Glemaro Pty Ltd v He - [2015] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Glemaro Pty Ltd v He [2015] NSWWCCPD 17
APPELLANT:	Glemaro Pty Ltd
RESPONDENT:	Huazhen (Linda) He
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-9325/13
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:	22 October 2014
DATE OF APPEAL DECISION:	3 March 2015
SUBJECT MATTER OF DECISION:	Appeal from interlocutory orders; leave to appeal; fresh evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; discretion to grant leave under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; application of the principles in House v The King [1936] HCA 40; 55 CLR 499 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
PRESIDENTIAL MEMBER:	Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Young and Muggleton
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Arbitrator’s determination of 22 October 2014 is revoked. 3. The appellant employer is granted leave to dispute the alleged injury to the worker’s central nervous system. 4. The matter is remitted to the Arbitrator for further hearing on a date to be fixed. 5. No order as to costs.

INTRODUCTION

This matter concerns an appeal from an interlocutory decision of an Arbitrator. The Arbitrator refused leave to permit the employer to dispute an alleged injury to the worker’s central nervous system in circumstances where the alleged injury was not part of the initial dispute. The allegation of injury to the central nervous system arose by way of an amendment after the proceedings were well advanced in the Commission.
A dispute relating to a previously unnotified matter may only be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so (s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
For reasons which are explained below the Arbitrator’s decision is revoked and leave is granted to the employer to dispute the alleged injury.

