Fews Transport Pty Limited v Kelly
[2006] NSWWCCPD 336
•7 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fews Transport Pty Limited v Kelly [2006] NSWWCCPD 336
APPELLANT: Fews Transport Pty Limited
RESPONDENT: Marjorie Enid Kelly as Tutor for Bruce Frederick Kelly
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC15661-04
DATE OF ARBITRATOR’S DECISION: 28 February 2005 (Ex tempore). Certificate of Determination issued on 2 March 2005.
DATE OF APPEAL DECISION: 7 December 2006
SUBJECT MATTER OF DECISION: Error of law; error of fact; failure to deal with issues raised; inadequate reasons for decision, and incorrectly substituting Applicant in the proceedings.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: QBE In House Legal
Respondent: Lee Sames Egan Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 28 February 2005, is revoked.
The matter is remitted to the Arbitrator concerned for determination afresh in accordance with these reasons.
The Arbitrator is to provide a written Statement of Reasons for Decision.
No order is made as to the costs of this appeal.
BACKGROUND
Mr Bruce Frederick Kelly, the Respondent Worker in this appeal (by his Tutor Marjorie Enid Kelly), was born on 21 August 1941. He commenced employment with Fews Transport Pty Limited, the Appellant Employer, in about 1988. For the sake of courtesy and ease of reference only, the prenominal title of “Mr” is used generally throughout this ‘Statement of Reasons for Decision’ (‘Reasons’), unless the context otherwise specifically requires, given that Mr Kelly is the actual worker involved.
QBE Workers Compensation (NSW) Limited is the Insurer in this matter.
On 22 December 1995 Mr Kelly was injured at work. He was standing on the back of a truck and was using a bar to prise some pipes apart while unloading, when a pipe slipped causing him to fall from the truck striking his head and his left hip region. He suffered a loss of consciousness and was taken by ambulance to Royal Brisbane Hospital where he was admitted to the intensive care unit and placed on a life support system for a few days. Mr Kelly sustained severe head and orthopaedic injuries including a fractured left femur and various fractured vertebrae. He also suffered hearing loss and sustained injury to his right foot.
Mr Kelly remained an inpatient at the Royal Brisbane Hospital for approximately three weeks before being transferred to Baringa Private Hospital in Coffs Harbour where he remained for a further month. He was then transferred to the Ryde Rehabilitation Centre for a period of almost three months before returning home to Coffs Harbour on 20 April 1996.
Mr Kelly brought a claim for workers compensation in the former Compensation Court, in matter number 9061 of 1997. Mrs Majorie Kelly, his wife was appointed as Mr Kelly’s tutor due to his incapacity as a result of severe brain damage. Mr Kelly was awarded section 66 of the Workers Compensation Act 1987 (‘1987 Act’) compensation in the amount of $160,950.15 in respect of permanent brain damage (56.382%); permanent impairment of the neck (10%); back (30%); left leg (30%); right leg (12%) and loss of sense of smell (75%). Mr Kelly also received section 67 compensation in the amount of $33,100. He continues to receive weekly compensation payments.
On 5 November 2002 Mr Kelly wrote to the Insurer making a claim pursuant to section 60AA of the 1987 Act for ongoing home care expenses provided by Mrs Kelly from the time of his discharge from hospital following his injury on 22 December 1995. The claim was made from the date of the commencement of section 60AA, being 1 January 2002. A Home Care Schedule of 12 hours per week accompanied the claim, together with a letter dated 17 October 2002 from Dr Lloyd Mayson, certifying the contents of the Home Care Schedule, as to the care provided by Mrs Kelly to her husband.
On 29 November 2002 Mr Kelly sent an amended Home Care Schedule to the Insurer, outlining care of 46 hours and 38 minutes per week, accompanied by a further letter of certification, dated 19 November 2002, from Dr Lloyd Mayson.
On 15 January 2003 the Insurer declined payment of the services claimed by Mrs Kelly with the exception of the showering and washing of her husband, and supervisory work in respect of eating breakfast and monitoring of medication. The Insurer stated that the other services were not considered as directly relating to the treatment of Mr Kelly. The Insurer also advised that due to the date of Mr Kelly’s injury, “these expenses cannot be claimed under Section 60AA of the current legislation, as the injury was prior to 1/1/2002”.
