Haddad v The GEO Group Australia Pty Ltd
[2022] NSWPICPD 23
•28 June 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23 |
APPELLANT: | Tony Haddad |
RESPONDENT: | The GEO Group Australia Pty Ltd |
INSURER: | AAI Limited t/as GIO |
FILE NUMBER: | A1-W2285/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 28 June 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination of 2 November 2021 is revoked. 2. The injury details in the Application to Resolve a Dispute of 10 June 2021 are amended to plead: “In the course of the applicant’s employment with the respondent from 1998 to 2001 the applicant was exposed to a number of traumatic events and incidents which caused him to sustain a psychological injury in the form of PTSD and a depressive condition. At all material times he was employed as an immigration detention centre officer by the respondent. The traumatic events and incidents included incidents of detainees committing self-harm, being required to forcibly extract – extricate detainees, capturing escapees, coming into contact with detainees’ blood and having threats made to his safety. The applicant sustained injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987. 3. The matter is remitted to another Member for determination. 4. The matter is to be listed for preliminary conference before that Member to issue directions as required to enable the respondent to respond to the amended Application to Resolve a Dispute and as required for the determination of the matter. |
CATCHWORDS: | WORKERS COMPENSATION – application to amend the Application to Resolve a Dispute – whether leave should have been refused – exercise of discretion on the leave application – taking into account irrelevant factors – error found– re-exercise of the discretion to determine an application for leave to amend the Application to Resolve a Dispute |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Acorn Lawyers | |
| Respondent: | |
| Mr P Barnes, counsel | |
| Moray & Agnew Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms C McDonald |
DATE OF MEMBER’S DECISION: | 2 November 2021 |
INTRODUCTION
The appeal is from a determination by Member McDonald on 2 November 2021 refusing an application to amend the Application to Resolve a Dispute (ARD).
Mr Haddad, the appellant, was employed by The GEO Group Australia Pty Limited, the respondent, for a between 3 August 1998 to 31 January 2001.
In the ARD dated 10 June 2021 the appellant claimed weekly benefits from 17 February 2017 and medical expenses.
Under the heading “Injury Details – 3/08/1998” the ARD alleged the following:
“Type of Injury: Personal
Date of Injury: 3/08/1998 to 31/01/2001
Date of Compensation Claim: 1/06/2017
Place of Injury: Villawood Detention Centre
Injury Description/Cause of Injury and Death: PTSD and major depression”.
At the hearing the appellant applied to make two amendments, firstly, to delete the claim for weekly payments of compensation; secondly, to amend the particulars of injury.
The first amendment deleting the claim for weekly compensation was not opposed and the Member made an order accordingly.[1]
[1] Transcript of arbitration hearing, 2 November 2021, (T), T 22.7–10.
The second amendment with respect to the particulars of injury was opposed and the Member declined to grant the application.
The appellant applied for an adjournment, which was opposed by the respondent. The Member, having been informed of the intention to appeal, granted the adjournment for that purpose. She directed that the revised hearing date should be vacated if the appeal was filed. The appeal having been filed, the arbitration date was vacated.
The particularised claim for s 60 expenses is substantial, according to the respondent’s counsel amounting to just under $50,000.[2]
[2] T 17.27.
One difficulty with the present matter is the appellant’s failure to comply with the Personal Injury Commission Rules 2021 (the Rules) with respect to amendments. Rule 19 of the Rules provides as follows:
“19 Leave to amend documents
(1) The Commission may, on the application of a party to applicable proceedings, give the party leave to amend a document lodged by the party in the proceedings if the Commission considers the amendment to be necessary to avoid an injustice.
(2) However, the Commission must not give leave to amend a document if the amendment would have the effect of substantially altering the parties to the proceedings unless the Commission considers the amendment to be necessary in the interests of justice.
(3) An amendment may be made during the proceedings, including after the commencement or purported commencement of the proceedings, and on any terms the Commission thinks fit.
(4) This rule does not apply to the amendment of information or a document that is required to be lodged by rule 67.”
Rule 20 relevantly provides:
“20 Amendment of documents
(1) An application by a party to applicable proceedings for leave to amend a document lodged by the party must be in writing and fully set out the grounds for the application.
(2) The party seeking the amendment must lodge and serve the application on the other parties.
(3) …”.
Rule 21 provides:
“21 Minor or agreed amendments of documents
(1) This rule applies if the amendment of a document in Commission proceedings for which leave is sought is—
(a) of a minor nature and will not have a substantive effect on the case to be put by any party, or
(b) consented to by all parties to the proceedings.
(2) If the application for leave is made before the Commission is constituted to deal with the proceedings, the President may grant leave even though the party applying has not complied with rule 20.
(3) If the application for leave is made after the Commission is constituted to deal with the proceedings, the Commission as constituted may grant leave even though the party applying has not complied with rule 20.
(4) To avoid doubt, the requirements of rule 20 continue to apply to leave granted in accordance with this rule.”
The Commission has a general power under r 6 to dispense with the requirements of any particular rule.
I draw attention to these rules because it seems to me that the Member was confronted with an inchoate and I must say confusing application to amend the ARD. This is revealed by her efforts to articulate precisely what the appellant was proposing for the amendment.[3] If rr 19–21 inclusive had been complied with, everyone, including the Member, would have had a much better understanding of what amendments were proposed and with what consequence(s).
[3] See T 21.
Each of the parties has provided comprehensive submissions on the application for leave to appeal and on the substantive grounds of appeal. I have found these of substantial assistance. I paraphrase the submissions to extract what seem to be the essential contentions of the parties.
THE MEMBER’S REASONS
The proposed amendment was not reduced to writing as required by rule 19.
The Member recorded the proposed amendment as follows:
“In the course of the [appellant’s] employment with the respondent from 1998 to 2001 the [appellant] was exposed to a number of traumatic events and incidents which caused him to sustain a psychological injury in the form of PTSD and a depressive condition. At all material times he was employed as an immigration detention centre officer by the respondent. The traumatic events and incidents included incidents of detainees committing self-harm, being required to forcibly extract – extricate detainees, capturing escapees, coming into contact with detainees’ blood and having threats made to his safety. The [appellant] sustained injury pursuant to s 4(b)(i) of [the Workers Compensation Act 1987 (the 1987 Act)].”[4]
[4] T 21.6–28.
The Member noted that the Commission had power to grant an amendment in appropriate circumstances.[5]
[5] T 22.5.
The Member said:
“While the guiding principles require that the proceedings be dealt with justly, quickly and cost-effectively, the justice to be applied is to both parties, not merely to the [appellant]. The suggestion that Mr Haddad would be punished should the amendment not be made is not one which I can accept. If there is a delay in bringing any further proceedings in the Commission, that delay will not be great on the Commission’s part.”[6]
[6] T 22.23–30.
The Member, referring to the respondent’s notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 7 July 2021 said:
“It is clear that the respondent had asked the question as to whether the injury was pleaded as a disease but, until today, that matter was not made clear.
The letter dated 4 August 2021 merely said, on that issue, the deemed date of injury box in the ARD should have been ticked to reflect the [appellant’s] last date of active employment with the respondent on or about 31 January 2001. That is quite a different matter to setting out that the injury was said to be a disease injury. I also note that the letter dated 4 August was written before the September telephone conference but not made available or disclosed at that telephone conference.”[7]
[7] T 23.9–21.
The Member said that the effect of an injury being said to have a “deemed date” has two possible consequences: if the injury claimed is one caused by the “nature and conditions” of employment, then the relevant test would be whether the employment was a substantial contributing factor to the injury; if the injury is a “disease” the relevant enquiry is whether the employment was the main contributing factor to that disease.
She said that the latter was a different enquiry and “the respondent was entitled to be able to make that enquiry to respond to the claim, even if it had raised the question of whether or not the injury was a disease. It is a different case which has to be met and I accept that the respondent may not be in a position to meet it.”[8]
[8] T 24.1–6.
The Member observed the appellant’s statements were “exceptionally brief with respect to the circumstances of the injury, taking only two paragraphs in the statement dated 7 June 2021 to which is appended a timeline of events and a claim form from the claim that was made under the Comcare system in respect of a different injury.”[9]
[9] T 24.10–17.
The Member concluded:
“In all of the circumstances and taking the evidence which is sought to be relied on into account, it seems to me that to permit this amendment would expose the respondent to unacceptable prejudice and I decline to grant the amendment.”[10]
[10] T 24.24–29.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(3A) AND (5)
The decision to decline to allow the amendment is interlocutory.
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except 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.”
If leave is granted, the jurisdiction exercised is provided by s 352(5) of the 1998 Act in the following terms:
“An appeal under this section 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.”
A decision to grant or refuse an amendment to the ARD is discretionary and is furthermore a matter of practice and procedure. The law permits interference with a discretionary judgement in only limited circumstances, namely: where the decision maker has committed an error of legal principle, or material fact, has taken into account an irrelevant matter, or failed to take into account or gave insufficient weight to, a relevant matter or has arrived at a result so unreasonable or unjust as to suggest that one of the previous categories of error has occurred even though the error does not explicitly appear on the face of the reasoning.[11]
[11] Micallef v ICI Australia Operations Pty Limted & Anor [2001] NSWCA 274 [45]
ON THE PAPERS
The parties submit the appeal can be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“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 and enabling legislation without holding any conference or formal hearing.”
In addition, Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined ‘on the papers’ without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed ‘on the papers’ without holding any conference or formal hearing.
THRESHOLD MATTERS
The appellant asserts that the monetary threshold stipulated by s 352(3) of the 1998 Act is satisfied. The respondent agrees that the appeal satisfies the monetary threshold.
The appellant submits that the appeal was lodged on 30 November 2021, the decision having been given on 2 November 2021, s 352(4) of the 1998 Act, imposing a 28-day time limit, is thereby satisfied.
INTERLOCUTORY DECISION, SECTION 352(3A) OF THE 1998 ACT
Appellant’s submissions in support of leave
The appellant submits that the decision to decline the appellant’s application to amend the nature of the injury has prevented the appellant’s dispute being properly and effectively determined.
In not permitting the amendment, the appellant was precluded from ventilating the true claim which he wished to make.
The absence of the amendment meant the appellant would “ventilate the dispute on the basis of an injury type that was not consistent with the evidence”.[12]
[12] Appellant’s submissions, [8].
The appellant did not seek to adduce additional evidence and the amendment was consistent with the evidence that the respondent was privy to and had considered.
Furthermore, the proper and effective determination of the dispute required that leave to appeal be granted so as to avoid unnecessary cost and delay being occasioned by having the matter ventilated in the Commission on the basis that the appellant had sustained a “personal injury” where the evidence was to the contrary. The alternative was for the ARD to be discontinued thereby requiring the appellant to bring a further proceeding to deal with matters that could be addressed in the present proceedings if leave is granted and the appeal succeeds.
The appellant concludes the submission in support of a grant of leave with the submission that it is likely to be “more timely and cost effective, and consistent with the objectives in s 3 of the 1998 Act of providing a … system that is fair, affordable and financially viable” if leave is granted.
Respondent’s submissions
The respondent submits the amendment was not limited to amending the nature of the injury from “personal injury” to a “disease injury”, rather it was an application for leave to amend the date of injury pleaded as well as the factual incidents that were allegedly causative of the injury.
The respondent submits:
“The amendment sought materially alters the issues at hand, including the relevant legal test on causation which must be satisfied in order to establish injury. In that regard, a 19 January 2021 deemed date of injury would attract the ‘main contributing factor’ test of causation.”[13]
[13] Respondent’s submissions, [12].
The respondent does not accept that the appellant was left without remedy following the refusal to grant the amendment:
“Following the decision of the Member, the [a]ppellant had the following options:
(a) continue with the proceedings in the form as they are pleaded, or
(b) discontinue the claim and retain the right to bring further proceedings in the Commission.”[14]
[14] Respondent’s submissions, [14].
The respondent correctly notes that those options remain available to the appellant.
The respondent refers to the decision of Maruf v Target Australia Pty Limited[15] where Keating P declined to grant leave to appeal an interlocutory decision because the successful appeal would result in the dispute merely being remitted to another Arbitrator to determine. The then President emphasised that the worker was not prejudiced as he retained the right to recommence proceedings without penalty upon lodgement of a fresh application. On this basis, the respondent submits that there is no prejudice to the appellant in the manner that he has described.
[15] [2016] NSWWCCPD 12 (Maruf).
The respondent further submits that justice is to be applied to both parties, not merely the appellant.
The proposed amendment if permitted would require the respondent to meet a different case to that which was put until that time. The respondent had not had the opportunity to investigate and formulate its position with respect to the “new” case. To allow the amendment to the pleadings would have resulted in significant prejudice to the respondent.
Regardless of the specifics of what may have taken place in the teleconference(s) it is ultimately for the appellant to bring his case. The respondent submits it was proactive in its attempt to raise issues it foresaw with the pleadings, although it is not for the respondent to make the appellant’s case for him.
Although the Commission is not a court of strict pleading, nevertheless there remains an obligation on the appellant to make clear the nature of the claim being brought and the particulars of the claim.
The respondent submits that it had not been given fair notice of the case either through the pleadings or the material supplied by the appellant over the course of the proceedings.
The respondent cites University of New South Wales v Labit[16] at [25]. It contrasts the present matter with that case, submitting:
“the amendment sought extends much further than merely ticking the ‘deemed date’ box. The proposed amendment includes the clarification of the events alleged to be causative of the incident, suggests a deemed date of 19 January 2021, has not been suggested at any stage prior to the date of the [c]onciliation and [a]rbitration hearing and inserts a clarification of the relevant section of the 1987 Act under which injury is claimed. In the [r]espondent’s submission, the amendment sought in the present case alters far more about the pleaded case than in Labit.”[17]
[16] [2021] NSWPICPD 32 (Labit).
[17] Respondent’s submissions, [34].
The respondent notes that the Member accepted that the amendment would reveal a different case and that the respondent may not be in a position to meet it.
The respondent complains that no attempt was made to amend the pleadings prior to the conciliation/arbitration or even give notice of an intention to do so. Furthermore, the appellant could discontinue the proceedings and refile with amended pleadings.
As to prejudice, the respondent submits that by attempting to alter the deemed date of injury to 19 January 2021, the appellant, through his legal representatives, sought to avoid his obligations to comply with the notice time provisions imposed by ss 254 and 261 of the 1998 Act. These provisions were clearly raised by the respondent in the s 78 notice as the date of injury claimed and pleaded by the worker was 1 June 2017.
The respondent submits that to allow the amendment would present unacceptable prejudice to it and that “the ‘proper and effective’ determination of the dispute must be a standard that applies to both parties not the [a]ppellant alone.”[18]
[18] Respondent’s submissions, [48].
Appellant’s submissions in reply to the submissions on the interlocutory determination
The appellant submits that the prospect of being able to discontinue the claim was not a remedy because “it would be unfair for the [a]ppellant, and workers generally, to not allow appeals of interlocutory matters on the basis that he/she can discontinue proceedings. Viewing the matter in this fashion would mean that the terms of the statute are ignored and the fact that there is provision in the legislation for appeals of interlocutory decisions to be made are also ignored.”[19]
[19] Appellant’s submission in reply, [10].
The appellant submits that he is merely attempting to exercise a right conferred by the statute to appeal.
The appellant says:
“The question is not whether the [a]ppellant can discontinue the claim and lodge a further Application to Resolve a Dispute. The question is whether the appeal is necessary or desirable for the proper and effective determination of the dispute and it is the specific dispute that ought to be considered not future proceedings.”[20]
[20] Appellant’s submission in reply, [14].
Consideration
For the reasons that follow I grant leave to appeal the interlocutory decision.
I do not accept that there is any prejudice to the respondent in circumstances where the respondent concedes the appellant could discontinue the claim and bring the amended claim.[21]
[21] Respondent’s submissions, [14]–[15], [17].
Maruf, where the ARD was struck out for want of prosecution, is different from the present matter. There the President declined to reinstate a “struck out” proceeding. But in the context, to reinstate proceedings was otiose because reinstated proceedings would be in exactly the same terms as freshly commenced proceedings.
In the present matter, the interlocutory decision is not futile or pointless. If leave is granted and the appeal succeeds, the amended proceedings before the Commission would remain on foot, and the appellant would be permitted to advance his case on the basis of the amended ARD.
The appellant and the respondent are both disadvantaged in the sense that both parties are put to expense and inconvenience in having to prepare a fresh ARD and Reply.
For reasons explained later, the Member’s decision is in my view in error.
Although the matter is one of practice and procedure in respect of which it is undesirable to encourage appeals, and although no great hardship or injustice will result from a decision not to grant leave, I am satisfied that the matter is one in which the grant of leave and determination of the appeal is both necessary and desirable for the proper and effective determination of the parties’ dispute.
Pursuant to s 352(3A) of the 1998 Act, I grant leave to appeal the decision of the Member of 2 November 2021.
GROUNDS OF APPEAL
The appellant relies upon the following grounds of appeal:
(a) the Member committed an error of law and/or discretion by failing to allow the appellant to amend his claim (Ground One);
(b) the Member committed an error of law and discretion by indicating that there were two possible consequences of having a deemed date of injury and that the respondent may not be in a position to meet the case sought by way of the amendment (Ground Two);
(c) the Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with submissions made on his behalf (Ground Three);
(d) the Member committed an error of discretion by finding the appellant was not prejudiced if the amendment application was not allowed (Ground Four);
(e) the Member committed an error of discretion by failing to take into account or give sufficient weight to the medical evidence in the matter (Ground Five), and
(f) the Member committed an error of discretion by deciding that to permit the amendment sought would expose the respondent to “unacceptable prejudice” (Ground Six).
Ground One: The Member committed an error of law and/or discretion by failing to permit the appellant to amend the claim
Appellant’s submissions
The appellant cites previous authority that the Workers Compensation Commission was not a court and was not a tribunal in which it was necessary or desirable to rely on strict pleadings to define the issues between the parties. The issues between the parties may be determined having regard to the material attached to the ARD.
Relying on this line of authority, the appellant submits that the Member’s conclusion at T 23.10 “that the respondent had asked the question as to whether the injury was pleaded as a disease but, until today, that matter was not made clear” overlooked the fact that the “entirety of the evidence lodged with the Commission indicated that the [a]ppellant sustained a disease injury and not injury pursuant to s 4(a) of the 1987 Act”.[22]
[22] Appellant’s submissions, [53].
The appellant submits that the respondent was amply furnished with notice from the filed evidence, and that this was demonstrated by the terms of the s 78 notice. Furthermore, the appellant notes that there had been two telephone conferences in respect of which the respondent had not raised the issue of injury.
The appellant complains that the Member did not address the medical evidence but only made explicit and express reference to the statement evidence.
The appellant’s submission is:
“Prima facie, having regard to the totality of the evidence before the Commission, it was clear that the [a]ppellant’s claim with respect to injury was that he had sustained an injury pursuant to the disease provisions. The [a]ppellant submits that, as stated by Snell DP in Labit, ‘The contrary view would involve a wilful misreading of the material’.”[23]
[23] Appellant’s submissions, [70].
The appellant submits that the Member was in error in her consideration of the consequences of allowing the amendment with respect to the deemed date of injury.
The appellant submits that he did not allege that his injury was due to a series of traumata or micro traumata and that the Member made an error of law or error of legal principle “because the effect of ticking the box indicating the date of injury was a deemed date of injury, or stating that this box should have been ticked, was that the nature of injury was a disease injury.”[24]
[24] Appellant’s submissions, [80].
The appellant’s point, as I take it from paragraphs [81] and [82] of his submissions, was that the consequence of ticking that box was to be determined by reference to the statutory provisions, ss 15 and 16 of the 1987 Act. In other words, to the extent there was ambiguity, that was generated by the terms of the 1987 Act. Furthermore, any ambiguity was resolved by the express reliance on s 15 of the 1987 Act.
In support of this submission the appellant relies upon Ky v Blue Leaf Food Group Pty Limited.[25]
[25] [2016] NSWWCCPD 55.
The appellant concludes his submission:
“the Member erred because she arrived at a result so unreasonable or unjust as to suggest that one of the categories of error listed by Heydon JA in [Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274] at [45] … had occurred.
The Member not only overlooked various factual matters, but she also reached her conclusion on the basis of an error involving legal principles.”[26]
[26] Appellant’s submissions, [90]–[91].
Respondent’s submissions
The respondent distinguishes Labit on the basis that the amendment sought is far more extensive in the present claim. The amendment to the details of the injury as well as a change of the actual date of injury was not previously notified. It is submitted that “the present case is not one where the entirety of the evidence suggested, or ought to have suggested, to all parties that the nature of the claim was one of a disease that carried a deemed date of injury of 19 January 2021.”[27]
[27] Respondent’s submissions, [63].
Contrary to the appellant’s submission, the case is not one where the respondent has engaged in a “wilful misreading” of the material in order to reach any other conclusion than that which is contained in the terms of the amendment.
The respondent disputes any constructive knowledge and says that the appellant had “extensive time to clarify the pleadings ahead of the [c]onciliation/[a]rbitration which have been raised appropriately by the [r]espondent in the letter and section 78 notice dated 4 July 2021 and in both [t]eleconferences.”
It is furthermore submitted that while the Member referred specifically to the appellant’s statements, the fact that she had not specifically referred to the entirety of the documentation before her when making the decision is not sufficient to support a submission that “wilful misreading” of the material had occurred.
Dealing with the second argument advanced by the appellant relating to the conclusion drawn by the Member with respect to the ticking of the deemed date box, the respondent says:
“… the Member’s comments with regard to the ‘deemed date’ box and ‘nature and conditions’ style claims as opposed to disease injury claims were raised to highlight the conclusions that were before the [r]espondent prior to the Arbitration at which section 15 of the 1987 Act was first adopted by the [a]ppellant. The comments were made to illustrate the prejudice that faced the [r]espondent in having to respond to the amendment on the date of the [a]rbitration, as it was not the only conclusion as to the pleading of injury open to the [r]espondent prior to the seeking of the amendment.”[28] (emphasis in original)
[28] Respondent’s submissions, [73].
The respondent submits that there is no error of law and/or discretion made out.
Appellant’s submissions in reply
The appellant submits that the respondent’s submissions fail to address the substantial component of the appellant’s appeal, namely, that the amendment of the pleadings was consistent with the evidence.
The appellant canvasses further the correspondence between the parties and reasserts that the evidence provided adequate notice of the claim to be made.
The appellant disputes the factual distinctions sought to be drawn between this matter and Labit.
The appellant submits that when the amendment was sought to be made the relevant causative events ranged between 1998 and 2001 and that “it is not clear how the [r]espondent was caught by surprise, or unprepared, by the deemed date of injury being the date of the claim as, pursuant [to] s 15 of the 1987 Act, that is what the correct deemed date of injury is.”[29]
[29] Appellant’s submissions in reply, [40].
The appellant submits in reply:
“When one reads the entirety of the evidence, there has been no attempt made by the [r]espondent to support that submissions [sic] by referring to the evidence. Furthermore, the [r]espondent has not attempted to support its submissions by reference to the letter of claim and the legislation, nor has it sought to refer to any authority that would indicate that the deemed date of injury, as indicated by the [a]ppellant, was wrong.”[30]
[30] Appellant’s submissions in reply, [58].
The appellant’s further submissions in reply, with respect, seem to repeat the submissions in chief.
Consideration
Ground One of the appeal does not in its terms identify the error said to have occurred. The ground of appeal as formulated challenges the Member’s determination without identifying any particular error of law, fact or discretion.
Having regard to the submissions, it appears to me that the appellant’s challenges are:
(a) to an incorrect conclusion by the Member that the appellant had failed to make clear that the injury pleaded was a disease injury at any time before the application to amend was made,[31]
(b) the Member erred in her conclusion that having ticked the deemed date of injury box the consequence was that “the injury was a nature and conditions type of injury or a disease injury”.[32]
[31] Appellant’s submissions, [52].
[32] Appellant’s submissions, [77].
For the reasons that follow, in my view the appellant has not made out the challenge at paragraph [52] of his submissions with respect to notice; but has established error on the part of the Member with respect to the Member’s incorrect conclusion as to the significance of the deemed date of injury.
The Member took into account an irrelevant matter when she directed her attention to the fact that a deemed date of injury had two possible consequences bearing upon the relevant test.[33]
[33] T 23.25.
That in my view was in error for two reasons:
(a) the appellant is correct that ss 15 and 16 are premised and preconditioned on the notion of disease as determined by reference to s 4 of the 1987 Act. In other words, by identifying a deemed date of injury for the purpose of s 15 the premise was that there was a disease injury as defined by s 4, and
(b) what the deemed date of injury could not do was generate an injury in the form of traumata or personal injury within the meaning of s 4(a). Contrary to the Member’s statement, the effect of identifying a deemed date of injury in the present matter was not to have two possible legal consequences.[34] The proposed amendment did not generate the ambiguity with which the Member seems to have been concerned.
[34] T 23.24.
In my view, counsel for the appellant made the same point at T 14.3–22.
The proposed amendment did not generate the ambiguity which concerned the Member and she misdirected herself when she relied on that conclusion to refuse the proposed amendment. The consequence is that the discretion to refuse the amendment miscarried.[35]
[35] House v R [1936] HCA 40; (19360 55 CLR 499 Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274 at [45]
In my view, Ground One of the appeal is made out and the Member’s discretion miscarried. I intend at the conclusion of the discussion concerning each ground of appeal to re-exercise the discretion.
Ground Two: The Member committed an error of law and discretion by indicating that there were two possible consequences of having a deemed date of injury and that the respondent may not be in a position to meet the case sought to be made by way of the amendment
Appellant’s submissions
The appellant submits that that finding was erroneous in point of law because the Member thereby took into account an irrelevant matter.
The appellant submits furthermore that there was a material error of fact because the respondent had met the allegation in the dispute notice.
Respondent’s submissions
The respondent submits that the fact that the respondent raised a dispute under s 4(b) of the 1987 Act in the alternative in its s 78 notice does not mean that it was in a position to meet the claim after the amendment.
The respondent submits that the argument put forth by the appellant fails to consider the totality of the s 78 notice referred to along with the covering letter with which it was served. It submits that it is wrong to conclude from the s 78 notice that the respondent was able to meet a disease type claim, because significant information was missing on the face of the ARD and all the s 78 notice and the correspondence sought was clarification from the appellant. A request for clarification of an existing ARD did not mean the respondent was holding itself out as being able to meet a claim pursuant to the disease provisions, particularly in circumstances where it specifically drew attention to the issues relevant to determination of the claim.
Consideration
For the reasons indicated above, in my view, the Member was in error in her conclusions with respect to the effect of the proposed amendment.
Furthermore, it is plain from the respondent’s submission that the real complaint is not as to the amendment but its inability to meet the amendment on 2 November 2021. But that complaint in effect of prejudice could have been easily met by granting the respondent an adjournment to obtain material to meet the amendment.
There was simply no basis upon which to conclude that the proposed amendment should not have been allowed because the respondent had not had an opportunity to investigate the consequence of the amendment. The appellant could not have resisted an application by the respondent to adjourn the proceedings to enable the respondent to put itself in a position to meet the claim. There was no convincing argument advanced as to why that obvious remedy to any prejudice the respondent might have sustained could not have been adopted as a consequence of the amendment being allowed.
In my view Ground Two of the appeal is made out.
Ground Three: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with submissions made on his behalf
Appellant’s submissions
The appellant submits that the Member failed to deal with his submissions on prejudice, namely, that the application “sought to address a technicality and the substance of the claim” and that the appellant would be punished in circumstances where the issues sought to be addressed by way of the amendment application was not of his doing as a lay person.
The appellant expands this in paragraphs [112] and [113]:
“112. The focus of the submissions made were on the prejudice created in the subject proceedings themselves if the application was not granted i.e. the [a]ppellant would be prevented from having his claim ventilated on the basis of the evidence that had already been lodged and the reason for this could not attributed to him.
113. Consistently, the Member only considered the submissions with respect to the [a]ppellant being punished from the point of view of delay occasioned by further proceedings and she did not consider the submissions made that the [a]ppellant would be prejudiced by the fact that his claim would not be ventilated at the [a]rbitration hearing itself.”
The appellant complained that the Member did not engage with the submission that the amendments sought were consistent with the evidence both lay and medical.
Respondent’s submissions
The respondent submits that the Member was able to consider the prejudicial elements of a claim in their totality. It submits that it was open to the Member to conclude that the relative prejudice to the worker was mitigated by his ability to refile proceedings at any time should he be unable to proceed on the basis of the pleadings. The respondent refers to Maruf (discussed above).
Consideration
In my view it is simply not correct to assert as the appellant asserts that the Member failed to understand that the prejudice claimed by the appellant was the inability to articulate the claim he wished to make on the basis of the evidence.
The Member said at page 24:
“I note also that Mr Adhikary says that the evidence on which the claim is based is set out in both Mr Haddad’s statement and in the totality of the medical evidence. I note, as I did in the course of argument, that those statements are exceptionally brief with respect to the circumstances of the injury, taking only two paragraphs in the statement dated 7 June 2021 to which is appended a timeline of events and a claim form from the claim was made under the Comcare system in respect of a different injury.
Some other statements were supplied … In all of the circumstances and taking the evidence which is sought to be relied on into account, it seems to me that to permit the amendment would expose the respondent to unacceptable prejudice …”.
Furthermore, to describe the non-allowance of the proposed amendment as “punishment” of the appellant is, with respect, inapt and inappropriate. The Member was correct to reject the suggestion that in not allowing the proposed amendment Mr Haddad was being punished. The Member was required to exercise the jurisdiction given by the Commission on the merits of the case as she saw them. It was not a question of punishing the appellant or, for that matter, the respondent.
In my view, Ground Three of the appeal is not made out. I am satisfied that the Member addressed the evidence and the submissions made.
Ground Four: The Member committed error of discretion by finding the appellant was not prejudiced if the amendment application was not allowed
Appellant’s submissions
The appellant submits that the fact that he could discontinue proceedings and bring further proceedings in the future was irrelevant because they did not cover the factual matrix within which the application was made and this consideration ignored the matters addressed above, including the fact that the amendment reflected the evidence.
The ability of the worker to discontinue proceedings, so the appellant submits, is not a relevant consideration.
Respondent’s submissions
The respondent submits that Ground Four of the appeal appears to be an extension of the other grounds specifically taking issue with the Member’s comments regarding the ability of the appellant to discontinue the claim.
The respondent submits that the Member is able to consider the prejudicial elements of the claim in their totality. It was open to the Member to conclude that the relative prejudice to the worker is mitigated by the ability to refile proceedings at any time.
Consideration
The fact that the proceedings could be discontinued and recommenced without penalty is an irrelevant consideration with respect to the proposed amendment.
Furthermore, if proceedings incorporating the amendment can after the discontinuance be re-commenced then, with respect, what purpose is served by not allowing the amendment and making consequential directions in favour of the respondent?
The only outcome is, as the appellant submits, to make the appellant discontinue and recommence or compel the appellant to proceed to a hearing in which the true issues between the parties cannot be ventilated because of the state of the pleadings. That conclusion, with respect, is directly contrary to ss 42 and 43 of the 2020 Act.
The circumstance in Maruf that confronted Keating P were entirely different. In that case the Arbitrator had struck out the ARD for want of prosecution. The then President concluded that no point would be served by reinstating the ARD as the same outcome could be achieved by the then appellant simply reissuing the proceedings.
That is entirely different to what occurred in the present matter. In the present matter the Member’s failure to allow the amendment meant that the appellant had the unacceptable choice of discontinuing the proceedings and reissuing or conducting the proceedings on a basis unsupported by the evidence. The latter would have led inevitably to a conclusion adverse to the appellant.
The Member took into account an irrelevant consideration. Ground Four of the appeal is made out.
Ground Five: The Member committed error of discretion by failing to take into account or give sufficient weight to the medical evidence in the matter
Appellant’s submissions
The appellant asserts that the Member failed to take account of or give sufficient weight to the medical evidence.
The appellant further submits in the submissions in reply that the Member did not appreciate that the appellant did not wholly and simply rely upon his statements but also relied upon the timeline of events and the treating and medicolegal evidence. The appellant relied upon the history given to the doctors.
Respondent’s submissions
The respondent submits that it is incorrect to conclude that the Member did not consider the totality of the relevant evidence. The respondent submits that there is no expectation on the Member to specifically address the contents of each document in terms of its relevance to the subject claim. The omission of specific reference to the entirety of the documentation considered by the Member is not sufficient to amount to error of law or discretion in line with the standard for intervention stated in Raulston v Toll Pty Limited.[36]
[36] [2011] NSWWCCPD 25.
Consideration
The Member said at T 24–25 that she took into account the evidence. The appellant has not established any basis upon which to challenge that proposition. He does not, for example, identify any specific medical evidence that the Member overlooked or any specific medical evidence that would conclude the issue in favour of the appellant. It is difficult to see what assistance on an application to amend the ARD the medical evidence was likely to have.
Ground Five of the appeal is not made out.
Ground Six: The Member committed an error of discretion by deciding that to permit the amendment would expose the respondent to “unacceptable prejudice”
Appellant’s submissions
The appellant submits that this finding should not have been made because:
(a) the amendments sought were consistent with the evidence lodged before the Commission;
(b) the evidence did not indicate that the appellant had sustained anything other than a disease injury;
(c) the respondent was aware of the circumstances which gave rise to the injury, and
(d) the respondent had met the allegation of disease type by injury by denying same in its own dispute notice.
In the circumstances, the appellant submits that the finding of unacceptable prejudice was erroneous and ought not to have been made.
Respondent’s submissions
The respondent submits:
“As has been identified by the Member, the suggestion by the [r]espondent that a disease injury may be appropriate in the present claim is not the same as a disease injury actually being pleaded by the [a]ppellant.
The [r]espondent cannot be expected to prepare its case in contemplation of amendments from the [a]ppellant, particularly in circumstances where particularisation of the pleadings and claim has been sought on multiple occasions throughout the duration of the proceedings. The responsibility to properly plead the claim made lies with the [a]ppellant, and the [r]espondent clearly took action to raise and resolve outstanding issues ahead of the [c]onciliation/[a]rbitration date.”[37]
[37] Respondent’s submissions, [99]–[100].
Consideration
This ground of appeal seems to be covered to a substantial extent in the previous grounds.
The Member found that the amendment would expose the respondent to unacceptable prejudice. It is unclear from the reasons precisely what prejudice the Member had in mind.
Presumably the Member’s concern was that the respondent would be prejudiced unacceptably if it was required to meet a claim it was not in a position to meet because up to that point of time it had not been properly pleaded in the ARD.
Such prejudice would have been unacceptable if the respondent was not given an opportunity by the granting of an adjournment to investigate the amended claim. No submission was advanced to the Member or now on appeal, that any such prejudice could not be readily overcome by granting the respondent an adjournment.
Therefore, although the amendment would have prevented the respondent from proceeding on 2November 2021, that was a prejudice that could readily be ameliorated by an adjournment. In my view, Ground Six of the appeal is made out.
RE-EXERCISE OF THE DISCRETION
In my view, the Member’s exercise of the discretion miscarried because of the following three errors:
(a) the legal consequence of the amendment in terms of the deemed date of injury was not correctly understood;
(b) the prospect that the appellant could commence fresh proceedings was not a relevant consideration for the determination of whether to allow or disallow the amendment, and
(c) the consideration given to the conclusion that the amendment presented the respondent with “unacceptable prejudice”, failed to include a consideration as to whether such prejudice could be remedied by an adjournment of the proceedings to enable the respondent to investigate the amended claim.
In my view the Members exercise of the discretion to refuse the amendment was an error. It follows the discretion must be re-exercised. I am in a position to re-exercise the discretion which I do in favour of allowing the amendment.
I direct that, if necessary, the respondent is to be given time to further investigate the circumstances of Mr Haddad’s claim.
My reasons for allowing the amendment are as follows:
(a) section 42 of the 2020 Act identifies the guiding principle as to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings”;
(b) the real issue in these proceedings on the appellant’s case is whether he has sustained an injury within the meaning of s 4(b) of the 1987 Act, with the consequence that s 15 of the 1987 Act is engaged. That is the issue which should be litigated on its merits.
(c) furthermore, proceedings before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[38]
(d) it is not appropriate to refuse the amendment on the basis that the proceedings can be discontinued and recommenced pleaded in an appropriate manner because that course unnecessarily inconveniences the appellant, the respondent and the Commission. Nothing is achieved by such a course, and
(e) any prejudice to the respondent occasioned by the amendment can be readily overcome by the granting of an adjournment to enable investigations to be undertaken.
[38] Section 43(3) of the 2020 Act.
CONCLUSION
The Member’s decision of 2 November 2021 is revoked. In its place I order that the ARD be amended in accordance with the proposed amendment recorded at paragraph [17] above.
I remit the matter for determination by another Member. I direct that upon the allocation of the matter to a Member the matter be listed for preliminary conference before the Member with respect to readying the matter for hearing including any specific directions as may be required to enable the respondent to investigate the amended ARD.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
28 June 2022
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