Kinerson v Cafe 106
[2005] NSWWCCPD 8
•15 February 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kinerson v Café 106 [2005] NSW WCC PD 8
APPELLANT: Emerald Kinerson
RESPONDENT: Café 106
INSURER:QBE Workers Compensation
FILE NUMBER: WCC16197-03
DATE OF ARBITRATOR’S DECISION: 18 February 2004
DATE OF APPEAL DECISION: 15 February 2005
SUBJECT MATTER OF DECISION: Failure to allow submissions; error in setting aside determination without entitlement; consideration of document not in evidence; failure to take into account evidence; lack of any or adequate reasons
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Beilby Poulden Costello Lawyers
Respondent: QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs.
BACKGROUND TO THE APPEAL
On 9 March 2004 Emerald Kinerson, the Appellant Worker, filed an Appeal Against Decision of Arbitrator in the Workers Compensation Commission, against a decision, dated 18 February 2004.
The Respondent to the Appeal is Café 106 (the Respondent Employer).
The Application dated 19 January 2004 for an award of “weekly benefits and medical, hospital or relates expenses” pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act), was lodged in the Commission on 6 February 2004, under cover of a letter dated 5 February 2004. The matter came before the Arbitrator on 12 February 2004. There was no appearance of the Respondent and the Arbitrator proceeded to deal with the matter ex parte the Respondent. The proceedings were recorded and a transcript of those proceedings is before me.
The Arbitrator made a previous determination, set out in a Certificate of Determination dated 17 February 2004, in the following terms:
“The determination of the Commission in this matter is as follows:
1.The respondent is to pay the applicant’s reasonable s60 expenses.
2.The respondent is to pay the applicant’s costs as agreed or assessed.”
On 12 February 2004 a letter dated that day, from Ms Melissa Gillies, Barrister, was received in the Commission. In that letter, Ms Gillies said that she had been briefed to appear for Café 106 in the arbitration hearing on that day. She said that she attended the Commission premises prior to 10 am for this purpose. Upon arrival, Ms Gillies consulted with the electronic list located in the foyer of level 21. She noted that both boards indicated that the matter was listed for 11 am to 1 pm in conference room 2. She re-checked the board to ensure that she had noted the details correctly and then retired to prepare further for the arbitration proceedings.
Ms Gillies states that she returned to the foyer well before 11 am and signed on, as required, to indicate her presence in the Commission. She proceeded to conference room 2 and found no one there. She then contacted her instructing officer to obtain further instructions. During that conversation she was informed by the instructing officer that the solicitor for Ms Kinerson had telephoned her at about 10 am to ascertain the name of the person who was to appear for Cafe 106.
Ms Gillies says that immediately prior to 11 am no other person had arrived at Conference room 2. She went to the desk in the foyer and was informed by a Commission official that the matter had proceeded at 10 am, in her absence. She was unable to obtain any indication of the outcome of those proceedings and was told that the Arbitrator had left the building. On contacting the office of her instructing solicitor she was informed that attempts had been made by someone to contact her through her chambers. She was at that time, in the precincts of the Commission.
Ms Gillies then made contact with an officer of the Commission, and explained to him what had occurred. She says that he confirmed that the electronic board had in fact erroneously advertised the hearing time as 11 am. The officer advised her that she could make application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to have the orders rescinded. She asked that the letter of 12 February 2004, submitted after she spoke to the Commission officer, be treated as an application under that section.
Ms Gillies states that the Commission officer verified that the incorrect information was published on the electronic board, apologised unreservedly to her for the Commission’s error and provided assistance to her as far as he was able. Ms Gillies expressed her thanks to the officer in her letter to the Registrar.
Ms Gillies requested that, having regard to the circumstances, the orders made against her client’s interests be rescinded, and a further arbitration date be appointed. On 18 February 2004, the Arbitrator made the following decision:
“Taking everything into account I make the following Directions:
1. Pursuant to s350(3) of the Workplace Injury Management and Workers Compensation Act 1998 I set aside the orders made by the Commission in this matter on 12 February 2004.
2. I direct that the Registrar reallocate this matter to another arbitrator for determination.”
The appeal against this decision was lodged in the Commission on 9 March 2004.
ISSUES IN DISPUTE
The issues in dispute in the appeal are set out in the written grounds of appeal:
“1.The Arbitrator erred by failing to allow the Applicant the opportunity to make submission [sic].
2.The Arbitrator erred in that she set aside a determination without an appropriate entitlement.
3.The Arbitrator erred in that she considered evidence, in particular the letter of Ms Gillies of the 12th of February 2004, which had not been admitted into evidence in the proceedings.
4.The Arbitrator misdirected herself in that she failed to take account of the evidence of the Respondent’s knowledge of the allocated Arbitration date and time.
5.The Arbitrator erred in that she failed to provide any or any adequate reason for her decision.”
ON THE PAPERS REVIEW
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 Employer has requested an oral hearing. The Respondent Worker has requested that an oral hearing should be held, if leave to appeal is granted. The facts and issues are clear, and I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of that Act and it is not disputed that the amount of compensation in issue in the appeal is at least $5000, notwithstanding that no precise figure has been given or awarded. I have taken into account the relevant documents in the Commission file and the contents of the transcript of proceedings before the Arbitrator, in coming to the view that the monetary threshold in section 352 (2) is satisfied.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The facts and the sequence of events leading to this appeal are clear from the documents before me, and are set out above. These and the circumstances surrounding the appeal are not disputed.
The Respondent Employer submits that the Arbitrator was empowered to set aside her orders pursuant to section 350(3) of the 1998 Act and that Ms Gillies letter was in fact, the application under that section, and set out the grounds for making it.
It is further submitted by the Respondent Employer that there are no “regulations, rules or guidelines put into place as to how the Commission should deal with these types of applications. Accordingly, the Commission is free to conduct its own enquiries, as it sees fit, as to how such an application is to be dealt with.” Furthermore, it is submitted that the power of the Commission is “wide and unfettered”, and that the there was no onus on the Arbitrator to allow the Appellant Worker to be heard, in the circumstances.
In terms of the submission that the Arbitrator erred in setting aside the determination “without an appropriate entitlement”, the Respondent Employer is unclear as to the meaning of this ground but submits in any event, the statutory power to do so, is clear.
The Respondent Employer submits that the letter written by Ms Gillies was the application under section 350(3) of the 1998 Act and was not required to be submitted into evidence.
The Respondent Employer states that Ms Gillies was in fact at the Commission at the appointed time as required, but because of an error on the part of the Commission, the matter proceeded ex parte and an order was made against the Respondent Employer’s interests.
Finally, it is submitted by the Respondent Employer that the Arbitrator was not required to provide reasons for her decision, in the circumstances of this matter.
In addition to the foregoing, the Respondent Employer states that there was an absence of evidence in relation to a central issue in the proceedings before the Arbitrator and in the alternative that the findings on essential issues were against the evidence and the weight of the evidence. Moreover, there the Arbitrator failed to comply with the requirements of Rule 73 of the Workers Compensation Commission Rules 2003 (the Rules) in arriving at her original decision on 12 February 2004. It is submitted in the circumstances, that the dispute should proceed to a rehearing before an Arbitrator.
DISCUSSION AND FINDINGS
The appeal before me is an appeal against the decision of 18 February 2004, made by the Arbitrator to rescind her earlier decision in favour of the Appellant Worker. I am not dealing with an appeal against that earlier decision.
A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter do novo, and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616). The powers of a Presidential Member to revoke a decision of an Arbitrator, pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, (or alternatively, to remit the matter back to the Arbitrator concerned or another Arbitrator, for determination in accordance with any decision or directions made), are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). This principle was reaffirmed by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005), who said at paragraph 19, “The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.”
Section 350(3) provides:
“(3)The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The Arbitrator clearly had the power to rescind her decision and was entitled to do so, in appropriate circumstances. Whether the circumstances were appropriate, is another matter. Ground 2, as listed in paragraph 12 above, is not made out.
