King v Lloyd Drilling Constructions
[2022] NSWPIC 43
•3 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | King v Lloyd Drilling Constructions [2022] NSWPIC 43 |
| APPLICANT: | Shane King |
| RESPONDENT: | Lloyd Drilling Constructions |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 3 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly benefits and medical expenses in respect of amputation injury to left thumb; liability disputed on basis applicant was not a worker or deemed worker; claim amended at arbitration hearing to close the period of claim for weekly benefits; respondent sought at arbitration hearing to place in dispute capacity for work and pre-injury average weekly earnings; respondent sought to rely on late evidence, including some served on the day of the arbitration hearing; applicant opposed leave being granted to place capacity for work and pre-injury average weekly earnings in dispute; and to rely on part of the late evidence; Held - leave refused to respondent to raise previously unnotified issues and to rely on part of the late evidence; consideration of section 289A(4) of Workplace Injury Management and Workers Compensation Act 1998; Mateus v Zodune Pty Limited trading as Tempo Cleaning Services discussed; directions made for written submissions on remaining issues. |
| DETERMINATIONS MADE: | 1. That the Application to Resolve a Dispute is amended to claim weekly benefits compensation from 12 March 2019 to 30 April 2021. 2. That the respondent is refused leave, pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998, to place in dispute the applicant’s capacity for work and the applicant’s pre-injury average weekly earnings. 3. That the applicant is granted leave to rely on Application to Admit Late Documents dated 20 January 2022 and attached documents. 4. That the respondent is granted leave to rely on Application to Admit Late Documents dated 19 January 2022 and attached documents, with the exception of the report of 5. That the respondent is granted leave to rely on Application to Admit Late Documents dated 27 January 2022, with the exception of the documents headed “Shane King Initial Question List” and “Payments to Shane King”. 6. That the applicant is on or before 23 February 2022 to lodge and serve written submissions. 7. That the respondent is on or before 16 March 2022 to lodge and serve written submissions. 8. That the applicant is on or before 23 March 2022 to lodge and serve any further submissions on which he seeks to rely. 9. That at the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’. 10. That the parties have liberty to apply with respect to this timetable. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Shane King (Mr King) claims to have been employed by the respondent, Lloyd Drilling Constructions, as a builder. In the alternative, he claims to have been a deemed worker, pursuant to Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 12 March 2019, Mr King was operating a circular saw when he sustained an injury to his left thumb. His thumb was amputated through the proximal joint.
On 21 May 2019, the applicant completed a Worker’s Injury Claim Form (the Claim Form). He stated that on 12 March 2019, he was undertaking a construction/build of a new house at Palm Beach. He was using a circular saw that kicked back, causing amputation of his left thumb. The organisation paying his wages was described as Lloyd Drilling Constructions. His employer contact was Lloyd Anglicas.
Mr King stated in the Claim Form that he was a full-time employee and commenced work on 8 August 2018. He ticked the box marked “sole trader”. He stated that although he had his own ABN, he had been working exclusively for the respondent since August 2018. He did not advertise his services elsewhere. His usual hours were from 7am to 3pm, Monday to Friday, a 40 hour week. His usual pre-tax earnings were $3,000 per week ($75 per hour).
On 12 July 2019, the respondent’s insurer, Insurance and Care NSW (iCare) issued the applicant with a notice pursuant to section 78 of the 1998 Act (the section 78 notice). It disputed liability for his injury on the basis that he was not a deemed worker as defined in Schedule 1 of the 1998 Act. It referred to a telephone conversation with Mr King and attached an email from Mr Anglicas.
By letter dated 28 November 2019, the applicant’s solicitors requested that iCare review its decision to dispute liability for his claim.
On 12 December 2019, iCare issued the applicant with a further notice, (the review notice) advising that its decision to dispute liability had been maintained. The notice disputed that the applicant was a worker, in accordance with section 4 of the 1998 Act, or a deemed worker, in accordance with schedule 1 of the Act. It “follow[ed]” that he was not entitled to compensation with respect to weekly payments and medical expenses, in accordance with sections 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant lodged an Application to Resolve a Dispute (the Application) on 6 October 2021. The Certificate of Service certifies that it was served on 11 October 2021.
