Grigor v Inghams Enterprises Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grigor v Inghams Enterprises Pty Ltd [2021] NSWPIC 257
APPLICANT:	John Grigor
RESPONDENT:	Inghams Enterprises Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	21 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Applicant claimed weekly benefits and permanent impairment compensation as a result of injury to his lumbar spine; applicant brought previous proceedings in which it was determined that he had sustained injury to his lumbar spine in the employ of the respondent; in those proceedings, he discontinued the claim for the cost of surgery to his lumbar spine and sought weekly benefits and a general order for medical expenses pursuant to section 60 of the 1987 Act; he was not awarded weekly benefits due to the operation of section 32A of the1987 Act; and a general order for medical expenses was made; respondent appealed against the decision of the arbitrator; Presidential Member determined that the thresholds in section 352(3) of the 1998 Act had not been met and there was no right of appeal; applicant brought proceedings for the cost of surgery to his lumbar spine, which were resolved by consent; respondent sought leave to request a reconsideration of the arbitrator’s decision; applicant opposed the granting of leave and the application for reconsideration; applicant directed to lodge written submissions on the application of section 289A (4) of the 1998 Act and reconsideration application and matter to be listed for telephone conference after determination of those matters; Matues v Zodune Pty Limited t/as Tempo Cleaning Services and Samuel v Sebel Furniture Limited considered; Held- leave granted to the respondent pursuant to section 289A (4) of the 1998 Act to request reconsideration of arbitrator’s decision; reconsideration application refused; matter to be listed for telephone conference for directions as to future conduct.
DETERMINATIONS MADE:	1. That the respondent is granted leave pursuant to section 289A (4) of the Workplace Injury Management and Workers Compensation Act 1998 to request a reconsideration of the decision of Arbitrator Bell in Matter Number 003480/16. 2. That the application for reconsideration is refused. 3. That the matter is to be listed for telephone conference for directions as to its future conduct.

STATEMENT OF REASONS

BACKGROUND

The applicant, John Grigor, was employed by the respondent, Inghams Enterprises Pty Ltd (Inghams), as a storeman. The respondent is self-insured for workers’ compensation.

Mr Grigor has been found to have sustained injury to his lower back in the course of his employment with Inghams on 18 March 2014. That injury was determined to be in the form of the aggravation, exacerbation, acceleration or deterioration of degenerative lumbar spine disease.

The determination in favour of the applicant was made in the Workers Compensation Commission (WCC) by Arbitrator Ross Bell, in Matter Number 003480/16, after a hearing between the same parties. The Certificate of Determination, dated 12 December 2016, is in evidence.
Arbitrator Bell found that the applicant was partially incapacitated for work during the periods for which he claimed weekly benefits. However, he found that Mr Grigor had nil entitlement to weekly compensation, pursuant to sections 32A and 36(2) of the Workers Compensation Act1987 (the 1987 Act). He ordered that the respondent pay the applicant’s expenses pursuant to section 60 of the 1987 Act, on production of accounts/receipts.

The respondent lodged an appeal to a Presidential Member against Arbitrator Bell’s decision, in Matter Number A1-3480/16.
On 18 May 2017, Deputy President Snell determined that the monetary thresholds in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) had not been met and there was no right of appeal.

The applicant lodged a further Application to Resolve a Dispute in Matter Number 249/19. On 3 April 2019, Arbitrator Bell entered Consent Orders. The Application to Resolve a Dispute was discontinued; and the requirement for an Election (to Discontinue Proceedings) was dispensed with. It was noted that, while this was not a determination of the Commission, the respondent agreed to pay, without prejudice and without an admission of liability, pursuant to sections 41A and 50(2) of the 1998 Act, the cost of and incidental to surgery proposed by the nominated treating specialist, Dr Neil Cochrane.

