Jaffarie v Quality Castings Pty Ltd
[2017] NSWWCCPD 2
•28 February 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| Status: Appeal to the Court of Appeal dismissed on 27 April 2018 – Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 | ||
| CITATION: | Jaffarie v Quality Castings Pty Limited [2017] NSWWCCPD 2 | |
| APPELLANT: | Sayed Akbar Jaffarie | |
| RESPONDENT: | Quality Castings Pty Limited | |
| INSURER: | QBE Workers Compensation (NSW) Limited | |
| FILE NUMBER: | A3 and A4 10946/12 | |
| SENIOR ARBITRATOR: | Ms Catherine McDonald | |
| DATE OF ARBITRATOR’S DECISIONS: | 1 July 2016; 5 August 2016 | |
| DATE OF APPEAL DECISION: | 28 February 2017 | |
| SUBJECT MATTER OF DECISION: | Admission of fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); roles of arbitrators and approved medical specialists – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 and associated decisions; medical evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, party bound by concessions of counsel – Smits v Roach [2006] HCA 36; 80 ALJR 1309; 227 CLR 423; 228 ALR 262 , Sch 6 costs on remitter, s 350(3) of the 1998 Act – the nature of the reconsideration power | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s determinations dated 1 July 2016 and 5 August 2016 are confirmed. 2. No order as to costs. | |
INTRODUCTION
Sayed Akbar Jaffarie (the appellant) allegedly injured his back lifting in the course of his employment with Quality Castings Pty Ltd (the respondent) on 12 June 2009. The resultant proceedings have involved a decision by a Commission arbitrator, on 17 February 2014, followed by a reconsideration of that decision by the Arbitrator, dated 10 June 2014 (in which he refused the reconsideration application). The appellant appealed to a Presidential member, whose decision was dated 9 December 2014 (Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 [the earlier Presidential decision]). This was followed by an appeal to the Court of Appeal, in which the appeal was allowed in a decision dated 29 October 2015, and the matter remitted for re-determination by a different arbitrator (Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 [the Court of Appeal decision]).
The matter came before a Senior Arbitrator on the order for remitter, and was heard on 23 May 2016. A Certificate of Determination was issued dated 1 July 2016. The appellant again lodged an application for reconsideration. The Senior Arbitrator issued a Certificate of Determination (declining that application) dated 5 August 2016.
The appellant has now lodged further appeals to a Presidential member, against the decisions dated 1 July 2016 and 5 August 2016.
BACKGROUND
There is a helpful summary of the factual background in the earlier Presidential decision at [4]-[8], from which the following is largely taken. The appellant was born in Afghanistan in 1987. He came to Australia on a spousal visa in November 2008. He commenced employment with the respondent on 25 March 2009. The alleged injury occurred when he was lifting a mould on 12 June 2009. He continued his duties until he was retrenched on 19 June 2009. The respondent’s insurer made voluntary weekly payments of compensation to 16 September 2009. The insurer declined further liability in a s 74 notice dated 17 September 2009, following receipt of a report from Dr Breit (an orthopaedic surgeon qualified by the insurer) dated 18 August 2009. The stated reasons for denying liability were that the injury on 12 June 2009 “has now resolved”, and that the injury “is no longer causing any incapacity for work”.
The appellant operated a fruit shop from 19 November 2010, to a date variously described as 18 September 2012 or 19 June 2013. The appellant’s visa was cancelled on 19 June 2013, and he has subsequently been in the Villawood Immigration Detention Centre, where he remains.
THE ARBITRAL PROCEEDINGS
The proceedings were commenced by an Application to Resolve a Dispute registered on 18 September 2012. They claimed ongoing weekly compensation from 4 September 2009. The earlier Presidential decision at [5] said that the weekly claim was amended to close at 31 December 2012. The proceedings also claimed lump sum compensation in respect of 17 per cent whole person impairment (12 per cent lumbar spine, 5 per cent thoracic spine), and various expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). A claim for lump sum compensation in respect of 12 per cent whole person impairment (lumbar spine) was previously made on 12 November 2009.
Issues have developed, in the current appeal, going to whether the weekly entitlement was closed as at 31 December 2012, and whether the claim for lump sum compensation was pressed. This will be further discussed below.
An arbitration hearing proceeded on 23 May 2016. Mr Campbell of counsel appeared for the appellant, Mr Malouf of counsel for the respondent. The appellant was present (T60.9). There was debate regarding the admission of the appellant’s Applications to Admit Late Documents dated 29 March 2016 and 12 May 2016. The documents were admitted, and an application by the respondent for an adjournment was refused (T8.23-15.13). The respondent’s Application to Admit Late Documents dated 30 March 2016 was admitted as regards a copy of the decision of the Full Bench of the Federal Court in Jaffarie v Director General of Security [2014] FCAFC 102 (the Federal Court decision), but not as regards a document described as “Extract Department of Immigration and Border Protection”, undated (T20.22-9).
No oral evidence was adduced. There were no applications to cross-examine. Both parties’ counsel made submissions, and the Senior Arbitrator reserved her decision. The Certificate of Determination dated 1 July 2016 was accompanied by the Senior Arbitrator’s ‘Statement of Reasons’ (the reasons).
THE SENIOR ARBITRATOR’S DECISION
The Senior Arbitrator described the procedural background of the matter, and set out matters of what she described as common ground. It was agreed the appellant was not an ‘existing recipient of weekly payments’ within the meaning of Sch 6, Part 19H, cl 1 of the 1987 Act. It followed that there was no jurisdiction to deal with the claim for weekly compensation subsequent to 31 December 2012 (reasons at [16]). The current weekly wage rate was agreed. The claim pursuant to s 60 of the 1987 Act for “recent and future treatment” was not pressed in these proceedings as “it had only recently been made” (reasons at [18]).
The Senior Arbitrator said that the respondent’s defence pursuant to s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) had been decided against it by the original Arbitrator, and this was not disturbed on appeal. She did not need to deal with that issue (reasons at [27]). After referring to the scope of the remitter, and brief submissions on the point by counsel, the Senior Arbitrator described the matters requiring determination by her:
(a) Did Mr Jaffarie suffer injury to his lumbar spine on 12 June 2009?
(b) Did Mr Jaffarie suffer injury to his thoracic spine on 12 June 2009?
(c) Does Mr Jaffarie suffer incapacity for work and what is the extent of his incapacity?
(d) Do issues of credit impact on those questions?
The Senior Arbitrator summarised the lay and medical evidence in some detail (reasons at [33]-[106]). She referred to the respondent’s submissions on credit. She said that, although the respondent’s counsel had not referred to specific authority, in his submissions he was effectively asking her to apply principles consistent with Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Ferreira).
The Senior Arbitrator referred to a history recorded by Dr Maniam, that the appellant’s employment with the respondent “was terminated because he was unable to work effectively after the injury on 12 June 2009”. She contrasted this with a statement by the appellant dated 1 July 2014, in which the appellant said that he “did not want to lose his job”, and “the letter telling him his employment was terminated said that it was because of a downturn in work”. She said that this was consistent also with a statement of Ms Lum, relied on by the respondent, going to the termination. She described this as “[o]ne aspect of the history about the incident and its aftermath which impacts on Mr Jaffarie’s credit” (reasons at [115]). She said at [116] of her reasons:
“The questions which I am required to determine are medical questions and fall to be determined based on a chronological review of the medical evidence. Where Mr Jaffarie’s evidence differs from the history provided to the medical practitioners at the time the reports were prepared, I have relied on the contemporaneous medical evidence.”
The Senior Arbitrator considered the medical histories dealing with the extent to which the appellant worked on for a short period after the injury. She said that “the majority of the medical practitioners obtained the correct history from the outset and took it into account when expressing their opinions and prescribing treatment” (reasons at [122]). The Senior Arbitrator dealt with histories of the appellant’s work in a fruit shop subsequent to the injury. She said that she did “not accept that the histories provided with respect to the operation of the fruit shop impact on Mr Jaffarie’s credit” (reasons at [123]).
The Senior Arbitrator considered a submission that the appellant displayed “abnormal illness behaviour”, and that this impacted on his credit. She said “I do not consider that Dr Breit’s opinion that Mr Jaffarie displayed abnormal illness behaviour impacts on his credit generally” (reasons at [130]). The respondent also submitted that the Federal Court decision was such that the Senior Arbitrator would be “reluctant to accept Mr Jaffarie’s evidence”. At [139] of her reasons the Senior Arbitrator said:
“Neither the decision, the document set out at [36] of it or the extracts from other documents, is proof of the facts alleged and therefore the documents have no impact on Mr Jaffarie’s credit in these proceedings on the different issues I am required to determine.”
The Senior Arbitrator’s reasons at [145]-[160] considered the medical evidence dealing with the alleged injury to the lumbar spine. She concluded at [158]:
“Based on Mr Jaffarie’s statements, the report of back pain to Mr George and the contemporaneous complaints to his general practitioner, I am satisfied that Mr Jaffarie suffered an injury to his lumbosacral spine on 12 June 2009 being either a sprain or the aggravation of degenerative changes which were premature for his age. Based on the complaints to medical practitioners, I am satisfied that the effects of the injury continued to 31 December 2012 and to date in that Mr Jaffarie has continued to make consistent complaints of pain in his lumbar spine.”
The Senior Arbitrator also said that she considered the “conditions” in the appellant’s back were “better referred to in the way Dr Khan does – a thoracolumbar condition and a lumbosacral condition” (reasons at [160]).
The Senior Arbitrator, at [161]-[182] of her reasons, dealt with the allegation of injury to the thoracic spine. She accepted that Dr Selim had “received no complaint of thoracic pain before late 2011”. She discussed the reports of Dr Maniam. She referred to Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399(Hancock). She described Dr Maniam’s opinion as not providing “a satisfactory basis on which to make a finding that Mr Jaffarie suffered an injury to his thoracic spine” (reasons at [173]). She referred to the decision in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) and the standard of proof on the balance of probabilities. She referred to South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421(Edmonds) at [130]-[131].
The Senior Arbitrator said that Dr Khan’s views on the appellant’s thoracic spine were based on an assumption that there had been an injury to it, this not being “borne out by the evidence” (reasons at [179]). She said that Dr Diwan’s opinion was “premised on the same incorrect basis” (reasons at [181]). The Senior Arbitrator concluded that she “did not accept that Mr Jaffarie suffered an injury to his thoracic spine on 12 June 2009” (reasons at [182]).
The Senior Arbitrator discussed the medical evidence dealing with incapacity. She noted that the weekly entitlement was to be calculated on the basis of s 40 of the 1987 Act, in its form prior to commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act).She concluded that the appellant was partially incapacitated from 3 September 2009 to at least 31 December 2012, and the test to be applied was that in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526. The upper limb of the equation was $682.53, the agreed current weekly wage rate. She found that the appellant would, in suitable employment, have been able to earn $382 per week over that period. She awarded the arithmetical difference of $300 per week (reasons at [188]-[193]).
The Senior Arbitrator noted the appellant “seeks permanent impairment compensation in respect of the injury to his back”. She referred the matter to an Approved Medical Specialist (AMS) to assess “the permanent impairment arising from the injury to [the appellant’s] lumbar spine” (reasons at [194]). She gave the parties liberty to apply if agreement could not be reached on expenses pursuant to s 60 of the 1987 Act, for treatment of the “lumbosacral spine” (reasons at [195]-[197]). The matter was subject to the costs regime which operated prior to relevant commencement of the 2012 Amending Act. The Senior Arbitrator made a costs order, including an uplift of 20 per cent.
THE RECONSIDERATION APPLICATION
The Certificate of Determination having issued on Friday 1 July 2016, an email was forwarded to the Commission on the morning of Sunday 3 July 2016 by Mr Buttar, solicitor, whose firm acted for the appellant at that time. The email stated “The matter cannot proceed to any further stage.” It continued:
“The arbitrator was not authorised or empowered to decide the issue of injury or the thoracic spine pathology since there was evidence MMI had not reached for both injuries and it was a threshold dispute and the question of jurisdiction was raised.”
Imprecise references to the Australian Human Rights Commission, “Disability and Race discrimination Commonwealth legislation” and “the s 109 inconsistency point” followed.
