Kapp v St Josephs Village Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kapp v St Josephs Village Ltd [2024] NSWPIC 406
APPLICANT:	Griselda Kapp
RESPONDENT:	St Joseph’s Village Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	29 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Application for reconsideration of Certificate of Determination to permit application for reconsideration of Medical Appeal Panel decision; Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd and Secretary, Department of Communities and Justice v Cannell; Held – application for reconsideration of Certificate of Determination declined.
DETERMINATIONS MADE:	The Commission determines: 1. The application for reconsideration of the Certificate of Determination dated 27 July 2016 is declined.

STATEMENT OF REASONS

BACKGROUND

Ms Kapp was employed by St Joseph’s Village Limited (St Joseph’s) as a personal carer when she suffered a psychological injury on 25 October 2013. She commenced proceedings in the former Workers Compensation Commission on 9 September 2015 claiming weekly compensation, treatment expenses and permanent impairment compensation.
The former Workers Compensation Commission which was abolished in 2021 and replaced by the Personal Injury Commission. I have used the titles of the decision makers relevant at the time the various decisions considered below were made. I have used Commission to apply to the relevant body when events occurred.
At a conciliation conference on 14 December 2015 Ms Kapp and St Joseph’s entered into consent orders which provided for the payment of some weekly compensation and treatment expenses and remitted the matter for referral to an Approved Medical Specialist (AMS).
Dr Samuels, an AMS, issued a Medical Assessment Certificate (MAC) on 18 March 2016 stating that Ms Kapp suffered 6% whole person impairment (WPI).
Ms Kapp appealed and on 22 June 2016 a Medical Appeal Panel (MAP) revoked the MAC and issued a new MAC certifying that she suffered 7% WPI. The Commission issued a Certificate of Determination (COD) on 27 July 2016 consistent with that decision, stating that Ms Kapp had no entitlement to permanent impairment compensation.
In September 2019 Ms Kapp filed a further medical appeal, relying on the grounds of deterioration of her condition and the availability of further evidence. The further evidence included reports by Dr Westmore, psychiatrist, dated 12 March 2018 and Dr Conrad, general surgeon, dated 23 April 2018. Ms Kapp did not pursue that appeal.
On 31 May 2022 Ms Kapp filed an application in the Personal Injury Commission asking that the MAP reconsider its decision under s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In a decision dated 23 August 2022, the President’s delegate declined the application for reconsideration because the power to reconsider had been repealed, and there were no pending “pre-establishment proceedings”.
Ms Kapp commenced proceedings in the Supreme Court in November 2022, seeking judicial review of the delegate’s decision. The parties entered into consent orders and on 23 April 2023, Elkaim AJ gave an oral decision in which he determined that the orders sought should be made because Ms Kapp and St Joseph’s agreed that the Commission did have the power to refer the matter to the appeal panel for reconsideration.[1]
[1] Kapp v St Joseph’s Village Limited [2023] NSWSC 414.
The consent orders handed to Elkaim AJ read:
“By consent, the court makes orders:
1.) Quashing the decision of the second defendant dated 23 August 2022, on the grounds of jurisdictional error.
2.) Ordering that the matter be remitted to the third defendant in order for the matter to be determined in accordance with law.
The court notes that the parties are agreed that there is to be no order as to costs.
The court further notes that the second defendant erred in the exercise of his jurisdiction when he incorrectly determined that the plaintiff’s application made to the Workers Compensation Commission on 3 September 2019 had been validly rejected.
The second defendant should have found that the September 2019 application was invalidly rejected, that the rejection was therefore of no effect, and that the application was therefore ‘pending’ as at the time of the second defendant’s decision, and caught by clause 14B(4) of schedule one of the Personal Injury Commission Act 2020 (NSW), which provides that the powers available to a decision-maker at the time the application was made are preserved.
It followed that the second defendant retained the discretion to exercise the power to refer the matter to an appeal panel for reconsideration contained within section 378 of the Workplace Injury Management Act 1998 (NSW) as it was in force on 3 September 2019 (Sleiman v Gadalla P/L [2021] NSWCA 236, [85] – [95]).
The matter is remitted in order for the second defendant to determine whether to exercise the discretion to refer the matter to an appeal panel for reconsideration.”
On remitter, the matter was heard by Principal Member Harris acting as both a Member and the President’s delegate and determined on 20 December 2023.[2] In brief summary, he determined that there was no gatekeeper role when considering whether an Appeal Panel should reconsider its determination and that the COD dated 22 June 2016 is final and binding pursuant to s 350 of the 1998 Act. The matter cannot be remitted to the Appeal Panel until the COD is rescinded.
[2] [2023] NSWPIC 685.
On 2 May 2024 Ms Kapp filed an application for reconsideration of the COD made in 2016. Ms Kapp’s purpose in seeking to reconsider the COD and set it aside and then seek reconsideration of the MAP decision is to obtain an assessment exceeding the threshold in s 151H of the Workers Compensation Act 1987 (the 1987 Act) to claim work injury damages.

PROCEDURE ON THIS APPLICATION

Each party filed submissions with respect to the reconsideration application before the preliminary conference. Given the history of the matter, I acceded to the parties’ request that the application be listed for conciliation conference and arbitration hearing so that counsel could speak to the submissions. I directed that the parties file Applications to Admit Late Documents attaching the documents relevant to the reconsideration application.
Each party filed an Application to Admit Documents on 31 May 2024 attaching the documents on which they relied for the purpose of the reconsideration application and their submissions. St Joseph’s also relied on a list of issues prepared for the proceedings before Principal Member Harris.
The matter was listed for conciliation conference and arbitration hearing on 20 June 2024 when Mr McManamey of counsel appeared for Ms Kapp and Mr Saul of counsel appeared for St Joseph’s.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

SUBMISSIONS

Written submissions – Ms Kapp

In written submissions, Mr McManamey said that the reconsideration was sought following the decision of Principal Member Harris. No application was made before that time because there was no authority which prohibited the Appeal Panel from reconsidering its determination when there was an existing COD. Ms Kapp’s position was that the proper time for reconsideration of the COD was when the MAP had determined that the degree of permanent impairment was greater than had previously been found. The view had been taken that the COD did not determine the issue which was the subject of the reconsideration application because the COD determined the claim for permanent impairment compensation, and this dispute was for the purpose of a work injury damages threshold.
Mr McManamey said that the matters to be considered on the reconsideration application were set out in Samuel v Sebel Furniture[3] (Samuel). He said that the discretion to reconsider is a wide one and must be exercised fairly, and that Ms Kapp had the right to have her reconsideration application determined by the MAP. The COD is a technical impediment to the exercise of the right, which was recognised by the orders made in the Supreme Court. Mr McManamey said that Principal Member Harris had found that there was evidence from Dr Westmore that there had been a deterioration which would justify reconsideration and that had also rejected arguments that the reconsideration was prevented by s 66(1A) or that the assessments had not been expressly stated to be for the purposes of the threshold.
[3] [2006] NSWWCCPD 141 at [58].
It is in the interests of justice, Mr McManamey submitted, that Ms Kapp should be able to exercise her right to have the reconsideration considered by the MAP. The reconsideration depends on fresh evidence from Dr Westmore which considers changes in her condition, and, by its nature, it is evidence that could not have been obtained at the time of the previous assessment. He said that Principal Member Harris had already determined that the evidence could lead to a different result.
Mr McManamey said that there was no right of appeal from the decision of Principal Member Harris and the only other remedy was an application for judicial review in the Supreme Court. He said that the COD was not issued as a result of any error by a lawyer acting for Ms Kapp and that the application had been brought in a timely manner because there was no perception that the COD needed to be set aside until Principal Member Harris’s decision.

Written submissions – St Joseph’s

In submissions prepared by its solicitor, Mr Murray, St Joseph’s argued that Ms Kapp’s submissions did not identify the legislative provision under which the reconsideration application proceeded but her submissions said that the application is to have the COD rescinded to permit her to proceed with the reconsideration of the decision of the MAP under s 378 of the 1998 Act. St Joseph’s disputed that s 378 was an available course.
It said that the circumstances were different to those discussed in Sleiman v Gadalla Pty Ltd[4] (Sleiman). The relevant effect of that decision was that the appeal lodged under s 327 of the 1998 Act on 6 September 2019, should have been considered by the delegate that time, as also constituting a request for reconsideration and that fact alone resulted in the preservation of s 378 of the 1998 Act which St Joseph’s conceded in the Supreme Court proceedings. It said that reconsideration application was exhausted and that Principal Member Harris determined that there was no right to reconsideration because the COD had not been rescinded. In those circumstances, St Joseph’s said that the facts necessary to preserve s 378 no longer applied and there is no basis to rescind the COD.
[4] [2021] NSWCA 236.
Turning to the substance of the application, St Joseph’s disputed the categorisation of the COD as a technical impediment to Ms Kapp’s right to reconsideration. It agreed that the factors to be considered were broadly those set out in Samuel but that the starting point was to assess the fresh evidence on which Ms Kapp relied. In a report dated 12 March 2018, Dr Westmore assessed 22% WPI, taking the history that two months after the “WPI determination” Ms Kapp collapsed at home, was referred to a neurologist and psychiatrist and was paralysed on the left side of her body. Dr Westmore considered that Ms Kapp still had some symptoms of post-traumatic stress disorder but had now developed a conversion disorder which, it was possible, had arisen as a result of the determination of her claim rather than the injury.
St Joseph’s said that the condition relied on as causing the deterioration was not the injury the subject of the previous assessment or pleading and liability for it had not been accepted nor determined. It said that the condition was a litigation neurosis which was not compensable, referring to Stewart v NSW Police Service.[5] Further, St Joseph’s said that the cause of the claimed impairment was a novus actus interveniens, severing the causal connection between the injury and her current condition.
[5] [1998] NSWCC 57; (1998) 17 NSWCCR 202.
With respect to the discretionary factors in Samuel, St Joseph’s said that the interests of justice do not support the application because the sole basis for it is a conversion disorder. It said that the question of delay weighs heavily against Ms Kapp because any delay is not that since the decision of December 2023 but since 27 July 2016 when the COD was issued. Dr Westmore’s report is dated 2018 and Ms Kapp had not explained the delay since that time. In addition, St Jospeh’s said it had always been its position that the COD would need to be rescinded for any reconsideration to proceed.
St Josephs also said that the conduct of the parties was relevant and that this was the first time Ms Kapp had sought to reconsider the COD, even though she had previous opportunities. It noted the statement by Principal Member Harris to the effect that Ms Kapp was clear that she did not seek to reconsider and rescind the COD. Only after the decision Principal Member Harris was adverse to her did Ms Kapp resile from her explicitly stated position.
St Joseph’s relied on the principle of finality of legislation, referring to statements by Roche DP in Samuel. It summarised the history, saying that Ms Kapp had continually sought to re-agitate and re-litigate the question of the degree of permanent impairment and that it is difficult to envisage a matter where the principle of finality had been contravened more clearly.

Oral submissions – Ms Kapp

Mr McManamey said that the Supreme Court decision of Elkaim AJ established that Ms Kapp had the right to have the matter reconsidered by the MAP. Mr McManamey said that some of the arguments St Joseph’s relied on had been determined by Principal Member Harris, though he had not identified the power he was exercising so that the appeal rights were uncertain. One of the considerations in the interests of justice must be whether a decision based on an unidentified power should stand in the way of Ms Kapp being able to exercise her right.
Responding to the submission about timeliness, Mr McManamey said that the issue of the need for reconsideration of the COD only arose in the course of the previous hearing and that it remains the view of Ms Kapp’s representatives that it did not need to be set aside. Once Principal Member Harris said that it was necessary to set it aside, Ms Kapp had moved promptly.
Responding to my question as to whether seeking a reconsideration of the COD was not an orthodox step to be taken before seeking reconsideration of a MAC, Mr McManamey said that those applications derived from s 327 of the 1998 Act and s 327(7) provides a barrier to an appeal where there has been a determination. That section is not relevant here because Ms Kapp seeks a reconsideration by the MAP under the preserved s 378. Mr McManamey said that the only comparative case was Sleiman in which the “matter came back from the Court of Appeal and was referred straight to the Appeal Panel” for reconsideration and there was no intervening decision by the Commission.
Mr McManamey said that Principal Member Harris had dealt with the merits of the claim, accepting that there was evidence of the deterioration of Ms Kapp’s psychological condition and that no assessment was sought in respect of the conversion disorder which had been diagnosed.

Oral submissions – St Joseph’s

Mr Saul said that it was important to consider the finality of litigation and that the matter revolved around the repealed s 378 which has been preserved in limited circumstances. He said that the delegate had failed to consider in Sleiman so that his decision was set aside to allow that to occur. Principal Member Harris refused the application to refer the matter back to the MAP. The saved provision had therefore been dealt with and there was no work for s 378 to do.
Mr Saul said that the COD was issued in 2016 and Ms Kapp made no application to have it set aside. The invitation was made but rejected so that the principle of Anshun estoppel applied.[6] He referred to Secretary, Department of Communities and Justice v Cannell[7] (Cannell) in which Nomchong ADP discussed the reconsideration power and highlighted the need for the finality of litigation. In this case, St Joseph’s had not had the opportunity to test the new allegations, both with respect to causation and diagnosis.
[6] Referring to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 145 CLR 589.
[7] [2024] NSWPICPD 32.
Turning to the factors in Samuel, Mr Saul said that Roche DP said that one of the factors to be taken into account is Anshun estoppel. He also noted that a mistake or oversight by a legal adviser will not give rise to a reconsideration. In this case no application was made to reconsider the COD. He said that this claim had “morphed” into a threshold dispute but the Application to Resolve a Dispute on which Ms Kapp relies claims only permanent impairment compensation, which he said is relevant to the exercise of the discretion.
Turning to the decision in Cannell, Mr Saul pointed out Nomchong ADP’s statement that:
“In my view, one of the primary considerations in the exercise of the discretion is the desirability of the finality of decisions. The appellant submitted it was a paramount consideration.[8]
…
In my view, the respondent worker has engaged in a series of ‘trial and error’ attempts to have her permanent impairment assessment reviewed or reconsidered.”[9]
[8] At [365].
[9] At [3781].
Mr Saul highlighted the similarities between Cannell and this case and referred me to the analysis of Anshun estoppel.[10] He said that Anshun estoppel applied here because Ms Kapp did not pursue the reconsideration application when the matter was before Principal Member Harris, despite being asked a number of times. The discretionary factors in Samuel weigh against the exercise of the discretion under s 350.
[10] From [400].
Noting that Mr McManamey said that Ms Kapp did not rely on the conversion disorder, Mr Saul said there was then no evidence of deterioration of the post-traumatic stress disorder diagnosed by Dr Westmore. His assessment of 22% WPI included the diagnosis of conversion disorder.

Reply

Mr McManamey pointed out that Principal Member Harris expressly dealt with the argument that Dr Westmore’s report did not support a deterioration.
With respect to Anshun estoppel, Mr McManamey said that Nomchong DP said nothing new in Cannell, no more or less than what was said in Samuel. Anshun estoppel is one relevant consideration. Mr McManamey said that the question of reconsideration was not part of the previous decision and the merits have not been considered.
With respect to the finality of litigation, Mr McManamey again referred to the uncertainty about whether Principal Member Harris was acting as a Member or the President’s delegate. Mr McManamey said that it was preferable that the reconsideration application was made rather than engaging in another set of proceedings in the Supreme Court. The matter should be permitted to go to the MAP to determine the matter as occurred in Sleiman.

FINDINGS AND REASONS

Setting aside the COD

The decision of the MAP was that Ms Kapp had 7% WPI and the COD was issued in 2016 giving effect to that assessment. Even though she seeks a reconsideration by the MAP for the purpose of the threshold in s 151H only, the MAP will, if grants the application for reconsideration and if it finds that there has been a deterioration, issue a MAC, revoking the MAC issued previously.
Principal Member Harris accepted that the COD is final and binding pursuant to s 350 of the 1998 Act and that an application for reconsideration is required before further reconsideration by the MAP. Mr McManamey sought to reagitate that position on the basis that it was unclear whether the Member made his decision as a Member or as the President’s delegate. I agree with Principal Member Harris’ reasoning and his conclusion that the COD must be set aside, though make some further comments about the submission that the step is not necessary.

Mr McManamey was incorrect about the history of the proceedings in Sleiman – the matter was not referred directly from the Court of Appeal to a MAP. Mr Sleiman claimed in 2019 that his condition had deteriorated after an initial assessment of WPI and a successful medical appeal. He made an application for judicial review of the decision of the President’s delegate, declining to remit the matter to the MAP. Harrison AsJ declined that application and Mr Sleiman sought to appeal.
The Court of Appeal decision was handed down on 30 September 2021. Having determined that Mr Sleiman should be granted leave to appeal on the basis that the President’s delegate should have considered that Mr Sleiman made an application for reconsideration of the MAP’s decision, the Court ordered that the delegate’s decision be set aside and the matter remitted to the Commission for determination in accordance with law.
Leeming JA set out the history of Mr Sleiman’s proceedings, noting that as a result of the Appeal Panel decision, a COD was issued stating that Mr Sleiman had 14% WPI. His Honour said:[11]
“Thus, following his successful appeal to the Appeal Panel in 2017, Mr Sleiman and his employer and its insurer and the Commission and any court became bound by (a) a medical assessment certificate dated 16 June 2017 assessing his whole person impairment at 14% and (b) a certificate of determination from the Commission requiring his employer to pay him a lump sum under s 66 of the Workers Compensation Act. The Commission’s certificate determined as between the parties Mr Sleiman’s entitlement to compensation pursuant to s 66. The new medical assessment certificate issued by the Appeal Panel determined, conclusively, Mr Sleiman’s degree of permanent impairment of 14% in any proceedings before a court or the Commission.”
[11] At [10].
His Honour noted that the purpose of Mr Sleiman’s subsequent application was to establish that his condition had deteriorated for a “work injury damages threshold dispute”.[12]
[12] At [11].
On remitter, Mr Sleiman’s matter was referred to a Member of the Commission who reconsidered the COD. The history appears in the decision of the relevant MAP:[13]
“His Honour said that the appropriate course was not to dismiss his appeal but to consider it an application for reconsideration. The matter was remitted to the Commission so that the application for reconsideration could be determined.
Before any reconsideration of the MAC could be undertaken, it was necessary for the Commission to reconsider the Certificate of Determination issued on 21 July 2017 under which Mr Sleiman was paid compensation. A member of the Workers Compensation Division of the Commission determined that application on 6 September 2022, being satisfied that the weight of the medical evidence supported the conclusion that there had been a deterioration in Mr Sleiman’s lumbar spine and some deterioration in his upper extremities since the MAC in 2017. She rescinded the Certificate of Determination and referred the matter back to the Appeal Panel for reconsideration.”
[13] Sleiman v AGR Tyres Pty Ltd [2023] NSWPICMP 111 at [15]-[16].
There was in fact a year between the remitter from the Court of Appeal to the Commission and the COD being set aside in a lengthy reconsideration decision[14] and the reconsideration by the MAP was made under s 327(3)(a) of the 1998 Act.
[14] Sleiman v AGR Tyres Pty Ltd [2022] NSWPIC 496.
St Joseph’s argued that Ms Kapp was entitled to have the decision of the delegate declining to refer the matter to the MAP set aside and that was the effect of the consent orders made in the Supreme Court. It said that Principal Member Harris determined that there was no right of reconsideration under s 378 because the COD had not been set aside, effectively saying that Ms Kapp’s rights had been exhausted. Principal Member Harris determined that the matter could not be remitted to the MAP until the COD is rescinded, leaving a further application to do that open. The application for reconsideration has now been made. The reconsideration should be considered on its merits, as occurred in Sleiman.
I do not accept the submission that the effect of the Supreme Court orders were that Ms Kapp has the right to have the MAP reconsider its decision. The effect of those orders was only that the decision of the President’s delegate in 2022 was set aside.
The reconsideration should occur before any referral back to the MAP because, if it agrees to reconsider the previous decision, the MAP will assess the extent of permanent impairment to determine if the relevant threshold is reached. If the MAP was to reconsider the appeal, without the COD being set aside there would be two inconsistent determinations.
The Court of Appeal considered an analogous issue in the context of the threshold in s 39(2) of the 1987 Act in Hochbaum v RSM Building Services Pty Ltd.[15] Brereton JA said:[16]
“The notion of permanent impairment as used in the 1987 Act involves a diminution in function experienced by a worker which is lasting or enduring. In the context of s 39 of the 1987 Act, the reference to ‘the degree of permanent impairment resulting from the injury’ is a reference to the ultimate degree of impairment that is stable and final, even if it is not immediately evident or ascertainable, and even if it is achieved only after a deterioration.
This is reflected in s 322A of the 1998 Act, to the effect that there is to be only one assessment of an injured worker’s degree of permanent impairment. It is true, as was emphasised for the respondents, that the legislation recognises that impairment from workplace injuries may improve or deteriorate over time, and that there may be periods during which the degree of permanent impairment is not ascertainable. Under s 322(4) of the 1998 Act, an approved medical specialist may decline to make an assessment of the degree of permanent impairment until satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable, which indicates that it may not be fully ascertainable at the outset. Moreover, s 322A(4) allows for the possibility that the degree of permanent impairment might be re-assessed on an appeal (under ss 327 or 352 of the 1998 Act). One of the grounds of appeal permitted by s 327 is ‘deterioration of the worker's condition that results in an increase in the degree of permanent impairment’, which indicates that impairment can deteriorate.
However, none of this detracts from the proposition that there can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency. If assessment is deferred and there is an improvement in the worker’s condition, it is the lower degree that is the permanent impairment. If there is a deterioration after initial assessment, and a higher degree is substituted on appeal, it is the higher degree of impairment that is the permanent impairment. While it is true that an assessment can be altered on appeal or reconsideration, the final determination – whether the original decision or on appeal or reconsideration – will establish conclusively what is the degree of permanent impairment which results from the relevant injury. For the purposes of s 39, it is the final degree of permanent impairment that results from an injury that matters, although it may not be established until long after the injury, or the expiry of the 260 week period. That degree will either be greater than 20%, or not. If, ultimately, it is, the worker is in the exempt class and s 39 does not apply, and never has.
In this connection, it was argued that if a worker successfully appeals on the basis of deterioration, it would make no sense to treat the new medical assessment certificate as applying in respect of the period after the expiration of the 260 weeks but before the new certificate is given, and that the new certificate would operate only from the date of its issue. That argument is incorrect, for two reasons. The first reason is that that is not how appeals operate; ordinarily, a judgment or award made on appeal is substituted for the original judgment or award, with effect from the date of that original judgment or award. That ordinary operation of an appeal is reflected in the provisions governing appeals from medical assessments. Such an appeal is determined by an Appeal Panel of two medical specialists and an Arbitrator, and the Appeal Panel may either “confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned”. Notably, this does not envisage that the original certificate remains on foot and effective up to the date on which the new certificate is issued, but contemplates that the original certificate is revoked and the new one substituted for it. That accords with the view that there is only one degree of permanent impairment that results from an injury. The second reason is that it is contrary to the principle that emerges from the authorities referred to above, including Borovac, that when the degree of permanent impairment is finally and correctly ascertained (including after any correction on appeal), it dates from the injury.”
[15] [2020] NSWCA 113.
[16] At [54]-[57].
Because there can only be a single degree of WPI, the COD must be set aside before any consideration by the MAP.

Reconsideration

Section 57 of the Personal Injury Commission Act 2020 (the 2020 Act) is the same terms as the former s 350(3) of the 1998 Act. The considerations relevant to the exercise of the former provision apply to the current provision. Section 57 provides:
“(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
In Samuel, Roche DP described the factors relevant to the exercise of the power to reconsider under s 350(3) and said (omitting citations):
“1.     the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.     whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.     whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4.     one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5.     reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.     given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.     depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.     the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
In Maksoudian, Bishop CCJ said:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. 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: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
The passage from the decision of Street CJ in Hilliger v Hilliger[17] (Hilliger) to which Roche DP referred in Samuel reads:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the 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 in order to see that justice is done between the parties.”
[17] (1952) 52 SR (NSW) 105, 108.
The emphasis in the latter quote was added by Roche DP and he formulated the last of the factors in his list by reference to that passage and to the former s 354(3) of the 1998 Act, now s 43(3) of the 2020 Act, which provides:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Cannell, Nomchong ADP considered proceedings with a long history. The appeal was from a decision granting a reconsideration application which set aside a COD issued in 2019 to permit a further medical appeal as to the extent of permanent impairment, following a deterioration, for a threshold dispute. Nomchong ADP agreed that the principles in Samuel were applicable. She set aside the decision under appeal and re-determined the matter, finding that the relevant COD should not be set aside.

Fairness and delay

The question of fairness must be considered in respect of both parties. These proceedings have been protracted and inevitably considerable costs have been incurred.
Turning to the question of delay, I consider that the following matters disclosed in the file are important. Ms Kapp suffered injury on 25 October 2013. The COD was issued in 2016 after examination by an AMS and a medical appeal. Ms Kapp sought to file a further medical appeal relying on the ground of deterioration by a document dated 3 September 2019 and accompanied by unsigned submissions. The application relied on the report of Dr Westmore dated 12 March 2018 and a report of Dr Conrad dated 23 April 2018. She relied on reports from her treating doctors in the period since the COD was issued. The submissions accompanying the appeal said that there was no need to reconsider the COD because the appeal was made for a threshold dispute only, referring to the decision of then Arbitrator Harris in Lizdenis v Centrel Pty Ltd.[18]
[18] [2016] NSWWCC 21.
The material attached to the reconsideration application filed in 2022 included emails dated 10 September and 26 September 2019 from Mark Norman, Team Leader Registry Services, pointing out that the appeal had purported to be from one of the medical members of the MAP and rejecting its filing.
Principal Member Harris said that the appeal was not pursued as a result of the decision in Sleiman. There was, however, a significant gap between the rejection of that appeal by the Commission in 2019 and the Court of Appeal decision in Sleiman in 2021.
There is no evidence to explain why no steps were taken to set aside the COD in late 2019 and to seek to appeal under s 327(3)(a) and (b) of the 1998 Act.
The next step in the history of the proceedings did not take place until 31 May 2022 when Ms Kapp filed an application for reconsideration of the MAC issued in 2016. It was accompanied by written submissions prepared by Mr McManamey, email correspondence from Mr Norman and a draft copy of the appeal application filed immediately in 2019, saying it was provided in draft because the solicitors no longer held a sealed copy. (I note the simple explanation for that may be that the application was rejected and no sealed copy was provided.) The attached copy of the application named the original AMS and therefore appears not to have been the application to which Mr Norman’s emails refer. An email from Mr Norman dated 1 March 2022 referred Ms Kapp’s representatives to Procedural Direction PIC 7 Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes.
The attached submissions said the application filed in 2019 was an application brought under s 327(3)(a) and (b) and that, in rejecting the application, the Team Leader Registry Services must have been acting as a delegate of the Registrar and performing the role of gatekeeper under s 327(4). The submissions said that Ms Kapp had the right to have the application considered as a reconsideration application as had occurred in Sleiman. It had not been properly considered and remained on foot.
The reconsideration application was determined by the President’s delegate, Mr McAdam, on 23 August 2022. He determined that there were no “pending non-court pre-establishment proceedings” within the meaning of cl 14B of Sch 1 to the PIC Act because the application to appeal had been rejected by the Registry.[19]
[19] Decision dated 23 August 2022
The Consent Orders in the Supreme Court are set out above. Elkaim AJ gave a short decision stating that the parties agreed that Mr McAdam did have the power to refer the claim to the MAP for reconsideration. The summons was filed on 2 November 2022 and the evidence relied on in support of it does not form part of the file.
For the purpose of this application, I accept the parties’ agreement at face value. I echo Principal Member Harris’ misgivings about the course adopted.[20] Elkaim AJ’s decision dealt only with the fact of the power to refer the claim back to the MAC and not with the merits of the decision.
[20] At paragraph [12].
It is not clear from the file what happened between decision on 20 April 2023 and the proceedings before Principal Member Harris in late 2023. It is clear that no application for reconsideration of the 2016 COD was made until after his decision was made. Even in argument before me, it was suggested that the application was not required.
It is clear from Principal Member Harris’ decision that no steps were taken to seek reconsideration of the COD when the proceedings were listed before him. The application was only made as a result of his orders.

The history I have set out shows that there were long periods when nothing happened. The material on which Ms Kapp relies as additional relevant information is now more than six years old. None of the delay is explained.
It is conventional when a party asks a court or tribunal for the exercise of a discretion that an explanation will be offered for delay, even when not specifically required by legislation. Nomchong ADP said in Cannell that the lack of adequate explanation for delay was a significant factor militating against the exercise of the discretion. That is also the case here where no explanation has been offered.

Finality of litigation

Noting the history of the proceedings in Cannell, Nomchong ADP said:[21]
“The High Court in Burrell v The Queen held at [16]:
‘... It is that the principle of finality serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time‑consuming, and it is almost always costly.’
In my view, the respondent worker has engaged in a series of ‘trial and error’ attempts to have her permanent impairment assessment reviewed or reconsidered.”
[21] At [370]-[371].
I consider that Ms Kapp has likewise made a series of trial and error attempts in the prosecution of her claim. Even if it was decided in her favour, this application will not finalise the proceedings between Ms Kapp and St Joseph’s and is merely another step in already protracted proceedings.
The principle of the finality of litigation weights heavily against granting the reconsideration and setting aside the COD.

Additional evidence and the merits

Dr Westmore’s report is not the only evidence that deals with a deterioration in Ms Kapp’s condition. A conversion disorder was first diagnosed in July 2016 at Westmead Hospital[22] and confirmed by Dr So in 2017.[23]
[22] Ms Kapp’s Application to Admit Late Documents p 75.
[23] As above, p 69.
Dr Westmore’s report dated 12 March 2018 provided an assessment of 22% WPI, greater than that assessed by the AMS but the MAC shows that Dr Westmore’s original assessment in 2015 was also 22%. However, I agree with Principal Member Harris that Dr Westmore’s report supports the contention that Ms Kapp has an arguable case that the original psychological injury is a material contribution to any permanent impairment she now suffers. The conversion disorder is not assessable under s 66.
I also note that Dr Westmore’s report is eight years old and may not reflect Ms Kapp’s current condition. It is a stretch to describe it as fresh evidence. Apart from Dr Conrad’s practically contemporaneous report, it is the most recent evidence relied on by Ms Kapp.
St Josephs obtained some further medical evidence in 2023 from Dr Keller and Dr Roberts. I was not taken to those reports during the parties’ submissions. I have read those reports and observe that neither of them assists Ms Kapp.
Dr Westmore’s evidence is relevant because it is the only basis relied on to support the reconsideration and proposed appeal. It is possible that the MAP would consider that it was necessary to call for up to date information from Ms Kapp’s treating doctors before determining the appeal causing further delay.

Anshun estoppel

In Cannell, Nomchong ADP said:[24]
“The Court of Appeal in Miller v Secretary, Department of Communities and Justice carefully analysed why the principle of Anshun estoppel should apply to the statutory scheme in the workers compensation legislation.
Ward P, who delivered the primary judgment, referred to the decision of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd:
‘The third form of estoppel is now most often referred to as “Anshun estoppel’”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel” and not as a form of res judicata in the strict sense.’ (emphasis added)
Ward P carefully went through all of the relevant authorities including where his Honour Kirby P (as he then was) held in O’Brien v Tanning Research Laboratories Inc:
‘... With the development of arbitration and of administrative tribunals, both of which enjoy significant standing and follow procedures akin to those used in the courts, there would appear to be no reasons of principle why, at least in cases such as the present, estoppel should not arise to prevent the needless re-opening or unwarranted re-agitation of matters formally concluded by an appropriate tribunal, according to law. ...’
Her Honour concluded that Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice. Her Honour found that Anshun estoppel applies to the workers compensation legislative scheme.
The issue therefore is whether or not the respondent worker unreasonably refrained from pursuing the application in earlier proceedings and if so, whether that should militate against the exercise of the discretion for the respondent worker to pursue the Current Reconsideration Application.” (emphasis in original).
[24] At [401]-[405], footnotes omitted.
Anshun estoppel is one of the factors highlighted in Samuel. Reconsideration of a COD to permit an appeal on the ground in s 327(3)(a) and (b) is a reasonably orthodox application in the Commission.
The consideration is separate to that of delay. I am satisfied that this application for reconsideration is one which could and should have been brought before now. It could have been brought in 2022 at the same time as the application that the Appeal Panel decision be reconsidered under s 378. The Commission would most likely have referred the reconsideration application to a Member at that time.
Principal Member Harris explicitly raised the point, set out in his decision and invited the parties to make the application. Ms Kapp only made this application when he declined to refer the matter to the MAP.
The application is one which Ms Kapp has unreasonably refrained from making in previous proceedings.

Conduct of legal advisers

Ms Kapp has been legally represented throughout the proceedings and the forensic decisions, whilst inevitably made after obtaining her instructions, were also no doubt made on the basis of legal advice.
Despite the orders made by Principal Member Harris, the argument that reconsideration was not necessary was made in the proceedings before me. The failure to seek reconsideration before this application was a mistake. The principle that the mistake of a legal representative will not give rise to reconsideration is most relevant here and weighs against reconsideration.

Conclusion

For those reasons, the factors set out in Samuel weigh against granting the application for reconsideration, with the exception of the existence of further evidence. That factor is diminished because the evidence is now so dated. Doing justice between the parties requires justice to both parties.
The application for reconsideration of the COD dated 27 July 2016 is dismissed.

[2024] NSWPIC 406

29 July 2024