Lotos Concretors Pty Ltd v Mitchell - [2018] NSWWCCPD 16

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lotos Concretors Pty Ltd v Mitchell [2018] NSWWCCPD 16
APPELLANT:	Lotos Concretors Pty Ltd
RESPONDENT:	Nathanial Lee Mitchell
INSURER:	AAI Limited trading as GIO General Limited
FILE NUMBER:	A1-1982/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	24 October 2017
DATE OF APPEAL HEARING:	4 April 2018
DATE OF APPEAL DECISION:	27 April 2018
SUBJECT MATTER OF DECISION:	Extension of time to appeal: r 16.12 of the Workers Compensation Commission Rules 2011, monetary threshold to appeal: subss 352(1) and (3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), appeal of an interlocutory decision: s 352(3A) of the 1998 Act, effect of s 66A complying agreement and the principles to be applied, reconsideration pursuant to s 350(3) of the 1998 Act, application of J C Equipment Hire Pty Ltd v Registrar, Workers Compensation Commission (NSW) [2008] NSWCA 43, Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCCA 231 and Manpower Pty Ltd v Harris [2011] NSWWCCPD 10, estoppel on the basis of Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, procedural fairness: Muin v Refugee Review Tribunal [2002] HCA 30; 90 ALR 601
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr B McManamey, instructed by Moray & Agnew
Respondent:	Mr L Morgan, instructed by KQ Lawyers
ORDERS MADE ON APPEAL:	1. The time for bringing the appeal is extended to 28 November 2017, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011. 2. Leave to appeal is granted, to the extent that it is necessary, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 3. The Certificate of Determination dated 24 October 2017 is amended by deleting the order at [1]. 4. The Certificate of Determination dated 24 October 2017 is otherwise confirmed.

INTRODUCTION

This matter involves an application by a worker for an assessment by an Approved Medical Specialist (AMS) of his level of permanent impairment.[1] The assessment is relevant to whether the threshold for a work injury damages claim is achieved (s 313 of the Workplace Injury Management and Workers Compensation Act 1998 [the 1998 Act]), and whether the worker suffers a degree of permanent impairment greater than 20% (making him a worker with high needs – s 32A of the Workers Compensation Act 1987 [the 1987 Act]).
[1] Application for Assessment by an Approved Medical Specialist, registered 24 April 2017 (Application).

BACKGROUND

Nathaniel Mitchell started working with Lotos Concretors Pty Ltd (Lotos) performing building work, in about 1997. Mr Mitchell, in his statement dated 3 August 2017, identifies three specific injuries he states he suffered in the employ of Lotos:[2]
(a)On 23 June 1997, he twisted his left knee while working on steel in a trench. He suffered a lateral meniscal tear, and underwent an arthroscopic meniscal repair to the knee in November 1997 (performed by Dr Walsh).
(b)He experienced neck and shoulder pain on a number of occasions during the course of the employment. On 3 July 1997, he picked up approximately 10 Y12 bars and balanced them on his right shoulder. He felt burning pain in his neck and right shoulder. Dr Cree operated on his neck in October 2002. This involved laminectomy and fusion at C4/5/6. Dr Mobbs, in November 2013, performed a C6/7 anterior fusion.
(c)In around late September 1998, Mr Mitchell fell into a pier hole and injured his lower back.
[2] Application to Admit Late Documents dated 3 August 2017 (AALD 3.8.17), p 1, [3]–[8], [19], [24].

Previous proceedings

There have been multiple previous claims and Commission proceedings between the parties, associated with Mr Mitchell’s injuries. The details of these proceedings are fundamental to the issues in the current proceedings between Mr Mitchell and Lotos. They were:
(a)Matter No 14501-03. A letter of claim dated 13 March 2003[3] claimed lump sum compensation in respect of 25% loss of use of the left leg at or above the knee, 35% permanent impairment of the neck, and 25% permanent impairment of the back, together with compensation pursuant to s 67 of the 1987 Act in respect of pain and suffering. The letter described the injuries:
[3] Application to Admit Late Documents dated 28 July 2017 (AALD 28.7.17), pp 6–10.
“(a)23 June 1997 – injury to left leg;
(b)As a result of the nature and conditions of his employment with the Respondent he has sustained injuries to his neck and back.”
The letter of claim had attached to it a medical report of Dr Conrad dated 12 February 2003. Dr Conrad’s history identified a twisting injury to the left knee on 23 June 1997. It also referred to neck and back problems. Dr Conrad recorded:
“On close questioning it appears that on the balance of probabilities that his neck problems and back pain which he developed may have developed from the work that he did at Lotus [sic] Concrete.”[4]
[4] AALD 28.7.17, p 8.
Dr Conrad assessed 25% permanent loss of use of the left leg at or above the knee, as a result of injury on 23 June 1997. He assessed 35% permanent impairment of the neck, and 25% permanent impairment of the back, “due to the conditions at work at Lotus Concrete and aggravated by the conditions of work at DC Concrete [a subsequent employer]”.[5]
[5] AALD 28.7.17, p 10.
Dr Bodel examined Mr Mitchell on 22 April 2003 at the request of the GIO, Lotos’s relevant insurer (the insurer). Dr Bodel reported to the insurer on 28 April 2003. The doctor took a history of the twisting injury to the left knee on 23 June 1997. He also took a history of:
“… injury in about July of 1997 when he was lifting a six metre length of steel rod up onto his right shoulder. He developed a burning sensation in the neck and right shoulder and he reported this to his boss.”
And:
“The patient also began to develop increased intermittent lower back pain and this came on when he fell at work in September of 1998. He fell into a pier hole.”[6]
[6] Response to Application for Assessment by an Approved Medical Specialist (Response), p 64.
Dr Bodel assessed 5% permanent loss of the left leg at or above the knee (due to injury on 23 June 1997), 5% permanent impairment of the back (due to injury in September 1998, and 30% permanent impairment of the neck, reduced to 20% due to “constitutional factors”, due to injury “at work, particularly in July of 1997 and the surgery which has followed this”.[7]
[7] Response, p 67.
On 30 April 2003, Mr Mitchell’s solicitors responded to a request for particulars of the lump sum claim, by the insurer. In response to a question “When is the injury alleged to have occurred?”, the solicitors responded:
“(i)     Injury to left knee – 23 June 1997.
(ii)Injury to neck – nature and conditions of employment and frank injury on 3 July 1997 and 30 January 1998.
(iii)Injury to back – nature and conditions of employment and September 1998.”
The particulars included descriptions of the injuries on 23 June 1997 (to the left knee) and 3 July 1997 (to the neck) which are generally consistent with later statements and medical histories.[8]
[8] AALD 3.8.17, Ex ‘G’.
An agreement pursuant to s 66A of the 1987 Act was registered in the Commission,[9] in accordance with the legislation at the time. The agreement gave its date as 18 August 2003. A letter from the Commission confirming the registration was dated 10 September 2003.[10] The agreement provided for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 15% permanent impairment of the back, 20% permanent impairment of the neck, and 15% loss of use of the left leg at or above the knee. It also provided for a sum pursuant to s 67 for pain and suffering. The Application to Register the Agreement gave a single date of injury, 23 June 1997.
[9] AALD 28.7.17, pp 11–14.
[10] Application, Commission letter dated 10 September 2003.
(b)Matter No 227-04. An Application to Resolve a Dispute (ARD), claiming continuing weekly compensation from 22 July 2002, and medical expenses, was registered on 7 January 2004.[11] It described matter no 14501-03 as a prior related claim. It nominated a single date of injury, 23 June 1997. The description of how the injury occurred described the injury as twisting the left knee whilst working in a trench. It also said:
[11] AALD 28.7.17, pp 25–32.
“As a result of the nature and conditions of employment with Lotos Concretors Pty Limited I sustained injuries. On 22 October 2002 the Applicant had a cervical fusion on his neck.”
A Certificate of Determination – Consent Orders was issued by the Commission on 23 April 2004.[12] It contained a consent order that Lotos pay Mr Mitchell’s costs as agreed or assessed. It also noted an agreement between the parties:
[12] AALD 28.7.17, p 33.
“(i)that Lotos make compensation payments of $200 per week pursuant to s 40 of the 1987 Act in its then form, from 22 July 2002 to date and continuing, subject to Mr Mitchell cooperating with injury management to be provided by the GIO, and
(ii)noting that Lotos had “never denied liability for Section 60 expenses and will consider any amounts that are outstanding.”
(c)Matter No 6007-10. An ARD claiming continuing weekly compensation from 22 July 2004, and medical expenses, was registered on 27 July 2010.[13] The injury description was:
[13] AALD, 28.7.17, pp 34–41.
“Lateral meniscal injury to left knee, cervical disc prolapse (C4/5 and C5/6 protrusions) requiring cervical fusion in 2002, chronic pain condition of neck and back.”
This ARD nominated a single date of injury, 23 June 1997. It described an injury when Mr Mitchell’s left knee was twisted when he was working with steel in a trench. It continued:
“The applicant further injured his cervical spine and lower back in September 1998 requiring a laminectomy and neck fusion when steel bars being loaded by the applicant fell on his shoulder.”
There are handwritten Heads of Agreement dated 26 October 2010,[14] and a Certificate of Determination – Consent Orders (in consistent terms) issued by the Commission, dated 27 October 2010.[15] There was a consent order that Lotos pay Mr Mitchell’s costs as agreed or assessed. An agreement between the parties was noted, that Lotos would pay voluntary weekly compensation at $300 per week from 24 April 2004 to 24 September 2009, and then at the maximum statutory rate for a worker without dependents (fixed pursuant to s 36 of the 1987 Act in its then form) on a continuing basis from 26 February 2010. Lotos was to have credit for payments made, and Mr Mitchell conceded that on payment of these sums, he had received his full weekly entitlement to date.
[14] AALD 28.7.17, p 42.
[15] AALD 28.7.17, p 44.
(d)Matter No 3477-13. An ARD was registered on 27 February 2013,[16] seeking orders that Lotos pay for the cost of surgery, and associated expenses, involving C6/7 anterior decompression and disc replacement, recommended by Dr Mobbs. The ARD nominated a single date of injury, 23 June 1997. The description of how the injury occurred was the same as in matter no 6007-10. It described the left knee injury in a trench, and injury to the cervical spine and lower back in September 1998.
[16] AALD 28.7.17, pp 45–52.
The Commission referred the matter to Dr Davies, an AMS, for opinion on whether the treatment was “reasonably necessary as a result of the injury that occurred on 23 June 1997”. Dr Davies furnished a Medical Assessment Certificate (MAC) dated 10 June 2013.[17] The MAC recorded a history of injury on 23 June 1997, when a “bundle of steel rods dropped one to two feet onto his right shoulder”, with “immediate onset of pain in the shoulder and pain and tingling in the right hand”. There was a history of ongoing pain in the right neck, scapula and upper limb, and ultimately, the two level laminectomy and posterior fusion performed by Dr Cree in October 2002. Dr Davies took a history of “previous or subsequent accidents, injuries or condition”. He recorded a lower back injury at work in 1998, when Mr Mitchell was carrying steel rods on his shoulder and his right leg went into a pier hole. He recorded that “Mr Mitchell had surgery on his left knee in 1997 for a work-related injury”. Dr Davies concluded that “further investigations should be undertaken before further surgery is considered at C6/7”. He said that if investigations confirmed “C6/7 as a significant pain generator, the need for surgery can reasonably be related to the injury in June 1997”.[18]
[17] Application, Dr Davies’s MAC.
[18] Dr Davies’s MAC, p 8.
On 19 November 2013, the Commission issued a Certificate of Determination – Consent Orders.[19] The orders provided that Lotos was to pay the cost of the “C6/7 anterior cervical fusion and M6 disc replacement”, and associated expenses, as recommended by Dr Mobbs and Dr Davies.
[19] AALD 28.7.17, p 53.
(e)Matter No 475-15. An ARD was registered on 2 February 2015,[20] claiming lump sum compensation in respect of 48% permanent impairment of the neck, and 12% loss of use of the right arm at or above the elbow, together with compensation for pain and suffering. The printed form, at [2.4], provided for the insertion of “details of awards or settlements received in relation to this injury”. The following was inserted:
[20] AALD 28.7.17, pp 54–61.
“Copy of s. 66A Lump Sum Agreement dated 10 September 2003 for 227-04 [sic] is annexed, with COD 6007/10 & Medical Assessment Certificate for 003477/13”.
The date of injury was nominated as “July 1997”. The injury description provided was:
“Spinal injury with intervertebral disc prolapse at C4/5 and C5/6 protrusions level [sic] requiring cervical fusion in 2002 related deterioration requiring further C6/7 anterior cervical discectomy and fusion in November 2013. Related radiculopathy subsequent to the surgical interventions in the right arm.”
The description of how the injury occurred was:
“The Applicant sustained the initial injury to his neck when he lifted a bundle of long steel bars and 6m long and about 15mm in diameter whilst in the employ of the Respondent. The bundle of steel bars was dropped onto the top of his right shoulder and he felt immediate pain a[t] the right side of his neck and shoulder. The injury to his right arm is related radiculopathy subsequent to his surgical interventions.”
The matter was referred to an AMS, Dr Davis, for assessment of the degree of permanent impairment. Dr Davis’s Amended MAC was dated 4 June 2015. The date of injury was recorded as 3 July 1997. The “brief history of the incident/onset of symptoms” recorded:
“In the process of lifting a bundle of six metre length steel reinforcing rods (approximately 150 kg) onto his right shoulder, Mr Mitchell felt a sudden ‘burning type pain’ in the right shoulder and right side of the neck.”
The MAC certified 44.4% permanent impairment of the neck, which after a 1/10 deduction for “pre-existing injury, abnormality or condition” yielded 40% permanent impairment of the neck. The MAC certified 15% loss of efficient use of the right arm at or above the elbow, to which no deduction applied.
The Commission issued a Certificate of Determination dated 3 June 2015. It is the subject of controversy in this appeal. It provided:
“The Commission orders:
1. That the respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) resulting from injury in July 1997:
(a)    $8,000 in respect of a further 20% permanent impairment of the neck;
(b)    $12,000 in respect of 15% permanent loss of the efficient use of the right arm at or above the elbow.
2. Liberty to restore the proceedings after 28 days from issue of this determination if the parties are unable to resolve the applicant’s section 67 entitlement.
Brief statement of reasons
3.     The Medical Assessment Certificate dated 29 April 2015 certifies, for injury in July 1997;
(a)40% permanent impairment of the neck, compensable as $16,000;
(b)15% permanent loss of the efficient use of the right arm at or above the elbow, compensable as $12,000.
4. The applicant was previously paid, for injury in July 1997, in accordance with the Section 66A Agreement dated 10 September 2003:
(a)$8,000 in respect of 20% permanent impairment of the neck;
5. Therefore the applicant is entitled to, as lump sum compensation under section 66 of the 1987 Act resulting from injury in July 1997:

(a)$8,000 in respect of a further 20% permanent impairment of the neck;
(b)$12,000 in respect of 15% permanent loss of the efficient use of the right arm at or above the elbow.

6. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
The Commission issued a Certificate of Determination – Consent Orders dated 27 July 2015. These provided for a consent order in the sum of $15,000 pursuant to s 67 of the 1987 Act in respect of further compensation for pain and suffering.
The orders in matter no 475-15 were not appealed by either party.

The threshold dispute

As the provision for payment of lump sum compensation to Mr Mitchell related to injury prior to 1 January 2002, assessment of his entitlements pursuant to s 66 of the 1987 Act was pursuant to the Table of Disabilities, and did not involve assessment of ‘permanent impairment’ as provided by s 151H of the 1987 Act and Pt 7 of Ch 7 of the 1998 Act.[21] Mr Mitchell’s solicitors wrote to the insurer, initially on 16 September 2011, seeking a concession that Mr Mitchell had “sustained injury in excess of 15% whole person impairment” (WPI).[22] The insurer declined to make that concession,[23] on that occasion and in response to subsequent requests.
[21] Section 151H(4) of the 1987 Act.
[22] Application to Admit Late Documents dated 19 June 2017 (AALD 19.6.17).
[23] AALD 19.6.17, annexure ‘B’.
Mr Mitchell was assessed at his solicitors’ request by Dr Patrick, surgeon, who reported on 11 July 2014. Dr Patrick took a history of the three incidents, on 23 June 1997 (to the left knee), July 1997 (to the right shoulder and neck) and December 1998 (to the lower back). He noted the prior lump sum settlement in September 2003, involving the back, neck and left leg. He assessed WPI “in respect of all relevant injuries” at 39%. This involved assessment in respect of the cervical spine, lumbar spine, left lower extremity and surgical scarring. The cervical spine was assessed at 32% whole person impairment.[24] Mr Mitchell made a claim for lump sum compensation in respect of 39% WPI, on 14 July 2014, at the same time requesting a concession that whole person impairment was greater than 15%. On 29 July 2014 the insurer advised him that the claim should be brought within the Table of Disabilities, and that the injury to the back in September 1998 was outside its period of risk. On 1 September 2014 Mr Mitchell made a reformulated claim under the Table of Disabilities for 48% permanent impairment of the neck, 12% loss of use of the right arm at or above the elbow, and 12% permanent impairment of the back.[25]
[24] Application, Dr Patrick’s report dated 11 July 2014.
[25] AALD 19.6.17, annexures ‘E’, ‘F’, ‘G’ and ‘J’.
Given the refusal of Lotos to concede permanent impairment of 15%, there was a ‘threshold dispute’, which prevented Mr Mitchell from serving a pre-filing statement or commencing court proceedings for the recovery of work injury damages, unless his permanent impairment was assessed by an AMS under Pt 7 of Ch 7 of the 1998 Act.[26]
[26] Sections 313 and 314 of the 1998 Act.