On the evening of 3 July 2016 the appellant lodged with the Commission, by email, a document of the same date headed “Reconsideration Under Section 350(3) WIM Act”. It was over the hand of the appellant, although Mr Buttar was copied in to the email. It referred to “the impugned decision of the arbitrator of 1 July 2016”. A copy of the document was served by a person from “buttarlaw.com” on the respondent’s solicitors on the afternoon of
4 July 2016. The Commission was copied in to that email.The application for reconsideration, dated 3 July 2016, is intemperately expressed and makes multiple allegations. I note the decision of the Court of Appeal in Sabanayagam v St George Bank Limited [2016] NSWCA 145 (Sabanayagam) was dated 27 June 2016. It was not addressed by the parties at the arbitration hearing. Paragraphs [1] and [2] of the document dated 3 July 2016 state (original spelling, emphases and grammar have been retained):
“1. The decision whether throasic spine injury was work related or not was not an issue the arbitrator was required to decide at this stage when the matter was before her only in respect of weekly payments when MMI had not reached and there was evidence treatment was continuing.
2(a). Paragraphs 161-182 of the arbitrator’s decision fall into the same error which was pointed out by the Court of Appeal in my matter on August 2015.
(b) The arbitrator has either not read or applied her mind to the recent decision of the Court of Appeal in Sabanayagam v St George Bank. Paragraphs [157]-[164] and [167] in Sabanayagam case have drawn a distinction between the medical dispute and the Part 7 of the Chapter 7 of the WIM Act and therefor the arbitrator’s decision in respect of the weekly payments without referral of the medical dispute to AMS is totally misconceived and based upon disregard of the legislation is empowered and authorized by. Her decision to allow the weekly payments to be paid for a closed period is totally baseless and incongruous, in particular when in paragraph 188 the arbitrator has plucked former section 40 of the 1987 Act and held the applicant’s entitlements are to be assessed under it.
(c) The arbitrator decided the issue of incapacity for work decided in paragraphs 183-193 in favour of the applicant, albeit wrongly for a closed period.
(d) The applicant was not an existing recipient as held by the arbitrator in paragraph 16.
(e) The arbitrator has quoted a known-existent clause 1 of Part 19H of the WC Act 1987 by refusing jurisdiction in respect of the weekly compensation.
(f) It was a medical dispute whether the applicant would have been a seriously injured worker, after the proposed operation on his throasic spine, a chance wrongly withdrawn by the arbitrator.
(g) The arbitrator did not take into account injured workers while in receipt of weekly payments on 17 June 2012 were entitled to receive the same for 5 years until 17 June 2017, unless sooner a work capacity decision was given if the worker was not seriously injured.
(h) Sabanayagam case is an authority that section 74 notice is NOT a ‘work capacity decision’.
(i) The impugned decision is palpably and wrongly decided by a biased arbitrator in a discriminatory manner, in total disregard of the current interpretation of legislation with a contumacious disregard of the principles of stare deices.”
In the document at [4] the author said:
“The issue of aggregated value of the two injuries including the throasic spine injury cannot be separated in the guise used by the arbitrator to destroy my common law WID claim for which no section 74 notice was ever issued the impugned decision has once again bifurcated the threshold claim without any jurisdiction.”
The document at [8]-[10] referred to the Arbitrator’s treatment of the medical evidence going to whether there was an injury to the appellant’s thoracic spine:
“8. The purported faults found by the arbitrator in paragraphs 161-182 in expert evidence of Dr Maniam, Dr Ellis Dr Diwan and Dr Khan is a matter which the arbitrator has no qualification or jurisdiction to decide. It is brought to the attention of the Commission, doctor Khan has been an AMS and has acted as a member of the Appeal Panel and therefore his expert opinion could not be dismissed by the arbitrator without any medical expertise, experience or knowledge.
9. When the Workers Compensation Court was abolished and the WCC was constituted, the objective was for medical disputes to be referred to madical experts namely AMS, not a member of the Commission. The appeal against the AMS decision is not a matter decided by the arbitrator nor appealable to the Presidential member.
10. The medical issues discussed by the arbitrator in the paragraphs heading ‘throasic spine injury’, extremely complex medical issues with independent views by four specialist medical experts, ought to have been referred to an AMS and the failure to do so tantamount to a jurisdictional error of monumental proportion and shows the bias and discrimination.”
The document at [11] said that the Arbitrator “mis-quoted three cases decided by the Court of Appeal in paragraphs 172 and 178”. This was apparently a reference to Hancock and Edmonds. The third case may have been Nguyen (referred to at [174] of the reasons), or may have been Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) which was quoted in the passage from Edmonds which the Arbitrator cited. The reconsideration application asserted the “cases have no application in relation to the issues arising in the applicant’s matter since the cases relate to the powers of the Court and the WCC is not a Court”. It continued:
“(b) The three cases were not relied upon by the respondent and the arbitrator made up all the arguments in favour of the respondent, never raised by the respondent. Again it is indicative of bias. Indeed the arbitrator seems to be so keen to put the words in the mouth of Mr Malouf, the opposing barrister acting for the respondent, she wrote two further paragraphs 112 and 113 quoting a case, never quoted by Mr Malouf. The arbitrator in extraordinary and unprecedented manner in paragraph 112 advances the cause of respondent by stating Mr Malouf ‘did not refer to the decision’….’Mr Malouf was, in effect, asking me to apply principles consistent with it in this case’.
12. The arbitrator has shown bias and caused extreme prejudice to the applicant by herself advancing the cause of respondent, against the objectives of WCC. It is evidence the arbitrator was not independent or impartial.
13. The WIM Act is a beneficial legislation and must be interpreted in the favour of the applicant and failure to do so by the arbitrator amounts to her bias.”
The document went on to refer to the Australian Constitution. It referred to the “Cth Disability Discrimination Act which overrides the NSW WIM Act”. It said the appellant wanted “the Commission to consider the applicability of the anti-discrimination legislation and its protection to me under the Constitution of Australia”. It said:
“The decision of the arbitrator directly or indirectly discriminates me by taking away my right to claim damages every other injured person has against a tortfeasor by ostensibly the WIM Act and to that extend the WIM Act is inconsistent with the disability discrimination Act in the anti discriminatory principles of equality before law enunciated in various treaties the Commonwealth has ratified and brought into the domestic legislation.”
The document contained a factual assertion at paragraph [23]:
“23. The applicant had during the telephone conferences and on the date of arbitration specifically requested to the arbitrator the lump sum claim was NOT being pressed since the applicant was undergoing treatment for lumbar and throasic spine and MMI had not reached.
(b) The arbitrator nevertheless decided the question of injuries subject of medical dispute and once again herself wrongly decided it in relation to the throasic spine when she did not have the dispute in front of her nor the jurisdiction to decide threshold.
(c) She has decided the threshold issue under the guise of assumed jurisdiction in respect of throasic spine while merely and exclusively authorized to decide the question of weekly payments and nothing else.”
The appellant submitted that the Commission had no jurisdiction to make a costs order in the circumstances, and then argued that the order should have been greater than it was. The document sought that the matter be reconsidered by “another independent arbitrator appointed by the Commission who is a Senior Counsel” and be set aside. It sought continuing weekly payments “until the medical dispute and the threshold for seriouysly injured worker is decided after MAC when MMI is reached”. It sought an order “that non of the injuries may be referred to AMS since MMI has not reached for lumber and throasic spine injuries”.
The initial submissions comprising the reconsideration application were 32 paragraphs in length. The appellant, by email on 4 July 2016, lodged further submissions adding paragraphs [33]-[44]. Again, this document was over the appellant’s hand. These submissions dealt essentially with alleged shortcomings in the workers compensation scheme in New South Wales. There is reference to “s 109 inconsistency arguments as done in Mabo”, and texts on Australian constitutional law and administrative law. The Commission file includes a notation by the Deputy Registrar that “these additional submissions were served by the applicant’s sols on respondent sols by email dated 4/7/16”.
The respondent lodged submissions on the reconsideration application, by email, on 18 July 2016. These referred to the review of authority on the topic by Roche ADP (as he then was) in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel). The respondent observed that, if it is alleged an Arbitrator has erred, the proper course is to seek leave to appeal to a Presidential member. The respondent said:
“It is not clear what role the Applicant’s legal team has in the current proceedings and whether the Applicant has been made aware of the relevant case law on this issue.”
The respondent submitted the application should be refused. It submitted that allegations of “discrimination and bias” could not be made out. It submitted that the appellant’s submissions on the weekly claim were “misguided and contrary to authority”. It referred in similar terms to the appellant’s submission that the Arbitrator “was unable to make a determination of injury to the thoracic spine”.
The appellant lodged submissions in reply, over his own hand, by email on 21 July 2016. He referred to the decision in Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; 163 CLR 1; 71 ALR 225, as authority for the proposition that the Commission is not a court, and the principle of stare decisis does not apply to it. He challenged other contentions made by the respondent, and submitted that the reconsideration should be allowed. He submitted that, if the reconsideration were not allowed, the “grounds and reasons… be referred to the Presidential member to consider it as an appeal”.
THE SENIOR ARBITRATOR’S DECISION ON THE RECONSIDERATION
A Certificate of Determination was issued on 5 August 2016, accompanied by the Senior Arbitrator’s reasons (reconsideration reasons) for declining the reconsideration application.
She referred to the principles going to the reconsideration power, summarised in Samuel, and to the Registrar’s Guideline (reconsideration reasons at [6]-[7]). She noted that the power was discretionary (reconsideration reasons at [9]). She said the general tenor of the submissions was to argue that her decision was wrong, and the appropriate way to challenge error was by way of appeal. She said that she would give her reasons for declining the application, but would “not deal with those matters which are properly the subject of an appeal” (reconsideration reasons at [10]-[11]).
The Senior Arbitrator said that the Commission was bound by “decisions of superior courts in matters of procedure which are common to both courts and the Commission”. Contrary to the appellant’s submission, and in accordance with the decision of Rothman J in Cameron v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704 (Cameron), it was preferable that she (rather than another arbitrator) deal with the reconsideration application (reconsideration reasons at [13]).
The Senior Arbitrator said that the appellant’s “submissions do not make clear whether he alleges actual bias or apprehended bias”. She referred to passages from the decisions of PMP Directories Pty Ltd v Tran [2012] NSWWCCPD 71 (Tran) and Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 (Slavin),, dealing with actual bias and apprehended bias respectively (reconsideration reasons at [14]-[16]). She observed at [20] of the reconsideration reasons that “[t]he fact that I did not find in favour of Mr Jaffarie on every question does not mean that I am biased against him and thereby disqualified from dealing with his application for reconsideration”.
The Senior Arbitrator specifically rejected a submission that, by quoting an authority going to a submission made by the respondent on credit, she demonstrated bias. She had not accepted the specific submissions made by the respondent going to the appellant’s credit (reconsideration reasons at [23]-[25]). She rejected a submission that she had failed to apply beneficial legislation in the appellant’s favour. She referred to Kowalski v Repatriation Commission [2011] FCAFC 43 at[36] and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; 88 ALJR 624; 308 ALR 213 (Goudappel), saying “[t]he fact that I was applying beneficial legislation did not mean that I was required to determine every disputed question in Mr Jaffarie’s favour” (reconsideration reasons at [26]-[28]).
On the issue of weekly compensation, the Senior Arbitrator said that Sabanayagam did not have application to the appellant’s case. She noted that there was agreement between the parties at the arbitration hearing, that the weekly payments claim was closed as at 31 December 2012, and the appellant was bound by this concession (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 [Metwally]).
As regards the submissions relating to the referral to an AMS, the Senior Arbitrator said that she had reviewed the recordings of the telephone conferences and the conciliation/arbitration. She said there was discussion at the telephone conference on 6 April 2016 going to the appellant “awaiting an MRI scan and an appointment with Dr Diwan”, and there was discussion “as to whether any assessment under s66 might be deferred pending further treatment”. She said no amendment was made at that time. A report from Dr Diwan was available at the arbitration hearing; the appellant did not seek “to discontinue the claim under s 66”.
The Senior Arbitrator said that the questions requiring her determination were those set out at [29] of her decision (recited at [11] above). She said she was required to determine whether the appellant had suffered an injury, citing Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 (Bindah) at [111].
The Senior Arbitrator said that the Commission did not have jurisdiction to determine “the constitutional argument” raised on the reconsideration by the appellant, which she noted was not made at the conciliation/arbitration.
THE APPEALS
The appellant lodged an Application to Appeal against Decision of Arbitrator dated 24 July 2016, relating to the decision dated 1 July 2016 (No A3-10946/12). The appellant lodged a further Application to Appeal against Decision of Arbitrator on 26 August 2016, relating to the decision dated 5 August 2016 (No A4-10946/12).
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant’s submissions describe him as self-represented. They give no details of any legal representative. In his submissions dealing with “Procedural Matters” the appellant submits the “appeal may not be decided on papers and oral hearing may be granted to the applicant”. The respondent, in the Notice of Opposition, submits:
“11. … This matter has a very long and expensive history. The Respondent has been put to great expense responding to the Appellant’s claims and various appeals.
12. Whilst the Appellant was somewhat successful in the past, there has been a consistent failure to focus on the real and crucial issues.
13. For that reason, this matter can only proceed, ultimately, by way of oral hearing where all issues can be sounded, if required.”
The matter was listed for a telephone conference on 30 November 2016, essentially for the purpose of arranging an oral hearing date (T3.21-7). The appellant appeared in person, Mr Malouf of counsel, instructed by Ms Browne, solicitor, appeared for the respondent. The appellant requested that the appeal be dealt with “on the papers, and the arguments and application submissions I filed”. He said “I don’t have legal representative now”, and “I am in detention” (T3.34-4.4).
At this telephone conference, the issue was raised of whether the claim for lump sum compensation had been pressed before the Senior Arbitrator. A Direction was issued on 30 November 2016, providing for transcript to be taken out of the telephone conferences held by the Senior Arbitrator on 22 January 2016 and 5 April 2016, and for that transcript to be provided to the parties as soon as practicable. The respondent was given leave to lodge any submissions dealing with this transcript on or before 21 December 2016, and the appellant on or before 11 January 2017. It was noted that both parties withdrew their applications for an oral hearing of the appeal, and indicated that the appeals could be decided on the papers (T14.18-26).
THRESHOLD MATTERS
The appellant’s submissions, at Part A of the Application to Appeal, state that submissions are attached dealing with “threshold issues relating to the granting of leave to appeal, including the amount of compensation and the percentage of the amount awarded alleged to be at issue in the appeal” (s 352(3) of the 1998 Act, Pt 16 r 16.2(4)(b) of the Workers Compensation Commission Rules 2011 [the Rules]). The appellant’s submissions on “Threshold issues” do not properly address the issues, and carry on to refer to whether a medical dispute should have been referred to an AMS, and whether the NSW workers compensation legislation is inconsistent with “Commonwealth legislation relating to disability and race discrimination”.
The respondent’s submissions state that it “does not dispute the threshold for leave to appeal”. The amount of weekly compensation which the appellant has sought to argue he was entitled to, beyond that awarded, is sufficient on its own to meet the thresholds in s 352(3) of the 1998 Act. I am satisfied that the monetary thresholds in s 352(3) are satisfied.
The Senior Arbitrator’s decisions were dated 1 July 2016 and 5 August 2016. The appellant lodged appeals against these decisions on 24 July 2016 and 26 August 2016 respectively. I am satisfied that the provisions regarding time in s 352(4) of the 1998 Act are satisfied.
The threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
THE APPEAL NO A3-10956/12 – AGAINST THE DECISION DATED 1 JULY 2016
This appeal was lodged on 24 July 2016. The grounds of appeal are set out at ‘Annexure (A)’ of the document, as follows (original spelling and grammar have been retained):
“1. The impugned decision of the arbitrator of 1 July 2016 is affected by error of fact, law and discretion since it failed to follow the remitting orders and the judgment of the Court of Appeal of 29 October 2015.
2. The preliminary issues relating to the WID and commutation threshold and WCC jurisdiction as well as discrimination and Constitutional issues detailed in the submissions may be decided at the outset.
3. After determining the existence of medical disputes relating to throasic spine as defined by the Act, the arbitrator had no discretion nor jurisdiction and the matter should have been referred to the Registrar for onward referral to the AMS for a MAC.
4. The errors of law in the impugned arbitrator’s decision are:
(a) the procdures required by the law to be observed in connection with the making of decision were not observed and the decision was not authorised by the applicable enactments as interpreted by the courts, pursuance of which it was purpoted to be made,
(b) the making of the impugned decision was an improper and privative exercise of power conferred , in the alternative, by the enactments in pursuance of which it was purpoted to be made,
(c) the improper exercise of power by the arbitrator is evidenced by her taking into account irrelevant considerations and failing to take into account the relevant considerations,
(d) if the arbitrator had any discretion to refer the medical dispute relating to throasic spine in accordance with any rule or policy or guide or guidelines to an AMS, whether for binding or non-binding MAC, the lack of exercise of such discretion is indicative of her exercise of power in bad faith, and the decision is biased,
(e) the arbitrator exercised her powers in such unreasonable manner of Wednesbury proportion that no reasonable person could have exercised the power and it amounts to abuse of power,
(f) there was no evidence to substantiate the submissions made by the respondent in respect of the four medical reports relied upon by the appellant for the Arbitrator to justify making of the impugned decision and the arbitrator could not reasonably be satisfied from any evidence in particular the appellant’s unrebutted reports of 2016, therefore the arbitrator’s decision on throasic spine is based upon a non-existent fact,
(g) the decision was contrary to the law and fact.”
The appellant submits that the Senior Arbitrator’s decision should be revoked, and a new decision made in its place. He submits that there should be an order for continuing weekly payments (rather than the closed period which was ordered). He submits that there should be a referral of “the medical dispute relating to the throasic spine to an AMS for a binding MAC along with the remaining medical dispute upon reaching MMI”. He additionally submits that, based on “the Dietrich principle”, a senior barrister should be appointed to represent him. He submits that the appeal be “decided on merits as well as the substantive points raised herein.”
The appellant submits that the Commission’s costs power was the subject of repeal, and “WIRO may be directed as in 2014, to fund the legal representation of the appeal… no orders may be made in respect of the costs in the post remittal proceedings in the WCC”.
I should note, at this point, that the Registrar of the Commission wrote to the appellant on 18 November 2016 advising him that he did not have an “inherent right to counsel at public expense”, and that the Commission did “not fund legal representation for parties”. The letter suggested that the appellant contact the “Independent Legal Assistance and Review Service (ILARS)” if he wished to be represented by counsel in the proceedings. The letter provided contact details, and the Registrar said that he was “available should you require assistance”. The issue of whether the appellant wished to seek legal aid in the matter was raised at the telephone conference conducted before me on 30 November 2016. The appellant indicated he did not intend taking further steps to seek legal aid to arrange representation (T4.2-32, 6.1-33).
The appellant has conducted the appeal on the basis that he is self-represented, and is not a lawyer (30.11.16 T4.2-4). He indicated that the identity of the author of the written material lodged in his appeal was “privileged”, and that he would not be in a position to talk about the arguments made in those documents (30.11.16 T5.5-13). The submissions contain extensive references to case law on a variety of subjects.