Mr Kelly continued to send correspondence to the Insurer pressing his claim for section 60AA expenses for a period of almost 18 months and on 23 September 2004 Mrs Kelly, as tutor for Mr Kelly, lodged an ‘Application to resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’). Mrs Kelly, as tutor for Mr Kelly, sought payments of benefits pursuant to section 60AA and Schedule 6 Part 18C Rule 10 of the 1987 Act in respect of care provided by Mrs Kelly for the period of 1 January 2002 to date and continuing.
An arbitration hearing was held on 28 February 2005 at the conclusion of which the Arbitrator delivered an ex tempore decision. The Arbitrator issued a ‘Certificate of Determination’ and ‘Statement of Reasons – Extempore orders’ (‘Reasons’) on 2 March 2005.
On 17 March 2005 Fews Transport lodged an ‘Appeal against Decision of Arbitrator’ (‘Appeal’) with the Commission.
On 12 April 2005 Mr Kelly filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ (‘Opposition’) with the Commission.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination’ dated 2 March 2005 records the following determination:
“1.The Application is amended by deleting “Marjorie Enid Kelly” as tutor for the Applicant.
2.An award for Marjorie Enid Kelly pursuant to Section 60AA(5)(c) in the sum of $215,897.92 made up as follows;
a)For the period 01 January 2002 to 16 January 2004 an amount of $169,812.72;
b)For the period 17 January 2004 to 28 February 2005 an amount of $46,085.20.
3.The Respondent pay the Applicant’s costs and I certify that this was a complex matter and proceeded directly to Arbitration pursuant to Clause 4.10 of the Costs Regulations.”
ISSUES IN DISPUTE
The grounds of appeal comprise the issues in dispute in the appeal and amount to whether the Arbitrator:
(1)erred in law in failing to deal with the five issues raised by Fews Transport in its Statement of Issues;
(2)erred in law in concluding that all of the activities referred to by Mrs Kelly constituted domestic assistance under the provisions of section 60AA of the 1987 Act;
(3)erred in law in not giving sufficient reasons for his Determination;
(4)erred in fact and in law when he concluded that the report by Dr Mayson constituted a certificate under the provisions of section 60AA(1)(a) and in concluding that there was no requirement under section 60AA(1)(a) for a doctor to perform an assessment of Mr Kelly;
(5)erred in law “in regarding it as being relevant that he had stated at a teleconference that s.60AA apply to the circumstances that the Respondent/Worker’s wife was in”;
(6)erred in fact in concluding that Mrs Kelly had forgone a real opportunity of obtaining employment and that had Mr Kelly been less seriously injured Mrs Kelly would have been in employment, and
(7)erred in law in substituting Mr Kelly for Mrs Kelly as the Applicant in the proceedings.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Fews Transport submits that if leave to appeal is granted there should be an oral hearing as at the stage of lodging their Appeal, it did not have a copy of the transcript of oral argument at the Arbitration or a copy of the Arbitrator’s written Reasons. It further submits that “in an appeal to a Presidential Member the Commission is bound by the rules of natural justice and should afford procedural fairness to any party to an appeal particularly in circumstances where the amount at issue is very substantial” and relies upon the statements of fundamental principle contained in Stead v State Government Insurance Commission (1986) 161 CLR 141. In addition it is submitted that the “Workers Compensation Commission has been entrusted with determining finally (subject to an appeal to the Court of Appeal on a point of law only) almost all disputes which relate to the payment of Workers Compensation and the determinations of the Commission, particularly on appeal are of a judicial nature”. It further submits that “an oral hearing would enable both parties to deal with the other competing submissions in a manner more satisfactory than the exchange of written submissions in reply possibly on more than two occasions”.
However Fews Transport also submits that in the event that the Presidential Member dealing with the appeal comes to the conclusion that the appeal should proceed “on the papers”, it reserves the right to make further written submissions.
Mr Kelly submits that “the information supplied in the ARD, Reply, Employers Statement of Issues, Applicant’s Submissions and both parties Submissions filed in this Application for Appeal are sufficient information.” Mr Kelly also submits that Fews Transport has had ample opportunity to present information to the Commission prior to and at the original hearing before the Arbitrator, and in conjunction with the papers filed in support of the Appeal.