BACKGROUND

The respondent worker, Ms Huazhen He, was employed by the appellant employer, Glemaro Pty Ltd (Glemaro), as a process worker.
On 27 February 2012, while at work for Glemaro, Ms He fell down a flight of stairs and suffered injuries to her neck, back, head and left arm.
Ms He’s initial injury claim form is not in evidence. However, on 29 February 2012, Dr Costa, Ms He’s nominated treating doctor, issued a WorkCover New South Wales medical certificate of capacity in which he recorded injuries to the head and neck, all three levels of the spine, the left forearm and hand, knees, nervous shock, haematoma to the forehead and disequilibrium secondary to head injury.
On 14 June 2013, Glemaro’s insurer, Employers Mutual NSW Ltd, issued a notice under ss 54 and 74 of the 1998 Act. Liability for weekly payments (which was initially accepted) was declined after 26 July 2013. The reasons for the dispute were:
(a)     soft tissue injuries to the head, neck and back (which were conceded) had resolved;
(b)     injuries to the upper extremity (both shoulders and elbows, lower extremity, including either knee, vestibular injury/disequilibrium and any alleged psychological injury were denied, and
(c)     the employment was not a substantial contributing factor to the alleged injuries (s 9A of the Workers Compensation Act 1987 (the 1987 Act)).
On 10 December 2013, Ms He lodged an Application to Resolve a Dispute (the Application) in the Commission. She claimed weekly payments of compensation from 1 May 2013 to date and continuing in respect of injuries to the head, neck, back and left arm. No claim was made for lump sum compensation at that time.
On 20 January 2014, Glemaro lodged a Reply to the Application to Resolve a Dispute. It denied liability for the reasons given in the s 54 and s 74 notice.
On 10 June 2014, Ms He was assessed by Dr Peter Conrad, a surgeon, at the request of her solicitors. Dr Conrad prepared a report dated 11 June 2014. Dr Conrad noted that following the accident at work on 27 February 2012, Ms He was taken to Westmead Hospital. The hospital notes recorded a loss of consciousness. A CT scan of the brain showed no haemorrhage. An MRI of the brain performed by Dr Williams on 13 July 2012 revealed no abnormalities. Ms He was referred to a neurologist, Dr Hassan. She was also referred to a neurosurgeon, Dr Abrasko, for problems with equilibrium.
Dr Conrad recorded complaints of memory and cognitive impairment. He assessed Ms He to have an eight per cent impairment of the central nervous system, along with other orthopaedic assessments that are not currently relevant, resulting in a combined assessment of 21 per cent whole person impairment. Dr Conrad qualified his assessment by noting that he estimated Ms He’s “Mental Status” based on her inability to recall events and interference with activities of daily living. He cautioned that a more accurate assessment should be performed by a consultant neurologist after psychometric testing, such assessment to be substituted for his assessment to reach a combined impairment assessment.
By letter dated 13 June 2014, Ms He claimed lump sum compensation pursuant to s 66 of the 1987 Act in respect of a 21 per cent whole person impairment which included eight per cent whole person impairment in relation to an alleged injury to the central nervous system. The body parts comprising the claim were unspecified, however, a copy of Dr Conrad’s report of 11 June 2014 was attached.
The matter was initially listed for hearing before a Commission Arbitrator on 17 July 2014.
On 9 July 2014, Sparke Helmore Lawyers, solicitors for Glemaro, wrote to the Commission requesting an adjournment with the consent of Ms He’s solicitors. The adjournment was required as a result of the service of an Application to Admit Late Documents on 30 June 2014, which attached the report from Dr Conrad dated 11 June 2014.
On 6 August 2014, Ms He was assessed, for the second time by Dr Mellick, neurologist, the first being on 9 April 2013. In his first report, Dr Mellick recorded symptoms of dizziness suggestive of a concussive injury to the peripheral vestibular apparatus. He was unable to find evidence of disequilibrium. In his report of 6 August 2014, Dr Mellick stated that there was no evidence of a persisting labyrinthine or vestibular lesion. Ms He’s presentation was consistent with a significant mood disorder or an iatrogenic disorder. There was no evidence of impairment of neurological function. He found 0 per cent whole person impairment.
The matter was next listed before a Commission Arbitrator on 25 August 2014. On that occasion, Ms He sought and was granted an adjournment to respond to late evidence filed by Glemaro, being surveillance footage and surveillance reports.
On 28 August 2014, Ms He’s solicitors, Young and Muggleton served a proposed Amended Application to Resolve a Dispute (the amended application). The amended application was received by Sparke Helmore on 2 September 2014. The amended application sought lump sum compensation in the sum of $33,000 representing a 21 per cent whole person impairment comprised of: eight per cent for the central nervous system, seven per cent for the cervical spine, four per cent for the upper extremity right shoulder, and five per cent for the lumbar spine.
On 17 September 2014, Sparke Helmore wrote to Young and Muggleton denying liability for the alleged injury to the central nervous system. The letter was not before the Arbitrator on the interlocutory application and is the subject of an application to admit fresh evidence on appeal.
On 15 October 2014, Sparke Helmore filed an Application to Admit Late Documents to which was attached an amended reply. The amended reply denied injury to the right shoulder and the central nervous system and denied any liability for whole person impairment of the cervical and lumbar spine, the central nervous system and the right upper extremity.
On 21 October 2014, the matter was listed for a conciliation and arbitration hearing before Arbitrator Perrignon. At the hearing, Ms He’s counsel, Ms Dulhunty, objected to Glemaro disputing liability with respect to the central nervous system. After hearing submissions from both parties, the Arbitrator issued a Certificate of Determination on 22 October 2014 refusing leave to dispute injury to the central nervous system. The matter was stood over for further directions.
The appellant seeks leave to appeal the Arbitrator’s interlocutory order.

THE SUBMISSIONS TO THE ARBITRATOR

Glemaro’s submissions

Ms Wood, counsel, who appeared for Glemaro, submits that the receipt of the report of Dr Conrad on 13 June 2014 was the first notification to Glemaro that Ms He intended to make a claim in respect of injury to the central nervous system.
Ms Wood submits that Dr Conrad is an orthopaedic surgeon. Dr Conrad qualified his report by indicating that his assessment was based on Ms He’s memory and cognitive impairments and noted that psychometric testing and assessment by a neurologist would be needed to confirm his view.
Ms Wood further submits that the radiological evidence including an MRI and CT scan of the brain cast doubt on whether a permanent injury to the central nervous system had been sustained. She also submits that Glemaro would be irreparably prejudiced if leave was not granted to dispute the issue.

