Dunphy v Boney
[2010] NSWWCCPD 111
•28 October 2010
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR CITATION: Dunphy v Boney [2010] NSWWCCPD 111 APPELLANT: M J & D A Dunphy RESPONDENT: Michael Dean Boney INSURER: CGU Workers Compensation (NSW) Limited FILE NUMBER: A1-002074/10 ARBITRATOR: Mr D Minus DATE OF ARBITRATOR’S DECISION: 24 June 2010 DATE OF APPEAL DECISION: 28 October 2010 SUBJECT MATTER OF DECISION: Discretion to admit late documents; application of pt 10 r 10.3 of the Workers Compensation Commission Rules 2010, and interlocutory orders. PRESIDENTIAL MEMBER: President Judge Keating HEARING: On the Papers REPRESENTATION: Appellant: Sparke Helmore Lawyers Respondent: McCabe Partners Lawyers ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 24 June 2010 is revoked and the matter is remitted to another Arbitrator for determination afresh.
2. The appellant employer to pay the worker’s costs of the arbitration hearing of 28 May 2010.
3. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
1.Mr Michael Dean Boney, aged 37, was employed by M J and D A Dunphy (the appellant) to undertake certain shearing work on their property, “Willawillingbah”, in January 2005.
2.Mr Boney alleged that, on 26 January 2005, he was on a journey from his place of residence to the appellant’s property, which was situated 27 km from his home at Goodooga to commence the shearing work.
3.Mr Boney alleged that, as he was leaving his house, he attempted to jump a metal mesh fence on the boundary of his property, when he scraped his right ankle on the wire netting, and was injured.
4.On 26 August 2009, over four and a half years later, Mr Boney’s solicitors made a claim on his behalf for weekly benefits from 27 January 2005 to date and continuing. He also claimed lump sum benefits under s 66 totalling $26,750, and compensation for pain and suffering under s 67 in the sum of $30,000. Mr Boney also sought payment of his medical expenses.
5.On 17 November 2009, the appellant’s insurer, CGU Workers Compensation (NSW) Limited, declined Mr Boney’s claim. CGU issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reasons given for disputing the claim were stated in very broad terms. However, it is clear that the insurer disputed that Mr Boney worked for the appellant on 26 January 2005. It also disputed that the injury was sustained “on a compensable journey” pursuant to s 10 of the Workers Compensation Act 1987 (the 1987 Act).
6.The dispute concerning Mr Boney’s entitlements led to the registration of an Application to Resolve a Dispute with the Commission on 16 March 2010.
7.The matter was listed for an arbitration hearing before an Arbitrator on Friday 28 May 2010 in Dubbo. At the hearing, the appellant submitted that 26 January 2005 was the Australia Day public holiday and Mr Boney was not employed to work that day. There was considerable argument at the hearing concerning the admission into evidence of late documents, being contemporaneous records of the worker’s doctor and the employer’s business records. The Arbitrator rejected the admission of all late documents.
8.Following the hearing, the Arbitrator reserved his decision. On 24 June 2010, the Arbitrator determined the matter and made orders in favour of Mr Boney. A Certificate of Determination concerning those findings and orders was issued on 24 June 2010.
THE DECISION UNDER REVIEW
9.The Certificate of Determination dated 24 June 2010 records the Arbitrator’s findings and orders as follows:
“The Commission determines:
1. There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant, at the rate of $1,016.40 per week from 26/1/2005 to 26/4/2005.
2. There is an award for the Applicant in relation to his claim for medical expenses and the Respondent is to pay the Applicant’s reasonable medical expenses incurred, pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts and receipts and HIC notice of charge.
3. I remit this file for the Registrar to organise an assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist of the degree of permanent impairment, resulting from the Applicant’s injury on 26/1/2005, to his:
i) Right lower extremity and, for
ii) Scarring/disfigurement
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
10.On 21 July 2010, the appellant filed with the Commission an Application Seeking Leave to Appeal Against the Decision of the Arbitrator.
ISSUES IN DISPUTE
11.The issues in dispute in the appeal are whether the Arbitrator erred:
(a) in rejecting the application to admit eight documents from the records produced to the Commission by Dr Benjamin;
(b) in rejecting the appellant’s application to admit an investigation report from K Parsons of Brooksight Investigations dated 19 May 2010 and documents attached to it;
(c) in failing to consider the issue of whether the respondent worker had discharged the onus of proving the alleged injury occurred after he had crossed the boundary of the land on which his place of abode was situated, and
(d) by incorrectly determining the worker’s current weekly wage rate.
