Hallmann v The National Mutual Life Association of Australasia Ltd
[2017] NSWWCCPD 14
•24 April 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Hallmann v The National Mutual Life Association of Australasia Ltd [2017] NSWWCCPD 14 | |
| APPELLANT: | Geoffrey Hallmann | |
| RESPONDENT: | The National Mutual Life Association of Australasia Ltd | |
| INSURER: | CGU Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-3657/14 | |
| ARBITRATOR: | Mr G Edwards | |
| DATE OF ARBITRATOR’S DECISION: | 13 December 2016 | |
| DATE OF APPEAL DECISION: | 24 April 2017 | |
| SUBJECT MATTER OF DECISION: | Power to dismiss proceedings for want of due despatch; s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998; r 15.8 of the Workers Compensation Commission Rules 2011 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | Bartier Perry | |
ORDERS MADE ON APPEAL: | 1. The Application Appeal Against Decision of Arbitrator is dismissed pursuant to s 354(7A)(c) of the Workplace Injury Management and Workers Compensation Act 1998 and r 15.8 of the Workers Compensation Commission Rules 2011 for failure to prosecute the proceedings with due despatch. | |
INTRODUCTION
This matter has an extensive procedural history. This appeal purports to appeal a determination of an Arbitrator in relation to various interlocutory and discretionary orders.
The appeal application lists a series of allegations of legal, factual and discretionary error. The allegations are unsupported by any submissions to substantiate the allegations of error. Notwithstanding several directions to rectify the procedural deficiencies, the appellant has persistently failed to do so.
For the reasons that follow the appeal is dismissed pursuant to s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and r 15.8 of the Workers Compensation Commission Rules 2011 (the 2011 Rules), for failure to prosecute the application with due despatch.
BACKGROUND
The appellant, Mr Geoffrey Hallmann, was employed by the respondent, National Mutual Life Association of Australasia Ltd, as a client advisory consultant. He alleges that as a result of his working conditions he has suffered from a range of medical conditions. It is not in dispute that Mr Hallmann suffers from myalgic encephalomyelitis/chronic fatigue syndrome with persisting fibromyalgia.
On 18 July 2014, Mr Hallmann lodged an Application to Resolve a Dispute in the Commission. He claimed weekly compensation from 16 March 2004, hospital, medical and rehabilitation expenses in the sum of $70,000, compensation for domestic assistance and permanent impairment compensation alleging 100 per cent impairment.
The dispute was referred for hearing before a Commission Arbitrator. The matter was heard over five days between 26 November 2014 and 19 March 2015. Mr Hallmann was self-represented at the conciliation conferences and arbitration hearings.
The claim for weekly compensation was resolved by agreement at a conciliation conference on 26 November 2014. “Short minutes of order” were signed by Mr Hallmann and counsel for the respondent setting out additional amounts of weekly compensation to which Mr Hallmann was entitled during the period between 16 March 2014 and 30 June 2014 in the agreed sum of $30,000.
The amount claimed in respect of interest on the arrears of compensation remained in dispute. Initially Mr Hallmann made a claim for the sum of $180,000 in interest for the delayed payment of weekly compensation. The resolution of the dispute in relation to the interest claim was delayed on several occasions due to Mr Hallmann’s failure to comply with the Arbitrator’s directions to file submissions.
On 13 December 2016, the Commission issued a Certificate of Determination. That Certificate of Determination was amended on 22 December 2016, to remove a duplicated order (order 3(b)). Nothing turns on that amendment. The Amended Certificate of Determination is in the following terms:
“The Commission determines:
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 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, and
(b)IVF treatment relating to the applicant and his partner.
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.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
On 20 January 2017, Mr Hallmann, filed an Application to Appeal Against the Decision of the Commission Constituted by an Arbitrator (the Appeal Application). The appeal application lists 11 grounds of appeal, which allege errors of fact, law and discretion.
The Appeal Application did not comply with Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6). Amongst other things, the Appeal Application failed to attach any submissions in support of the appeal, or make any attempt to substantiate the alleged grounds of appeal.
Under the heading “Submissions in support” the following is recorded:
“1. The submissions for the grounds of support will be forthcoming in due course.
2. The Applicant is self-represented and has an illness that impacts, physical health and cognitive function. For this reason, it will take the Applicant some time to finalise the submissions.
3. The applicant requests a period of two months to complete these submissions.”
ISSUES IN DISPUTE
The Appeal Application lists eleven grounds of appeal. In substance, the complaint relates to the Arbitrator’s orders in relation to the payment of interest and the admission into evidence of the reports of Drs Wakefield, Potter and Slezak.
In respect of the claim for interest, the Arbitrator found that it was not until 8 October 2014 that Mr Hallmann provided any meaningful wage schedule particularising his claim for outstanding weekly compensation. The Arbitrator held (at [76]) that Mr Hallmann had claimed the amount of his probable earnings varied between $5,961.54 per week to $11,923.08 per week. Those figures, so the Arbitrator held, stood in stark contrast to the comparable earnings of $1,000 particularised in Pt 5.2 of the Application. The Arbitrator held that until 8 October 2014, the respondent had no realistic opportunity to respond to the claim before the conciliation conference on 26 November 2014. Noting that the award of interest is a discretionary matter, in the exercise of his discretion the Arbitrator awarded interest on the amount of $30,000 at the “Supreme Court rate” applicable for the period from 8 October 2014 to 26 November 2014.
With respect to the complaint concerning the admissibility of the forensic reports of Drs Wakefield, Potter and Slezak, the Arbitrator concluded that the reports should be admitted into evidence subject to question of the weight to be attached to the evidence of those experts. The Arbitrator noted that this approach was consistent with the decision in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43. He further held that if the facts proven did not correspond with complete precision to the facts upon which the experts relied, the assumed facts provided a fair climate for the conclusions reached and the opinions expressed.
THE CONDUCT OF THE APPEAL PROCEEDINGS
On 27 January 2017, the Registrar issued a Direction granting Mr Hallmann additional time to prepare his appeal in compliance with Practice Direction No 6. The Registrar directed that Mr Hallmann file an Amended Appeal Application on or before 24 February 2017. Mr Hallmann did not comply with the Registrar’s Direction.
On 3 March 2017, the Registrar issued a Direction listing the matter for a telephone conference before me on 9 March 2017. The Direction stated, among other things:
“…the appellant will be required to show cause why the appeal should not be dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 and r 15.8 of the Workers Compensation Act 1987 for ‘want of due despatch’.”
At the telephone conference on 9 March 2017, Mr Hallmann participated without legal representation and Mr Underwood represented the respondent employer.
Mr Hallmann submitted that he was a “sick worker” and had had difficulty obtaining legal representation (T2.9). He also submitted that he was not in a position “at this stage to comply with the direction” and that he was in the process of making an application to the Independent Legal Assistance Review Service (ILARS) for full legal assistance (T2.27). He further submitted that he had contacted “around 200 solicitors” in the last month (T2.31; T3.21).
Mr Underwood submitted that the proceedings in this matter had been on foot for over two years and there had been long delays throughout. He submitted that Mr Hallmann’s last set of written submissions before the Arbitrator in relation to Mr Hallmann’s “objections to some of the respondent’s medical evidence were filed 12 months late” (T4.29).
Mr Underwood accepted that Mr Hallmann has some health issues but submitted that the delays and submissions in support of the reasons for extensions were “not supported by any contemporaneous medical evidence” (T5.7).
Mr Underwood further submitted that, apart from the appeal ground in respect of the interest award, the appeal is against an interlocutory decision. Therefore, Mr Hallmann requires leave pursuant to s 352(3A) of the 1998 Act. Mr Underwood then questioned whether Mr Hallmann’s appeal had been filed within time, noting that the decision appealed against is dated 13 December 2016 and the Appeal Application was filed on 20 January 2017, more than 28 days later (T5.20).
Having regard to the objectives of the Commission, pursuant to s 367 of the 1998 Act, Mr Underwood sought that the appeal be struck out or dismissed under s 354(7A) of the 1998 Act and r 15.8 of the 2011 Rules for a failure to prosecute the appeal with due despatch (T.6.21; T7.8). He added that the matter had progressed at a “glacial place in the last 16 to 18 months” with there having been about eight telephone conferences and five conciliation/arbitration hearings (T6.26).
During the course of Mr Underwood’s submissions Mr Hallmann prematurely terminated his involvement in the telephone conference. Several attempts to reconnect Mr Hallmann to the telephone conference were unsuccessful.
On 9 March 2017, I issued a Direction granting Mr Hallmann further additional time to prepare his appeal. Mr Hallmann was directed to file and serve an Amended Appeal Application that was in compliance with Practice Direction No 6 on or before 6 April 2017. The Direction again recorded:
“Failure to comply with this further direction may result in the appeal being dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 and r 15.8 of the Workers Compensation Commission Rules 2011 for ‘want of due despatch’.”
On 9 March 2017, Mr Hallmann sent an email to the Commission advising that he did not terminate the call. However, he got angry due to a “false representation about the date of order [of the decision]” made by Mr Underwood. As a result he “slammed the phone down and the phone terminated the call”. He then had “trouble receiving calls”.
Mr Hallmann further submitted that the “period of one month set out in the order is not achievable. It will take several weeks to get ILARS and a month or more to brief a solicitor and counsel from scratch – if they agree to take the matter on.”
This led to a series of exchanges between Mr Hallmann and Mr Underwood, but addressed to me. Those email exchanges were highly inappropriate and should not have been directed to me or any member of the Commission hearing the matter. The parties have been advised accordingly.
Mr Hallmann has not filed an Amended Appeal Application as directed, nor has he made any further contact with the Commission.
It has now been over three months since Mr Hallmann filed the non-complying Appeal Application.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any further conference or formal hearing and that this is the appropriate course in the circumstances.
DISCUSSION AND FINDINGS
Section 354(7A) of the 1998 Act provides:
“(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
Rule 15.8 of the 2011 Rules provides:
“15.8 Dismissal for want of due despatch
Failure by an applicant to prosecute the proceedings with due despatch is a ground of dismissal for the purposes of section 354(7A)(c) of the 1998 Act.”
INTERLOCUTORY DECISION
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The respondent submits, and I accept, that the ground of appeal relating to the admission of the forensic expert’s evidence, to be included in the material to be referred to the Approved Medical Specialist, is an interlocutory decision.
The Commission has consistently held that the distinction between an interlocutory order and a final order will be answered by asking “does the judgment or order, as made, finally dispose of the rights of the parties?”: Licul v Corney [1976] HCA 6; 180 CLR 213; 8 ALR 437 at 446.
In the Appeal Application Mr Hallmann stated “the applicant is self-represented and is unsure if the decisions here are in fact interlocutory. The applicant will provide submissions in due course.” As I have indicated, no such submissions have been provided.
The Arbitrator’s orders, in particular order no 3, identify that the dispute in relation to future medical treatment was remitted to the Registrar for referral to an Approved Medical Specialist pursuant to s 319 of the 1998 Act and s 60(5) of the 1987 Act.
The referral under s 60(5) for assessment under Pt 7 Ch 7 of the 1998 Act results in a non-binding medical opinion by an Approved Medical Specialist as to whether the proposed treatment is reasonably necessary as a result of the accepted injury. In accordance with the Arbitrator’s order (order no 4), following the provision of a Medical Assessment Certificate the matter is to be relisted before the Arbitrator for a telephone conference to consider the future conduct of the dispute.
It is clear from that sequence of events that the Arbitrator’s orders referring the matter to an Approved Medical Specialist is an interlocutory step. No final orders would be made in that regard until the receipt of a Medical Assessment Certificate. The matter would then proceed to final relief having regard to all of the evidence including the opinion expressed by the Approved Medical Specialist.
Irrespective of whether Mr Hallmann was successful in his appeal concerning the admission of the forensic expert’s report, the matter would still need to be referred to an Approved Medical Specialist for an opinion in relation to the matters referred to above. The Arbitrator has made it clear that those documents were admitted subject to weight. Mr Hallmann’s position is adequately protected. Once final orders are made by the Arbitrator, Mr Hallmann’s rights of appeal under s 352 of the 1998 Act will be available to him subject to the identification of any legal, factual or discretionary error.
For these reasons, even if the appeal proceeded, based on what is before me, I would be disinclined to grant leave to appeal the interlocutory orders.
THE AWARDING OF INTEREST
Section 109 of the 1998 Act provides as follows:
“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.
(3) This section does not:
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
The power to award interest pursuant to s 109 is discretionary, subject only to the limitations set out in subsections (2) and (3).
To succeed on appeal in respect of the interest decision, Mr Hallmann must demonstrate that the Arbitrator erred in exercising his discretion in that he:
(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning: Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (at [45]) applying House v The King [1936] HCA 40; 55 CLR 499.
There is nothing in the material before me to demonstrate that an error of the kind described above has occurred. On the contrary, the grounds of appeal are limited to a series of unsubstantiated allegations.
THE DISPOSITION OF THE APPEAL
For the following reasons I am satisfied that it is appropriate in the circumstances of this case that the appeal be dismissed pursuant to s 354(7A)(c) of the 1998 Act on the grounds specified in r 15.8 of the 2011 Rules, namely that Mr Hallmann has failed to prosecute the proceedings with due despatch. My reasons are as follows:
(a) The Appeal Application was procedurally deficient in that no submissions in support of the grounds of appeal were lodged.
(b) The Registrar’s Direction of 27 January 2017 with respect to the filing of an Amended Appeal Application was not complied with.
(c) Mr Hallmann was on notice from the Direction issued by the Registrar on 3 March 2017 that continued failure to comply with Practice Direction No 6 may result in the dismissal of proceedings for “want of due despatch”.
(d) Mr Hallmann’s premature termination of the telephone conference was self-indulgent and unsatisfactory.
(e) The Direction issued by me on 9 March 2017, again warning Mr Hallmann of the prospect of an order dismissing the appeal, was again not complied with.
(f) More than three months has now elapsed since the deficient Appeal Application was filed.
(g) Mr Hallmann’s claimed incapacity to comply with the Commission’s directions has been unsupported by any medical evidence.
(h) The limited prospects of success of the appeal for the reasons identified above.
(i) 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.
Accepting that Mr Hallmann is self-represented on the appeal and having regard to the reasons for delay to date, I consider that Mr Hallmann has had a sufficient opportunity to rectify the procedural deficiencies with the Appeal Application.
ORDER
The Application Appeal Against Decision of Arbitrator is dismissed pursuant to s 354(7A)(c) of the 1998 Act and r 15.8 of the 2011 Rules for failure to prosecute the proceedings with due despatch.
Judge Keating
President
24 April 2017
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