THE ARBITRAL PROCEEDINGS AND SUBMISSIONS

Mr Mitchell’s Application in the current proceedings was registered on 24 April 2017. It requested referral for assessment of permanent impairment, for the purposes of the threshold dispute for a work injury damages claim, and also to establish whether the degree of permanent impairment is more than 20% (worker with high needs – s 32A of the 1987 Act). It pleaded injury in “July 1997”, when Mr Mitchell lifted a bundle of steel bars which dropped onto his right shoulder, injuring his neck, with related radiculopathy in the right arm.[27] Lotos, in its Response to the Application, stated:
“The defendant disputes that the injury alleged in to have occurred in [sic] July 1997 occurred, and in the alternative, says that if the alleged injury did occur it did not result in injury to the body systems specified in Part 1 of the Application filed in this matter.”[28]
[27] Application, Pt 4.
[28] Response, Pt 1.
The solicitors for Lotos wrote to Mr Mitchell’s solicitors on 28 July 2017, advising that, at the arbitration hearing, Lotos would request:
(a)That the Certificates of Determination dated 3 June 2015 and 27 July 2015 (in matter no 475-15) be reconsidered pursuant to s 350(3) of the 1998 Act on the grounds that:
(i)    The Certificate dated 3 June 2015 at [4] stated that the complying agreement dated 19 August 2003 related to injury in July 1997, whereas it was stated that it related to injury on 23 June 1997, and
(ii)    Mr Mitchell, consistent with the evidence, injured only his right [sic, left] knee on 23 June 1997.
(b)That the MAC dated 4 June 2015 (in matter no 475-15) be reconsidered pursuant to    s 329 of the 1998 Act on the ground that the injury alleged on 3 July 1997 did not occur.
The matter was listed for arbitration hearing on 11 August 2017. Mr Morgan appeared for Mr Mitchell, and Mr McManamey for Lotos. The matter proceeded on the basis of the written material, there were no applications to adduce oral evidence or to cross-examine.
Mr McManamey submitted that the Certificates of Determination in matter no 475-15 were “unequivocally wrong”. They proceeded on the basis that the s 66A agreement dated 10 September 2003, in respect of permanent impairment of the neck, resulted from injury in July 1997, whereas it was “in respect of an injury on 23 June 1997”. He submitted that “once one concedes that, then the Certificate of Determination can be set aside”. The Certificate of Determination then became a nullity. There was then “a very clear and serious dispute of that injury on 3 July 1997”.[29] Mr McManamey submitted that Lotos was not estopped from “disputing injury for the purposes of a work injury damages dispute … by any of the earlier proceedings because they’re all based on a different injury, a different injury date”.[30] He submitted “What is in particulars and other material at that time is all very interesting but these matters are determined by the pleadings and the orders”, “[i]t wouldn’t matter what was in the particulars”, and “[t]he document itself is the end of the story”.[31]
[29] T24.32–25.29.
[30] T28.27–29.
[31] T29.16–30.4.
Mr McManamey submitted that, if Lotos was estopped by the orders in matter no 475-15, Mr Mitchell was also estopped by the s 66A agreement in matter no 14501-03 (which was based on a date of injury of 23 June 1997) and the orders in matter no 3477-13. Reference was made to CSR Limited v Gonzales[32] regarding estoppels and s 66A agreements.
[32] [2010] NSWWCCPD 118 (Gonzales).
Mr Morgan referred to other material. Mr Mitchell’s then solicitors, on 30 April 2003, gave particulars in respect of his initial lump sum claim which were generally consistent with the history of injuries summarised at [2] above.[33] The insurer was in possession of a report it had commissioned from Dr Bodel dated 28 April 2003. It too recorded a history of the injuries generally consistent with the summary at [2] above.[34] Mr Morgan described the nomination of a single injury date, 23 June 1997, in the s 66A agreement, as an error which “compounded as the years progressed”.[35] He submitted that the basis for the s 66A agreement was “the particulars that were supplied, and clearly the opinion of Dr Bodel dealing with the issue of injury and the consequences of injury”.[36]
[33] T33.16–34.8.
[34] T34.26–36.2
[35] T36.24–25.
[36] T37.30–33.
The Arbitrator made orders for the lodgment of written submissions. Those of Lotos were dated 24 August 2017, and Mr Mitchell’s were dated 14 September 2017.
Lotos submitted that it was immaterial that the particulars “ascribed different injury dates to the left knee, neck and back”. The s 66A agreement was prepared by Mr Mitchell’s solicitors and “speaks for itself”.[37] Lotos submitted that all of the prior “proceedings were in respect of an injury on 23 June 1997”. It submitted:
“It is apparent that the insurer made the same error or oversight as made by the Arbitrator, which was that the 2015 proceedings were in respect of the same injury which had been the subject of the earlier proceedings and agreements. That was clearly not the case.”[38]
[37] Lotos’s arbitral submissions, [4].
[38] Lotos’s arbitral submissions, [10].
Lotos submitted that it was first necessary to set aside the Certificate of Determination dated 3 June 2015. It contained a “clear and demonstrable error” which can be dealt with under the reconsideration power (citing Inghams Enterprises Pty Ltd v Rachmaninoff (No 2)[39]). Once that Certificate is set aside, it is necessary to determine the liability issue going to the injury on 3 July 1997. Subject to the injury being established, it is then necessary that the matter be referred again to the AMS, as he was not “aware that the settlement in 2003 was in respect of an earlier injury and that the need for the second operation in 2013 resulted from that earlier injury”.[40]
[39] [2011] NSWWCCPD 61, [12].
[40] Lotos’s arbitral submissions, [13].
Lotos asked rhetorically whether, if the Certificate of Determination dated 3 June 2015 were not set aside, it would be estopped from disputing injury with respect to a threshold dispute. It cited J C Equipment Hire Pty Ltd v Registrar, Workers Compensation Commission (NSW),[41] for the proposition that resolution of a claim for permanent impairment at 16% did not prevent an employer disputing that the threshold for work injury damages was satisfied. The agreement by Lotos not to dispute liability, in the 2015 proceedings, was in respect of a claim under the Table of Disabilities, and did not prevent it from disputing the s 151H threshold.
[41] [2008] NSWCA 43; 5 DDCR 403 (JC Equipment Hire).
Lotos made submissions going to whether the Commission would be satisfied that Mr Mitchell suffered injury as alleged on 3 July 1997. There were inconsistencies in the history of injury recorded by Dr Conrad. The incident did not form the basis of the claims brought in 2004 and 2010. The first proceedings which referred to injury on 3 July 1997 were those filed in 2015. There were no medical reports prior to 2003 which referred to such an injury. The treating doctors did not record a history of it. Lotos referred to its lay statements, which it submitted were inconsistent with the alleged injury.
If, contrary to its submissions on ‘injury’, the matter was being referred to an AMS in respect of injury on 3 July 1997, Lotos submitted the AMS should be told it had to be accepted that Mr Mitchell suffered a prior neck injury, resulting in 20% permanent impairment of the neck, and also resulting in the surgery performed in November 2013. These matters had to be taken into account in considering the applicable deduction pursuant to s 323 of the 1998 Act.[42]
[42] Lotos’s arbitral submissions, [32].
Written submissions, by Mr Morgan, were lodged on Mr Mitchell’s behalf, dated 14 September 2017. The submissions noted that Lotos, when it raised the threshold dispute in its solicitors’ letter dated 22 February 2016, did not dispute the occurrence of the injury in July 1997. Mr Mitchell’s solicitors gave further particulars (which included the specific event on 3 July 1997) on 22 March 2016. The issue of ‘injury’ was first raised in a s 74 notice issued on Lotos’s behalf dated 12 June 2016. Mr Morgan submitted that Lotos sought the Commission’s indulgence, to reconsider the decision dated 3 June 2015, and then to raise ‘injury’ as an issue. Mr Morgan referred to Mr Mitchell’s letter of claim dated 13 March 2003, and to the particulars provided to the GIO on 30 April 2003. Each referred to injury to the neck, separately to the left knee injury on 23 June 1997, and the particulars referred specifically to the neck injury occurring on 3 July 1997. Dr Bodel’s history, in his report dated 28 April 2003, commissioned by the insurer, also contained a history of the neck injury lifting lengths of steel in July 1997.[43]
[43] Mr Mitchell’s arbitral submissions, pp 2–3.
Mr Morgan, while accepting that the s 66A agreement nominated a single date of injury, 23 June 1997, submitted this was an error. The agreement provided for payment of compensation with respect to 20% permanent impairment of the neck, consistent with Dr Bodel’s assessment of the permanent neck impairment resulting from the injury in July 1997. The claim number referenced in the agreement is the same as that on the particulars dated 30 April 2003 furnished by Mr Mitchell’s then solicitors, which specified an allegation of the neck injury on 3 July 1997.[44]
[44] Mr Mitchell’s arbitral submissions, p 4.
Mr Morgan referred to the subsequent claims and proceedings which are summarised above. In relation to the claim in matter no 3477-13 for the cost of further neck surgery, Dr Davies, an AMS, recorded a history of neck injury on 23 June 1997, but the circumstances were those of the incident alleged to have occurred on 3 July 1997.
In the Application in matter no 475-15 (which related only to the neck injury), the injury was pleaded as occurring in July 1997, and the incident was pleaded as one lifting a bundle of long steel bars. Dr Patrick’s report (on which the claim was based) recorded a history consistent with this. The various earlier proceedings, including that for registration of the s 66A agreement in 2003, were referred to as being “awards or settlements received in relation to this injury”.[45] This description was not disputed in the Response lodged on behalf of Lotos. The referral to Dr Davis, an AMS, was for assessment of permanent impairment of the neck and loss of use of the right arm at or above the elbow, resulting from injury in July 1997. Dr Davis recorded a date of injury of 3 July 1997, and the incident as involving lifting of a bundle of steel rods on his right shoulder.
[45] AALD 28.7.17, pp 55 and 58.
It was submitted that the submission by Lotos, that the s 66A agreement must be looked at in isolation, was incorrect. Mr Morgan, in his written submissions before the Arbitrator, dealing with the estoppel argument, specifically noted that the “Commission is expressly empowered to act without regard to technicalities”.[46] This was a reference to s 354 of the 1998 Act. Particulars were provided, and Lotos had, at the time, a report of Dr Bodel setting out a history consistent with the particulars. Mr Mitchell’s submissions accepted that the principles in Samuel v Sebel Furniture Limited[47] applied to a reconsideration application pursuant to s 350(3) of the 1987 Act. The discretion was wide, and the decision dated 3 June 2015 was of a type that could be reconsidered. However, exercise of the discretion must have regard to the overall circumstances. The determination by Arbitrator Farrell, of the effect of the s 66A agreement, was to treat the relevant part of the payment by the insurer as being “with respect to the one injury to the cervical spine which occurred in July 1997, there is no evidence to suggest anything to the contrary”. The insurer then made a payment of lump sum compensation, consistent with Arbitrator Farrell’s orders in matter no 475-15. There were clear administrative errors on both sides, the Commission is “not a place of strict pleading”, the Commission should “view the circumstances of the matter in an overall fashion”.[48]
[46] Mr Mitchell’s arbitral submissions, p 12.
[47] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel), [58].
[48] Mr Mitchell’s arbitral submissions, p 11.
Mr Morgan said that Lotos had not taken any issue with respect to the date of injury, from 2002 to 2016. Lotos sought the exercise of a discretion in its favour. There was no explanation of the delay. Over those years the GIO had “paid lump sum compensation (twice), funded two substantial bouts of surgery, and engaged with [Mr Mitchell] on numerous occasions in the Commission without any demur as to the date of injury”. There was no suggestion of new evidence, the real history had been known to the insurer through its medical report from Dr Bodel, going back to 2003. There is a valid interest in the finality of litigation. There were repeated errors by both sides in the pleadings; doing justice between the parties was not achieved by reconsidering the decision dated 3 June 2015, as requested by Lotos.[49]
[49] Mr Mitchell’s arbitral submissions, pp 11–12.
Mr Morgan submitted that the Commission is specifically empowered to act without regard to technicalities. He submitted that, given Lotos’s submission to the award dated 3 June 2015, it was estopped from arguing that injury occurred “other than as determined by the arbitrator”. Mr Morgan referred to Lambidis v Commissioner of Police.[50] He submitted that Lotos had previously unreasonably refrained from raising the defence it now sought to agitate. Mr Morgan also referred to Bouchmouni v Bakhos Matta t/as Western Red Services.[51] He submitted that it was “clearly open to the Commission to have regard to material intimately associated with the s 66A agreement to give sense to that agreement.
[50] (1995) 37 NSWLR 320 (Lambidis), 322E–F.
[51] [2013] NSWWCCPD 4; 14 DDCR 223 (Bouchmouni), [37]–[47].
Mr Morgan submitted that, if his estoppel argument was not accepted, the payments of compensation should still be seen as an admission, relevant to acceptance of the fact of injury. Lotos relied on statements of witnesses taken in 2016, when Lotos had known the identity of the witnesses since 2003. Their recollections would have paled. There was no explanation of why enquiries were not made at an earlier time, in circumstances where significant compensation was paid. Mr Mitchell’s case on injury should be accepted. The GIO’s payment for the cost of Mr Mitchell’s cervical spine surgery could only have been on the basis of acceptance of the occurrence of a cervical spine injury.

THE ARBITRATOR’S DECISION

The Commission issued a Certificate of Determination dated 24 October 2017, accompanied by 20 pages of reasons.[52]
[52] Mitchell v Lotos Concretors Pty Ltd [2017] NSWWCC 249 (the Arbitral decision).
The Arbitrator said it became obvious that Lotos needed to seek reconsideration of the decision dated 3 June 2015, in order to establish its defence. He granted leave for a reconsideration to be sought.[53]
[53] Arbitral decision, [8].
The Arbitrator referred to circumstances surrounding the 2003 complying agreement, including how the letter of claim dated 13 March 2003 described the injuries relied on, the particulars supplied to the GIO dated 30 April 2003, the history recorded in Dr Conrad’s report dated 12 February 2003 (on which the claim was based), and the history recorded in Dr Bodel’s report dated 28 April 2003 (obtained by the insurer prior to the complying agreement).[54] The Arbitrator summarised the pleadings going to ‘injury’, in matters numbered 227-04 and 6007-10. He referred also to the obtaining of further reports by the parties from Drs Conrad and Bodel.[55]
[54] Arbitral decision, [14]–[22].
[55] Arbitral decision, [26]–[35].
The Arbitrator referred to the pleadings and surrounding circumstances in matter no 3477-13 (relating to the cost of the second surgical procedure carried out to Mr Mitchell’s cervical spine). The date of injury was described as 23 June 1997. Consent orders were made for payment of the cost of this surgery, which was performed by Dr Mobbs on 29 November 2013. Dr Patrick assessed Mr Mitchell and reported on 11 July 2014. He took a more detailed history of the incident involving the neck in July 1997.[56]
[56] Arbitral decision, [37]–[42].
The Arbitrator referred to the further claim for lump sum compensation, based on Dr Patrick’s assessments, which gave rise to matter no 475-15. He noted that Lotos obtained further reports from Dr Bodel dated 3 November 2014 and 28 January 2015, “both of which confirmed that the injury to the neck occurred on 3 July 1997”. The date of the neck injury was pleaded as being in July 1997. He said that “[i]n the absence of any dispute as to liability” Mr Mitchell was assessed by an AMS, Dr Davis, regarding permanent impairment of the neck and permanent loss of use of the right arm at or above the elbow. The date of injury referred to the AMS was July 1997.[57] The Arbitrator said that the orders made in the Certificate of Determination dated 3 June 2015 were not appealed, nor were they the subject of any reconsideration application, until that made at the arbitration hearing of the matter currently under appeal.[58]
[57] Arbitral decision, [43]–[49].
[58] Arbitral decision, [52].
The Arbitrator referred to the circumstances and history of the current application, for referral to an AMS of the threshold dispute. He summarised the parties’ submissions.
The Arbitrator observed that it had always been alleged that Mr Mitchell injured his neck on a date other than 23 June 1997, that date related to the left knee injury only. The injury date of 23 June 1997, in the complying agreement, resulted from “mistake or oversight by a legal advisor, in drafting the complying agreement dated 10 September 2003. This was perpetuated in subsequent proceedings, prior to Matter No 475-15, in which the injury date of July 1997 was nominated. The referral to an AMS, and the Certificate of Determination in those proceedings, “reflected that injury date”. The previous orders of the Commission did not refer to a date of injury, and were “all Consent Orders”. The MAC in matter no 3477-13 did refer to 23 June 1997 as the date of injury, but it was a general referral to an AMS, and was not binding. The evidence of both parties, throughout, was consistent, “the neck injury did not occur on 23 June 1997”.[59]
[59] Arbitral decision, [76]–[79].
Lotos had paid “lump sum compensation on two occasions with regard to [Mr Mitchell’s] neck injury”, and Mr Mitchell underwent neck surgery on two occasions. The Arbitrator said there was “no doubt” that Mr Mitchell had “acted to his detriment in reliance upon the conduct of the insurer”. The Arbitrator said it was “probable that the conduct of [Lotos] has created an estoppel in pais”. He referred to Commonwealth v Verwayen.[60] The Arbitrator said there were questions regarding whether Lotos, through its conduct, was estopped from asserting that the neck injury occurred on 23 June 1997, or denying that it occurred in July 1997. He said the detriment suffered by Mr Mitchell was a “relevant consideration” in dealing with the application by Lotos for reconsideration of the Certificate of Determination dated 3 June 2015. He said “[t]he Complying Agreement was not intended by the parties to indicate an agreed fact that the injury to [Mr Mitchell’s] neck occurred on 23 June 1997.”[61]
[60] [1990] HCA 39; 170 CLR 394 (Verwayen).
[61] Arbitral decision, [83]–[84].
The Arbitrator quoted the principles summarised in Samuel, dealing with reconsiderations.[62] He then dealt, seriatim, with issues which he regarded as relevant to the merits of the reconsideration application.
[62] Arbitral decision, [86], quoting Samuel at [58].
The Arbitrator was not satisfied that the Certificate of Determination dated 3 June 2015 resulted from error or oversight on behalf of the insurer. The “most cursory preparation” would have shown the neck injury was never alleged to have occurred on 23 June 1997. The insurer did not dispute liability, it did not object to the terms of the referral to an AMS, when the Certificate of Determination was issued, it did not seek a reconsideration or appeal. There was no evidence that this was due to error or oversight. It was consistent with realisation, on the insurer’s part, that there was error in the failure, in the 2003 complying agreement, to include a second date of injury, for the neck. The failure by the insurer to dispute the neck injury was consistent with not denying the injury then pleaded in July 1997, as “a cost-effective way” of admitting the earlier error.[63]
[63] Arbitral decision, [88]–[91].