12.The issues as summarised above have been taken from the appellant’s written submissions in support of the appeal.
ON THE PAPERS REVIEW
13.Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
14.Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
LEAVE TO APPEAL
Monetary threshold
15.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
16.The monetary thresholds in s 352(2) of the 1998 Act are satisfied.
Time
17.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act. I grant leave to appeal.
FRESH EVIDENCE
18.The appellant submits that leave pursuant to s 352(6) of the 1998 Act to tender fresh or additional evidence should be granted on this appeal. It is convenient to deal with the documents in two parts. The first part, referred to as “Schedule B” to this appeal, are the documents sought to be tendered from the records of Dr Benjamin, the worker’s treating general practitioner. The documents are:
(a) letter from Dr Benjamin to the Workers Compensation Commission dated 10 May 2010;
(b) apparent extract from Goodooga Hospital notes dated 27 January 2005;
(c) apparent clinical record card entries for 27 January 2005, 30 January 2005 and 11 March 2005;
(d) apparent hospital note dated 27 January 2005 on document headed “Far West Health Service Radiology Request”;
(e) letter from Dr Benjamin to VMO of Walgett Hospital dated 27 January 2005;
(f) typed letter from Dr Benjamin to Dr Greenberg dated 30 January 2005, and
(g) letter from Dr McCallum to Gloria McDonald undated (two pages).
19.The second group of documents referred to at “Schedule C” to the appeal concern a report prepared by Mr Parsons of Brooksight Investigations. The documents include:
(a) Typed report dated 19 May 2010 (five pages);
(b) Annexures to the report, being:
i)statement of Errol Lather dated 11 May 2010 (three pages);
ii)diary entries for period 26 January 2005 to 30 January 2005, with identifying certificate from G Lather (three pages);
iii)shearing run (“tally book”) records for 27 January 2005 and 28 January 2005, with identifying certificate from Mr Lather (two pages);
iv)wages sheet for 1 February 2005;
v)specification document about fencing;
vi)Google map extract re location of respondent worker’s home, and
vii)eight photos of residence.
20.These documents, now sought to be admitted on appeal, were the subject of an Application for the Admission of Late Documents before the Arbitrator. The Arbitrator’s rejection of the application is one of the grounds of appeal. In order to deal with that ground of appeal and the present application, it is necessary to give some background to understand the significance of the documents.
21.Mr Boney asserts in his statement dated 16 January 2009 that, on 26 January 2005, he was offered a shearing job at the appellant’s property. He says that he was travelling to the property with Johnny Gibbs, who lived nearby. He left his house, proceeded through the front yard, and attempted to jump a mesh fence, when he was injured. He stated that, although he was in pain, he agreed to go to the appellant’s property because he thought that his fellow shearers needed his assistance to get through the number of sheep that they were required to shear that day. He stated that they (I infer himself and Johnny Gibbs) travelled out to the appellant’s property by car. He completed the first run, but was unable to shear the second, third and fourth runs, due to pain in his right foot. He stated that he was then taken back to Goodooga by Johnny Gibbs and made an appointment to see Dr Benjamin on 27 January 2005 at 11.40 am.
22.The appellant submitted to the Arbitrator, and on this appeal, that the documents sought to be admitted as late documents in the arbitration and as new evidence on appeal would demonstrate that the appellant was not undertaking shearing activities on 26 January 2005. It is a matter of public record that 26 January 2005 was the Australia Day public holiday. On that date, Mr Lather, the manager of the Dunphys’ property, made the following entry in his diary: “mustered weaners + drafted ready for shearing and crutching”. Those facts tend to establish that no shearing work was undertaken on the appellant’s property on 26 January 2005 and therefore, that the worker could not have been in the course of a journey within the meaning of s 10 on 26 January 2005, as alleged.
23.The appellant alleges that the Application annexed very little material from medical professionals which was in any way contemporaneous with the asserted events. The earliest such document would seem to be the two-page letter from Dr Alex McCallum at Dubbo Base Hospital addressed to Gloria McDonald at Centrelink (page 61 of the Application). It is undated, but was written some time after 18 February 2005. It contains the following history:
“Mick Boney presented to Dubbo Base Hospital on 30 January 2005 … right ankle injury.
Original injury 26/1/2005 when fell 2 m from fence onto ground. After this fall he was unable to weight bear and attempting to shear sheep on 27/1/5 at work caused pain++. He was admitted to Goodooga Hospital.It was noted at the time 30/01/ @ Goodooga on second presentation that there was swelling and blistering over the medial malleolus (ankle).
