Mahal v State of New South Wales (No 5)
[2019] NSWWCCPD 42
•20 August 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Mahal v State of New South Wales (No 5) [2019] NSWWCCPD 42 | |
| APPELLANT: | Inderjit Mahal | |
| RESPONDENT: | The State of New South Wales | |
| INSURER: | Treasury Managed Fund – Employers Mutual Ltd | |
| FILE NUMBER: | A2-2135/16 | |
| ARBITRATOR: | Mr J Harris | |
| DATE OF ARBITRATOR’S DECISION: | 18 February 2019 | |
| DATE OF APPEAL DECISION: | 20 August 2019 | |
| SUBJECT MATTER OF DECISION: | Practice and procedure on appeal – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; application for fresh evidence – CHEP Australia Limited v Strickland [2013] NSWCA 351 considered; application for reconsideration – Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 considered; application to re-open matter – practice and procedure in Commission; application to state a case from the Commission to the Supreme Court – Div 8 of Pt 6 UCPR considered | |
| PRESIDENTIAL MEMBER: | President Judge Phillips | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | SMK Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 18 February 2019 is confirmed. | |
INTRODUCTION
This matter concerns the ventilation of a number of issues by the appellant, some of which have previously been determined in the Commission, both at first instance and on appeal. The issues addressed in this appeal are the appellant’s:
(a) application to admit fresh evidence; and
(b) application for reconsideration of the Approved Medical Specialist (AMS), Dr Marsh’s Medical Assessment Certificate (MAC) of 16 September 2016; and
(c) application to re-open the appellant’s entire matter in light of the report of Dr Khan dated 14 March 2019, which assessed her as having a degree of 30% whole person impairment; and
(d) application to state a case to the Supreme Court and to the Court of Appeal in respect of the appellant’s constitutional question and her status as an exempt worker by virtue of being a police officer; and
(e) general submission that the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is remedial and beneficial in nature and submissions in respect of “natural language and the invasion of significant rights”; and
(f) claim for s 67 of the Workers Compensation Act 1987 (the 1987 Act) benefits, and
(g) questions regarding the constitutional validity of s 39 of the 1987 Act, in particular in respect of the referral of such questions to me to determine as a Judge of the District Court, and the invitation of the State Insurance Regulatory Authority (SIRA) to intervene pursuant to s 106 of the 1998 Act.
For the reasons set out herein, the appellant’s appeal is dismissed.
BACKGROUND
Employment and injury history
The appellant worked with the respondent as a parking patrol officer from 13 January 1997 until 4 December 2001 when she states she was medically retired. The appellant suffered injuries, described in her statement annexed to her submission of 21 December 2018, to both feet, neck, right shoulder, right arm, lower back, right leg, left hip and left leg. The appellant claimed that she suffered an injury on 1 December 2000 due to prolonged walking, patrolling, bending and stretching as a parking patrol officer.
In 2003 the appellant recovered lump sum compensation in respect of her injuries, for 15% permanent impairment of the lumbar spine, 10% permanent impairment of the cervical spine, 10% loss of use of the left leg at or above the knee, and 5% loss of use of the sexual organs.[1] These sums were on the basis of the Table of Disabilities. She also recovered a sum of $10,650 pursuant to s 67 of the 1987 Act in respect of pain and suffering. Confirmation of the registration of a s 66A agreement was issued by the Commission on 2 July 2003.
[1] WCC Matter No 6201/2003.
In Consent Orders dated 4 December 2018, the appellant was also awarded a sum of $18,750, pursuant to s 66 of the 1987 Act, in accordance with the MAC of Dr Marsh dated 16 September 2016 for 15% loss of efficient use of the right leg at or above the knee and 10% loss of efficient use of the left leg at or above the knee. The respondent was also ordered to pay the appellant’s s 60 expenses on a general order.
Matters brought before the Commission
The appellant has conducted a number of proceedings in the Commission arising from her injuries, which are detailed as follows.
Mahal v State of New South Wales [2017] NSWWCCPD 41 (11 September 2017) (Mahal No 1)
Mahal No 1 involved an appeal to a Presidential member, pursuant to s 352 of the 1998 Act. The procedural background to Mahal No 1 is as follows. On 28 April 2016, the appellant filed a further Application to Resolve a Dispute (ARD) in the Commission seeking lump sum compensation, weekly compensation and medical expenses. Ultimately, the only part of the application pursued was the claim for further lump sum compensation under the Table of Disabilities, and assessment of whole person impairment (WPI) for a threshold dispute.
On 31 August 2016, an Arbitrator issued a Certificate of Determination - Consent Orders. The claims for weekly payments of compensation and medical expenses were discontinued. An Award for the respondent in relation to injury to the arms was made. The Consent Orders noted injury to the appellant’s right leg and the matter was referred to an AMS for assessment of the back, neck and both legs.
On 16 September 2016, Dr Marsh (AMS), issued a MAC assessing the appellant as having 7% WPI, with a deemed date of injury of 1 or 5 December 2000. Dr Marsh’s assessments were issued in accordance with the Table of Disabilities for injuries received before 1 January 2002 and in accordance with AMA 5 and the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
The appellant filed a series of unsuccessful medical and Presidential appeals, and associated applications for reconsideration. On 30 September 2016, the appellant lodged an Application to Appeal the decision of the AMS. The challenge to the MAC relied on a report of Dr Khan dated 27 September 2016.
On 30 November 2016 Mr McAdam, the Registrar’s Delegate, determined that the Application to Appeal the decision of the AMS did not satisfy s 327(3) of the 1998 Act.
On 17 December 2016, the appellant filed an Application for Reconsideration of the decision of the Registrar’s Delegate. On 5 January 2017, the appellant wrote to the Registrar requesting that the Application for Reconsideration be referred to a different Delegate. This request was refused, the appellant being informed by email of the same date that reconsideration of the decision would be by the original decision maker.
On 6 January 2017 the appellant requested that the Registrar reconsider his decision. The same day the Registrar indicated that the matter would be determined by the same Delegate. On 7 January 2017 the appellant provided submissions with references to various cases, requesting that the Registrar reconsider the Delegate’s decision rather than the matter being remitted to Mr McAdam as Delegate. On 13 February 2017 the Registrar declined the appellant’s request to refer the reconsideration application to someone other than Mr McAdam.
On 8 April 2017 the appellant lodged an Application to Appeal to a Presidential member against the Delegate’s 30 November 2016 decision and the Registrar’s 5 January 2017 decision to remit the matter to the same Delegate for reconsideration.
On 11 September 2017 Acting Deputy President Parker held that there was no jurisdiction for a Presidential member to review the decision of the Registrar under s 327(4) of the 1998 Act and that there was therefore no further basis upon which the President ought intervene in relation to this issue. The appeal was found to be misconceived and was dismissed pursuant to s 354(7A)(b) of the 1998 Act.[2]
[2] Mahal No 1, [64]–[65].
Mahal v State of New South Wales (No 2) [2017] NSWWCCPD 46 (31 October 2017) (Mahal No 2)
Mahal No 2 involved an application by the appellant that Parker ADP reconsider his decision in Mahal No 1 above. This, the Acting Deputy President declined to do.[3] I note that neither of the appeals in Mahal No 1 nor Mahal No 2 raised, in any way, the issue of whether the appellant was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act.
[3] Mahal No 2, [16]–[17].
The appellant made no subsequent appeal to the Court of Appeal in respect of Mahal No 1 or Mahal No 2.
Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30 (Mahal No 3)
The background to Mahal No 3 is as follows. The appellant was in receipt of voluntary weekly payments in respect of her injuries. The respondent’s insurer, Employers Mutual Limited (the insurer), advised the appellant on 17 August 2017 that as her WPI was assessed by Dr Marsh as “under 21%, [she] will not be entitled to weekly payments beyond 260 weeks”. The appellant responded on 24 August 2017, asserting that the “legislative amendments of 2012 do not apply in my matter as I was a Police Officer”. On 13 September 2017, the insurer wrote to the appellant advising that her last date of entitlement to weekly payments would be 1 January 2018.
The appellant brought an application for weekly compensation on a continuing basis from 1 January 2018. This entitlement was dependent on the appellant not being subject to the Workers Compensation Legislation Amendment Act 2012 (2012 amending Act). Schedule 6, Pt 19H, cl 25 of the 1987 Act provides that police officers, paramedics and firefighters are exempt from the operation of the 2012 amending Act amendments. On 8 March 2018, Arbitrator Dalley issued a Certificate of Determination (COD). After noting that the appellant’s weekly payments ceased as at 31 December 2017, he found that the appellant, who was employed by the New South Wales Police Force as a parking patrol officer, did not fall within the statutory definition of a ‘police officer’, and was as a result not an exempt worker. He held that the Commission had no power to order the payment of weekly compensation beyond 1 January 2018. The worker appealed.
