Fletcher International Exports Pty Ltd v Lott

[2010] NSWCA 63

Appeal Outcome: Special leave refused with costs by High Court, 3 September 2010, (S108/2010)

New South Wales

Court of Appeal

CITATION:	Fletcher International Exports Pty Ltd v Lott & Anor [2010] NSWCA 63
HEARING DATE(S):	26 March 2010
JUDGMENT DATE:	1 April 2010
JUDGMENT OF:	Giles JA at 1; McColl JA at 54; Basten JA at 55
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	WORKERS COMPENSATION - appeal - appeal from Workers Compensation Commission - appeal limited to where aggrieved by decision in point of law - whether failure to grant an oral hearing under s 354 of the Workplace Injury Management and Workers Compensation Act 1998 an error in point of law - no error shown - whether employment concerned was a substantial contributing factor to the injury - whether there was a failure to consider employment characteristics - section 9A of the Workers Compensation Act 1987 - no error in point of law - importance of properly framing grounds of appeal - with identification of decision in point of law.
LEGISLATION CITED:	Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998.
CATEGORY:	Principal judgment
CASES CITED:	Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR75; Buck v Bavone [1976] HCA 24; 135 CLR 110; Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 151; (2001) 22 NSWCCR 46; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292; Intertan Australia Ltd v Davidson [2000] NSWCA 280; Mercer v ANZ Banking Group [2000] NSWCA 138; (2000) 48 NSWLR 740; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Sapina v Coles Myer Ltd [2009] NSWCA 71; (2009) 7 DDCR 54; South Western Sydney Area Health Srvice v Edmonds [2007] NSWCA 16; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 78; Thomas v Airlines of NSW Pty Ltd (1964) 64 SR (NSW) 176; Williams v Bill Williams Pty Ltd (1971) 1 NSWLR 547; Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19.
PARTIES:	Fletcher International Exports Pty Ltd - Appellant Daniel james Lott - First Respondent Scott and Tracey Swain; Geoffrey and Rosalyn Gae Swain; Darren and Linda Swain; Andrew and Rosalie Hewitt t/as Glenam Farming Pty Ltd
FILE NUMBER(S):	CA 2009/298372
COUNSEL:	J Maconachie QC & D Saul - Appellant R Goodridge - First Respondent I Roberts SC & G Young - Second Respondents
SOLICITORS:	Leigh Virtue & Associates - Appellant Firths - First Respondent Moray & Agnew - Second Respondents
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	A1-7432/08
LOWER COURT JUDICIAL OFFICER:	Acting President Roche
LOWER COURT DATE OF DECISION:	14 April 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Fletcher International Exports Pty Ltd v Lott & Anor [2009] NSWWCCPD 40

CA 2009/298372
WC 7432/08

GILES JA
McCOLL JA
BASTEN JA

Thursday 1 April 2010

FLETCHER INTERNATIONAL EXPORTS PTY LTD v LOTT & ORS

Judgment

1 GILES JA: On 15 February 2002, when employed by Fletcher International Exports Pty Ltd (“Fletcher”) as a station hand, Mr Daniel Lott injured his left knee. A sheep butted his knee. He had surgery to the knee. In due course he returned to full employment with Fletcher, although thereafter he had intermittent difficulties with his knee.

2 On 12 July 2005, when employed as a station hand by a partnership trading as Glenam Farming (“Glenam”), Mr Lott’s left leg collapsed from under him while he was at work. He said that he was standing stationary when he attempted to turn to walk away, and as he did so his left leg collapsed under him “for no reason whatsoever”. He had further surgery to the knee. He did not return to employment with Glenam. He was later able to obtain casual employment with various employers, and in December 2008 returned to full time employment in his former occupation.

3 Mr Lott claimed weekly compensation and lump sum compensation under the Workers Compensation Act 1987 (“the WC Act”), from Fletcher on the basis of injury on 15 February 2002 and from Glenam on the basis of injury on 12 July 2005. It appears that he claimed against Glenam as a precaution, and that his primary position was that Fletcher was liable to pay the compensation.

4 More between Fletcher and Glenam than on Mr Lott’s claim, whether what occurred on 12 July 2005 gave rise to entitlement to receive compensation under the WC Act was disputed. Fletcher said that it did, and that liability to pay compensation should be apportioned under s 22 of the WC Act. Glenam said that it did not, and that it (Glenam) had no liability to pay compensation. Mr Lott’s incapacity and his probable and actual earnings and earning capacity were also disputed.