At Dubbo:- no fracture identified
- admitted with diagnosis of cellulitis
Since admission Michael has developed severe ulceration which has been caused by deep tissue infection …”
24.The statement from Mr John Gibbs (page 181 of the Application) describes an injury occurring on 24 December 2004, when Mr Boney sustained a cut on his foot from a shearing comb. However, the statement records:
“I was in the same crew as Michael Boney some weeks later when we were working at a property ‘Wooleywhybar’ which was about 27 km out the Brewarrina road. I remember Michael Boney had only lasted one run when he had to stop because he hurt his foot again. I believe he injured his foot when he jumped a gate.”
Dr Benjamin’s records
25.Somewhat surprisingly, the Application does not contain any records or reports from Dr Benjamin, the worker’s treating doctor. The appellant submits that Dr Benjamin’s notes, particularly concerning the history he was given by Mr Boney when he saw him for treatment on 27 January 2005 or thereabouts, is of obvious potential forensic interest.
26.Although Mr Boney’s solicitors had been acting for him since at least April 2005, the Application to Resolve a Dispute was not filed until March 2010. Hence, Mr Boney’s solicitors had ample opportunity to obtain the records from Dr Benjamin before they filed the Application. Mr Boney’s claim against the appellant was not made until 26 August 2009. The claim documentation then provided did not contain an authorisation from him enabling Dr Benjamin to release the details to the appellant or its scheme agent.
27.A telephone conference was held on 20 April 2010. Ms Browne, solicitor, appeared for the appellant and Mr McCabe, solicitor, appeared for Mr Boney. The Arbitrator gave the appellant leave to file and serve a Direction for the Production of Documents on Dr Benjamin. Both parties were given leave to lodge with the Commission, and serve on each other, material produced pursuant to the Direction and other relevant medical reports, as late documents. The Arbitrator noted:
“The admittance of any late documents arising out of the directions process will be dealt with at the conciliation/arbitration conference.”
28.In accordance with the leave given, the appellant filed a Direction for the Production of Documents and served it on Dr Benjamin on 27 April 2010. It directed that the documents the subject of the Direction must reach the Commission by 13 May 2010.
29.Part 2 of the Direction included proposed access orders in the following terms:
“The parties may inspect and copy (for the purpose of these proceedings only) any material produced in compliance with this Direction as follows:
First access to the applicant for seven days after the return date.
Other parties may access the documents for the same length of time as the first time access party once the first access period has expired.”
30.In accordance with those orders, Mr Boney had first access to the documents from 14 May 2010 to 20 May 2010. The appellant had access to the documents from 21 May 2010. It is apparent from the date stamp on the correspondence received from Dr Benjamin that the documents produced in answer to the Direction were not received by the Commission until 13 May 2010.
31.The appellant submits that the documents produced by Dr Benjamin in response to the Direction were “probably” photocopied by staff from the appellant’s solicitor’s Sydney office on Friday 21 May 2010 and that the documents were “probably” received by the solicitor with carriage of the matter in Newcastle on Monday 24 May or Tuesday 25 May 2010.
32.Counsel’s advice was sought with respect to whether the relevant parts of those documents should be admitted in the proceedings. The documents were scanned and sent by email to counsel on Wednesday 26 May 2010. On Thursday 27 May 2010, advice was given to the effect that a small number of documents were highly relevant and that leave should be sought to have those documents admitted in evidence. Advice was given that it was highly unlikely that the Commission’s staff would be able to re-forward any formal application to admit documents to Arbitrator Minus for use in a hearing in Dubbo the following day. Hence, it was decided that the more practical course was for counsel to take copies of the relevant documents to the hearing in Dubbo and seek to have them admitted at the hearing. That was the course embarked on.
33.The Commission’s records indicate that the appellant’s solicitors forwarded by email to the Commission an Application to Admit Late Documents at 4.57 pm on 26 May 2010. The Application was registered on 27 May 2010. The Application attached medical certificates from Dr Benjamin dated 28 January 2002 and 4 March 2002 (which concern an injury to the right leg and foot from a motor cycle accident on 28 January 2002) and the investigation report from Brooksight Investigations of 19 May 2010.
34.It appears to be common ground that the Application to Admit Late Documents was not served and the first notice of the proposed Application to Admit Late Documents was given to Mr Dodd, counsel for Mr Boney, shortly before the hearing was scheduled to commence in Dubbo.
35.For reasons which I will come to shortly, the Arbitrator rejected the tender of Dr Benjamin’s records (Schedule B).
The investigation records
36.The appellant also made an Application to Admit Late Documents in the form of an investigation report from K Parsons of Brooksight Investigations dated 19 May 2010. These are essentially the same documents now sought to be admitted on the appeal (Schedule C).
