Kirunda v NSW Police Service (No 3)

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 3) [2017] NSWWCCPD 1
APPELLANT:	Bill William Kirunda
RESPONDENT:	NSW Police Service
INSURER:	Employers Mutual Limited
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 FIRST RECONSIDERATION DECISION:	11 October 2016
DATE OF THIS RECONSIDERATION DECISION:	2 February 2017
SUBJECT MATTER OF DECISION:	Reconsideration: s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); s 375 of the 1998 Act: power of a Deputy President to reconsider an arbitral decision; s 355 of the 1998 Act: an Arbitrator’s duty to conciliate; s 352(7) of the 1998 Act: exercise of the power to remit; bias
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 dated 1 November 2016, for reconsideration pursuant to s 350(3) of the 1998 Act, of the decisions in Kirunda No 1 (dated 11 August 2016) and Kirunda No 2 (dated 11 October 2016), is refused.

INTRODUCTION

This matter has an extensive history – much of the history which predates 11 October 2016 is set out in Kirunda v NSW Police Service [2016] NSWWCCPD 40 (Kirunda No 1) and Kirunda v NSW Police ServiceNo 2 [2016] NSWWCCPD 49 (Kirunda No 2). Essentially, Bill William Kirunda (the appellant) failed in his claim for compensation in respect of a psychological injury, in an arbitral decision dated 25 November 2015. The appellant succeeded in his appeal in Kirunda No 1; the determination in favour of the NSW Police Service (the respondent) was revoked, and the matter was remitted to a different Arbitrator for re-determination.
The matter was listed on the remitter for a telephone conference before Arbitrator Capel on 31 August 2016. The Arbitrator made an order giving the respondent leave to issue a Direction for Production on the Federal Circuit Court for copies of court files in proceedings issued by the appellant. The matter was stood over for a further telephone conference on 12 October 2016, as the appellant’s solicitors were said to have just been instructed.
On 2 September 2016 the appellant lodged an application pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), seeking “urgent reconsideration of the decision” dated 31 August 2016, granting leave for the issue of the Direction for Production.
The appellant lodged a Notice of Intention to Appeal in the Court of Appeal, served on 12 September 2016, relating to the decision in Kirunda No 1.
On 10 October 2016 the appellant lodged (by email in the Commission) a reconsideration application pursuant to s 350(3) of the 1998 Act (described as a “Request for amendment” of the decision in Kirunda No 1). It sought that the matter be re-determined by me as a Presidential member, rather than remitted to a different Arbitrator. This reconsideration application was lodged two days prior to the listing of the matter before Arbitrator Capel for a further telephone conference. The reconsideration application was refused in Kirunda No 2, as a matter of some urgency, and the telephone conference on 12 October 2016 was confirmed.
At the telephone conference on 12 October 2016, at which the appellant was represented by counsel, Arbitrator Capel, on the appellant’s application, recused himself. He did so having regard to “the [appellant’s] concerns about apprehended bias”. The Commission listed the matter for telephone conference before another Arbitrator, to occur on 17 November 2016.
On 1 November 2016 the appellant lodged a further application for reconsideration pursuant to s 350(3) of the 1998 Act (the further reconsideration application). Again, the reconsideration sought went to the order on appeal that the matter be remitted to a different Arbitrator for re-determination. It sought reconsideration of the decisions in Kirunda No 1 and Kirunda No 2 in that regard.
On 7 November 2016 the appellant lodged a Notice of Intention to Appeal in the Court of Appeal, relating to Kirunda No 2. On 10 November 2016 the appellant lodged a Notice of Appeal in the Court of Appeal in respect of the decision in Kirunda No 1. On 8 December 2016 the appellant lodged an Amended Notice of Appeal in the Court of Appeal in respect of the decision in Kirunda No 1. The telephone conference which had been listed for 17 November 2016 was cancelled, when the appellant lodged his Notice of Appeal in respect of the decision in Kirunda No 1. It was necessary that the challenge in the Court of Appeal against the order for remitter be dealt with, before the remitter proceeded.
By correspondence dated 14 November 2016 the Registrar advised the parties that the respondent was to lodge replies to the most recent s 350(3) reconsideration application by 6 December 2016. The respondent lodged submissions in reply on 6 December 2016, submitting that the reconsideration application should be dismissed.
There were no orders for the lodgement of submissions in reply by the appellant, on the further reconsideration application. The appellant lodged and served a document by email on 13 December 2016. It described itself as “a response to the Respondent’s submissions”, and stated that the appellant was “prepared to withdraw the appeal if the Deputy President is minded to grant the request to re-determine the matter”.

ON THE PAPERS

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.”
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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.

THE RECONSIDERATION POWER

Section 350(3) of the 1998 Act provides:
“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 decision in Kirunda No 2 referred to the summation of principle by Roche ADP (as he then was) in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel). Neither party has submitted, on this application, that those principles are wrongly stated. The Acting Deputy President, after reviewing the authorities, at [58] said:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
(a)     the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
(b) 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;
(c)     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’);
(d)     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’);
(e)     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’);
(f) 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;
(g)     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’);
(h)     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
(i)      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).”
O’Grady DP agreed with the principles summarised in Samuel, in Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61 (Rachmaninoff No 2) at [10]). The passage of Samuel at [58(f)] should now be read in light of the amendments to the 1998 Act which commenced on 1 February 2011. These removed the power of ‘review’ on appeal: s 352(5) of the 1998 Act. O’Grady DP observed, in Rachmaninoff No 2 at [11], that the amendment to s 352(5), dealing with the powers of a Presidential member on an appeal from an Arbitrator, does not impact on the principles to be applied where a Presidential member is dealing with an application to reconsider the Presidential member’s own decision.

THE APPELLANT’S CASE ON RECONSIDERATION

The appellant submits that the decision in Kirunda No 2 (declining to reconsider Kirunda No 1) should be reconsidered. If this were accepted, then it would be appropriate to reconsider the order for remitter in Kirunda No 1. The appellant additionally refers to reconsideration applications he previously made dated 26 May 2016 and 2 September 2016 (the second of these is described at [3] above).
The reconsideration application dated 26 May 2016 sought reconsideration of decisions of Arbitrator Harris and Arbitrator Wynyard, dated 29 May 2015 and 25 November 2015 respectively. This was essentially on the basis of allegations of a lack of procedural fairness and bias. The appellant’s submissions dated 1 November 2016 at [4] refer to the reconsideration applications dated 26 May 2016 and 2 September 2016 being included “as they were annexed to the third application” (dated 10 October 2016). However the submissions then go on to “seek relief” under ss 354(1) and 354(3) of the 1998 Act, and Pt 1 r 1.6 of the Workers Compensation Commission Rules 2011 (the Rules), “from adherence to any of the Rules of procedure that may otherwise bar admission and consideration of all the attached applications” (emphasis added).
In relation to the application to reconsider Kirunda No 2, the appellant submits:
(a)     The application dated 10 October 2016 (to reconsider Kirunda No 1) was given “perfunctory consideration… albeit necessitated by the urgency ascribed to it”.
(b)     The submissions made on the application dated 10 October 2016 related to “a new issue” brought into existence on the appeal, being the appropriateness of the remitter. The appellant submits that this “premise” was not identified in Kirunda No 2. Thus the submissions in the application dated 10 October 2016 are submitted not to have been “further submissions”, as they went to the order for remitter, not to “any finding or decision by an Arbitrator”. The appellant submits that “the relevant principles in Samuel … relate to previously adjudicated issues”. The “issue of remitter was a new issue brought into existence” by the order to remit in Kirunda No 1.
(c)     The appellant describes the order to remit as “contrary to the intention of the parties”. He submits that rather than remitting the matter, the option of redetermination by me could have been exercised by holding a hearing, or inviting further submissions.
(d)     The appellant describes the decision in Samuel as relating to consideration by the Commission of “whether it is appropriate to review findings or decisions made by an Arbitrator which the party seeking reconsideration should have raised at first instance”. He submits that the decision in Kirunda No 2 “was based on an erroneous finding that the Deputy President’s jurisdiction was excluded by the principles in Samuel”. The appellant refers to Cameron v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704 (Cameron), a decision of Rothman J dealing inter alia with exercise by a Delegate of the Registrar of the ‘gateway’ power in s 327(4) of the 1998 Act. His Honour referred to the Delegate’s misunderstanding as to the nature of the jurisdiction, so that there was not a “real exercise of jurisdiction”, which was “in law constructively unexercised”. The appellant submits that my exercise of jurisdiction in Kirunda No 2 was constructively unexercised, as I asked myself the wrong question.
(e)     The appellant submits that re-determination on appeal would be consistent with the objectives of the Commission in s 354(3) of the 1998 Act. He submits that the desirability of finality of litigation, and timeliness, would be served by re-determination at Presidential level. He submits that the order for remitter constituted a “clear cut injustice”. He submits there “appears to be active undermining of my procedural rights by Arbitrators, administrative staff of the Commission and unethical conduct by the Respondent’s legal representative” (emphasis in original).
(f)      The appellant submits that the “facility for a review” should not be given a narrow construction, citing Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54 (Sapina) at [32]. He refers to a passage from State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) at [21] of that decision.
(g)     In Kirunda No 1 a number of factors were identified which I considered supported the conclusion that remitter was an appropriate procedural order, the appellant having succeeded in his appeal. The appellant makes submissions dealing with the state of the pleadings, and the extent to which credit issues require resolution. He submits that the procedural decision of Arbitrator Wynyard, to deny applications to cross-examine, was not the subject of appeal and “acquired finality”. He submits that it would be unfair to him if the respondent were given an opportunity to cross-examine.
(h) The appellant refers to allegations of bias he made in respect of Arbitrators Harris, Wynyard and Capel. The appellant, in the Presidential appeal, put on a document headed “Urgent request for reconsideration of the decisions of Arbitrator John Harris of 29 May 2015 and Arbitrator John Wynyard of 25 November 2015” under s 350(3) of the 1998 Act. This application was not ultimately persevered with. He now submits that the order for remitter involves “enlivening the issue of Arbitrator bias” (emphasis in the original). The appellant states that he requests “adjudication” on that application.
(i)      In Kirunda No 1 it was specifically stated, at [11], that the transfer of the arbitral proceedings from Arbitrator Harris to Arbitrator Wynyard was “for reasons unconnected to the proceedings”. Notwithstanding this, the appellant submits:
“In the absence of evidence to the contrary, it is my belief that the withdrawal of Arbitrator Harris was a pre-emptive recusal in anticipation of a complaint of bias due to the aggressive advocacy he engaged in on behalf of the Respondent…”
The appellant submits that whether or not his belief is erroneous, it added to his apprehension of bias by Arbitrator Harris. He submits that “in the spirit of s 354(3) of the 1998 Act, “justice should be seen to be done” by re-determination at Presidential level rather than involving “another Arbitrator in dealing with the matter”.
(j)      The appellant makes accusations against Arbitrator Capel and the respondent’s solicitor, which I will not repeat for current purposes. This leads to a submission:
“I submit that it would be a breach of my rights to procedural fairness if there is no clarification of this issue in the consideration of this application to determine whether, in all the circumstances, it is appropriate for remitter of this matter to continue in light of possible falsehoods stated by judicial and administrative staff of the Commission, instead of determination by the Deputy President.”
(k)     The appellant submits that re-determination at Presidential level could be “in lieu of barring the insurer from having legal representation as a way of addressing the detriment to me caused by the inappropriate behaviour of the Respondent’s representative”.
(l)      Part 1 r 1.6 of the Rules contains various provisions, which include r 1.6(2), which provides for discretion to dispense with compliance with any of the requirements of the Rules. The appellant states that he seeks relief “under Part 1, Rule 1.6 in respect of all my applications to date and evidence sought to be admitted”. He requests that the Commission “reconsider the decision to refuse admission” of the submissions dated 27 May 2016 and 27 June 2016, and fresh evidence attached to those documents. He submits that his “four reconsideration applications” were “lodged personally, with only partial representation”. He refers to the obligation of a court or tribunal to “diminish the disadvantage” suffered by an “unrepresented person”. He cites Datta v Universal Consultancy Services Pty Ltd [2006] NSWWCCPD 85.
(m)   The appellant recites various procedural matters which are said to constitute “concessions or relief granted to the Respondent”. He then recites various procedural matters which are said to constitute “concessions or relief that the Commission had denied me”. He submits:
“Notwithstanding this history, I pray that the same flexibility and relief that has been accorded to the respondent to-date can be accorded to me as a partly self-represented litigant, in granting relief from the Rules as requested in this application, in the interests of procedural fairness.”
(n)     The appellant submits that the matter should be re-determined at Presidential level, rather than remitted to an Arbitrator.
The above does not purport to be a full account of the appellant’s submissions, which are to some extent discursive and repetitive. The above seeks to extract the primary points raised by the appellant on this application, for reconsideration of Kirunda No 2.

