillance material indicated that on 19 May 2019 and 26 May 2019, the respondent attended church with two children;
(b)    the history provided by the respondent to Dr Roberts on 30 October 2017 was that she had returned to attending church, which was in Dr Roberts’ view, a positive indicator;
(c)    the history provided by the respondent to the medical assessor on 5 April 2019 was that the respondent had ceased attending church, which impacted upon the assessment by the medical assessor of “moderate impairment”;
(d)    as a result, there are two possibilities, the first being that the respondent’s condition had worsened between the examination by Dr Roberts and the assessment conducted, or the second being that the respondent was not being truthful;
(e)    the medical assessor assessed the respondent as having a 17% whole person impairment on the basis that she had a psychiatric impairment rating scale[20] of 3 for “social activity”, which included the fact that the respondent was not attending her local church, and
(f)    the objective of an application for reconsideration is a fair resolution of disputes, and the Commission is vested with a wide discretion to be exercised consistent with the interests of justice.
[20] NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition.
The Arbitrator summarised the respondent’s submissions as follows:
(a)    the MAC was issued on 24 April 2019 and was appealed on the basis of the same grounds as this application for reconsideration;
(b)    on 27 August 2019, the MAP concluded that the appellant’s submissions were devoid of detail and that, other than observing that the respondent attended church, the respondent was not otherwise seen to leave her house;
(c)    the MAP decision was appealed to the Supreme Court, where Adamson J concluded that:
(i)the appellant had not made any submissions as to why it should be allowed to rely upon material obtained after the assessment by the medical assessor, and
(ii)it was plain that the MAP considered that the surveillance material was not information that was not available to the appellant before the assessment;
(d)    the application for reconsideration was an abuse of process and based only on broad assertions that the respondent had provided a history which was misleading in accuracy or incorrect;
(e)    no medical evidence was adduced to support the argument that the respondent’s condition had improved;
(f)    the assessment by a medical assessor involved an assessment in a clinical environment on the day of assessment,[21] and
(g) under s 329 of the 1998 Act, a matter which has already been assessed may be referred for further assessment, but the appellant had already unsuccessfully appealed the MAC.
[21] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633.

The Arbitrator referred to the Presidential decision in Target Australia Pty Ltd v Mansour,[22] in which Roche ADP (as he then was) observed that:
(a) the Commission may exercise its discretion under s 329 of the 1998 Act to refer a matter to a medical assessor for further assessment despite the matter having previously been the subject of an appeal to the MAP, and
(b) the power to refer a matter for further assessment is not restricted by s 327(3) of the 1998 Act.
[22] [2006] NSWWCCPD 286 (Mansour).
The Arbitrator described the power to refer a matter to a medical assessor for reconsideration as a wide discretionary exercise and said that he was of the view that he could take into account matters that were generally relevant to the exercise of discretion. The Arbitrator turned to the question of whether the new evidence was relevant and probative. He observed:
“In my view it defies logic to suggest that because the applicant was able to attend church on 19 and 26 May 2019 she was not telling the truth to Dr Mason when he examined her on 5 April 2019. The direct evidence is of a history given to Dr Mason that the applicant was not attending church when she saw Dr Mason. In the absence of contemporaneous contradictory evidence sufficient to establish that she was attending church when she saw Dr Mason, there is insufficient evidence in my view which is relevant nor has any probity sufficient to justify a reconsideration by a [medical assessor] at all.”[23]
[23] Ewins v CSR Ltd [2020] NSWWCC 351 (reasons), [17].
The Arbitrator said that he agreed with the conclusion reached by the MAP that the surveillance material might have been obtained prior to the assessment by the medical assessor. He said that, had the surveillance been conducted shortly before the date the appellant was assessed by the medical assessor, it may have been more relevant.
The Arbitrator considered that the surveillance material could not compel a conclusion that the respondent was not being truthful and at best could only establish that approximately seven weeks after the assessment, the respondent was able to attend church. He added that there was no medical evidence to support the conclusion that, because the respondent was able to attend church on two occasions, her psychological condition had improved. In addition, the MAP found that, in the absence of any socialisation being evident in the surveillance material, it was more likely that the attendance at church was an “exercise in introspection or self-contemplation.”
The Arbitrator referred to the passage in Johnson v Gore Wood & Co,[24] in which Lord Bingham of Cornhill said:
“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.”
[24] [2002] 2 AC 1, [31].
Applying that authority, the Arbitrator observed that it was in the public interest for matters to not proceed indefinitely. He reasoned that the Commission has a duty to ensure that the interests of both parties are served, taking into account the merits of the material sought to be relied upon. The Arbitrator said that, because the surveillance was not contemporaneous with the assessment, it does not have substantial merit. The Arbitrator commented that the medical assessor is required to assess the worker on the basis of the circumstances on the day of assessment. He observed that it is not uncommon in matters of personal injury that the injured party have “good days and bad days,” and the extent to which the respondent was able to attend church after 26 May 2019 was not clear from the evidence sought to be relied upon.
The Arbitrator said that, in addition to those considerations, continued investigation and scrutiny after the assessment process had been undertaken should only be allowed where the need for reconsideration is supported by potentially persuasive evidence. He remarked that there may well have been a plausible explanation for the appellant’s attendance at church on those two days, some seven weeks after the assessment.
The Arbitrator concluded that the application for reconsideration was to be refused.
The Certificate of Determination issued on 6 October 2020 records:
“The Commission determines:
1. The respondent's application for reconsideration is refused.”

GROUNDS OF APPEAL

The appellant alleges the following errors on the part of the Arbitrator:
(a)    Ground A: error of law in determining the dispute without first satisfying the requirements of s 355(1) of the 1998 Act;
(b)    Ground B: error of law in denying the appellant procedural fairness by determining the matter on a basis not put to or by the parties;
(c)    Ground C: error of fact in considering that the surveillance material might have been obtained before the AMS assessment;
(d)    Ground D: error of discretion in consideration of the public interest, and
(e)    Ground E: error of law by failing to consider and apply the appropriate test.

LEGISLATION

Section 329 of the 1998 Act provides as follows:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Section 355 of the 1998 Act was repealed by the 2020 Act, after the proceedings were determined by the Arbitrator. The former s 355 of the 1998 Act required an arbitrator to attempt to conciliate the issues in dispute. Subsection (1) of s 355 provided:
“(1) The Commission constituted by an arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.”
Following the 2020 amendments to the 1998 Act, the equivalent obligation is now set out in cl 6 of Pt 5 of Sch 3 to the 2020 Act.

SUBMISSIONS

Ground A

The appellant’s submissions

The appellant submits that the parties to the dispute were the appellant and the respondent, and the respondent herself did not participate in the telephone conference on 1 September 2020. The appellant asserts that in those circumstances, the precondition in s 355(1) of the 1998 Act had not been met, so that the Arbitrator could not proceed to a determination of the dispute.

The respondent’s submissions

The respondent refers to the Arbitrator’s reasons, where he recorded that:
“Discussions were held by way of conciliation process in an effort to resolve the matter and I am satisfied that I have used my best endeavours to encourage resolution, which unfortunately was not possible.”[25]
[25] Reasons, [6].
The respondent submits that the appellant has not made any submission that challenges the Arbitrator’s statement that there were discussions during the conciliation phase or that the Arbitrator applied his best endeavours to bring the parties to a settlement, or that the parties did not participate in a conciliation. The respondent asserts that it is therefore evident that the Arbitrator complied with s 355 of the1998 Act.
The respondent points out that she was legally represented, and her representatives assured the Commission that she was content for the matter to proceed without her being present. The respondent asserts that the appellant does not explain why, in the circumstances of this case, her absence would prevent the pre-condition in s 355(1) of the 1998 Act from being satisfied. The respondent points out that the appellant’s legal representatives were aware of her absence and proceeded to participate in the arbitration, without raising any concern that s 355 of the 1998 Act had not been satisfied. The respondent refers to the Arbitrator’s observation that the appellant’s counsel indicated that the appellant was in a position to make submissions. The respondent submits that the appellant is bound by the way it ran its case at arbitration, relying on the authority of University of Wollongong v Metwally.[26]
[26] [1985] HCA 28; 60 ALR 68; 59 ALJR 481.
The respondent contends that this ground of appeal is without merit.

The appellant’s submissions in reply

The appellant submits that s 355 of the 1998 Act cannot be satisfied in the absence of the worker, save in circumstances where the other party concedes that there was an absence of any ability to resolve the matter. The appellant says that it makes no such concession in this matter. Further, s 355 imposes an obligation on an Arbitrator which is a pre-condition and is not a matter that needs to be raised at the arbitration.

Ground B

The appellant’s submissions

The appellant submits that the parties did not submit to the Arbitrator and the Arbitrator did not bring to the attention of the parties, the matters observed by him in his decision as matters to take into account in the exercise of his discretion, namely:
(a)    the relevance and probity of the new information sought to be relied upon;
(b)    that the evidence did not compel the conclusion that the respondent was not telling the truth;
(c)    that there was no medical evidence to support the notion that because the respondent could attend church on the two occasions, her condition had improved, and the medical appeal panel considered that it was more likely that it was an exercise in self contemplation, and
(d)    a reconsideration based on an investigation undertaken after the conclusion of the medical assessment should not be allowed unless the evidence was persuasive.
The appellant says that, for those reasons, it was denied procedural fairness and the relief sought by it should be granted.

The respondent’s submissions

The respondent points out that the Arbitrator’s task in considering an application made pursuant to s 329 of the 1998 Act is discretionary and that at the arbitration, the appellant conceded that this was the case. The respondent refers the comment by Malpass AsJ in Read v Liverpool City Council[27] that the intended function of s 329 of the 1998 Act is far from clear. The respondent also refers to the discussion by Roche DP in Milosavljevic v Medina Property Services Pty Ltd.[28] The respondent submits that there is no legislative guide as to how the discretion is to be exercised and so the Arbitrator must have regard to the context of the legislation and decide each case on its own facts.
[27] [2007] NSWSC 320 (Read).
[28] [2008] NSWWCCPD 56 (Milosavljevic).
The respondent says that the appellant relied upon the surveillance report dated 30 May 2019, and its written submissions and the grounds upon which it sought a reconsideration. That is, that the information provided to the medical assessor was incorrect, or that the respondent had experienced an immediate improvement. The respondent submits that the Arbitrator referred to the matters that were relevant to the exercise of his discretion in the context of the appellant’s application and addressed the probative value of the surveillance material, which was the task he was required to do. The respondent submits that there was nothing in the Arbitrator’s deliberations that would catch the appellant by surprise or show that the appellant was denied procedural fairness. The respondent says the Arbitrator simply addressed the case put to him by the appellant in its submissions.
The respondent submits that the Arbitrator’s comments about conducting investigations after the medical assessment process is concluded were not integral to his ultimate conclusion to refuse the application for reconsideration. The respondent adds that the Arbitrator considered the appellant’s submissions about the inconsistency in the evidence, as he was required to do. Further, his remark that there may well be an explanation for the activity seen in the surveillance report was not material to the Arbitrator’s ultimate determination and so would not have affected the outcome.
The respondent contends that the appellant has not alleged error on the part of the Arbitrator in relation to the manner in which he exercised his discretion or in the Arbitrator’s findings. The respondent submits that the Arbitrator did not deny the appellant procedural fairness.
The respondent asserts that this ground of appeal is misconceived and without merit.

The appellant’s submissions in reply

The appellant submits that whether or not the decision was a discretionary decision, the Arbitrator was required to afford the parties procedural fairness. The appellant says that it can be inferred from the respondent’s submissions that the matters relied upon by the Arbitrator were not matters raised by either party.

Ground C

The appellant’s submissions

The appellant submits that, if the respondent was telling the truth about not attending church then the conclusion that the material could have been obtained before the assessment by the medical assessor must constitute an error of fact. The appellant says that if the material could have been obtained prior to the assessment, then the compelling conclusion is that the respondent was being untruthful about not attending church. The appellant asserts that the two propositions cannot stand together.
The appellant adds that the speculation that the respondent’s attendance at church was an exercise in self-contemplation also constitutes an error of fact. The appellant contends that what was required was not a consideration of the nature of the respondent’s attendance at church but was that the respondent had attended church when the history she provided to the medical assessor was that she did not do so.

The respondent’s submissions

The respondent reiterates that the Arbitrator was required to exercise his discretion, having regard to the legislation and the individual circumstances of the case before him, in accordance with Milosavljevic. The respondent says that in any event, a Presidential member is not required to comb through the Arbitrator’s reasons in search of error, citing NSW Police Force v Newby.[29]
[29] [2009] NSWWCCPD 75, [151].
The respondent submits that when the Arbitrator’s reasons are read as a whole, it is apparent that the Arbitrator addressed the appellant’s submissions, arrived at the conclusion that the submission that the respondent had been untruthful defied logic and gave his reasons for that conclusion. The respondent referred to the Arbitrator’s observations that the surveillance material may have had more relevance if it had been obtained prior to the assessment by the medical assessor and that the material did not compel a conclusion that the respondent had been untruthful. She says that the Arbitrator remarked on the MAP’s view in relation to her attendance at church, but the remark was not material to the Arbitrator’s determination because the Arbitrator did not make a determination about the nature of the respondent’s attendance at church.
The respondent asserts that the Arbitrator’s task was not to merely accept the facts as put to him by the appellant. The respondent says that the Arbitrator was required to exercise his discretion in the manner in which he did.
The respondent maintains that the appellant has not indicated how it was that the Arbitrator committed an error of fact. The respondent contends that the appellant’s assertion that the Arbitrator erred in fact is misconceived and should be rejected.

The appellant’s submission in reply

The appellant submits that it did not say that the two propositions were irrelevant or that the nature of the respondent’s attendance at church was irrelevant. The appellant adds that its submissions as to how the Arbitrator erred is clearly articulated in its submissions.

Ground D

The appellant’s submissions

The appellant refers to the Arbitrator having given regard to the public interest in not having matters proceed indefinitely. The appellant submits that the process of a reconsideration would not be protracted, as it simply requires the additional evidence to be forwarded to the medical assessor for reconsideration. The appellant asserts that the purpose of the exercise is to properly serve the interests of justice.

The respondent’s submissions

The respondent cites the principles in relation to an appeal alleging error of discretion enunciated by Beazley JA (sic, Heydon JA, with Sheller JA agreeing) in Micallef v ICI Australia Operations Pty Ltd,[30] and submits that the appellant’s submissions do not disclose an error of the kind required. The respondent maintains that the appellant is required to demonstrate error of the kind required before the decision can be revoked and that the error must be one that has affected the final determination.[31]
[30] [2001] NSWCA 274 (Micallef), [45].
[31] Milosavljevic, [28].
The respondent also refers to the appellant’s submission that allowing the reconsideration would not unduly protract matters, and points out that the respondent’s claim for whole person impairment was remitted to the Registrar for referral to a medical assessor on 22 March 2019, and her claim is yet to be finalised.
The respondent asserts that the Arbitrator’s consideration that it was in the public interest for the matter not to proceed indefinitely was a valid consideration, and, in the circumstances of this case is not demonstrative of error.

The appellant’s submissions in reply

The appellant reiterates his primary submissions and points out a typographical error in his primary submissions.

Ground E

The appellant’s submissions

The appellant refers to the decision of Malpass AsJ in Read and submits that the proper consideration is whether the dictates of justice warrant the referral for a reconsideration. The appellant says that in this case, the referral is warranted because it is evidence contrary to the evidence taken into account by the medical assessor in making the assessment. The appellant asserts that the evidence clearly suggests that either the respondent’s condition had improved, or that the history she provided was false.

The appellant’s submissions upon receipt of the transcript

The appellant identifies the various parts of the transcript that it says supports its primary submissions.

The respondent’s submissions

The respondent contends that the appellant has failed to show how the Arbitrator erred and has made no submission as to how the Arbitrator has failed to consider and apply the appropriate test. The respondent refers to the decision in Ali Kanj v Nonabel Concrete Pty Ltd,[32] in which I observed that arbitrations are not a trial run, and the parties must live with the consequences of the forensic choices they make at first instance. The respondent asserts that the appellant is seeking a review or re-hearing and has not established any error on the part of the Arbitrator.
[32] [2018] NSWWCCPD 43, [24].
The respondent adds that in Read, Malpass AsJ did not set out the proper test to apply in a reconsideration application and in fact remarked that the intended operation of s 329 of the 1998 Act was unclear. The respondent points out that Malpass AsJ indicated that:
“Also, it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”[33] (emphasis added by the respondent)
[33] Read, [28].

The respondent also refers to Roche DP’s observation in Milosavljevic that in Read, Malpass AsJ may well have been correct but further observed that the dictates of justice require a careful consideration of the facts in each case, always within the bounds of the jurisdictional limits of the Commission.
The respondent contends that the appellant’s submissions in relation to the “proper test” to be applied are misconceived and do not demonstrate error on the part of the Arbitrator.

The appellant’s submissions in reply

The appellant submits that it has identified the relevant test and how the Arbitrator failed to apply it, the appellant repeats its submissions in relation to the “dictates of justice.”

THE RELIEF SOUGHT

The appellant submits that the appeal should be allowed and the matter should be remitted to the medical assessor for reconsideration in accordance with s 329 of the 1998 Act. In the alternative, the matter should be remitted to another Arbitrator for re-determination.
The respondent submits that if leave to appeal the interlocutory decision is granted, the Arbitrator’s Certificate of Determination should be confirmed. If, however, the appeal succeeds, the respondent seeks to have the matter referred to a different Arbitrator for determination.

CONSIDERATION

Ground A: error of law in determining the dispute without first satisfying the requirements of s 355(1) of the 1998 Act

The appellant asserts that, because the respondent herself did not participate in the telephone conference, the Arbitrator could not proceed to a determination of the matter.
The Arbitrator recorded in his reasons at [6] that there were discussions to attempt to resolve the issue during the conciliation phase of the proceedings and that he had “used [his] best endeavours to encourage resolution,” but that the matter had not resolved. The Arbitrator did not record that the respondent’s non-participation was an impediment to his ability to discharge this obligation and the appellant did not raise any complaint about the matter proceeding to arbitration. In fact, the appellant indicated to the Arbitrator that it was ready to proceed down that path.[34]
[34] Transcript of Proceedings 1 September 2020 (T), Ewins v CSR Ltd [2020] NSWWCC 351, T2.4–7.
The appellant does not explain how the absence of the respondent herself somehow prevented the Arbitrator from discharging his obligation under sub-s 355(1), in circumstances where the respondent was legally represented, and the legal representatives were instructed to proceed on her behalf.
In the light of those matters, particularly the unchallenged fact that the Arbitrator recorded that he had attempted to achieve a resolution of the issue, the appellant has failed to establish that the Arbitrator did not satisfy his obligation under s 355(1), or that there was any impediment to the Arbitrator proceeding to determine the matter. It follows that this ground of appeal fails.

Ground B: error of law in denying the appellant procedural fairness by determining the matter on a basis not put to or by the parties

