Inghams Enterprises Pty Ltd v Rachmaninoff (No 2)

[2011] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
STATUS: Reconsideration: This decision is a reconsideration of the decision in Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35
CITATION:		Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61
APPELLANT:		Inghams Enterprises Pty Ltd
RESPONDENT:		Darren Rachmaninoff
APPLICANT FOR RECONSIDERATION:		Inghams Enterprises Pty Ltd
INSURER:		Self insurer
FILE NUMBER:		A1-4482/10
DATE OF ARBITRATOR’S DECISION:		16 July 2010
DATE OF APPEAL DECISION:		6 July 2011
DATE OF RECONSIDERATION DECISION:		2 November 2011
SUBJECT MATTER OF DECISION:		Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; application for reconsideration
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:		The application for reconsideration brought pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 with respect to the Commission’s decision in Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35 is refused. The findings and orders in that matter are confirmed and the application is dismissed. Inghams Enterprises Pty Ltd is to pay Mr Rachmaninoff’s costs of this application.

BACKGROUND

1. Inghams Enterprises Pty Ltd (Inghams) has made an application seeking reconsideration of my findings and orders made on 6 July 2011 in Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35 (the appeal decision). The application is brought pursuant to the provisions of s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides:

   “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.”

2. The appeal decision concerned a challenge by Inghams to the determination of an arbitrator which was made on 16 July 2010. That determination made provision, inter alia, for the remitter to the Registrar of Mr Rachmaninoff’s claim for lump sum compensation for the purpose of referral to an Approved Medical Specialist (AMS) for appropriate assessment of whole person impairment.

3. The appeal also concerned a challenge by Inghams to the Commission’s orders in Certificate of Determination dated 9 February 2011 which, inter alia, ordered that Inghams pay to Mr Rachmaninoff lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $8,662.50.

4. The appeal brought by Inghams was dismissed and the determination dated 16 July 2010 and the orders made in Certificate of Determination dated 9 February 2011 were confirmed.

5. The history of the proceedings as at the date of the appeal was fully outlined in the course of my reasons (Reasons) delivered in the appeal decision (between [8] and [29]). It was then stated that the history of the matter was “unfortunate”. The unfortunate state of that history has been exacerbated by the commencement of this application seeking reconsideration.

6. It is not proposed to repeat the history of the proceedings nor is it intended to repeat a summary of the evidence before the Commission given that such appears between [45] and [66] of Reasons. Those reasons, and indeed the reasons given by the Arbitrator, record that Inghams had given notice of but one reason it disputed liability, being its denial that Mr Rachmaninoff had “sustained whole person impairment as a result of the injury on 20.6.08”. An insurer is required by the provisions of s 74(1) of the 1998 Act to give notice of a dispute to a claimant and such notice must be in a form which complies with the requirements of s 74(2), s 74(2A) and s 74(2B).

7. Given the circumstance that there had not been notice given to Mr Rachmaninoff concerning any issue that required determination by an arbitrator the matter was, in accordance with the provisions which are addressed in the appeal decision, referred to an AMS for assessment of the only claim made in Mr Rachmaninoff’s application, namely lump sum compensation pursuant to s 66 of the 1987 Act. Such an assessment was conducted and a Medical Assessment Certificate (MAC) issued following which the determination and orders were made by the Commission on 9 February 2011. The making of those orders followed an unsuccessful appeal brought pursuant to s 327 of the 1998 Act by Inghams against the medical assessment.

RECONSIDERATION ON THE PAPERS

1. Section 354(6) of the 1998 Act provides:

   “If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Each party has furnished written submissions concerning the application seeking reconsideration. Having regard to the documents before me, which include a transcript of the oral hearing conducted on appeal (T), I determine that it is appropriate to proceed with a determination of this application having regard to that material without holding any conference or formal hearing.

THE POWER TO RECONSIDER

1. The legislature has expressed the scope of the Commission’s power to reconsider a decision in broad terms and the 1998 Act contains no provision that in any way qualifies or limits such power. The nature of the power granted by s 350(3) was the subject of detailed examination by Roche ADP (as he then was) in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (between [38] and [58]) (Samuel).  I have, on earlier occasions, expressed my agreement with those matters as stated in Samuel (see Wang v Botany View Hotel Ltd [2009] NSWWCCPD 63 (at [15]) and Rasia v University of Sydney (No 2) [2011] NSWWCCPD 29 (at [12])). Following consideration of relevant authority, including decisions of the superior courts in relation to provisions in terms similar to s 350(3) in the now repealed Compensation Court Act 1984 (the Court Act) and the former Workers Compensation Act 1926 (the 1926 Act), it was stated (at [58]):

   “[58] Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under s 350(3) of the 1998 Act:

   (a)the section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker);

   (b)whilst the word ‘decision’ is not defined in s 350, it is defined for the purposes of s 352 to include “an award, order, determination, ruling and direction”.  In my view “decision” in s 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;

   (c)whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (Schipp);

   (d)one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (Hilliger);

   (e)reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (Maksoudian);

   (f)given the broad power of “review” in s 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;

   (g)depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (Anshun);

   (h)a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst), and

   (i)the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and s 354(3) of the 1998 Act).”

2. I note in passing that there have been legislative amendments since the date of determination in the matter of Samuel. An amendment to the definition of the word “decision” as found in s 352(8) of the 1998 Act does not, in my view, give rise to any need for qualification of that which was stated at [58(b)] in that decision. It is also noted that recent amendments to the Act have repealed those provisions permitting a broad power of “review” referred to at [58(f)] in Samuel. My view is that the observations made in Samuel concerning reconsideration of an arbitrator’s determination remain sound and relevant notwithstanding the amendments to s 352(5) which provide for an appeal limited to determination of error of fact, law or discretion. However, given the fact that the present application concerns review of a decision on appeal by a Presidential member, it is unnecessary to determine whether the breadth of the power to reconsider an arbitrator’s determination has, in any way, altered as a consequence of that amendment.

3. Notwithstanding the breadth of the power granted to the Commission to reconsider any matter dealt with and to rescind, alter or amend any decision previously made, its exercise has generally been restricted to circumstances where fresh evidence has become available and is found to be admissible on such an application. The power has also been exercised to correct errors or omissions which, as stated by the editor of Mills Workers Compensation NSW (Butterworths 2001), are simple and obvious (at 37,737.51).

4. The appropriateness of an application made for reconsideration must be considered having regard to the availability of a right of appeal from decisions of an arbitrator (Samuel [at 58(f)]) and the right, as provided by s 353, of appeal against the decision of a Presidential member.

INGHAM’S APPLICATION

1. Submissions are advanced by Inghams, in correspondence from its solicitors to the Registrar dated 12 August 2011, which assert that the “basis of the Application for Reconsideration relates to the suggestion in the [appeal decision] to the effect that [Inghams] did not make application for leave to raise a liability issue in accordance with Section 289(A)(4) [sic] of [the 1998 Act]”.

2. Those submissions further suggest that the appeal decision demonstrates an incorrect perception “that [Inghams] had not and/or did not wish to make application for leave [pursuant s 289A(4)]”. The relief sought by Inghams is that “the Commission should rescind, alter or amend [the appeal decision] and in substitution therefore should revoke the Certificate of Determination and remit the matter for hearing before an Arbitrator for determination in accordance with Section 352(7) [of the 1998 Act]”.

3. Submissions put on behalf of Mr Rachmaninoff appear, for the purpose of argument, to incorrectly assume that an inference may be drawn that an application seeking to raise a liability issue as referred to in Inghams’s submissions was one made, or one that Inghams wished to make, before me on appeal. That was not the case. The primary purpose of conducting a hearing on appeal was to establish, if possible, what was put to the Arbitrator on behalf of Inghams on 16 July 2010. That is clear having regard to the exchange between Inghams’s solicitor and myself following a summary of that which was put to the Arbitrator as recorded (at T5):  

   “MR MACKEN: … Now, as I say, I think what the Arbitrator appears to have done is categorised that as an application to amend a Section 74 Notice and has refused that amendment and has therefore refused to list the matter for arbitration.

   DEPUTY PRESIDENT: According to the notes, there was a great deal of argument on that day that – by which I mean there was lengthy argument. What was the substance of the submission that you put? Was it limited to what you’ve just attempted to summarise?

   MR MACKEN: It was, in substance, what I’ve attempted to summarise today, Deputy President.”

DISCUSSION

1. The arguments advanced by Inghams suggest the commission of error in the course of the appeal decision. As noted above, the error, which is said to be demonstrated at [88] and [126] of the appeal decision, was the “incorrect perception” noted at [15] above. It is convenient to note at this point what was said at [88] and [126] of the appeal decision:

   “88. As earlier discussed at [78] above, the appellant has not at any time made application seeking an order pursuant to s 289A(4) to permit any previously unnotified matter to be heard or otherwise dealt with by the Commission. Any such application may have been made on behalf of the appellant at any time since service upon it of the Application to Resolve a Dispute.

   ...

   126.  The appellant has not, as earlier discussed, given notice as to a liability issue that required adjudication by an arbitrator. No issue has been raised in the Reply filed on its behalf and no application has been made pursuant to s 289A(4) seeking leave to raise a liability issue. The Registrar’s issue of the Certificate of Determination was made in accordance with procedure set forth in the Commission’s Practice Direction No 11. I reject the appellant’s argument suggesting failure to afford procedural fairness.”

2. The legislative scheme which governs the referral of disputes to the Commission is to be found in ss 288, 289 and 289A of the 1998 Act. Those provisions must be read with s 74 of the Act which I have discussed in the appeal decision (at [79] of Reasons) and at [6] above. The circumstances in which a dispute may be referred to the Commission was discussed between [80] and [84] of Reasons.

3. At the heart of this application is the assertion that Inghams had, at the telephone conference conducted by the Arbitrator on 16 July 2010 (the teleconference) made or wished to make an application pursuant to s 289A(4), that a previously unnotified matter be heard by the Commission.  Section 289A provides:

“289A Further restrictions as to when a dispute can be referred to Commission

(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.

(2)     A matter is taken to have been previously notified as disputed if:

(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or

(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.

(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.

(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

1. It is wrong of Inghams to assert on this application that there existed in the appeal decision a “suggestion” that no application pursuant to s 289A was made. There had been a clear finding made that no such application had been made. That conclusion conforms with that which was stated by Inghams’s solicitor as noted at [77] of the appeal decision.

2. It will be recalled that, by reason of objection by Inghams, no recording of the teleconference proceeding had been made. The Arbitrator’s orders were made orally at that teleconference and reasons were subsequently published which represented the Arbitrator’s record of proceedings. Those reasons noted that Inghams’s solicitor had not sought an order pursuant to s 289A(4) (described as an “amendment” to the s 74 notice) but only sought that the matter be set down for conciliation/arbitration (at [24] of the Arbitrator’s Reasons delivered 21 July 2010).

3. Having regard to the state of the record and those matters put in argument by Inghams at the hearing of the appeal it is clear that the only application made by Inghams before the Arbitrator was that the matter be referred to the Commission for “conciliation/arbitration”. That course was not open to the Arbitrator having regard to the scheme of the 1998 Act and the operation of those provisions noted at [18] above.

4. Inghams’s suggestion that it had “wished” to make an application before the Arbitrator pursuant to s 289A must be considered in the light of events which took place at the teleconference. The Arbitrator had, at first, understood that such an application had been made. A ruling was given refusing such “application”. It was then that Inghams’s solicitor stated that no such application had been made. In the absence of such an application the Arbitrator’s orders were inevitable.

5. I am not satisfied that Inghams has established that any relevant error requiring reconsideration has been made. That being so it is not necessary to consider whether its application is appropriate having regard to the availability, following the appeal decision, of an application to seek leave to appeal to the Court of Appeal pursuant to s 353 of the 1998 Act. The application must be dismissed.

DECISION

1. The application for reconsideration brought pursuant to s 350(3) of the 1998 Act with respect to the Commission’s decision in Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35 is refused. The findings and orders in that matter are confirmed and the application is dismissed.

COSTS

1. Inghams is to pay Mr Rachmaninoff’s costs of this application.

Kevin O'Grady

Deputy President  

2 November 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE