| 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…
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- AGLC
- CSR Limited v Ewins [2021] NSWPICPD 1
- Case
- [2021] NSWPICPD 1
- Decision Date
CaseChat Overview and Summary
The court examined the legal issues surrounding the conciliation process under s 355 of the 1998 Act. The central issue was whether the Arbitrator’s decision to proceed to determination after a conciliation attempt complied with the statutory obligation to make best endeavours to achieve a settlement acceptable to all parties. The court referenced relevant case law, including Licul v Corney, Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others, and Adriaansen v Dungog & District Retirement Living Limited, to understand the scope of the conciliation requirement. The court also considered the principle that a party is bound by the manner in which they conduct their case, as illustrated in University of Wollongong v Metwally.
After thorough deliberation, the court concluded that the Arbitrator had indeed used his best endeavours to achieve a settlement, as evidenced by the discussions held and the recorded reasons. The court found that Ewins’ absence did not negate the conciliation process, given her legal representation and their assurance to the Commission. The court determined that the Arbitrator’s decision to proceed was in accordance with the statutory requirements, and that CSR Limited was bound by its conduct at arbitration. Consequently, the court upheld the Arbitrator’s Certificate of Determination, confirming the legality of the proceedings.
The court granted leave to appeal the interlocutory decision dated 6 October 2020 pursuant to s 352(3A) of the 1998 Act. The time for lodging the Notice of Opposition was extended to 8 February 2021 in accordance with r 69 of the Personal Injury Commission Rules 2021. The Arbitrator’s Certificate of Determination dated 6 October 2020 was confirmed, affirming the legality of the proceedings and the Arbitrator’s decision.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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 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.