5 This appeal is from the decision of a Presidential member of the Workers Compensation Commission (“the Commission”), Acting President Roche (“the Acting President”), on appeal from an Arbitrator, Mr John McDermott (“the Arbitrator”): Fletcher International Exports Pty Ltd v Lott [2009] NSWWCCPD 40. The Acting President held that Fletcher alone was liable to pay compensation to Mr Lott. He ordered that the amount of weekly compensation should be re-determined by an Arbitrator, and confirmed the Arbitrator’s referral to an Approved Medical Specialist for assessment of Mr Lott’s permanent impairment.

6 The appeal is confined to Fletcher being “aggrieved by a decision of the Presidential member in point of law”: Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”) s 353(1).

7 For the reasons which follow, the appeal should be dismissed with costs.

Mr Lott’s application

8 In 2006 Mr Lott lodged with the Commission an application to resolve a dispute, claiming weekly compensation from Fletcher and Glenam. In unclear circumstances, this application appears to have been overtaken by the application next mentioned.

9 On 18 September 2008 Mr Lott lodged with the Commission a second application to resolve a dispute, claiming weekly compensation from 10 September 2005 and continuing and lump sum compensation. Fletcher and Glenam were respectively the first and second respondents to the application. An amended application was subsequently lodged.

The Arbitrator’s decision

10 The application was referred to the Commission. It was heard by the Arbitrator, constituting the Commission in accordance with s 375(1) of the WIM Act, on 8 December 2008. Mr Lott, Fletcher and Glenam were all represented. The Arbitrator received oral evidence from Mr Lott, and had before him numerous medical reports and other documents which had accompanied the application and the respondent’s replies. On 18 December 2008 he issued a certificate of his determination and accompanying reasons.

11 The Arbitrator recorded as the issues between Mr Lott and both Fletcher and Glenam -

“(a) Whether there was a second injury on 12 July 2005 (including Section 9A).

(b) Incapacity, including the degree of incapacity if any.

(c) Permanent impairment and responsibility for compensation with regard thereto.”

12 Within the first issue lay the significance of what had occurred on 12 July 2005; more specifically –

Whether Mr Lott had then received an injury (WC Act s 9(1)), meaning personal injury arising out of or in the course of employment (WC Act s 4, definition); and if so
Whether his employment with Glenam was a substantial contributing factor to the injury (WC Act s 9A(1)).

13 The Arbitrator found that there had not been a second injury on 12 July 2005, and implicitly that Mr Lott’s incapacity from that date was entirely attributable to the injury on 15 February 2002. He made findings as to probable earnings and earning capacity, and arrived at amounts of weekly compensation. He ordered that Fletcher pay to Mr Lott the weekly compensation from 10 September 2005, and that there be referral to an Approved Medical Specialist to assess the permanent impairment (if any) arising from the injury on 15 February 2002.

14 Having determined that there was no injury, the Arbitrator did not consider whether Mr Lott’s employment with Glenam was a substantial contributing factor to his injury.

The Acting President’s decision

15 On 14 January 2009 Fletcher applied for leave to appeal to the Commission constituted by a Presidential member (WIM Act s 352). Such an appeal was by way of review of the Arbitrator’s decision (s 352(5); see Sapina v Coles Myer Ltd [2009] NSWCA 71; (2009) 7 DDCR 54.

16 The grounds of appeal were relevantly that the Arbitrator had erred in finding that Mr Lott was not injured in his employment with Glenam; had erred in his findings as to incapacity for work, probable earnings, actual earnings and capacity to earn; and had erred in his consideration and understanding of Mercer v ANZ Banking Group [2000] NSWCA 138; (2000) 48 NSWLR 740. The relief claimed was that the Deputy President substitute an award in Fletcher’s favour, alternatively that the matter be remitted to a different Arbitrator for re-determination.

17 The submissions accompanying the application included (the excess of upper case is in the original) -

“The Appellant is of the view that this is a matter which should not be determined On the Papers, but rather that should be given an Oral Hearing before a Presidential Member as the Appeal contains complex issues which would benefit from such an Oral Hearing. Further, a Transcript of the proceedings is not available at the time that the Appeal is filed and such Transcript, is in the view of the Appellant, best addressed at an Oral hearing.
The Appellant does not rely on fresh evidence.”

18 The transcript later became available, and Fletcher made submissions concerning the transcript. Mr Lott and Glenam also provided written submissions. From the Acting President’s reasons, each submitted that the appeal could be determined on the papers.

19 The Acting President issued his determination on 14 April 2009. He granted leave to appeal. He considered that it was appropriate to proceed on the papers, without a conference or formal hearing.

20 The Acting President found that Mr Lott “experienced a sudden pathological change on 12 July 2005, namely, a re-dislocation of the patella in his left knee with pain and swelling”; that this occurred while he was at work performing his usual duties and therefore occurred in the course of his employment; and that Mr Lott “therefore received an injury, as defined in the legislation”. He was not satisfied, however, “that the ‘strength of the causal linkage’ … between the injury and Mr Lott’s employment with Glenam Farming is sufficient to satisfy section 9A of the 1987 Act”. He found “that the 2005 injury and the condition of Mr Lott’s left knee has resulted solely from the 2002 injury and not from the incident at work with Glenam Farming in 2005”; bearing in mind his factual finding, this must have stated a result in law.

21 The Acting President considered that the Arbitrator had misunderstood the reliance placed before him on Mercer v ANZ Banking Group, and in that respect had erred, but that the error was of no consequence. He considered that the Arbitrator had further erred in that his findings as to earning capacity were not supported by the evidence. He considered that, because of the unsatisfactory state of the evidence, he was unable to re-determine Mr Lott’s entitlement to weekly compensation, and as I have indicated he remitted that matter for re-determination by a different Arbitrator. He confirmed the referral to an Approved Medical Specialist for assessment of permanent impairment.

The grounds of appeal

22 The grounds of appeal were -

“1. Denying the Appellant procedural fairness and natural justice by determining the matter ‘on the papers’ and in the absence of an oral hearing, after the appellant specifically requested an oral hearing before a presidential member in its appeal from the arbitrator;

2. Considering and determining an issue of section 9A, in the absence of such an issue being properly considered or determined between parties below, either during the arbitration or in the appeal papers, after finding that an injury pursuant to section 4 did occur during the 1st respondent’s employment with the 2nd respondent on 12.07.05;

3. Considering and determining an issue in respect of section 9A which was not before him on appeal and without providing the appellant with an oral hearing in respect of section 9A, or providing the appellant with an opportunity to address this issue;

4. Misapplying section 9A, and in contravention with the principles as set out in Mercer v ANZ Banking Group [2000] NSWCA 138;

5. Failing to properly consider or apply the disease provisions of the Workers Compensation Act , 1987, particularly section 16, in determining the liability of the 2nd Respondent;

6. Failing to consider the issues of apportionment and contribution;

7. Erring in his application of section 40 in his application of section 40 [sic] when assessing the 1st respondent’s earnings but for injury, by using the 1st respondent’s earnings with the 2nd respondent;

8. Erred generally in applying the correct principles pursuant to section 40 when making a determination for weekly compensation.”

23 The grounds of appeal were not well framed. They paid little regard to identification of an erroneous decision in point of law (WIM Act s 353(1)). Ground 8 was not meaningful. This Court has on a number of occasions remarked on the need, when an appeal is limited by words such as error of law, error in point of law or error of a decision in point of law, to recognise the limitation and identify the error in the ground of appeal: for example HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [104] and cases cited. It is appropriate again to remind practitioners of the need.

24 Fletcher’s submissions on appeal were broadly within the grounds of appeal, but were presented differently. It relied on ground 4 as a free-standing ground of appeal, asserting error in the application of s 9A of the WC Act. It wrapped grounds 1, 2 and 3 up together, asserting error in not affording an oral hearing and using the Acting President’s application of s 9A to support error in not affording an oral hearing. It volunteered that grounds 5, 6 7 and 8 “do not of themselves engage the attention of this court on an appeal of this kind”, but used the Acting President’s failures or errors as there asserted also to support error in not affording an oral hearing. This will be more fully explained.

25 Mr Lott filed a notice of contention, in which it was contended that the Acting President’s decision should be affirmed on the grounds -

“1. The Appellant had not given notice pursuant to Section 74 of the Workplace Injury Management and Workers Compensation Act 1998.

2. The Appellant had not obtained leave to dispute liability in respect of matters not notified under Section 74 of the Workplace Injury Management and Workers Compensation Act 1998.”

26 No point was taken that, because the Acting President remitted the entitlement to weekly compensation for re-determination, his decision was interlocutory and leave to appeal was required (s 353(4)(a); see Intertan Australia Ltd v Davidson [2000] NSWCA 280.

Misapplying s 9A of the WIM Act

27 Section 9A provides that no compensation is payable under the WC Act in respect of an injury “unless the employment concerned was a substantial contributing factor to the injury”.

28 At the time of the Acting President’s decision, this had been explained in the decision of this Court in Mercer v ANZ Banking Group. Later cases exposed possible difficulties with Mercer v ANZ Banking Group. Section 9A was subsequently explained, with some reconsideration of Mercer v ANZ Banking Group, in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75.

29 Fletcher submitted that the Acting President erred in treating as determinative the absence of “employment characteristics” in the precise activity which led to the injury, that being the error found in Mercer v ANZ Banking Group (see at [35] per Mason P, Meagher and Beazley JJA agreeing). In that case the injury was suffered on a routine movement, reaching for a roll of sticky tape, and the worker had a constitutional abnormality predisposing to the injury. The error lay in treating as determinative that the precise activity could have occurred at home or while out with friends; that is, it was not an activity with any employment characteristics.

30 Putting it another way, Fletcher submitted that the Acting President looked only at the precise time at which Mr Lott’s leg collapsed under him, and did not enquire into what Mr Lott was doing in his employment on 11 and 12 July 2005. (Mr Lott had started work with Glenam on 11 July 2005.) That is, the error asserted was looking to the immediate activity in which the injury occurred, and not to the “employment concerned” (s 9A(1)) for its contribution to the injury.

31 Fletcher did not rely on Badawi v Nexon Asia Pacific Pty Ltd, saying that error was to be found on the law as it was understood at the time of the Acting President’s decision. That may not be correct, on the declaratory theory of statutory interpretation, but it is not necessary to decide because Fletcher also said that regard to Badawi v Nexon Asia Pacific Pty Ltd would not make any difference. In that case error in point of law was found in the manner in which the statutory task required under s 9A was undertaken. Injury had occurred while skiing during a recreational interval in employment. The error was looking at the recreational activity and seeking a linkage with the employment, rather than “considering the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment” (at [101]; see generally [101]-[106]).

32 Fletcher referred to [75] in the Acting President’s reasons, where he said that the medical evidence was overwhelmingly against the proposition that Mr Lott’s employment with Glenam “was a substantial (or even a relevant) contributory factor to the 2005 injury”. It referred to [77], where the Acting President recounted the opinion of Dr Caldwell that, on Mr Lott’s history that he simply turned to walk and his knee popped and gave way, there was no “force or directive force from any part of his work place” and no substantial contributory factor from the injury on 12 July 2005. The Acting President said that he found this opinion plausible and persuasive, and accepted it. Although Fletcher did not refer to it, at [79] the Acting President said that Dr Patrick’s opinion that the 2005 incident was a manifestation of the pathological left knee following the first injury was inconsistent with employment with Glenam being a factor in the second injury. (These two opinions appear to have been the overwhelming medical evidence.)

33 Fletcher then referred to the conclusion at [82] that the Acting President was not satisfied that the strength of the causal linkage between injury and Mr Lott’s employment with Glenam was sufficient to satisfy s 9A of the WC Act. It said that the Acting President had confined himself to the medical opinions, particularly that of Dr Caldwell with its sole regard to the moment of injury, and had erred in the manner described above.

34 However, this was a rather blinkered view of the Acting President’s reasons.

35 There was little evidence of Mr Lott’s activities in Glenam’s employment; in general, there was evidence that work as a station hand was labour intensive, but specifically as to his employment with Glenam the only evidence to which Fletcher could refer was in a report of Dr Patrick recording a history that on 12 July 2005 Mr Lott was standing on firm dry ground waving to a reversing truck (by possible inference, reversing to deliver grain to an augur).

36 The Acting President referred at [28] to the nature of Mr Lott’s duties as a station hand, plainly those of manual labour. He referred to the abovementioned medical report, including the history, at [46].

37 The Acting President said at [81], referring to the matters in s 9A(2) -

“(b) the nature of the work performed and the particular tasks of that work: Mr Lott was employed as a station hand. He was performing those duties at the time his knee gave way, but, based on the medical evidence, there was nothing about those duties that caused his knee to give way;

(c) the duration of the employment: the injury occurred on the second day of Mr Lott’s employment;

38 His conclusion at [82] took the language of strength of causal linkage between injury and employment with Glenam from Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 151; (2001) 22 NSWCCR 46 at [22], and he had cited at [72] the relevant passage; it included that the employment concerned must be a substantial contributing factor “meaning not the fact of being employed but what the worker was doing in his employment”.

39 In my opinion the Acting President did not err in the manner of which Fletcher complained. His reasons must be read as a whole. He did not confine himself to the precise time at which the injury was suffered. He had regard to what happened on 12 July 2005 as an occurrence within Mr Lott’s employment, so far as the evidence permitted. It is true that he gave considerable significance to the medical evidence, to the effect that on the medical evidence there was nothing about Mr Lott’s duties that caused his knee to give way. But he did not reason that what Mr Lott was doing at the precise time was without employment characteristics, and gave consideration to the occurrence of the injury within Mr Lott’s employment circumstances. If there was an error, and I do not say that there was, it was an error of fact.

Determination without an oral hearing

40 The Acting President said as to this matter -

“24. 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.’


25. Fletcher Exports submits that the matter should not be determined on the papers but should be given an oral hearing because the appeal involves complex issues which would benefit from an oral hearing and that transcript of the proceedings was not available at the time the appeal was filed. Both Mr Lott and Glenam Farming submit that the appeal can be determined on the papers.

26. Since Fletcher Exports filed the appeal a transcript of the proceedings before the Arbitrator was forwarded to the parties and the appellant has filed additional submissions dealing with matters arising out of the transcript. I do not believe that the appeal raises issues that warrant an oral hearing.

27. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by Mr Lott and Glenam Farming 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.”

41 We were not referred to the Practice Directions, and no party suggested that regard should be had to them.

42 The Acting President was subject to obligations of procedural fairness: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (an Arbitrator, but the Acting President was in a like position). It is well established, however, that the requirements of procedural fairness may be modified by statute, and in any event that what is required can vary according to the circumstances. Further, procedural fairness is generally satisfied by the opportunity to put evidence and submissions before the tribunal, and Fletcher had the opportunity.

43 Perhaps for these reasons, Fletcher’s submissions were founded on the application s 354 of the WIM Act. It relevantly provided -

“ 354 Procedure before Commission

(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

...

(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.

...

(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.

(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.

… “.

44 Fletcher submitted that it was an “overriding principle” that the Commission give proper consideration to a matter (s 354(1), (2)), and that the necessity for proper consideration “informed” the ability to conduct proceedings without a formal hearing (s 354(4)) and to exercise functions without holding any conference or formal hearing (s 354(6)). It submitted that the Acting President erred in law in that the information before him was not capable (it was also said, not reasonably capable) of satisfying him that he could decide the appeal upon proper consideration. It said that there was a “continuing duty” to give proper consideration, so that even if he at first was satisfied that he had sufficient information to proceed on the papers, the Acting President should have taken a different course upon it becoming apparent that an oral hearing was necessary.

45 A possible test of reasonably capable, as distinct from capable, has been seen in the judgment of Mason JA in Williams v Bill Williams Pty Ltd (1971) 1 NSWLR 547 at 557. It has not been warmly received, see for example Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [17]-[19] where Basten JA, Bergin J and I agreeing, suggested that the better language may be that adopted by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138 in saying that if facts inferred from the evidence “are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”. In the present case, it does not matter; the result is the same whichever form of words is used. Fletcher supported its submissions in two ways.

46 First, it said that the fact that the Acting President concluded that, because of the unsatisfactory state of the evidence, he was unable to re-determine Mr Lott’s entitlement to weekly compensation, showed that an oral hearing was necessary. The oral hearing could expose the deficiency in the evidence, and it could be rectified.

47 This was a bootstraps argument. Fletcher had said that it did not rely on fresh evidence. The relief it sought included the alternative that the matter be remitted for re-determination. No reason was shown why the Acting President should have doubted that the evidentiary information before him, was sufficient to enable him to decide the appeal, including deciding it by remission for re-determination should the state of the evidence be unsatisfactory.