Mr Kelly refers to Fews Transport’s submissions seeking an oral hearing and submits that he does not concede any right in Fews Transport to reply to any submissions from him, as all information required in relation to the Appeal should be lodged with the Appeal pursuant to Rule 77(3) of the Workers Compensation Commission Rules 2003 (‘the Rules’), which were then applicable. Furthermore, Mr Kelly does not concede that Fews Transport has any right to reserve in respect of making further written submissions if the Appeal is to proceed on the papers, and again relies upon the provisions of Rule 77(3).
Mr Kelly further submits that “the Schedule of Costs (if applied in this case) applying to the Commission proceedings does not specifically consider the substantial outlay required for a representative of a country worker to attend in Sydney and therefore the worker would be at a disadvantage if the Appeal were to proceed in Sydney by way of oral hearing”.
Finally, Mr Kelly concedes that the Commission is bound by the rules of natural justice and procedural fairness, but does not concede that Fews Transport is or will be denied natural justice or procedural fairness by the Appeal proceeding to a determination on the papers.
The Commission provided a copy of the transcript of proceedings to both parties on 5 April 2005. Mr Kelly lodged his Opposition to the Appeal on 12 April 2005. On 4 July 2005 Mr Kelly sought leave to file further written submissions in relation to the “Alleged requirement for a tutor in Workers Compensation Proceedings”. On 13 January 2006 Fews Transport filed submissions in reply to Mr Kelly’s submissions, dated 12 April 2005, in relation to his application for a costs order against Fews Transport.
On 25 July 2006 I issued Directions stating in part:
“The appeal in this matter has been allocated, in a block of appeals allocated to me for determination. This appeal will be dealt with in order of priority, following compliance by the parties, with the directions given hereunder.”
I further noted that the copy of the transcript of proceedings before the Arbitrator was in fact provided by the Registrar to the parties on 5 April 2005 and stated that Mr Kelly was entitled to know the case against him, that is, all of the grounds of appeal and relevant submissions in support of those grounds, upon which the appeal is based. I issued the following directions:
“1.The Appellant is directed to lodge in the Commission and serve on the Respondent to the Appeal, final grounds of appeal and full submissions in support of those grounds, in writing, on or before Monday 14 August 2006.
2.The Respondent in the appeal is directed to lodge in the Commission and serve on the Appellant, full submissions in reply to the Appellant, in writing, on or before Monday 28 August 2006.
3.The Appellant and the Respondent in the appeal are each required to forthwith upon service, lodge in the Commission, certificates of service, in relation to the documents served by each of them, on the other party.”
On 22 August 2006 Fews Transport’s legal representatives wrote to the Commission, making the following statement:
“Having had the opportunity of perusing the transcript of the oral argument
at the Arbitration the Applicant/Employer does not rely on any additional grounds
of appeal and does not wish to make any further submissions.”
Legal representatives for Mr Kelly indicated to the Commission by telephone on 1 September 2006, that they considered that as Fews Transport did not raise anything in addition to the matters raised in the original appeal application, there was no right of response and the reliance was placed solely on the Notice of Opposition and materials lodged on 12 April 2005.
Both parties have now indicated in effect, that their submissions on appeal are both comprehensive and exhaustive. In the circumstances, a lack of procedural fairness will not result by reason of the determination of the appeal on the papers, as both parties have now been given every opportunity to make their submissions.
Given that both parties are now satisfied that they have nothing more to add, and having regard to their submissions, the transcript of proceedings before the Arbitrator, the evidence and other relevant documents that are before me, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000 and the amount of compensation at issue in the appeal is greater than 20% of the amount awarded in the decision appealed against. Consequently, sections 352(2)(a) and (b) of the 1998 Act are both satisfied.
Section 352(4) provides that an appeal can only be made within 28 days after the making of the decision appealed against.
The Appeal was lodged on 17 March 2005, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 (as it was at the time of lodging the Application to Appeal, the Notice of Opposition and all submissions) sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mr Kelly seeks leave to include ‘new evidence’ which consists of a letter from the Insurer to Mr Kelly, dated 18 October 2004, requesting particulars of the injury. Referring to Fews Transport’s grounds of appeal, in particular point 2 of its Statement of Issues, “To what extent did the worker provide domestic assistance before the injury?” Mr Kelly provides the following submissions as to why the ‘new evidence’ should be admitted:
“Refer to the detailed submissions concerning the provisions of s60AA(1)(b). The Respondent filed no evidence on that point. Further, the Respondent at no time raised this issue prior to the filing of this Statement of Issues. The Respondent had requested particulars by letter of the 18.10.2004, in the form of a computer generated list of questions none of which are relevant to the issue under s60AA. If the Applicant Employer seeks to transverse this submission, leave is sought for the admission of letter from QBE to Lee Sames Egan dated 18.10.2004 into evidence in relation to this ground of Appeal.”
Fews Transport has offered no objections to Mr Kelly’s request to seek leave to admit this ‘new evidence’. In the absence of any argument to the contrary, it is my view that Mr Kelly’s request is reasonable in all of the circumstances.
Leave is granted to admit as new evidence, the letter from the Insurer to Mr Kelly, dated 18 October 2004.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. It is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on a consideration of all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
The powers of a Presidential member to revoke the decision pursuant to section 327(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator for determination in accordance with a decision of, or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172. See for discussion, Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). Gleeson CJ generally highlighted the principle in Swain v Waverley Municipal Council (2005) 79 ALJR 249. His Honour said: “The question for an appellate court is whether it was reasonably open to the jury [in the instant case, the Arbitrator] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, the position must be such that but for the error, a different decision would likely have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
The submissions on appeal lodged by the parties, to some extent, invite an approach to this appeal on the basis of a primary consideration of the evidence afresh or de novo. However, the issues on appeal, as set out in paragraph 14 above, are addressed on the basis that I have outlined in paragraphs 40 and 41, above.
DISCUSSION AND FINDINGS ON EVIDENCE AND SUBMISSIONS
Did the Arbitrator err in law by reason of a failure to deal with the five issues raised by Fews Transport in its Statement of Issues?
Fews Transport submit that the Arbitrator erred in law in failing to deal with the five issues raised in a statement of issues that it prepared and filed in the Commission. It claims that the document “appears to have been accepted by the parties and by the arbitrator as identifying the issues.” Mr Kelly denies this and states, “The Respondent Worker never ‘accepted’ the Respondent’s [Fews Transport’s] Statement of Issues as identifying the issues.”
Fews Transport says that the Arbitrator dealt with issues 1 and 4, but not 2, 3 and 5, in the document ‘Respondent’s Statement of Issues’, and as a consequence he “erred in law by not providing sufficient reasons for his decision.”
The 5 issues are:
“1. Has the Applicant complied with the provisions of s.60AA(1)(a)?
2.To what extent did the Worker provide domestic assistance before his injury?
3.Whether the domestic assistance provided is in accordance with a Care Plan established by the insurer in accordance with s.60AA(1)(d).
4.Whether or not the Applicant lost income or forgone employment as a result of providing the assistance.
5.Whether or not the costs and the provision of the gratuitous domestic assistance has been properly verified in accordance with s.60AA(5)(b) and the WorkCover guidelines in relation thereto.”
The specific challenge in this ground of appeal is that the Arbitrator did not “deal” with issues 2, 3 and 5 set out in paragraph 45 above.
On page 8 of the transcript of proceedings before the Arbitrator, he refers to the contents of Mrs Kelly’s statutory declaration of 21 September 2004. The Arbitrator’s specific comment is, “… she sets out specifically at paragraph 19 the daily and less frequent tasks that she performs for the applicant. Here description of what she does has been, in my mind, validated and confirmed by the reports of Jane Berger of 21 July 04 and, in my view, the addendum at page 4 of that report, the current management plan on page 13, is essentially what Mrs Kelly provides to her husband at the present time.”
Mrs Kelly’s statutory declaration is couched in terms of what she says she does for Mr Kelly and it is reasonably discernable upon a reading of that document, the domestic responsibilities that Mr Kelly undertook before his accident. While the Arbitrator did not repeat all of this in detail, it is not difficult to obtain an appreciation of how the arrangements have changed. Whether or not there is agreement as to the accuracy of what Mrs Kelly says, I am satisfied that the Arbitrator and the parties themselves, would have been under no illusions about what the issue involved, including the facts and circumstances of Mr Kelly’s previous domestic contribution that Mrs Kelly says she has taken up.
