Fairfield City Council v McCall (No 2)
[2022] NSWPICPD 29
•27 July 2022
| DETERMINATION OF A RECONSIDERATION APPLICATION IN RESPECT OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |
CITATION: | Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29 |
APPELLANT: | Fairfield City Council |
RESPONDENT: | Gregory George McCall |
INSURER: | Self-insured |
FILE NUMBER: | A1-W683/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 27 July 2022 |
ORDERS MADE ON APPEAL: | 1. The application to reconsider my decision of 29 April 2022 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – reconsideration application – section 57 of the Personal Injury Commission Act 2020 –Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 discussed and applied – held that the appropriate remedy that should be sought should be under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 instead of a reconsideration application |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Ms L Goodman, counsel | |
| Carroll & O’Dea Lawyers | |
DECISION UNDER RECONSIDERATION: | |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
| DATE OF PRESIDENTIAL MEMBER’S DECISION: | 29 April 2022 |
NON-PRESIDENTIAL MEMBER: | Mr M Wright |
| DATE OF NON-PRESIDENTIAL MEMBER’S DECISION: | 14 July 2021 |
INTRODUCTION
Mr McCall, the respondent to this application (the worker), filed an Application to Resolve a Dispute against Fairfield City Council, the employer, in which he claimed weekly compensation and related medical treatment expenses for a disease injury to the back with a deemed date of injury of 24 September 2019.
On 14 July 2021, Member Wright, a Member of the Personal Injury Commission, Workers Compensation Division, (the Member) issued a Certificate of Determination[1] making awards in favour of the worker.
[1] McCall v Fairfield City Council [2021] NSWPIC 242 (reasons).
The Certificate of Determination was the subject of an appeal.
On 29 April 2022 I determined[2] that the Member’s Certificate of Determination dated 14 July 2021 should be confirmed.
[2] Fairfield City Council v McCall [2022] NSWPICPD 15.
On 8 June 2022 the employer filed an Application for Reconsideration of the decision of 29April 2022 in accordance with s 57 of the Personal Injury Commission Act2020 (the 2020 Act).
The employer seeks to have the decision of 29 April 2022 reconsidered pursuant to s 57 of the 2020 Act. In the event that the reconsideration proceeds and is successful, the employer seeks an order that the decision be rescinded, altered or amended to accord with the employer’s submissions and further, consequential orders: (1) revoking the original Certificate of Determination and, (2) remitting the matter to a new Member for a determination according to law.
The application for reconsideration is opposed by the worker.
For the reasons that follow, the application for reconsideration is refused.
It is convenient to commence with the parties’ submissions as they make clear the nature of the application and the response in opposition.
EMPLOYER’S SUBMISSIONS
The employer submits:
“3. The basis for the Application for Reconsideration arises in respect of the acceptance by the Acting Deputy President that the Worker made the submission as recorded in paragraph 64 of his Decision and paragraph 132 of the Decision of the Member.
4. The [employer] submits, with the greatest of respect, that no such submission was made at any time and nor was the availability of the inference referred to raised with the parties and in particular the [employer]. This is confirmed by a review of the transcript which plainly indicates that no such submission was made at any time and nor was the suggestion of an available inference raised.”
The employer submits that the worker did not submit that an adverse inference should be drawn against the employer. It submits that this was not an issue raised with the parties and that the worker conceded this as was specifically referred to in the submissions in reply.
The employer submits that the determination constitutes an error of the kind dealt with in Seltsam Pty Limited v Ghaleb[3] and JA & MA Costa Pty Limited v Makouk[4] with the consequence that the Member’s decision should be revoked and the matter remitted for further hearing.
[3] [2005] NSWCA 208; 3 DDCR 1 (Ghaleb).
[4] [2021] NSWPIC PD 11, [131]–[137].
The employer submits that there is a strong likelihood that the error affected the result for two reasons:
“The first is that if the matter had been raised either on behalf of the Worker or by the Member the Member would simply have been informed that there was no report available from the Doctor, the subject of the inference. In a similar (but more forceful) manner that the Respondent Worker dealt with a different report as referred to in paragraph 127 of the Member’s Reasons (although it should be noted that the statement made by Counsel for the Respondent Worker is somewhat equivocal as recorded in the transcript page 36 from lines 5 to 9). The second reason is that the Member clearly placed significant reliance on the ‘inference’ as is evident from paragraphs 132 and 138 of the Statement of Reasons.”[5]
[5] Employer’s submissions, [9].
Finally, the employer submits that the matter should be dealt with by way of reconsideration as an alternative to appeal because of the significant further cost, including the prospects of an adverse costs order.
WORKER’S SUBMISSIONS
The worker submits that the employer had made a submission, recorded at page 49 of the transcript of proceedings,[6] that there was an inference arising by reason of the fact that the worker had not relied on any evidence from Dr Foo. The Member did not accept this submission but in light of the evidence of the worker that Dr Foo had suggested a better quality driving seat, accepted instead that the absence of evidence from Dr Foo allowed him to infer that it would not have assisted the employer’s case.
[6] Transcript of proceedings 3 June 2021 (T).
The Member held as a fact that the worker was sent to Dr Foo by the employer and there was no explanation forthcoming from the employer as to why there was no evidence in the form of a report or otherwise from Dr Foo. These factual findings were not challenged by the employer in the appeal.
The worker submits that the appropriate principles are those set forth by Roche ADP (as he then was) in Samuel v Sebel Furniture Limited.[7]
[7] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
The worker points out that s 57(6) of the 2020 Act sets out examples of obvious errors and that the present is not an obvious error.
He further submits that if the Acting Deputy President’s decision contains an error (which is disputed) then it is an error of law, which is not a matter that should be corrected by way of reconsideration.
The submission is made that the litigation should not proceed indefinitely.
CONSIDERATION
Legislation
Section 57 of the 2020 Act provides:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
Section 3 of the 2020 Act provides as follows, in part:
“3 Objects of Act
The objects of this Act are as follows—
…
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…”.
Section 4 of the 2020 Act directs, amongst other things:
“4 Interpretation and application of Act by reference to objects
(1) …
(2) In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned.”
Principles governing reconsideration applications
In Ceccato v Australian Steel Mill Services Pty Limited (No 2),[8] Deputy President Snell collected a number of general authorities on similar provisions in the course of a reconsideration application under the since repealed s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). He set out a passage from the earlier decision of Roche ADP in Samuel.
[8] [2021] NSWWCCPD 6.
Section 350 of the 1998 Act was repealed by the 2020 Act[9] at the commencement of the Personal Injury Commission on 1 March 2021. The prior s 350(3) stipulated that:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”.
[9] Clause 6.10 [70] of Schedule 6 of the Personal Injury Commission Act 2020.
The principles outlined in Samuel with respect to an application to reconsider under the repealed s 350(3) of the 1998 Act are of assistance in considering the operation of s 57(1) of the 2020 Act. I set them out without providing the full citation of the supporting authorities as follows:
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”[10]
[10] Samuel, [58].
Section 354 of the 1998 Act (‘Procedure before Commission’) was also repealed. Section 354(3), referred to above in Samuel, provisioned that “[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”, similarly to ‘Guiding Principle to be applied to practice and procedure’ outlined in s 42 of Part 5, Division 5.1 of the 2020 Act.
Nevertheless, it is s 57 of the 2020 Act which must be applied.
The discretion to reconsider is to be exercised for reasons and with a view to advancing the objects of the 2020 Act. It is not, in my view, intended to be a substitute for the rights of appeal given by s 353 of the 1998 Act.
The majority of the previous decisions dealing with reconsideration have been concerned with reconsideration based on further evidence.
Thus in Samuel Roche ADP said in part:
“reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result”.[11]
[11] Samuel, [58(5)], see [26] above.
The present reconsideration is not based on additional or fresh evidence, rather it is submitted that the Member and I each acted on the basis of a submission not made by the worker in circumstances where the employer was not informed of the intention to determine the matter on this basis.
