Lee v Fletcher International Exports Pty Ltd
[2023] NSWPICPD 16
•6 April 2023
| RECONSIDERATION DECISION OF THE PRESIDENT OF THE PERSONAL INJURY COMMISSION | |
| CITATION: | Lee v Fletcher International Exports Pty Ltd [2023] NSWPICPD 16 |
| APPLICANT: | Eunsaem Lee |
| RESPONDENT: | Fletcher International Exports Pty Ltd |
| INSURER: | Self-insured |
| FILE NUMBER: | W321/22 |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF DECISION: | 6 April 2023 |
| CATCHWORDS: | WORKERS COMPENSATION – Reconsideration of remittal decision –section 57 of the Personal Injury Commission Act 2020 – federal jurisdiction – workers compensation matter application remitted by District Court to usual decision maker – Division 3.2, sections 26(5) and 26(6) of the Personal Injury Commission Act 2020 – orders made on remittal from District Court confirmed |
ORDERS MADE: | 1. The remittal decision of 29 March 2023 is confirmed. |
| HEARING: | On the papers |
| REPRESENTATION: | Applicant: |
| Mr K Sawers, solicitor | |
| Walker Law Group | |
| Respondent: | |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| DECISION UNDER RECONSIDERATION: | |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF PRESIDENTIAL Member’s DECISION: | 29 March 2023 |
INTRODUCTION
Pursuant to a decision of the District Court of New South Wales dated 24 March 2023 by Andronos SC DCJ in Lee v Fletcher International Exports Pty Ltd [2023] NSWDC 71, this matter was remitted to me as President of the Personal Injury Commission (the Commission) to make such orders as are appropriate to facilitate the determination of the application, in accordance with s 26(6) of the Personal Injury Commission Act 2020 (2020 Act).[1]
[1] Order 2.
I subsequently made orders on remitter on 29 March 2023 in Lee v Fletcher International Exports Pty Ltd [2023] NSWPICPD 15.
By application dated 3 April 2023, the applicant worker seeks a reconsideration of my decision of 29 March 2023. To deal with the reconsideration application expeditiously and avoid any delay, I ordered that the respondent provide its response to the application by 6 April 2023.
GROUNDS FOR SEEKING A RECONSIDERATION
I will not repeat the history of this matter which is accurately described in the decision of Andronos SC DCJ at paragraphs [5]–[8] of his decision.
This application for reconsideration firstly relies upon the incorrect reconsideration power. The applicant refers to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which relates to Medical Assessments, rather than s 57 of the 2020 Act. I will deal with this application based on the correct provision. Secondly, the application does not specify in terms any error in the original decision requiring correction, rather the application seems to suggest that a different course of action than that set out in my decision is preferable to the applicant. Notwithstanding this deficiency, I am satisfied that the application has sufficient content to enable me to decide the matter, particularly having regard to s 3 and s 43 of the 2020 Act as well as the history of the proceedings. The application, relevant parts of which I set out below, stresses the need for the matter to be dealt with quickly and efficiently. I accept this submission and will attempt to give effect to it in this decision.
Doing the best I can, the essence of this application for reconsideration can be distilled from the following paragraphs of the application. I should note that reference to the “Deputy President’s” decision below is reference to the appeal decision of Deputy President Snell in Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39 (matter A1-W321/22):
“14. Justice Andronos[[2]] of the District Court issued a decision on 24 March 2023. Justice Andronos determined at paragraph 35 that the usual decision maker had jurisdiction to determine the dispute thereby overruling the Deputy President's determination that the Decision of Member Whiffin was without jurisdictional power.
…
21. In the applicant's case, there were four grounds of appeal only one of which was determined. That determination was to the effect that the Commission lacked jurisdiction. That decision has now been withdrawn which leaves the remaining three grounds for final review at the appeal level.