The Application claimed that on 12 March 2019, during the course of his employment, the applicant was operating a circular saw, in order to cut a piece of timber, when the saw unexpectedly kicked back and came into contact with his left thumb. As a result, he sustained a catastrophic injury to his left thumb, involving amputation through the proximal joint.
The applicant claimed weekly benefits at the rate of $2,244 per week from 12 March 2019, ongoing, and past medical expenses of $10,097.97.
The respondent lodged its Reply on 28 October 2021. It confirmed that the matters in dispute were as per the dispute notice/s attached to the Application. It did not seek to raise any other matters.
ISSUES FOR DETERMINATION
In respect of this determination, the issues in dispute are:
(a) whether the respondent is to be granted leave to dispute that the applicant was incapacitated for work during the period of the claim, and the applicant’s pre-injury average weekly earnings (PIAWE); and
(b) whether the respondent is entitled to rely upon Application to Admit Late Documents and attached documents dated 19 January 2022 and Application to Admit Late Documents, which is undated, but was served on 27 January 2022, and attached documents.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference before me on 4 November 2021. I enquired of the respondent whether it sought to dispute that the applicant was incapacitated for work, given that it had lodged no medical evidence. I was informed that incapacity was “not conceded at this stage”. I advised the respondent’s representative that, if the respondent wished to dispute “incapacity”, it would require leave to do so.
I noted that the respondent’s evidence with respect to the issues of “worker” or “deemed worker” was limited to an email from Mr Anglicas. The respondent’s representative advised that the respondent was seeking further evidence, including a signed statement, from
Mr Anglicas.I observed that the time in which to obtain evidence was before, rather than after, the issue of the section 78 notice. I was advised that the statement “would say the same thing”, and the respondent could not advise when it would be available. The applicant’s representative indicated that it may be necessary to lodge a further statement from Mr King to respond to this evidence.
The respondent sought leave at the telephone conference to serve the applicant with a Notice for Production (the Notice). It required leave because rule 40(1) of Personal Injury Commission Rules 2021 (the Rules) provides that such Notice must be served on the producer within 21 days of registration of the application that initiated the proceedings. The respondent was therefore required to serve the Notice within 21 days of 6 October 2021. As the applicant did not object, the respondent was granted leave to serve the Notice.
The matter was listed for conciliation/arbitration hearing on 27 January 2022. The respondent sought to raise previously unnotified matters, being the applicant’s capacity for work and his PIAWE, pursuant to section 289A(4) of the 1998 Act; and to rely on documents attached to Applications to Admit Late Documents dated 19 January 2022; and undated. The undated Application to Admit Late Documents was served on 27 January 2022, so I will refer to that as its date.
The applicant objected to the respondent being granted leave to raise matters that had not previously been notified as being in dispute. He also objected to some, but not all, of the attachments to the Applications to Admit Late Documents dated 19 January 2022 and 27 January 2022.
The applicant has lodged an Application to Admit Late Documents dated 20 January 2022. The document attached was served on the respondent by email on 4 November 2021. The respondent did not object to the admission of the document. The applicant has complied with rule 67(3) of the Rules and I formally admit the evidence.
The respondent’s counsel made a call for the applicant’s 2019 tax return and notice of assessment. The applicant’s counsel noted the call and will seek instructions.
Due to the time taken in conciliation, and in hearing submissions on the preliminary matters, it was not possible for a determination to be made on those matters at the hearing. Accordingly, those matters will be determined, and a timetable will be set for the parties to provide written submissions on the remaining issues.
FINDINGS AND REASONS
SUBMISSIONS
Counsel’s submissions have been recorded and I will therefore summarise them only briefly.
Respondent
Although the respondent addressed first on the admission of the late documents, and to some extent the submissions overlap, I will firstly turn to its submissions with respect to its application pursuant to section 289A(4) of the 1998 Act.
The respondent submitted that, with respect to the PIAWE, it is in the interests of justice that it be permitted to place this in issue. It further submitted that to do so would not create much difficulty, as the calculation can be dealt with on the applicant’s invoices. As they are his documents, there can be no prejudice, and they are relevant to the determination of his entitlement. The respondent submitted that there was a paucity of evidence of the applicant’s earnings. His tax return for 2019 would have assisted with both the issues of worker/deemed worker and the PIAWE.