THE APPELLANT’S SUBMISSIONS
The appellant’s grounds are generally expressed. A number are bland assertions of error, without reference to the matters which are asserted to constitute such error. The grounds are elucidated in the submissions, which are set out at “Annexure ‘B’” of the Application to Appeal. The submissions occupy thirteen pages, and I will not seek to describe them in full. Although the submissions move in a sometimes random fashion from topic to topic, they raise various arguments. I will deal with the arguments which I have been able to identify in the submissions.
The Role of the Approved Medical Specialist and Associated Matters
The appellant at [1] submits that the Arbitrator “has not carefully read the judgment of Macfarlan JA” in the Court of Appeal decision. After referring to the orders set out at [38] of his Honour’s judgment, the appellant submits “order 3 in particular the Arbitrator has ignored to follow [sic]”. The appellant submits, correctly, that his Honour’s orders at [38(3)] provided for the determinations of the original Arbitrator to be set aside. The submissions on the point then refer to the terms of the remitter, to “a different Arbitrator for re-determination in accordance with the reasons in the Deputy President’s judgment of 9 December 2014 as varied by this judgment.”
The appellant submits that the effect of order 3 “must be read in light of the remaining 37 paragraphs” of the judgment of Macfarlan JA. The appellant then refers to his Honour’s reasons at [9(4)(c)], which contained part of his Honour’s summary of the appellant’s submissions on the appeal to the Court of Appeal. That part of the submissions submitted that an “AMS has the jurisdiction to assess causation, treatment, impairment and threshold for Work Injury Damages regarding the appellant’s thoracic spine injury”. The appellant referred to the decision of Campbell J in Greater Western Area Health Service v Austin [2014] NSWSC 604 (Austin). The appellant notes that at [28] Macfarlan JA set aside the order of Roche DP declining to refer the thoracic spine issue to another arbitrator for re-determination”.
On this issue, the appellant refers, in its submissions on the current Presidential appeal, to Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (Haroun), Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449; 12 DDCR 515 (Tolevski), Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19 (Hassan), and Junsay v The Uncle Toby's Company Ltd [2009] NSWWCCPD 71; 11DDCR 76 (Junsay). The appellant then goes on to submit that the reasons of Roche DP were “varied by the judgment of the Court of Appeal, as stated in one above, a matter completely ignored by the Arbitrator, albeit inferred by approval of the submission by the Court”. At [3] of his submissions the appellant says:
“The decision whether throasic spine injury was work related or not was not an issue the Arbitrator was required to decide at this stage when the matter was before her only in respect of weekly payments, while MMI had not reached and there was evidence that treatment was continuing.”
The appellant returns to this area later in his submissions. He refers to the definition of a ‘medical dispute’ in s 319 of the 1998 Act, and submits that the dispute in respect of the thoracic spine “was purely and exclusively a medical dispute which ought to have been referred to an AMS”. He refers to the “Explanatory Note to the WIM Act” at page 7. He submits at [5]:
“The medical disputes can only be decided by the chosen AMS. The powers of the arbitrators have been taken away if there is a medial [sic, medical] dispute. The Arbitrator has found a medical dispute but by following a wrong line of argument in a specious manner has asked herself the wrong question of whether there is an injury and contrary to the Act proceeded to decide the injury in spite of finding a medical dispute and assumed jurisdiction, which the arbitrator did not have.”
The appellant’s submissions at [6] assert that the “matter before the Arbitrator was only in respect of the weekly payments”. He submits that this was “a medical dispute as defined in section 319 in clause (b)”. He submits:
“The arbitrator has wrongly decided the throasic injury medical dispute against a long chain of authorities and case law consistently quoted by the applicant culminating in Bindah case.” (emphasis in original)
At [7], in a submission which is not readily understood, the appellant submits “medical disputes relate to two types of matters, firstly where the percentage loss at below 14 and above 10%, and the second when assessed at 15% and above”. He submits that “It is the latter which have the potential to be threshold medical disputes and if the threshold is established the WCC stripped of its jurisdiction.” He submits “The WCC cannot assume the role of the Court and take up the jurisdiction of WID in a disguised indirect privative manner.”
At [9] the appellant submits that, when “the WCC was constituted, the objective was for medical disputes to be referred to medical experts namely AMS, not a member of the Commission.” At [10] the appellant submits that the issue of injury to the thoracic spine:
“…ought to have been referred to an AMS and the failure to do so tantamount to a jurisdictional error of monumental proportion and shows the bias and discrimination.”
At [11] of his submissions, after referring to the reconsideration of the earlier decision of Arbitrator Harris, the appellant says:
“The substantial point is that the WCC has no jurisdiction to deal with the medical evidence to decide a medical dispute when a threshold issue is raised by the applicant and it must be referred to an AMS.”
At [12] the appellant submits that “the point of a non-binding decision of AMS was canvassed by the applicant’s counsel but the arbitrator rejected the same”. He submits that the Senior Arbitrator did not mention in her decision “that such an option was so canvassed and wrongly rejected by her”.
The Weekly Claim
The appellant submits that the Arbitrator’s “decision to allow weekly payments for a closed period is totally baseless and incongruous”, and that she “plucked former section 40 of the 1987 Act and held the applicant’s entitlements are to be assessed under it”. He submits that “the applicant was not an existing recipient as held by arbitrator in paragraph 16”. He submits that the Arbitrator “quoted a non-existent clause 1 of Part 19H of the 1987 Act by refusing jurisdiction in respect of the weekly compensation”. He submits:
“The arbitrator did not take into account that the injured workers while in receipt of weekly payments on 17 June 2012 were entitled to receive the same for 5 years until 17 June 2017, unless sooner a work capacity was assessed if the worker was not seriously injured.”
The appellant concludes his submission on the weekly payments, at [4] of his submissions:
“The impugned decision is palpably and wrongly decided by a biased arbitrator in a discriminatory manner, in total disregard of the current interpretation of legislation with a contumacious disregard of the principles of stare deices [sic].”
The Decision of Sabanayagam v St George Bank Limited
The appellant submits that the “Arbitrator has either not read or applied her mind” to Sabanayagam. He submits that that authority, at [157]-[164] and [167], drew “a distinction between the medical dispute and the Part 7 of Chapter 7 of the WIM Act”. He submits at [4] that:
“…the arbitrator’s decision in respect of weekly payments without referral of the medical dispute to AMS, is totally misconceived and based upon disregard of the legislation empowered and authorized.”