22. We are also mindful of section 3 of the Personal Injury Commission Act NSW 2020 which includes in its objectives dealing with 'proceedings justly, quickly, cost effectively and with as little formality as possible ... '
23. At present, the Applicant worker is prejudiced in circumstances where she has received a favourable decision from a Member who has already determined the dispute on the merits, with his decision being determined by a judge of the District Court as being within the jurisdiction of the PIC. It is submitted that the re-hearing of this dispute before another member is not just, quick or cost effective in the circumstances and reconsideration is requested so as to allow for the remainder of the appeal in A1-W321/22 to be determined and the matter finally disposed of.”
[2] This is a reference to His Honour Judge Andronos SC .
In short, the applicant worker seeks to have the appeal against the earlier decision of Member Whiffin heard and determined.
RESPONSE TO RECONSIDERATION APPLICATION
In brief submissions, the respondent submits that it is incorrect to assert that Andronos SC DCJ had overruled the decision of Deputy President Snell as purported by the applicant. The respondent accepts that the manner in which the dispute before the Commission is dealt with is within my discretion, pursuant to Order (2) of the District Court judgment. It also submits that the Direction made by Member Capel on 28 March 2023 did not supersede the remittal of this matter to me to determine the way in which it should proceed. At [5], the respondent asserts “[a]s the previous Certificate of Determination dated 7 June 2022 has been revoked the Decision of the President of 29 March 2023 is consistent with the terms of the remittal of the District Court”.
CONSIDERATION
Section 57(1) of the 2020 Act provides:
“The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
The leading case on the exercise of the reconsideration power is Samuel v Sebel Furniture Limited.[3] In Samuel, Roche ADP (as he then was) comprehensively reviewed the reconsideration power, history and relevant principles in its exercise. Roche ADP did this noting that it was relevant to bear in mind the flexible nature of Commission proceedings and that the discretion should be exercised beneficially. The nine principles applicable to reconsideration applications are:
[3] [2006] NSWWCCPD 141 (Samuel).
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. 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;
3. 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’);
4. 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’);
5. 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’);
6. 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;
7. 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’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. 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).”
The applicant in this matter has not referred to this case or to its principles. Whilst Samuel was determined under the pre Personal Injury Commission Act provisions, this authority is still applicable to a consideration of reconsideration applications. In terms of this application, Samuel principles 1, 3, 4 and 9 are most relevant to my considerations.
This application misunderstands the nature of the proceedings in the District Court. Those proceedings were not an appeal from the decision of Deputy President Snell, nor did the District Court overrule the determination of the Deputy President as submitted by the respondent.
Rather, consistent with the provisions of Div 3.2 of the 2020 Act, and in particular s 26, the District Court, on the application of the applicant worker, determined whether the matter was affected by the federal diversity jurisdiction. His Honour decided that it was not and remitted the matter to me as President to make orders on remitter. It is clear from his Honour’s decision that Member Whiffin did not have power to determine jurisdiction (see paragraph [36] of his Honour’s decision). The orders made by Member Whiffin were made without power and were thus a nullity. Any appeal against those orders as a consequence is otiose.
Implicit in this application is a suggestion that the decision of the District Court has retrospectively restored the decision of Member Whiffin. A reading of his Honour’s decision would reveal that this argument is without merit and as I described above, misunderstands the District Court’s functions under Div 3.2 of the 2020 Act. There was no restoration or affirmation of that decision.
When I consider the principles I have set out above from Samuel, they are either not enlivened in this matter or their application does not support the application. Upon remitter from the District Court, this matter has been quickly allocated to a Member for hearing. A date has been set for May 2023. This is the quickest way to deal with this matter, the jurisdictional issue having been decided (Samuel, principle 4). In exercising my discretion, I am mindful that the applicant has not identified any error in the decision therefore the merits of this argument are poor. Additionally, by remitting the matter for hearing, both parties’ positions and rights are preserved in terms of the substance of the matters in dispute (Samuel, principle 9). Consistent with the objects of the 2020 Act it is necessary that this matter be heard and determined expeditiously.
For the reasons set out above, I refuse the application for reconsideration of my 29 March 2023 decision.
Judge Phillips
President, Personal Injury Commission
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