By letter dated 1 July 2020, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation of $28,297.50, pursuant to section 66 of the 1987 Act, in respect of 18% whole person impairment (WPI) as a result of injury to his lumbar spine on 18 March 2014.
The respondent’s solicitors wrote to the applicant’s solicitors on 9 December 2020. They referred to their letter dated 13 November 2018 and stated that liability for the applicant’s claimed entitlement to compensation benefits had previously been declined.
The letter dated 13 November 2018 was apparently a response to the applicant’s claim for the cost of surgery, in Matter Number 249/19. The respondent disputed liability on the following grounds:
(a)     the applicant had not sustained injury as alleged or at all;
(b)     the applicant’s employment was not a substantial contributing factor to injury;
(c)     any medical condition from which the applicant suffered (which was denied) was not causally connected to the injury;
(d)     if the applicant had sustained injury (which was denied), it was in the nature of a disease process and employment was not the main contributing factor to the cause or aggravation of the disease;
(e)     in the alternative, if the applicant had sustained injury (which was denied), it was in the nature of a disease and the respondent was not the last employer for whom the applicant had carried out work to the nature of which any disease was due;
(f)      any medical treatment required or carried out was not reasonably necessary as a result of injury;
(g)     the applicant was estopped from asserting any entitlement to the payment of treatment expenses by reason of proceedings before the WCC, and in particular by reason of the conduct of and on behalf of the applicant in respect of those proceedings, and
(h)     the applicant was precluded from recovering the payment of medical and treatment expenses in any event by the operation of section 59A of the 1987 Act.
The letter dated 9 December 2020 from the respondent’s solicitors stated that “While it is not strictly necessary”, they confirmed that liability for the payment of compensation benefits was declined; and to the extent necessary, notice was given in accordance with section 78 of the 1998 Act. The reasons that liability was declined were stated to be as set out in their letter dated 13 November 2018; and the documents relied on were those previously served and filed in the WCC in Matter Number 249/19. The letter advised that the respondent also relied to the extent necessary on section 66 of the 1987 Act and the applicable threshold requirements of the legislation.

The applicant lodged an Application to Resolve a Dispute (the Application) on 24 March 2021. The applicant claimed weekly benefits compensation from 29 May 2019 to date and continuing. The applicant also claimed the sum of $31,762.50, pursuant to section 66 of the 1987 Act, in respect of 20% WPI. The parties had agreed at the telephone conference that there was an error in the report on which the applicant relied in support of his claim for WPI, and the correct assessment was 20% WPI, and not 18% WPI as claimed.
The respondent lodged its Reply on 1 April 2021.

ISSUES FOR DETERMINATION

The preliminary issues to be determined are:

(a) whether the respondent is to be granted leave pursuant to section 289A (4) of the 1998 Act to request a reconsideration of the decision of Arbitrator Bell in Matter Number 003480/16; and
(b) if so, whether the decision of Arbitrator Bell should be reconsidered.

If the decision of Arbitrator Bell is reconsidered, the respondent seeks to place in issue the matters referred to in its letters dated 13 November 2018 and 9 December 2020.

PROCEDURE BEFORE THE COMMISSION

At the telephone conference held on 22 April 2021, the respondent advised that it relied on the dispute notices issued pursuant to section 74 of the 1998 Act, which was then the appropriate section, in respect of the applicant’s previous claims. The respondent advised that it would be requesting that I reconsider the decision of Arbitrator Bell in Matter Number 003480/16. It advised that it did not consider that it was estopped from disputing the matters determined by Arbitrator Bell, because its appeal had been dismissed solely because it did not meet the threshold requirements provided for by section 352(3) of the 1998 Act.

The matter was listed for conciliation/arbitration hearing by telephone on 27 May 2021.
Mr Hammond of counsel appeared for the applicant, instructed by Mr Job. Mr Saul of counsel appeared for the respondent, instructed by Mr Macken. The applicant was present.
The respondent sought reconsideration of the decision of Arbitrator Bell in Matter Number 003480/16.
It became apparent at the hearing that neither party could be certain that he or it had access to a transcript of Arbitrator Bell’s decision, which was delivered orally by telephone on 6 December 2016. The Commission has provided each party with a copy of the transcript.

At the completion of the applicant’s submissions, the applicant sought and was granted leave to rely on written submissions. The applicant was directed to file and serve on or before 4 June 2021 written submissions on the respondent’s application for reconsideration of Arbitrator Bell’s decision. The applicant filed its undated submissions on or about 11 June 2021.

The respondent was directed to file and serve any written submissions in reply on or before 11 June 2021. Further submissions were received on 18 June 2021.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The Application and attached documents; and
(b) Reply and attached documents.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Application to dispute previously unnotified matters

Section 78 of the 1998 Act provides:

“78 Insurer to give notice of decisions

(1) An insurer must give notice in accordance with this Division of any decision of the insurer--
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.
(2) Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).
(3) The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.”

Section 289A of the 1998 Act provides:

“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 President 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.”

Reconsideration Application

The Commission’s power to reconsider its decisions is now to be found in the Personal Injury Commission Act 2020 (the 2020 Act).
Section 57 of the 2020 Act provides:
“57 Reconsideration of decisions of Commission
(1)     The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2)     If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may--
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3)     Without limiting subsection (2), if the decision is contained in a certificate, the President may--
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4)     If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)     If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6)     Examples of obvious errors in a decision are where--
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”

SUBMISSIONS

Respondent

The respondent submitted that all the issues that were before me were in issue before Arbitrator Bell. He determined them in accordance with the Certificate of Determination.
The respondent appealed on all issues but that which related to economic loss. The only basis on which the appeal was dismissed by Snell DP was that it did not satisfy the mandatory thresholds provided for by section 352(3) of the 1998 Act. The applicant has brought further proceedings, claiming weekly benefits from the time of the surgery and a lump sum. The claim now exceeds the monetary thresholds. Should an appeal be lodged, those thresholds would be satisfied.
The respondent submitted that Snell DP did not go further than the monetary thresholds dispute or decide the issues on appeal. Those issues ranged “far and wide” and included the medical evidence and the applicant’s credit.
The respondent submitted that I have the jurisdiction and power to reconsider the matter, pursuant to section 57 of the 2020 Act, which took over from section 350 of the 1998 Act. The power to reconsider goes back to the Compensation Court. It submitted that “in a general sense”, it was raised at the telephone conference that it would be requesting reconsideration. It was in the interests of justice to do so. The matters on appeal were still extant; and if leave was not granted to raise this, the “floodgates would open”, as any claimant could ask for a general order for section 60 expenses; and the respondent can’t appeal. This could circumvent the aims of the Act. The right to appeal would be extinguished once the liability dispute was determined.
The respondent referred me to section 350(1) of the 1998 Act (which succeeded section 17 of the Compensation Court Act 1984 (the Court Act), which it submitted was in almost identical terms to section 57 of the 2020 Act. Section 57(1) is even broader, as it says the Commission “may reconsider”. The respondent submitted that the case law is still relevant to my decision, but the discretion is even broader, due to the removal of the words “final and binding” in section 350(1).
The respondent referred to the decision of the Court of Appeal in Hatfield Engineering vFitzgerald [2003] NSWCA 345 (Fitzgerald), which considered section 17 of the Court Act and in which reference was made to Hilliger v Hilliger (1952) 52SR(NSW) 105 (Hilliger). The Court of Appeal held in Fitzgerald that section 17 conferred “a discretion virtually without limit”.
In Hilliger, it was held that “no limit is set on the power of the court…”; and “…it is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise…”
The respondent also referred to the decision of Tobias JA in Reodica v State Rail Authority [2003] NSWCA 112 (Reodica), in which his Honour referred to Hardaker v Wright& Bruce Pty Limited (1960) 62 SR(NSW) 244 (Hardaker) and Schipp v Herfords Pty Limited (1975) 1 NSWLR 412 (Schipp).
The respondent also relied on the decision of Acting Deputy President Roche, as he then was, in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel) and of Roche DP in Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33 (Tedeschi).
The respondent submitted that it is necessary that “justice be done between the parties” (Tedeschi, referring to Hilliger). This turns on the respondent’s rights. It submitted that the matter had never been properly finalised, as the applicant discontinued parts of his claim, so that not receiving weekly benefits meant that the award did not meet the monetary thresholds.
The respondent submitted that it made extensive submissions on the appeal. It raised injury; the applicant’s credit; whether the applicant actually sustained injury; and the application of sections 9A and 4(b)(ii) of the 1987 Act. The issues were squarely raised and squarely raised on appeal.
The respondent submitted there would be no prejudice to the applicant if the decision was reconsidered. The issues were put on appeal and not dealt with on the appeal extant. There would be extreme prejudice to the respondent should the decision not be reconsidered, as it would deny it the opportunity to have the issues dealt with.
The respondent finally submitted that its application came as no surprise to the applicant, but it had no difficulty allowing sufficient time to the applicant to put on submissions and evidence, provided it was given the same opportunity.
In reply to the applicant, the respondent submitted that the categorisation of the appeal as being unsuccessful is incorrect. Leave to appeal was refused so it has not been determined.
The respondent submitted that the applicant’s submissions in respect of the “intermediate proceedings” are misconceived. It submitted that the proceedings were discontinued. The Certificate of Determination makes it clear that the applicant’s submissions as to estoppel are also misconceived, as the agreement references sections 41A and 50(2) of the 1998 Act. Those provisions make it clear that agreement reached by reference to them cannot create an estoppel and is one that involves no admission of liability.
The respondent finally submitted that the applicant’s submissions make no reference to the authorities on which he relied as far as reconsideration is concerned; and as the applicant did not seek to traverse those submissions, they should be accepted.

Applicant

The applicant has provided written submissions, which I will not repeat in their entirety.
The applicant submitted that he made a claim on 1 July 2020. The respondent did not issue a “liability notice” as required by sections 78 and 79 of the 1998 Act but filed a Reply that did not seek to raise any issues but attached copies of documents filed in previous proceedings. It then sought to contend, as it did at the teleconference, that “everything is in dispute”; that by stating this, notice was given of an issue or issues in dispute; and that it has raised the reconsideration power.
The applicant submitted that the respondent’s approach is to be deplored and cannot be accepted. In respect of the issues in dispute, the applicant submitted that the respondent relies on a letter dated 13 November 2018 as raising the issues on which it seeks to rely. It is difficult to understand how the respondent can allege that a letter written before the current claim was made is valid notice of the issues it seeks to raise.
The applicant submitted that the dispute notices and any additional issues raised, when leave is granted, “set the goal posts within which the Commission has jurisdiction to quell a dispute”. The applicant submitted that no issues had been raised before the teleconference, at which “a global, all issues were in dispute, issue was raised”, but not determined by leave being granted to rely on such issues. At the conciliation/arbitration hearing, the respondent raised for the first time that it is seeking a reconsideration of Arbitrator Bell’s decision made in 2016. The respondent appealed that decision and was unsuccessful.
The applicant referred to the applicant’s submission that there was inherent unfairness in the way the appeal was dealt with, it not being subject to or reaching the $20,000 [sic] limit contained in section 353 [sic] of the 1998 Act. He submitted that it is an unfairness that affects both applicants and respondents. It is the law.
The applicant submitted that the respondent did not appeal the decision of the Presidential Member to the Court of Appeal. It did not make a reconsideration application when the intermediate proceedings, which were resolved by agreement granting the applicant significant benefits in the form of an expensive spinal fusion, were filed. The respondent now seeks to raise a reconsideration application at the “heel of the hunt”.
The applicant submitted that the issues to be dealt with are (a) does the Commission have the power and jurisdiction to even consider a reconsideration application; and (b) if so, should the Commission entertain such an application at the time it was raised? He submitted that issues that apply to the raising of fresh issues must have application.
The applicant relied on the decision in Mateus v Zodune (Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus). It submitted that the considerations referred to in that matter all militate against allowing the respondent to seek to reconsider a six year old arbitral decision, which was unsuccessfully appealed, by making such application orally on the day of the conciliation and arbitration hearing.
The applicant submitted that, if the power exists to reconsider the decision, significant issues of prejudice arise. The Commission would be re-hearing the application that was made and determined by Arbitrator Bell in 2016. The current Application contains only documents from the point of surgery onwards. The applicant would need to uplift the previous Applications, if they are not on file, and all attached documents, and consider whether they should be re-filed; consider whether any further evidence of a historical nature, including locating witnesses “and the like”, could be obtained; and effectively re-run a case that was run in 2016.