THE RESPONDENT’S SUBMISSIONS

The respondent refers to s 352(7) of the 1998 Act, and to Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 at [28] (Trevarrow). The respondent submits that the appellant failed to identify any failure in the Commission’s exercise of its discretion, in remitting the matter. Detailed reasons were given for this exercise of discretion. The respondent submits that the appellant, in lengthy submissions, did not identify grounds for exercise of the discretionary power pursuant to s 350(3) of the 1998 Act, consistent with the principles in Samuel.
The respondent referred to the decision in Gamester Pty Ltd v Lockhart [1993] HCA 79; 112 ALR 623; 67 ALJR 547 (Gamester). In that decision the High Court (Brennan, Deane and Dawson JJ) at [8] said:
“Ms Cameron also submits that the passage which we have cited from the reasons of Gaudron J reveals that her Honour ‘found ... that evidence can be evaluated on its appearance without examination of its content is a denial of natural justice’. Apart from the obscurity of the submission, it seems to proceed on a false basis. It suggests that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”

The respondent submits the above principle applies equally to written submissions.
The respondent also refers to the decision in Rachmaninoff(No 2) at [12]-[13], where O’Grady DP said:
“12. Notwithstanding the breadth of the power granted to the Commission to reconsider any matter dealt with and to rescind, alter or amend any decision previously made, its exercise has generally been restricted to circumstances where fresh evidence has become available and is found to be admissible on such an application. The power has also been exercised to correct errors or omissions which, as stated by the editor of Mills Workers Compensation NSW (Butterworths 2001), are simple and obvious (at 37,737.51).
13. The appropriateness of an application made for reconsideration must be considered having regard to the availability of a right of appeal from decisions of an arbitrator (Samuel [at 58(f)]) and the right, as provided by s 353, of appeal against the decision of a Presidential member.”

The respondent submits that there is no new evidence which would lead to a result different to that in Kirunda No 2. It additionally submits that a Notice of Appeal has been filed in the Court of Appeal, in respect of the decision in Kirunda No 1, challenging the order for remitter, and it would be “inappropriate” to grant the further request for reconsideration.
The respondent submits that the appellant’s allegations of bias on the part of three Commission Arbitrators are not relevant to the decision to remit. Although the recusal of Arbitrator Capel postdates Kirunda No 2, the allegation of bias on the Arbitrator’s part was referred to in Kirunda No 2 at [14] as not constituting an appropriate basis for reconsideration.
The respondent, in its submissions, makes it clear that it does not agree with the allegations made against Arbitrator Capel. It submits that the appellant’s comments, about whether a Commission staff member or the respondent’s legal representatives had lied, were “highly inappropriate and should not be made”. The respondent submits that its application for the production of documents from the Federal Circuit Court was for a legitimate forensic purpose, to seek copies of the appellant’s affidavits to test his evidence. It refers to the decisions in Kirunda v New South Wales Police [2016] FCCA 1812 and Kirunda v New South Wales Police (No 2) [2016] FCCA 2269.
The appellant, at [58] of his submissions, quoted various passages from the transcript of the telephone conference held on 31 August 2016. He submitted that these were “negative comments” by the Arbitrator which gave rise to a reasonable apprehension of bias. The respondent disputes the appellant’s argument that, in not opposing the recusal application before Arbitrator Capel, the respondent impliedly acknowledged the correctness of the claim. The respondent makes the point that the Arbitrator’s comments were made during the conciliation phase of the hearing (see s 355 of the 1998 Act). The respondent refers to Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380 (Johnson) at [13]. It submits that the relevant remarks do not indicate pre-judgment or bias on the Arbitrator’s part.
In relation to the appellant’s allegation of inappropriate conduct by Arbitrator Capel and Registry staff, the respondent refers to a passage from Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413; 185 FCR 42 at [34]. The passage refers to the inappropriateness of using “offensive epithets” to describe decision makers and members of the profession involved in proceedings.

CONSIDERATION

The Applications dated 26 May 2016 and 2 September 2016

The application dated 26 May 2016 sought reconsideration of decisions of Arbitrator Harris dated 29 May 2015 (the Certificate of Determination is dated 3 June 2015) and Arbitrator Wynyard dated 25 November 2015. At the time of this application’s lodgement on 26 May 2016, the Presidential appeal was listed for oral hearing on 29 May 2016 and 1 June 2016. The appeal was in respect of the decision dated 25 November 2015, which was one of the decisions in respect of which reconsideration was sought. The application sought vacation of the oral hearing dates, which was granted. The appeal was stayed, pending the reconsideration being dealt with. The Registrar advised the appellant that the reconsideration application was to be dealt with by Arbitrator Wynyard, who was the original decision maker. This was on the basis of the decision in Cameron. My jurisdiction was pursuant to s 352 of the 1998 Act, to deal with the Presidential appeal, not to deal with reconsideration of the arbitral decisions: s 375 of the 1998 Act.
On 20 June 2016 the appellant advised the Registrar that he withdrew the reconsideration application dated 26 May 2016.
It follows from the above that I do not have jurisdiction, pursuant to s 375 of the 1998 Act, to deal with the reconsideration application dated 26 May 2016. For similar reasons, I do not have jurisdiction to deal with the reconsideration application dated 2 September 2016, which seeks to reconsider an interlocutory order of Arbitrator Capel. To the extent to which the application to reconsider Kirunda No 2 also sought reconsideration on the basis of the applications dated 26 May 2016 and 2 September 2016 (see the appellant’s submissions at [4]), I decline to do so as I do not have jurisdiction.
Reconsideration of the decisions dated 29 May 2015 and 25 November 2015 would be essentially futile in any event. Other than procedural orders, the only finding made by Arbitrator Harris was that the appellant was assaulted on 27 August 2012, in circumstances falling within the ‘recess’ provisions in s 11 of the Workers Compensation Act 1987 (the 1987 Act). That is, it was a finding favourable to the appellant. In so far as the decision dated 25 November 2015 is concerned, that decision (which was not favourable to the appellant) was revoked by my decision dated 11 August 2016.

‘Arbitrator Bias’

The appellant, at [35] of his submissions dated 1 November 2016, set out reasons why he says he did not persevere with his application for reconsideration of the decisions of Arbitrator Harris and Arbitrator Wynyard. He now submits that the order for remitter “had the effect of enlivening the issue of Arbitrator bias” (emphasis in the original). He asks that I adjudicate on the first application (that dated 26 May 2016) specifically in relation to allegations of bias. For reasons given above, I do not have jurisdiction to deal with the application to reconsider those arbitral decisions.
The appellant was represented by experienced counsel on the arbitration hearings before both Arbitrator Harris and Arbitrator Wynyard. Recusal applications were not made at either of those hearings. The issue was raised by the appellant subsequently. The order for remitter did not direct that the matter be returned to either Arbitrator Harris or Arbitrator Wynyard. In accordance with the usual practice, it directed remitter to an Arbitrator other than Arbitrator Wynyard, whose decision had been revoked on appeal. On remitter the matter was assigned to Arbitrator Capel, who had no previous involvement in it. Arbitrator Capel subsequently, on the appellant’s application, recused himself on the basis of apprehended bias.
There is nothing properly before me, requiring adjudication, going to issues of procedural fairness or bias (actual or apprehended) on the part of Arbitrator Harris, Arbitrator Wynyard or Arbitrator Capel.
The appellant’s submission now appears to be that ‘Arbitrator bias’, if present, would be a factor militating against remitter. His argument, as I understand it on this point, is that there would potentially be difficulties in him obtaining a fair hearing before any Arbitrator, on remitter. At [43] of his submissions the appellant says:
“The fact that Arbitrator Capel recused himself does not eliminate the risk of further problems with other Arbitrators as demonstrated by the history of the matter.”
The appellant, in his submissions dated 1 November 2016 at [42]-[47], makes allegations of impropriety against Arbitrator Capel, a member of the Commission’s administrative staff, and the respondent’s legal representatives.
Section 355 of the 1998 Act provides:
“355 Arbitrator to attempt conciliation
(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.”
In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) McColl JA (Giles and Tobias JJA agreeing) at [97], referring to Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, said that “a finding of bias is a grave matter”. Dealing with an allegation of actual bias, involving a Commission Arbitrator, her Honour at [103] said:
“The Arbitrator made it plain both at the outset of the March 2004 teleconference (‘there’s sufficient information before me to make a decision on the material given, assisted by both parties’) and immediately before delivering his reasons (‘I think I’ve indicated from the outset that I’ve got a certain view’) that he had a view about the outcome of the case, no doubt reflecting his consideration of the materials before him as well as the earlier teleconference. It would be remarkable, and most probably amount to a failure to discharge his functions, if he had not. The critical question is whether he had so prejudged the matter as to be incapable of altering his view, whatever evidence or arguments may be presented. That question has to be considered in the context of the nature of the decision-making process in which he was engaged, having regard to the role he was playing: Minister for Immigration and Multicultural Affairs v Jia Legeng (at [78]) per Gleeson and Gummow J.”
At [104]-[106] her Honour referred to an Arbitrator’s duty pursuant to s 355 of the 1998 Act, and said this was “an overall and continuing duty” (reference was made to Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng) at [25]). Her Honour at [105] said “[t]he nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues”.
The appellant made reference, in his submissions on this topic, to Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 (Nguyen). A number of authorities, dealing with procedural fairness and bias, were reviewed in that decision. Nguyen involved a commercial dispute, with claims of breach of an employment contract by various parties. The trial was conducted in the Supreme Court of New South Wales. It did not involve the Commission, or the discharge by an Arbitrator of his or her statutory duties pursuant to the 1998 Act. A Commission Arbitrator has an obligation to apply rules of law (Edmonds at [88]), to bring an impartial mind to the exercise of his or her decision making-function (Edmonds at [91]) and to afford parties procedural fairness (Edmonds at [90]).
The respondent’s submissions refer to Johnson at [13], where the plurality said:
“Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
In the same case Kirby J said at [46]:
“A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.”
There are references, in the appellant’s submissions, to comments made by Arbitrator Harris about the use of the term “bullying”, in the pleading of the psychological injury. The Arbitrator described it as an “inappropriate” word to be used. The appellant submits this “indicated a pre-determined position on whether bullying and harassment had occurred or not”. This is by no means clear. The Arbitrator’s remarks are more likely a reference to the well-known authority, dealing with psychological injury, of Chemler. In that matter the worker “perceived he was being subjected to harassment and victimisation”. Basten JA said:
“Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v New State Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ).”
That is, as a general proposition it is unnecessary, when seeking to establish psychological injury, to establish mala fides on the part of a fellow worker, whose actions may have resulted in the injury. This is consistent with the Arbitrator’s reference (referred to at [20] of the appellant’s submissions dated 26 May 2016) to “the applicant’s interpretation of what they’re doing to him”. The appellant actually refers to the effect of this passage from Chemler, at [2] of his reconsideration application dated 2 September 2016.
This is conjecture. The various references in the appellant’s submissions, to what was said by Arbitrator Harris, essentially relate to “dialogue” as the term is used in Johnson. Both parties were represented by experienced counsel. I also note that the only finding made by Arbitrator Harris was one which was advantageous to the appellant. I express no concluded view on whether a recusal application may have been available in respect of Arbitrator Harris. If such an application were to be made at some point, it could be dealt with on its merits.
I note in passing that there is no evidence to support the appellant’s speculative “belief” relevant to the withdrawal of Arbitrator Harris from the matter (his submissions at [38]-[40]). The appellant’s request for an explanation from the Commission, as part of his submissions, is inappropriate.
The appellant’s submissions deal with aspects of the arbitration hearing on 9 July 2015, before Arbitrator Wynyard, which are said to be indicative of bias. The first three to four pages of these deal with remarks made by the Arbitrator, for the apparent purpose of encouraging settlement of the matter. This is consistent with obligations placed on an Arbitrator by s 355 of the 1998 Act. Some of the quoted remarks are consistent with a level of scepticism on the Arbitrator’s part, regarding the appellant’s prospects of success. I do not see this as being inconsistent with the Arbitrator’s duty, as discussed in Edmonds at [103]-[106]. He was expected to form a view. That view would inform the discharge of his obligation to use his “best endeavours” to bring the parties to settlement: s 355(1). There was no objection to be taken to him determining the matter, if those endeavours did not succeed: s 355(2).
According to the passage quoted at [33] of the appellant’s submissions dated 26 May 2016, the Arbitrator, the parties and the representatives met at 10 am on the arbitration date, and the hearing of the arbitration commenced at 11.15 am. The usual practice is that the Arbitrator, the legal representatives and the parties participate in a conciliation conference initially, at which resolution is discussed. If a matter cannot be resolved, it then proceeds to an arbitration hearing.
The appellant is critical of the Arbitrator for not activating the sound recording at 10 am, which the appellant states was “in breach of the sound recording policy of the Commission”. The appellant also refers to a telephone conference held on 7 August 2015, and says that the sound recording was not activated “for the first 20 minutes”. The appellant submits that this was “a denial of procedural fairness not to comply with the sound recording policy of the Commission”. It is the usual policy of the Commission (which can be varied as appropriate) not to record telephone conferences or conciliation conferences. The pattern of recording by Arbitrator Wynyard appears to have been generally consistent with this.
The appellant is also critical of remarks made by the Arbitrator during the telephone conference on 7 August 2015, which he submits led to an erroneous finding of “delusional disorder”. Again, remarks between the Arbitrator and legal representatives need to be understood in the context of the decision in Johnson. By that point of time the Arbitrator would be expected to have read the documentary material, and to have formed a view sufficient to inform his “best endeavours” to bring the parties to settlement. He was part-heard in the matter. As was observed by McColl JA in Edmonds, the Arbitrator was obliged to form a view, and it would “most probably amount to a failure to discharge his functions, if he had not”.
I express no concluded view regarding whether a finding of bias or apprehended bias on the part of Arbitrator Wynyard would be available. The sole relevance of this issue, to the application before me, is whether there is any reasonable basis for the conclusion that an order for remitter should not be made, because of a pattern of ‘Arbitrator bias’. Arbitrator Wynyard cannot be relevant to this enquiry, as the existing order for remitter specifically directs that the matter be remitted to an Arbitrator other than Arbitrator Wynyard. Similarly, the matter on remitter will not be listed before Arbitrator Capel, who has previously recused himself.
It follows that the appellant’s assertions of bias are not relevant to the order to remit. It will not be listed before Arbitrator Wynyard or Arbitrator Capel. If the matter happened to be listed before Arbitrator Harris, which is quite unlikely in the circumstances, and the appellant was of the view a recusal application could be properly made, he could make one.
To the extent to which the appellant argues that any Arbitrator to whom the matter is allocated, notwithstanding having had no prior association with it, may well exhibit actual or apprehended bias, there is no evidentiary or logical basis for such an assertion.

The Application of Samuel

The appellant’s argument on this issue is at [6]-[14] of his submissions. He submits at [10] that Samuel relates to the “review [of] findings or decisions made by an Arbitrator which the party seeking reconsideration should have raised at first instance”. He uses similar language at [7], saying that the principles in Samuel “relate to previously adjudicated issues, findings or decisions which the moving party seeks to have revoked, amended or reviewed” pursuant to s 350(3) of the 1998 Act. He says his submissions going to the order to remit went to a “new issue arising as of 11 August 2016, the date of the first decision [Kirunda No 1] including the reasons given to justify remitter”. He submits at [8] that “[t]he Deputy President misdirected himself in law by failing to ask if the new issue of remitter was an issue that had been previously adjudicated upon so that the relevant principles in Samuel applied to prevent the previous finding being disturbed”.

Samuel seeks to set out a succinct summary of the authorities applying to applications for reconsideration pursuant to s 350(3) of the 1998 Act. The appellant’s reconsideration application is pursuant to s 350(3), as it must be if it is to be brought at all. By its very nature, it relates to an attempt to vary an existing order, that remitting the matter. The authorities relating to reconsideration have application. Application of the authorities summarised in Samuel is not restricted to situations where there is reconsideration of findings or decisions made by an Arbitrator, where a party should have put on evidence or made relevant submissions before the Arbitrator. If the decision of an Arbitrator is subject to an application to reconsider, that application is made to the Arbitrator, a Presidential member lacks jurisdiction to deal with it: s 375 of the 1998 Act. A Presidential member has jurisdiction to reconsider a Presidential decision; Rachmaninoff No 2 was such a case.
The appellant submits at [9] that he could not have been expected to lead evidence or make submissions on the issue of remitter previously, “as it had not arisen before Arbitrator Harris or Wynyard and by extension, in the appeal application which sought corrections of errors of law and fact by Arbitrator Wynyard”. Obviously a party would not, before an Arbitrator, make submissions about what orders might be appropriate on disposition of a subsequent appeal, if one happened to be made. However, when the appeal pursuant to s 352 of the 1998 Act was on foot, the orders to be made in it were a matter to be dealt with in those proceedings. Orders for the disposition of an appeal must be made, as part of the appeal process. Section 352(7) of the 1998 Act provides:
“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.”
In Trevarrow at [27]-[28] Santow JA (Beazley and Ipp JJA agreeing) dealt with the operation of s 352(7) of the 1998 Act. The passage should be read subject to the amendment to s 352(5) discussed at [62]-[63] and [73] below. His Honour said:
“27 … The parties however differed in their opinion on what the Deputy President ought to have done in the circumstances. Apparently Ms Trevarrow was content for the matter to go back to the Arbitrator, whereas Chubb, at least on appeal, submitted that the Deputy President had a positive duty to correct the erroneous approach taken by the Arbitrator, which perhaps may have involved giving leave to adduce fresh evidence under s352(6). This power to receive fresh evidence is somewhat problematic, as it is essential to ensure that the limited review by a Presidential member under s352 does not expand into a full-blown de novo hearing, quite beyond the legislative intention.
28 As I have said the matter is now largely academic. The legislature has provided the President member hearing such an appeal with an alternative option of remittal to the Arbitrator. Whether the Presidential member revokes and substitutes a decision or remits the matter to an Arbitrator is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims. The legislative amendment can be construed as a legislative recognition that in certain cases, it will be more efficient and cost-effective for an Arbitrator to redetermine issues and make appropriate calculations in cases such as this.”
The discretionary options available clearly included remitter, consistent with s 352(7) of the 1998 Act. The orders to be made, if the appeal succeeded, were always a matter before me on the appeal. The appellant’s argument, that settled principles (summarised in Samual) going to the power pursuant to s 350(3), did not have application to the reconsideration in Kirunda No 2, as the issue of the orders disposing of the appeal had not been previously “adjudicated” by an Arbitrator, is misconceived.
The submission that the result in Kirunda No 2 was based on a conclusion that the Commission’s jurisdiction was excluded, by the principles summarised in Samuel, similarly is misconceived. The conclusion in Kirunda No 2 at [16] was not based on an absence of jurisdiction, but rather because, consistent with authorities summarised in Samuel, I was not persuaded that there was an appropriate basis to exercise the discretionary power in s 350(3) of the 1998 Act.

The Appellant’s Submissions on the Nature of ‘Review’

The appellant, in his submissions at [20], has apparently quotes from the judgment of Kirby P in Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 at 299G-300A. The passage is quoted in Sapina, to which the appellant refers. It reads:
“Compensation legislation is beneficial and protective of workers who allege that they were injured at work. The facility for a ‘review’, whether at the behest of a worker, an employer or an insurer, should not be given a narrow construction. This Court has now repeatedly so held.”
The appellant also refers to Chemler at [21]. That decision at [22] goes on to discuss the scope of “an internal merits review by a Presidential member”, in “the proper operation of the legislative scheme”. Both Sapina and Chemler involved Presidential appeals that were governed by s 352(5) of the 1998 Act, in its previous form, which provided:
“An appeal under this section is to be by way of review of the decision appealed against.”
The current form of s 352(5) of the 1998 Act, which commenced from 1 February 2011, is quoted at [73] below. It is quite different. The provision does not provide for a ‘review’. As a general proposition, authorities dealing with the nature of the previous ‘review’ provision do not apply to s 352(5) in its current form. For the sake of completeness, I should also observe that decisions such as Sapina did not purport to have application to the nature of the reconsideration power under s 350(3) of the 1998 Act.

The Appellant as an Unrepresented Litigant

The appellant’s submissions at [65] refer to him having been a “self-represented litigant” in the Presidential appeal. He submits that his “four reconsideration applications” were “lodged personally, with only partial legal representation”. He submits “an unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill”. He submits that a “court or tribunal has an obligation to diminish this disadvantage so as to ensure a fair and just hearing”.
The appellant’s legal qualifications and background were set out in Kirunda No 1 at [30]. He holds a Bachelor of Laws degree with third class honours from the University of London. He has a graduate Diploma in Legal Practice from the University of Technology in Sydney. He stated that he was admitted as a solicitor in New South Wales in 2003. He stated that he obtained a Master of Laws degree from the University of Sydney in 2010. The issues between the appellant and the respondent included the respondent’s failure to reimburse the appellant’s practicing certificate fees (see the appellant’s statement dated 22 February 2013 at [22]). There were periods when the appellant’s employment with the respondent was as an acting legal officer. The evidence does not reveal whether the appellant has continued to maintain a practicing certificate.
The appellant referred to a decision of Roche ADP (as he then was) in Datta v Universal Consultancy Services Pty Ltd [2006] NSWWCCPD 85. On the topic of unrepresented litigants, the Acting Deputy President quoted from a decision of Byron DP in Smith v New South Wales Police Service[2004] NSWWCCPD 77, where the Deputy President at [30] said:
“An unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSWCA 16 June, 1986 (Rjaski)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September, 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski).” (emphasis added)
Given the appellant’s qualifications and background, he does not appear to be at a disadvantage because of his “lack of legal skill”. He also refers to lodging his four reconsideration applications (of which this is one) “with only partial legal representation”. The meaning of this phrase is obscure. I note the appellant has had legal representation during the original arbitral hearing, and on the remitter.