48 Secondly, it said that the error made by the Acting President in the application of s 9A of the WC Act showed the need for an oral hearing, at which proper assistance could be provided and Fletcher’s position in relation to the application of s 9A could be adequately explained. The submission included that an oral hearing would have exposed the significance of the paucity of the evidence of Mr Lott’s activities in Glenam’s employment, although there is nothing to suggest that the Acting President should have known that more evidence was available (which is still not apparent), Similarly, it said, the failures or errors asserted in grounds 5, 6, 7 and 8 demonstrated the need for an oral hearing, to the same end.

49 This is no more persuasive. I pass over that s 354(6) refers to “sufficient information … supplied”, perhaps meaning evidence and not extending to submissions.

50 Fletcher provided written submissions to the Acting President, as did Mr Lott and Glenam. The submissions scarcely touched on s 9A, although it was accepted in the appeal that the application of s 9A necessarily accompanied success in the appeal to the Acting President on the question of injury. Nor was there reference to the disease provisions of the WC Act, although there were submissions on entitlement to weekly compensation. Fletcher’s submissions to the Acting President asserted complexity of issues, but did not raise disease provision issues, and Fletcher had full opportunity in the submissions to point out the complexity and provide assistance in resolving the issues. It would be strange if it could be advantaged by its failure fully to do so.

51 None of this meant that consideration could not be given to the appeal. Fletcher’s complaint was not correctly one of denial of procedural fairness. It was one of error in adherence to and the application of s 354(6). Assuming as the relevant decision either a decision to proceed without holding a conference or formal hearing, or the substantive decision of the appeal, no error in point of law has been made out.

The notice of contention

52 It is not necessary to consider the notice of contention. The Court did not call on Mr Lott or Glenam in response to Fletcher’s submissions, or in support of the notice of contention.

Orders

53 The appeal should be dismissed with costs.

54 McCOLL JA: I agree with Giles JA.

55 BASTEN JA: I agree with Giles JA that the appeal in this matter should be dismissed and that the appellant should pay the respondent’s costs.

56 The appeal is sought to be brought under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which relevantly provides:

“ 353 Appeal against decision of Commission constituted by Presidential member
(1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.
…
(4) The following appeals under this section may be made only with leave of the Court of Appeal:
(a) an appeal from an interlocutory decision,
…
(5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.”

57 A provision in the form of s 353(1) can give rise to difficulties for an appellant seeking to formulate a ground of appeal. It is necessary to identify a relevant “decision” of the Presidential member, which can be characterised as a decision “in point of law”. As this Court has noted on numerous occasions, not all errors of law which may affect decisions of tribunals will fall within this statutory formula. That being accepted, no counsel appearing in this Court can fairly complain that he or she was not on notice of the need to formulate grounds which comply with the statute: the Court’s website, under the heading “Other Research Tools”, refers to a page entitled “NSW Statutory Appeals and Referrals on Questions of Law”. That page identifies the relevant statutory appeal provisions, sets out the terms of the provisions and lists, under each provision separately, relevant decisions of the Court, as noted by Allsop P in Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [5].

58 The responsibility for ensuring that appeals are properly presented in accordance with the statutory jurisdiction conferred on this Court is not only that of the appellant; the respondent should also consider whether the grounds relied upon are or may be incompetent.

59 At least in the past, the Court’s attempts to limit the waste of time incurred in preparing, hearing and determining appeals which do not raise proper grounds has been limited to the filter provided by the requirement for leave to appeal, where that is engaged. Whether leave is required is not always apparent to the Court, but it should be immediately apparent to the parties, who know the stage reached in the tribunal from which the appeal is brought. In this case, as explained by Giles JA, the decision of the Commission was not final, but interlocutory, because it did not finally dispose of the rights of the parties. Accordingly leave was required: see Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [7]. In a case such as the present, assuming a reasonably arguable legitimate ground of appeal, it is likely that leave would have been granted. The consideration that the Court would give on a leave application to the nature of the grounds relied upon, provides an incomplete mechanism to prevent unnecessary expenditure on appeals not raising proper grounds.