As regards the applicant’s capacity for work, the respondent submitted that he had a demonstrated capacity for work later in the period of the claim. This was reflected in his bank statements. He could not deny that he was working. Its reason for not placing incapacity in issue earlier was that it was looking at the claim as advanced, that of total incapacity. It had no evidence that the applicant had been working since mid-2021 until his bank records were produced.
The respondent also sought to place in issue “deemed worker”, pursuant to clause 2 of Schedule 1 of the 1998 Act.
The respondent submitted that, in balancing the various factors referred to in Mateus vZodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus) the circumstances justify the exercise of discretion to allow it to rely on previously unnotified matters.
Turning to the Applications to Admit Late Documents, the respondent submitted that instructions to its investigator were provided on 10 December 2021. The list of payments attached to the Application to Admit Late Documents dated 27 January 2022 is a record of payments it made to the applicant, which are partly reflected in the invoices. They are incomplete. Some appear in the list of payments, but it appears that some are still missing. There are no bank records that pre-date the injury, apart from a few weeks. It submitted that the bank records are relevant to the issue of worker/deemed worker.
The respondent submitted that Mr Anglicas’s response to the questionnaire traverses the contents of a reference provided to the applicant, which is addressed “To Whom it May Concern”. It is of probative value.
As regards the evidence of Associate Professor Miniter, the respondent submitted that while his views were provided in December 2021, he also considered the evidence of the applicant’s treating doctors, conducting a file review before providing his opinion. Before the applicant produced his bank records on 6 December 2021, there was no evidence of him undertaking any work. His statement is dated April 2020, and the Application asserts total incapacity.
Applicant
With respect to the Applications to Admit Late Documents, the applicant submitted that the respondent’s submissions highlight the problem. He had no objection to the invoices attached to the Application to Admit Late Documents dated 27 January 2022, nor to the letter from Ross Fowler, Chartered Accountants and Business Advisers (Ross Fowler) to National Corporate Broking Pty Ltd dated 24 July 2019. He is in no position to respond to the list of payments. There is no statement to say how or by whom it was created. It is not signed or dated and is not evidence. The PIAWE is not in issue, and if it is placed in issue, the applicant will claim prejudice.
The applicant submitted that Mr Anglicas’s statement is not signed or dated. There is nothing other than a typed response that identifies it as coming from the respondent. It is not admissible as it is not dated or signed. It raises matters that the applicant can’t meet and is prejudicial. Had it been provided at the telephone conference the applicant would have sought to cross-examine Mr Anglicas. There was no good explanation for it turning up on the day of the hearing.
The applicant submitted that the respondent was happy to dispute liability without evidence. The telephone conference was on 4 November 2021. It could not explain a delay of two months in providing evidence, which in any event was not probative.
The applicant submitted that his bank records are irrelevant, as incapacity was not placed in issue, and in any event, the period of his claim was closed on 30 April 2021.
The applicant submitted that the relevance of A/Prof Miniter’s evidence depends on whether the respondent’s application to dispute incapacity is successful. It was not raised at the telephone conference, apart from my observation that the respondent had no medical evidence.
The applicant submitted that his case has been prepared on the basis that incapacity is not in issue, which is why the material before me is limited to earlier periods. He would be significantly prejudiced if incapacity is placed in issue, as he does not have evidence from his treating doctors. It is also clear that he has psychological issues related to the injury. Had incapacity been in issue, he would have marshalled psychological evidence. The respondent has given no reason why incapacity was not placed in issue earlier.
The applicant submitted that his claim, in its reduced form, is for approximately $200,000. Any insurer would want to look at the medical evidence. The respondent’s submission that it did not feel it had to do so until it had evidence that the applicant went back to work is unacceptable and not a proper explanation.
As regards the PIAWE, the applicant submitted that the respondent has the same problem – “they raise it now”. There is an assertion that what is in the late documents is a complete record. He is significantly prejudiced. Had he been aware of the dispute, he could have put on other evidence. On the evidence of Mr Fowler, his PIAWE was in any event in excess of the maximum statutory rate.
The applicant submitted that there is no explanation why the PIAWE was not placed in issue earlier. The respondent was the employer. It has known all along what it was paying him. Almost three years after the injury, it turned its mind to what it was paying.
The applicant finally submitted that the principles of Mateus are not satisfied.
SUMMARY
The respondent’s application to raise previously unnotified matters
The respondent seeks to place in dispute the applicant’s capacity for work and his PIAWE. It referred in its submissions to seeking leave to place “deemed worker” in dispute. That was disputed in its review notice dated 12 December 2019 and was referred to in the section 78 notice. The applicant has not objected to that matter being disputed, and I do not believe it is necessary for the respondent to seek leave to do so.
Both parties have referred me to the decision of Deputy President Roche in Mateus. The principles to which Roche DP referred in that matter have been consistently applied in the Workers Compensation Commission and the Personal Injury Commission, and I intend to apply them in this matter.
In Mateus, Roche DP referred with approval, at [38] to the factors considered by the arbitrator in exercising her discretion under section 289A(4) of the 1998 Act.
The arbitrator considered the following factors:
(a) the degree of difficulty or complexity to which the unnotified issues give rise;
(b) when the insurer notified that it wished to contest any unnotified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligations to notify the worker of its decision disputing liability;
(d) any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.
Roche DP added at [48] the following observations:
“(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.” (Emphasis in original).
I believe it is important firstly to refer to Roche DP’s observation that a decision to dispute liability should not be made lightly or without proper and careful consideration of the factual and legal issues involved.
ICare disputed liability for the applicant’s claim apparently on the basis of a telephone conversation between its employee and Mr King and an email from Mr Anglicas that stated, among other things, that Mr King was a contractor, “verbal contract”, and there were no payroll details.
Where there is uncertainty as to whether a person who claims workers compensation is a worker, or a deemed worker, there are obviously factual matters that must be resolved. The usual first step in attempting to resolve that uncertainty would be to commission a factual investigation that included requesting statements from Mr King and Mr Anglicas, any other relevant parties, and any relevant documents held by either party. There is no evidence that iCare even attempted to obtain any further evidence before issuing the dispute notice.
ICare had a further opportunity to attempt to obtain relevant evidence when Mr King requested that it review its decision to dispute liability. This occurred in November 2019, over two years ago. The request was made by Mr King’s solicitors. It must have been apparent that, having obtained legal advice, the applicant did not accept the decision to dispute liability. iCare once again did nothing to obtain any additional evidence before maintaining its decision to dispute liability for the applicant’s claim.
I do not believe it could be fairly asserted that the decision by the insurer to dispute liability for the applicant’s claim was made with reference to the factual and legal issues involved, or that the decision was not made lightly. It does not appear to me that any proper consideration of the factual issues (on which to a great extent the legal issues would depend) occurred.
I will turn to the other matters raised by Roche DP in Mateus. The respondent now seeks to place in issue the applicant’s capacity for work and his PIAWE. The applicant was entitled to assume that neither was in issue, and that he was not required to obtain evidence other than the evidence attached to the Application. The degree of difficulty and complexity involved in his meeting such issues would require further evidence that would entail either discontinuing or seeking to adjourn the matter.
As to when the respondent notified the applicant that it wished to contest the unnotified issues, it had the opportunity to do so when it issued the review notice; when it lodged its Reply; at the telephone conference; or at any time during the 12 weeks that elapsed between the telephone conference and the conciliation/arbitration hearing. The closest it came to notifying the applicant that incapacity may be in issue was when its representative stated at the telephone conference that it was “not conceded at this stage”, at a time when it had no medical evidence to support any dispute as to the applicant’s capacity for work.
The respondent appears to rely on the fact that the Application claimed that the applicant had no capacity for work, and it was not until it obtained access to his bank records that it became apparent that he had had post-injury employment, in support of its Application to place incapacity in dispute.
It is hardly unusual for an applicant to claim in the Application that he or she has no capacity for work, even in circumstances where, on the evidence, that may not appear to be the case. It is the usual practice of insurers to arrange an independent medical examination to obtain their own evidence regarding incapacity, should they wish to place it in dispute. I accept the applicant’s submission that the respondent’s explanation is not a proper explanation.