The Arbitrator’s Assessment of the Medical Evidence
At [161]-[182] of her reasons, the Senior Arbitrator dealt with the appellant’s medical case going to the alleged injury to the thoracic spine. At [182] she concluded that she did “not accept that Mr Jaffarie suffered an injury to his thoracic spine”. At [8] the appellant submits that the “purported faults found by the arbitrator” in this medical evidence constituted “a matter which the arbitrator has no qualification nor jurisdiction to decide”. The appellant submits that Dr Khan (on whose evidence the appellant relied):
“…has been an AMS and has acted as a member of the Appeal Panel and therefore his expert opinion could not be dismissed by the arbitrator without any medical expertise, experience or knowledge.”
The appellant, at [12], submits that the respondent’s s 74 notice issued on 7 April 2010 dealt with Dr Maniam’s report dated 12 August 2009, but not with later reports, including from Dr Ellis. He submits “The arbitrator has therefore ignored to take into account there was no evidence in rebuttal by the respondent as required by section 74.” At [14] the appellant submits the appellant, Dr Maniam, Dr Ellis, Dr Diwan and Dr Khan were not cross-examined.
At [22] the appellant submits that the Arbitrator’s reliance on Hancock, in considering the weight to be attached to the appellant’s medical evidence, was “specious”. He refers to Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 (Brown), where he submits that Roche DP quoted Hancock as authority that the history in a report did not have to accord with contemporaneous records to be accepted. At [22] the appellant submits that Brown, like the current matter, involved the aggravation, etcetera of a ‘disease’ within the meaning of s 4(b)(ii) of the 1987 Act.
The appellant refers to State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71(El-Achi) and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 (Elcheikh) “for the issues relating to disease”.
Bias
The appellant at [14] submits that the Senior Arbitrator, at [172]-[178] of her reasons, misquoted two Court of Appeal authorities. He does not identify which ones. He submits that the authorities have no application “as they relate to the powers of the Court and the WCC is not a Court”. He submits that:
“The three cases were not relied upon by the respondent the arbitrator made up all the arguments in favour of the respondent, never raised by the respondent. Again, it is indicative of bias.”
The appellant at [14] submits:
“The arbitrator has shown bias and caused extreme prejudice to the applicant by herself advancing the cause of the respondent, against the objectives of WCC. It is evidence the arbitrator was not independent nor impartial.”
He also submits that the Senior Arbitrator’s failure to interpret the 1998 Act as “beneficial legislation” amounts to “bias”. There is a general submission at [17]:
“The Commission seems to find jurisdiction for the employer or refuse jurisdiction against the worker on a selective basis and it is a tendency and a trend in several other matters.”
The appellant, at [26], submits that the Senior Arbitrator’s “hypercritical approach” towards the doctors in his case, discrediting them “in pejorative terms”, evidences her “lack of independence and her bias”.
At [29] the appellant submits that the Senior Arbitrator discriminated against the appellant on the basis of his race, in granting leave to the respondent to issue a Direction for Production for the appellant’s “Immigration file”.
The Referral to an Approved Medical Specialist
The Senior Arbitrator, as part of her orders, made a referral to an Approved Medical Specialist (AMS) to assess whole person impairment in respect of the injury which she had found, to the lumbar spine (her reasons at [194]). The appellant at [20] of his submissions says:
“(a) The applicant had during the teleconferences and on the date of arbitration specifically requested to the arbitrator the lump sum claim was NOT being pressed since the applicant was undergoing treatment for lumber and throasic spine and MMI had not reached.
(b) The arbitrator nevertheless decided the question of injuries subject of medical dispute and once again herself wrongly decided it in relation to the throasic spine when she did not have the dispute in front of her nor the jurisdiction to decide threshold.
(c) She has decided the threshold issue under the guise of assumed jurisdiction in respect of throasic spine while merely and exclusively authorized to decide the question of weekly payments and nothing else.”
The appellant describes the Senior Arbitrator as having “decided the matter disregarding the direction to her by the Court of Appeal by the two majority Judges”.
Costs
The appellant submits that the Commission’s power to award costs was removed by s 341 of the 1998 Act, which commenced from 1 October 2012. He then refers to Tudor Capital Australia Pty Ltd v Christensen (No 2) [2016] NSWWCCPD 20 (Christensen). He submits it is “not decided whether post-remittal decision is subject to the Schedule 6 the former costs regime or not”. He then submits that costs in “the proceedings currently before the Commission are subject to party party costs rather than any Schedule costs as the proceedings are due to the decision of the Court of Appeal and the WCC is a subordinate special Tribunal under the Supreme Court Act (emphasis in the original). The appellant then submits that the complexity uplift under Sch 6 should have been the maximum of 40 per cent, rather than 20 per cent. This is in the alternative, if Sch 6 has application.
The General Submissions
The appellant, at [30] to [41], makes submissions of a general nature, with periodic references to his own situation . He submits that he is entitled to the protection of the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). He refers to s 109 of the Constitution. He states that he “wants the Commission to consider the applicability of the anti-discrimination legislation and their protection to him under the Constitution of Australia”. He submits that the decision of the Senior Arbitrator “directly or indirectly” discriminated against him by “taking away his right to claim damages every other injured person has against a tortfeasor”. The 1998 Act is asserted to be inconsistent with the Disability Discrimination Act (Cth).
The appellant submits that, if the Commission is unwilling to decide the “issue of inconsistency”, he requests that the matter be referred to the Supreme Court of New South Wales as “WCC is a Tribunal under its supervisory jurisdiction”. The submissions at [33] then, over 22 paragraphs, list matters said to support an argument that a “worker’s rights in comparison with non worker in NSW are unequal, incongruous, unfair and unjust and contrary to the commonwealth Disability Discrimination Act” (emphasis in the original). He refers to the role of the former WorkCover, the 2012 Amending Act, the role of AMSs and Medical Appeal Panels. There is reference to texts on the Australian Constitution and Administrative Law. The appellant submits that he is discriminated against “due to his race and disability”.
The Respondent’s Submissions
The respondent states that it identified three appealable issues in the appellant’s Applications to Appeal. The first was the finding that there was no injury to the thoracic spine. This had two parts – was there power to make the finding, and if so, did the Senior Arbitrator determine the issue correctly? The second appealable issue was the weekly award for a closed period to 31 December 2012. Again there were two parts – did the Senior Arbitrator err in accepting the appellant’s concession on this point, and did she otherwise err in making an award on a closed period basis. The third issue identified by the respondent was whether the Senior Arbitrator erred in her exercise of the reconsideration power.
Dealing with the Commission’s power to deal with the issue of injury to the thoracic spine, the respondent submits that the orders in the Court of Appeal decision remitted the whole matter, including the injury issue, to another Arbitrator for re-determination. There was no finding of fact going to the injury issue in the Court of Appeal, and nothing to prevent another Arbitrator from “conducting this task afresh”.
The appellant additionally submits that the Senior Arbitrator did not have power to deal with the injury issue, as this was “a medical dispute and therefore required referral to an AMS”. The respondent quotes from the earlier Presidential decision at [249], and [251]-[259], passages which review Bindah and associated authorities going to the respective roles of the Commission and AMSs. The respondent submits that it “is patently clear” from this analysis that the Senior Arbitrator had “the power, authority and jurisdiction” to determine the issue of injury to the thoracic spine. “Any other argument is manifestly untenable.”
The respondent notes that the claim was presented as one based on “a frank injury”, it is “not a disease claim”. The respondent submits that, until the Senior Arbitrator determined the issue of injury to the thoracic spine, she had no power to refer the injury to an AMS, due to s 321(4)(a) of the 1998 Act.
Regarding the correctness of the determination on injury to the thoracic spine, the respondent submits that the appellant did not identify “any errors of fact, law or discretion”. A submission that the Senior Arbitrator could not reject the evidence of the appellant’s “numerous experts” is “plainly wrong”. The appellant also refers to its submissions at the arbitration hearing on this topic.
On the issue of the weekly award for compensation, the respondent submits that the parties, at the arbitration hearing, agreed that the appellant was not an existing recipient within the meaning of Sch 6 Part 19H cl 1, and that the Commission had no jurisdiction to award weekly compensation beyond 31 December 2012. The appellant was represented by counsel and solicitors at the arbitration hearing.
The respondent additionally submits that the appellant’s concession was “made entirely correctly at law”. There is reference to the definition of an ‘existing recipient’ in Sch 6 Part 19H cl 1, and the transitional provisions in the 2012 Amending Act. The respondent refers to Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198;13 DDCR 139, Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37; 15 DDCR 1 (Kilic) and Lee v Bunnings Group Limited [2013] NSWWCCPD 54; 15 DDCR 82 (Lee). The respondent submits that Sabanayagam is not applicable to the facts in the current case.
The respondent refers to “a multitude of other allegations and accusations that litter the remainder of the submissions”.
The respondent’s submissions relate to the appeal in A4-10946/12, in addition to A3‑10946/12.
The Further Submissions
The parties made additional submissions, in response to the Direction referred to at [49] above, the respondent on 20 December 2016, and the appellant on 22 December 2016.
The respondent’s further submissions include reference to transcript of a telephone conference, where the appellant’s counsel, responding to a question from the Senior Arbitrator, agreed that the claim was one “for weekly payments as well as section 66” (5.4.16 T7.28-32). The respondent submits that the Senior Arbitrator could not, in any event, make a finding on weekly payments and medical expenses without determining the issue of ‘injury’. She was entitled to make a finding on the issue of injury to the thoracic spine.
The appellant submits that ‘injury’ was not in dispute. If it had been, it was accepted in the first arbitral decision, and that had not been appealed by the respondent. He submits that this was “a single injury with two aspects”. He submits the issue about injury to the thoracic spine was not articulated in the s 74 notice. He submits that the only matter before the Senior Arbitrator was “for wages and medical expenses based upon the admitted injury to lumbar spine and since MMI had not reached with thoracic, there was no occasion to decide the ‘injury’ to it”. For “all intent and purpose it is a medical dispute leading to WID”. The appellant’s further submissions did not refer to the transcript of the two telephone conferences before the Senior Arbitrator, which was the purpose of the leave.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by s 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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The right of appeal in the 1926 Act was in s 37; an appeal to the Supreme Court lay “in point of law or in relation to the admission or rejection of any evidence”. This is consistent with the passage of Schipp quoted above, which described the primary mode of challenge to errors of law to be by appeal to the Supreme Court. Section 352(5) of the 1998 Act provides for appeal from an arbitrator to a Presidential member, going to “error of fact, law or discretion, and to the correction of any such error”. Thus an appeal from an arbitrator to a Presidential member is on a broader basis than an appeal under s 37(4) of the 1926 Act.
It is consistent with the decision of the Court of Appeal in Schipp, and the appeal rights contained in s 352 of the 1998 Act, that a Presidential appeal should be regarded as the primary mode of challenge to alleged errors of fact, law or discretion by an arbitrator. This is relevant to the exercise by an arbitrator of the discretion pursuant to s 350(3).
The appellant’s attempted use of the reconsideration power in this matter was inappropriate. The appeal against the decision dated 1 July 2016 was lodged on 24 July 2016, three weeks after the reconsideration application was made, and one week before the Senior Arbitrator’s reconsideration decision. The reconsideration application was not based on further evidence; it consisted of multiple complaints about error and further submissions. Much of it, for example the submissions going to the period of the weekly claim and the basis of its quantification, were inconsistent with how the matter had been conducted, by experienced counsel, at the arbitration hearing, a matter of weeks previously. The substance of the reconsideration application, and the submissions on the appeal against the decision dated 1 July 2016, were largely identical. The reconsideration application was wasteful of legal costs, and the Commission’s resources. The conduct of two appeals together, with largely similar (although not identical) submissions, and a request that submissions in each be regarded as submissions in the other, created confusion, and again was wasteful of legal costs and the Commission’s resources.
The tone of the submissions, in the reconsideration application and the two appeals, was offensive. A Presidential appeal lies to identify and correct error, not to engage in the abuse of an arbitrator, who was simply carrying out her statutory function.
CONCLUSION
None of the identified grounds, and associated submissions, in the appeal against the decision dated 1 July 2016 has succeeded. The appeal in matter no A3-10946/12 fails.
Similarly, none of the identified grounds and associated submissions, in the appeal against the decision dated 5 August 2016 has succeeded. The appeal in matter no A4-10946/12 fails.
DECISION
The decisions of the Senior Arbitrator dated 1 July 2016 and 5 August 2016 are confirmed.
No order as to costs.
Michael Snell
Acting President
28 February 2017
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