Ms He’s submissions

Ms Dulhunty opposes the granting of leave. She submits that Glemaro had ample opportunity to respond to Dr Conrad’s assessment. Dr Mellick, a neurologist, provided two reports dated 6 August 2014. Ms Dulhunty submits that Dr Mellick in his report of 6 August 2014 opined that “there is no evidence of a persisting labyrinthine or vestibular lesion and the clinical features suggest a significant mood disorder or an iatrogenic disorder as I explained above”. That evidence, she submits, strengthens her argument against leave being granted. Ms Dulhunty argues that her client would be prejudiced if leave were granted as it would result in an adjournment and a further day of hearing.
Ms Dulhunty further argues that after the respondent was put on notice of the claim in respect of the central nervous system Glemaro had two months to file a further s 74 notice and had failed to do so and was thus out of time to object to the claim.

THE ARBITRATOR’S REASONS

A dispute relating to a previously unnotified matter may only be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so (s 289A(4) of the 1998 Act).
The Arbitrator approached the exercise of his discretion to grant leave in accordance with the principles discussed in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488. He noted that the principles had been subsequently applied by former Acting Deputy President Snell in The Office of the Public Guardian v Manning [2008] NSWWCCPD 94 and Oxford Art Supplies & Books Pty Ltd v Gardiner (No 2) [2008] NSWWCCPD 122.
In summary, the Arbitrator concluded that the following factors, although not decisive, militated against granting leave to dispute injury to the central nervous system:
(a)     the length of the delay in notifying the dispute and failure to explain the delay;
(b)     the lack of complexity giving rise to the issue should have alerted Glemaro’s representatives to have put it in dispute earlier than they did, and
(c)     if leave were granted a further adjournment of the proceedings would occur.
The Arbitrator concluded that the following issues were neutral in the exercise of his discretion:
(a) the merit and substance of the issue, and
(b) the general conduct of the parties (apart from the late notification issue).
Regarding the delay issue, the Arbitrator approached that question by considering that had a s 74 notice been issued in response to Ms He’s amended claim, the s 74 notice should have been issued on or about 15 August 2014. Whilst the amended reply disputed the relevant injury, it did not comply with the provisions of s 74 and was not filed until 15 October 2014. The Arbitrator noted that there were no reasons given for the delay.
The Arbitrator noted the object of the discretion to grant leave pursuant to s 289A(4) is to alleviate any injustice that might occur on the strict enforcement of those time limits (I infer the Arbitrator was referring to s 281(2)(b) and the obligation to determine claims for lump sum compensation within two months of all relevant particulars about the claim being provided). The Arbitrator concluded that, in this case, the delay between the making of the claim and giving of notice of the dispute had not been insubstantial and that the failure to issue a s 74 notice was ongoing. He further concluded that there was no evidence that the delay was beyond the control of the insurer, on the contrary he concluded that it was entirely within its control.
The Arbitrator stated that although not determinative of the matter, the extent of the delay and the absence of reasons for it were factors which weighed against the grant of leave.
In terms of the merit and substance of the dispute the Arbitrator considered the radiological evidence and the opinions of Drs Conrad and Mellick. He concluded that Ms He’s prospects of success in demonstrating injury to the central nervous system were “not overwhelming”. Again, whilst not determinative it was a factor which in his mind weighed against the grant of leave.
The issue of whether or not there was injury to the central nervous system was not one of significant difficulty, a factor that weighed against the grant of leave.
The Arbitrator concluded that apart from the late notification of the dispute, the general conduct of the parties in the proceedings had been satisfactory.
In terms of prejudice, the Arbitrator stated that the delay in having the matter adjourned and the need to obtain evidence to address the denial of liability weighed against the grant of leave.
Weighing these factors, the Arbitrator concluded it was not in the interests of justice for the dispute over the injury to the central nervous system to be heard and the application for the grant of leave pursuant to s 289A(4) was declined.