The insurer’s behaviour in this regard is also relevant to Roche DP’s observation that it must act promptly to bring the matter to the attention of the Commission and all other parties. The Application to Admit Late Documents dated 27 January 2022 was served on the applicant on the morning of the hearing. There is no evidence that the respondent attempted to bring to the applicant’s attention that it intended to dispute incapacity and the PIAWE before that date, although A/Prof Miniter’s report was served on 19 January 2022. There was, however, no indication that there would be an application to place previously unnotified matters in dispute.
The Commission may have regard to the merit and substance of the issues sought to be raised. The issue of incapacity may have substance had the applicant not closed the period in respect of which he claims weekly benefits at 30 April 2021. A/Prof Miniter’s report is dated approximately eight months after that date. I do not accept that there is merit or substance to the issue of incapacity. As regards the PIAWE, while that issue may have some merit, it is not clear from the evidence relied on by the respondent that it has any substance; and it does not outweigh the delay in raising that issue, which has not been adequately explained. As the applicant submitted, the respondent must have known all along what it was paying him, yet it apparently did not turn its mind to this until almost three years after the date of the injury.
As regards prejudice to the applicant, as I have discussed above, he would require further evidence to meet the previously unnotified matters, and the delay in giving him notice is also relevant to this issue.
The requirement that the Commission act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, now appears in the Personal Injury Commission Act 2020, section 43(3). As Roche DP held, those matters are relevant, but not determinative.
As regards the parties’ general conduct, the Claim Form is dated 21 May 2019. The section 78 notice was issued on 12 July 2019. The insurer therefore did not fulfil its obligation to respond to the claim within 21 days, as required by section 274 of the 1998 Act. It does not appear that the delay was due to the insurer commissioning an investigation.
The applicant requested a review of the insurer’s decision on 28 November 2019, and the review notice was issued on 12 December 2019. It was therefore issued within the required 14 day period. The insurer’s conduct thereafter has been referred to above. It has largely failed to fulfil its obligations and I would not regard its conduct as providing any support for its application. I regard the applicant’s conduct as essentially neutral, although it must be noted that the respondent was not advised of his return to work, and this became apparent only from a review of his bank records.
The applicant has made submissions as to the prejudice to him should the respondent be granted leave to raise unnotified matters. That prejudice is diminished by the fact that he has closed the period of his claim for weekly benefits, and the medical evidence on which the respondent seeks to rely post-dates that date by about eight months. However, the respondent also intended to rely on that evidence in support of its assertion that the applicant was not totally incapacitated for work during the entire period of the claim.
I have adverted to the issue of prejudice above. It is clear from the evidence before me that the applicant has been diagnosed with, and treated for, depression. There is no claim in the Application in respect of a secondary psychological condition, but had incapacity been placed in issue, then I accept that the applicant may have sought to amend it to rely on such a condition and obtain evidence as to its effect on his capacity for work.
Having done virtually nothing to obtain evidence in support of its position for over two years, the respondent sought on the day of the hearing to raise these matters and asked the Commission to exercise its discretion in its favour. I will refer further to this matter in discussing the disputed documents.
On balance, it appears to me that it is not in the interests of justice to allow the respondent to raise the issue of either the applicant’s capacity for work or his PIAWE. As discussed above, it had ample opportunity to raise these issues, but either through choice or inadvertence, did not do so until the date of the hearing. The applicant should not be prejudiced, or the determination of the dispute delayed, by its conduct.
The respondent’s application to admit late documents
Firstly, the applicant does not object to the admission of the following documents:
(a) the letter from Ross Fowler to National Corporate Broking Pty Ltd, dated 24 July 2019; and
(b) the tax invoices/statements of various dates issued to the respondent.
The applicant objects to the admission of the following documents:
(a) the report of A/Prof Paul Miniter dated 23 December 2021;
(b) the “statement” of Mr Anglicas, which consists of a number of questions, and answers to those questions; and
(c) a document that refers to Payments to Shane King (the list of payments).