The appellant asserts that it was denied procedural fairness because the Arbitrator did not bring to the attention of the parties the matters he took into consideration when exercising his discretion. The first matter which the appellant says the Arbitrator failed to bring to the attention of the parties was the Arbitrator’s observations about the relevance and probative value of the surveillance report. As the respondent points out, the consideration of an application brought under s 329 of the 1998 Act involves the exercise of the Arbitrator’s discretion. The appellant was clearly mindful that the decision required of the Arbitrator was discretionary in nature. The transcript discloses that the appellant made the following submissions:
“[H]ere the discretion is much larger, much wider and that if you believe that there is an interest of justice issue and there is prejudice to the employer and there is a denial of procedural fairness in that the employer had not had a proper medical assessment, sorry, I should say a proper medical assessment by the [medical assessor] because of this critical piece of information, then it should go back for reconsideration.”[35]
[35] T10.5–13.
In its submissions to the Arbitrator, the appellant submitted at length about the relevance of the surveillance report and why it was important information that ought to be provided to the medical assessor. The Arbitrator’s task was to assess the probative value of that evidence and its relevance, just as he would be required to do in relation to any application to admit evidence. The appellant had the opportunity to put forward submissions as to why the surveillance report should be made available to the medical assessor and availed itself of that opportunity. There was no denial of procedural fairness to the appellant.
The second matter raised by the appellant that it says was either not the subject of submissions put to the Arbitrator, or that the appellant was not given the opportunity to make submissions about, is the Arbitrator’s finding that the evidence did not compel him to conclude that the respondent was not telling the truth. In its application for reconsideration and in submissions made orally to the Arbitrator, the appellant put its case that the evidence showed either that the respondent had been untruthful to the medical assessor about her activities or she had experienced marked improvement in her condition since the medical assessor examination. The appellant described the evidence as “critical.” The Arbitrator was therefore required to assess the evidence and draw a conclusion as to whether that evidence made out the appellant’s case.
It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[36] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[37] Whether the evidence was sufficient to warrant a referral for reconsideration was dependent upon the Arbitrator’s assessment of that evidence.
[36] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
[37] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
The Arbitrator’s conclusion that the fact that the respondent attended church on two occasions some seven weeks after the assessment by the medical assessor did not compel him to conclude that the respondent was not telling the truth was logical and open to him. It was supported by the medical evidence from the MAP that in their view, it was likely that the attendance at church was an exercise in self-contemplation. The appellant makes no compelling submissions that indicate that the Arbitrator was wrong in coming to the conclusion that he did. I do not see any reasons as to why the Arbitrator’s conclusion was wrong and here is no basis upon which to interfere with that conclusion.
The appellant not only had the opportunity to submit on the nature of the evidence and its effect, but also made submissions relevant to that point. The Arbitrator considered those submissions and made his determination. There was no procedural unfairness in the Arbitrator’s approach.
Similarly, the appellant was not denied procedural fairness by the Arbitrator taking into account the absence of medical evidence to support the appellant’s assertion that the respondent’s condition had improved, or the view expressed by the MAP. The submission that the surveillance material established that the respondent’s condition had improved was made forcefully by the appellant at the arbitration. The respondent took the Arbitrator to the view taken by the MAP and the appellant did not seek to respond to those submissions. What the evidence established was in issue between the parties and at issue before the Arbitrator. On the basis of the submissions made, the Arbitrator was required to assess that evidence and look to other evidence on point.
The Arbitrator did comment on the value of the evidence of surveillance undertaken after the conclusion of the medical assessment. His observation was that:
“Finally, in addition to the above considerations is the view that the results of continued investigation and scrutiny beyond the conclusion of the AMS process, whilst not prohibited, is a matter that should only be allowed where potentially persuasive evidence supports the need for reconsideration. Put simply, it may well be that there is a perfectly plausible explanation for the applicant to be able to attend church seven weeks after the examination by the AMS.”[38]
[38] Reasons, [23].
The Arbitrator’s comment was simply that if surveillance evidence that came into being after the conclusion of the assessment was to be admitted for the purpose of a reconsideration, it needed to be of sufficient probative value. There is nothing in that observation that is surprising or that indicates the appellant was denied procedural fairness. It is consistent with a long line of reasoning, summarised by Roche DP in Samuel v Sebel Furniture Limited as:[39]
(a) 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, and
(b) the new evidence sought to be relied upon, had it been before the decision-maker, would likely to have led to a different result.[40]
[39] [2006] NSWWCCPD 141 (Samuel).
[40] Samuel, [58].
The appellant has not shown error on the part of the Arbitrator by denying the appellant procedural fairness, and Ground B of the appeal fails.

