Kirunda v NSW Police Service (No 2)

[2016] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:	Kirunda v NSW Police Service (No 2) [2016] NSWWCCPD 49
APPELLANT:	Bill William Kirunda
RESPONDENT:	NSW Police Service
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-1183/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	25 November 2015
DATE OF APPEAL DECISION:	11 August 2016
DATE OF RECONSIDERATION DECISION:	11 October 2016
SUBJECT MATTER OF DECISION:	Reconsideration – Section 350(3) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The appellant’s application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2.       The listing of the matter for telephone conference on 12 October 2016 is confirmed.

INTRODUCTION

1. This matter was the subject of a decision by me in Kirunda v NSW Police Service [2016] NSWWCCPD 40 (Kirunda No 1), on 11 August 2016. The appeal by Bill William Kirunda (the appellant) succeeded, and the matter was remitted to another arbitrator for re-determination. Pursuant to those orders the matter was allocated to Arbitrator Capel. It is listed for further telephone conference before Arbitrator Capel tomorrow, 12 October 2016.

2. The application now before me is an application for reconsideration of my decision dated 11 August 2016, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It was lodged with the Commission electronically on the afternoon of 10 October 2016. It appears that it was served on the respondent’s solicitors at the same time. The reconsideration application also seeks that the telephone conference listed for tomorrow be vacated, so that the reconsideration application can be considered.

3. The appellant was previously self-represented on the appeal before me. It appears that the appellant has been represented by solicitors, in the proceedings on remitter before Arbitrator Capel. The appellant’s submissions on the reconsideration application suggest that he may no longer be represented by solicitors. There is no indication that solicitors are acting on his behalf on this reconsideration application.

4. It is undesirable that the listing of the matter tomorrow be interfered with, unless this is necessary. Adjournment of the matter has the potential to interfere with the Commission’s case management of the matter, and the Commission’s timeliness. The late adjournment of matters also compromises the Commission’s application of its resources. Accordingly, the matter has been reconsidered by me on an urgent basis, so that the existing listing would not be interfered with unnecessarily. For short reasons which appear below, I have formed the view that the reconsideration application should be refused, and that the existing listing for telephone conference tomorrow should be confirmed. The reasons are relatively brief, having regard to the urgent nature of the matter.

5. The reconsideration application relates only to the order for remitter. The appellant submits that I should re-determine the matter, and rescind the order that the matter be re-determined by another arbitrator.

6. Because consideration of the merits of the reconsideration application appears straightforward, and in the interests of timeliness, I dispense with any need for the respondent to lodge submissions, in reply to those made by the appellant in support of this application.

ON THE PAPERS

1. 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.”

2. I am satisfied that I have sufficient information to deal with the reconsideration application ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The powers of the Commission upon conduct of an appeal pursuant to s 352 of the 1998 Act are defined by the provisions of s 352(7):

   “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

   Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

2. Having upheld the appeal in Kirunda No 1, there was a discretion pursuant to s 352(7) as regards whether the matter should be remitted. I gave reasons at [189]-[205], for my view that remitter was appropriate.

3. The principles governing applications pursuant to s 350(3) of the 1998 Act are helpfully summarised by Roche DP in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).

4. The appellant’s reconsideration application is not based on new evidence. Rather, the appellant makes further submissions, which he argues support the proposition that the matter should have been re-determined on the Presidential appeal, rather than remitted. He relies on the following:

   (a)     The objectives of the Commission. He refers to ss 3, 354(3) and 367 of the 1998 Act, and Pt 15 rr 15.2 and 15.3(3) of the Workers Compensation Commission Rules 2011.

   (b)     Submissions going to the causal relationship between psychological injury allegedly sustained during the appellant’s employment with the respondent, aggravations subsequently, and the application of Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91; 73 ALJR 1609 (Calman).

   (c)     Submissions going to whether credit is an issue. The appellant additionally submits that credit issues could be determined by me, rather than on remitter.

   (d)     Reference is made to the decision of Roche DP in Inman v NSW Police Force [2013] NSWWCCPD 11 (Inman), in which the Deputy President upheld an appeal, and re-determined the matter.

   (e)     The appellant submits that Messrs Carroll & O’Dea acted for him on the initial telephone conference held on 31 August 2016, but then withdrew when they ascertained that he had instructed them previously, and withdrawn his instructions. The relevant heading on this part of the submissions is “Failure to obtain legal representation to-date”.

   (f)      The appellant submits that he has an apprehension of bias on the part of the three arbitrators who have been involved in hearing the matter to date.

   (g)     The appellant makes submissions going to “the events of 7 April 2016”, and an alleged failure by the respondent to investigate “the incident”. He also refers to his “painful physical injury”.

5. A submission that a decision should be reconsidered, on the basis that a party seeks to make further submissions about it, does not fall within any of the accepted bases for exercise of the power pursuant to s 350(3) of the 1998 Act. Little of what is put in the appellant’s submissions is new. Submissions going to ‘injury’, aggravation and Calman were extant previously, as were assertions of bias on the part of the first two arbitrators involved in the case, and some documentary evidence dealing with 7 April 2016. The appellant previously submitted that there was no real credit issue in the matter. To the extent that the further submissions raise anything further, there is no indication of why such matters could not have been submitted on previously (for example, the reliance on Inman).

6. The assertion of apprehended bias on the part of Arbitrator Capel is new. There are accepted ways of dealing with such matters, if they are seriously pursued. It is not an appropriate basis for reconsideration.

7. The assertion that the appellant has been unrepresented since Messrs Carroll & O’Dea ceased acting shortly after the initial telephone conference also is new. The Commission file does indicate that another firm subsequently acted on the appellant’s behalf, and furnished the Commission with an authority by email on 12 September 2016. In any event, the appellant was self-represented on the appeal, and whether a firm is currently acting for him would not be a basis for reconsideration.

8. The reasons given previously, in Kirunda No 1, for the order for remitter, remain valid. Applying the principles summarised in Samuel, I am not persuaded that there is an appropriate basis for exercise of the discretionary reconsideration power pursuant to s 350(3) of the 1998 Act.

DECISION

1. The appellant’s application pursuant to s 350(3) of the 1998 Act is refused.

2. The listing of the matter for telephone conference on 12 October 2016 is confirmed.

Michael Snell
Acting President

11 October 2016