Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2)
[2025] NSWPICPD 23
•21 March 2025
| DETERMINATION OF RECONSIDERATION APPLICATION IN RESPECT OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |
CITATION: | Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2) [2025] NSWPICPD 23 |
APPELLANT: | Tawfiqul Islam |
RESPONDENT: | Eureka Operations Pty Ltd t/as Coles Express |
INSURER: | Coles Group Limited |
FILE NUMBER: | A1-W7948/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF RECONSIDERATION DECISION: | 21 March 2025 |
ORDERS MADE ON RECONSIDERATION: | 1. The application for reconsideration of the decision in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 is declined. 2. The matter is remitted again to a non-presidential member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with the reasons expressed in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80. |
CATCHWORDS: | WORKERS COMPENSATION – Section 57 of the Personal Injury Commission Act 2020 – reconsideration of decisions – principles to be applied – Procedural Direction WC 7; Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244; Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642; Samuel v Sebel Furniture [2006] NSWWCCPD 141; Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Self-represented | |
| Respondent: | |
| Ms B Walsh, solicitor | |
| Hall & Wilcox Lawyers | |
DECISION UNDER RECONSIDERATION: | Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| DATE OF PRESIDENTIAL MEMBER’S DECISION: | 10 December 2024 |
INTRODUCTION AND BACKGROUND
Mr Tawfiqul Islam (the appellant) brought proceedings in the Personal Injury Commission against his former employer, Eureka Operations Pty Ltd t/as Coles Express (the respondent), claiming weekly payments and treatment expenses in relation to:
(a) an injury to his back on 11 July 2015;
(b) a further injury to his back on 10 January 2018, and
(c) a psychological injury on 6 November 2019, or, in the alternative, on 26 August 2020.
The issues for determination were identified as:
(a) whether the appellant’s incapacity was caused by his back injury/injuries, his psychological injury or a combination of those injuries;
(b) whether the appellant’s psychological condition was a primary injury or was secondary to the back injury/injuries, and
(c) if the psychological condition was a primary injury, whether the appellant’s entitlement to compensation was defeated by s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The dispute proceeded to conciliation and arbitration before Member Wynyard on 29 March 2023, 9 May 2023 and 28 June 2023 and the appellant was subsequently given the opportunity to provide written submissions to the Member in response to the respondent’s submissions. Over the course of the proceedings up until that point, the only agreement that was reached was that the appellant’s pre-injury average weekly earnings figure was $733.38.
The Member issued a Certificate of Determination on 28 September 2023, ordering the respondent to pay the appellant weekly compensation at the rate of $586.70 (Order 1), as well as an order that the respondent pay the appellant’s treatment expenses.
The respondent lodged an application for reconsideration of the Member’s decision. The appellant also attempted to lodge a number of applications to the Member for reconsideration, which were rejected. In addition, the appellant lodged an appeal from the Member’s decision, which was stayed pending the outcome of the respondent’s reconsideration application. The Member issued his reconsideration decision on 15 December 2023, making the following findings and orders:
(a) the appellant’s date of injury in respect of his back was 11 July 2015;
(b) the appellant’s pre-injury average weekly earnings figure was $733.38;
(c) Order 1 of the original Certificate of Determination was amended to add “as indexed or adjusted”;
(d) leave was given to the respondent to apply to the Commission if it was alleged that the weekly amount awarded was incorrect;
(e) Order 2 of the original Certificate of Determination (the Order that the respondent was to pay the appellant’s s 60 expenses on production of account, receipts and/or a current Notice of Charge) was withdrawn and instead the respondent was ordered to pay the appellant’s s 60 expenses resulting from the injuries sustained on 11 July 2015 upon production of accounts, receipts and/or current Notice of Charge, and
(f) an award was made in favour of the respondent in respect of the alleged psychological injury which was said to have occurred on 19 November 2019.
In accordance with Order (d) above, the respondent filed further submissions in relation to the appellant’s pre-injury earnings on the basis that the agreed pre-injury average weekly earnings figure of $733.38 was only relevant to an injury on 10 January 2018, whereas the Member found a date of injury of 11 July 2015, which would result in a different figure.
The respondent submitted that the proposed figure should be $972.80 for the first 52 weeks and $495.16 thereafter. The Member accepted that calculation and issued a further Certificate of Determination dated 28 September 2023, ordering the respondent to pay the appellant $416 per week (80% of the indexed $495.16) from 22 September 2021.
The appellant’s appeal was reinstated following the finalisation of the proceedings below. The appellant alleged that the Member had erred by:
(a) failing to make specific orders for payment of each particular treatment expense;
(b) finding that his psychological injury was secondary to the physical injury occurring in 2015, and
(c) miscalculating his pre-injury average weekly earnings figure.
From the time the appeal was lodged and up to the date upon which the appeal was allocated to me, the appellant sought to have admitted the following documents:
(a) a letter dated 10 January 2024 from Dr Evagelos Koumoulas, general practitioner, certifying that certain treatments were reasonably necessary;
(b) the functional capacity report issued by Mr Michael Chrysanthou, exercise physiologist from Wellness Within Consulting dated 15 July 2021;
(c) the report of Dr Robert Drummond dated 19 November 2015;
(d) email correspondence between August and September 2020 passing between the respondent and two of its employees in respect of the appellant’s claim that he had been bullied;
(e) a clinical note recorded by Ms Liela Vergara from New Vision Psychology dated 1 May 2021;
(f) a letter from A/Prof Peter Illingworth dated 9 August 2022 in respect of the need for IVF treatment;
(g) a NSW Police Mental Health incident report involving the appellant dated 23 September 2021;
(h) an Activities of Daily Living Assessment Report dated 14 September 2020 compiled by Ms Annette Chamberlain, rehabilitation consultant from Pinnacle Rehabilitation;
(i) an Enterprise Agreement decision made by Commissioner Gay from Fair Work Australia dated 29 May 2012 in respect of the Eureka Operations Fuel and Convenience Team Member Agreement 2011 (the 2011 Fair Work Agreement), with the 2011 Fair Work Agreement attached;
(j) the appellant’s Earnings History Report for the period 1 January 2014 to 31 July 2015;
(k) invoices for house cleaning and lawn mowing;
(l) a report of Dr Vladimir Sazhin, psychiatrist, dated 1 December 2023;
(m) a schedule of medications prescribed to the appellant between 3 November 2022 and 31 March 2024 and the cost of the medication, and
(n) various certificates of capacity.
I determined that none of those documents satisfied the definition of “fresh evidence” within the meaning of s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Applying s 352(6), I considered each document in terms of whether a refusal to admit the document would cause a substantial injustice. I formed the view that both the Earnings History Report (which had been adduced in evidence before the Member in any event) and the 2011 Fair Work Agreement decision were of probative value and were relevant to the calculation of the appellant’s pre-injury earnings. As the Earnings History Report had been before the Member but did not appear on the Commission’s portal, I re-admitted the document. I also admitted the 2011 Fair Work Agreement decision.
After considering the matters raised on appeal, I was not satisfied that I had sufficient material before me in order to determine the question as to the appellant’s pre-injury average weekly earnings. I issued a Direction on 4 November 2024 directing the respondent to produce the employment contract under which the appellant was employed in May 2014, which was the date upon which the appellant’s employment changed from casual evening work to permanent part-time work.
The respondent advised that it was unable to produce the document within the time frame but did provide other evidence which tended to show the respondent’s standard hours of work. Neither party had made submissions about that evidence. I also required further submissions in respect of evidence already tendered, as well as submissions in relation to the evidence in a further late document from the appellant. I therefore determined that an oral hearing to address those matters was necessary. The oral hearing took place on 27 November 2024.
After a consideration of the evidence and the parties’ submissions, I did not accept the respondent’s approach to the calculation of the pre-injury earnings, which was the same approach put forward to and accepted by the Member. There was thus error on the part of the Member in respect of his determination as to the appellant’s pre-injury average weekly entitlement. I found no error on the part of the Member in respect of his order as to payment of the treatment expenses or in respect of his determination that the appellant’s psychological condition was secondary to his physical conditions.
I issued a Determination on 10 December 2024[1] in which I made the following orders:
“(a) The Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed.
(b) The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed.
(c) The Member’s determination of the appellant’s pre-injury average weekly earnings is revoked.
(d) The matter is remitted to a different member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with these reasons.”
[1] Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80.
On 24 December 2024, the appellant lodged four documents on the Commission’s portal seeking reconsideration of my decision. On 7 January 2025, a delegate of the President rejected the application on the basis that it did not comply with Procedural Direction WC7, in particular paragraph [9] of the Direction.
On 10 January 2025, the appellant lodged seven further documents, accompanied by a document in which he sought a review of the determinations that his psychological condition was secondary to his physical injury and not a primary injury, and that his pre-injury average weekly earnings figure was $715.95. He further sought a determination as to why the respondent had not repaid to him the cost of his treatment. The application was accepted as an application for reconsideration, and the respondent was directed to lodge and serve any submissions it wished to make in reply by 5 pm on 5 February 2025.
Without seeking leave to do so, the appellant lodged the following documents:
(a) submissions lodged on the Commission’s portal on 28 January 2025, directed to the Registrar and raising an issue that the respondent had refused to pay certain treatment expenses;
(b) an application for release of the appellant’s superannuation on compassionate grounds lodged on the portal on 30 January 2025, signed by the appellant’s psychiatrist, Dr Vladimir Sazhim on 8 September 2022, and
(c) a letter directed to me, lodged on 30 January 2025, seeking intervention by me in relation to the respondent’s request for the appellant to be re-examined by Dr John Bentivoglio, orthopaedic surgeon.
On 31 January 2025, the appellant was asked to cease lodging further material other than at the direction of the Presidential Unit.
On 3 February 2025, the appellant sought to lodge further documents, which were rejected on the basis that they were not relevant to the application for reconsideration of my decision. The appellant was again asked to cease lodging further material other than at the direction of the Presidential Unit.
On 5 February 2025, the respondent lodged its submissions in response to the appellant’s application for reconsideration.
On 14 March 2025, after I had concluded my deliberations in this reconsideration application but before my decision had been issued, the appellant sought to lodge further submissions and documents consisting of a report from Dr Anica Vasic, pain management specialist dated 13 July 2022 and MRI scans of the cervical spine and lumbar spine dated 14 October 2024.
THE RECONSIDERATION SUBMISSIONS
The appellant’s submissions
The appellant lists the “issues for determination” as:
(a) whether he suffered a primary psychological injury in the form of post-traumatic stress disorder with major depression and generalised anxiety disorder (with accompanying symptoms);
(b) whether his employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act;
(c) whether he suffered a secondary psychological disorder in the form of fibromyalgia and an adjustment disorder arising from the injury to the spine;
(d) the calculation of his pre-injury earnings as $715.95, without indexation, and
(e) why the respondent has failed to comply with the Commission’s order that the respondent was to pay his ongoing treatment expenses.
The appellant reproduces s 4 of the 1987 Act (definition of injury) and s 65A of the 1987 Act, which provides that no compensation for permanent impairment is payable in respect of secondary psychological injury and no permanent impairment compensation is payable unless the primary psychological injury is assessed as at least 15%.
The appellant submits that in order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change,[2] and that the word “injury” refers to both the event and the pathology arising from it.[3] The appellant adds that the issue of causation must be determined on the basis of the facts of each case.
[2] Citing Castro v State Transit Authority (NSW) (2000) 19 NSWCCR 496.
[3] Citing Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422.
The appellant submits that he suffered from symptoms in the left side of his cervical and thoracic spine and a secondary psychological injury from 11 July 2015. He asserts that several forms of treatment were disputed by the respondent and points out that I made a direction for payment of treatment expenses.
The appellant says that he was in the course of his employment when he was injured.
The appellant submits that, as at 8 January 2025, the respondent had not repaid him for, or commenced payment of the treatment expenses he submitted in the Application to Resolve a Dispute filed in 2022.
The appellant asserts that he was harassed and bullied by his managers and by senior management throughout his employment and developed a major depression as a consequence of that behaviour. The appellant says that this occurred after his spinal injury. He described the behaviour as:
(a) behaving unreasonably and making threatening statements;
(b) targeting and criticising him unfairly;
(c) threatening his employment, and
(d) intentionally failing to submit statement evidence form important witnesses.
The appellant submits that he had a consistent record of complying with workplace policies and standards and he was never the subject of any disciplinary action. He adds that there was no evidence of the respondent undertaking reasonable actions with respect to “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers,” citing s 11A(1) of the 1987 Act.
The appellant asserts that the respondent’s actions were not reasonable and refers to numerous alleged actions taken by the respondent which he says were not reasonable. He submits that the psychological effects of that treatment resulted in more than an emotional response. He notes that what is required to establish that he suffered an injury is that he suffered from a diagnosable psychiatric injury.
The appellant advises that he commenced seeing Ms Federica Zamboni, psychologist, on 4 November 2019 in respect of his psychological condition secondary to his spinal injury. He further advised that the general practitioner selected by the respondent, Dr Evangelos Koumoulas, refused to provide a Certificate of Capacity in respect of a primary psychological injury arising from events in the workplace, but referred him to Dr Vladimir Sazhin, psychiatrist.
The appellant refers to a report dated 31 July 2020 from Ms Katherine Saunders, clinical psychologist, who diagnosed him as suffering from extreme anxiety and depression, which appeared to be exacerbated by persistent pain and repeated incidents at work described as “workplace bullying.” The appellant says that he was also referred to Ms Liela Vergara, psychologist, Mr Jon Dormand, Mr Pete Morcos and Dr Sazhin.
The appellant further refers to my decision dated 10 December 2024, in which I referred to the report dated 12 November 2020 of Dr Kathiravel Nadanachandran, neurosurgeon, who identified a developing psychological condition arising from the injury sustained on 6 November 2019. The appellant points to the report of Dr Raymond Schwartz, neurosurgeon, dated 4 September 2020, in which Dr Schwartz noted a diagnosis of post-traumatic stress disorder.
The appellant submits that he was referred to Ms Zamboni in respect of his secondary psychological condition in the context of his chronic pain and says that he was not referred to her for treatment of his primary psychological injury. He adds that he was referred to Ms Vergara in August 2020 in respect of his continuing ruminations of the bullying and harassment in the workplace. He points out that the respondent approved treatment from Dr Sazhin, who reported that he suffered from major depression, and a generalised anxiety disorder.
The appellant refers to the independent medical examination arranged by the respondent for him to attend Dr Graham George, psychiatrist, which was in relation to the secondary psychological condition arising from his spinal injury. He complains that Dr George refused to consider the clinical notes in which the bullying and harassment was recorded because Dr George was asked to see him in relation to management of the pain resulting from the physical injury.
The appellant says that Dr Koumoulas indicated that he required a psychiatrist’s report before he could diagnose a primary psychiatric injury.
The appellant refers to his submissions made to me in the appeal in relation to the respondent’s actions of overlooking important evidence from witnesses, failing to respond to emails from the union representative and forcing the appellant to attend a meeting, about which he later lodged a complaint.
The appellant submits that what is required to establish a psychological injury is to take account of all of the events that occurred and seek corroboration of those events on the basis of the available medical evidence “in order to ensure that there was a psychological effect.”[4] The appellant refers to the documentary evidence from the various medical practitioners which he indicates supports the occurrence of a primary psychological condition. The appellant also refers to the evidence of Dr Louis E McGuigan, rheumatologist, who diagnosed the condition of fibromyalgia, and submits that the evidence of fibromyalgia was supportive of a secondary psychological condition, as was the evidence of his general practitioner who diagnosed an adjustment disorder.
[4] Appellant’s submissions, [38].
In addition, the appellant provides submissions relating to the calculation of his pre-injury average weekly earnings and submits that 80% of his pre-injury average weekly earnings figure should be $715.95 prior to indexation.
The respondent’s submissions
The respondent sets out the objects of the Personal Injury Commission Act 2020 (the 2020 Act) identified in s 3 (c), (d) and (e) of the 2020 Act.
The respondent submits that s 57(1) of the 2020 Act provides that the Commission may reconsider any matter that has been dealt with by the Commission and may rescind, alter or amend any decision which has been previously made. The respondent says that s 57(2) provides that the Commission may correct an obvious error in a decision. The respondent sets out the examples of obvious error provided for in s 57(6) of the 2020 Act and says that those examples are not prescriptive or limited, are examples that appear on the face of the decision, and do not indicate that an error of law could be the subject of such an application.
The respondent submits that the discretion vested in the Commission to reconsider its decisions is to be exercised in accordance with the objectives of the 2020 Act and is not intended to be a substitute for bringing an appeal pursuant to s 353 of the 1998 Act, citing Fairfield City Council v McCall (No 2)[5] as authority for those propositions.
[5] [2022] NSWPICPD 29 (McCall).
The respondent says that these proceedings have a complex and long history.
The respondent refers to the appellant’s submissions and asserts that the evidence referred to was either before the Member in the proceedings below, or it was evidence that the appellant would reasonably have been able to obtain for the purposes of the proceedings below.
The respondent asserts that the appellant’s submissions do not disclose any obvious or other error on the face of the Presidential decision and are simply a re-statement of the case already put to Member Wynyard or in the appeal. The respondent contends that the appellant’s submissions do not raise any issues that should be considered matters for reconsideration, as contemplated by s 57 of the 2020 Act.
The respondent adds that a reconsideration of the Presidential decision offends the objects of the 2020 Act as set out in s 3 of the 2020 Act because these protracted proceedings should come to an end.
The respondent submits that, in the event that the Commission is against the respondent in respect of the submissions made above, then it makes the alternate submissions that follow.
The respondent points to the five issues identified by the appellant, recorded by me at [23] above. The respondent refers to the first three issues raised, which all relate to the appellant’s psychological condition. The respondent says that the issue was whether the psychological condition was a primary psychological injury or a psychological condition secondary to the spinal injury. The respondent submits that the finding in respect of that issue was a finding of fact by Member Wynyard, which ought not be disturbed on appeal because it was a finding that was open to the Member and had rational support in the evidence. The respondent points to my reasoning that it is settled law that the acceptance or rejection of evidence, or the preference of some evidence over the other, and the weight to be afforded to evidence is generally a matter that falls within the province of the primary decision maker. The respondent asserts that there was no error in the decision of Member Wynyard being confirmed on appeal. The respondent asserts that the appellant is merely identifying a preference for a different view and does not identify any obvious or other error.
The respondent contends that it is not sufficient for the appellant to simply reiterate his recollection of events which he believes led him to suffer a primary psychological injury. The respondent submits that the appellant is required to show that the rejection of the appellant’s case asserting a primary psychological injury was wrong. The respondent contends that the available medical evidence pertaining to the psychological condition being considered a secondary condition was accepted by the Member and on appeal. The respondent reiterates that the appellant has failed to show error of fact or law and the application for reconsideration should be dismissed.
In relation to the fourth issue identified by the appellant, the respondent submits that, on appeal, the determination by the Member as to the appellant’s pre-injury average weekly earnings figure was revoked and remitted to a different non-presidential member for re-determination. The respondent asserts that the issue is reserved to be determined by a new non-presidential Member, and it is therefore not an appropriate matter for reconsideration.
The respondent refers to the fifth issue, which involves the complaint by the appellant in respect of his treatment expenses, which were pleaded as totalling $33,765.74. The respondent indicates that over the three days of hearing before the Member, on the first day, the appellant asserted a claim for a “general order” in respect of the medical expenses and did not advance any specific claim or any specific amount for those expenses. The respondent refers to the Member having confirmed in his reasons that such an order was sought.[6]
[6] Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] NSWPIC 515 (reasons), [2] and [304].
The respondent submits that the Member was not asked to determine a specific dispute about any of the treatment expenses, and that the appellant agreed to such an order. The respondent says that the Member made the general order, and the general order was confirmed on appeal.
The respondent contends that the Commission has no jurisdiction to determine particular medical expenses as no such order was sought.
In conclusion, the respondent submits that the application for reconsideration should be dismissed, and the orders made by me should be confirmed. The respondent adds that the substantive proceedings ought to be listed for a further preliminary conference in accordance with Order 4 of my decision.
The appellant’s further submissions
The appellant seeks leave to rely on further submissions forwarded to the Commission on 14 March 2025 in which he again agitates for orders in respect of particular treatment expenses and argues that, on the basis of Dr Vasic’s report dated 13 July 2022, he should have succeeded in establishing a primary psychological condition. He also appears to indicate that he has used artificial intelligence in the preparation of his submissions.
THE LEGISLATION
Section 57 of the 2020 Act provides for the reconsideration of decisions of the Commission, as follows:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division or Police Officer Support Scheme Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)alter the decision to correct the error, or
(b)direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)issue a replacement certificate with the error corrected, or
(b)direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
Section 3 of the 2020 Act sets out the objects of the Act as:
“3 Objects of Act
The objects of this Act are as follows—
(a) to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose,
(b) to ensure the Commission—
(i)is accessible, professional and responsive to the needs of all of its users, and
(ii)is open and transparent about its processes, and
(iii)encourages early dispute resolution,
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f) to ensure that the Commission—
(i)publicises and disseminates information concerning its processes, and
(ii)establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g) to make appropriate use of the knowledge and experience of members and other decision-makers.”
PRINCIPLES RELEVANT TO AN APPLICATION FOR RECONSIDERATION
Prior to the establishment of the Personal Injury Commission and the introduction of the 2020 Act, the power to reconsider decisions of the then Workers Compensation Commission was found in s 350(3) of the 1998 Act, which was in similar terms to s 57 of the 2020 Act. Before the commencement of the Workers Compensation Commission, the Compensation Court of NSW and its predecessor also enjoyed a reconsideration power. Over time, a number of applicable principles were developed. It is not necessary to consider all of those authorities, however, the following observations are relevant to this application.
In Hardaker v Wright & Bruce Pty Ltd,[7] Owen and Walsh JJ said:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision to see that justice is done between the parties.”[8]
[7] [1962] SR (NSW) 244 (Hardaker).
[8] Hardaker, 248.
In Maksoudian v J Robins & Sons Pty Ltd,[9] Bishop CCJ observed (citations omitted):
“The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings.”[10]
[9] (1993) 9 NSWCCR 642 (Maksoudian).
[10] Maksoudian, 645D–E.
Dealing with s 350(3) of the 1998 Act, in Samuel v Sebel Furniture[11] Roche DP also provided a helpful summary of some of the principles drawn from the various authorities. The summary relevantly included that:
(a) the section gives the Commission a wide discretion to reconsider its previous decisions;
(b) the discretion must be exercised fairly;
(c) the public interest that litigation should not proceed indefinitely is a factor to be weighed;
(d) reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is subsequently obtained and, if it had been put before [a Member] in the first hearing, would have been likely to lead to a different result, and
(e) the Commission has a duty to do justice between the parties according to the substantial merits of the case.
[11] [2006] NSWWCCPD 141 (Samuel), [58].
In McCall, Parker SC ADP dealt with an application for reconsideration under the present legislation. He reviewed the various authorities and observed that:
“The discretion to reconsider is to be exercised for reasons and with a view to advancing the objects of the 2020 Act. It is not, in my view, intended to be a substitute for the rights of appeal given by s 353 of the 1998 Act.”[12]
[12] McCall, [29].
The Acting Deputy President reached the view that the employer’s remedy lay in an appeal pursuant to s 353 of the 1998 Act. He provided reasons, which included that, in his view:
(a) “The text of s 57(2)–(6) identifying the types of error otherwise contemplated by the section, albeit ‘without limiting the generality of subsection (1)’, are plainly not errors of law.”[13]
(b) “The objects of the 2020 Act include the disposition of proceedings with ‘as little formality as possible’ in a timely, fair, consistent and high quality manner. This has to be read in the context of a clearly defined appellate procedure set out in ss 352 and 353 of the 1998 Act”,[14] and
(c) “… where there was a serious possibility of an altered outcome it is plainly convenient and in line with the objects of the 2020 Act for the decision to be reconsidered and dealt with in accordance with s 57. This is not such a matter.”[15]
[13] McCall, [35(b)].
[14] McCall, [35(f)].
[15] McCall, [35(h)].
CONSIDERATION OF THIS APPLICATION
In accordance with the above authorities, I decline to exercise my discretion to reconsider my decision in Islamv Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 for the following reasons:
(a) despite the appellant’s attention being drawn to the requirements of Procedural Direction WC7 [9]:
(i)no submissions were provided as to Procedural Direction WC7 [9(c)], which requires the appellant to attach reasons as to why a reconsideration of the decision should be considered, rather than an appeal pursued. No such submission was made, and
(ii)no submissions were provided as to Procedural Direction WC7 [11(c)] and [11(d)], which require submissions to be made as to why the evidence sought to be adduced in the reconsideration is fresh evidence or evidence in addition to or in substitution for the evidence received in the proceedings below, or that evidence could not reasonably have been obtained before my decision;
(b) all of the documents sought to be relied upon (apart from the letter to the “Registrar”) are not “fresh evidence” as they all pre-date the non-Presidential Member’s decision and the appeal proceedings and were clearly available to the appellant;
(c) the documents do not constitute evidence that, had they been available they would more likely than not have affected the outcome of the proceedings;
(d) the letter to the Registrar seeks to agitate a complaint that, inconsistent with the Member’s order for treatment expenses to be paid, which was confirmed on appeal, the treatment expenses have not been met. No remedy falls within the jurisdiction of the Registrar or at the appellate level of the Commission to enforce any order for treatment expenses, and in any event, it is not “evidence”;
(e) I have no jurisdiction to intervene in respect of the respondent arranging for the appellant to attend Dr Bentivoglio;
(f) the exercise of discretion in favour of the appellant would not advance the objectives of the 2020 Act, particularly to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible;
(g) the respondent’s weekly payments entitlement is yet to be determined;
(h) the issues raised by the appellant include allegations of error of law, which should be more appropriately dealt with by an appeal to the Court of Appeal in accordance with s 353 of the 1998 Act;
(i) I have a duty to do justice between the parties. These proceedings have been on foot since 5 December 2022 and litigation should not proceed indefinitely, and
(j) there is no serious possibility that a reconsideration would result in a different outcome.
In reaching my that conclusion I have read the appellant’s submissions dated 14 March 2025. I note that the report of Dr Vasic annexed to those submissions was in evidence before the Member and that the two MRI scans merely establish the pathology present in the appellant’s cervical spine and lumbar spine, which was not an issue in the proceedings. Those documents are not accepted. I also note that the Commission’s President, Phillips P issued a Direction on 17 February 2025 in respect of the use of generative artificial intelligence in written submissions. I am to use caution in respect of such submissions. On the whole, I consider that those submissions take the matter no further and they are rejected.
DECISION
The application for reconsideration of the decision in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 is declined.
The matter is again remitted to a non-presidential member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with the reasons expressed in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80.
Elizabeth Wood
DEPUTY PRESIDENT
21 March 2025
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