60 The grounds of appeal are set out at [22] above. The first ground complained of the refusal of a request for an oral hearing. To formulate that in terms of a breach of rules of procedural fairness tends to distract attention from the statutory scheme under which the relevant decision was made. That would require attention to the terms of s 354 of the Workplace Injury Act, parts of which are set out at [43] above. To the provisions set out there, it is convenient to add sub-s (3), which is in the following terms:

“(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

61 This is language having a long legal history. In Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30E, Gleeson CJ and Handley JA stated:

“The words ‘equity, good conscience and the substantial merits of the case’ are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found …. In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.”

62 A similar provision in the Workers Compensation Act 1926 (NSW), s 36(3), had been held not to “authorize the commission to transcend the powers which are conferred upon it by the Act”: Thomas v Airlines of NSW Pty Ltd (1964) 64 SR (NSW) 176 at 185 (Sugerman J). The same may be said of the current provision.

63 In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286, I said at [65]:

“The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision: see generally Sue v Hill (1999) 199 CLR 462 at [42] (Gleeson CJ, Gummow and Hayne JJ); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gleeson CJ and Handley JA); Italiano v Carbone [2005] NSWCA 177 at [70]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [87]-[94] (McColl JA, Tobias and Giles JJA agreeing), and Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 at [42]. So long as each party has notice of, and a reasonable opportunity to address, the case against it, there is no reason to suppose that the Commission is not at liberty to determine how it will proceed and whether it should make a new decision. A different approach may apply in relation to a grant of leave to appeal, but that is not in issue in the present case: cf Re Coldham; Ex parte Brideson [No. 2] (1990) 170 CLR 267 at 275 (Deane, Gaudron and McHugh JJ).”

64 The nature of the proceedings before a Presidential member are described in s 352 as an appeal “by way of review”. Evidence that is either “fresh evidence” or is “evidence in addition to or in substitution for” the evidence received by the arbitrator, may only be given with leave of the Presidential member: s 352(6). In the present case, the appellant did not seek to call evidence, but sought an oral hearing. The assumption that that constituted a request for a “conference or formal hearing” for the purposes of s 354(6) was not contested on the appeal. It would appear from the reasons given by the Acting President, set out at [40] above, first that he took the application to be one requiring resolution under s 354(6) and, secondly, that he considered that he had before him “sufficient information” to proceed without the requested hearing.

65 The first matter may identify an implied decision in point of law that the relevant statutory provision was s 354(6). There was no challenge to any such decision. The second matter might give rise to an inference as to a particular construction adopted with regard to the words “sufficient information”. It was arguable that those words were not restricted to the provision of evidence. If, hypothetically, the Acting President held that they were so restricted, that may have been a decision in point of law which could be challenged by an appeal to this Court. No challenge was raised in those terms.

66 To the extent that any relevant decision in point of law was identified as having been made under s 354(6), it would then have been necessary for the appellant to demonstrate that the decision was erroneous. That provision empowers the Commission to act without a formal hearing where it is “satisfied that sufficient information has been supplied to it”. In judicial review proceedings, such a state of satisfaction is not unreviewable: see Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J). In the present case the appellant sought to argue that the decision reached was not one which could reasonably have been reached in the circumstances. It is only with some contortion of the matters presented to the Acting President and the reasons for not proceeding in the way proposed, that any decision in point of law can be extracted from such a conclusion. However, the appellant sought to call in aid the terms of s 354(1) which, it contended, obliged the Commission to give “proper consideration” to the appeal before it. That course was misconceived in two respects. First, the purpose of s 354(1) is to free the Commission from any implied obligation to act as legal formality and technicality might otherwise be thought to require. The expansion of the Commission’s discretion in that regard is given a boundary by the need to give proper consideration to the matter. However, that boundary is not to be treated as an objective matter, reviewable by the Court on a statutory appeal. Section 354 must be read as a whole to understand the scope of the procedural discretion conferred on the Commission. Subsection (1) does not alter the fact that a decision with respect to a formal hearing under sub-s (6) depends on the Commission’s satisfaction according to the stated criterion, which may obviously include the need for proper consideration of the appeal. That is to state the obvious and inheres in the conferral of jurisdiction with respect to appeals from an arbitrator: s 352.

67 It is unnecessary for present purposes to attempt a similar analysis in respect of other grounds of appeal. As explained by Giles JA, several were treated as examples of prejudice resulting from the absence of an oral hearing.

68 For these additional reasons, which I do not understand to be inconsistent with anything said by Giles JA, I agree with the orders which his Honour proposes.

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