Hurlame Pty Limited trading as South Wagga Butchery v Smith
[2005] NSWWCCPD 145
•30 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hurlame Pty Limited t/as South Wagga Butchery v Smith [2005] NSW WCC PD 145
APPELLANT: Hurlame Pty Limited t/as South Wagga Butchery
RESPONDENT: Ronald James Smith
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9208-04
DATE OF ARBITRATOR’S DECISION: 31 August 2004
DATE OF APPEAL DECISION: 30 November 2005
SUBJECT MATTER OF DECISION: Procedural fairness; default judgment at teleconference; reconsideration as opposed to appeal
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Commins Hendriks Solicitors
ORDERS MADE ON APPEAL:
1.Orders 1 and 3 made by the Arbitrator on 31 August 2004 are confirmed.
2.Order 2 is varied to delete the words “a dependent spouse and”.
3.The issue of whether or not the worker’s spouse was dependent on him from 1 August 2004 within the meaning of section 37(4) of the Workers Compensation Act 1987 is remitted to the Arbitrator for determination in accordance with this decision.
4.The request for reconsideration of the Arbitrator’s decision made by the Appellant in paragraph 18 of its supplementary submissions dated 26 October 2005 is referred to the Arbitrator for determination.
5.The Respondent is ordered to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
The appellant is Hurlame Pty Ltd, which trades as South Wagga Butchery (‘the Appellant’ or ‘the Employer’). It seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) made at a telephone conference on 31 August 2004 and confirmed by Certificate of Determination dated 7 September 2004. The Appellant had not filed a reply prior to the telephone conference and did not participate in the telephone conference. The Arbitrator made an award of weekly compensation for total incapacity under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) in favour of Mr Ronald James Smith, a former employee of the Appellant, from 3 July 2004 and continuing. Mr Smith is the respondent to this appeal (‘the Respondent’). The Appellant’s insurer (‘the Insurer’) is QBE Workers Compensation (NSW) Limited.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 7 September 2004 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation from 3 July to 31 July 2004 at the rate for a worker with two dependent children under s37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation from 1 August 2004 at the rate for a worker with a dependent spouse and two dependent children under s37 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
Mr Smith was employed by the Appellant as a butcher in July 2001. He sustained injury in a motor vehicle accident while making deliveries for the Appellant on 14 March 2002 and thereafter made a claim on the Insurer for compensation and received weekly compensation until 2 July 2004. The Appellant terminated his employment on 8 October 2002. The Insurer denied further liability by letter dated 24 May 2004 and ceased weekly payments on 2 July 2004. Mr Smith filed his application to the Workers Compensation Commission (‘the Commission’) on 3 June 2004, in which he sought weekly benefits compensation from 2 July 2004 for total incapacity and attached various documents, including a number of medical reports.
The Commission set a timetable for the procedural preparation of the matter which required any reply to be filed by 1 July 2004 and set a telephone conference for 31 August 2004. Neither the Appellant nor the Insurer had filed a reply by the date of the conference and neither participated in the conference. The Arbitrator determined the application at the telephone conference, on the basis of the evidence before her, being the evidence filed by Mr Smith. The Arbitrator found on the basis of the medical evidence before her that Mr Smith suffered injury to his back, hips and both legs and feet as a result of the motor vehicle accident, which was during the course of his employment with the Appellant (paragraph 16 of the Reasons). She accepted medical reports of Dr Todhunter, orthopaedic specialist, dated 12 August 2003 and Dr Brooder, neurologist, dated 11 February 2004 that Mr Smith “is presently suffering from regional pain syndrome.” She continued “Dr Todhunter stated that this syndrome is totally incapacitating the Applicant for work and this will continue indefinitely into the future” (paragraph 17). She found that Mr Smith’s wife reduced her working hours from 31 July 2004 to help care for him and made orders on the basis of these findings.
ISSUES IN DISPUTE
The Appellant’s grounds of appeal as set out in its initial submissions are as follows:
(1)“That in the interests of natural justice the Commission should consider any evidence from the appellant before making a determination”; and
(2)“That the arbitrator inappropriately exercised his [sic] discretion and entered the orders without providing a further opportunity for the appellant to tender evidence before making a determination” (paragraph 3 of appeal under heading “Grounds of Appeal”).
The Appellant seeks that the matter be remitted to an arbitrator for fresh determination. It acknowledges that it is liable to the Respondent in costs.
The Respondent opposes the appeal on the basis that the Arbitrator was entitled to make her decision on the evidence available to her and it would be contrary to the objectives of the Commission as set out in section 361 [sic] of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) to allow the appeal. This is presumably intended to be a reference to section 367 of the 1998 Act. The Respondent further asserts that the Appellant has not shown any error by the Arbitrator.
ON THE PAPERS REVIEW
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.”
In the appeal the Appellant proposed that the matter should proceed by way of oral submissions, but, if this is not to be the case sought leave to file additional submissions. I was not persuaded by the reasons advanced by the Appellant that oral hearing is necessary, but by direction dated 12 October 2005 (subsequently corrected on 24 October 2005) gave each party the opportunity to make further submissions if that party wished to do so. The intention of this direction giving leave to make further submissions was also to give the parties the opportunity to comment if they wished on certain documents on the Commission file (being documents (5), (6) and (7) in the list below) that are not inter parties documents. Each party has filed further submissions in accordance with this direction. I will discuss the substance of the further submissions in the course of these reasons. The Appellant in its further submissions repeats its request that an oral hearing be held on the appeal. I do not consider this necessary, having regard to the further opportunity afforded the parties to make written submissions. Having regard to Practice Directions Numbers 1 and 6, the documents and submissions that are before me, and the narrow nature of the issues in dispute 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides time and quantum limitations on the filing of appeals. There is no dispute in this matter that the appeal was filed in time and that the requirements in section 352(2)(a) and (b), that the amount in issue exceed $5000 and constitute at least 20% of the amount awarded, are met. The Respondent opposes the grant of leave to appeal but I consider that the better course is to grant leave and then consider the merits of the appeal. I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give fresh evidence on appeal. The Respondent asserts that some of the material attached to the proposed reply, which in turn is attached to the appeal, was not previously served and opposes leave being granted to admit this material as “fresh evidence”. I consider that the appeal can be determined without consideration of this issue.
EVIDENCE AND SUBMISSIONS
The relevant material before me consists of the following:
1)The original application and attached documents registered by the Commission on 10 June 2004;
2)Certificate of Service of the Application to Resolve a Dispute and Timetable for Commission Proceeding filed by the Respondent on 16 June 2004;
3)Application to admit late documents filed by the Respondent on 24 June 2004;
4)Copy letter from the Commission to the Insurer at its Wollongong office dated 16 August 2004 advising of the teleconference on 31 August 2004;
5)Print out of email from the Arbitrator to the Commission dated 1 September 2004 as to the outcome of the teleconference;
6)Report of the outcome of the teleconference from the Arbitrator (attached to the email);
7)Draft statement of reasons and certificate of determination prepared by the Arbitrator and dated 31 August 2004 (attached to the email);
8)The Appellant’s application to admit late documents, being the reply, dated 3 September 2004 and marked received by the Commission on 6 September 2004;
9)Certificate of Determination dated 7 September 2004 and Statement of Reasons dated 31 August 2004 both forwarded to the parties on 7 September 2004;
10)Appeal received 10 September 2004;
11)Appellant’s submissions as to determination on the papers, received 17 September 2004;
12)Respondent’s submissions in reply, received 5 October 2004;
13)Direction issued by the Commission at my request permitting further submissions dated 12 October 2005, corrected 24 October 2005;
14)Appellant’s further written submissions, received 26 October 2005; and
15)Respondent’s further written submissions, received 9 November 2005.
Items 5, 6 and 7 appear on the Commission file and are relevant in determining the date of the decision, but are not inter-parties documents. As indicated above for that reason I have alerted the parties to their existence and sought any further submissions. Neither party takes any issue in their further submissions with these additional documents or the inference that flows from them that the decision was made on 31 August 2004 at or immediately after the telephone conference, notwithstanding the Certificate of Determination, which gives the 7th September 2004 as the date of determination.
DISCUSSION AND FINDINGS
To succeed on the appeal the Appellant must establish that the Arbitrator made an error in determining the matter in the manner and at the time she did. In determining whether or not there was any error it is first necessary to establish the sequence of events, as at the date of the decision and as they appeared to the Arbitrator. My findings on these matters are as follows.
Date of determination
I find that the Arbitrator made her decision at or immediately after the teleconference, on 31 August 2004. The Certificate of Determination is dated 7 September 2004, but it is apparent from the Reasons themselves (which are dated 31 August 2004), together with items 5,6 and 7 listed above that the decision was made on 31 August 2004. Paragraph 9 of the Reasons records that there was no attendance by the Appellant or Insurer at the teleconference despite attempts to find someone to take the call. Paragraph 10 continues “The Applicant was advised at the outset of the conference that the matter would proceed to determination”. The Reasons record that no evidence had been submitted on behalf of the Employer (paragraphs 11 and 15). This statement only makes sense if the decision was made at or immediately after the teleconference. It is conceded by the Appellant that it had not filed any documents until the Application to Admit Late Documents, attaching the proposed reply, which is marked received by the Commission on 6 September 2004, i.e. before the Certificate of Determination but after the date of the teleconference. The Appellant states that it was advised on 7 September 2004 that orders had already been “issued” by the Arbitrator and so the reply was rejected.
The outcome sheet completed by the Arbitrator, which is document 6 listed above, contains the following under the heading “Arbitrator notes on teleconference outcome” : “In the absence of a Reply and any appearance on behalf of either the Respondent or the Insurer at the teleconference, I determined this claim at the teleconference. SOR/CD attached.” The email dated 31 August 2004 from the Arbitrator to the Commission states: “The Respondent Insurer did not attend the conference today despite Telstra talking to 6 people at QBE to find someone who would take the call. Also, there is no Reply files [sic] in this matter. Therefore, I made the decisions in the SOR/CD attached which finalise the matter. Completed teleconference form attached also.” The Statement of Reasons issued by the Commission dated 31 August 2004 is in identical form to the draft which appears on the Arbitrator’s copy file, and is apparently the “SOR” to which she refers in her email. The Certificate of Determination (“CD”) on the Arbitrator’s copy file is also dated 31 August 2004 and is in the same form as the Certificate of Determination issued by the Commission on 7 September 2004, which mistakenly in my view, gives that date as the date of determination. The issue of the Certificate of Determination is required by section 294 of the 1998 Act, which requires the Certificate to be issued “as soon as practicable after the determination of the dispute”. This form of words assumes that the date of issue may be after the date of determination.
It does not appear from the appeal that there is any real dispute that the Arbitrator made her decision at or immediately after the teleconference. Paragraph 15 of the appeal (under the heading “History of the Matter”) states “As a result of a failure to appear, the arbitrator entered the above orders noting at paragraphs 11 and 15 of the statement of reasons for decision that no evidence was submitted on behalf of the appellant”.
Did the Arbitrator err in making the decision at the teleconference?
The substantial issue which requires determination is whether the Arbitrator erred in determining the case at the teleconference, in the absence of any evidence from the Appellant. This issue must be determined on the basis of the information known to the Arbitrator at the time, not the explanation for the delay and the proposed defence to the claim subsequently provided by the Appellant. There is no sound recording or transcript of that conference but from the documents before me I find that the Arbitrator would have been aware of the following matters. First, that the Respondent supplied the Commission with contact details for the Appellant company and the Insurer, at its Wollongong office, in his original application (‘the Application’). Secondly, that the registered Application and the Timetable for Commission Proceedings prepared by the Commission (‘the Timetable’) were served by the Respondent on both the Appellant and the Insurer by registered mail, apparently posted 15 June 2004 (see document 2 listed above). By virtue of Rule 39 of the Workers Compensation Commission Rules 2003 (‘the Rules’) the Appellant had 21 days from the date of registration of the Application to lodge its reply i.e. by 1 July 2004. This date was also specified in the Timetable. No documents were filed by the Appellant or Insurer by this date, or indeed by the teleconference.
Next, that the Commission advised the Appellant and the Insurer of the teleconference date in the normal way, by letter to the addresses supplied in the Application. The address and contact person given for the Insurer in the Application were taken from the Insurer’s letter denying liability. The notification sent by the Commission includes the following:
“A Teleconference has been scheduled on Tuesday 31 August 2004 at 4pm. The Applicant worker and their legal representative (if represented) must personally attend all Commission proceedings, including joining in the teleconference. The Respondent Insurer and/or its representative must also attend. If the matter needs to proceed further a Conciliation Conference/Arbitration Hearing will be held on Wednesday 22 September 2004 at 10am.
The Workers Compensation Commission will be relying on the documentation supplied by the parties for the contact names and phone numbers of the participants at the teleconference.
Please advise the Dispute Management Officer allocated to this matter Faiza Ibrahim on telephone number: (02) 8281 6378 of any changes to contact details prior to the teleconference.”
No change to the contact details for the Insurer were advised prior to the teleconference. On the date of the teleconference the Telstra conference convenor rang the number given as the Insurer’s contact number (the number of the Wollongong office of the Insurer) and spoke to six people but no one would take the call. This is recorded in the Statement of Reasons (paragraph 9). Thus, at this point the Arbitrator could be satisfied that the Respondent and Insurer had been served with the Application, had filed no documents within time or at all, had been notified of the time and date of the teleconference, the Insurer had been contacted on that time and date by the Commission, and, despite significant efforts to obtain its participation, declined to participate.
None of these facts, as they would have been apparent to the Arbitrator at the teleconference, were disputed by the Appellant in the original appeal submissions. The Appellant concedes that the Insurer was aware of the Application (paragraph 11 of the appeal under “History of the Matter”), concedes that the Insurer’s case manager received a telephone call to participate in the conference (paragraph 13) and that no officer of the Insurer participated in the conference (paragraph 14). The Appellant says that officers of the Insurer thought incorrectly that the file had been transferred to Moray & Agnew, solicitors, who now act for the Appellant, but in fact those solicitors were not made aware of the Application and teleconference until 3 September 2004 (appeal paragraphs 11-16). This explanation may be correct, but it does not affect the facts as they stood as far as the Arbitrator was concerned. Further, if the Wollongong office of the Insurer was of the belief that the file had been transferred to Moray & Agnew, then that office should have advised the Dispute Management Officer of the new contact person for the teleconference prior to the teleconference, as requested in the notification. That did not occur.
In its supplementary submissions, the Appellant has queried whether the Arbitrator had “any evidence to prove service on the employer” (paragraphs 13 and 14) or whether there was evidence that the rules as to service, Rules 37(3) and (4), had been complied with. As stated, the Commission file before the Arbitrator contains a Certificate of Service filed by the Respondent’s solicitors on 16 June 2004, certifying as to service of the Application and Timetable on both the Respondent and the Insurer by registered mail on 15 June 2004 (see document 2 listed above). This proves compliance with these Rules. It is surprising that the Insurer’s solicitors have seen fit to raise this argument in their supplementary submissions, when service of the Application and Timetable was not disputed in the original submissions in support of the appeal, and, indeed, appears to have been conceded (see paragraph 11 of those submissions). Further, the Respondent in the supplementary submissions submits “there is no evidence of the source of the so called “insurer’s telephone number” (paragraph 13). The Application contains a telephone number for the Insurer at its Wollongong office, being the number the Insurer itself supplied in its letter dated 24 May 2004 denying liability. The report of the outcome of the teleconference (document 6 listed above) states that this was the number rung for the Insurer. Under the heading “Remarks” next to that number the Arbitrator has written “NOT PRESENT AND TELSTRA tried 6 people at this number, including Diane Beck [sic], without anyone agreeing to take call”. I am satisfied that the Commission contacted the Insurer on the number the Insurer had itself given the Respondent. Again, it is surprising that the Respondent through its Insurer’s solicitors have seen fit to put this argument in their supplementary submissions, when it was conceded in the original appeal submissions that “the case manager from QBE’s Wollongong office received a telephone call advising of the teleconference and immediately referred the matter to QBE’s in house legal team” (paragraph 13).
In these circumstances, did the Arbitrator err in concluding the matter at the teleconference? In my view no. The Appellant’s first ground of appeal is that the Commission “should consider any evidence from the appellant before making a determination”. That is undeniably so if the evidence is before the Arbitrator at the time of her determination, but here it is conceded it was not. That was due to error by the Appellant and the Insurer. The 1998 Act and the Rules are very clear about the time requirements for the filing of documents, the required date for the reply was reinforced by the Timetable, and the Commission has provided considerable information to insurers, employers and the legal profession about its requirements since its inception. Of particular relevance to this matter, the Registrar has issued a Guideline for the Practice of the Conciliation/Arbitration Process (‘the Guideline’). In relation to the telephone conference, the Guideline states in part “Parties personally, as well as their legal representatives, are required to be in attendance on the telephone and to participate throughout this conference….If parties are not in attendance the conference will not be cancelled and the application may still be finalised at this stage.” Thus parties who routinely appear in the Commission, such as the Insurer in this case, should be on notice that a matter may finalise at the telephone conference even if one party does not participate.
The Respondent argues in its supplementary submissions (paragraph 14) that Procedural Table 4.125 which appears in the Mills service and is headed “Preliminary telephone conference” “contemplates that at the teleconference stage the matter will, if not resolved, be listed for hearing” (paragraph 14). This argument is disingenuous. The Procedural Table begins “the parties and their legal representatives are expected to participate in the telephone conference”. It is true that it does not explicitly refer to the possibility of default determination at the teleconference if a party does not appear, but that possibility is set out clearly as shown above in the Guideline, a reference to which is given in the Procedural Table. Further, the Procedural Table is not a Commission document- it is a commentary prepared by others and in the case of any inconsistency the Commission document will prevail.
In its supplementary submissions, the Respondent submits that the error made by the Insurer in not filing a reply and not participating in the telephone conference was not “born of any deliberate act or of any disregard for the claim” (paragraph 1). For the purposes of this appeal I assume this statement to be correct. It is not relevant, however, to the threshold issue of whether or not the Arbitrator erred in concluding the matter at the teleconference. The Respondent also submits that the appeal should be allowed in accordance with sub-section 354(3) of the 1998 Act which provides that “the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (paragraphs 2 and10). In my view, section 354 must be read as a whole. As set out further below, sub-section (7) of section 354 permits judgment where one party “does not co-operate or ceases to co-operate”. Further, I do not consider that total non-participation in the proceedings up to and including the teleconference, at which point default judgment may be made, is a mere “technicality” or “legal form”.
The second ground of appeal is that “the Arbitrator inappropriately exercised his [sic] discretion and entered the orders without providing a further opportunity for the appellant to tender evidence before making a determination” (emphasis added). The suggestion is that the Arbitrator should have adjourned the proceedings. This suggestion is amplified in the Respondent’s further submissions (paragraphs 12, and part of 13 and 14). In determining this issue I have had regard to the 1998 Act, the Rules and the Commission’s guidelines, specifically Practice Direction 2 “Adjournment of Commission Proceedings”, and Practice Direction 9 “Lodgement of Late Documents”.
The objectives of the Commission are set out in section 367(1) of the 1998 Act. Sub-section (2) of that section requires members of the Commission, including arbitrators, to have regard to these objectives. The objectives include “to provide a fair and cost effective system” (paragraph (a)); “to reduce administrative costs” (paragraph (b)) and “to provide a timely service ensuring that workers’ entitlements are paid promptly”(paragraph (c )). The Appellant was given the opportunity to file its documents in time and to participate in the teleconference and failed to do so. In my view it was not unfair, in breach of objective (a), to determine the matter at that point, and could be said to have served the objectives of reduction of costs and timeliness (objectives (b) and (c )) to do so.
Section 354 of the 1998 Act sets out the procedure before the Commission and gives members of the Commission, including arbitrators, considerable flexibility, provided the fundamental requirements of natural justice are observed (see Inghams Enterprises Pty Ltd v Zarb [2003] NSW WCC PD 15). Relevantly here, sub-section (7) provides that “An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate”. This would seem to permit a determination on the basis of the applicant’s documents only, if the respondent does not participate in the process. Rule 71 sets out a number of measures the Commission is required to take to assist parties, including “(c) to ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission”. The preamble to rule 71 states that only such measures as are “reasonably practicable” are required. Practice Direction 2 emphasises that parties must be ready to proceed at all scheduled events, including telephone conferences. The intention of the Direction is that any application for adjournment must be made prior to the event concerned. Finally, Practice Direction 9 provides that where leave is sought to file a late document, such as a reply, that application should ordinarily be made in writing prior to the teleconference so that the arbitrator can determine it at that time.
When measured against this legislative and policy framework, I do not consider that the Arbitrator erred in determining the matter at the teleconference, rather than adjourning it further. There was simply no indication apparent on the file or at the teleconference that the Appellant or Insurer sought to defend the Application, other than the initial denial of liability letter attached to the Application. No documents were filed before the conference; the Commission was not advised prior to the conference that the contact details for the Insurer had changed; and considerable attempts were made at the time of the conference without success to find a representative for the Insurer who would participate. At the very least, a representative of the Insurer could have participated in the conference to the extent of giving an explanation for the lack of readiness to proceed and sought an adjournment to file documents and retain solicitors. Had any one of these indications that the Appellant in fact did wish to defend the application been apparent (a reply or other documents filed; notification of a new contact person; adjournment application at the conference) then it might be arguable that the Arbitrator should have exercised her discretion to adjourn the proceedings, but in this case there was no indication of that kind at all. The strongest argument for the Appellant is found, in my view, in Rule 71(c), but that only requires an arbitrator to do what is “reasonably practicable”, “without compromising the objectives of the Commission”. In my view it would arguably compromise the objectives of timeliness and cost effectiveness to adjourn proceedings for the benefit of an insurer who has given no indication that it wishes to defend the proceedings.
The Appellant submits that given the inability of the Insurer to participate effectively in the teleconference the Arbitrator should have contacted the Appellant i.e. the Employer directly before proceeding to determine the matter ex parte (paragraph 13 supplementary submissions). In my view this is not required. The Employer was plainly insured, given the previous payments by the Insurer and the letter denying further liability from the Insurer. In the normal course, it is the insurer who represents the employer in Commission proceedings. Both the Employer and the Insurer were notified of the teleconference and requested to advise any new contact arrangements. Neither did so.
The Appellant also submits in the further submissions that “the Arbitrator’s action has the flavour of a penalty given the perceived tardy attitude of the insurer and certainly did not demonstrate an attempt to ensure that the matter was determined on its merits” (paragraph 14). Given the absence of any indication that the Appellant or Insurer wished to defend the proceedings I do not consider this criticism is established.
The Appellant has not referred me to any authorities. The Respondent in his further submissions has referred me to Patrick Corporation Ltd v Sarkis [2005] NSW WCC PD 48. The fact situation in that case was similar to here. The appellant employer had filed no reply and while the solicitors for the insurer attended the teleconference, they did so without instructions. The appellant argued that it was a denial of procedural fairness for the arbitrator in that case to determine the matter at the teleconference. This ground was unsuccessful. The appeal was also unsuccessful on another ground of appeal which is not here relevant. The Presidential Member who heard the appeal subsequently determined a reconsideration of his decision (see PD48R) on another ground not here relevant. The facts in this case are also similar to those in another appeal, Kurragong Holdings v Carrette [2004] NSW WCC PD8. In that case no reply had been filed and the insurer did not attend the teleconference. The arbitrator determined the matter on the papers after the teleconference, which in practical terms did give the employer or insurer a further opportunity to file a reply, which was not utilised. The Commission held that there had been no denial of procedural fairness in determining the matter in that way.
There have, of course, been cases in which the Commission has held that a late reply should be permitted, in particular ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 and Klose v QAF Meat Industries Pty Ltd [2004] NSW WCC PD 37. In ADCO Constructions the arbitrator declined leave to file a late reply, and on appeal that decision was overturned. In Klose the Commission upheld a decision by an arbitrator to allow a late reply. The facts of those cases are, however, distinguishable from the present case as in each case the respondent did participate in the proceedings before the arbitrator. These cases support the view that had the Insurer participated in the teleconference and sought an adjournment and leave to file a late reply even at that late stage, it may have been appropriate to grant that application. But in this case there was no contact from the Insurer at all in the teleconference, and in fact a refusal to participate in the conference.
For these reasons I do not consider that the Appellant has established that the Arbitrator erred in determining the matter at the teleconference on the evidence then available to her, which was solely the Respondent’s evidence. Given that only the Respondent’s evidence was before her, her findings and ultimate orders are well supported and do not demonstrate any error.
The Appellant devotes a considerable portion of the appeal and the supplementary submissions to the defence it wishes to mount to the Application, which it claims is substantive. The Appellant asserts that to determine the case without consideration of the defence “causes severe and undue prejudice” to the Appellant and “breaches the principles of natural justice”(paragraph 23 of the appeal and paragraphs 3-9 of the supplementary submissions). Clearly the Appellant is prejudiced, but that prejudice is not “undue”, nor in breach of natural justice, given that the failure to participate in the conference was entirely the fault of the Appellant and/or the Insurer. The Respondent says that some of the medical evidence in support of this defence was not previously served, and so should not be taken into account on the appeal. I do not consider it necessary to consider this issue. As the Appellant itself acknowledges (paragraph 21 of the appeal), the powers of the Commission on appeal are exercisable only it is established that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, applying Allesch v Maunz [2000] HCA 40). As no error in determining the appeal at the teleconference is demonstrated here the Commission on appeal can not go on to consider the proposed defence.
New ground of appeal: inadequate reasons in relation to dependency
In its supplementary submissions the Appellant has raised a new ground of appeal, being that the Arbitrator failed to give adequate reasons, including “a failure to properly explain the basis upon which the spouse was “totally or mainly” dependant within the meaning of s37(4) of the Act” (paragraph 15 supplementary submissions). I do not consider that this ground is established in relation to the Arbitrator’s decision to proceed and her findings in relation to incapacity. There is more substance in the ground in so far as it relates to the determination that the Respondent’s spouse was dependent from 1 August 2004. The Arbitrator states in paragraph 18 of her Reasons that “at the conference the Applicant stated that his wife was working 30 hours per week until 31 July 2004 when she reduced her working hours to about 20 hours per week and is now partially dependent upon the Applicant” (emphasis added). Section 37(4) of the 1987 Act provides that a person is a dependent spouse if “the person is totally or mainly dependant for support on the worker” (emphasis added). Thus it is not sufficient that a spouse be partially dependent on the worker, unless the worker is the main source of support. Although this may be the case here, the Arbitrator does not disclose her reasons for so finding.
The Respondent has not commented on this new ground of appeal in his supplementary submissions, although I am informed that the parties have confirmed in response to an enquiry by Commission staff that each has been served with the supplementary submissions. I consider this narrow ground established and will remit the matter to the Arbitrator for re-determination of the dependency of the Respondent’s spouse.
Reconsideration under section 350(3) 1998 Act
The Appellant has also raised for the first time in its supplementary submissions the request that if the appeal is unsuccessful the Arbitrator’s decision be set aside under section 350(3) of the 1998 Act. The Respondent has made no comment on this suggestion in its supplementary submissions. In my view seeking reconsideration rather than appeal is the course of action that should have been adopted by the Appellant from the beginning. Section 350(3) provides that “The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”. The section itself does not give any guidance as to the principles to be applied. To the extent that this is an application to set aside a default judgment (which is the analogy put by the Appellant in paragraphs 26-29 of the appeal) it may fall within the ambit of section 350(3).
Reconsideration and appeal are not simple alternatives, however, and, in particular, are determined by different persons and according to different criteria. A request for reconsideration is properly directed to the original decision maker, here the Arbitrator, whereas an appeal under section 352 from the decision of an arbitrator is directed to a Presidential member. For an appeal to be successful under section 352, the appellant must demonstrate error on the part of the arbitrator. As to the test under section 350(3), neither party to this appeal has suggested what should guide the decision maker in the exercise of his or her discretion under that section and it is not appropriate for me to express a concluded view. A starting point may be the authorities in relation to the apparent forerunner to that section, being section 17(4) of the Compensation Court Act 1984 (now repealed). One striking matter in this case is that the application for reconsideration is made only late in the appeal process, a considerable period of time after the decision of which reconsideration is sought.
I will refer the request for reconsideration contained in the Appellant’s supplementary submissions to the Registrar, so that it may be placed before the original decision maker, the Arbitrator, for her determination. It will be for the Arbitrator to decide whether to permit any further submissions and generally how to conduct the reconsideration. The appeal fails, except in relation to the issue of dependency. I will revoke that aspect of the decision and remit that to the Arbitrator for re-determination.
DECISION
For these reasons I make the following orders:
1)Orders 1 and 3 made by the Arbitrator on 31 August 2004 are confirmed.
2)Order 2 is varied to delete the words “a dependent spouse and”.
3)The issue of whether or not the worker’s spouse was dependent on him from 1 August 2004 within the meaning of section 37(4) of the Workers Compensation Act 1987 is remitted to the Arbitrator for determination in accordance with this decision.
4)The request for reconsideration of the Arbitrator’s decision made by the Appellant in paragraph 18 of its supplementary submissions dated 26 October 2005 is referred to the Arbitrator for determination.
COSTS
Costs are in the discretion of the Commission (section 341 of the 1998 Act), subject to section 345 of the 1998 Act. The Appellant has been unsuccessful save in relation to a very narrow issue. I consider that the appropriate course is for the Appellant to pay the Respondent’s costs of the appeal.
Robyn Lansdowne
Acting Deputy President
30 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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