The applicant submitted that his bank records are irrelevant, as he has closed the period of his claim. I will treat that as an objection to their admission. He has not raised any objection to the remainder of the documents attached to either the Application to Admit Late Documents dated 19 January 2022 or that dated 27 January 2022.
It is appropriate that I deal firstly with the evidence of Mr Anglicas, which I will call a statement for convenience. It is headed “Shane King Initial Question List”.
Mr Anglicas’s statement is neither dated nor signed. That, of itself, would not prevent its admission into evidence. The respondent has not complied with rule 67(3) of the Rules. It was required to serve a copy of the statement as soon as practicable after becoming aware of or obtaining possession of the document; and not later than three days before the hearing, to lodge the document with the Commission.
I was informed by counsel for the respondent, in the course of his submissions, that instructions were provided to an investigator on 10 December 2021, the questionnaire was sent to Mr Anglicas on 25 January 2022; and there were delays caused by the Christmas/New Year holidays and the Covid-19 pandemic.
None of this information was apparent from the documents, given that the Application to Admit Late Documents dated 27 January 2022 contained no reasons in support, other than that the documents were served immediately they became available; and the instructions to the investigator and the letter to Mr Anglicas were not attached. Given that 26 January 2022 was a public holiday, I accept that it was not possible for the statement to be lodged within the time limited by rule 67(3) of the Rules.
As the applicant submitted, the explanation for the delay in obtaining and serving
Mr Anglicas’s evidence does not explain why it was not sought after the telephone conference on 4 November 2021. Nor, indeed, does it explain why this evidence was not obtained when the claim was made in 2019, or even when the Application was served in October 2021.The applicant would undoubtedly be prejudiced by the admission of Mr Anglicas’s evidence, which he cannot meet without himself lodging further evidence. Indeed, it was foreshadowed at the telephone conference that, depending on that evidence, he may need to make a further statement. The respondent’s representative advised that any statement Mr Anglicas may make “would say the same thing”, as his email, which is not precisely the case.
It would be possible to adjourn the hearing to allow the applicant to lodge further evidence, and make an application to cross-examine Mr Anglicas, which his counsel submitted would have been made had the evidence been served in a timely manner. However, the delay in obtaining Mr Anglicas’s evidence, and the unsatisfactory explanation for that delay, in circumstances where the insurer was content to rely on his email to dispute liability, does not in my view justify granting leave to the respondent to introduce that evidence. The potential prejudice to the applicant outweighs the potential prejudice to the respondent. I therefore decline leave to the respondent to introduce the evidence, pursuant to rule 67(4)(b) of the Rules.
The list of payments suffers from similar defects as Mr Anglicas’s statement. Its provenance is not explained, and it is neither signed nor dated. Mr Anglicas has not referred to it in his statement. The applicant would not be able to respond to it without further explanation of its contents, which may require cross-examination of Mr Anglicas were it to be admitted. Once again, the potential prejudice to the respondent is in my view outweighed by the potential prejudice to the applicant. I decline leave to the respondent to introduce the list of payments, pursuant to rule 67(4)(b) of the Rules.
As regards the evidence of A/Prof Miniter, as I have declined the respondent leave to dispute incapacity, the report is not relevant to the issues between the parties, and I decline to admit it. In any event, the applicant has now closed the period of his claim at 30 April 2021.
A/Prof Miniter’s report is dated 23 December 2021. His opinion as to the applicant’s capacity for work at that stage has no relevance to the period in dispute. It is based on a file review, not on an examination of the applicant. It would have been of little weight had it been necessary to determine the issue of incapacity.As to the applicant’s bank records, I have proceeded on the basis that the applicant objects to their admission. It appears that his objection is on the basis of relevance, as he has closed the period of the claim, rather than on the basis of prejudice. They are, of course, his own documents. The records cover the period from 4 February 2019 to 5 November 2021. They do, therefore, include the period of the claim. They may be of little relevance, given the determinations as to unnotified matters and other late evidence, but on balance I see no reason to exclude them. The respondent is therefore granted leave to rely on the applicant’s bank records, pursuant to rule 67(4)(b) of the Rules.
I have made orders regarding the further conduct of the proceedings, which are set out in the Certificate of Determination.
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