Ground C: error of fact in considering that the surveillance material might have been obtained before the AMS assessment

The appellant submits that if the respondent was being truthful about not attending church, then the surveillance material could not have been obtained prior to the medical assessment. The appellant says that, on the other hand, if the material could have been available at that time, then the compelling conclusion must be that the respondent was being untruthful.
I agree with the respondent’s submission that the Arbitrator’s remark was simply that the evidence would have been more persuasive if it had established that the respondent had attended church within a close time of the medical assessment. The remark is self-evident and is not demonstrative of error on the part of the Arbitrator. Under this ground of appeal the appellant also asserts that the Arbitrator erred in determining that the nature of the activity was one of “self-contemplation.” The Arbitrator did not make such a finding. The Arbitrator merely reported that this was an observation made by the MAP. If the Arbitrator took that observation into account, he did not fall into error, as it was evidence pointing to the evaluation of the probative value of the surveillance material.
For the above reasons, Ground C of the appeal is not made out.

Ground D: error of discretion in consideration of the public interest

The appellant refers to the Arbitrator’s reason that it was in the public interest that matters do not proceed indefinitely. The appellant asserts that the Arbitrator erred because, contrary to the Arbitrator’s reasoning, the process of the reconsideration would not be protracted, and simply would involve forwarding the surveillance material for the medical assessor to re-consider his conclusion as to the respondent’s whole person impairment. The appellant says that forwarding the material for reconsideration of the medical assessor would properly serve the interests of justice.
The respondent submits that the appellant’s submissions do not disclose error on the part of the Arbitrator of the kind required, as set out by Beazley JA (sic, Heydon JA) in Micallef.
In Micallef, Heydon JA (with Sheller JA agreeing) made the following relevant observations:
“It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances. These submissions were trite, but they are true, and they are vitally important.
…
Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)     made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[41]
[41] Micallef, [45].
The public interest in finality of litigation is a very relevant matter to take into account in the exercise of discretion in circumstances where a party is seeking a reconsideration of a matter. The power to reconsider a matter should always be exercised with caution and should have some regard to the public interest in the finality of litigation,[42] even in a workers compensation setting.[43] Such a consideration does not amount to an error of legal principle, or error by taking into account an irrelevant matter, or any of the other erroneous matters identified in Micallef.
[42] Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300, 302.
[43] Majdak v McDonnell Industries Pty Ltd [2008] SAWCT 58.
This ground of appeal is not made out and fails.

Ground E: error of law by failing to consider and apply the appropriate test

The appellant submits that the “proper test” is whether the dictates of justice warrant the referral for reconsideration, relying on the observations made by Malpass AsJ in Read. The appellant reiterates that the surveillance report is evidence that is contrary to the evidence taken into account by the medical assessor.
The respondent submits that Malpass AsJ did not set out the proper test, but only went so far as to say that it may have been the intention that s 329 provide a remedy when the dictates of justice require a further referral.
The lack of evidentiary value of the surveillance material is discussed above. Even if the proper test was that the referral was warranted because the dictates of justice required it, in this case, the lack of probative value of the surveillance report would count against the granting of the application. As Roche DP said in Milosavljevic:
“Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits.”[44]
[44] Milosavljevic, [58].
The Arbitrator considered the evidentiary value of the surveillance report and concluded that it was not sufficient to warrant a further referral to the medical assessor. For the reasons provided, that conclusion is not disturbed on appeal. It follows that Ground E of the appeal fails.

CONCLUSION

The appellant has failed to establish error on the part of the Arbitrator and the appeal fails. The Arbitrator’s Certificate of Determination is to be confirmed.

DECISION

Leave to appeal the interlocutory decision dated 6 October 2020 is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
In accordance with r 69 of the Personal Injury Commission Rules 2021, the time for lodging the Notice of Opposition is extended to 8 February 2021.
The Arbitrator’s Certificate of Determination dated 6 October 2020 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

4 March 2021