37.The appellant submits that the statement of Mr Lather dated 11 May 2010 attests to the fact that Mr Boney did not arrive to shear at his property until about 7.30 am on 27 January 2005, which adds weight to the appellant’s submission that the incident involving the fence occurred the day before the relevant journey.
38.The shearing run book entry shows that “Mick” (which I infer is Mr Boney’s abbreviated given name) only shore 11 sheep on 27 January 2005. The wage book entry for 1 February 2005 is consistent with Mr Boney shearing only 11 sheep. Mr Lather’s diary entry for 27 January 2005 is consistent with the shearing starting that day, that is, the day after Mr Boney injured his ankle. Mr Lather’s entry stated:
“Started shearing ewes. Backlined with Mognum. Drenched with Maxi-Min”
39.The entry for 28 January 2005 simply noted “shearing”.
The Arbitrator’s refusal to admit late documents
40.After hearing submissions from counsel for both parties as to the significance of the documents sought to be tendered as late documents, and the reasons for the untimely application, the Arbitrator rejected the tender.
41.The Arbitrator accepted that, by reason of the late notice, Mr Boney was in a position of “extreme prejudice”. The Arbitrator took into account the fact that Mr Boney did not have the opportunity to call oral evidence from Mr Gibbs about the circumstances of his injuries.
42.Whilst the Arbitrator accepted the appellant’s submissions about the difficulty in obtaining the doctor’s notes until a Direction could be issued at the telephone conference, with respect to the “other material” (the Schedule C material), steps could have been taken much earlier to obtain that material and to alert Mr Boney’s solicitors to it. That, the Arbitrator stated, would have afforded Mr Boney’s solicitors the opportunity to properly investigate the matters and obtain any additional evidence required.
43.The Arbitrator was persuaded by Mr Boney’s submissions as to his prejudice should the documents be admitted and also noted that he had travelled a considerable distance to attend the hearing. There was no application for an adjournment.
Submissions concerning the Arbitrator’s alleged error in rejecting the Application to Admit Late Documents from the records produced to the Commission by Dr Benjamin
The Dunphys’ submissions
44.The appellant relies on the decision of Deputy President Byron in Coles Myer Ltd v Tabassum [2005] NSWWCCPD 16, and described the following factors appropriate to the current appeal:
(a) whether there was an acceptable explanation for the delay;
(b) whether or not the refusal will cause a substantial prejudice to the party;
(c) the prejudice, if any, that would result to the other party;
(d) whether or not the delay was attributable to the legal representative and not to the party personally;
(e) the nature of the proceedings, and
(f) general considerations of fairness and justice between the parties.
45.The appellant submits that, given the history of the matter, they have provided an acceptable explanation for the delay.
46.The refusal to admit the documents prevented the appellant from being able to adduce evidence from the general practitioner who saw the worker immediately after the alleged injury and for some years thereafter. Any account in his documents of a history inconsistent with Mr Boney’s assertions would be of obvious forensic advantage to the appellant. Hence, it is submitted that the refusal caused significant prejudice, which should have been avoided by the Application being allowed.
47.Any prejudice to Mr Boney must be weighed in the context that his solicitors had 4.5 years years to obtain contemporaneous records or history made or received by Dr Benjamin. In contrast, the appellant had one week.
48.It is submitted that there was no delay on the part of the appellant’s legal representatives. On the contrary, it is submitted that they inspected the records with commendable swiftness as soon as they were able and permitted to do so. It is submitted that any extremely minor delay occasioned by seeking counsel’s advice was perfectly reasonable.
49.The proceedings involve a substantial claim for lump sum benefits and (prior to its amendment on the day of the hearing to limit the claim for weekly payments to three months), it was a claim for substantial weekly benefits. No claim was made until four-and-a-half years after the alleged journey injury. Hence, the proceedings involved a contentious, substantial and much-delayed claim. It is submitted that a claim of this nature suggests that fairness dictates that such documents ought to be have been admitted.
Mr Boney’s submissions
50.The appellant failed to comply with pt 10 r 10.3(4) of the Workers Compensation Commission Rules 2006 (which applied at the relevant time), which provides that, where a party wishes to rely upon a document produced as required by a Direction, “the party must, as soon as practicable after becoming aware of the information, lodge and serve on all of the parties to the proceedings” a copy of the document.
51.Mr Boney submits that the appellant’s assertions as to when the documents were “probably” inspected and “probably” received are matters of conjecture and have not been the subject of any evidence.