The letter of 12 February 2004 was not evidence, nor was it ever intended as evidence, in the substantive dispute that was before the Arbitrator. It was lodged in the Commission to point out the error made by the Commission, and to request the Arbitrator to rescind her decision, because of that error. A copy was provided to the Appellant Worker. Any party is entitled to request the Commission constituted by an Arbitrator, to reconsider a decision previously made, and to provide the grounds in support of such a request. A request for reconsideration of a previous decision, by definition, cannot be lodged in the Commission until after that previous decision and the proceedings leading to it, have been concluded. Ground 3, as listed in paragraph 12 above, is not made out.
The Appellant Worker’s contention that the “Arbitrator misdirected herself in that she failed to take account of the evidence of the Respondent’s knowledge of the allocated Arbitration date and time”, is clearly incorrect. Ms Gillies arrived at the Commission ready to proceed at the appointed time and on the appointed date. She was misled by the information displayed on the Commission’s electronic list board, which indicated that the proceedings were to commence at a later time on that date. These facts are not disputed. The Arbitrator was acquainted with the facts upon reading Ms Gillies letter of 12 February 2005. It is abundantly clear that the Arbitrator appreciated that Ms Gillies had knowledge of the correct time and date by reason of the fact that she attended the Commission as a result of having that knowledge. It is also clear that Ms Gillies failed to actually attend the proceedings in conference room 2 at the appointed time, through no fault of her own or her client. There is no doubt that the Arbitrator knew and took all of this into account when she made the decision to rescind the previous decision. Ground 4, as listed in paragraph 12 above, is not made out.
An Arbitrator has a statutory obligation to provide adequate reasons for decision (section 294(2) of the 1998 Act and Rule 73 of the Rules). Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to his/her decision. Reading the Arbitrator’s reasons as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), in the instant case, it is clear that they adequately convey to the parties the basis upon which she came to her decision. The facts and circumstances that led to her decision are clear, known to both parties, and are undisputed. To succeed on this ground, the Appellant Worker must be able to demonstrate that the reasons are not only inadequate, but further, that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise her statutory duty to fairly and lawfully determine the application (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311 (30 August 1999)). The Appellant Worker has demonstrated neither that the reasons are inadequate nor that there has been any failure in this regard, on the part of the Arbitrator. Ground 5, as listed in paragraph 12 above, is not made out.
It remains to be determined whether the Arbitrator made an error by failing to allow the Appellent Worker the opportunity to make submissions on Ms Gillies’ application under section 350(3) of the 1998 Act. It would have been prudent for the Arbitrator to allow the Appellant Worker to make submissions before making the order rescinding the substantive orders, that were made at the conclusion of the ex parte hearing. A party to proceedings has a right to be heard and the Arbitrator did not afford that right to the Appellant Worker in relation to the application under section 350(3) of the 1998 Act. However, the facts and circumstances that led to the application being made are, as I have said, well known and not disputed. In the circumstances, whatever prejudice there may be to the Appellant Worker by this error made by the Arbitrator, the extent of that prejudice would obviously be outweighed by the prejudice and the injustice to the Respondent Employer, had the previous decision not been rescinded, having regard to the circumstances surrounding the matter. The Respondent Employer should not be prevented from pursuing its case in the substantive dispute, simply because Ms Gillies was misled on the day of the proceedings, by an error of the Commission. There has been no failure on the part of the Respondent Employer to comply with the Rules and all other requirements. Finally, in my view, it is highly unlikely that any submission that the Appellant Worker could have made, would have led to a different decision by the Arbitrator. I find accordingly. Ground 1, as listed in paragraph 12 above, is not made out.
In the circumstances, there is no error of law, fact or discretion on the part of the Arbitrator that should lead to a revocation of the decision of 18 February 2004, to rescind the substantive orders made on 17 February 2004.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to costs.
OTHER
The Registrar should reallocate the substantive dispute to another Arbitrator for determination, as soon as possible, in accordance with the Arbitrator’s directions.
Gary Byron
Deputy President
15 February 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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