On appeal, (then) Acting President Snell confirmed Arbitrator Dalley’s determination of 8 March 2018, finding the appellant was not an exempt worker within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act, such that the 2012 amendments did apply to her. AP Snell found that the Arbitrator’s conclusion that the definition of ‘police officer’ in the Interpretation Act1987 applied to cl 25 was clearly correct, as was his conclusion that the appellant did not fall within that definition. He found the Court of Appeal decisions of Chapman-Davis[4] and Stockwell[5] did not assist the worker’s proposition in respect of her categorisation as an exempt worker.
[4] State of New South Wales v Chapman-Davis [2016] NSWCA 237.
[5] State of New South Wales v Stockwell [2017] NSWCA 30.
AP Snell found the evidence did not suggest that the appellant was ever classified as, or held the status of, a ‘police officer’. Further, the respondent was not estopped by its failure to dispute the appellant’s status as a ‘police officer’ in the original proceedings in which the appellant was awarded benefits over a decade ago, from now asserting she is not a ‘police officer’ for the purposes of the 2012 amending Act.
AP Snell also dismissed the appellant’s claim that she was denied procedural fairness by the Arbitrator determining the issues before him without an oral hearing, noting she was legally represented at the time. He also rejected the argument that the appellant was not given an opportunity to address the application of Muscat v Parramatta City Council[6] and D’Angelo v NSW Police Force.[7] AP Snell dismissed the appellant’s allegations of bias and further found any ground based on actual or apprehended bias could not succeed in any event, due to the lack of articulation of the basis of any objection to the Arbitrator continuing to deal with the matter.
[6] [2014] NSWWCC 406.
[7] [2016] NSWWCC 54.
Mahal v The State of New South Wales (No 4) [2018] NSWWCCPD 38 (Mahal No 4)
Mahal No 4 was an application for reconsideration by the appellant of (then) AP Snell’s decision on appeal in Mahal No 3. The issues in this application to DP Snell were whether (i) the Deputy President should recuse himself from determining the worker’s reconsideration application, and (ii) the worker was a ‘police officer’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act.
In respect of the first issue, DP Snell found there was no evidence that could give rise to a reasonable apprehension, on the part of a fair-minded lay observer, that he would not bring an impartial and unprejudiced mind to the reconsideration application. The appellant’s recusal application was therefore refused.
The second issue was previously dealt with in Mahal No 3, in which the Commission did not deal with the worker’s submissions in reply, as it was not apparent that she had lodged any. DP Snell applied Samuel v Sebel Furniture Limited,[8] and noted that as a general proposition, it would not be an appropriate basis for reconsideration, if a party’s submissions were not considered because the party failed to lodge them with the Registry in accordance with the Workers Compensation Commission Rules 2011 (2011 Rules) and practice of the Commission. In the circumstances of the current matter, the submissions of the self-represented party were not considered, when she had served them in time, and sought to lodge them in time, electronically, at an email address of the Commission, albeit an inappropriate one. The relief which she sought was simply that the matter be reconsidered, taking account of her submissions in reply, as if they had been lodged correctly in the first place. In the Deputy President’s view, the interests of justice favoured reconsidering the decision in Mahal No 3, so the appellant’s submissions in reply could be considered.
[8] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
The sections of the appellant’s submissions in reply, headed “Presumption Against Invasion of Significant Rights” and “Constitutional Invalidity”, raised issues that were not part of the case presented at first instance before the Arbitrator (when the appellant was legally represented). They were not raised in the appellant’s grounds of appeal. The appellant’s “Constitutional Invalidity” argument led it to a submission that s 39 and Sch 6, Pt 19H, cl 25 of the 1987 Act “are constitutionally invalid and of no force or effect”. The arguments were first raised in the appellant’s submissions in reply on the appeal, which were being considered as part of the reconsideration application. No application was made to amend the grounds of appeal.
DP Snell noted his role on an appeal pursuant to s 352 of the 1998 Act was to determine “whether that determination was or was not affected by any error of fact, law or discretion, and to the correction of any such error”. The submissions relating to the “Constitutional Invalidity” argument fell outside that scope and were therefore not relevant to the issue in dispute.
In respect of the outstanding issues in dispute, namely allegations relating to procedural fairness and the term “police officer”, upon reconsideration DP Snell confirmed his decision for the reasons provided in Mahal No 3.
The appellant made no subsequent appeal to the Court of Appeal in respect of Mahal No 3 or Mahal No 4.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. Both parties have indicated that they are content to have this matter dealt with ‘on the papers’ and I shall proceed accordingly.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The appellant filed an Application to Resolve a Dispute (Original ARD) in the Commission on 28 April 2016. On 2 June 2016, Arbitrator Capel issued a Direction in the following terms:
“1. The matter is listed for a further telephone conference at 12.00 pm on 24 June 2016.