The type of error identified in Ghaleb is one based on a denial of procedural fairness. If such an error is established, it is an error of law requiring a rehearing.
In my view, the employer’s remedy in respect of the decision of 29 April 2022 is by way of appeal to the Court of Appeal pursuant to s 353 of the 1998 Act rather than a further reconsideration by the Commission.
My reasons for that conclusion are as follows:
(a) Whilst s 57(1) may well be wide enough to enable the Presidential Member to reconsider a matter vitiated by error of law, I doubt that such errors are the intended subject of s 57(1).
(b) The text of s 57(2)–(6) identifying the types of error otherwise contemplated by the section, albeit “without limiting the generality of subsection (1)”, are plainly not errors of law.
(c) Furthermore, the previous authorities on similar provisions which provide context to the current provision have by and large concerned themselves with evidentiary matters.
(d) Section 353 of the 1998 Act provides for a party “aggrieved by a decision … in point of law” to appeal directly to the Court of Appeal. While it may be that where there is a clear undisputed legal error s 57(1) could be utilised to make the correction, this is not such a case.
(e) The legal error is neither clear nor undisputed.
(f) The objects of the 2020 Act include the disposition of proceedings with “as little formality as possible” in a timely, fair, consistent and high quality manner. This has to be read in the context of a clearly defined appellate procedure set out in ss 352 and 353 of the 1998 Act.
(g) The appeal decision was made on 29 April 2022 and the application for reconsideration lodged on 8 June 2022. That is a significant period of delay. The application has been filed after the period for appeal to the Court of Appeal has expired. It is not in my view “timely”.
(h) There are obvious circumstances in which the remedy given by s 57 would be readily deployed to achieve a timely and fair disposition of matters with as little formality as possible. For example where the Member overlooked a body of undisputed evidence, or an agreed factual position or a concession made by the parties or where evidence not previously available has become available. In such cases where there was a serious possibility of an altered outcome it is plainly convenient and in line with the objects of the 2020 Act for the decision to be reconsidered and dealt with in accordance with s 57. This is not such a matter.
(i) In this matter, however, the employer’s complaint is that there has been legal error and in this circumstance the appropriate remedy in my view is s 353. I accept that there are cost implications. But the worker does not accept that there has been an error.
For the above reasons I refuse to grant the application for reconsideration.
However, for the assistance of the parties I add that had I exercised the discretion in favour of reconsideration, I would have found against the employer’s challenge for the reasons that follow.
It is important to set out what is said by the Member in his reasons at paragraph [132]:
“The [worker] submitted that there is no report or evidence from Dr Foo in evidence without explanation from the [employer] and the inference should be made that the evidence or report of Dr Foo would not have assisted the [employer]. I note that no explanation was forthcoming from the [employer] in this regard. I accept that the [worker] was required by the [employer] to be examined by Dr Foo for the purpose of returning to work and that the [worker] did so consult with Dr Foo on or about 11 December 2019. The [employer] submitted that Dr Foo was not in the employ of the [employer] and the [worker] could have asked for his opinion. I do not accept this submission. It is usually the case that in this jurisdiction that an examining doctor in these circumstances is not in the employ the [employer]. I infer that the report or evidence of Dr Foo would not have assisted the [employer’s] case.”[12] (emphasis added)
[12] Reasons, [132], citing Jones v Dunkel [1959] HCA 8; 101 CLR 298.
I have underlined the part of the passage about which the [employer] complains. The challenge is whether or not the Member was correct in his conclusion that the worker made a submission that the inference should be made that Dr Foo’s evidence would not have assisted the employer’s case.
I am not entirely convinced that the Member says what the employer contends. The first sentence of the above passage can be read as the worker submitting that there was no report or evidence from Dr Foo (which is undoubtedly correct) and the Member drawing an inference from that accepted fact. In other words, the Member has stated the worker’s counsel’s submission, which is limited to the absence of evidence from Dr Foo, correctly.
The transcript at pages 21–22 records that counsel for the worker made this submission:
“In paragraph number 4, the [worker] remains off work for a period of time, and shortly before he was due to return to work, his employer sent him to the work doctor, Dr Foo, to get a final clearance so he could return to work. Member, there is no report before you from Dr Foo. Now, that is the employer-referred ..., rather than the self-insurer, I suppose, and for that reason is maybe that, you know, the employer hasn’t provided the report. But in any event, you will see what the [worker] says about his consultation with Dr Foo. Dr Foo apparently agreed that this was a factor, and he suggested a better quality driving seat.”[13] (emphasis added)
[13] T 21.32–22.10.
At page 49 of the transcript the solicitor for the employer said:
“And I point out firstly in the [worker’s] first statement there’s no reference at all to any interaction with Dr Foo. In his second statement, clearly attempting to recount what another doctor says is the most quintessential example of hearsay evidence that is routinely rejected that you can find. … Dr Foo is just a general practitioner, that’s all he is. It was open to the [worker] to get evidence from Dr Foo, get a report from Dr Foo. Dr Foo is not employed by the [employer]. He’s a GP. All they had to do was ask him. Now, there’s an inference arising perhaps by reason of the fact that they haven’t relied on any evidence from him, but, in any event, he’s completely silent about it.”[14] (emphasis added)
[14] T 49.1–16.
The absence of Dr Foo’s report or evidence was clearly a live issue between the parties at the time the Member made his determination. Whether the worker’s counsel submitted that there should be an adverse inference or not is not to the point. The parties, in particular the employer, opened the issue of what inference, if any, could be drawn from the absence of Dr Foo’s report.
The substance of the Member’s reasons at paragraph [132] in my view is that:
(a) there was no report or evidence from Dr Foo;
(b) there was no explanation from the employer as to why there was no report or evidence from Dr Foo;
(c) the employer required the worker to be examined by Dr Foo for the purpose of returning to work;
(d) the worker consulted Dr Foo on or about 11 December 2019;
(e) Dr Foo was not in the employ of the employer;
(f) the submission that the worker could have asked for Dr Foo’s opinion was not accepted, and
(g) the Member inferred that Dr Foo’s report or evidence would not have assisted the employer’s case.
There is no challenge to items (a) to (f). In relation to (g) the employer submits “that if the matter had been raised either on behalf of the worker or by the Member the Member would have simply been informed that there was no report available from the Doctor, the subject of the inference”.[15]
[15] Employer’s submissions, [9].
That, with respect, is the very point that should have been made to the Member in the course of the submissions on the hearing of the Application to Resolve a Dispute.
The inference became available because the employer’s counsel failed to provide an explanation for the absence of the report and/or evidence of Dr Foo. The absence of the report or evidence from Dr Foo was a matter requiring explanation.[16] The explanation now given (in submissions and not by way of evidence) is that there was no report.
[16] Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel), 321–2.
In my view, it was not necessary for the worker to have made an express submission with respect to the inference to be drawn from the absence of evidence or a report from Dr Foo. The Member was entitled to draw inferences from the evidence before him whether or not a party submitted that a particular inference should or should not be drawn.
In any event a Jones v Dunkel inference does not supply evidence, it merely makes a conclusion properly based on other evidence before the Commission more easily accepted. The rule in Jones v Dunkel does not fill in gaps in the evidence or convert conjecture or suspicion into an inference.[17] It follows that even if the employer were correct that the Member was not entitled to draw the inference that he did at reasons [132], the outcome would have been the same.
[17] Jones v Dunkel, 308, 312, 320–1.
Because the inference does not provide evidence but merely makes other evidence more easily accepted, it follows that the decision against the employer in the hearing before the Member must have rested on other satisfactory evidence. In this circumstance the employer could not satisfy the requirement that the outcome of the hearing, had the inference not been drawn, would have been different.[18]
[18] See Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, 145.
CONCLUSION
The application to reconsider my decision of 29 April 2022 is refused.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
27 July 2022
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