Mahal v State of New South Wales (No 2)
[2017] NSWWCCPD 46
•11 September 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | ||
| CITATION: | Mahal v State of New South Wales (No 2) [2017] NSWWCCPD 46 | |
| APPELLANT: | Inderjit Mahal | |
| RESPONDENT: | State of New South Wales | |
| INSURER: | Employers Mutual Ltd | |
| FILE NUMBER: | A1-2135/16 | |
| DECISION MAKERS: | Mr P McAdam; Mr R Parsons | |
| DATE OF DECISIONS: | 30 November 2016; 5 January 2017 | |
| DATE OF APPEAL DECISION: | 11 September 2017 | |
DATE OF RECONSIDERATION DECISION: | 31 October 2017 | |
| SUBJECT MATTER OF DECISION: | Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; reconsideration application | |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | SMK Lawyers | |
| ORDERS MADE ON RECONSIDERATION: | 1. The application, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, to reconsider the decision of 11 September 2017 is refused. | |
INTRODUCTION
On 11 September 2017, the Workers Compensation Commission published my determination of Ms Mahal’s appeal against the decisions of Mr P McAdam and Mr Parsons dated 30 November 2016 and 5 January 2017 respectively (Mahal v State of New South Wales [2017] NSWWCCPD 41). Mr Parsons is the Registrar of the Workers Compensation Commission and Mr McAdam exercised the Registrar’s powers through delegated authority.
I determined that the appeal was misconceived and should be dismissed pursuant to s 354(7A)(b) of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act).
On 18 September 2017, Ms Mahal filed an application for reconsideration pursuant to s 350(3) of the 1998 Act. Ms Mahal filed several submissions in support of the application and annexed proposed orders in the event the application was successful. On 12 October 2017, the respondent filed submissions in opposition to the application for reconsideration.
Section 350 of the 1998 Act provides:
“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) …
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
In Samuel v Sebel Furniture Limited[1] then Acting Deputy President Bill Roche considered s 350 comprehensively. Acting Deputy President Roche said:
[1] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel v Sebel).
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
(a) the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
(b) whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction.’ In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(c) whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Shipp’);
(d) one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
(e) a reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
(f) given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
(g) depending on the facts of the particular case, the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
(h) a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
(i) the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”[2]
[2] Samuel v Sebel at [58].
In that case Acting Deputy President Roche was prepared to exercise the power to reconsider the previous decision.
It is difficult to be entirely precise but as I understand, Ms Mahal’s application for reconsideration seeks to rely on the following grounds:
(a) Having found the appeal to be incompetent because of a lack of jurisdiction, I was in error in “passing judgment” on the fresh evidence in [13]-[25] of the appeal decision.
(b) Submissions relating to exemption from the operation of the “2012 Amendments”. These submissions are to be found in [14]-[30] of Ms Mahal’s submissions.
(c) I in effect held that s 352 was a complete code with respect to Presidential appeals. Ms Mahal refers to [26]-[35] of the appeal decision.
(d) I was in error in failing to accept her argument that cl 125 of the Workers Compensation Regulation 2016 (the 2016 Regulation) authorised an appeal from the Registrar or delegate’s decisions.
(e) I was in error in the manner in which the headings in the 2016 Regulation were utilised in the construction and interpretation of cl 125.
(f) I was wrong in my conclusion that s 327(3) of the 1998 Act reposed an administrative function on the Registrar and/or his delegate and that if the decisions were to be reviewed the appropriate remedy was to be found in s 69 of the Supreme Court Act 1970.
(g) The interaction between the statute and the 2016 Regulation as set forth in [45]-[49] of the appeal decision was incorrect.
(h) I failed to construe the legislation liberally and as generously as the language allowed, such that my construction of the legislation and the 2016 Regulation was inconsistent with the objects of the 1998 Act as set forth in s 3.
(i) I was in error in failing to permit an oral hearing.
I trust I have identified sufficiently accurately Ms Mahal’s grounds of complaint arising from the appeal decision of 11 September 2017.
The Respondent correctly submits (at [48]-[51]) that Ms Mahal’s submissions regarding the 2012 amendments that her status as an unsworn parking officer with the NSW police service was not the subject of an award by Mr McAdam or the Registrar and was not the subject of my determination. Not having previously been determined, it cannot be “reconsidered” under s 350(3) of the 1998 Act.
Ms Mahal’s submissions conflict with the principles applicable to an application for reconsideration as outlined above in Samuel v Sebel. In particular (d), (e) and (f) (see above [5]).
There is relevantly a public interest in finality and proceedings should not continue indefinitely.
Ms Mahal does not rely on additional evidence rather she seeks to advance argument in contradiction to my conclusions dispositive of the appeal.
Further, although not necessarily decisively against the application for reconsideration, Ms Mahal has the right of appeal to the Court of Appeal provided by s 353 of the 1998 Act.
Section 353 of the 1998 Act provides:
“(1) If a party to any proceeding before the Commission constituted by a Presidential Member is aggrieved by a decision of the Presidential Member in point of law, the party may appeal to the Court of Appeal.”
I determined that there was no jurisdiction to determine Ms Mahal’s appeal. In my view, a challenge to my determination in this regard should be by way of appeal to the Court of Appeal.
I am not satisfied that there is an appropriate basis to exercise the reconsideration power pursuant to s 350(3) of the 1998 Act. Accordingly, I decline to reconsider my decision of 11 September 2017.
DECISION
The application, pursuant to s 350(3) of the 1998 Act, to reconsider the decision of 11 September 2017 is refused.
Geoffrey Parker SC
Acting Deputy President
31 October 2017
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