Fairfield City Council v McCall (No 2) - [2022] NSWPICPD 29

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICPD 29
Decision Date: 27 July 2022

CaseChat Overview and Summary

The case of Fairfield City Council v McCall (No 2) involved a reconsideration application filed by the Fairfield City Council against a decision of the Personal Injury Commission. The dispute centered on the absence of evidence from a general practitioner, Dr. Foo, and whether an adverse inference could be drawn from this absence. The case was heard in the Personal Injury Commission, and the applicant sought reconsideration of a previous decision.

The legal issues in this case were primarily focused on the interpretation and application of Section 57 of the Personal Injury Commission Act 2020. Specifically, the court had to determine whether the Commission could draw an adverse inference from the absence of evidence from Dr. Foo and whether the appropriate remedy for the applicant should have been sought under Section 353 of the Workplace Injury Management and Workers Compensation Act 1998 rather than a reconsideration application. The court also considered the objects of the 2020 Act and whether the decision-making process aligned with these objectives.

The court found that the Member of the Commission was entitled to draw inferences from the evidence presented, and the absence of evidence from Dr. Foo was a matter that required explanation. The court rejected the applicant's argument that the worker should have made an express submission regarding the inference to be drawn from the absence of evidence. The court held that 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. The court also noted that the appropriate remedy for the applicant should have been sought under Section 353 of the 1998 Act.

In conclusion, the court dismissed the reconsideration application and held that the Member's decision was not flawed. The court found that the Member was entitled to draw inferences from the evidence presented, and the absence of evidence from Dr. Foo was a matter that required explanation. The court held that the appropriate remedy for the applicant should have been sought under Section 353 of the 1998 Act rather than a reconsideration application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 ActThe 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.” 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.