Hallmann v National Mutual Life Association of Australia Limited - [2018] NSWWCCPD 20

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hallmann v National Mutual Life Association of Australia Limited [2018] NSWWCCPD 20
APPELLANT:	Geoffrey Hallmann
RESPONDENT:	National Mutual Life Association of Australia Limited
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NUMBER:	A2-3657/14
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	13 December 2016
DATE OF APPEAL DECISION:	21 May 2018
SUBJECT MATTER OF DECISION:	Application for extension of time to file the appeal – r 16.2(12) of the Workers Compensation Commission Rules 2011; whether error in terms of referral of a general medical dispute to an Approved Medical Specialist; no error in excluding admission of late evidence after submissions were commenced – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; evidence required to enable an award of interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998; whether Independent Medical Examiners appointed by the respondent had a conflict of interest; the model litigant policy; decision maker entitled to disregard submissions filed out of time – Bale v Mills [2011] NSWCA 226; 81 NSWLR 498; 282 ALR 336
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

The appellant, Mr Geoffrey Hallmann, suffers from Myalgic Encephalomyelitis/Chronic Fatigue Syndrome with persisting fibromyalgia (ME/CFS).
CGU Workers Compensation (NSW) Limited (the insurer) accepted liability for the condition, which was attributed to stressors within his employment with National Mutual Life Association of Australia Limited (National Mutual) as a sales representative. The injury was pleaded as a deemed date of 29 November 2006 although the transcript indicates the previously agreed deemed date was 28 November 1996.[1]
[1] Transcript of Proceedings, Hallmann v National Mutual Life Association of Australia [2016] NSWWCC 293, Arbitrator Edwards (T), 19 March 2017, 4.30–5.5.
Mr Hallmann has brought a number of previous proceedings in respect of his entitlements as follows:
(a)matter no 12737/02 (weekly payments and treatment expenses claim);
(b)matter no 18609/03 (weekly payments and treatment expenses claim);
(c)matter no 14934/04 (claim for medical expenses);
(d)matter no 2475/05 (claim for sports skins and interest);
(e)matter no 15446/05 (claim for medical expenses);
(f)matter no 9588/05 (s 66 and s 67 claim);
(g)matter no 1498/07 (claim by insurer to terminate medical expenses), and
(h)matter no 5494/13 (weekly payments claim).
On 18 July 2014, Mr Hallmann lodged an Application to Resolve a Dispute (ARD) in these proceedings claiming weekly payments of compensation from 16 March 2004, interest on those weekly payments, s 60 expenses, domestic assistance, and further compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Mr Hallmann claimed $121,000 in respect of his entitlement to a lump sum pursuant to s 66 of the 1987 Act, assessed as 100% permanent impairment. Included in that assessment were losses with respect to permanent impairment of the pelvis, loss of power of speech and loss of sense of smell. Liability for each of those body parts was disputed by National Mutual.
In addition, he claimed weekly payments commencing from 2004 and treatment expenses pursuant to s 60 of the 1987 Act. The claim for weekly payments was essentially the same claim brought in the 2013 proceedings, which had been struck out by Arbitrator Stanton because of a failure to properly particularise the claim.
A wages schedule prepared by Mr Hallmann was filed on 8 October 2014. The weekly payments claim settled on the first day of Arbitration (26 November 2014) for an agreed total of $30,000, satisfying all periods of the claim from 29 November 1996 to the date of the agreement.
The claim for interest was not resolved, nor were the issues with respect to liability for the pelvis, speech and sense of smell, the domestic assistance or the s 60 expenses.
The matter resumed for further arbitration on 28 January 2015.
At the arbitration, the claim for interest appears to have developed to include what became termed as the “ambit claim”. That is, up until that time, the claim pleaded was for interest on the arrears of compensation that were unpaid for the period from 2004 to date of determination. That sum was agreed on 26 November 2014 to be $30,000. At arbitration on 28 January 2015, Mr Hallmann expanded his submissions to include a claim for interest on the weekly payments that had been paid from 2004 (the ambit claim).
The Arbitrator formed the view that he did not have jurisdiction to determine any claim for interest other than the interest payable on the $30,000 that was the subject of the 2014 consent orders. The basis of his finding of no jurisdiction was that, in his view, there was no evidence of a disputed claim for interest on payments other than the $30,000 and he could not be satisfied that a claim had been “duly made”. He invited the parties to make written submissions on the interest payable on that amount.[2]
[2] T, 28 January 2015, 3.12–31.
With respect to the remaining issues, the matter was listed for arbitration on 17, 18 and 19 March 2015. Mr Hallmann was unable to attend on the 19th because he was unwell.
During the arbitration, each party raised objections to the other party’s medical evidence. In particular, Mr Hallmann raised an objection as to the admissibility of the reports of Professor Denis Wakefield and Dr Stephen Potter, alleging that they each ought to be excluded on the basis of a conflict of interest.[3] Some submissions were also made in relation to the disputed conditions.
[3] T, 17 March 2017, 15.9–11.
The oral submissions did not conclude. In order to progress the matter a telephone conference was conducted on 27 March 2015 and a direction was issued on 2 April 2015. The direction set out a timetable for written submissions to be filed by both parties with respect to:
(a)the issue of the alleged conditions of impairment of the pelvis and loss of speech and sense of smell;
(b)whether or not the reports of Dr Wakefield and Dr Potter were admissible, and
(c)the admissibility of the medical reports relied upon by Mr Hallmann.
On the application of Mr Hallmann, a further direction was given by the Arbitrator on 18 June 2015 extending the timetable for those submissions. Mr Hallmann did not comply with the amended timetable.
Following another application by Mr Hallmann for an extension of time, a third direction was issued extending the time for filing of further submissions.
Mr Hallmann filed written submissions addressing the admissibility of the reports of Dr Potter and Professor Wakefield on 9 August 2016 (some 16 months after the first direction), and on 8 November 2016 in reply to the submissions of National Mutual.
Extensions to the timetable were granted for filing submissions with respect to the interest component. Mr Hallmann filed his submissions on 22 February 2015. A Certificate of Determination (COD) was issued dated 13 December 2016, which was amended on 22 December 2016 (the Amended COD).[4] The Arbitrator made orders that National Mutual pay interest on the $30,000 of weekly payments at the applicable Supreme Court rate from 8 October 2014 to 26 November 2014 pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[5]
[4] Hallmann v National Mutual Life Association of Australia [2016] NSWWCC 293 (Reasons).
[5] Reasons, [82].
The Arbitrator also made a determination that the reports of Professor Wakefield and Dr Potter were admissible but that the complaints raised by Mr Hallmann were matters that went to the weight to be accorded to their opinions.[6]
[6] Reasons, [85]–[88] and [92]–[93].
In respect of the remaining liability issues (the claim for s 60 expenses and disputed conditions), the Arbitrator remitted those matters to the Registrar for referral to an Approved Medical Specialist (AMS). The purpose of the referral was for a non-binding opinion as to whether the disputed conditions complained of were a consequence of the accepted injury and whether the claimed s 60 expenses were reasonably necessary as a result of the injury.
On 20 January 2017, Mr Hallmann filed an Application to Appeal Against the Decision of the Commission Constituted by an Arbitrator (first Appeal). Mr Hallmann’s first Appeal did not comply with Practice Direction No 6. He was given leave to file an Amended Application, but failed to comply.
Mr Hallmann was provided with the opportunity to show cause as to why the first Appeal Application should not be dismissed for want of due dispatch.
The President, Judge Keating dismissed the first Appeal Application pursuant s 354(7A)(c) of the 1998 Act on the grounds specified in r 15.8 of the Workers Compensation Commission Rules 2011 (the 2011 Rules).
The present Application to Appeal against the Decision of the Commission Constituted by an Arbitrator (Appeal) was lodged on 9 October 2017.

ON THE PAPERS

Mr Hallmann has requested an oral hearing. He says the appeal involves multiple complex issues and that the documentary evidence is extensive.
He submits that National Mutual has made submissions that are unfounded on the evidence and that he should have the opportunity to “walk the President through the documents” in order to refer to evidence in support of his submissions.
He further submits that he is unrepresented and it is in the interests of justice for him to be afforded the opportunity present his case. He says that despite his best endeavours, he has not been able to “effectively advocate his case.”
He requests the opportunity to present his case through legal representation, although he says that does not appear to be “currently possible.”
National Mutual requests the matter to be dealt with on the papers.
In response, Mr Hallmann maintains that there is a need for an oral hearing.
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Without restricting the matters that may be applicable to the Commission determining a matter on the papers, the Workers Compensation Commission Practice Direction No 1 Determination of Matters “On the Papers” Without a Conciliation Conference or Arbitration Hearing or Hearing on Appeal Against a Decision of the Commission Constituted by an Arbitrator cites the following factors are relevant:
(a)Have the parties addressed all the relevant issues in their submissions?
(b)Does the evidence deal appropriately with all issues in dispute?
(c)Has one or have both parties requested a decision on the papers?
(d)Are there questions as to the credit of a party or witness?
(e)What is the degree of complexity of the legal and/or factual issues in dispute?
(f)Do the matters in dispute concern only questions of law?
(g)Is one of the parties self-represented and/or by reason of cultural or linguistic background, or for any other reasons, prevented from presenting a logical argument in writing?
(h)Does one of the parties lack an understanding of the Commission’s functions and role?
(i)In all the circumstances, is it appropriate to determine the particular matter on the papers?
Mr Hallmann has filed extensive volumes of material in an endeavour to support his claims.
The arbitration was conducted over a number of days and was frustrated by the limited time available and the inability of Mr Hallmann to remain focused on specific issues that needed to be addressed. At times, he was unable to identify documents that supported his submissions. At other times, he made lengthy submissions on matters that were not responsive to the particular issue raised by the Arbitrator.
The Arbitrator was cognisant of the impact this had on the progression of the matter and said he benefitted from written submissions.[7]
[7] T, 27 March 2015, 1.35–35, 11.32–34.
The issues that are before me do not involve questions of credit and there are no significant questions of law raised by this appeal.
While complexity arises from the volume of material filed in the proceedings, the issues in this matter and on appeal are not complex in nature.
The appeal raises complaints by Mr Hallmann with respect to:
(a)the award for interest pursuant to s 109 of the 1998 Act;
(b)the finding that there was no jurisdiction to determine the ambit claim;
(c)the distinction between an injury and a consequential condition;
(d)the admissibility of late documents and medical reports, and
(e)the terms of referral to the AMS.
These are issues that commonly arise in this jurisdiction.
Mr Hallmann also complains as to the manner in which his claim for domestic assistance is assessed, the conduct of the insurer in the context of the model litigant policy and whether the AMS appointed by the Registrar has the requisite qualifications.
None of those matters are the subject of a decision of the Arbitrator and do not provide a basis for an appeal (which is discussed below).
An appeal from a decision of an Arbitrator is limited to identification of error of fact, law or discretion and is not a re-hearing.[8]
[8] Section 352(5) of the 1998 Act.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

Monetary threshold

Section 352(3) of the 1998 Act requires the amount in issue on appeal to be at least $5,000 and at least 20% of the amount awarded.
Mr Hallmann maintains that the monetary threshold is met. He makes no submissions to that effect in his substantive submissions.
National Mutual concedes that the monetary threshold is met with respect to the amount in issue that is referrable to the claim for interest but does not make that concession with respect to the balance of issues raised on appeal by Mr Hallmann.
It submits that the remaining issues are interlocutory and no amounts have been awarded. It submits the threshold has not been met and the appeal should be dismissed.
In reply, Mr Hallmann submits that it is not necessary that each ground of appeal meets the monetary threshold. He provides details of the each of the claims in the ARD.
Section 352(3) is a threshold issue to the appeal. If the appeal raises a number of issues, it is sufficient if one (or more than one) of those issues satisfies the threshold. The gateway to appeal is then open for the appellant to complain of all identifiable errors, regardless of whether they individually satisfy the threshold requirement.
Mr Hallmann contends that he is aggrieved by the decision of the Arbitrator to allow interest on the $30,000 for the limited period from 8 October 2014 to 26 November 2014. He maintains he is entitled to interest on that amount from 16 March 2004 to date of determination. That is well over ten years.
If Mr Hallmann’s appeal is successful on that point, at current Supreme Court interest rates, the total amount payable would well exceed the monetary threshold for appeal. I therefore determine the threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act has been met.

Leave to Appeal – Time within which to lodge the Appeal

Mr Hallmann’s complaints of error of fact, law or discretion arise partly from extempore orders and determinations made by the Arbitrator on 28 January 2015, namely:
(a)the Arbitrator’s finding that he had no jurisdiction to award interest in respect of past payments already made, confirmed in the initial COD dated 13 December 2016;
(b)the period during which interest was payable on the sum of weekly payments agreed at $30,000;
(c)admissibility of the reports of Professor Wakefield and Dr Potter determined in the same COD;
(d)remittal of a general medical dispute to the Registrar for referral to an AMS pursuant to s 321 of the 1998 Act, and
(e)the documents to be included in the referral to the AMS.
For the reasons set out below, issues raised with respect to the model litigant policy, the consequential losses, the domestic assistance and the late documents (except for the Application to Admit Late Documents (AALD) dated 10 July 2016) are not the subject of a determination of the Commission and/or are not matters than fall within jurisdiction.
Section 352(4) of the 1998 Act provides that an appeal can only proceed within 28 days after the making of a decision. A “decision” is defined in s 352(8) to include “an award, interim award, order, determination, ruling and direction.” Rule 16.2(2) provides that a decision is made when the Commission issues a COD. The COD was issued on 13 December 2016 so time begins to run from that date.
Mr Hallmann’s application is clearly out of time in respect of any decision the Arbitrator has made.
Mr Hallmann submits that at the telephone conference in the previous Appeal Application, Keating J advised that “should he be unable to complete the requirements of the appeal he would be able to consider a new Application.”[9] I have read the transcript of the teleconference held on 9 March 2017 and there is no record of such comment. In disposing of the first Appeal Application, Keating J considered one of the factors that warranted consideration was that “Mr Hallmann’s rights to appeal under s 352 of the 1998 Act will be enlivened following the entry of final orders, subject to any identified legal, factual or discretionary error.”[10]
[9] Mr Hallmann’s submissions, Part A [2.1.1].
[10] [2017] NSWWCCPD 14 (First Decision), [48 (i)].
That does not entitle Mr Hallmann to rely on the submission recorded above in respect of bringing this Application out of time.
Mr Hallmann submits that in accordance with Practice Direction No 6 and r 16.2(12) of the 2011 Rules, the Commission has power to extend the time for bringing the appeal in “exceptional circumstances”.
He says that in the factual circumstances of this case there are ‘exceptional circumstances’ and refers to the decision in Webb v Penrith Rugby Leagues Club Ltd[11] and the High Court decision in Gallo v Dawson[12] as to the factors that need to be considered in extending time.
[11] First Decision, [23].
[12] [1990] HCA 30; 93 ALR 479 (Gallo).
Mr Hallmann submits that the matter is complex, particularly for an unrepresented worker. He relies on National Mutual’s submissions that the documents are numerous and that preparation of the matter involved “enormous amounts of time”.[13]
[13] Mr Hallmann’s submissions, Part A [3 (a)–(b)].
Mr Hallmann also relies on the significant impact of his condition on his ability to comply with timetables. He complains that the progress of his case has caused a significant deterioration in his condition, and that he has been without legal representation throughout the conduct of this matter.
He maintains that to deny the extension would create substantial injustice.
He alleges there are significant breaches of the model litigant policy and that allowing such breaches to stand would present substantial injustice to him. He further says that there are significant sums involved with respect to a claim for interest and National Mutual should not be rewarded “if its failure can be established”.[14] I take that to mean National Mutual’s failure to pay the claim.
[14] Mr Hallmann’s submissions, Part A [3 (g), (i)].

He further submits that there are real prospects of success.
National Mutual opposes the extension of time.
It submits that this appeal has been commenced more than twelve months after the issue of the COD.
National Mutual’s legal representative says that he does not recall Keating J saying words to the effect of those asserted by Mr Hallmann referred to in [56] above.
Further, National Mutual records the events that have transpired since the issue of the COD, particularly the appeal to the President in matter number A1-3657/14. It makes reference to Mr Hallmann’s failure to comply with Practice Direction No 6 and the timetable. National Mutual also points to the abrupt cessation of Mr Hallmann’s participation in the telephone conference and the dismissal of the appeal on the basis of Mr Hallmann’s failure to prosecute the appeal with due despatch.
National Mutual also submits that the progress of the current appeal has been frustrated by Mr Hallmann’s failure to comply with directions. His assertions are not supported by any contemporaneous medical evidence that his condition during that time was causative of an increased inability to comply. It submits that they are contrary to the evidence of Professor Wakefield, who describes his condition as “mild” and contrary to the DVD evidence of his activity.
National Mutual submits that there are no exceptional circumstances and that failure to grant leave would not work a demonstrable or substantial injustice.
National Mutual refers to the NSW Court of Appeal decision of Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd[15] and relies upon the factors outlined in that case to submit that those factors should not operate in favour of Mr Hallmann being granted an extension of time.
[15] [2014] NSWCA 34 (Land Enviro).

Mr Hallmann’s reply to National Mutual’s submissions

Mr Hallmann says the appeal was filed within 28 days of the Amended COD. He refers to the date the first appeal was lodged.
He maintains that it was beyond his physical and cognitive capacity to comply with the requirement to file the appeal within time. He further maintains that he did not terminate the call in the telephone conference with the President on 9 March 2017. He asserts he was angry, slammed the phone down and it was the phone that terminated the call. The action dislodged the sim card and that was explanation for the inability of the Commission to re-establish contact.
Mr Hallmann asserts that the advice said to be provided by the President on 9 March 2017 was actually provided by the Registrar in a telephone conference on 27 January 2017. He attaches an email dated 2 February 2017 from a Delegate of the Registrar, who provided advice that if he could not meet the deadline for filing submissions, he could re-file an appeal with submissions to support an extension of time. He says he relies on that statement.
Mr Hallmann submits that his condition has prevented him from complying with the time frame and that it is an abuse of process for National Mutual to require him to produce medical evidence to support the extension. He submits that he cannot afford the cost of a supporting medical report.
He further submits that his mother was ill throughout 2017 and died on 7 February 2018.
Mr Hallmann refers to medical evidence that is contrary to the opinion of Professor Wakefield that his condition is mild and disputes the DVD shows he was physically active. He points out that his condition waxes and wanes and the evidence of both the DVD and Professor Wakefield was confined to his condition in 2012.
Mr Hallmann reiterates that National Mutual have beached the model litigant policy because there are exceptional circumstances for an extension of time.

DISCUSSION

In Land Enviro, the Court of Appeal took into account the following considerations in the determination of whether time to appeal ought to be extended:
(a)the relatively short delay in filing the appeal;
(b)the absence of evidence of the proposed value of the litigation;
(c)the financial prejudice to the respondent (which was diminished because the respondent had not enquired of the appellant whether an appeal would be lodged before venturing on financial commitments;
(d)the potential that expending those moneys might be of commercial benefit, and
(e)whether there was a reasonably arguable case that the trial judge had erred.
In commercial litigation, the relevant weight to be given to some of those factors is likely to be different to that in litigation in the workers compensation jurisdiction. However, the factors referred to above do not, in my view, depart from those enunciated by the High Court in Gallo v Dawson.[16]
[16] Gallo, per McHugh J.
In Gallo, the factors that need to be considered in determining whether to grant an extension of time are:
(a)the history of the proceedings;
(b)the conduct of the parties;
(c)the nature of the litigation;
(d)the consequence to the parties of the grant or refusal of the application;
(e)the prospects of success, and
(f)the vested right of the respondent to retain judgment.
The history of Mr Hallmann’s claim is somewhat protracted. Of relevance to these proceedings, on numerous occasions Mr Hallmann failed to comply with directions of the Commission, including the requirement to file submissions.
Mr Hallmann’s applications for extension of time to file documents and submissions were invariably made beyond the due date for compliance, which is unsatisfactory.
The Arbitrator issued his extempore decision with respect to the ambit interest claim on 28 January 2015. The COD giving effect to that decision was issued on 13 December 2016 (amended on 22 December 2016). Time runs from the day after the COD has been issued.[17]
[17] Dennis v NSW Fire Brigades [2007] NSWWCCPD 165.
The balance of the decisions of the Arbitrator now sought to be appealed were delivered in the COD dated 13 December 2016. Mr Hallmann lodged an appeal from that Decision. The Appeal was ultimately dismissed pursuant to s 354(7A)(c) of the 1998 Act by Keating J on 24 April 2017 for failure to prosecute the proceedings with due despatch.
According to the documents in evidence and the Commission’s email records, following the Arbitrator’s order remitting the general medical disputes to the Registrar, an appointment was arranged for Mr Hallmann to attend an AMS on 9 October 2017. On 28 September 2017, Mr Hallmann advised the Commission that he intended to appeal the Decision and would not be attending that appointment. The Commission advised Mr Hallmann that absent of an appeal being lodged prior to the appointment, he would be required to attend.
Mr Hallmann lodged this appeal on 9 October 2017.
The appeal was deficient. Mr Hallmann did not file a complying appeal until 10 January 2018.
Throughout the arbitral proceedings and again at Presidential level, Mr Hallmann has failed to comply with orders and directions of the Commission. In order to accommodate Mr Hallmann’s situation, numerous extensions of timetables were agreed to by National Mutual and granted by the Commission.
The ARD in these proceedings was filed in the Commission on 18 July 2014. It claimed the same relief as the proceedings in matter no 5494 of 2013, which was dismissed for failure to prosecute the matter with due dispatch.
The progression of this matter has been frustrated not only by all of the above, but also by
(a)Mr Hallman’s inappropriate failure to participate in the process of conciliation and
(b)the consequent inability of the Arbitrator to avail himself of assistance from the AMS with respect to the matters referred for a general medical opinion.
Mr Hallman’s conduct is a consideration. By voluntarily terminating his involvement Mr Hallman has failed to participate in the conciliation and arbitration process and in the telephone conference conducted by the President of the Commission, Keating J. Whether that act was as a result of an outburst of anger or Mr Hallmann intentionally hung up on Keating J is immaterial. Such conduct was considered by Keating J as “self-indulgent and unsatisfactory.”[18] The above factors weigh heavily against the granting of leave.
[18] First Decision, [48(d)].
There is medical evidence supporting Mr Hallmann’s submission that his condition affects his cognitive ability and that is a factor that ought to be considered.
In line with the authorities above, I am also required to assess Mr Hallmann’s prospect of success on appeal.
I have discussed the merits of the appeal below. For the reasons below I am of the view that there are no prospects of success on appeal. It would be a waste of Commission resources to extend the time for appealing to enable Mr Hallmann to seek the relief which he proposes.
I decline to extend the time for appeal.

New Evidence

Mr Hallmann seeks to adduce new evidence consisting of 8 documents on the appeal.
National Mutual does not object to the first six of those documents but does object to the final two.
The final two documents consist of:
(a)a document described as a “Wages Schedule by Shine Lawyers” dated 25 May 2014. Mr Hallmann maintains that the document was not previously required or known to be relevant, and
(b)a letter from Mr Hallmann to Bartier Perry Lawyers dated 15 August 2014, responding to a request for particulars.
The basis of National Mutual’s objection to the wages schedule is that:
(a)there is no evidence the document has been served;
(b)it is unsigned, poorly identified and therefore its origin is unknown and unreliable, and
(c)it does not appear to have been part of the earlier proceedings, as was asserted by Mr Hallmann.
National Mutual relies on the principles enunciated in CHEP Australia Ltd v Strickland[19] as to whether:
(a)the evidence was not previously available to the party;
(b)it could not reasonably have been obtained by the party previously, or
(c)failure to grant leave to rely on the evidence would cause substantial injustice.
[19] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
National Mutual further submits that the second of the documents objected to (a letter to Bartier Perry Lawyers dated 15 August 2014 providing particulars), also does not fall within the parameters of evidence that was not previously available, able to be obtained or that its exclusion would cause substantial injustice.
In reply, Mr Hallmann objects to the admission of late documents (emails) sought to be tendered on the appeal by National Mutual (discussed further below). He says they have no relevance to the proceedings.
He presses the admission of the wages schedule as it is alleged to be part of the Commission’s file in the previous proceedings and National Mutual has the document.
He repeats his submission that he did not foresee the need to have the wages schedule admitted. He concedes that the documents could have been available to him.
Mr Hallmann submits that the letter from Bartier Perry dated 15 August 2014 should not be admitted as it “is the same type of document and therefore it is submitted the same reasons apply.”
Mr Hallmann includes in his submissions extracts from Arbitrator Stanton’s decision with respect to a wages schedule filed in those proceedings by way of an AALD dated 15 March 2014, together with an extract from a letter from Bartier Perry referring to that wages schedule. He submits that is evidence that the “wages schedule” sought to be tendered by him is the same schedule and was before Arbitrator Stanton. He submits that the basis the document should be admitted is to establish that Arbitrator Edwards erred in these proceedings with respect to his remarks about the wages information in the prior proceedings.
Mr Hallmann maintains therefore, that I should not make the assumption that the document was not before Arbitrator Stanton. He submits that his evidence is “properly submitted”.

Discussion

In Strickland, Barrett JA discussed the test to be applied in consideration of whether the failure to admit late documents would cause a substantial injustice. At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The letter directed to Bartier Perry Lawyers is already in evidence in an AALD filed by National Mutual on 9 September 2014 and does not constitute fresh evidence. It is therefore not necessary to consider its admission as fresh evidence.
The wages schedule is said to have been part of the 2013 proceedings. National Mutual disputes that is the case.
In support of his application to have the wages schedule admitted on the appeal, Mr Hallmann submits that “the Arbitrator erred in identifying the schedule examined by Arbitrator Stanton as being the same as those documents appearing here in evidence before Arbitrator Edwards.”[20] He does not cite the paragraph reference in support of that proposition.
[20] Mr Hallmann’s submissions, [2.9.2.2.4].
The above is not an accurate recital of the Arbitrator’s reasons expressed. The Arbitrator said:
“I accept the respondent’s submissions that the claim for weekly payments of compensation was not properly particularised, and that the spread sheets and wages schedules provided by Mr Hallmann were unhelpful to me as they were to the Arbitrator on Matter no 005494/13”.[21]
[21] Reasons, [74].
It is clear that this document was not before Arbitrator Edwards and was available to Mr Hallmann to adduce in evidence in these proceedings if he chose to do so.
The essence of the Arbitrator’s reasons is that there was insufficient particularisation of the claim for weekly payments until a schedule was filed and served on 8 October 2014. Arbitrator Stanton found that the claim was not properly particularised and Mr Hallmann did not contest that finding. Arbitrator Edwards was entitled to take into consideration Arbitrator Stanton’s view that the claim had not been properly made at that stage.
The document sought to be adduced as new evidence is not dated or signed and does not attach any supportive documentation that might make it of probative value. Mr Hallmann seeks to adduce further evidence in his reply to the Opposition to this Appeal that goes to show it was included in the 2013 proceedings. I cannot see how the document could now be relied upon to establish Arbitrator Edwards erred when it was not before him to consider, or that if it had been considered, a different conclusion would have been reached. The document is a mere assertion of entitlement without any supportive evidence attached. On that basis, there can be no substantial injustice caused by excluding the document.
The wages schedule is not admitted.
The first six of Mr Hallmann’s documents consist of:
(a)email correspondence between Mr Hallmann, National Mutual’s legal representative and the Commission dated 4 May 2017and 2 June 2017. The subject matter of the communications is Mr Hallmann’s request for the Commission to amend the consent orders of 16 March 2004;
(b)an email directed to the Commission dated 25 August 2017 in which Mr Hallmann objected to National Mutual’s medical reports being included in the referral to the AMS. The email also gives notice of an intention to lodge a further appeal from the Arbitrator’s Decision;
(c)a further email said to be dated 31 August 2017, but likely to be an email on 21 August 2017 from National Mutual’s legal representative to the Commission and Mr Hallmann. The email sought confirmation from Mr Hallmann that he would be attending the AMS and requesting certain documents to be forwarded;
(d)an amended request for assessment of a general medical dispute by an AMS dated 6 September 2017, and
(e)an advice to the parties of the date of the AMS examination with Dr Loretta Reiter dated 28 September 2017.
The documents post-date the Arbitrator’s decision and are relevant to issues raised on appeal (including the application for extension of time to appeal). National Mutual does not object to their admission. It is appropriate that the documents identified at [118] are admitted.
National Mutual seeks to tender further evidence which it concedes does not constitute fresh evidence but is a record of the email exchange between the Commission and the parties with respect to the medical evidence to be included in the referral to the AMS.
The documents are emails between 11 August 2017 and 25 August 2017, some of which are the subject of Mr Hallmann’s application referred to above. Those not included in Mr Hallmann’s application are:
(a)an email dated 11 August 2017 from National Mutual requesting certain of their documents be included in the referral to the AMS;
(b)a further request dated 24 August 2017 by National Mutual to include those documents;
(c)a response dated 24 August from Mr Hallmann (using highly inappropriate language), and
(d)a response from the Commission advising the Arbitrator will respond on 28 August 2017.
These documents post-date the decision appealed against and could not have been obtained before the arbitration. They provide a complete picture of the correspondence passing between the Commission and the parties. They are also relevant to determine whether Mr Hallmann is entitled to complain about the documents included in the referral to the AMS. I therefore also admit those documents.

Leave to Appeal – Interlocutory

Mr Hallmann submits that he is unsure as to whether some of the decision or decisions are interlocutory.
Mr Hallmann submits that in any event a determination of the Appeal “is necessary for the proper and effective determination of the dispute” in accordance with s 352(3A).
He submits that granting leave to appeal, the interlocutory decisions will potentially prevent:
(a)the improper commissioning and reliance on medical reports that fail to comply with the legislation and guidelines;
(b)the improper exclusion of his own medical evidence, and
(c)the improper consideration of facts and evidence with respect to the claim for interest.
National Mutual submits that the decision on interest on $30,000 was a final decision, but that all of the remaining decisions are interlocutory, with the possible exception of Ground 23 (the consequential condition).
National Mutual submits that the granting of leave to appeal the interlocutory decision is not necessary or desirable for the effective determination of the dispute.
In reply, Mr Hallmann submits once again that National Mutual has breached the model litigant policy by not advising the Commission that it was in error in obtaining its Independent Medical Examination (IME) reports. He says it is not in the interests of justice or procedural fairness for National Mutual to “hide behind its own wrongdoing.”
He “implores” that the Appeal be allowed so that the matters can be properly and effectively ventilated.

He repeats his submission that exceptional circumstances exist.

Discussion

The Arbitrator’s determination with respect to the claim for interest on the weekly compensation totalling $30,000 is not interlocutory as it finally disposed of Mr Hallmann’s claim for interest in these proceedings.[22]
[22] Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439; 8 ALR 437, [446].
The Arbitrator’s finding that there was no jurisdiction to determine the ambit claim did not finally dispose of Mr Hallmann’s entitlements as it is open to him to make a properly particularised claim for that interest which, if disputed, may result in later proceedings.
A “decision” is defined in s 352(8) to include an award, interim award, order, determination, ruling or direction.
For the reasons set out by Keating J in the First Decision, the Determination by the Arbitrator that the reports of Professor Wakefield and Dr Potter were admissible is an interlocutory decision.[23] Mr Hallmann concedes that the decision with respect to the admission of these reports was interlocutory in nature.
[23] First Appeal Decision, [35]–[41].
Remittal of the general medical dispute is an interim order and as such is a “decision” as defined by s 352(8) of the 1998 Act. The referral is a step in the process of determining the medical question or questions. That determination will be made following an appraisal of all the medical opinions including the non-binding opinion of the AMS. The order made pursuant to s 321 of the 1998 Act is interlocutory.
The remaining issues raised by Mr Hallmann (pertaining to the consequential losses, the domestic assistance and the late documents) do not arise out of decisions of the Arbitrator. I refer to my reasons below at [328]–[340], [342],[411]–[418] with respect to the complaints of breaches of the model litigant policy, admission of AALD’s, consequential loss and domestic assistance claim.
An appeal from an interlocutory decision may only proceed with the leave of the Commission. In accordance with s 352(3A) of the 1998 Act, 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.
In order to assess whether it is necessary for the proper and effective determination of the dispute to grant leave, it is appropriate to again consider the merits of this appeal.
For the reasons set out at [326]–[431], I have determined that the Appeal has no merit. On that basis, I have determined that the time for filing the appeal will not be extended. The interlocutory matters are dealt with below for the purposes of determining the merits of the appeal.
As the appeal lacks merit, it is not necessary for me to determine whether leave should be granted to appeal the interlocutory decisions discussed above.

THE EVIDENCE

Mr Hallmann relies on an ARD comprising documents and annexures totalling 2292 pages.
The documents included medical reports from Dr John Whiting, Dr David Bird, Dr Roger Watson and Dr Andrew Lloyd, as well as radiological and other investigations.
Mr Hallmann annexed receipts relating to his claim for treatment and associated expenses, wages material, correspondence to and from the insurer, and the insurer’s legal representatives.
Mr Hallmann relied upon his statement dated 5 March 2014 consisting of 151 pages and a further 201 annexures.
During the period 15 September 2014 to 30 March 2015 Mr Hallmann filed 26 AALDs. Those contained:
(a)further correspondence between Mr Hallmann and CGU;
(b)lay evidence of two co-workers, a further statement from Mr Hallmann, and a statement from Mr Hallmann’s dependant de facto wife;
(c)university records;
(d)psychological reports;
(e)correspondence to Professor Wakefield from CGU’s legal representative, and
(f)job descriptions, clinical studies and research papers pertaining to Mr Hallmann’s condition and work capacity assessments.
A wages schedule dated 8 October 2014 was filed in AALD of that date.
National Mutual relied on:
(a)reports contained in the Reply from Professor Wakefield, Dr Potter, Dr Lewis Pierides and a number of other medical reports that were historically relevant;
(b)a vocational report conducted on 13 June 2012;
(c)documents relating to the employment of Mr Hallmann with National Mutual;
(d)factual investigations into Mr Hallmann’s activities;
(e)his financial records;
(f)previous decisions of the Workers Compensation Commission (the Commission);
(g)eleven s 74 notices issued by CGU;
(h)lists of payments made by CGU;
(i)documents relevant to Mr Hallmann’s Total and Permanent Disability claim, and
(j)a request for further particulars directed to Mr Hallmann from National Mutual’s legal representatives dated 8 August 2014.
National Mutual relied upon further documents contained in 13 AALDs filed between 9 September 2014 and 10 April 2015. The documents contained therein included:
(a)surveillance DVD’s of Mr Hallmann’s activities;
(b)Mr Hallmann’s further financial records;
(c)reports of Dr John Schmidt, gynaecologist and obstetrician;
(d)further reports of Professor Wakefield;
(e)documents produced by Dr Ivanka Vincour and Genea Pty Ltd (Sydney IVF), and
(f)correspondence between National Mutual’s legal representative and Mr Hallmann.

THE ARBITRATOR’S REASONS

The claim for interest

At the arbitration on 28 January 2015, the Arbitrator delivered an extempore decision that he had no jurisdiction to determine the claim for interest on past payments of compensation because there was no documentary evidence before him that:
(a)Mr Hallmann had made a claim upon National Mutual for interest going back to 2004;
(b)that there was evidence of a failure by National Mutual to determine the claim, or
(c)a notice was issued pursuant to s 74 of the 1998 Act denying the claim.
He stood over the remaining question of interest on the unpaid arrears of compensation and requested written submissions.
In his written reasons for the amended COD, the Arbitrator noted the issues that fell to be determined as follows:
(a)the claim for interest on the arrears of weekly payments;
(b)admissibility of the medical evidence of both parties;
(c)the consequential conditions of the pelvis, loss of speech and sense of smell as a result of the injury;
(d)the claim for domestic assistance, and
(e)medical and related treatment expenses, including the cost of IVF treatment.
He referred to the consent award entered on 16 March 2004 and summarised the extensive correspondence dating from 22 January 2010, comprising:
(a)emails letters and conversations relating to Mr Hallmann’s continuing entitlement to weekly compensation;
(b)correspondence from CGU requesting documentary evidence of actual wage loss and dependency, and
(c)correspondence from CGU on 29 December 2010 and 14 July 2011 confirming additional payments for the period 1 April 2004 to 26 August 2010 and further payments of arrears made on 10 December 2010, 8 April 2011 and 29 May 2011, both with details of amounts repaid to Centrelink.
The Arbitrator noted that as at 26 November 2014 (the date of resolution of the weekly component of this claim) Mr Hallmann was in receipt of voluntary weekly payments. The Arbitrator further noted the circumstances in which the 2013 proceedings were dismissed by Arbitrator Stanton.
The Arbitrator referred to two Directions issued by him. The first (issued on 14 August 2014) directed Mr Hallmann to respond to National Mutual’s request for further particulars in respect of the weekly payments claim. The second Direction was issued on 10 September 2014. It directed Mr Hallmann to file an amended wages schedule together with supporting evidence as to probable earnings. The Arbitrator recorded that Mr Hallmann complied with that Direction on 8 October 2014, alleging arrears of $160,394.54.
The Arbitrator further referred to the process of conciliation on 26 November 2014, conducted over several hours and resulting in a resolution of the claim for weekly payments recorded in the COD.
The Arbitrator proceeded to determine the issue of interest payable on the arrears of compensation, noting that s 109 vests a discretion in the Commission to award interest on part or the whole of any sum before it is payable.
After consideration of the documentary evidence before him and both parties’ submissions, the Arbitrator accepted National Mutual’s submission that the weekly payments claim had not been properly particularised until 8 October 2014. He said that the spread sheets and wages schedules otherwise provided were unhelpful. He noted Arbitrator Stanton’s similar view in the 2013 proceedings.
He further accepted that the onus fell on Mr Hallmann to properly plead and particularise the claim for weekly payments and to adduce probative evidence of actual and probable earnings, as well as dependency.
He referred to the disproportionality between the earlier schedules and the ultimate claim particularised on 8 October 2014.
He determined that the respondent had no realistic opportunity to distil and understand the ambit of the weekly payments claim until that document was filed and served.
On that basis, he awarded interest on the settlement sum of $30,000 at Supreme Court rates from 8 October 2014 until 26 November 2014 (the date that sum became payable).

Admissibility of the reports

The Arbitrator noted the submissions of both parties.
He summarised Mr Hallmann’s submissions with respect to objection to the reports of Drs Potter and Slezak and Professor Wakefield. He noted the bases for the objection to be on the grounds of conflict of interest, bias, breach of WorkCover Guidelines, breach of fiduciary duty and that the forensic experts had adopted an advocacy role in National Mutual’s case.
He noted National Mutual disputed those allegations, and concluded that those objections go to the weight of the opinions rather than their admissibility (relying on the Court of Appeal decisions of Hancock v East Coast Timber Products Pty Ltd[24] and Makita (Australia) Pty Ltd v Sprowles).[25] He also noted National Mutual’s submission that histories provided in the experts’ reports provided a “fair climate” for the opinions expressed and conclusions reached.[26]
[24] [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43 (Hancock).
[25] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCR 218 (Makita).
[26] Matar v Zeineddine [2008] NSWWCCPD 51 (Zeineddine), [52].
The Arbitrator accepted those authorities establish that in the jurisdiction of the Commission, the objections raised go to the weight of the experts’ opinions, rather than the admissibility of the reports. He admitted the reports into evidence.

The conditions of the pelvis, loss of power of speech and loss of sense of smell

The Arbitrator recorded that Mr Hallmann claimed lump sum compensation with respect to the above body parts. He referred to the claim as an allegation of “consequential” conditions to the accepted injury.
He further noted the written submissions by both parties as to whether those conditions were compensable.
Referring to Jaffarie v Quality Castings Pty Ltd[27] the Arbitrator accepted that it was a matter for the Commission to determine the causal connection between the injury and those conditions.
[27] [2014] NSWWCCPD 79 (Jaffarie), [249].
The Arbitrator noted that Mr Hallmann relied on the reports of his treating general practitioner, Dr Bird, and his specialist Dr Whiting and Dr Watson. He further recorded the submissions made with respect to the disputed conditions.
After a consideration of the relevant legal principles to be applied, the Arbitrator formed the view that he would be assisted on the question of causation of the disputed conditions by the non-binding opinion of an AMS “pursuant to s 319 of the 1998 [Act]”.[28]
[28] Reasons, [120].
He remitted the matter to the Registrar for assessment as enunciated in Order 2 of the COD.

Claim for domestic assistance

In his reasons, the Arbitrator set out the basis of Mr Hallmann’s claim for domestic assistance and noted the claim was disputed by National Mutual.
He referred to the pre-requisites of s 60AA of the 1987 Act that:
(a)the degree of impairment is required to be at least 15% Whole Person Impairment (WPI), and
(b)the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.
The Arbitrator reserved his decision on this aspect of the claim. He could not determine that Mr Hallmann had reached the necessary 15% WPI until Mr Hallmann had been assessed by an AMS with respect to his claims under the Table of Disabilities “and for the purposes of s 60AA”.[29]
[29] Reasons, [126] and [127].

Medical and related expenses (including IVF)

The Arbitrator set out the relevant types of expenses claimed pursuant to s 60 of the 1987 Act that were disputed by National Mutual. He formed the view that he would be best assisted by a non-binding opinion on that issue from an AMS. He referred to various telephone conferences wherein he had indicated to the parties that he would adopt that approach. He remitted the matter to the Registrar on that basis.
He recommended that only “the relevant medical reports relied upon by the parties and the applicant’s statements be referred to the AMS.”[30]
[30] Reasons, [134].
The Certificate of Determination issued on 13 December 2016 records:
“1. Respondent to pay the applicant interest on the amount of $30,000 in respect of weekly payments of compensation at the applicable Supreme Court rate for the period 8 October 2014 to 26 November 2014 pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998.
2. Matter remitted to the Registrar for referral to an Approved Medical Specialist pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as to whether the applicant suffers with consequential conditions of the pelvis, loss of power of speech and loss of sense of smell as a result of the injury (Myalgic Encephalomyelitis /Chronic Fatigue Syndrome with persisting Fibromyalgia) deemed to have happened on 29 November 1996.
3. Matter remitted to the Registrar for referral to an Approved Medical Specialist pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 and section 60(5) of the Workers Compensation Act 1987 for assessment under Part 7 (Medical Assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 as to whether the following medical and related treatment is reasonably necessary as a result of injury (Myalgic Encephalomyelitis /Chronic Fatigue Syndrome with persisting Fibromyalgia) deemed to have happened on 29 November 1996:
(a)Investigations for cardiac symptoms and blood tests/pathology for cholesterol, HOL, LAL, TG, glucose, Homocysteine;
(b)Investigations for cardiac symptoms and blood tests/pathology for cholesterol, HOL, LAL, TG, glucose, Homocysteine;
(c)IVF treatment.
4. Registrar to list the matter for telephone conference with Arbitrator Edwards after assessment of the Applicant by Approved Medical Specialists in accordance with Orders 2 and 3. 2.”
The Amended Certificate of Determination was issued on 22 December 2016. The only amendment addressed the duplication in 3(a) and (b) above.

GROUNDS OF APPEAL

Mr Hallmann relies on thirty “grounds of appeal”. He groups the grounds into six “issues”. The issues allege error with respect to:
(a)the exclusion of his Application to Admit Late Documents (Issue 1);
(b)the Arbitrator’s decisions on interest (Issue 2);
(c)admissibility of medical reports of Professor Wakefield and Dr Potter (Issue 3);
(d)consequential loss (Issue 4);
(e)domestic assistance (Issue 5), and
(f)the terms of the referral to the AMS (Issue 6).

Issue 1 – Grounds 1–3: Late documents

Mr Hallmann alleges that the Arbitrator erred in making no findings as to the admissibility of his AALDs dated 17 March 2015, 10 July 2015, 27 September 2015 and 9 August 2016. He further alleges error in:
(a)excluding those documents and/or failing to admit them without having explained the procedure to Mr Hallmann;
(b)failing to provide reasons, and
(c)not having accorded him the opportunity to “make submissions” when Mr Hallmann was unable to locate the applications.

Issue 2 – Grounds 4–18: Interest

Mr Hallmann maintains that the Arbitrator made errors of fact in determining that he had failed to particularise his wages claim and/or that the particularisation of the wages schedule was unsatisfactory.
Mr Hallmann claims the Arbitrator further erred in:
(a)determining he had no jurisdiction to determine the ambit claim;
(b)taking into account the findings and decision by the previous Arbitrator in respect of wages material;
(c)considering the first meaningful wages schedule was not filed until October 2014;
(d)accepting National Mutual’s wages calculation and its submission that there had been no opportunity to consider the claim for interest and the quantification of the weeklies claim;
(e)failing to acknowledge “his own role” in the alleged disproportionate wages claim;
(f)failing to consider the “onus” on National Mutual to act as a model litigant in respect of its role in the prevention of a particularisation of a “coherent wages schedule (if that is to be the finding)”, and
(g)ascertaining the interest payable was limited to the period from 8 October 2014 to 26 November 2014.

Issue 3 – Grounds 19–22: Admissibility of Independent Medical Examination reports

Mr Hallmann alleges error in that the Arbitrator determined the objections to the reports of Professor Wakefield and Dr Potter went only to the weight to be accorded to the opinions expressed. He contends the Arbitrator failed to turn his mind to the “conflict of interest” and breach of the WorkCover Guidelines on Independent Medical Examinations Guidelines (the guidelines).
He further alleges the Arbitrator failed to consider “the effect of s 119(4) of the 1998 Act”.

Issue 4 – Grounds 23–25: Consequential loss

Mr Hallmann maintains that the Arbitrator erred in considering the disputed conditions are consequential, rather than an inherent part of the condition.
He further claims the Arbitrator erred in asserting that Mr Hallmann relied only on the reports of Dr Whiting, Dr Bird and Dr Watson.
In addition, he complains that the Arbitrator erred in failing to find National Mutual’s submission with respect to the pelvis to be speculative and should be dismissed.

Issue 5 – Ground 26: Domestic assistance

Mr Hallmann alleges error on the part of the Arbitrator in that for the purposes of a consideration of entitlement to domestic assistance, the Arbitrator considered the Table of Disabilities instead of WPI.

Issue 6 – Grounds 27–30: Referral to the AMS

Mr Hallmann contends that the Arbitrator erred in referring him to a specialist with experience in his condition but not in “testing, treatment and/or body part” and not requiring the AMS to be “suitably qualified and experienced”.
He further maintains error in not directing the Registrar to forward medical investigations, relevant documents and tests to the AMS.

LEGISLATION

Section 109 of the 1998 Act provides:
“109 Interest before order for payment
(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section:
(a)on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b)on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.”

Section 321 of the 1998 Act provides:
“321 Referral of medical dispute for assessment
(1)     A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2)     The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3)     The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.
(4)     The Registrar may not refer for assessment under this Part:
(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
Section 119 of the 1998 Act relevantly provides:

“119 Medical examination of workers at direction of employer (cf former s 129)

(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
…
(4) A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the Workers Compensation Guidelines or at more frequent intervals than may be prescribed by the Workers Compensation Guidelines.”

Clause 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides:

“44 Restrictions on number of medical reports that can be admitted

(1)     In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)     Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)     In this clause:
forensic medical report, in relation to a claim or dispute:
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”

Rule 14.1 of the 2011 Rules provides:

“14.1 Tapes, films, photographs etc

(1)     This rule applies to:
(a)     videotapes, and
(b)     audiotapes, and
(c)     films or photographs, and
(d)     x-ray film, and
(e)the results of specialised medical investigations, including computerised tomography, medical ultrasound and magnetic resonance imaging scans, and

(f)     any documents produced or received by electronic means,
on which a party proposes to rely in any proceedings.
(2)    Where a document to which this rule applies constitutes surveillance material, any investigator's report concerning the material:
(a)     must clearly and unambiguously identify the material, and
(b)     is, for the purposes of subrule (3), deemed to be part of the document.
(3)     A document to which this rule applies is, subject to this rule, a document for the purposes of rule 10.3.
(4)     In the case of documents referred to in subrule (1) (e):
(a)     original films or scans are not to be lodged with the Commission, and
(b)the lodging and service of a list describing and clearly identifying the films or scans satisfies the lodging and service requirements of rule 10.3, and
(c)original films or scans may be taken or delivered to an approved medical specialist undertaking an assessment for the purposes of the relevant proceedings.

(5) A party who intends to take or deliver original films or scans as referred to in subrule (4) (c) in the course of proceedings must notify the Commission and the other parties to the proceedings by notice in writing, not less than 7 days prior to the taking or delivery, of the party's intention.”

SUBMISSIONS

Applications to Admit Late Documents

Mr Hallmann submits that the Arbitrator has erred in respect of his AALDs dated 27 March 2015, 10 July 2015, 27 September 2015 and 9 August 2016.
He alleges error in that the Arbitrator:
(a)failed to make findings as to their admissibility, and
(b)excluded the documents.
In the event that he did make findings (and Mr Hallmann was unable to locate the documents), the Arbitrator erred in:
(a)not having explained the procedure with respect to late documents;
(b)not having provided reasons, and/or
(c)not having accorded him the opportunity to make submissions.
Mr Hallmann submits he did not have the benefit of legal representation and says that his condition impacts his ability to comprehend, participate and conduct the matter. He says he was not aware that there was a “cut-off date” for filing documents.
By further submissions, Mr Hallmann submits that because the earlier proceedings (matter no 5494/13) were struck out, he has developed a “fear” of being struck out which he communicated to the Arbitrator at the arbitration on 17 March 2015. He submits he has faced persistent applications by National Mutual to have the matter struck out.
Mr Hallmann relies on a further extract from the transcript of that day, where he is recorded to have said he had not had the opportunity to adduce his evidence because National Mutual keeps “coming up with surprise argument after surprise argument … that had nothing to do with the s 74 notice”.[31] Additionally, he says that he was reluctant to file further material because he wanted to minimise the volume of paperwork.
[31] Mr Hallmann’s submissions on appeal, [10].
Mr Hallmann complains that National Mutual have failed to comply with the model litigant policy. He says National Mutual have taken advantage of him by constant threats of strike out applications, by its “surprise arguments” and because of his cognitive impairment.
With respect to his disabilities, Mr Hallmann refers to the requirements of the Workers Compensation Commission’s Access and Equity Charter 2006, that the Arbitrator must:
(a)conduct proceedings according to law, equity, good conscience and the substantial merits of the case;
(b)abide by the rules of procedural fairness and afford the parties adequate opportunity to participate in the proceedings;
(c)take into consideration his special needs;
(d)ensure communication between the parties occurs in an open and transparent way, and
(e)avoid giving rise to an unfair advantage to one party over another.
Mr Hallmann submits that National Mutual has not been open and transparent and took unfair advantage of him. He says prior to 18 August 2015, he was unaware that late documents are not generally admissible after submissions have commenced.
Mr Hallmann says he has been denied procedural fairness and natural justice by not having the benefit of those documents and not having the opportunity to be heard as to their admissibility.
He maintains that for these reasons there are exceptional circumstances to consider.
Mr Hallmann describes the contents of each of the AALDs.
He submits the documents contained in the application dated 9 August 2016 are admissible, relying on r 10.3 of the 2011 Rules and the Presidential authority of Ross v Zurich Workers Compensation Insurance.[32] He says those documents are “fresh evidence” and were previously not in existence, therefore could not have been filed earlier.
[32] [2002] NSWWCCPD 7 (Ross).
With respect to each of the applications, Mr Hallmann submits that:
(a)the Commission and the respondent were on notice that the documents were coming;
(b)the documents are essential to the issues and without them he would be hampered in his ability to prove his case, and
(c)the documents are probative. He would be denied natural justice because without the documents he is unable to prove his case.
With respect to the documents attached to the AALDs dated 27 March 2015, 10 July 2015 and 27 September 2015, Mr Hallmann also submits that National Mutual has at all times been in possession of those documents,
In relation to the documents attached to the AALDs dated 27 March 2015 and 10 July 2015, Mr Hallmann maintains that he applied reasonable diligence in attempting to find the documents amongst the exceedingly large amount of paperwork generated in his case.
He also maintains that with respect to both of the applications referred to in [211] above National Mutual has failed to comply with the model litigant policy.
Mr Hallmann further submits that if the Arbitrator has made a decision with respect to admission of the above application:
(a)the Arbitrator was required to afford him procedural fairness by explaining that documents are not to be admitted once submissions have commenced, and
(b)the Arbitrator erred in failing to provide reasons as to why the documents were not admitted.
National Mutual submits that on review of the transcripts of the telephone conferences and the arbitration, there is no record of Mr Hallmann making an application to have the late documents admitted into the proceedings.
Even if it was considered the schedule of evidence to be referred to the AMS, which was prepared by the Arbitrator, amounted to a decision not to admit the late documents, there was still no express application by Mr Hallmann to have them included.
Further, National Mutual refers to a direction of the Arbitrator dated 21 August 2015 wherein the Arbitrator “reminded” Mr Hallmann that the time for filing late documents closed when submissions were called for. National Mutual submits that if that constitutes a “decision” Mr Hallmann has not challenged that decision by:
(a)nominating that decision as part of this appeal;
(b)seeking leave with respect to that interlocutory decision, or
(c)seeking an extension of time to appeal, given the decision was over two years outside the time to appeal.
National Mutual submits that submissions were well under way before the late documents were attempted to be filed. The general procedural rule is that the evidence is closed once submissions have commenced.
National Mutual says Mr Hallmann cannot point to error with respect to the any of the decisions of the Arbitrator, or his reasoning. Accordingly, Grounds 1–3 of the appeal ought to be dismissed.
It maintains that Mr Hallmann’s explanation that he was trying to limit the paperwork filed is inconsistent with extensive material he has sought to rely upon.
By way of reply, Mr Hallmann re-asserts his argument at [197]–[198] above.
As I understand it, he further submits that at the telephone conference on 15 August 2015, the Arbitrator directed National Mutual’s legal representative to organise a further telephone conference if an issue arose as to the admissibility of documents. Mr Hallmann asserts that as National Mutual did not arrange such a telephone conference, it cannot now object to the admissibility of documents.
Mr Hallmann contends that this ground of appeal should succeed because:
(a)National Mutual as a model litigant was obliged to “bring forward” IME reports, which they withheld, and which were a breach of s 119(3);
(b)the Arbitrator made no apparent decision on the admission of crucial documents which need to be before the AMS and “are essential for procedural fairness and natural justice”;
(c)National Mutual did not object to the documents because they failed to organise a telephone conference, and
(d)there are “other matters pleaded” that justify their admission.
Mr Hallmann submits that National Mutual’s submissions based on the recollection of its legal representative cannot be reliable and ought to be rejected.
He alludes to various parts of the transcripts of proceedings where it is alleged National Mutual sought to strike out parts of his case.
Mr Hallmann also refers to the transcript of the telephone conference on 18 August 2015. In that telephone conference, National Mutual drew the Arbitrator’s attention to an AALDs dated 10 July 2015 that had been included with submissions filed by Mr Hallmann. National Mutual objected to the documents on the basis that submissions had already commenced. The Arbitrator did not rule on the admission of the documents. Mr Hallmann submits that National Mutual was directed to arrange a telephone conference if it objected to the documents and it did not do so.
He submits that this lead him to the false belief that those documents were admitted.
Mr Hallmann maintains that he does not understand National Mutual’s submission in relation to having to seek leave to appeal the potential interlocutory decision dated 21 August 2015, but if he does require leave to raise that point, he now seeks it.
Mr Hallmann advises that the AALD’s sought to be adduced into evidence relate to the following issues:
(a)AALD 27 March 2015 – the wages claim;
(b)AALD 10 July 2015 – “historical documents” related to pelvis, sense of smell and eyes;
(c)AALD 27 September 2015 – past decisions of 2004 and 2007, and
(d)AALD 9 August 2016 – update reports from Dr Whiting from 2015 and 2016.
Mr Hallmann provides reasons as to why the documents are relevant, namely:
(a)the wages information goes to the interest claim;
(b)he was previously unaware that National Mutual would submit there was no contemporaneous evidence of complaints relating to the pelvis, smell and eyes;
(c)he was unaware that the court documents were already in evidence, and
(d)further medical evidence became available that reflected the development of medical opinion and addressed his deteriorating condition.
Mr Hallmann repeats many of the matters made in his substantive submissions, which include matters related to the previous proceedings before Arbitrator Stanton, alleged breaches of the model litigant policy and that his non-compliance with timetables has been as a result of his condition. He further submits that he was too unwell to engage in a discussion about the documents to be referred to the AMS. Further he submits that he has only limited practise in law and could not be classed as a qualified lawyer.

The claims for interest

Mr Hallmann submits that:
(a)the claim was properly particularised in the schedules attached to the ARD;
(b)he was unrepresented and looked for direction from the insurer’s spread sheet;
(c)National Mutual breached the model litigant policy by misleading the Arbitrator in its submissions that it could not respond to the claim until actual wages and evidence of comparable wages was provided. Further, that National Mutual withheld clear details of payments made, which frustrated his ability to properly particularise his claim;
(d)in 2011, he made several demands for back payments to 2004, 2006 and 2007 with respect to various claims. Additionally, he provided supporting documentation;
(e)documents in support of his claim were alleged by the insurer to have not been received or lost, and
(f)he was advised in 2004 b7y the insurer that no medical certificates were required.

The “ambit claim”

Mr Hallmann submits the Arbitrator erred in finding the particularisation of the wages claim was unsatisfactory. He says the finding was irrelevant. This is so because he says his submissions ought to be accepted that the Arbitrator did have jurisdiction to determine the interest claim by virtue of the COD of 16 March 2004.
Mr Hallmann submits there was ample evidence of a claim being made, and the Arbitrator had jurisdiction to determine the claim.
He further submits that the exclusion of the AALD dated 27 March 2015 caused denial of natural justice as those documents provided crucial evidence that National Mutual had denied his claim.
Mr Hallmann maintains the COD issued on 16 March 2004 vested jurisdiction in the Arbitrator to determine interest from 2004. This is said to be because even though it recorded an award for the respondent in respect of ongoing weekly payments, this was not the intention between the parties. Mr Hallmann says that National Mutual’s legal representatives conceded that to be the case in 2005 and accordingly, he was entitled to weekly payments beyond that date. He asserts National Mutual ought to have asked the Arbitrator to amend the Certificate, and did not do so.
Mr Hallmann submits that s 110 of the 1998 Act gives him an entitlement to interest once the weekly payment order was made in 2004. He submits that National Mutual was legally bound to comply with that order so that he was entitled to interest on amounts unpaid.
Mr Hallmann says that there is no requirement for him to provide evidence of making a claim because that claim flows “as of right” on the basis of application of the “slip rule” to the 2004 COD and the operation of ss 109 and 110 of the 1998 Act. He says the Arbitrator was obliged to award interest.

The interest on arrears of weekly payments

Mr Hallmann submits that the view expressed by the Arbitrator that he had failed to properly particularise his claim for arrears of weekly compensation was unfair. He says that is because the Application to Resolve a Dispute form does not provide sufficient room to properly particularise the complex and detailed claim.
Mr Hallmann submits that National Mutual ought to be estopped from asserting that the information provided by him was unsatisfactory and that it was unable to understand the schedule provided.
Mr Hallmann claims further error on the part of the Arbitrator with respect to the previous Arbitrator’s dismissal of matter no 5494/13. Those proceedings were dismissed for failure to prosecute the matter with due dispatch. Mr Hallmann submits that the Arbitrator should have taken into account Arbitrator Stanton’s criticism of the National Mutual’s list of payments. He submits that the delay in being able to provide a comprehensive wage schedule was caused by that conduct.
Mr Hallmann submits the Arbitrator overlooked that he had duly made a claim in 2001 and had made various claims thereafter. He further submits there was no requirement to particularise his claim because he had made his claim in 2004.
Mr Hallmann further submits that National Mutual unduly delayed the settlement of the weeklies claim in these proceedings. He says if National Mutual had not refused to acknowledge the claim until November 2014, the matter could have been resolved earlier.
Mr Hallmann maintains there was sufficient information from him for the claim to be assessed. He says the claims in 2010 reflected similar amounts to the amounts claimed in these proceedings.
Mr Hallmann submits the correct date for calculating the claim for interest is 16 March 2004 and that he should be entitled to interest on the award the subject of that determination. He says there was no agreement or order to pay interest on that sum and it remains a live issue.

Consequently, National Mutual was granted two extensions to file its opposition to the appeal. The opposition was filed on 14 February 2018, in accordance with the extended timetable.
Mr Hallmann was granted three extensions to the time for filing his submissions in reply, which were ultimately due by 13 April 2018. No further submissions were received by 13 April 2018 and there was no further application for extension of the time made prior to the expiry date.
I therefore proceeded with my consideration of the appeal.
On 27 April 2018, the Commission received by email further submissions comprising 202 pages described as an “Amended Response” to the reply. The covering email did not seek to have the date for filing amended but requested the documents should be accepted.
Any application for extension of time to respond to a direction issued by the Commission should properly be made before the time expires.
In Bale v Mills,[42] the Court of Appeal said (citations omitted):
“The parties here, and their legal representatives, may perhaps be forgiven if there was any lack of clarity in the leave granted by the President. It is useful, however, to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given.
Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position.
Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court
The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshal and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties' rights to argument and to be heard have been exhausted.
The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent.”
[42] [2011] NSWCA 226, [58]–[61].
While I understand Mr Hallmann’s position to be that he has a medical condition that affects his ability to meet deadlines, there is no explanation from Mr Hallmann as to why he did not seek to make a further application to extend the time for filing beyond 13 April 2018.
As a legal graduate who has practised for a period of two years, Mr Hallmann ought to be aware that such applications must be made before the time expires. If he was not, it should have been apparent to him from his experience throughout the conduct of the current proceedings that it was required.
The final submissions in this appeal were due on 13 April 2018 and after that date, the appeal was closed and the decision was reserved for consideration by me.
In accordance with the authority in Mills reproduced above, and to deal with this appeal in as timely a manner as is possible in the circumstances, I decline to consider the further submissions.

DISCUSSION ON THE MERITS OF THE APPEAL

An appeal to a Presidential member is limited to a determination of whether there is error of fact, law or discretion arising out of a decision by an Arbitrator and to the correction of such error.[43]
[43] Section 352(5) of the 1998 Act.
In order for Mr Hallmann to succeed, he must first identify the decision or decisions of the Arbitrator about which he is dissatisfied.

The model litigant policy

Mr Hallmann repeatedly complains that National Mutual and its insurer have breached the model litigant policy. Those alleged breaches include:
(a)the role it played in preventing a proper particularisation of the wages claim;
(b)constant threats to have the matter struck out;
(c)taking advantage of his position as an unrepresented litigant;
(d)lack of transparency, and
(e)proceeding to rely on its forensic medical reports when it knew there was a conflict of interest.
Mr Hallmann’s allegation that National Mutual has prevented the proper particularisation of his claim stems from the previous 2013 proceedings and comments made by Arbitrator Stanton. Such a complaint cannot form a proper ground of appeal in these proceedings.
Mr Hallmann has not provided any particulars or pointed to any evidence of when and on what basis National Mutual has made “constant threats” to have these proceedings dismissed apart from the transcript of 11 June 2015. I have perused the transcripts and apart from an early suggestion by National Mutual’s former legal representative that the matter was probably not ready to proceed, I can find no reference of any application to have the matter struck out. The transcript of 11 June 2015 reveals that it was in fact the Arbitrator who foreshadowed that if Mr Hallmann failed to comply with the timetable National Mutual might make such an application. The Arbitrator also indicated that he would dismiss the matter if Mr Hallmann failed to comply, either on the application of National Mutual, or on his own motion.[44]
[44] Transcript of Arbitration, 11 June 2015, 11.30; 45.15–20.
In addition to the transcripts of proceedings, I accessed the Commissions’ records. In an email dated 31 August 2016, National Mutual requested the matter be listed for a further telephone conference to address the admission of the AALD dated 10 July 2015 and foreshadowed that as Mr Hallmann’s submissions were filed a year late, it would make an application for the matter to be dismissed at that telephone conference.
The then Deputy Registrar forwarded the Arbitrator’s Direction in response which was in the following terms:
(a)the request for a further telephone conference was declined;
(b)leave to file further evidence closed on 2 April 2015, when the Direction was issued to file submissions, and both parties had closed their case;
(c)the application to dismiss the proceedings was refused, and
(d)time was extended for submissions to be filed by National Mutual in respect of the admissibility of the reports of Professor Wakefield and Dr Potter.
Both parties were provided with the above email and Direction. This was the only application made by National Mutual to have the matter dismissed and it was made in circumstances that the Arbitrator indicated was likely to occur either on National Mutual’s application or of his own motion.
I cannot identify any circumstance where National Mutual has acted without transparency or asserted its position to the detriment of Mr Hallmann, other than in proper evidence based circumstances. The application to have the matter struck out in 2016 could not be a breach of the model litigant policy in circumstances where the Arbitrator had indicated that was a probable course and Mr Hallmann was significantly out of time in filing his submissions.
National Mutual seeks to rely on medical evidence obtained by it in defence of this case. For reasons discussed below, Mr Hallmann has not established that there is a conflict of interest in relation to Professor Wakefield, Dr Potter and Dr Slezak providing reports on behalf of National Mutual. There is no evidentiary basis for that allegation.
The model litigant policy does not extend to require litigants to forego invoking their fundamental rights or privileges[45] and does not impinge on a litigant’s ability to enforce its substantive rights.[46]
[45] Brandon v Commonwealth of Australia [2005] FCA 109, [11].
[46] Elston v Commonwealth of Australia [2014] FCA 704, [72].
Allegations of a breach of the model litigant policy are serious allegations that should not be made without proper foundation.[47]
[47] Director of Fair Work Building Inspector Directorate v McDermott [2016] FCA 1147.
The only legal remedy available to a person aggrieved by a breach of the model litigant policy is potentially a favourable costs order,[48] which is not available in the Commission’s jurisdiction, except in some limited exceptions that do not apply to Mr Hallmann.
[48] Galea v Commonwealth of Australia (No. 2) [2008] NSWSC 260.
In any event, the role of the Presidential member in this jurisdiction is limited to correction of error in the Arbitrator’s decision. The conduct of National Mutual in its defence of this claim does not constitute a breach of the model litigant policy nor has it resulted in an error of fact, law or discretion in the Arbitrator’s decision-making process.
Even if a breach of the model litigant policy was substantiated, there is no costs remedy available to Mr Hallmann, so there is no sanction available.

Issue 1 – Grounds 1–3: error in relation to the admission of AALD’s dated 17 March 2015, 10 July 2015, 27 September 2015 and 9 August 2016

Mr Hallmann submits firstly that the Arbitrator erred in making no findings as to the admissibility of these late documents.
I have read the transcripts and with the exception of the AALD dated 10 July 2015, there is no record of Mr Hallmann making an application to have AALD’s of those dates admitted. Nor is there any record of the Arbitrator failing to address any such application. The Arbitrator cannot err in failing to deal with an application when there has simply not been one.
National Mutual points out that the only potential “decisions” of the Arbitrator are either:
(a)a Direction issued on 21 August 2015, in which the Arbitrator “reminded” Mr Hallmann that the time for filing AALD’s closed once submissions had commenced, or
(b)the decision with respect to list of documents for inclusion in the referral.
Mr Hallmann has not nominated either of those “decisions” as a basis for this appeal. If the decision upon which Mr Hallmann relies is either or both the “decisions” referred to above, he is well out of time to appeal them.
In any event, Mr Hallmann has legal qualifications, has demonstrated knowledge of the 2011 Rules and has referred to them throughout the proceedings before the Arbitrator and on appeal. He particularly relies on r 10.3 with respect to the admissibility of his “fresh evidence”. That is indicative that Mr Hallmann was or ought to have been aware of the requirement in r 10.3(3) that all late documents are to be filed and served at the very least five days prior to the arbitration date.
The transcripts reveal that the matter proceeded to arbitration on 28 January 2015. All the AALD’s which are the subject of Mr Hallmann’s complaint post-date the commencement of the arbitration. Mr Hallmann made further applications for admission of documents between that date and the next Arbitration date of 17 March 2015, which were dealt with by the Arbitrator. This indicates Mr Hallmann was aware of the process to adduce evidence and r 10.3.
With the exception of the AALD of 10 July 2015, there is simply no evidence that points to Mr Hallmann seeking to adduce the AALD’s referred to above. Nor is there any evidence that any such application was either ignored or declined by the Arbitrator.
It appears the AALD of 10 July 2015 was filed and served annexed to Mr Hallmann’s submissions of that date. At a telephone conference on 18 August 2015, National Mutual objected to the documents on the basis that submissions had already commenced and it would be prejudiced by their admission at that late stage. Due to time constraints, the Arbitrator made no order in respect of the AALD. The Arbitrator did however indicate that if National Mutual wished to object to future documents, it should approach the Commission to arrange a telephone conference.[49]
[49] T, 18 August 2015, 19.6–11.
The email dated 31 August 2016 referred to above at [332] accords with the Arbitrator’s requirement that any objection to Mr Hallmann’s AALD’s should be the subject of a telephone conference arranged by National Mutual. The Direction issued on 2 September 2016 referred to above at [332] discloses that the Arbitrator rejected the AALD dated 10 July 2015 because submissions had already commenced and it would not be procedurally fair to admit them.
The onus is on the person who seeks to overturn the decision to establish there are sufficient grounds to do so.[50]
[50] Singh v Ginelle Pty Ltd [2010] NSWCA 310, [45], [47] and [50].
The power to admit late documents pursuant to r 10.3(4) is a discretionary power. In discussing the principles to be applied in an appeal from a discretionary decision, Heydon JA in Micallef v ICI Australia Operations Pty Ltd (Sheller JA and Studdert AJA agreeing) said it must be established that the decision maker:
(a)made an error of legal principle;
(b)took into account some irrelevant matters;
(c)failed to take into account, or gave insufficient weight to some relevant matters, or
(d)arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[51]
[51] [2001] NSWCA 274, [45].
The Arbitrator made no error of legal principle, did not take into account an irrelevant matter and did not fail to give proper consideration to some relevant matter. The decision to exclude documents beyond the commencement of submissions could not be regarded as unreasonable or unjust. A party to litigation who has commenced submissions ought not be faced with further evidence about which no submission had been made. To allow the evidence would result in an absolute denial of natural justice.
Mr Hallmann was given the opportunity to include further material in the referral to the AMS but declined to participate, citing his medical condition as the cause. In those circumstances, the Arbitrator cannot have erred in failing to include the documents.
Mr Hallmann’s submission that he was “in fear” of being struck out because of the volume of material is inconsistent with his reliance on extensive material in his numerous applications. Further, the reason the 2013 proceedings was struck out was because of the inadequacy of material to support the wages claim and not because of superfluous documentation.
The Commission and the Arbitrator provided Mr Hallmann with significant leeway in respect of the admission of late documents despite those applications being non-compliant with the 2011 Rules. Even if Mr Hallmann sought to adduce that evidence, pursuant to r 10.3(3) the Arbitrator was entitled to disallow further AALD’s in order to conduct the arbitration in a procedurally fair manner.
For all of the above reasons, Grounds 1–3 of the appeal have no merit.

Issue 2 – Grounds 4–18: Interest

Mr Hallmann’s claim before the Arbitrator was a claim for interest on arrears of compensation said to be payable from 2004. Some of Mr Hallmann’s submissions on appeal include reference to an interest claim pursuant to s 110 of the 1998 Act. That is, for interest on an award for late payment of that award. No particulars have been provided by Mr Hallmann as to when the award monies were paid with respect to the 2004 award or the weekly award the subject of these proceedings. No relevant submissions with respect to the application of s 110 to the current claim were made at arbitration. As such a claim was not properly before the Arbitrator, it will not be considered on this appeal.
Mr Hallmann alleges the Arbitrator has erred in respect of a number of findings of fact.
Firstly, he contends error in finding that the claim for weekly payments was not properly particularised until the schedule provided on 8 October 2014.
Mr Hallmann’s submissions in support include that he was unable to properly particularise his claim because the insurer failed to provide information on payments made, alleged documents had not been received, the form in the ARD was inadequate and he was unrepresented.
As National Mutual identified, Mr Hallmann was able to provide a wages schedule on 8 October 2014 that enabled the weekly payments claim to resolve. That document was prepared by Mr Hallmann without any additional information from National Mutual and without legal assistance.
Mr Hallmann was legally represented in the 2013 proceedings when the wages claim was found to be inadequate and unrepresented when he filed the wages schedule on 8 October 2014.
Mr Hallmann’s arguments are internally inconsistent. On one hand, he argues that the claim made in 2010 could have been dealt with then, but on the other hand he says he was unable to properly particularise his claim because of the conduct of National Mutual.

At arbitration, Mr Hallmann could not identify any material in the evidence to support his allegation that he had particularised a claim for interest to the insurer.
In his written submissions, Mr Hallmann referred to correspondence passing between him and the insurer wherein interest was discussed. The page citations do not marry with the assertions made as to their content and do not particularise an interest claim pursuant to s 109. He also referred to the letter providing particulars dated 15 August 2014. At best, some of these documents make a hypothetical demand for interest at an unspecified rate and for an unspecified period, relying on s 110 of the 1998 Act.
Mr Hallmann submits the COD issued on 16 March 2004 vested jurisdiction in the Arbitrator to determine interest from 2004. He says interest should flow “as of right”. I note the COD included a determination that:
“There be an Award in favour of the Respondent with respect to the Applicant’s claim for weekly payments for the period 12 April 1997 to date and continuing.”
It appears that after the passage of some time, the parties agreed that the orders were not intended to preclude a claim for weekly payments beyond the date of the COD. The insurer subsequently paid several bulk payments of weekly compensation. When this matter came before the Arbitrator, Mr Hallmann was in receipt of continuing weekly payments. There was no evidence as to when those weekly payments had commenced.
The COD of 16 March 2004 did not provide a foundation for an entitlement to interest on payments made beyond that date. Although the parties agreed that the award for the respondent for future weekly payments would not have effect, Mr Hallmann was still required to pursue a claim for weekly payments that was properly particularised and able to be calculated before the Commission’s jurisdiction to award interest on those amounts could be enlivened.
Mr Hallmann further submits that the Arbitrator’s decision was affected by error when he took into account Arbitrator Stanton’s reasons in the 2013 proceedings. Arbitrator Stanton’s decision was not challenged by Mr Hallmann. The Arbitrator in the present proceedings was entitled to consider persuasive reasons given for a previous decision when assessing whether a claim had been properly particularised.
Mr Hallmann complains that the Arbitrator “overlooked” that he had made a claim in 2001. Mr Hallmann’s entitlements varied over time to make allowance for job-seeking, to include dependants at different stages, as well applying the transitional arrangements flowing from the 2012 amendments. It is irrelevant that Mr Hallmann made a claim in 2001 if his later claim for interest was in respect of weekly payments at various rates for periods after 16 March 2004.

Mr Hallmann submits that he has previously made claims and provided documentation in support of those claims. Assuming the claim for interest pursuant to s 109 had been properly made and denied, in order for the Arbitrator to exercise his discretion as to whether interest is payable on past payments, he needed to have evidence as to:
(a)when the claim was made;
(b)when full particulars were provided (including supportive documentation);
(c)when payments were made;
(d)the amount of those payments;
(e)the extent of any delay by Mr Hallmann in proceeding with the claim;
(f)any delay in payment, and
(g)whether Mr Hallmann was in receipt of other payments such as social security or income protection through that period.
It is not sufficient that assertions are made in statements or submissions without reference to the evidence before the Commission.
From a perusal of the documents in evidence it is not possible to identify the periods during which he has been in receipt of Centrelink payments and at times income protection payments. The evidence does establish that such payments were made.
Matters that mitigate against awarding interest are the delay on the part of the worker in bringing his claim and that at unspecified times he was in receipt of social security payments and/or income protection payments[52].
[52] Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSW CCR 56; Oliviera v Peter Favetti & Sons Pty Ltd (2001)22 NSW CCR 34.
Mr Hallmann has brought numerous disputes to the Commission since 2004 in which a claim for interest supported by evidence could have been included in those proceedings. Further delay was occasioned by the 2013 matter being dismissed for failure to prosecute the matter with due dispatch. Mr Hallmann has not adequately explained the delay in prosecuting an interest claim.
Mr Hallmann maintains that in 2010 and 2011 he provided sufficient particulars and supporting documents in claims made by him for payments from 2004, 2006 and 2007. It is relevant that the insurer paid substantial arrears of additional compensation in lumps sums over the period of 2010–2011. If Mr Hallmann contends that those claims enliven the jurisdiction of the Commission to determine an interest claim, then in the exercise of his discretion, the Arbitrator would need to consider the factors set out in [371] above, about which there was insufficient evidence.
The state of the evidence is such that the if the Arbitrator attempted to exercise his discretion, his fact-finding process would be a matter of pure conjecture. On that basis, the claim would fail in any event.

An entitlement to interest pursuant to s 109 of the 1998 Act does not arise as of right but flows from a determination by the Commission in the exercise of its discretion.[53]
[53] Pasminco Ltd v Walters [2005] NSWWCCPD 30, [77].
I have discussed the principles to be applied in an appeal from a discretionary decision at [351] above.

Mr Hallmann has not identified any error on the part of the Arbitrator in his decision that he had no jurisdiction to award interest on the “ambit claim”. Nor has he identified error in the Arbitrator’s decision in respect of the award of interest on weekly payments from 8 October 2014 to 26 November 2014.
On the basis of all of the above, appeal Grounds 4–18 have no merit.

Issue 3 – Grounds 19–22: Admissibility of IME reports

Mr Hallmann complains that the Arbitrator failed to determine the reports of both Professor Wakefield and Dr Potter were inadmissible. He alleges a conflict of interest. He makes extensive submissions as to why that is so, but fails to draw the Commission’s attention to documents that might support that assertion.
The Arbitrator considered the submissions of both parties and the authorities relied upon by National Mutual. The Arbitrator determined that in line with those authorities, the proper approach is to assess the opinions expressed in terms of weight, rather than admissibility.
Mr Hallmann does not complain that the Arbitrator misapplied those authorities. He maintains that the Arbitrator ought to have considered his submissions that the reports were inadmissible and accepted those submissions accordingly.
It is not sufficient for the aggrieved party to simply argue that he or she preferred a different outcome[54].
[54] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [72].
From the extensive documents provided, it appears that the only direct evidence relevant to the alleged conflict was the evidence referred to in Mr Hallmann’s submissions to the Arbitrator. The evidence consists of annexures to Mr Hallmann’s statement, namely annexures 186–191 (Dr Potter) and annexure 205 (Professor Wakefield).
On 1 August 2006, Mr Hallmann wrote to Professor Wakefield, requesting the Professor perform an examination and provide a report. The letter described his condition, his treatment regime and the history of his claim. Attached was an annexure described as “a brief overview” of his illness.
It appears to be common ground that Professor Wakefield declined to see Mr Hallmann, but instead referred him to Professor Lloyd.
There is nothing in the letter or annexure that goes further than to provide a history which would be provided to any medicolegal specialist, whether qualified on behalf of the applicant or by respondent.
Mr Hallmann does not submit and there is no evidence that there were any other communications between him and Professor Wakefield or that he ever attended for examination or treatment purposes.
In this context, the evidence does not disclose there was any conflict arising that prevented Professor Wakefield from providing an independent medicolegal assessment.
On 16 December 2009, Mr Hallmann wrote to Dr Stephen Potter seeking an assessment of his WPI for the purposes of his claim for domestic assistance. He noted that if the doctor agreed to do the assessment, he would forward all relevant medical reports.[55]
[55] Mr Hallmann’s statement, annexure 186.
A trail of emails was generated as follows:
(a)On 17 December 2009, Dr Potter’s rooms wrote:
“Dr Potter has reviewed your e-mail and the attachments and would be happy to examine you on the proviso that a detailed referral letter with specific questions is forwarded to him from your insurer CGU. It should be posted to …”
(b)Mr Hallmann replied on 17 December 2009 advising that the questions would be from his solicitor, and
(c)On 18 December 2009, Dr Potter’s rooms inquired via email as to where the invoice should be sent. Mr Hallmann replied that it should be sent to him.
It is common ground that Mr Hallmann thereafter terminated the proposed assessment because he was not satisfied Dr Potter had the requisite expertise.
Mr Hallmann provides no other evidence including any details of what constituted the “attachments” referred to by Dr Potter’s rooms in the above email of 17 December 2009.
As with Professor Wakefield, Mr Hallmann’s communications with Dr Potter’s rooms constitute nothing more than a request for an examination and report with a history of his injury and treatment. That information is normally made available to any medicolegal specialist who has been qualified by either the insurer or the worker to perform an examination and report.
There is nothing in the documentation that would support the necessity for Dr Potter to withdraw because of a conflict of interest.
Mr Hallmann relies on the Medical Appeal Panel decision of Bushby. That case involved an AMS assessment where the AMS had previously assessed Mr Bushby and provided a report for the insurer. The facts of that case were substantially different to the IME arrangements Mr Hallmann had intended to make with Professor Wakefield and Dr Potter.
Mr Hallmann has not cited any authority relevant to this jurisdiction that would support the notion that the reports are inadmissible. Neither medicolegal specialist has breached the Guidelines on Independent Medical Examinations and Reports. The Workers Compensation Commission Approved Medical Specialist Code of Conduct is not relevant to an IME.
As there has been no breach of the Guidelines, s 119(4) of the 1998 Act does not apply.
Mr Hallmann further alleges that the reports of Professor Wakefield, Dr Potter and Dr Slezak are inadmissible because they are “excessive forensic reports” and do not comply with cl 44 of the 2016 Regulation.
Mr Hallmann submits that Professor Wakefield is an immunologist and Dr Potter is a general physician. He maintains that cl 44 excludes those reports because he is not relying on experts in those fields.
This submission discloses a basic misunderstanding of the terms of cl 44. Clause 44(1) provides that only one forensic medical report can be relied upon in proceedings. Clause 44(3) allows an additional forensic report if the injury has involved treatment by more than one specialist with different areas of speciality, provided the additional medicolegal examiner is of the same speciality.
The areas of expertise of Mr Hallmann’s medicolegal experts is irrelevant to the admissibility of National Mutual’s reports. The area of expertise of Mr Hallmann’s treating specialists is the determinative factor.
Dr Potter is a rheumatologist, Professor Wakefield is an immunologist and Dr Slezak is a general physician.
Dr Slezak provided reports dated 21 August 2006 and 24 September 2010. Those reports were clearly obtained for the purposes of the assessing the extent of any entitlement with respect to earlier claims or disputes. On the basis of cl 44(4)(c) it does not fall within the definition of a forensic medical report and is therefore not excluded.
National Mutual submits that it is entitled to rely on the report of Dr Potter, rheumatologist as its primary report because that area of specialty is relevant to the treatment of Mr Hallmann’s injury in accordance with cl 44(2). Pursuant to cl 44(3) it is then also entitled to an additional report, that of Professor Wakefield because he is of the same specialty as Dr Reeves, immunologist, who treated Mr Hallmann.
I accept National Mutual’s submission as to the proper application of cl 44. In any event, it appears over the course of his treatment, Mr Hallmann consulted Dr Dan Lewis, rheumatologist,[56] and on that basis Dr Potter’s report is also admissible as they are of the same specialty.
[56] Report of Dr Bird, 8 March 2010, ARD, p 50.
The Arbitrator has not erred in admitting the reports subject to the weight each should be afforded. If I am wrong, Mr Hallmann’s submissions that the reports are inadmissible have no basis in law and are rejected.
For all of the above reasons, Grounds 19–22 of the appeal have no merit.

Issue 4 – Grounds 23–25: Consequential loss

Mr Hallmann alleges that the Arbitrator erred in his consideration of the pelvis, speech and sense of smell as consequential to the condition rather than an inherent part of the condition. He asserts the submissions made by National Mutual with respect to the pelvic condition are speculative and should have been dismissed.
In that regard, the Arbitrator has done nothing more in the case than to hear submissions, review the medical evidence and refer the question of causation to an AMS for independent, non-binding opinion. That course of action was taken as a step in the process of putting himself in a position to make a decision on causation as well as on the remaining issues.
The Arbitrator has not made a decision on the causation of the conditions. At some stage after Mr Hallmann attends the AMS and the Arbitrator is in receipt of that opinion, the Arbitrator’s role is then to consider all of the evidence and the submissions and either accept or reject the evidence and those submissions.
Until the Arbitrator makes that decision, he is not required to adjudicate on the submissions made and the Presidential member is not required or empowered to intervene in that process. There is no merit in the appeal on this issue.

Issue 5 – Ground 26: Domestic assistance

The Arbitrator has made no decision with respect to the application for domestic assistance. The Arbitrator was not satisfied that there was evidence before him that Mr Hallmann suffers permanent impairment of 15% in order to qualify for domestic assistance. He said he could not consider that issue “until assessment by an AMS under the Table of Disabilities including an assessment for the purposes of s 60AA.”[57] The Arbitrator reserved the issue until after the liability issues have been determined.[58]
[57] Reasons, [12].
[58] Reasons, [127].
The Arbitrator correctly observed that Mr Hallmann’s s 66 claims fall to be assessed under the Table of Disabilities. He did not express a view that the claim for domestic assistance was also to be assessed under that table.
He did not refer the claim for assessment pursuant to s 66 under the Table of Disabilities or to assess the WPI for the reasons expressed above. That assessment cannot take place until liability for the various conditions has been determined.[59]
[59] Section 321(4)(a) of the 1998 Act.
Mr Hallmann’s complaint is unfounded. There has been no decision with respect to domestic assistance by the Arbitrator about which Mr Hallmann can mount an appeal based on error of fact, law or discretion.

Issue 6 – Grounds 27–30: Referral to the AMS

Mr Hallmann complains that the Registrar has not abided by the Arbitrator’s order issued on 13 December 2016 and amended on 22 December 2016 (Grounds 27 and 29 of issue 6).
Mr Hallmann maintains that the nominated specialist ought to have experience in testing and treatment of the relevant body parts. He further contends that a rheumatologist is not relevantly qualified.
The order made by the Arbitrator is recorded at [177] above.
In the Amended COD, the Arbitrator remitted the matter to the Registrar for the purposes of a referral to the AMS. The Arbitrator did not make the referral. The referral was initiated by the Registrar.
The decision to select a rheumatologist as the AMS was made by the Registrar or his delegate exercising the functions of the Registrar. Such a function is not reviewable by a Presidential member.[60]
[60] Mayne Group Limited v Unicomb [2006] NSWWCCPD 107, [34].
Mr Hallmann also asserts error with respect to the Arbitrator’s decision to refer the question of causation to the AMS for a non-binding medical opinion.
The Arbitrator’s question to the AMS was for a non-binding opinion as to whether the symptoms in the pelvis, and sense of smell and sight are consequential conditions resulting from the injury.
It is common ground between the parties that Mr Hallmann alleges that those conditions are symptoms of the injury, rather than consequential. It seems implicit from the submissions recorded in the transcript that Mr Hallmann’s primary argument is that the conditions are part of the injury. It also appears that he maintains the alternate argument that they are consequential to the injury.
Section 321(1) of the 1998 Act gives the Arbitrator a discretionary power to refer a question or questions to an AMS with or without the consent of the parties. The opinion of the AMS is not binding, but is evidence in the proceedings.[61]
[61] Section 326(2) of the 1998 Act.
The practice is generally exercised by Arbitrators in circumstances where there are competing medical opinions and the Arbitrator forms the view that he or she requires further medical opinion (independent of that of the parties) in order to assist with the decision- making process.
The relevant reasons expressed by the Arbitrator for the referral were:
“It is evident from reading the medical reports relied upon by Mr Hallmann and the respondent that there is a divergent opinion as to whether he suffers with conditions of the pelvis, speech and smell resulting from ME/CFS with persisting FM.
…
I would be assisted on the question of causation by the non-binding opinion of the AMS whose field of specialist ME/CFS with persisting FM.”[62]
[62] Reasons, [117] and [120].
It is not apparent from the above as to whether the Arbitrator overlooked the allegation that Mr Hallmann’s conditions are a part of the injury itself or whether the Arbitrator did not need the assistance of the AMS to determine that question. In the circumstances, it cannot be alleged that the Arbitrator fell into error. In any event, the matter is best dealt with by seeking the Arbitrator amend the terms of the referral to request an opinion as to whether the conditions are a component of the injury.
In the absence of an identifiable error in the interlocutory decision, if Mr Hallmann is aggrieved that the referral did not include reference to “injury” the appropriate remedy is for Mr Hallmann to seek to have the referral amended to include the question of whether the injury was the cause of the symptoms. Mr Hallmann will need to advise National Mutual’s legal representatives of such application and ascertain whether the application to have the referral amended is consented to by them. I note from National Mutual’s submissions that it agrees Mr Hallmann relies on “injury” as well as “consequential condition” as being causative.

Other matters

On a number of occasions during the appeal process, Mr Hallmann contacted the Presidential Unit by telephone. On those occasions, Mr Hallmann attempted to raise issues relating to his case and the conduct of the insurer. At times Mr Hallmann has spoken to staff in the unit in an aggressive and abusive manner using unacceptable language.
Such conduct is entirely inappropriate and will not be tolerated.
Communication between a party to litigation and the Presidential Unit, either through its legal representative or when self-represented, should only be made in relation to matters concerning practice and procedure. It is not acceptable for a litigant to communicate with the Presidential Unit staff members in relation to contentious matters except with the knowledge and consent of the other party.[63]
[63] Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [No 2] [2013] NSWSC 1971.
While Mr Hallmann is not bound by professional rules that apply to legal practitioners, he is required to observe the protocols in place that protect the concept of procedural fairness.[64] He is also required to conduct himself in a manner acceptable to society and the profession.
[64] Re WS (No 3) [2017] NSWSC 1160, [15]–[16].
His conduct has fallen well short of that benchmark and has caused undue distress to two of the staff of the Presidential Unit. They are entitled to a safe workplace free from such behaviour. It is expected that in the future progression of his case, Mr Hallmann will conduct himself in a manner that accords with the above principles.

Application for extension of time to appeal

Mr Hallmann has failed to establish any error of fact law or discretion on the part of the Arbitrator. In the exercise of my discretion to extend time to appeal, I am required to take into consideration the prospects of success. As the Appeal lacks any prospect of success, I decline to extend the time required to file an Appeal.

DECISION

The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

Elizabeth Wood

Deputy President

21 May 2018