In terms of issue 3, the Arbitrator refers to a “Home Care schedule” on page 9 of the transcript, a “current management plan” on page 8, and to a “care plan” on page 10. While the references are brief, and notwithstanding whether his observations are accurate, the Arbitrator did refer to the disputed issue in his Reasons. However, I am unable to discern whether he actually found, or had reason not to find, that the assistance was provided in accordance with a Care Plan established by the Insurer in accordance with the WorkCover Guidelines (section 60AA(3)(b) of the 1987 Act). Mr Kelly certainly made submissions to the Arbitrator on this issue.
I can find no specific or passing reference to the “proper verification of the costs of gratuitous domestic assistance” in the Arbitrator’s ex tempore Reasons. The submission of Fews Transport in relation to issue 5, above, appears to be correct. The Arbitrator may have done so, but whether he did give consideration to this or not, is not evident from a reading of the transcript. It is a requirement of section 60AA(5)(b) of the 1987 Act, that payment of costs for domestic assistance is verified. There is evidence before the Arbitrator that ought to have been discussed in relation to this issue.
While it is evident that the Arbitrator “dealt” with issues 1, 2 and 4, his treatment of issues 3 and 5, required by the Statute are not clear or adequate. Both parties made relevant submissions to the Arbitrator. Significantly, Mr Kelly relies to a great extent upon the content of the submissions that were made to the Arbitrator in the proceedings before him, rather than the manner or adequacy of the Arbitrator’s treatment of them, conceding in relation to some aspects, that the Arbitrator’s reasons were “brief”. The reasons may be brief, but they must address the issues raised and must be adequate.
I find that the issues required to be addressed pursuant to section 60AA(3)(b) and 60AA(5)(b), are not adequately dealt with in the ex tempore Reasons of the Arbitrator. A reading of the transcript does indicate the Arbitrator had a reasonable grasp of the legislation. But that is not enough. Arbitrators have a statutory obligation to provide adequate reasons for their decisions (see section 294(2) of the 1998 Act and Rule 73 [see now Part 15, Rule 15.6 of the Workers Compensation Commission Rules 2006]. See also Absolon v NSW TAFE [1999] NSWCA 311). The Arbitrator has not discharged his statutory duty in relation to these two issues. To that extent, this ground of appeal is made out.
Did the Arbitrator err in law in concluding that all of the activities referred to by Mrs Kelly constitute domestic assistance under the provisions of section 60AA of the 1987 Act?
Fews Transport submits that the items claimed as being domestic assistance “in part fall outside the provisions of s.60AA. The Guidelines gives [sic] examples of domestic assistance, i.e. household cleaning, laundry, meal preparation, shopping, lawn and garden care, simple essential home maintenance and child care. Payments under s.60AA can only be for domestic assistance which the Respondent/Worker provided before he was injured.”
Mr Kelly submits that the Arbitrator was entitled to conclude the totality of the services provided and identified by Mrs Kelly, “and in the report annexed to the ARD, constitute domestic assistance services relevant to the provisions of s60AA.”
The activities in question are set out at paragraph 19 of Mrs Kelly’s statutory declaration dated 21 September 2004.
As stated before, the Arbitrator relied on the largely undisputed contents of Mrs Kelly’s statutory declaration of 21 September 2004. He went on to say at page 8, “Her description of what she does has been, in my mind, validated and confirmed by the reports of Jane Berger of 21 July 04 and, in my view, the addendum at page 4 of that report, the current management plan on page 13, is essentially what Mrs Kelly provides to her husband at the present time.”
The Arbitrator goes on to say, “The insurer has challenged the applicant’s claim on a number of grounds … She is seeking payment for the domestic assistance that she has afforded to her husband.” He goes on to address various challenges. This specific “challenge” was raised in the ‘Reply to Application to Resolve a Dispute’ that was before him. At page 10, he says:
“ The next challenge from the insurer is in relation to versions of section 60AA, subsection (3). That section has been amended by essentially moving paragraph (b) into – which becomes (d) in subsection (1). In discussions between the legal representatives and the Arbitrator prior to the matter commencing it seems that the effect of that is merely to provide that all claims for domestic assistance, not just those involving gratuitous assistance, now require a care plan to be established by the insurer, but the matter has proceeded, but that has been the basis on which the matter has been undertaken, in any event.”
The issue was clearly in dispute before the Arbitrator and it remains in dispute on appeal, notwithstanding that the parties have put forward submissions at first instance and on appeal. There is no record of the discussions that apparently took place between the Arbitrator and the legal representatives of the parties “prior to the matter commencing” and there is no formal record of any agreement being reached between them. What Mrs Kelly provides for her husband is not disputed but the issue as to whether the whole or only part of what is provided is compensable has not been formally determined and supported by adequate reasons, notwithstanding that it is an issue that is even now, still in dispute. While Fews Transport presses the issue, Mr Kelly submits that it is seeking to avoid liability by taking advantage of its own failure to provide a Care Plan.
While the Arbitrator makes certain observations, he has apparently done so on the basis of informal discussions that took place outside of the arbitral proceedings. He has not dealt with the submissions made by the parties because it is apparent that he was under a misapprehension that the particular issue was no longer in dispute.
Given the action that I now propose to take, I make no formal determination affecting the issue before the Arbitrator, except to find that the Arbitrator did not deal with the particular issue in dispute before him, for the reasons stated.
Did the Arbitrator err in law in not giving sufficient reasons for his determination?
To this point it is apparent that the Arbitrator has not provided an adequate analysis and sufficient reasons for his decision, at least insofar as the issues in the grounds of appeal addressed thus far, are concerned.
While the Commission is not a court (Orellana-Fuentes v Standard Knitting Mills Pty Limited [2003] NSWCA 146), and its proceedings are conducted with as little formality and technicality as the proper consideration of matters before it are concerned, reasons for decision must adequately convey to the parties the basis upon which the Arbitrator arrived at his or her decision (see Rule 73 which applies to the decision now under review). The requirements of Rule 73 [now Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006] are mandatory, whether the Arbitrator provides a written Statement of Reasons for Decision or delivers an ex tempore decision that is recorded in a transcript of the proceedings before him or her. The requirements are the same. The reasons for decision must include the findings on material questions of fact, referring to the evidence or other material on which those findings were based; the Arbitrator’s understanding of the applicable law, and the reasoning process that led the Arbitrator to the conclusions that he or she reached. Moreover, the reasons must be stated sufficiently to make the parties aware of the Arbitrator’s view of the case made by each of them. Essentially, the Arbitrator must not only come to a view but he or she is required to communicate it effectively to the parties. Finally, the Arbitrator must ensure that all relevant issues in dispute are determined. (For a recent discussion on the requirement to give reasons and the adequacy of reasons see Russell v Labourforce Solutions Pty Limited [2006] NSWWCCPD 330).
In the instant case the inadequacy of reasons for decision are such as to warrant the inference that the Arbitrator has not exercised his jurisdiction in accordance with the law (YG & GG v Minister for Community Services [2002] NSWCA 247). That is an error of law. Nevertheless, there are indications, by reference to the evidence, the submissions and the contents of the transcript of proceedings before him that the Arbitrator may be in a position to properly articulate clear and adequate reasons for his decision.
In the circumstances, it would be unfair to the parties and in particular to Mr Kelly, to simply revoke the Arbitrator’s decision and finally determine the dispute by imposing my own decision in its place, by reason only of a failure of the Arbitrator to give adequate reasons in his ex tempore decision. In the interests of justice between the parties, the Arbitrator ought to be afforded the opportunity to provide an adequate set of reasons in a fresh determination of the dispute, in accordance with legal requirements. For this reason, I will not proceed to determine the remaining grounds of appeal, and will leave it to the Arbitrator to formulate a fresh decision in writing, including his findings and reasons in support.
I propose instead to revoke the Arbitrator’s decision and remit it to him to determine the matter afresh. In so doing, the Arbitrator will be required to produce a written Statement of Reasons for Decision.
To that extent, the appeal is successful.
DECISION
The decision of the Arbitrator dated 28 February 2005 is revoked, and the matter is remitted to the Arbitrator concerned, for determination afresh in accordance with these Reasons.
In determining the matter afresh, the Arbitrator is to review all of the evidence and submissions before him, and is at liberty to take into account the submissions made in this appeal.
The Arbitrator is to provide a written Statement of Reasons for Decision.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
7 December 2006.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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