FRESH EVIDENCE

Glemaro seeks to adduce additional evidence which it claims was not available to its counsel on the day of the arbitration. The evidence is a copy of a letter dated 17 September 2014 from Sparke Helmore to Young and Muggleton. The substance of the letter contains a denial of liability for the claim for injury to the central nervous system.
The text of the letter is in the following terms:
“We refer to your recent correspondence enclosing a copy of the proposed Amended Application to Resolve a Dispute.
We look forward to receiving a sealed copy and we will then file an Amended Reply.
We note that the amendments relate to the inclusion of your client’s claim for lump sum compensation based upon the assessment contained in the report of Dr Peter Conrad dated 11 June 2014.
We now formally decline liability in relation to the claims in respect to the central nervous system and right upper extremity (shoulder) on the basis that that [sic] the applicant did not sustain injury to those body parts as a result of the incident on 27 February 2012.
Further, we also dispute the applicant’s claim for lump sum compensation in respect to the cervical and lumbar spine on the basis that she suffers nil impairment in respect of each body part and therefore has no entitlement to compensation pursuant to s 66(1) of the Act.
We seek to rely upon the recent medical reports from Dr Mellick and Dr Bruce, copies of which have been served on you under Applications to Admit Late Documents.
In addition, we rely upon the surveillance reports from G4S Compliance & Investigations, which have also been served upon you. We note also that we have recently forwarded to you copies of the surveillance DVDs and again will seek to rely upon these in support of the respondent’s declinature of liability in relation to the lump sum compensation claim.”
Ms Wood submits that the document is of substantial relevance to the determination of whether leave ought to have been granted to dispute the claim in respect of the central nervous system. She submits that failure to allow the document into evidence would result in a substantial injustice to Glemaro.
Ms Wood further submits that it is relevant that the document was in the possession of Ms He’s solicitor, who was present at the hearing before the Arbitrator on 21 October 2014, yet he failed to draw it to the Arbitrator’s attention. Ms Wood maintains that she was not aware of the correspondence at the time of the hearing.
Ms Dulhunty submits that the correspondence of 17 September 2014 was available to Glemaro on the day of the arbitration. She confirms that the Arbitrator’s attention was not drawn to the correspondence by either party. However, she submits that the letter of 17 September 2014 should not be permitted as fresh evidence on the appeal.
Ms Dulhunty also submits:
“The fact of the matter is that the respondent did not have any notice of that [sic] the claim for the CNS would be disputed by the Appellant until service of the Amended reply a few days before the Arbitration. The Amended reply did not comply with Section 74 of the WIM Act as it did not provide any reasons for disputing the claim for the CNS as required by Section 74(2)(a) of the WIM Act.”
Ms Wood submits in reply that it should be noted that the amended application did not refer to the alleged injury to the central nervous system as an injury in Pt 4 of the Application, but it was included in Pt 5.6 as one of the claims made pursuant to s 66. The amended application was the first notice given by Ms He’s solicitors of the potential that she would be including the central nervous system and s 66 claims in these proceedings.

Determination – fresh evidence

‘Fresh evidence’ on appeal is governed by the provisions of s 352(6) of the 1998 Act which provides:
“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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In Chep Australia Ltd v Strickland [2013] NSWCA 351 (Strickland), Barrett JA (Macfarlan JA agreeing) stated (at [27]) that s 352(6) involves two threshold questions which arise in the alternative. His Honour said:
“The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”

His Honour added (at [31]):
“The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”

The first test identified in Strickland cannot be satisfied. The letter of 17 September 2014 disputing liability for injury to the central nervous system was available to both parties as at 21 October 2014. The reason for it not being put before the Arbitrator by either party is both unexplained and unsatisfactory. Ms Wood asserts that she was unaware of the existence of the letter when the matter was being argued before the Arbitrator. The reason why that was so has not been addressed in submissions. Ms He’s solicitor or counsel should have understood the significance of bringing to the Arbitrator’s attention the content of the letter of 17 September 2014. That did not occur and no attempt has been made to explain why the relevant evidence was not drawn to the Arbitrator’s attention. Therefore, the letter of 17 September 2014 can only be admitted as fresh evidence if it satisfies the second test discussed in Strickland.
The evidence sought to be admitted is relevant to the question of delay in notifying the disputed issue. The Arbitrator’s approach to the question of delay was to consider the period from the expiry of the time for issuing a s 74 notice. The person on whom a claim is made for lump sum compensation must determine the claim within two months after the claimant has provided to the insurer all relevant particulars about the claim (s 281(2)(b) of the 1998 Act) Accepting that the claim was validly made on 13 June 2014, and it has not been suggested otherwise, a determination on liability should have been made and communicated to the claimant by 12 August 2014, not 15 August 2014 as the Arbitrator found (s 21 of the Interpretation Act 1987).
The amended reply was filed on 15 October 2014. Thus, the Arbitrator treated the delay in notifying the dispute as a period of about two months after the time specified by s 281(2)(b).
Had the Arbitrator’s attention been drawn to the content of the letter of 17 September 2014 he would have appreciated that the actual delay was approximately half of the period that the Arbitrator took into account. Notice of the dispute was given approximately one month after the expiry of the time for disputing the claim.
Had the Arbitrator been aware of the letter of 17 September 2014 he would have appreciated that the claim in respect of the alleged injury to the central nervous system was in dispute, having been raised in writing between the parties, over a month before the final hearing, not a week before the final hearing as the Arbitrator assumed.
Had the relevant correspondence been drawn to the Arbitrator’s attention it inevitably would have influenced his consideration of the delay issues. The exclusion of the letter would cause substantial injustice in the circumstances of this case as it would have affected the Arbitrator’s assessment of the application for leave to dispute whether Ms He injured her central nervous system. I therefore propose to admit into evidence the letter of 17 September 2014 for the purpose of this appeal. Given the history of the matter, I do so with considerable reluctance. That is because both parties were in possession of the letter at the arbitration hearing and each had an obligation to bring it to the Arbitrator’s attention. It is most unsatisfactory that they did not. Parties are reminded that all relevant evidence should be tendered at the arbitration.

PARTIES’ SUBMISSIONS ON APPEAL

Glemaro’s submissions

Ms Wood submits the delay in notifying the disputed injury to the central nervous system was not unreasonable. The first notice to the appellant insurer of an alleged injury to the central nervous system was by letter dated 13 June 2014. That letter claimed 21 per cent whole person impairment. Whilst a report of Dr Conrad of 11 June 2014 was attached, no particulars of the body parts claimed were specified.
The insurer properly arranged a medical examination with Dr Mellick, which took place on 6 August 2014, and his report was served in these proceedings on 18 August 2014.
The dispute that was listed for hearing on 25 August 2014 was confined to a claim for weekly payments. No notification was given before that date that Ms He would seek leave to include a claim under s 66 in the current proceedings.
By letter dated 28 August 2014 (received by Glemaro’s solicitors on 2 September 2014) Ms He served an unsealed copy of the amended application that included a claim for whole person impairment to the central nervous system. The matters listed in Part 4 of the amended application, which deals with injury details, made no reference to or allegation with respect of injury to the central nervous system.
On 17 September 2014, Glemaro’s solicitor wrote to Ms He’s solicitor formally denying liability for the claimed injuries to the central nervous system and right upper extremity.
Ms He’s solicitors never served a sealed copy of the amended application, however as a precautionary measure a proposed amended reply was filed on 15 October 2014 addressing the matter of the central nervous system.
Glemaro could not have disputed liability until it had the opportunity to obtain medical evidence on the issue. Following the receipt of that evidence, Glemaro acted without unreasonable delay in notifying Ms He of the issue.
In terms of any prejudice, Ms Wood submits that the time available for the conciliation and arbitration on 21 October 2014 was exhausted by the time taken to argue the interlocutory issue. Therefore, an adjournment was inevitable in any event. She submits that the denial of the opportunity to defend a substantial allegation of injury outweighs any prejudice to Ms He.
In terms of the merit and substance of the issue, Ms Wood submits that the only evidence in support of an injury to the central nervous system comes from Dr Conrad’s report. Dr Conrad is an orthopaedic surgeon and does not have the necessary qualifications and expertise to assess such a loss. Radiological evidence, including a CT scan of the head performed on 27 October 2010 and an MRI of the brain performed on 20 June 2012 do not support a diagnosis of injury to the central nervous system. Dr Mellick found that there was no evidence of persisting labyrinthine or vestibular lesion and was unable to find any evidence of impairment of neurological function.
Ms Wood submits that the evidence before the Commission casts substantial doubt over the probity of Ms He’s claim and it would amount to a significant injustice if Glemaro were not permitted leave to dispute injury to the central nervous system.

Ms He’s submissions

Ms Dulhunty submits that the claim under s 66 in respect of the central nervous system was properly notified. This occurred by serving Dr Conrad’s report on or about 14 June 2014.
Ms Dulhunty relies upon Glemaro’s failure to issue a notice under s 74 to dispute the alleged injury to the central nervous system. By the time the matter came on for hearing on 21 October 2014, the time for filing a s 74 notice had long passed. No reasons have been advanced by Glemaro for failing to issue a s 74 notice or for the delay in notifying Ms He that the claim in relation to the central nervous system was disputed.
At no time were particulars of the claim for injury to the central nervous system sought by Glemaro’s representatives.
The amended application was served on Glemaro on 28 August 2014, about two months before the arbitration on 21 October 2014. The amended reply was not served until 15 October 2014.
Glemaro was not entitled to change its position at such a late stage and the Arbitrator was correct in refusing the appellant leave to dispute the injury to the central nervous system (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon)).
Ms Dulhunty submits that the prejudice to Ms He, apart from the matter of delay, concerns the additional cost of having to obtain further evidence (if further evidence is permitted given the limitation on the number of medical reports upon which a party may rely). The delay and cost of obtaining such evidence was raised in opposition to Glemaro’s application pursuant to s 289A(4) of the 1998 Act.
Ms Dulhunty submits that “the dispute was only raised a few days before the third date for the arbitration and no reasons were given for disputing the claim”.
In terms of the substance of the dispute, Ms Dulhunty submits that Dr Mellick opined that symptoms of dizziness were consistent with a concussive injury to the peripheral vestibular apparatus. Dr Mellick also observed Ms He to have slurred speech and did not deny the possibility of an injury to the central nervous system.
Ms Dulhunty submits that the Arbitrator made no error in the exercise of his discretion and correctly refused the leave sought.

Determination – leave to appeal

An appeal from an interlocutory decision may only proceed with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute (s 352(3A) of the 1998 Act).
In the event that leave is refused, the matter will then proceed to a final determination absent a resolution of the dispute in relation to the central nervous system. Glemaro will then be entitled to appeal. Should they be successful in the appeal, the issue of whether Ms He suffered an injury to her central nervous system would then have to be determined. If Ms He succeeds on that issue, a further AMS assessment will be required resulting in substantial additional costs for the Commission. It is therefore desirable for the proper and effective determination of the dispute that, before the matter proceeds further, the issue raised by Glemaro in this appeal be determined. Accordingly leave to appeal is granted.
The Arbitrator approached his consideration of the exercise of his discretion by applying the provisions of s 289A(4) of the 1998 Act.
Section 289A is in the following terms:
“289A   Further restrictions as to when a dispute can be referred to Commission
(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)    A matter is taken to have been previously notified as disputed if:
(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)    The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)    Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Whether the Arbitrator has erred in the exercise of his discretion calls for a consideration of the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King).
In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef) Heydon JA (Sheller JA and Studdert AJA agreeing) referring to the principles discussed in House v The King stated (at [45]) that:
“Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)     made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
In exercising his discretion, the Arbitrator took into account as a relevant matter the delay by Glemaro in placing the alleged injury to Ms He’s central nervous system in dispute. The Arbitrator approached that matter by concluding that the delay was about two months. Based on the evidence now before the Commission, that was a material error of fact because the relevant delay was about one month. That error occurred because the Arbitrator failed to take into account the content of the letter from Glemaro’s solicitors to Ms He’s solicitors of 17 September 2014. I make no criticism of the Arbitrator in this regard because he was not taken to the document.
It follows that because of that error the exercise of the Arbitrator’s discretion miscarried and therefore the Arbitrator’s decision must be revoked and the interlocutory issue re-determined. Although it is unusual, given the history of the matter and the fact that it has already been adjourned on several occasions, it is desirable that the matter proceed without further delay. In the circumstances, as there are no credit issues involved, I propose to re-determine the issue.
In any matter before the Commission, proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the 1998 Act). The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3)).
As I have said, the circumstances in which the error identified above has occurred are highly unsatisfactory. This is exacerbated by the fact that the representatives of both parties made no attempt to explain why the relevant evidence was not brought to the Arbitrator’s attention. This is even further compounded by Ms Dulhunty’s submission (at [71] above) that the dispute in relation to the alleged injury to the central nervous system was “only raised a few days before the third date for the arbitration and no reasons were given for disputing the claim”. In light of the evidence now before the Commission that submission cannot be accepted. The dispute was notified more than one month before the final hearing not “a few days”. Further, full particulars of the reasons for the dispute were provided.
I also reject Ms Dulhunty’s submission that Ms He will be prejudiced by a further adjournment and the need to further investigate the claim. For the reasons stated by Ms Wood, so much time was taken up at the arbitration on 21 October 2014 arguing the interlocutory point, that insufficient time remained in the time allotted for the hearing for the Arbitrator to deal with the merits of the dispute. Therefore, an adjournment was inevitable regardless of the outcome of the interlocutory application.
The submission that Ms He is prejudiced by the requirement to obtain further evidence to answer Dr Mellick’s opinion demonstrates a fundamental misunderstanding of proceedings in the Commission. Parties to proceedings in the Commission are required to be fully prepared to proceed at the outset. Ms Dulhunty has elected to proceed (belatedly) on the alleged injury to the central nervous system based only on the evidence of Dr Conrad, knowing that Dr Conrad’s opinion was qualified by the recommendation that a neurologist should be retained and psychometric testing undertaken to assess Ms He’s neurological state. That apparently has not occurred, notwithstanding that Ms He’s representatives have been on notice of those recommendations since 11 June 2014. The worker can scarcely complain that she is now prejudiced by reason of insufficient evidence if the alleged injury to the central nervous system is disputed.
Questions of procedural fairness must be considered in the context of the objectives of the Commission as set out in s 367 of the 1998 Act, including providing a just, timely and effective dispute resolution service and the public interest to use resources efficiently. However, Ms Dulhunty cannot draw any comfort from Aon. In Aon the Australian National University sought an adjournment to radically re-plead its case on the third day of a trial which had been set down for four weeks. In this matter the worker was on notice that Glemaro disputed injury to the central nervous system, one month before the final hearing.
In terms of the merit and substance of the issue, the evidence from Dr Conrad in support of an impairment to the central nervous system is, as I have indicated, heavily qualified. Ms Dulhunty’s submission that Dr Mellick found that symptoms of dizziness were consistent with a concussive injury to the peripheral vestibular apparatus and that he “did not deny the possibility of an injury to the central nervous system” are a misleading summary of Dr Mellick’s opinion. Dr Mellick stated in his report of 6 August 2014 that he was unable to establish any evidence of impairment of neurological function. He found 0 per cent whole person impairment (see [15]).
Having regard to history of the matter, I accept that it is in the interests of justice that Glemaro be permitted to dispute the alleged injury to the central nervous system.

DECISION

Leave to appeal is granted.
The Arbitrator’s determination of 22 October 2014 is revoked.
The appellant employer is granted leave to dispute the alleged injury to the worker’s central nervous system.
The matter is remitted to the Arbitrator for further hearing on a date to be fixed.

COSTS

No order as to costs.

Judge Keating
President

3 March 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE