Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited
[2003] NSWWCCPD 2
•16 January, 2003
REFERRAL OF A QUESTION OF LAW
CITATION:Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited
[2003] NSWWCCPD 2
APPLICANT: Kate Louise Sheridan
RESPONDENT: Coles Supermarkets Australia Pty Limited
INTERVENER: WorkCover Authority of NSW
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NO:WCC942-2002
DATE OF DECISION: 16 January, 2003
PRESIDENTIAL MEMBER: Gary Byron, Acting President
QUESTION OF LAW: Whether the Arbitrator erred in allowing reports of Dr. Reid dated 19th Mar 2002 and Dr. Oates dated 13th Dec 2001 to be admitted into evidence, in contravention of section 290 of the Workplace Injury Management and Workers Compensation Act 1998.
HEARING: Determined on the papers
REPRESENTATION: Applicant: Everingham Solomons Solicitors
Respondent: Lander & Rogers Lawyers
Intervener: WorkCover NSW
ORDERS MADE: Leave to refer the Question of Law is refused. No order is made as to costs.
THE QUESTION OF LAW
1.The Applicant has sought leave of the President of the Workers Compensation Commission (“the Commission”) to raise a question of law and has submitted the following “details of the question of law”:
“The Arbitrator erred in allowing the reports of Dr. Reid dated 19th March 2002 and Dr. Oates dated 13th December 2001 to be admitted into evidence. The allowing of the reports into evidence is in contravention of Section 290(3) of the Workplace Injury and Management Act 1998.
Section 290 provides that all reports that a party wishes to rely upon must be provided to the other party ‘as and when required by the Rules’. Rule 27(1) states that ‘the Respondent must lodge with the Reply to an Application for Dispute Resolution, all information and documents on which the Respondent proposes to rely that are in the possession of the Respondent at that time’. The reports of Dr. Reid dated 19th March 2002 and Dr. Oates dated 13th December 2001 were not provided to the Applicant’s Solicitors until after the teleconference on 2nd December 2002.”
BACKGROUND
2.On 19 July, 2002 Kate Louise Sheridan (“the Applicant”) lodged in the Commission an Application to Resolve a Dispute pursuant to section 288 of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”). The Applicant’s employer at all relevant times was Coles Supermarkets Australia Pty Limited (“the Respondent”). The Respondent’s workers compensation insurer at all relevant times was Allianz Australia Workers Compensation (NSW) Limited (“the Insurer”).
3.The Applicant claimed that from 4 April, 2002 when the Insurer denied liability up to 1 August, 2002 she suffered incapacity for work for which weekly compensation and compensation for medical expenses is payable, and which arose out of and in the course of her employment as a packer, with the Respondent. The Applicant claimed to have sustained an injury to her back, resulting from her employment as a packer, leading to a specific injury on 7 June, 2001 when she was lifting boxes of soft drinks, soap powder and dog food, resulting in the pain in the thoracic area of her back becoming much worse.
4.The Respondent denied liability pursuant to section 9A of the Workers Compensation Act 1987 (“the 1987 Act”).
5.On 22 August, 2002 the dispute was allocated to an Arbitrator who duly determined the matter on 2 October, 2002.
6.On 18 October, 2002 an Application to Appeal Against the Decision of the Arbitrator was lodged in the Commission by the Applicant. On the same day an Application for Leave to Refer a Question of Law (the subject Application) was lodged in the Commission. The question of law put by the Applicant is also one of the substantial grounds of appeal, although not framed in identical language.
7.On 18 November, 2002 he President of the Commission granted leave to the Applicant to serve each of the applications to refer a question of law and to appeal the decision of the Arbitrator, and to file Certificates of Service out of time. He directed that service should be completed no later than Wednesday 27 November, 2002, and Certificates of Service lodged no later than Monday 2 December, 2002. He further directed that once the service requirements had been complied with and the Applicant had determined the position with regard to the application for leave to refer the question of law, the papers should be returned for further consideration of the applications for leave.
8.There has been substantial although not apparently strict compliance with the directions of the President, at least insofar as the Application for Leave to Refer a Question of Law is concerned. Upon an inspection of the relevant file it is clear that service has been effected in accordance with the President’s direction, but that service has not been evidenced by the filing of the prescribed Certificate of Service. By letter of 27 November, 2002 the Solicitors for the Appellant filed submissions and stated that the submissions have been served on the Respondent. The Respondent in turn, has lodged with the Commission replies to the Appellant’s Application for Leave to Refer a Question of Law and to the Application for Leave to Appeal Against Decision of the Arbitrator. Reference to section 354 of the Act generally supports the view that there has been sufficient compliance for this Application for Leave to Refer a Question of Law to be considered, and that the matter may now proceed. The Applicant may yet need to file further supporting submissions in relation to the Application for Leave to Appeal Against the Decision of the Arbitrator, but that is a separate matter and is not relevant to a consideration and determination of this Application for Leave to Refer a Question of Law.
THE ISSUES REGARDING LEAVE
9.WorkCover has elected not to intervene in these proceedings pursuant to section 106 of the Act, for the following reasons:
a.“The issues raised concern a matter of procedure where the President’s decision is not likely to have direct bearing on WorkCover or the operation of the workers compensation legislation;
b.It is within the Commission’s discretion, under Rule 5(2) of the Interim Workers Compensation Rules, to dispense with compliance with the requirement for early disclosure if it thinks fit, and
c.The parties do not appear to have been deprived of the opportunity for a full hearing.
d.The Authority is also of the opinion that the questions raised are neither novel nor complex and as such leave for the Commission constituted by the President to hear this matter should not be granted.”
10.As stated above, the Arbitrator made his decision and determination in relation to the substantive dispute on 2 October, 2002. The Application for Leave to Refer a Question of Law was lodged after the determination had been made, that is, on 18 October, 2002. In their submission of 27 November, 2002, the Applicant’s Solicitors state:
“Dealing firstly with the time in which the referral to the President has ben made and whether such timing is envisaged by the legislation, we would respectfully submit that Section 351(2) of the Workplace Injury Management & Workers Compensation Act 1998 provides that the question may be referred by one of the parties. Subsection (5) goes on to provide that an award may still be made even though there is any reference of a question of law. Section 351(6)(b) also makes provision if an award has been made.”
The submission then goes on to state why the “circumstances surrounding the present case made it logistically extremely difficult to refer the matter to the President at the preferred time as set out in the President’s Direction No. 5A of 2002. The matter was set down for conciliation/arbitration in Armidale on 12 September 2002. Prior to this day there was no determination or decision as to the admissibility or otherwise of the reports of Dr Reid dated 19 March 2002 and Dr Oates 13 December 2001.”
Without restating the whole of the detail, the points of the submission were put as follows:
“We would respectfully suggest that at that point in time it was not appropriate that the conciliation/arbitration be cancelled or postponed whilst we obtained instructions to refer the question of law to the President.”
And further:
“At no time before the conciliation/arbitration in Armidale, were the parties given any inclination that both reports would be admitted, thus not giving us an opportunity to refer the matter to the Commission before that time.”
1.As to whether the question of law is novel or complex, the Applicant submits that:
“the questions raised by the referral are both. We would expect that this may be one of the first times that such a question has been raised before the Commission, and the ramifications of the original decision are drastic and we would say draconian for all parties in the future. To allow all reports into evidence, no matter when these are provided to the Commission and the other party, is to set a precedent that allows for people to act carte blanche. We would respectfully submit that to allow the reports into evidence was a flagrant breach of the rules and in contravention of the legislators’ intention.”
11.The Respondent opposes the Application and has provided a comprehensive response which may be summarised as follows:
·In the absence of supporting information specifically addressing the issue of novelty and complexity, the Application should be dismissed.
·No specific question of law has been referred or posited.
·Having regard to the nature of the apparent question, it is neither complex nor novel.
·The submission does not satisfy the requirements of section 371 of the Act.
·Any grant of leave would be unlikely to be successful given the nature of the application.
The balance of the submission relates to the matter of the admission into evidence of the documents in question, by the Arbitrator.
DISCUSSION
13.Section 351 of the Act provides for reference of a question of law on a compensation claim to the Commission constituted by a Presidential member. The section provides:
(1)A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the Arbitrator.
(2)The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.
(3)The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
(4)If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.
(5)Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter.
(6)On the determination of a question referred to the Commission under this section:
(a)if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or
(b)if an award has been made in the matter in which the question arose, the ward must be varied in such a way as will make it consistent with the opinion of the Commission on the question.
(7)The reference of a question of law under this section may be by stating a case on a question of law.
14.The section provides for the reference to the President by the Arbitrator, either on the application of a party to the proceedings or on the Arbitrator’s own motion.
It follows that the reference must be made during the course of the proceedings before the Arbitrator and not after the completion of the proceedings when the Arbitrator is functus officio. Subsection (5) allows the Arbitrator to proceed to make an award notwithstanding that the reference has been made to the President and for all practical purposes, whether the matter has or has not been dealt with by the President at that point in time. Subsection (6)(b) which must be read in the context of the section in which it is contained, makes provision for the award of the Arbitrator to be varied in circumstances where the opinion of the President on the question of law is delivered, after the award is made. This is different to the proposition put by the Applicant. There is no provision under the Act for the Application for Leave to Refer a Question of Law, to be made to the President, once the proceedings before an Arbitrator are finished and he or she has determined the matter.
15.The Applicant has put forward a submission in which important and critical aspects of the decision made by the Arbitrator to admit the documents in question, are claimed. It is submitted by the Applicant that the ramifications of the decision are drastic. That may or may not be so. However, the important question is – “Is the question of law that has been put, a novel or complex question of law?” The answer must be “No.” The issue here is whether the documents should have been admitted into evidence by the Arbitrator. Submissions were made to the Arbitrator on the matter prior to making his decision. The Applicant considers that the Arbitrator erred in admitting the documents into evidence. The Applicant has included this as one of the grounds of appeal against the decision of the Arbitrator and undoubtedly expects that the issue will be dealt with, amongst others, in the appeal proceedings before the Commission, constituted by a presidential member. I agree with the Respondent that a question of law that may be dealt with by the President pursuant to the section, has not been posited. The Applicant has simply put forward the proposition that the Arbitrator was in error in deciding to admit the documents. An appeal has been lodged against the substantive decision of the Arbitrator on a number of grounds, including this particular ground. The issue is one for consideration in the context of the appeal and is clearly not a novel or complex question of law in the ordinary meaning of those words nor within the meaning of the section.
DECISION
16. For the reasons stated, leave to refer the question of law is refused.
COSTS
17. No order is made as to costs.
OTHER
18.Subject to any further preliminary requirements, the appeal should proceed
(including a consideration of the question of leave to appeal) in the normal course of events. The appeal will be allocated to Deputy President, Dr. Gabriel Fleming for this purpose.
Gary Byron
Acting President
I certify that this is a true and accurate record of the reasons for decision of Gary Byron, Acting President, Workers Compensation Commission
Registrar
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