The Appropriateness of the Order for Remitter

The appellant describes the remitter as contrary to the intention of the parties. In Kirunda No 1 at [188] it was specifically acknowledged that the parties, in their initial submissions, requested redetermination if the appeal succeeded.
The appellant, in his Application to Appeal Against Decision of Arbitrator, submitted that the Presidential appeal could be decided on the papers, without an oral hearing. In his written submissions dated 23 March 2016, the appellant then requested that, “in light of the breadth and complexity of the documentary evidence”, a “hearing should be held”. Consequently the oral hearing on 31 May 2016 and 1 June 2016 was allocated. The appellant, in his submissions dated 26 May 2016, then sought that the oral hearing on 31 May 2016 and 1 June 2016 be vacated, and that any future determination of the appeal “be done on the papers unless I manage to obtain legal representation at which time I will immediately inform the Commission”. There was no such advice prior to the decision in Kirunda No 1, and the appeal was dealt with on the papers, consistent with the appellant’s request.
In his submissions dated 23 March 2016, the appellant at [3]-[6] said that he had suffered from severe pain in his tailbone since “around August 2015”, and that an x-ray showed “a displaced fracture of my lumbar spine”. He said that his “GP was of the opinion that surgery was probably the only solution”. He said this problem was “caused by the long hours I have spent sitting in my house because I was too anxious to go outside because of the ongoing psychological warfare and failure to sleep”. He said he believed the spinal injury was “a direct result of my psychological injury”. He submitted that, due to the application of s 11A(4) of the 1987 Act, the physical nature of this injury put it outside the potentially disentitling provisions in s 11A. He stated that he was “lodging the relevant medical evidence in case failure to do so defeats any future claim”. Some short certificates from the appellant’s general practitioner and an x-ray report were attached to the submissions. The submissions did not suggest, at that point, that the appellant sought to amend the current proceedings to include an allegation of spinal injury.
In his submissions dated 26 May 2016 at [49] the appellant submitted:
“I seek leave to submit more recent medical reports to ascertain the status of my psychological injury and my spinal injury before any future determination of the appeal.”
The appellant’s claim was pleaded as a psychological injury. An extension of the allegations to include a consequential spinal injury, potentially involving surgery (on the appellant’s version of the general practitioner’s advice), would involve giving appropriate notice to the respondent, and it having an opportunity to investigate the allegation and respond to it. Both parties would require an opportunity to put on appropriate evidence. Such a process would be outside the procedural basis on which appeals pursuant to s 352 of the 1998 Act are conducted.
It is difficult to see an appropriate basis on which the Commission, on a redetermination at Presidential level, could make findings going to the existence or otherwise of the spinal injury raised by the appellant. Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
There is no aspect of the relevant Arbitrator’s decision which deals with the issue of any consequential spinal condition, and no error to be corrected in that regard. The remitter gives an opportunity to the appellant to make an allegation in this regard if appropriate, the parties to gather evidence on the issue if desired, and the Arbitrator to deal with any application to amend. The admission of evidence on the topic, on remitter, would be governed by Pt 10 r 10.3(3) and (4) of the Rules. The Commission’s file indicates that, on the current remitter, the appellant on 8 November 2016, through his solicitors, lodged medical evidence dealing with his lumbar spinal condition, under an Application to Admit Late Documents.
The issues raised by the respondent, in disputing the claim, include the occurrence of ‘injury’, satisfaction of s 9A of the 1987 Act (‘substantial contributing factor’), and the availability of a defence pursuant to s 11A(1) of the 1987 Act (the respondent’s submissions at [25]). The effect of the decision in Kirunda No 1 is that the findings on the two matters that were decided by Arbitrator Wynyard (‘injury’ and s 11A(1) of the 1987 Act) have both been set aside, and require determination afresh. At this point, the only factual finding in force is that made by Arbitrator Harris in the Certificate of Determination dated 3 June 2015, that the assault on 27 August 2012 occurred in circumstances which were compensable (see [32] above).
Trevarrow involved error by an Arbitrator, in the calculation of weekly entitlement to compensation (see Santow JA at [26] of that decision). On Presidential appeal, the matter was remitted. Santow JA at [29] described it as “perhaps also regrettable that the Deputy President did not redress the Arbitrator’s default and fully determine the practical details of the awards”. His Honour described the outstanding issues as being “in such narrow compass”. His Honour at [27] (quoted at [58] above) described the limitation on ‘fresh evidence’ in s 352(6) of the 1998 Act as “essential to ensure that the limited review by a Presidential member under s 352 does not expand into a full blown de novo hearing, quite beyond the legislative intention”. This concern has valid application in the current matter. Almost all of the multiple issues remain at large.
Sub-sections 352(5) and (6) of the 1998 Act were amended effective 1 February 2011. Section 352(6) was amended to place specific restrictions on the circumstances in which the Commission may grant leave for fresh evidence on appeal. The amended form of s 352(5) is set out at [73] above. The amendment of s 352(5) to provide that “an appeal is not a review or new hearing”, would support the proposition that an appeal should not “expand into a full blown de novo hearing”.
In Kirunda No 1 at [189]-[191] I expressed the view that there were credit issues in the case, and that the appellant’s evidence would “require careful analysis”. I suggested that, on re-hearing, it would be necessary that careful consideration be given to the issue of whether leave to cross-examine would be appropriate. I referred to the conflicting views of Dr George (a psychiatrist qualified by the respondent), and Ms Hidalgo (a treating psychologist) regarding whether the appellant suffered from any “perceptual disorder”.
The appellant submits that the issue is not one of credit, but a ‘medical dispute’ under ss 121(1) and 319 of the 1998 Act, and the Commission has evidence to determine that ‘medical dispute’.
The matter clearly is not a ‘medical dispute’ within the meaning of s 121(1). Section 121 is part of Ch 4, Pt 2, Div 7 of the 1998 Act. Pursuant to s 118A of the 1998 Act, s 121 applies only to ‘existing claims’, which are defined in s 250(1) of the 1998 Act. In general terms, an ‘existing claim’ is a claim made before the commencement of the Workers Compensation Legislation Further Amendment Act 2001 (on 1 January 2002).
Arguably, whether the appellant suffers from a perceptual disorder could fall within the definition of a dispute about “the worker’s condition” (s 319 of the 1998 Act). Assuming it did, this would potentially mean that such a dispute “may be referred for assessment” under Ch 7, Pt 7 of the 1998 Act. There has been no application by any party for such a referral. Any medical assessment certificate issued would not be binding on such an issue in any event, as it would not fall within the matters set out in s 326(1) of the 1998 Act. The relevance of s 319 of the 1998 Act is not readily apparent.
Dr George, in his report dated 23 July 2014, said the appellant “probably has a delusional disorder above and beyond a diagnosis of paranoid schizophrenia”. The recorded history on that occasion included:
“…the reason that he had moved to Queensland was due to the fact that he believed that he was still being intimated [sic, intimidated] and harassed by Merrylands Police. He believed that he was under surveillance. He said that cars were being parked outside his home unit and he believed that in addition to being under surveillance, on occasions, his unit was broken into.”
The history went on to give more detailed examples of the harassment to which the appellant said he had been exposed, which I do not need to recite. Arbitrator Wynyard rejected the plausibility of the appellant’s statements, saying they lacked “any probative value” (see Kirunda No 1 at [189]). I sought to make clear at [189]-[190] that another Arbitrator would not necessarily share Arbitrator Wynyard’s views on this issue, and that Dr George’s views on diagnosis were, by way of example, not shared by a treating psychologist. However it would be artificial to pretend that there is not an issue, going to the acceptability of the appellant’s evidence, which requires resolution as part of the fact finding process.
I also sought to make clear, at [191], that if the applications to cross-examine were renewed, it would be a matter for the Arbitrator before whom the matter was listed, but that such an application (which is discretionary) would “require careful consideration”. Conduct of a hearing, potentially involving oral evidence and cross-examination of the appellant and four lay witnesses, would involve the appeal expanding into “a full blown de novo hearing”.
The appellant, at [57] of his submissions dated 1 November 2016, submits that the decision of Arbitrator Wynyard to decline leave to cross-examine was “unchallenged”, and has “acquired finality”. He submits that remitter, on the basis that the respondent may have an opportunity to cross-examine him, is unfair.
In Zheng at [37], Bryson JA (Handley JA and Bell J agreeing) said:
“There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
Such an application is procedural, and is of an interlocutory nature. Such orders “do not decide any question finally” (Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3^rd ed at p 82). The learned authors at p 83 state:
“A decision refusing an interlocutory order, such as an order for further discovery, is not final and not res judicata. The application can be renewed on the basis of further evidence, or a different argument.”
See also Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423.

The appellant relies on a passage from Chemler at [22], arguing against the proposition that “a merits review process should operate on some kind of presumption that the first instance decision maker should determine the matter”. As set out above, an appeal pursuant to s 352 of the 1998 Act no longer involves “a merits review process”. There is no presumption in favour of remitter, and nowhere in my reasons for remitting the matter was it suggested otherwise. The 1998 Act requires an exercise of discretion in the circumstances of the individual case.
The appellant says that he seeks relief under Pt 1 r 1.6 of the Rules. I infer this is a reference to Pt 1 r 1.6(2), which provides:
“The Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.”
The appellant seeks that “all my applications to date and evidence” be admitted. He requests that the Commission “reconsider the decision to refuse admission of the submissions dated 27 May 2016 and 27 June 2016”. These submissions and evidence are referred to at [203]-[204] of Kirunda No 1. The submissions were considered to the extent to which this was necessary, given the order for remitter (see [202]-[205] of that decision). The admission of late evidence, which is discretionary, was dealt with at [50]-[111] of Kirunda No 1. The refusal to admit late evidence was based on s 352(6) of the 1998 Act, the decision in CHEP Australia Limited v Strickland [2013] NSWCA 351, and the relevance of the fresh evidence which was the subject of the leave application. Consideration was also given to whether the interests of justice favoured dispensing with the Rules, where Pt 16 r 16.2(4)(c) was not complied with. The appellant has made no discernible submission regarding why these decisions, on the admission of evidence pursuant to s 352(6), should be reconsidered.
The appellant submits that redetermination at Presidential level is likely to be more timely than remitter. The matter has an unfortunate history. It was commenced on 5 March 2015. Its history is not typical. The time involved in the determination of the matter was extended by the inability of the original Arbitrator to continue in it, after one day’s hearing. The Certificate of Determination of the second Arbitrator was issued on 25 November 2015.
The appellant’s Application to Appeal was lodged, out of time, on 11 January 2016. The time involved in determination of the appeal was extended due to the need for O’Grady DP, and then Roche DP, to withdraw due to ill health. It was extended when the appellant, part way through the appeal, sought an oral hearing, with the need to find future dates suitable to the parties. It was extended when the appellant, days prior to the oral hearing dates, lodged a reconsideration application, and sought an adjournment. The appeal was then stayed until the appellant withdrew the reconsideration application on 20 June 2016. The appellant lodged further submissions, and evidence, without leave, on 27 June 2016 and 3 August 2016. When this occurred, it was necessary to seek a response from the respondent.
My decision on the appeal was issued on 11 August 2016. The appeal succeeded, and the matter was remitted for redetermination by a different Arbitrator. It was allocated to Arbitrator Capel, who had no previous involvement in the matter, and it was listed for telephone conference on 31 August 2016. Certain procedural and interlocutory orders were then made. When it was next listed before Arbitrator Capel on 12 October 2016, he recused himself, on the appellant’s application, on the basis of apprehended bias. The matter would then have proceeded to a telephone conference before another Arbitrator, on 17 November 2016. However, the appellant lodged a Notice of Appeal in the Court of Appeal on 10 November 2016, challenging the order for remitter. The remitter was not then further proceeded with, pending determination of that appeal.
The time between telephone conference and arbitration hearing, in the Commission, will vary depending on the readiness of the parties, whether material is sought pursuant to Direction for Production, and the availability of dates. Typically, the time between telephone conference and arbitration hearing should not exceed eight weeks. If not for Arbitrator Capel’s recusal, he should have been able to hear the matter before the end of 2016. If the telephone conference set for 17 November 2016 had been retained, the matter should have been heard by now. It should not be assumed that a Presidential appeal is then a part of the process, in the majority of matters it is not. Redetermination by a different Arbitrator, if it is allowed to follow its normal course, is a timely means of redetermination.

CONCLUSION

Reconsideration pursuant to s 36(2) of the Workers Compensation Act 1926 (the equivalent provision) was dealt with by the Court of Appeal in Hardaker v Wright & Bruce Pty Limited [1962] 62 SR (NSW) 244 (Hardaker). Owen and Walsh JJ at 245 described the authority conferred by the section as “a discretionary one”, which is “expressed in extremely wide terms”. Their Honours said:
“I see no reason for limiting the generality of the words used in the section, and whether the question be one of fact or one of law, if the circumstances warrant it, I think that there is power in the court to entertain an application for variation or recission as to it may seem proper. It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that 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 regard 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.”
The passage of Rachmaninoff No 2 at [12], quoted at [23] above, whilst acknowledging the breadth of the power, observed that “its exercise has generally been restricted to circumstances where fresh evidence has become available and is found to be admissible on such an application” (see also Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642 at 645D, to similar effect). O’Grady DP in Rachmaninoff No 2 at [13] also noted the power should be considered having regard (relevantly) to the right of appeal from an Arbitrator to a Presidential member pursuant to s 352 of the 1998 Act, and from a Presidential member pursuant to s 353.
The current matter is a good example of “the need to keep well in mind… the occasion of [the power’s] exercise”. The appellant brought an appeal pursuant to s 352 of the 1998 Act, which succeeded. Whilst pursuing that appeal, he brought a reconsideration application against the two arbitral decisions which had been made, one of which was the decision which he was appealing. He then withdrew those reconsideration applications, only to seek to pursue them again, after the appeal pursuant to s 352 (which revoked one of the arbitral decisions) was decided.
Arbitrator Capel, on 31 August 2016, made an interlocutory decision granting leave for the issue by the respondent of a Direction for Production on the Federal Circuit Court, where there had been proceedings between the same parties. This was pursuant to Part 13 of the Rules. The Arbitrator said “I’ll issue the leave to issue the direction” (T16.4-5). The transcript does not indicate that anything was said in opposition to the respondent’s application. The reasons were brief, that the order was “in the interests of justice” and “will assist the proper determination of the dispute”. The appellant lodged an application for reconsideration of this order on 2 September 2016, accompanied by three pages of submissions, dealing with an alleged lack of procedural fairness and apprehended bias.
The proceedings have yielded an application to reconsider two arbitral decisions dealing with substantive issues, an application to reconsider an interlocutory decision by an Arbitrator dealing with the production of documents, and two reconsideration applications going to the order for remitter in the Presidential decision. These have accompanied an appeal under s 352 of the 1998 Act against one of the Arbitral decisions, and an appeal under s 353 of the 1998 Act against the Presidential decision. Save for the references to the recusal of Arbitrator Capel, these reconsideration applications have not been based on fresh evidence.
The plethora of these applications, pursuant to the reconsideration power, is indicative of the need to bear in mind “the occasion of its exercise”. None of them is necessary “to see that justice is done between the parties”. The decision of Arbitrator Wynyard (that there be an award for the respondent) was revoked in the Presidential appeal. The only part of the Presidential decision which is challenged is the order for remitter; the appellant has instituted an appeal pursuant to s 353 of the 1998 Act, against that order. The reconsideration power is a discretionary one, and these matters militate against its exercise (Rachmaninoff No 2). “Public interest requires that litigation should not proceed interminably” (Hardaker).
The order for remitter in Kirunda No 1 was the appropriate discretionary order pursuant to s 352(7) of the 1998 Act, in my view it was correct. This being so, I am not persuaded that there is an appropriate basis for exercise of the reconsideration power. Additionally, discretionary factors do not support exercise of the discretion. The application for reconsideration of the decision in Kirunda No 2 is refused. It follows that, to the extent to which the application extended to the decision in Kirunda No 1, that application too is refused. For reasons given above, I do not have jurisdiction to reconsider the decisions of Arbitrator Harris, Arbitrator Wynyard and Arbitrator Capel.
For the above reasons, and the reasons given in Kirunda No 2, the appellant’s application dated 1 November 2016 for reconsideration of Kirunda No 1 and Kirunda No 2 is refused.

AN ADDITIONAL MATTER

An order on appeal, pursuant to s 352(7) of the 1998 Act, for the remitter of a matter following a successful appeal, is ordinarily succinct, and accompanied by relatively brief reasons, the length and substance of which will depend on the circumstances of the particular case. The reasons in the current matter seek to address the concerns of the appellant, and the multifarious submissions he made. These reasons should not be taken as indicative, in any way, of the reasons which are required in support of an order for remitter, in the normal course.

DECISION

The appellant’s application dated 1 November 2016, for reconsideration pursuant to s 350(3) of the 1998 Act, of the decisions in Kirunda No 1 and Kirunda No 2, is refused.

Michael Snell
Acting President

2 February 2017

[2017] NSWWCCPD 1

11 August 2016