The Arbitrator said the evidence challenging liability on the basis of ‘injury’ was not fresh. Lotos had been aware since 2003 that it was alleged that the neck injury resulted from the ‘nature and conditions of employment’, together with an incident on 3 July 1997. It had a statement from one of its witnesses, Ms Connor-Haines, from February 2004. It could have, at that time, also interviewed the other witnesses it now seeks to rely on, both were working with Mr Mitchell at relevant times. The description of the neck claim, in the letter of claim dated 13 March 2003, was “sufficiently nebulous” that a reasonably competent officer of the insurer should have made enquiries about it. By the time the complying agreement was entered into, there was sufficient evidence to justify a denial of liability. There was now a danger of the evidence of witnesses being “contaminated by reconstruction”.[64]
[64] Arbitral decision, [93]–[95].
The Arbitrator referred to Port of Melbourne Authority v Anshun Pty Ltd[65] and Lambidis. He said that the insurer was involved in three claims after the date of the complying agreement. The error in the injury date was apparent from 2003. He said that with due diligence, the claim should have been declined from that time, and Lotos “unreasonably refrained from doing so when it had the opportunity in each proceedings up until Matter No 000475/15, when the error was corrected”. The Arbitrator said that Lotos was “prevented from now asserting that [Mr Mitchell] injured his neck on 23 June 1997”. He also said that the failure by Lotos to raise the issue of injury to the neck in matter no 475-15, prevented Lotos from “raising it now”.[66]
[65] [1981] HCA 45; 147 CLR 589 (Anshun).
[66] Arbitral decision, [96]–[98].
The Arbitrator said that Lotos was subject to estoppel by conduct. It “was aware of the true nature of [Mr Mitchell’s] injury and took no steps to regularise his entitlement until Matter No 000475/15”. The “application to reconsider was made without notice and during the hearing”. It “permitted an error to be perpetuated which was prejudicial to Mr Mitchell’s entitlements, and then sought to enforce an estoppel in that regard”. Mr Mitchell proceeded with surgery on the GIO meeting the cost; if Lotos were correct, Mr Mitchell “could be liable to repay monies paid on his behalf”.[67]
[67] Arbitral decision, [99].
The Arbitrator said that the Certificate of Determination Lotos sought to reconsider was dated 3 June 2015; the reconsideration application was not made until 11 August 2017, at the arbitration hearing. No explanation was made for the delay in seeking the reconsideration. “In the context of the facts of this case, this delay itself is fatal.”[68]
[68] Arbitral decision, [100].
The Arbitrator referred to the desirability of there being finality to litigation. “[T]he orders made in Matter No 000475/15 removed the prospect of unnecessary litigation proceeding on the very issues that the respondent now seeks to raise”.[69] The “error upon which this saga commenced was caused by a mistake or oversight by the legal adviser responsible for ensuring that the contents of the Complying Agreement reflected the terms agreed”.[70]
[69] Arbitral decision, [101].
[70] Arbitral decision, [102].
The Arbitrator dealt with “justice between the parties”. Lotos suggested that, if the reconsideration application succeeded, the AMS would need to reassess Mr Mitchell. It would be necessary to assess permanent impairment resulting from injury to the cervical spine in July 1997, and then “make a deduction for the fictional prior injury of 23 June 1997 which [Mr Mitchell] would have been estopped from denying”. It was difficult to conceptualise how the AMS, who “is required to deal with fact rather than fiction”, would undertake this task.[71]
[71] Arbitral decision, [105].
The Arbitrator said he disagreed that the decision in JC Equipment Hire enabled the question of liability to be aired before him, referring to a passage in the judgment of Tobias JA.[72] The Arbitrator said the issue before him was whether Mr Mitchell was assessed “with a sufficient permanent impairment percentage to pass through the gateway to a common law action”.[73]
[72] JC Equipment Hire, [70].
[73] Arbitral decision, [106]–[108].
In conclusion, the Arbitrator rejected the application by Lotos to reconsider the Certificate of Determination dated 3 June 2015, save for one matter. He said that Order 4 of that document was misleading, and should be amended to reflect his findings. He ordered that, after the words “July 1997”, the phrase “(wrongly dated 23 June 1997)” be added. He remitted the matter to the Registrar, for referral to an AMS, to assess whole person impairment pursuant to s 313 of the 1998 Act, and also for assessment of whether the degree of permanent impairment is more than 20%. The referral was on the basis of a nominated date of injury of “July 1997”. It was ordered that the referral include a note to the AMS, that “the above statement of reasons confirms that the date of injury for the injury to the neck is July 1997”.[74]
[74] Arbitral decision, [109]–[112].

HEARING OF THE APPEAL

Lotos sought an oral hearing. It submitted the matter involves “determination of a question of law which has not been considered by a Presidential member concerning the jurisdiction to hear the appeal”. It also submitted the matter raises complex issues regarding the Arbitrator’s decision. Mr Mitchell submitted the matter could be determined on the papers. Particularly in light of the threshold and jurisdictional issues, the matter was listed for oral hearing on 4 April 2018. Mr McManamey, instructed by Mr Harris, appeared for Lotos, and Mr Morgan appeared for Mr Mitchell.

THRESHOLD MATTERS

Time

The Arbitrator’s decision was dated 24 October 2017. The Application to Appeal Against Decision of Arbitrator (the appeal) was registered on 28 November 2017, outside the period of 28 days within which an appeal can be made, in compliance with s 352(4) of the 1998 Act. If the appeal is to be made, it requires an extension of time pursuant to r 16.2(12),[75] which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
[75] Workers Compensation Commission Rules 2011 (the Rules).

Lotos’s submissions on time

Lotos’s submissions state that it sent an advice regarding the arbitral decision to the insurer on 30 October 2017. On 2 November 2017, the insurer requested that an advice be obtained from counsel; the appellant’s solicitors received counsel’s advice on 13 November 2017, and forwarded it to the insurer on 16 November 2017. It was then necessary that the insurer obtain approval from Insurance and Care NSW (iCare). That approval was sought on 17 November 2017, and given on 20 November 2017. Counsel was asked to prepare submissions, which were received by the insurer at 7pm on 21 November 2017. The submissions state there was “then a miscommunication with counsel that resulted in the appeal not being lodged at that time”. When the matter was reviewed on 27 November 2017, it was realised that the appeal had not been lodged. Further submissions were then required to seek an extension of time. The appeal was registered on 28 November 2017.
Lotos submits the appeal is one week out of time, and the respondent, Mr Mitchell, is not prejudiced. Lotos submits that it would be prejudiced if time is not extended, the appeal relates to a threshold dispute for claiming work injury damages, with a potential economic loss claim extending from 1997. The nature of the appeal (involving a threshold dispute) made it necessary that counsel’s advice be sought. Whilst not conceding that the appeal is from an interlocutory decision, Lotos submits that an appeal could be brought later in any event, when final orders are made following an AMS assessment. Thus, there is no utility in not granting an extension.[76] Lotos refers to Alexandru v State Rail Authority of NSW,[77] in which Fleming DP applied Gallo v Dawson.[78]
[76] Appellant’s submissions, [1]–[5].
[77] [2004] NSWWCCPD 54, [19]–[22].
[78] [1990] HCA 30; 93 ALR 479; 64 ALJR 458.

Mr Mitchell’s submissions on time

Mr Mitchell states that he does not dispute Lotos’s chronology, nor the applicable principles. Mr Mitchell submits the extension should not be granted because “the appeal has no merit”.

Consideration

The applicable principles, taken from Gallo v Dawson, were summarised by Roche DP in Allen v Roads and Maritime Services as involving the need to have regard to the following:
“(a)    the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[79]
[79] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd, the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a)     the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success on the proposed appeal.”[80]
[80] [2014] NSWCA 34, per Basten JA (Beazley P and Leeming JA agreeing), [9].
Additionally, a Presidential member, dealing with an application to extend the time pursuant to r 16.2(12), is required to consider the presence of ‘exceptional circumstances’, as “a matter within jurisdiction as opposed to a precondition”.[81]
[81] Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce), per Allsop P (Beazley and Giles JJA agreeing), [8].
The chronology of events leading to the lodgment of the appeal does not demonstrate any individual matter that was responsible for it being out of time. Some things may have occurred more promptly in a perfect world, but there is no particular event or lack of diligence that can be readily identified as causative. The steps involved, in instructions being obtained from the insurer to appeal, took perhaps greater than usual time, due to the insurer’s need to obtain an advice from counsel, and then to seek approval from iCare. There are gaps in the explanation. Lotos submits there was a “miscommunication”, which is not identified, which resulted in the appeal not being lodged promptly, after draft documents were received from counsel on 21 November 2017. Other than to state that counsel and the solicitor were “otherwise engaged”, there is no real explanation for why the appeal was not then lodged until 28 November 2017. In any event, the delay (which was one week) was relatively short and is largely explained. Mr Mitchell’s submissions do not take issue with the adequacy of the explanation.
The parties’ submissions do not deal with whether ‘exceptional circumstances’ are present. ‘Exceptional circumstances’ are addressed, in the context of the Uniform Civil Procedure Rules 2005, in Yacoub v Pilkington (Australia) Ltd.[82] That decision has been applied on a number of occasions in the Commission, dealing with r 16.2(12).[83] The circumstances in the chronology are not, on the evidence before me, “out of the ordinary course or unusual, or special, or uncommon”. The evidence does not deal with the “relative frequency of occurrence” of such circumstances. Exceptional circumstances may be established by “a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional”. The combination of relatively innocuous events, taken together, do not in my view constitute ‘exceptional circumstances’. In short, ‘exceptional circumstances’ are not demonstrated. This is not fatal to the extension being granted, but it is a factor I am required to consider. [84]
[82] [2007] NSWCA 290 (Yacoub), [66] (per Campbell JA, Tobias JA and Handley AJA agreeing).
[83] See by way of example Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, Bennett Constructions (NSW) Pty Ltd v Bond [2014] NSWWCCPD 32; 15 DDCR 376, Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now de-registered) [2009] NSWWCCPD 64, Erskine v Cozwine Pty Limited [2018] NSWWCCPD 9.
[84] Bryce, [8].
Mr Mitchell has a valid interest in retaining the result in his favour. Mr Mitchell does not submit that prejudice results from the delay. Mr Mitchell essentially opposes the extension of time on the basis that the appeal does not have reasonable prospects of success. This is a factor which I am required to take into account, and requires consideration of the merits of the appeal. After a full consideration of the merits of the appeal, I have concluded that it succeeds in part, although most of its more substantive grounds fail. On balance, in the interests of justice, the appropriate course is to extend the time for bringing the appeal, to 28 November 2017, pursuant to r 16.2(12) of the Rules.