52.The appellant took a further two days (with an impending hearing date in Dubbo on 28 May 2010) for the documents to be scanned and sent electronically to counsel.
53.Mr Boney rejects the appellant’s submission that the Commission would not have been able to re-forward any application for late documents to the Arbitrator “in the modern world of electronic communications”.
54.No Application to Admit Late Documents was made by the appellant. More importantly, it is submitted, there is no evidence that the appellant ever served the extract of the relevant documents on Mr Boney’s solicitors. The first notice they had of them was shortly before the hearing commenced in Dubbo.
55.The absence of evidence as to service of the documents sought to be admitted into evidence is fatal to the appellant’s case. The Rules require service of documents on other parties for the very good reason that this gives notice that the serving party intends to rely upon them. In the absence of service of documents, the other party cannot prepare its case accordingly.
56.The Arbitrator clearly and logically exercised his discretion to reject the proposed tender pursuant to pt 10 r 10.3 of the Rules. His reasons for doing so are found at T14–17.
57.Accepting the appellant’s chronology, the appellant became aware of the information at the latest on Tuesday 25 May 2010, but did not take any steps to lodge it with the Commission or serve it on the respondent (until shortly prior to the hearing). Indeed, a decision was made by counsel for the appellant to take the documents with him to the hearing in Dubbo and seek to have them adduced at the hearing.
Submissions in respect of the alleged error in refusing the application to admit the report from Mr Parsons and the documents attached to it
The Dunphys’ submissions
58.The appellant submits there was no delay commissioning an investigation between January 2005 and August 2009 because the appellant and its scheme agent were not aware of any allegation of injury. Between November 2009 and April 2010, it is conceded that the appellant failed to investigate the matters referred to in the s 74 notice, and it is frankly conceded that this is “not particularly satisfactory”. The appellant submits that this was not delay occasioned by the appellant per se but, rather, by their scheme agents.
59.The refusal to admit the documents resulted in obvious potential prejudice to the appellant. Contemporaneous and other records may well have been capable of establishing that Mr Boney did not work on 26 January 2005 and would not have journeyed to the appellant’s property on that day.
60.The appellant concedes that it “does create problems” for a worker’s representative to be confronted with such material at a hearing or a short time beforehand. However, the worker was available to give evidence if he sought to refute the matters referred to in the historical business records. The practical situation is that those documents (the diary extracts and medical reports) are historical business records and simply state the facts contained in them. The late disclosure does not affect what they contain. It is submitted, on balance, that the Arbitrator erred in rejecting the tender. In the alternative, it is submitted that the historical business records at least ought to have been admitted.
Mr Boney’s submissions
61.Mr Boney submits that the appellant’s counsel conceded that there was no explanation for why the scheme agent failed to commission an investigation report between November 2009 and April 2010. Also, no explanation was forthcoming as to why the report received one week before the hearing was not filed with an Application to Admit Late Documents or served upon the respondent in the week before the hearing. It is therefore submitted that the documents ought to be rejected because:
(a) they failed to comply with the Rules concerning the admission of such documents;
(b) there was (and is) no evidence of service of the documents, and
(c) the Arbitrator properly exercised his discretion to exclude the documents, particularly because the respondent would be irreparably prejudiced by their admission.
62.Mr Boney also submits that there is no right of appeal from the decision of the Arbitrator to exclude the documents, such a decision being an interlocutory order. I will revert to that submission in due course.
DISCUSSION AND FINDINGS
The Arbitrator’s rejection of the Application to Admit Late Documents
63.The relevant starting point for a determination of this issue is to have regard to the Commission’s statutory objectives, which are set out in s 367 of the 1998 Act, which provides (so far as is relevant):
“367 Objectives of Commission
(1) The Commission has the following objectives:
(a)to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b)to reduce administrative costs across the workers compensation system,
(c)to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d) …”
64.Section 290 of the 1998 Act provides that, when a dispute is referred for determination by the Commission, each party to the dispute must provide to the other parties and to the Registrar such information and documents as the Rules require.
65.At the hearing before the Arbitrator, pt 10 r 10.3 of the 2006 Rules applied. On 1 October 2010, the 2006 Rules were repealed and the Workers Compensation Commission Rules 2010 (the 2010 Rules) were commenced. The provisions of pt 10 remained unaltered in the 2010 Rules. Part 10 r 10.3 provides:
“10.3 Material to be lodged with application or reply
(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with:
(a)the application to resolve the dispute, if the party is the applicant, or
(b)the reply required by rule 10.4 (1), if the party is a respondent, or
(c)the reply required by rule 11.1 (7), if the party is a party joined under rule 11.1(4),
all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings.
(2) Subject to subrules (3)–(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Guideline made under that Act.
(3) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a party wishes to rely on a document produced as required by a direction issued under rule 13.4 or a notice for production served under rule 12.2, or inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), and claims that the party was:
(a)unaware of the relevant information in the document, or
(b)unable to obtain possession of the document,
at the time the party lodged the application to resolve the dispute or reply by the party in the proceedings, the party must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings:
(c)a copy of the document, or
(d)if the document was inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), a description of the document.
(5) Without limiting subrule (3), where a party complies with subrule (4) in respect of any information, the Commission may allow the party to introduce evidence of that information.”
66.I do not accept Mr Boney’s submission that no Application to Admit Late Documents was made by the appellant. The Commission’s records confirm that an Application to Admit Late Documents was forwarded to the Commission by email under cover of a letter from the appellant’s solicitors dated 26 May 2010. It is apparent that the letter, the Application to Admit Late Documents and the attached documents were received by the Commission by email at 4.57 pm on 26 May 2010. The Commission registered those documents on 27 May 2010.
67.There is, however, no doubt that the Application to Admit Late Documents was not served. Although counsel for the appellant explained the reasons why it was not served, the failure to do so was a clear breach of r 10(4). Contrary to the Respondent’s submission that failure to serve was fatal, there remained a discretion under pt 10 r 10(3) to allow the material to be introduced into evidence if the Commission considered it “in the interests of justice to do so”.
68.In Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135, Acting Deputy President Snell, in dealing with a similar situation where the appellant employer was seeking an indulgence to rely on certain documents, cited Iovanescu v McDermott [2004] NSWCA 106 (Iovanescu). In that matter, the NSW Court of Appeal dealt with an application pursuant to the District Court Rules 1973 to seek extension of time in which to seek rescission of a dismissal order. Young CJ said:
“3. Mr Doherty SC almost used the phrase ‘merely a matter of case management’ as some sort of mantra which would excuse all non-compliances with the court rules.
4. It is true, as has been said many times over, that the rules must be the servant and not the master, in litigation.
5. However, the authorities, when properly examined, do not stop there, but actually make it clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.”
69.In the same case, Windeyer J said:
“12. So far as prejudice is concerned the trial judge said that the relevant rule under which the statutory dismissal took place was part of the case management armoury of the court. He then set out various passages from State of Queensland & another v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 which are well known and which need not be reproduced, but which in essence state that case management is not an end to itself but is an aid to the administration of justice and that case management procedures do not overcome the requirement of ensuring a fair trial. It is a mistake to regard the decision in that case as a sort of gospel in all indulgence applications; it is important to remember it was relevant to amendment.”
70.Windeyer J went on to say:
“16. I turn now to the explanation as to whether or not there was a proper explanation for delay. Counsel for the respondent argued that as there was no statutory requirement for an explanation, no explanation was required. That is not correct. It is always a question bearing upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension of time to apply to rescind the dismissal. It cannot just be a question of prejudice and ability to have a fair trial. If that were the position and everything else could be sorted out by appropriate costs orders then the accepted requirements for case management would go out the window. Hence the principles of case management assume that the parties will comply with rules or give proper reasons for failure to do so.”
71.In so far as the records from Dr Benjamin are concerned, the appellant’s counsel provided the Arbitrator with a detailed explanation for the delay in the service of those documents. I accept that it is a common feature of practice in this Commission for the clinical notes of treating doctors to be obtained pursuant to a Direction for the Production of Documents. Such directions can only be issued with leave given by an Arbitrator, which is usually obtained at the first telephone conference. That is what occurred in this case. As result of that process, the appellant had one week to inspect the documents, obtain advice from counsel concerning the large number of documents produced, and then file and serve an Application to Admit Late Documents, if considered necessary. I accept that the appellant acted with reasonable diligence to take those steps, although they failed to take the critical step of serving the Application on Mr Boney’s solicitors. Even if that had occurred, given the chronology of events, it could not have been served until a day or two before the hearing in Dubbo, in which case I suspect that counsel for Mr Boney would have made the same application that he did in terms of the prejudice alleged to arise from the late service of those documents.
72.Mr Boney’s claim for compensation was made by letter from his solicitors. It was not made on the WorkCover approved injury claim form. Had that form been used, Mr Boney would have been required to authorise the release of relevant medical or hospital records in connection with his claim. The failure to do so deprived the appellant of the opportunity to seek access to Dr Benjamin’s records, necessitating the seeking of leave to issue a direction for the production of documents. I also acknowledge the force of the appellant’s submission that, prior to lodging his claim for compensation, Mr Boney’s solicitors had every opportunity to obtain access to Dr Benjamin’s records. Whether they did so or not is unknown.
73.In considering the issue of prejudice, it is necessary to have regard to the contents of the documents, and the use the appellant sought to make of them. The Arbitrator’s rejection of the late documents resulted in substantial prejudice to the employer. The rejection prevented the employer from relying on evidence from the worker’s general practitioner whom he saw immediately after the alleged injury and for some years thereafter. That needs to be weighed against the fact that Mr Boney’s solicitors had several years prior to the filing of the Application to seek access to those records. They also had the opportunity to inspect the records once they had been lodged in the Commission by Dr Benjamin pursuant to a Direction to Produce. There is no evidence before the Commission as to what steps, if any, Mr Boney or his lawyers took to seek access to Dr Benjamin’s records before the hearing. Certainly, nothing from Dr Benjamin was filed with the Application. These are steps that should have been taken, particularly as the s 74 notice and the Reply filed by the appellant clearly indicate that liability was in issue in terms of whether Mr Boney was a worker within the meaning of the Act at the relevant time and whether he was on a compensable journey.
74.Whilst I do not condone the appellant’s failure to comply with the rules regarding the service of the late documents, given the particular circumstances of this case, I consider that the appellants have given a reasonable explanation for their failure to comply with the rules in so far as the documents from Dr Benjamin’s records are concerned.
75.In so far as the report of Mr Parsons is concerned, the appellant has frankly conceded that, between November 2009 and April 2010, the scheme agent probably neglected to commission the investigation report referred to in the s 74 notice. It also frankly conceded that the omission was “not particularly satisfactory”. I note that Mr Lather was not interviewed until 11 May 2010 and the Brooksight investigation report was not submitted to CGU until 19 May 2010. What occurred between 19 May 2010 and the hearing on 28 May 2010 is unexplained. These omissions, in my view, are significant factors militating against the discretion being exercised in the employer’s favour.
76.However, the prejudice occasioned by the rejection of the investigation report and, particularly, the business records of Mr Lather, is substantial. If accepted, they tend to demonstrate that the injury could not have occurred in compensable circumstances. The records indicate that on the Australia Day public holiday, the day Mr Boney alleges he was injured, there was no shearing being conducted on the appellant’s property and there would have been no reason for Mr Boney to be travelling to work that day. The records indicate that, on 26 January 2005, Mr Lather was mustering sheep in preparation for the shearing that was undertaken on 27 and 28 January 2005.
77.There were a number of alternatives available to the Arbitrator. The case could have been commenced in Dubbo, as scheduled, and treated as a “part-heard” matter subject to any further evidence the worker wished to rely on. Alternatively, the matter could have been adjourned, subject to an appropriate costs order, to enable Mr Boney time to properly respond to the evidence disclosed in the late documents. The Arbitrator did not consider either of those alternatives.
78.In Menzies & Anor v CRCI Pty Ltd [2007] NSWCA 118, Hodgson JA at [27] said:
“It was put that, in accordance with JL Holdings, the court should grant an adjournment unless prejudice was caused to the other side that could not be met by an adjournment and costs, and that any prejudice in this case could have been so met. However, in my opinion, where an amendment would require vacation of a hearing date which was set to take place within a few days, generally there is prejudice through prolongation of the litigation that is not entirely met by costs, and the imposition of that prejudice on the other party needs to be justified by the strength of the case made for the indulgence by the party applying for it. I do not think that this was made out in this case, for the reasons I have given, especially in circumstances where no explanation was given for not complying with the terms of the previous indulgence granted.”
79.The employer has frankly conceded that its explanation for the delay in producing the investigation report was unsatisfactory, and accepted the difficulties it presented for Mr Boney and his legal representatives at the hearing. There is no doubt the appellant was dilatory in commissioning the investigation report. However, I am persuaded that a fair hearing of the issues between the parties could not be had without relevant contemporaneous records being admitted into evidence, particularly in circumstances where the Application was not brought until some four and a half years after the relevant events.
80.Notwithstanding the breaches of the rules concerning the filing and serving of an Application to Rely on Late documents, given the significance of the facts disclosed in the relevant documents, and having regard to the objectives of the Commission, I consider that, in the particular circumstances of this case, in the interests of justice, the appellant should have been permitted to tender the late evidence under pt 10 r 10(3).
81.For these reasons, I find that, given the strength of the case made for the indulgence, the Arbitrator erred in the exercise of his discretion to reject the admission of eight documents from the records produced to the Commission by Dr Benjamin and the investigation report of K Parsons and the documents attached to it.