The applicant submitted that the Commission would accept that prejudice would arise in those circumstances, as there would be a significant delay. Even for a case that would be determined largely on the papers, the further an event is in the past, the larger the prospect of actual prejudice.

The applicant relied on Anshun (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589) estoppel. He referred to the decision of Member Perry in Geary v UPS Pty Ltd in Matter Number 178/21 ([2021] NSWPIC 111). The decision involved a consideration of the decision of President Judge Phillips in Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38, in which the President referred to the decision of McColl JA in Habib (Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231).

The applicant submitted that the respondent should have raised and run (in the “intermediate proceedings”) the argument it is seeking to raise in the current proceedings regarding reconsideration. It did not do so. A settlement was reached on a compromise basis whereby the respondent voluntarily agreed to pay for the surgery. The respondent is estopped from having the matter determined by way of reconsideration, as it didn’t prosecute this claim at the time the dispute regarding surgery came before the WCC.
The applicant submitted that a decision to pay for the surgery, regardless of how it is described, is an admission of injury. The respondent cannot now resile from that decision. The time to raise such issues and seek a reconsideration was when the immediately previous proceedings came before the WCC. He submitted that the time has well and truly passed.

SUMMARY

Application of section 289A of the 1998 Act

Neither counsel referred me to the respondent’s solicitors’ letter dated 9 December 2020. It was not attached to the Application, which stated that the respondent had failed to determine the claim. Both the letter dated 9 December 2020 and the letter dated 13 November 2018 were attached to the Reply. The Reply also attached a notice issued to the applicant dated 14 August 2014 (which, although it does not say so, I infer was issued pursuant to the former section 74 of the 1998 Act). I note here that some of the documents attached to the Reply bear Matter Number 001910/15. There is no evidence before me of the outcome of that matter.
At the telephone conference on 22 April 2021, the respondent relied on the notice issued pursuant to section 74 in respect of the claim in Matter Number 003480/16, stating that it “still stands”. It advised that it would request at the conciliation/arbitration hearing that I reconsider the decision of Arbitrator Bell in Matter Number 003480/16. The respondent’s submissions referred to this being raised in a “general sense” at the telephone conference. While the respondent did not specifically address the issue of whether it requires leave to raise the issue of reconsideration, in my view it requires that leave. The applicant opposes leave being granted.
Section 289A (4) of the 1998 Act provides that a dispute relating to previously unnotified matters may be dealt with if it is in the interests of justice to do so.
In Mateus, Roche DP considered the application of section 289A (4). The arbitrator had considered the following factors in the exercise of her discretion:
(a)     the degree of difficulty or complexity to which the unnotified issues give rise;
(b)     when the insurer notified that it wished to contest any unnotified issue/s;
(c)     the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)     any prejudice that may be occasioned to the worker, and
(e)     any other relevant matters arising from the particular circumstances of the case.

Roche DP expressed his agreement with, and endorsed, the arbitrator’s “general comments”. He added the following observations:
(a)     a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b)     any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c)     any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d)     in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e)     in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that was sought to be raised;
(f)      though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g)     the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion. (Emphasis in original).

In Mateus, the arbitrator noted that the issue of injury was raised at the telephone conference, although no formal application was made for the WCC to exercise its discretion under section 289A (4) of the 1998 Act. As a result of the contents of the investigator’s report, Mr Mateus had been on notice for some time that his account of the injury was in dispute. Whilst she felt that the matters relevant to the exercise of her discretion were “finely balanced”, she concluded that the interests of justice required its exercise in the employer’s favour.
The applicant’s submissions to a certain extent overlap on the issues of whether leave should be granted to the respondent to seek a reconsideration of Arbitrator Bell’s award; and whether the award should be reconsidered should leave be granted. The prejudice to which the applicant refers relates largely to the reconsideration application. I will address it under that heading.
Dealing first with whether the respondent should be granted leave to raise the issue of reconsideration, contrary to the applicant’s submission, the issue was not raised for the first time at the conciliation/arbitration hearing. It was raised at the telephone conference on 22 April 2021. The respondent’s representative advised that the respondent would request that I reconsider Arbitrator Bell’s decision.
I do not consider that the request itself that I reconsider the decision of Arbitrator Bell is difficult or complex. It is a legal issue, to be addressed by reference to the legislation and the case law. The applicant has been given the opportunity to make submissions on that issue. The question of whether reconsideration of the decision would give rise to difficulty or complexity for the applicant is a different one.

As I have noted, the respondent gave notice of its intention to seek a reconsideration of Arbitrator Bell’s decision at the telephone conference, which took place five weeks before the conciliation/arbitration hearing.
The respondent responded to the applicant’s claim for permanent impairment compensation, albeit outside the timeframe provided for by section 281 of the 1998 Act, by letter dated 9 December 2020, which referred to the previous letter dated 13 November 2018. There is no evidence before me of the date on which the applicant made the claim for weekly benefits.
The applicant has pointed to prejudice if Arbitrator Bell’s decision is reconsidered. I do not consider he has established prejudice if the issue of reconsideration itself is permitted to be raised.
The respondent has not explained its delay in advising the applicant of its intention to seek a reconsideration of Arbitrator Bell’s decision. It did give notice of this at the telephone conference. I regard this as essentially having a neutral effect on the exercise of discretion.
Roche DP held that the Commission may have regard to the merit and substance of the issue that is sought to be raised. The power to reconsider any matter is virtually unfettered by section 57(1) of the 2020 Act.
The general conduct of the respondent, apart from the issue of the request for reconsideration being raised at the telephone conference, and not in the Reply, is essentially neutral.
On balance, and not without some hesitation, I have concluded that the respondent should be granted leave to request a reconsideration of Arbitrator Bell’s award.

Application for Reconsideration

The respondent submitted that, as the applicant did not refer to the authorities on which it relies in respect of the reconsideration application, and did not seek to traverse its submissions, they should be accepted. I do not accept that submission. I am required to determine the matter on its merits and in accordance with the legislation and authorities.
The respondent has referred me to a number of authorities. They are largely summarised in Samuel, but the respondent submitted that it is important to have regard to the original decisions. These authorities were also referred to by Tobias JA in Reodica.

In Hilliger, Street CJ (who was considering a similar provision in the Landlord and Tenant (Amendment) Act 1948) said [at page 108]:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.” (Emphasis added).
Hilliger was applied in Hardaker, a Court of Appeal decision that involved section 36 of the Workers Compensation Act 1926. The Court noted that the section conferred a discretion that was in “extremely wide terms”. However, it was not so wide as to allow reconsideration of an award because counsel had failed to refer to relevant authorities or due to mistake or inadvertence by a party’s solicitor.
Hilliger was also considered in Fitzgerald, which was a decision on the application of section 17 of the Court Act. Santow JA (Hodgson JA and Ipp JA agreeing) said [at 36]:
“I turn now to s17…and the expansive discretion it confers, a discretion virtually without limit…”

In Schipp, the Court of Appeal noted the following as being relevant in deciding whether the discretion should be exercised:
(a)     delay;
(b)     whether the worker had a right of appeal from the first decision but failed to exercise that right;
(c)     waiver or estoppel issues, and
(d)     rescinding an earlier award will allow a worker to bring fresh proceedings.

In Reodica, Tobias JA (Mason P and Handley JA agreeing) referred to the authorities. He said [at 30]:
“It is well established that s 17(4) of the Court Act confers a discretionary authority upon the Compensation Court itself to review, and correct, errors of both fact and law…The width of the subsection was described by Owen and Walsh JJ in Hardaker (at 249) in the following terms:
‘Such reconsideration was not necessarily limited to an examination of changed circumstances or fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error had been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appeared to require’.”
Samuel involved consideration of section 350(3) of the 1998 Act, but its wording was virtually identical to section 57(1) of the 2020 Act. In turn Roche ADP noted that the wording of sections 350(2) and 350(3) were almost identical to the wording of sections 17(3) and 17(4) of the Court Act.
It should be borne in mind that, when Samuel was decided, section 352(5) of the 1998 Act provided that an appeal against the decision of an arbitrator was by way of review of the decision appealed against, hence ADP Roche’s comments in paragraph 83 (f) below. From 1 February 2011, an appeal against a decision of an arbitrator (or member) is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.
In Samuel, Roche ADP, after considering the authorities and section 350(3) of the 1998 Act, concluded that the following principles applied to reconsideration applications under that section:
(a)     the section gives the Commission a wide discretion to reconsider its previous decisions;
(b)     the word “decision” in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(c)     whilst the discretion is a wide one, it must be exercised fairly, with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration;
(d)     one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely;
(e)     reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first arbitration is later obtained and that new evidence, if it had been put before an arbitrator at the first hearing, would have been likely to lead to a different result (Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642);
(f)      given the broad power of “review” in section 352 (which was not universally available in the Compensation Court) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by arbitrators;
(g)     depending on the facts of the particular case, the principles in Anshun may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
(h)     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 (Hurst)), and
(i)      the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and section 354(3) of the 1998 Act (which has now been repealed)).
Samuel was referred to with approval in Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp NSW). After referring to [38] – [55] of Samuel, Harrison AsJ said:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).” (at [56]).
Hurst was distinguished by Roche DP in Tedeschi. The appellant (the respondent in the proceedings before the arbitrator) sought reconsideration of the arbitrator’s decision to refuse to set aside consent orders that had been settled on terms that went outside the authority of counsel for the appellant.
In Tedeschi, Roche DP said that, in relying on the decision in Hurst, the arbitrator failed to have regard to the context in which it was held in Hurst that a mistake or oversight by a legal adviser would not give rise to a ground for reconsideration. The issue in Hurst was not one concerning a settlement that went beyond counsel’s instructions. Rather, it concerned a failure in the preparation and presentation of a case, and a lengthy delay in bringing subsequent proceedings.

Roche DP referred to the decision of the Court of Appeal in Steggles Pty Ltd v Sorcevski, NSWCA, No 40693/91, 29 July 1994, unreported. That case involved a worker who was successful in having Burke CCJ take the “extraordinary step” of the rescission of a prior award that redeemed the employer’s liability for payment of compensation. The worker had agreed to redeem her rights to compensation for injury to her arms and neck, but not those in respect of any injury she may have suffered to her back. Without her knowledge and consent, her back injury was included in the Short Minutes of Order, which were signed by counsel.
Roche DP held that, in the exceptional circumstances of Tedeschi, it was in the interests of justice that the consent orders be set aside (save as to costs).
The respondent’s reason for seeking reconsideration of Arbitrator Bell’s decision is largely based on its contention that it was denied the opportunity to appeal against that decision because the thresholds required by section 352(3) of the 1998 Act were not satisfied. It submitted that it was incorrect to categorise the appeal as unsuccessful, as leave to appeal was refused. It therefore submitted that the appeal has not been determined. It does not seek to rely on any evidence that was not before Arbitrator Bell when he made his decision.
I do not accept that the appeal has not been determined. Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both - -
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
Section 352(3) provides for mandatory preconditions to an appeal. There is no provision for a Presidential Member to grant leave to appeal in circumstances where those conditions are not met.
Snell DP held that the monetary thresholds in section 352(3) of the 1998 Act had not been met and there was no right of appeal. The respondent (the appellant in that matter) was entitled to appeal against Snell DP’s decision to the Court of Appeal, pursuant to section 353 of the 1998 Act. Section 353(5) provides that, in section 353, “decision” includes an award, interim award, order, determination, ruling, opinion and direction. The respondent did not appeal. The rights of the parties were therefore determined.
The respondent also did not request that Snell DP reconsider his decision, as it later did in Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61. In that matter, O’Grady DP refused the application for reconsideration of his decision in Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35.
The decision of Snell DP was followed by President Judge Keating in Popovic v Liverpool City Council [2017] NSWWCCPD 49 (Popovic). The appellant in that matter was the worker. His honour decided that the monetary thresholds in section 352(3) of the 1998 Act had not been met and there was no right of appeal.
Wood DP distinguished the decisions of Snell DP and President Keating in the matter of Seif v Secretary, Department of Family and Community Services [2020] NSWWCCPD 6, as she allowed the appellant to adduce additional evidence that allowed him to meet the thresholds in section 352(3) of the 1998 Act. He would otherwise have had no right of appeal.
I have considered the respondent’s request for reconsideration of Arbitrator Bell’s decision; and the application is refused.
As Street CJ said in Hilliger, it is important to keep in mind the distinction between the existence of a power and the occasion of its exercise.
ADP Roche held in Samuel that while the discretion to reconsider a decision is a wide one, it must be exercised fairly, with regard to relevant considerations, including any delay in bringing the application.
Arbitrator Bell determined the matter on 12 December 2016. When Snell DP determined the appeal from his decision, the respondent did not seek a reconsideration of that decision. When the applicant made a claim for the cost of surgery (which I assume was in or about 2018), the respondent did not seek a reconsideration of Arbitrator Bell’s or Snell DP’s decision. That claim was resolved by agreement on 3 April 2019. The respondent did not request reconsideration of the decision of either Arbitrator Bell or Snell DP when the applicant made his claim for permanent impairment compensation on 1 July 2020, although it disputed the claim.
One of the matters to be considered in deciding whether to exercise the discretion in favour of the respondent is the public interest that litigation should not proceed indefinitely. Of course, a worker’s entitlement to various forms of compensation may arise at different times during the life of the claim, and it may be necessary for the worker to litigate to obtain that compensation. However, the applicant should not be required to re-litigate matters such as whether he has sustained injury within the meaning of the legislation, over four years after it was determined in his favour.
Reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first hearing is later obtained, and that new evidence, had it been before the arbitrator, would have been likely to lead to a different result.
The respondent does not seek to rely on any new evidence, let alone evidence that, had it been put before either Arbitrator Bell or Snell DP, would have been likely to lead to a different result. The evidence relied on by the respondent consists of the evidence it relied on in the previous proceedings, although not all of that evidence appears to be attached to the Reply. Arbitrator Bell considered the evidence and determined the dispute based on that evidence.
The applicant submitted that an Anshun estoppel arises with respect to the respondent’s conduct in Matter Number 249/19.
The majority in Anshun considered that in the circumstances of that case they:
“would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances…why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.” (at [37]).
The respondent relied on the same defence in the original proceedings before Arbitrator Bell and those in Matter Number 249/19 as it seeks to rely on in these proceedings. I therefore do not accept that an Anshun estoppel applies.
The discretion to reconsider a decision must be exercised fairly. There would be substantial prejudice to the applicant should the decision of Arbitrator Bell be reconsidered, for the reasons above.
The respondent is granted leave, pursuant to section 289A (4) of the 1998 Act, to request a reconsideration of the decision of Arbitrator Bell in Matter Number 003480/16.
The application for reconsideration is refused.
The matter is to be listed for telephone conference to make orders as to its future conduct.
The orders are set out in the Certificate of Determination.

[2021] NSWPIC 257

21 July 2021