The monetary threshold

Subsections (1) and (3) of s 352 of the 1998 Act provide:
“(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”

The appellant’s submissions

Lotos refers to Favetti Bricklaying Pty Limited v Benedek,[85] a decision of Bellew J dealing with the jurisdiction of the Commission to decide a liability issue, in a matter involving a threshold dispute for the purpose of a work injury damages claim. Lotos says it was there “held that an Arbitrator did have jurisdiction to determine liability prior to any referral to an Approved Medical Specialist” [86] Lotos quotes passages which include the following:
“… the issue of liability to which s. 321(4)(a) [of the 1998 Act] refers must, given the context in which the provision appears, be an issue of liability arising under either [the 1987 Act] or the [1998 Act]. Issues of liability may arise in a number of different circumstances under the legislation. They include the fundamental liability to pay compensation.”[87]
And, dealing with the Commission’s jurisdiction to decide a liability issue before a threshold dispute is referred to an AMS for assessment:
“… I am not able to conclude that the Commission has no such jurisdiction. That the Commission has that jurisdiction is evident from an analysis of the relevant statutory provisions.”[88]
[85] [2017] NSWSC 417 (Favetti Bricklaying).
[86] Appellant’s submissions, [6].
[87] Favetti Bricklaying, [78].
[88] Favetti Bricklaying, [85].
Lotos submits that, as a consequence of the decision in Favetti Bricklaying, “it is now clear that the Arbitrator’s jurisdiction was to determine liability for compensation”. It follows that the appeal is one in respect of “a dispute in connection with a claim for compensation” (s 352(1)). Lotos submits that because “the issue is primary liability the decision will affect compensation of at least $5,000.00 comprising weekly compensation, medical expenses and permanent impairment compensation”.[89] Lotos emphasised this in its submissions in reply, saying that “the issue in the proceedings is whether [Mr Mitchell] suffered injury in July 1997.”
[89] Appellant’s submissions, [9]–[10].
Making his oral submissions, Mr McManamey (on behalf of Lotos) identified subss (1) and (3) of s 352 as “two qualifying provisions” to the entitlement to appeal.[90] Although the current proceedings had been brought “to obtain an assessment for work injury damages threshold… the way in which the proceedings have progressed, a whole lot of other things are in issue”. There were issues regarding the Certificate of Determination dated 3 June 2015, and a fundamental issue regarding whether injury occurred in July 1997. These matters went to liability. Any determination made would “affect all compensation, raise an estoppel”. Lotos submits this satisfies s 352(1) of the 1998 Act.[91] Mr McManamey said that the initial submission to the Arbitrator was that the Certificate of Determination dated 3 June 2015 be set aside on the basis of “obvious error”. Once it is set aside there is no Certificate of Determination, so the issue of liability can then be agitated. The orders made in the Certificate of Determination dated 3 June 2015 were in issue, so liability for the injury in July 1997 was in issue. At issue was the liability to pay that award of $20,000.[92] Lotos had never disputed liability for the allegation of injury on 23 June 1997, it did seek to dispute the allegation of injury in July 1997, which was first pleaded in matter no 475-15.[93] Mr McManamey said that Lotos did not seek back the sum of $20,000 it had paid in compliance with the award dated 3 June 2015, as Lotos accepted that it was liable to pay the sum in respect of injury on 23 June 1997.[94]
[90] Transcript of Appeal Proceedings of 4 April 2018 (T2), T2 2.12–16.
[91] T2 2.28–3.16.
[92] T2 2.28–4.32.
[93] T2 5.28–7.18.
[94] T2 7.29–8.3.
Mr McManamey submitted that the dispute before the Arbitrator was twofold. There was a dispute about reconsideration of the Certificate of Determination dated 3 June 2015. That Certificate was squarely about compensation, as was the dispute about its reconsideration. There was a dispute about the occurrence of the injury on 3 July 1997. Consistent with Favetti Bricklaying, that dispute was about the primary obligation to pay compensation. Mr McManamey ultimately did not submit that I, as a Presidential member, was bound by the decision in Favetti Bricklaying, although he submitted that “it would be highly persuasive”.[95]
[95] T2 10.1–11.5.
O’Callaghan v Energy World Corporation Ltd[96] was a matter involving an application by a worker, to reconsider and set aside previous orders for lump sum compensation, so that an appeal pursuant to s 327(3)(a) and (b) of the 1998 Act could be brought, based on deterioration. The worker sought a further assessment of her permanent impairment to resolve a work injury damages threshold dispute. Deputy President Roche held that a Presidential appeal from the Arbitrator’s decision could not be brought. The worker had claimed no compensation in the reconsideration proceedings, there was no compensation at issue on the appeal, and the monetary threshold in s 352(3) of the 1998 Act was not met.[97] I have followed O’Callaghan in Abu-Ali v Martin-Brower Australia Pty Ltd.[98] Mr McManamey submitted that O’Callaghan could be distinguished; subject to the Certificate of Determination dated 3 June 2015 being reconsidered, there is then a dispute about the injury on 3 July 1997, which will decide whether there is any entitlement to compensation for that injury.[99]
[96] [2016] NSWWCCPD 1 (O’Callaghan).
[97] O’Callaghan, [46]–[52].
[98] [2017] NSWWCCPD 25 (Abu-Ali), [18]–[22].
[99] T2 16.24–17.14.
Mr McManamey submitted a contrary result, that ‘liability’ decisions made for the purposes of a threshold dispute could not be appealed, would be an absurd result, which should be avoided.[100]
[100] T2 19.12–33.
In reply, Mr McManamey submitted that decisions such as Abu-Ali and O’Callaghan predated Favetti Bricklaying. What matters is not what is claimed, but what are the issues on the appeal. The threshold issues are “not determined by merely looking at the ARD”.[101] He submitted that, to the extent Abu-Ali decided that a dispute, going to whether a worker’s permanent impairment exceeded 20%, did not satisfy s 352(3), it was wrongly decided.
[101] T2 29.19–30.14.

The respondent’s submissions

Mr Morgan submitted that the apparent position of Lotos was that it did not dispute that an injury to the cervical spine had occurred. If the only dispute went to whether it occurred on 23 June 1997 or July 1997, there would be no monetary difference and the amount of money at issue on the appeal is nil. It must fail the relevant threshold test.[102]
[102] Respondent’s submissions, [2.2(1)–(4)].
In his oral submissions, Mr Morgan referred to O’Callaghan, and noted that s 149 of the 1987 Act was considered in the analysis of the threshold provisions in that decision.
Mr Morgan submitted that s 352(3) refers to “the amount of compensation at issue on the appeal”. He said it would be open to an employer to argue that the amount of compensation at issue on an appeal was “the potential cost of the claim moving forward”. However, he submitted that “speculating with respect to possible consequences of outcomes or decisions” needed to be approached with caution, and would not “weigh heavily” on my decision making in the current matter.[103]
[103] T2 23.24–24.18.
Mr Morgan submitted that I was not bound by the decision in Favetti Bricklaying. He submitted that the decision in Favetti Bricklaying had “little, if any relevance” to the current matter. He submitted that the decisions in O’Callaghan and Abu-Ali were “very much on point”. He submitted that there was “no dispute with respect to the payment of compensation”. The only claim was a threshold dispute for work injury damages.[104] He submitted:
“… the approaches taken in Abu-Ali and in O’Callaghan and the plain wording of section 352 we say the threshold has not been met.”
[104] T2 25.7–27.16.
Mr Morgan referred to “a number of decisions” of Roche DP dealing with processes and procedure where there is “a potential disconnect between pleadings … and evidence”.

Consideration

The parties raised two threshold issues, based on subss (1) and (3) of s 352 of the 1998 Act. Both O’Callaghan and Abu-Ali dealt with the threshold issue in s 352(3) of the 1998 Act.
Section 352(1) requires that the appellant be a “party to a dispute in connection with a claim for compensation”. The matter was initially pleaded by Mr Mitchell simply as an application for referral to an AMS to assess permanent impairment, for the purposes of s 32A of the 1987 Act and s 313 of the 1998 Act. This would have involved resolution of a medical dispute by an AMS or (on a medical appeal) a Medical Appeal Panel.[105] The ‘liability’ dispute was generated by the Response lodged by Lotos, which stated:
“The defendant disputes that the injury alleged in [sic] to have occurred in July 1997 occurred and, in the alternative, says that if the alleged injury did occur it did not result in injury to the body systems specified in Part 1 of the Application filed in this matter.”[106]
[105] Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139, [16]–[20], Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, 13 DDCR 156, [109]–[112].
[106] Response, Pt 1.
This was added to by the letter of Lotos’s solicitors dated 28 July 2017.[107] This advised that at the hearing Lotos would seek reconsideration of the Certificates of Determination dated 3 June 2015 and 27 July 2015, on the basis that the Certificate dated 3 June 2015 incorrectly stated that the s 66 payment in respect of the neck related to injury in July 1997, when it related to injury on 23 June 1997. The Arbitrator’s reasons said that, at the hearing, it became obvious that Lotos needed to seek to have the Certificate of Determination dated 3 June 2015 revoked, if Lotos was to establish its defence. He said that he granted leave for Lotos to seek a reconsideration.[108] That description, and the correctness of the grant of leave, is not challenged on this appeal. Lotos’s submissions in reply do make the point that the reconsideration application was not made without notice during the hearing. Notice was given in the solicitors’ letter dated 28 July 2017.[109]
[107] AALD 28.7.17, p 1.
[108] Arbitral decision, [8].
[109] Appellant’s submissions in reply, [23].
Lotos, in the reconsideration application, seeks to rescind orders in Mr Mitchell’s favour, made on 3 June 2015 and 27 July 2015, awarding him a total of $35,000 pursuant to ss 66 and 67 of the 1987 Act, for permanent loss and impairment resulting from injury to the neck. This, in my view, is a dispute in connection with a claim for compensation. The claim was previously determined when the relevant orders were made (in part by consent) in 2015. In Favetti Bricklaying Bellew J, dealing with the phrase “concerning permanent impairment” in s 321(4)(a) of the 1998 Act, said the word “concerning” should be given a wide, rather than a narrow, meaning.[110] The meaning will, of course, depend on the context.[111] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, in a frequently quoted passage, the plurality said (excluding references):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[112]
[110] Favetti Bricklaying, [77].
[111] Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704, [13].
[112] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, [47].
It is, in my view, consistent with the clear meaning of the text of s 352(1) of the 1998 Act, that the phrase “dispute in connection with a claim for compensation” be read sufficiently broadly, to include a dispute pursuant to s 350(3) of the 1998 Act, about the reconsideration of orders previously made on a claim for compensation. Additionally, a contrary reading would have the effect that a Presidential appeal pursuant to s 352, from a reconsideration application, would not lie, although such an appeal may well have been available (subject to the thresholds in s 352) against the decision in which the original orders were made. In my view, it is unlikely that the legislature intended the provision to operate in this way.[113] It would be illogical that a dispute would satisfy the requirements of s 352(1) when it was originally dealt with, but not if it was then revisited by way of reconsideration. Section 352(1) is satisfied. Lotos is a party to a dispute in connection with a claim for compensation, and the appeal is brought against a decision in respect of the dispute.
[113] Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493, [48].
This leaves the issue of whether the monetary thresholds in s 352(3) of the 1998 Act are satisfied. There are two limbs. The first is that the amount of compensation at issue on the appeal must be “at least $5,000”. As discussed above, the orders Lotos seeks to rescind, dated 3 July 2015 and 27 July 2015, provide for the payment of $35,000 in lump sum compensation. This was the amount at issue before the Arbitrator, in the reconsideration application. It satisfies the threshold in s 352(3)(a). This is consistent with the approach taken by Roche DP in Samuel, where the Deputy President treated the sum, unsuccessfully sought by the worker by way of reconsideration, as the sum at issue on the appeal. It is difficult to see any basis for approaching the threshold issue differently, depending on whether it is a worker, or an employer, seeking the reconsideration. The compensation at issue on the appeal is at least $5,000.
To satisfy s 352(3)(b) of the 1998 Act it is necessary, where no sum of compensation was actually awarded, that the “decision have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal” (emphasis in original).[114] This is satisfied. The decision went to whether Lotos was entitled to orders reconsidering and rescinding the earlier orders in 2015, for lump sum compensation of $35,000.
[114] Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7, [27].
Lotos, in its submissions, stated that it did not dispute the occurrence of injury on 23 June 1997. It said there was no application for repayment of the “substantial amounts of compensation” it had paid to Mr Mitchell.[115] In his oral submissions, Mr McManamey said that Lotos accepted it was “liable to pay the $20,000 [the s 66 payment] in respect of an injury on 23 June 1997. He said this was “irrelevant” to the issue of whether Lotos was liable “in respect of an alleged injury in July 1997”.[116] Mr Mitchell, submitting on the monetary threshold in s 352(3), said that if there was no issue regarding injury to the cervical spine, save whether the date was 23 June 1997 or July 1997, there would be no monetary difference, and the appeal “fails the relevant threshold test”.[117] Mr McManamey responded that there was either an injury in July 1997 or there was not, “in which case there’s no liability at all”. Whether there was an acceptance of liability for some other injury was “neither here nor there”.[118] Ultimately, there is an application to rescind the awards made in 2015, for which a total of $35,000 in lump sum compensation was paid. I accept the submission that this sum can be appropriately characterised as “compensation at issue on the appeal”, within the meaning of s 352(3).
[115] Appellant’s submissions, [20].
[116] T2 8.1–21.
[117] Respondent’s submissions, [2.2].
[118] T2 9.9–14.
The nature of the proceedings and the decision appealed against, bears some resemblance to that in O’Callaghan, where a contrary result was reached on the issue of whether the monetary threshold in s 352(3) was satisfied. However, in O’Callaghan the application before the Commission was one by a worker, to reconsider and rescind an earlier lump sum award, with a view to appeal under s 327(3)(a) of the 1998 Act, with a prospect of achieving an assessment of permanent impairment sufficient to satisfy the 15% permanent impairment threshold for work injury damages. The worker specifically disavowed seeking further lump sum compensation. The employer did not seek to challenge or rescind the earlier orders in any way. It followed that there was no compensation at issue in the proceedings.[119] In the current matter, there is an issue between the parties going to the application by Lotos to rescind the orders made in 2015.
[119] O’Callaghan, [48]–[50].
It follows from the above that the monetary threshold pursuant to s 352(3) of the 1998 Act is satisfied.
In Grimson v Integral Energy Fleming DP dealt with the extent to which she could deal on appeal with an issue about costs (which could not satisfy the monetary threshold). The Deputy President, dealing with the then equivalent provision, s 352(2), said:
“28. An approach that gives little or no meaning to subsection 352(2) is also inconsistent with the clear intention of the legislature, and the purpose of the specific provision (section 352), namely to restrict the right of appeal from a decision of an Arbitrator to a Presidential Member (section 33 of the Interpretation Act 1987 provides that regard must be had to the purpose of an Act when interpreting its provisions).
29. This is not to say that the decision of an Arbitrator in relation to the costs of proceedings before them cannot be the subject of review by a Presidential Member. Once the threshold test in subsection 352(2) is met, and other matters such as the time for filing of the appeal are addressed (352(4)), the whole of the decision of the Arbitrator is then properly the subject of review.”[120]
[120] [2003] NSWWCCPD 29, [28]–[29].
A similar approach was taken in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney, where Roche DP said (excluding citations):
“I agree with points (a) to (d) inclusive. In respect of point (e) the argument being made is that ‘costs’ are not ‘compensation’ and leave to appeal under section 352 of the 1998 Act can only be granted if the amount of compensation ‘at issue on the appeal’ is at least $5,000.00 and 20% of the amount awarded in the decision. That is correct and had the Respondent Employer attempted to appeal the costs order made by the Arbitrator leave to appeal would have been refused. However the appeal in this matter has been properly commenced by the Appellant Worker. That being so the Commission is entitled on a ‘review’ properly before it to review all ‘decisions’ made by the Arbitrator if those decisions are challenged by one or other of the parties. In section 352 ‘decision’ includes ‘award, interim award, order, determination, ruling and direction’ (see section 352(8)). As the costs order made by the Arbitrator forms part of her formal orders and as the appeal is otherwise properly before me and the Appellant Worker has had the opportunity to be heard, I believe it is appropriate that I determine the costs issue raised by the Respondent Employer.” (emphasis in original)[121]
[121] [2006] NSWWCCPD 124; 5 DDCR 337, [68].
These decisions predated the amendments to s 352 which took effect from 1 February 2011, removing the power of ‘review’ on appeal, and inserting s 352(5) in its current form. There is no reason why that would affect the applicability of these decisions, dealing with the monetary threshold. The appeal is properly before me in so far as the monetary threshold is concerned. It is before me for the purpose of dealing with all aspects of the decision which are challenged on appeal.
The current proceedings involve two applications which are intertwined. There is an application by Mr Mitchell for referral to an AMS, to assess permanent impairment in respect of his cervical spine, resulting from injury in July 1997. This is for the purposes of a threshold dispute. It cannot yield additional lump sum compensation, Mr Mitchell’s entitlements in this regard, given the date of the alleged injury, are pursuant to the Table of Disabilities. Lotos, which seeks to dispute the ‘injury’ in July 1997, applies to reconsider and rescind the awards for lump sum compensation made in 2015. This is with a view to negating the effect of estoppels going to the issue of ‘injury’, which would otherwise affect its ability to dispute the injury alleged.
The basis on which I have concluded that the monetary thresholds are satisfied, flows from that part of the dispute which involves Lotos’s reconsideration application. Whether the thresholds could have been satisfied, on the basis simply of the proceedings brought by Mr Mitchell, is an issue which I have not decided in the circumstances. It is not without doubt, but it is unnecessary to further consider the issue as the monetary thresholds are satisfied in any event.

INTERLOCUTORY DECISION AND LEAVE

The submissions

Lotos submits the orders are final “in respect of the matters which can be determined by the Commission being the question of liability for compensation”. As a matter of practice, there will be no further order following the issue of a MAC. Lotos submits that, if the decision appealed is interlocutory, leave should be granted in any event. This would avoid the waste of resources associated with an unnecessary medical assessment of Mr Mitchell, if the appeal was ultimately pursued and was successful after final orders were made.[122]
[122] Appellant’s submissions, [14].
Mr Mitchell submits the appeal is “clearly interlocutory”. He notes the “utility” of dealing with the appeal at this point.[123]
[123] Respondent’s submissions, [2.6].

Consideration

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The Commission, dealing with s 352(3A), has frequently applied Licul v Corney,[124] where Gibbs J said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh [1971] 2 QB 597 – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant [1966] HCA 36; 117 CLR 423, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
[124] [1976] HCA 6; 180 CLR 213, [11].
The Certificate of Determination dated 24 October 2017, at [1], provides for the insertion of the words “wrongly dated 23 June 1997” after the injury date in the earlier Certificate of Determination dated 3 June 2015. This was not the relief sought by Lotos by way of reconsideration. The orders in the Certificate of Determination dated 24 October 2017 do not otherwise deal with the reconsideration application. Although not forming part of the Certificate of Determination dated 24 October 2017, it is apparent that the Arbitrator refused the substance of Lotos’s reconsideration application. In his decision, he said:
“104. It can be seen that the reconsideration application should be dismissed.”[125]

And:

“109. I therefore reject the respondent’s application to reconsider the Certificate of Determination of 3 June 2015, save in one respect. Mr McManamey was correct that Order 4 in its current form is misleading. In view of my findings it should be amended to reflect them.”[126]

[125] Arbitral decision, [104].

[126] Arbitral decision, [109].

The Arbitrator’s decision finally dealt with the rights of the parties, in respect of the reconsideration application. The decision, in that respect, was not interlocutory.
The practice of the Commission, dealing with referrals to an AMS for the purpose of a threshold dispute, is that the Commission does not ordinarily make further orders, subsequent to the referral. The bar in s 313 of the 1998 Act, to further proceeding with a work injury damages matter in the presence of a threshold dispute, is removed when the worker is “assessed by an approved medical specialist under Part 7”.[127] This is consistent with Lotos’s submissions on this appeal.
[127] Sections 313 and 314 of the 1998 Act.
It would be quite artificial to deal with an appeal about the reconsideration application, without also dealing with Mr Mitchell’s application for referral for an assessment by an AMS. To the extent to which the decision is interlocutory, I grant leave for the appeal to proceed. I am of the view that determining the appeal is necessary for the proper and effective determination of the dispute.

THE GROUNDS OF APPEAL

Lotos raises the following ten grounds of appeal:
(a)The Arbitrator erred when he found that the entry of the date 23 June 1997 in the complying agreement in 2003 was an error (Ground No 1).
(b)The Arbitrator erred when he found that the respondent had acted to his detriment in reliance upon a representation by the appellant (Ground No 2).
(c)The Arbitrator erred when he applied the decision in Verwayen to find an estoppel against the appellant (Ground No 3).
(d)The Arbitrator erred when he found that there was never an agreement that the respondent injured his neck on 23 June 1997 (Ground No 4).
(e)The Arbitrator erred when he approached the question of whether there was an error in the Certificate of Determination on the basis of an error by the appellant (Ground No 5).
(f)The Arbitrator erred when he considered that the question before him was whether there was fresh evidence (Ground No 6).
(g)The Arbitrator erred when he considered that the principles in Anshun applied to create an estoppel (Ground No 7).
(h)The Arbitrator erred when he found that the delay alone was determinative of the reconsideration application (Ground No 8).
(i)The Arbitrator erred when he found that the Certificate of Determination of 3 June 2015 created an estoppel for the purposes of a work injury damages threshold dispute (Ground No 9).
(j)The Arbitrator erred when he amended the Certificate of Determination of 3 June 2015 (Ground No 10).

Order no 4, in the COD dated 3 June 2015, described the 2003 payment for permanent impairment of the neck as being “for injury in July 1997”. Lotos submitted this was “clearly wrong”, and that the COD dated 3 June 2015 should be set aside.[181] It was fundamental to Lotos’s submissions on reconsideration, that Arbitrator Farrell’s finding, that the 2003 payment related to neck injury in July 1997, was “clearly wrong”, a demonstrable error. The Arbitrator did not accept this submission. The Arbitrator concluded that the complying agreement did not involve agreement that the neck injury occurred on 23 June 1997. For reasons given above, this did not involve error. The Arbitrator did consider Lotos’s submissions on the reconsideration, and rejected them. It follows that Ground No 6 is rejected.
[181] Lotos’s arbitral submissions, [10]–[13].
Ground No 8 goes to the Arbitrator’s treatment of ‘delay’, as a factor in his rejection of the reconsideration application. The decision at issue was dated 3 June 2015. The application was made on 11 August 2017, following giving notice to Mr Mitchell’s solicitors on 28 July 2017. As the Arbitrator observed, there was no appeal or reconsideration application in respect of the decision dated 3 June 2015, the orders were complied with and moneys were paid in compliance with the orders.[182] It was a little more than two years after the orders were made, that reconsideration was sought. The Arbitrator said “[n]o explanation at all has been made.”[183]
[182] Arbitral decision, [52].
[183] Arbitral decision, [100].
Before the Arbitrator, Lotos submitted:
“[Lotos] was content to pay the Certificate of Determination because it was mistakenly of the view, as was the Arbitrator, that the 2015 claim was in respect of the same injury as the 2003 claim. This would have been in part due to the contradictory nature of the Application to Resolve a Dispute.”[184]
[184] Lotos’s arbitral submissions, [12].
On appeal, dealing with ‘delay’, Lotos submitted:
“The Appellant accepts that no direct evidence was called to explain the delay however it is apparent that until this application was made there was no utility in seeking to have the COD reconsidered. The Appellant accepted that the compensation for the losses referred to in the COD would still be payable in any event. In those circumstances an application to reconsider to correct the error made by the prior Arbitrator would simply have been an unnecessary expense. The Arbitrator was asked to infer that reason for the delay but he made no finding as to whether he would infer that obvious explanation. The failure to consider that submission was also an error.”[185]
[185] Appellant’s submissions, [29].
The two explanations are different. In the first, it is submitted the Arbitrator should have inferred a mistake on Lotos’s part, regarding whether the 2015 claim (which pleaded injury to the neck in July 1997) was based on the same injury as the 2003 claim (which was based on neck injury, in Lotos’s submission, on 23 June 1997). The second explanation submits it should be inferred that Lotos made a decision not to challenge the COD dated 3 June 2015, at an earlier time, as it would have been an “unnecessary expense”, it would not have affected the compensation payable. One explanation asserts a mistake regarding the injury date relied on in 2015, the other asserts a deliberate decision, which would involve knowledge of a discrepancy in the injury dates. Neither of these explanations is supported by evidence. I accept Mr Morgan’s submission that it would be “speculative in the extreme” to draw the inference requested. For an inference to be drawn, the evidence “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture”.[186]
[186] Bradshaw v McEwans (1951) 217 ALR 1, applied in Luxton v Vines [1952] HCA 19; 85 CLR 352 at [8] (per Dixon, Fullagar and Kitto JJ).
The Arbitrator did refer to the possible explanations that were put to him by Mr McManamey.[187] The Arbitrator said that no explanation of delay at all had been made. The written submission of Lotos before the Arbitrator, referred to above, was not clearly identified as one dealing with ‘delay’. There was, in any event, no evidence explaining ‘delay’, and no inference that could be appropriately drawn by way of explanation. The Arbitrator described this deficiency as “fatal”. It is apparent, when the Arbitrator’s reasons are read as a whole,[188] that he considered a variety of relevant issues (of which ‘delay’ was one) in rejecting the application for reconsideration. There were ample grounds for rejection of the reconsideration application.
[187] Arbitral decision, [90]–[91].
[188] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
In any event, the Arbitrator’s fundamental conclusion was that the COD dated 3 June 2015 was not erroneous. The reconsideration application could not have succeeded, as it was based on the proposition that that COD involved “demonstrable error”. Ground No 8 is rejected.

GROUNDS NOS 2, 3, 7 AND 9

Ground No 2: The Arbitrator erred when he found that the respondent had acted to his detriment in reliance upon a representation by the appellant.

Ground No 3: The Arbitrator erred when he applied the decision in Verwayen to find an estoppel against the appellant.

Ground No 7: The Arbitrator erred when he considered that the principles in Anshun applied to create an estoppel.

Ground No 9: The Arbitrator erred when he found that the Certificate of Determination of 3 June 2015 created an estoppel for the purposes of a work injury damages threshold dispute.

These grounds relate to the Arbitrator’s consideration of various estoppels. It is convenient to deal initially with Ground No 9.

Ground No 9

The appellant’s submissions

Mr McManamey refers to JC Equipment Hire as authority that “resolution of the claim for permanent impairment benefits did not prevent the insurer from disputing that the s 151A threshold had been satisfied”.[189] He submits there is no distinction to be drawn between where the resolution was effected by a complying agreement (as in JC Equipment Hire) and by “orders from the Commission” (in the current case). He submits:
“It is accepted that whilst there is no estoppel in respect of the matters capable of change (i.e. the degree of the loss) there is an estoppel in respect of the elements necessary to give rise to the entitlement including liability for the accident”.[190]
[189] Appellant’s submissions, [30].
[190] Appellant’s submissions, [31].
After quoting from JC Equipment Hire, Mr McManamey submits that the COD dated 3 June 2015:
“… was in respect of a claim that was limited to entitlements pursuant to the former Table of Disabilities … the agreement not to dispute liability which would seem inherent in the consent orders was only an agreement in respect of a claim under the Table of Disabilities. For the reasons stated by the Court of Appeal the Certificate of Determination does not prevent the Appellant from disputing the s 151H threshold. Such a dispute can, of course, include a dispute that there was injury in the first place.”
And:
“The Arbitrator did not appreciate the clear authority that admissions made for the purposes of a claim for permanent impairment compensation do not constitute admissions or estoppels for the purpose of a threshold dispute.”[191]
[191] Appellant’s submissions, [34]–[35].

The respondent’s submissions

Mr Morgan submits that the Arbitrator did not make a finding that the COD dated 3 June 2015 created an estoppel for the purposes of a work injury damages threshold dispute. He submits the Arbitrator “simply refers the matter to an approved medical specialist to make the relevant assessment”.
Mr Morgan submits “the decision in JC Equipment [Hire] related to the significance which could be accorded to a previously agreed/assessed WPI assessment for the purposes of s 66 and its significance with respect to the threshold question …” In the current case “there has not been a WPI assessment relevantly for the purposes of compensation (observing of course the injury occurred in 1997) nor with respect to whether a threshold dispute existed.”[192]
[192] Respondent’s submissions, [37]–[39].

Consideration

The factual background to the decision in JC Equipment Hire was different to the current matter. The worker was injured on 23 November 2003, so that his entitlement to lump sum compensation was governed by the statutory regime which governed injuries from 1 January 2002, based on whole person impairment. The parties resolved a claim for lump sum compensation on the basis there was 16% whole person impairment, and a complying agreement to this effect was registered. A claim for work injury damages was made subsequently, and the employer did not concede a level of whole person impairment in respect of the injury, of at least 15%. The issue on appeal was described by Tobias JA (Campbell and Bell JJA agreeing):
“Accordingly, the question in issue on the appeal is whether the appellant’s acceptance of a 16% degree of permanent impairment for the purpose of calculating the respondent’s entitlement to lump sum compensation under s 66 of the 1987 Act was a relevant acceptance within the meaning of s 314(2)(a) of the [1998] Act.”[193]
[193] JC Equipment Hire, [8].
His Honour concluded:
“In particular, in my opinion no useful purpose would be served by binding a person on whom a claim for work injury damages has been made to an agreement or acceptance by that person of a particular degree of permanent impairment (which is at least 15%) made for the purpose of enabling a calculation of permanent impairment compensation to be made in accordance with the mathematical formulae set forth in s 66(2) of the 1987 Act.” (emphasis added)
It followed that the employer could dispute, for the purposes of a work injury damages claim, whether there was a degree of permanent impairment of at least 15%, notwithstanding that it had previously resolved a lump sum claim for the same injury, entering into a complying agreement for 16% whole person impairment.
The specific issue raised in JC Equipment Hire does not arise in Mr Mitchell’s case, as his injury (on any version of it) pre-dated 1 January 2002, and his entitlement to lump sum compensation was pursuant to the Table of Disabilities. He was never entitled to, or paid, lump sum compensation on the basis of whole person impairment. It should be noted that s 314 of the 1998 Act has been amended effective 27 June 2012, by the insertion of s 314(3). This is not relevant to the point Mr McManamey seeks to draw from JC Equipment Hire, in the context of the facts of this case, which is referred to in his submissions summarised above.
Mr McManamey submits that the entitlement of an employer, to dispute the work injury damages threshold, “can, of course, include a dispute that there was injury in the first place”. This did not arise in JC Equipment Hire. The employer in that matter sought to dispute the degree of permanent impairment (it having obtained a medical assessment of less than 15% whole person impairment). It did not seek to dispute the issue of ‘injury’. This is consistent with the passage from the decision of Tobias JA quoted at [156] above. Mr McManamey submits that “admissions made for the purposes of a claim for permanent impairment compensation do not constitute admissions or estoppels for the purpose of a threshold dispute”.
In my view, the decision in JC Equipment Hire does not go that far. The analysis by Tobias JA of the statutory provisions, leads to a construction that, applying the legislation at that time, an employer may raise a threshold dispute, notwithstanding that a degree of permanent impairment of 15% or more has been conceded in the context of a lump sum claim for the same injury. There is nothing in the decision which suggests that the general law, dealing with estoppels and admissions, going to issues other than the degree of permanent impairment, does not apply.
In Habib v Radio 2UE Sydney Pty Ltd, McColl JA (Giles and Campbell JJA agreeing) said:
“The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 – 532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.”[194]
[194] [2009] NSWCA 231 (Habib), [73].
In Egri v DRG Australia Ltd Clarke JA, dealing with the application in common law proceedings, of an estoppel from a finding in the Compensation Court, said:
“It is not a necessary condition of an estoppel arising from such a finding that it be made in the determination of an issue which is identical with the issue in the later proceedings. It is sufficient if the finding, of fact or law or mixed fact and law, is made in respect of an identical question notwithstanding that the question may fall to be decided in the course of determination of issues which are not identical.”[195]
[195] (1988) 19 NSWLR 600 (Egri), 610F.
In Habib McColl JA, dealing with consent orders, said:
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] – [65]); Abigroup Contractors Pty Ltd (at [146]).”[196]
[196] Habib, [186].
In Manpower Pty Ltd v Harris[197] Roche DP considered the application of these principles in the context of the Commission. Proceedings in 2009 for weekly compensation were resolved by consent orders for the payment of weekly compensation and medical expenses. In proceedings in 2010, the employer sought to rely on a defence that the relevant medical condition (inguinal neuralgia) did not result from employment injury. The Deputy President said:
“Once it is accepted that the words ‘without admission of liability’ are of no effect (Ashenden), the consent orders ‘necessarily involved’ the admission by Manpower that Mr Harris was a ‘worker’ employed by it, that he received an ‘injury’ in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions follow from the face of the consent orders and the history of the matter.”[198]
[197] [2011] NSWWCCPD 10 (Harris).
[198] Harris, [94].
Mr Mitchell, in matter no 475-15, lodged an ARD claiming lump sum compensation in respect of the neck and right arm. The condition of the right arm was pleaded to involve “related radiculopathy subsequent to his surgical interventions”, that is, it resulted from the neck injury. The ARD pleaded the date of injury as “July 1997”.[199] The description of how the injury occurred is set out at [3](e) above. The matter was referred to an AMS, Dr Davis, to determine the levels of permanent impairment of the neck, and permanent loss of use of the right arm at or above the elbow.[200] This was a ‘medical dispute’: s 319 of the 1998 Act. Sections 293(3)(a) and 321(4)(a) of the 1998 Act precluded the referral of such a dispute for assessment “where liability is in issue and has not been determined by the Commission”.
[199] AALD 28.7.17, pp 54–61.
[200] MAC 4 June 2015, p 1, in the Application.
The Arbitrator summarised the procedural steps which he considered “must have occurred” for the purposes of the referral to an AMS.[201] That summary is not challenged. It is correct that the process in the circumstances, in compliance with the Commission’s procedures, involved Lotos (or its insurer) not disputing liability, and the terms of the referral not being challenged by the parties. That is, issues as to ‘liability’, including ‘injury’, were conceded by Lotos. The COD dated 3 June 2015 was consistent with the binding assessments of the AMS: s 326(1) of the 1998 Act. Arbitrator Farrell, additionally, made a finding that the payment made pursuant to the complying agreement in 2003 was “for injury in July 1997”, that is, the injury also pleaded in matter no 475-15.[202] This finding by Arbitrator Farrell was not the subject of appeal. For reasons given above, I accept that this construction of the complying agreement was open and disclosed no error. I agree with it.
[201] Arbitral decision, [89].
[202] AALD 28.7.17, p 62.
There are passages in JC Equipment Hire that speak of ‘liability’, such as that quoted by the Arbitrator in his reasons, at [107]. It is clear that the term is used in such passages to describe ‘liability’ at common law, for example, in negligence or contract. It is there used in a different context to that in ss 293(3)(a) and 321(4)(a), where it relates to matters such as ‘worker’, ‘injury’ or ‘substantial contributing factor’, necessary for liability to pay ‘compensation’ under the 1987 and 1998 Acts.
Consistent with the principles in Habib and associated authorities, the issue of ‘injury’ in July 1997, and the issue of what injury the loss and impairment in the complying agreement in 2003 resulted from, were decided in the COD dated 3 June 2015, in matter no 475-15. They were matters “necessarily decided” for the decision in those proceedings. It follows that they cannot be re-litigated in the current proceedings. Ground No 9 is rejected.

Grounds Nos 2 and 3

The Arbitrator said the conduct of Lotos in 2003, in entering into the complying agreement rather than disputing liability, resulted in Mr Mitchell being paid lump sum compensation on two occasions and undergoing cervical surgery on two occasions. He said there “can be no doubt in this situation that [Mr Mitchell] has acted to his detriment in reliance upon the conduct of the insurer”.[203] The Arbitrator referred to passages in Verwayen appearing at [21] and [29], and said “[i]t is probable that the conduct of [Lotos] has created an estoppel in pais”.[204] However, the Arbitrator then said “[i]t is not appropriate to analyse the decision further”. He said Lotos’s conduct raised “questions of whether it is estopped”, and that detriment suffered by Mr Mitchell was a relevant consideration to the application to reconsider the COD dated 3 June 2015.[205]
[203] Arbitral decision, [80].
[204] Arbitral decision, [81].
[205] Arbitral decision, [83].

The appellant’s submissions

Mr McManamey submits that the complying agreement in 2003 was prepared by Mr Mitchell’s solicitors, as were the Applications in the proceedings in 2004, 2010 and 2013. He submits the Arbitrator did not identify the conduct by Lotos, on which Mr Mitchell relied to his detriment. He said Lotos still did not dispute injury on 23 June 1997. If Mr Mitchell was paid substantial amounts of compensation in circumstances where there was no injury on 23 June 1997, he has “not suffered a detriment but has received a significant advantage”. It is Mr Mitchell who now seeks “to resile from the assertion that it made over a number of proceedings in the Commission”.[206] Ground No 3 states that the Arbitrator erred in applying Verwayen to find an estoppel against Lotos.
[206] Appellant’s submissions, [18]–[22].

The respondent’s submissions

Mr Morgan submits that Lotos “curiously” does not concede the circumstances of the cervical injury, although stating that it agrees that there was a cervical injury on 23 June 1997. He submits Lotos’s submissions are “disingenuous in the extreme”, when “on all the available evidence” the injury on 23 June 1997 concerned exclusively an injury to the left knee”. Mr Morgan refers to the evidence, including Dr Bodel’s reports obtained by the insurer, about when the different injuries were sustained. The complying agreement, particularisation and claims material were generated by both parties.[207]
[207] Respondent’s submissions, [2.8(7)–(17)].

Consideration

I am not persuaded that the Arbitrator found an estoppel on the basis of Verwayen. He said it was probable that Lotos’s conduct “created an estoppel in pais”. However, he then went on to say that the conduct “raises questions of whether Lotos is estopped”, and it is “not appropriate to analyse the decision further”. He did make a finding that the “detriment suffered” was a relevant consideration regarding the reconsideration application. The Arbitrator did not make factual findings that would justify an estoppel of the type applied in Verwayen. For reasons given above, estoppels were created by the findings in the COD dated 3 June 2015. The result of this was that Lotos was not able to re-litigate matters necessarily decided in those proceedings, regardless of whether an estoppel was available based on Verwayen. Grounds Nos 2 and 3 are rejected.

Ground No 7

The Arbitrator’s reasons at [96]–[98] dealt with the issue of whether Lotos was bound by an estoppel on the basis of Anshun. He said there was sufficient evidence to justify a denial of liability in 2003. He said the claim could have been declined in each of the matters numbered 227-04, 6007-10 and 3477-13. Lotos “unreasonably refrained from doing so when it had the opportunity”, up until matter no 475-15 (when July 1997 was pleaded as the date of injury). He said Lotos was “prevented from now asserting that [Mr Mitchell] injured his neck on 23 June 1997”. He also said Lotos’s failure to raise the issue of whether Mr Mitchell injured his neck in July 1997, when it had evidence which it might reasonably have used to deny liability, “prevents [Lotos] from raising it now”.[208]
[208] Arbitral decision, [96]–[98].

The appellant’s submissions

Lotos submits the Arbitrator concluded that, because Lotos did not dispute Mr Mitchell suffered injury to the neck on 23 June 1997, the Arbitrator said Lotos was then estopped from asserting the very matter which it did not previously dispute. Lotos did not “challenge liability for the neck generally”. It does not seek moneys it paid on Mr Mitchell’s behalf, or “money for the losses found in the MAC of 29 April 2015”. These result from the accepted injury.[209]
[209] Appellant’s submissions, [26]–[28].

The respondent’s submissions

Mr Mitchell submits he has never asserted cervical spine injury occurred on 23 June 1997. The particularisation going back to 2003 clearly particularised injury in July 1997, as did Dr Bodel’s history. Clerical error in the 2003 complying agreement led to a document that “referenced one date of injury”. Payments were made in respect of a neck injury, it was not clear when, and Lotos never made a concession about the circumstances of the injury. It would be difficult to comprehend Lotos asserting cervical spine injury on 23 June 1997, given the factual material available.[210]
[210] Respondent’s submissions, [2.8(27)–(33)].

Consideration

The Arbitrator quoted the following passage from Lambidis:
“If not res judicata or issue estoppel, after the decision of GREAT [The Government and Related Employees Tribunal], was the appellant otherwise precluded from pursuing the appeal to the Compensation Court by the principle by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 which prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised?”[211]
[211] Lambidis, 322E–F, per Kirby P.
In Anshun, Gibbs CJ, Mason and Aikin JJ said:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”[212]
[212] Anshun, [37].
Their Honours also said:
“The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[213]
[213] Anshun, [40].
In Habib, McColl JA said:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers.”[214]
[214] Habib, [84].
The two arguments, that the Arbitrator considered Lotos was prevented from pursuing in defence of the claim, were an assertion that neck injury occurred on 23 June 1993, and an assertion that neck injury did not occur in July 1997.[215]
[215] Arbitral decision, [97]–[98].
Summaries of the injury allegations, made in the earlier proceedings, are set out at [3] above. I do not see that the complying agreement in 2003 can ground an Anshun estoppel. A claim was made and particularised, there was some exchange of medical evidence, and there was resolution leading to a complying agreement. The particulars included reference to neck injury due to the “nature and conditions of employment”. The particulars included reference to a “[f]rank injury 3 July 1997”, and recited an accident description similar to that later pleaded in matter no 475-15 and the current matter. Lotos did not defend the matter in any formal way; it qualified a doctor for medico-legal purposes, and resolved the claim. There were no formal pleadings. One could not conclude that it was unreasonable, in those circumstances in 2003, for Lotos not to rely on the arguments referred to in the previous paragraph.
The ARDs in matters nos 227-04, 6007-10 and 3477-13 made no allegation of neck injury in July 1997. Each nominated 23 June 1997 as a date of injury. There were also various allegations of the “nature and conditions of employment”, and injury in September 1998. I note the MAC of Dr Davies dated 10 June 2013 included a description of how the neck injury occurred, which is similar to the description in the current proceedings, but records a history of those events occurring on 23 June 1997. Failure by Lotos to deny neck injury occurring in July 1997, and to assert that any neck injury occurred on 23 June 1997, could not be unreasonable in the face of these pleadings.
This leaves matter no 475-15. The ARD in matter no 475-15 claimed lump sum compensation in respect of injury to the neck, and radiculopathy in the right arm “subsequent to the surgical interventions”. The pleading of injury in that matter was identical to the current matter. It nominated “July 1997” as the date of injury, and how the injury happened was pleaded in identical form. The concessions necessarily made by Lotos, for matter no 475-15 to proceed to assessment by an AMS, and then entry of an award consistent with the AMS assessment, are set out at [165]–[166] above. Lotos did not dispute the occurrence of the injury, nor that it occurred in July 1997. An award having been entered on 3 June 2015, pursuant to s 66 of the 1987 Act, consistent with the binding assessment of the AMS, Lotos consented to an award pursuant to s 67 of the 1987 Act, for pain and suffering.[216]
[216] AALD 28.7.17, p 60.
There were two differences in the nature of these proceedings. The first was that matter no 475-15 required assessment of permanent loss and impairment pursuant to the Table of Disabilities, rather than whole person impairment, as the injury in July 1997 predated 1 January 2002. The second was that matter no 475-15 required assessment for the purposes of further lump sum compensation, whereas the current proceedings require assessment of whole person impairment for the purposes of a threshold dispute.
Whether Mr Mitchell suffered injury to his neck in July 1997 was a common and fundamental allegation in both matters. It was pleaded identically in both matters. Matter no 475-15 has resulted in an award for lump sum compensation, resulting from neck injury in July 1997. If Lotos successfully disputed the occurrence of injury to the neck in July 1997, this would result in two decisions which are contradictory. The defence in the second action (that the pleaded injury did not occur) was so relevant to the subject matter of the first action, that it was unreasonable that Lotos did not rely on it in matter no 475-15.
It follows that Ground No 7, in so far as it relates to an Anshun estoppel resulting from matter no 475-15, and Lotos’s failure to plead a denial of the injury in July 1997 in those proceedings, is rejected. I accept Lotos’s argument that the claims and proceedings prior to matter no 475-15 did not ground an Anshun estoppel. To that extent, ground no 7 is upheld. Ground No 7, to the extent to which it is upheld, does not affect the result, for reasons referred to at [172] above.

GROUND NO 10

Ground No 10: The Arbitrator erred when he amended the Certificate of Determination of 3 June 2015.

In the COD dated 3 June 2015, order no 4 provided:
“4. The applicant was previously paid, for injury in July 1997, in accordance with the Section 66A Agreement dated 10 September 2003:

a)$8,000 in respect of 20% permanent impairment of the neck;”

In the current matter, the Arbitrator said:
“Order 4 in its current form is misleading. In view of my findings it should be amended to reflect them. Accordingly, Order 4 is amended by adding to the words ‘July 1997’ the additional phrase in parenthesis, ‘(wrongly dated 23 June 1997)’.”[217]
[217] Arbitral decision, [109].

The appellant’s submissions

Mr McManamey submits that the complying agreement in 2003 created an estoppel, that the date of injury was 23 June 1997. There is reference to Gonzales. Mr Mitchell had not applied to amend that document. The Arbitrator had no power to reconsider or amend a complying agreement. The Arbitrator was bound to accept that the “previous payment was in respect of injury on 23 June 1997”. The Arbitrator could only change the COD dated 3 June 2015 using the reconsideration power. There was no application before him to amend the COD dated 23 June 2015 in the way in which he did. If he was to do this, he should have gone on to consider whether there was an injury in July 1997, which he failed to do.[218]
[218] Appellant’s submissions, [36].

The respondent’s submissions

Mr Morgan submits that the Arbitrator considered whether the COD dated 3 June 2015 “correctly represented the nature of the agreement between the parties”. After an “exhaustive analysis” the Arbitrator determined that it did so.[219]
[219] Respondent’s submissions, [2.8(44)].

Consideration

Lotos’s submissions dealing with Ground No 10 essentially raise, in short form, issues that have been argued in other grounds. The Arbitrator was not amending the complying agreement. That document had been construed by Arbitrator Farrell, in giving effect to it in the COD dated 3 June 2015. Any estoppels created by the complying agreement were consistent with the agreement, as construed by Arbitrator Farrell. Gonzales does not assist Mr McManamey’s argument in these circumstances. It is apparent, from Arbitrator Wynyard’s reasons at [109], that he was amending the COD dated 3 June 2015 on the basis of the reconsideration power. The Arbitrator gave reasons, in the body of his decision, for his rejection otherwise, of Mr McManamey’s application to reconsider the COD dated 3 June 2015.
Mr McManamey submits that there was no application by any party to amend the COD dated 3 June 2015, in the manner the Arbitrator did at [109] of his reasons. Mr Morgan does not submit to the contrary. The transcript is consistent with Mr McManamey’s submission on this point. Given Lotos’s opposition to the amendment, agitated on this appeal, the appropriate course is to uphold Ground No 10, in that Lotos was denied procedural fairness, in not being given an opportunity to be heard regarding the amendment.[220] This will have the effect that the Certificate of Determination is amended by the deletion of the order at paragraph [1].
[220] Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601, [123].

DECISION

The time for bringing the appeal is extended to 28 November 2017, pursuant to r 16.2(12) of the Rules.
Leave to appeal, to the extent that it is necessary, is granted pursuant to s 352(3A) of the 1998 Act.
The Certificate of Determination dated 24 October 2017 is amended by deleting the order at [1].
The Certificate of Determination dated 24 October 2017 is otherwise confirmed.

Michael Snell

Deputy President

27 April 2018