Was the order made by the Arbitrator interlocutory?
82.Mr Boney submits that the decision made by the Arbitrator to reject the tender of the documents sought to be admitted by the appellant were orders of an interlocutory nature and therefore not a “decision” amenable to appeal pursuant to s 352 of the 1998 Act.
83.The appellant submits that s 352(8) provides that a “decision” does not include any order of an interlocutory nature prescribed by the Regulation, and reg 200B of the 2003 Regulation prescribes all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature for the purposes of s 352(8).
84.It is further submitted that there is “no doubt” that a decision regarding the acceptance or rejection of evidence is an interlocutory order, in that such a decision does not finally dispose of rights of the parties (Sepic v Linfox Transport Group Pty Ltd [2007] NSWWCCPD 171 (Sepic) at [26]–[31]).
85.I reject the submission for these reasons:
86.First, Sepic concerned the effect of an Arbitrator’s decision to dismiss part of a worker’s claim for want of jurisdiction. After analysing the relevant statutory provisions and authorities, Candy ADP determined that the Arbitrator’s orders were interlocutory and refused leave to appeal. In that case, the Acting Deputy President was not satisfied that the Arbitrator’s orders finally determined the worker’s rights, stating at [42] that the worker was free to lodge a further claim for that portion of his claim that had been the subject of the Arbitrator’s orders and, in that sense, his rights had not finally been determined. It follows that Sepic is not authority for the proposition advanced by Mr Boney.
87.The distinction between a “final” and an interlocutory order was considered in State of New South Wales v Bujdoso [2007] NSWCA 44 at [29] and [30], where Ipp JA said:
“There is a long line of cases in the High Court of Australia which have held that, in regard to disputes as to whether a judgment is interlocutory or final, the question to be asked is whether ‘the judgment or order, as made, finally disposes of the rights of the parties’: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 442 to 445 per Windeyer J; Licul v Corney [1976] HCA 6; (1975) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited[No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited[No 1] [1982] HCA 9; (1982) 149 CLR 147.”
88.In my view, it is clear that the Certificate of Determination, the subject of the appeal in this matter, finally determined the worker’s rights in respect of his claim for weekly compensation and medical expenses. Those were final, not interlocutory, orders.
89.Second, the admission or rejection of evidence during the course of the arbitration hearing may involve errors of law which may be the subject of appeal (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139).
90.Third, if the relevant ruling was in fact interlocutory, questions with respect to it may be raised on appeal once a final determination has been made (Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97; Whitehead v Kassagrove Pty Ltd [2007] NSWWCCPD 154 at [28]–[29]).
Other issues
91.It follows from these findings that the Arbitrator’s determination of 24 June 2010 should be revoked. It is clear from the discussion that took place before the Arbitrator that Mr Boney and his legal representatives will require an opportunity to consider the additional evidence and to respond to it. Whilst it is preferable, where an appeal has been upheld, that the Presidential Member finally determine the matter (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344), that would perpetuate the very prejudice Mr Boney’s counsel protested before the arbitrator.
92.In those circumstances, it is appropriate that the matter should be remitted to another arbitrator to determine a fresh. Given the findings I have made, it is no longer necessary to consider the remaining grounds of appeal, which included the Arbitrator’s alleged error in failing to consider whether the respondent worker had discharged the onus of proving the alleged injury occurred after he had crossed the boundary of the land on which his place of abode was situated, and of incorrectly determining his current weekly award rate. Given the paucity of evidence on those matters, I would not be in a position to determine those issues in any event. Those are issues that will need to be the subject of evidence and determination by the next arbitrator. As the matter cannot be re-determined on appeal, it is unnecessary to determine the appellant’s application for the admission of the new evidence on the appeal.
CONCLUSION
93.Having conducted a review on the merits, I have concluded that the Arbitrator erred in the exercise of his discretion to reject the Application for the Admission of Late Documents, being extracts from the documents held by the worker’s treating doctor, and from an investigation report into the circumstances surrounding his alleged injury.
DECISION
94.The Arbitrator’s determination of 24 June 2010 is revoked and the matter is remitted to a different arbitrator to determine afresh.
95.This appeal has been provoked by the appellant employer’s failure to comply with the Rules in relation to the service of late documents. That has resulted in the costs of the arbitration hearing in Dubbo on 28 May 2010 being wasted. In those circumstances, I order that the appellant employer pay the worker’s costs of the arbitration hearing on 28 May 2010 irrespective of the outcome of the next hearing.
96.I make no order in relation to the costs of the appeal.
Judge Keating
President
28 October 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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