2. The applicant’s solicitor, Mr Buttar, is to ensure that he is available to participate in the telephone conference.
3. The applicant’s solicitor is to file and serve a properly indexed Amended Application to Resolve a Dispute, removing unnecessary and duplicated documents, ensuring that the evidence is in a logical and proper chronological order in accordance with E bulletin 57 (July 2014), by 20 June 2016.
4. In the event that the applicant’s solicitor fails to comply with this Direction by 20 June 2016, I propose to strike the matter out.”
The appellant subsequently filed an Amended Application to Resolve a Dispute (Amended ARD) on 20 June 2016. I note both the Original ARD and the Amended ARD were signed by Mr Buttar. The Amended ARD is largely the same as the Original ARD, but for an updated index and the removal of unnecessary and duplicated documents as directed by Arbitrator Capel. The only medical documents removed from the Original ARD appear to be approximately 78 pages of WorkCover Medical Certificates dated between 25 August 1997 to 21 April 2016 and an admission letter to Blacktown Hospital. The other supporting documents removed from the Original ARD appear to be as follows: Register of Injuries and Employer’s report of injury of 28 July 1998, PAYG Statements dated 1 July 1997 to 30 June 2002, Operation Quote of Dr George Hardas dated 11 October 2011; TMF s 74 Notice dated 24 November 2015; ATO documents dated 25 January 2016 and a TMF work capacity decision dated 26 February 2016. The appellant appears to have included 69 pages of ATO Documents, which appear to be her 1998 tax return, in the Amended ARD, which were not present in the Original ARD.
The evidence relied upon is essentially that contained in the parties’ written submissions before Arbitrator Harris. I note the appellant states in her first set of submissions “the following submissions made by Ms. Inderjit Mahal in the matter numbers 2135/16 and 6377/17 Joined by WCC on 4 December 2017 and might be read as her statement as well as evidence.” (emphasis in original).
Ultimately, the issues of a medical nature were resolved in Consent Orders dated 4 December 2018, which provided the employer pay the appellant s 60 expenses on the basis of a general order and a sum of $18,750 in compensation pursuant to s 66 of the 1987 Act in accordance with the MAC of Dr Marsh dated 16 September 2016 for 15% loss of efficient use of the right leg at or above the knee in the sum of $11,250; and a further 10% loss of efficient use of the left leg at or above the knee in the sum of $7,500.[9]
[9] Mahal v State of New South Wales (2135/16, 4 December 2018).
At the 7 February 2019 arbitration hearing, the appellant was granted leave to rely on the evidence contained in her Application to Admit Late Documents (AALD) which was filed by the appellant on 25 January 2019. The AALD includes various medical reports including amongst other documents, Blacktown Hospital Reports dated 3 March 2017 and 8 March 2017, notes of treating physiotherapist at Active West Physiotherapy Blacktown dated 11 January 2019, 10 December 2018, 5 January 2018, 13 June 2017 and reports from Gastroenterologist Dr Gill dated 19 May 2017, 10 and 16 July 2017. In addition to various medical reports, the AALD included further written submissions.
THE ARBITRATOR’S REASONS
Arbitrator Harris issued two CODs relevant in this appeal, dated 18 February 2019 and 16 April 2019.
The COD issued on 18 February 2019 records:
“Finding
1. The applicant is not entitled to compensation pursuant to s 67 of the Workers Compensation Act 1987.
Order
2. Award for the Respondent pursuant to s 67 of the Workers Compensation Act 1987.
3. I decline to refer any question of law to the President pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 Act.
4. I decline to grant any further relief sought by the applicant.”
The COD issued on 16 April 2019 records:
“1. The applicant is not entitled to compensation pursuant to s 67 of the Workers Compensation Act 1987.”
In his statement of reasons in the 18 February 2019 COD,[10] the Arbitrator noted the Consent Orders made following the telephone conference of 4 December 2018 for the payment of s 66 compensation in accordance with Dr Marsh’s MAC for the right and left legs and a general order for s 60 expenses. The Consent Orders also set out the remaining matters in dispute, and referenced an email from Mr Buttar dated 29 November 2018 which outlined additional matters to be determined. It was agreed that the issues in dispute were limited to those set out in the Consent Orders and the email of 29 November 2018.[11] These are set out below at paragraphs [70] and [72].
[10] Mahal v State of New South Wales [2019] NSWWCC 65 (Reasons).
[11] Transcript of Proceedings (T), Mahal v State of New South Wales [2019] NSWWCC 65, Arbitrator Harris, 7 February 2019, T 24.14.
In respect of the appellant’s claim for s 67 benefits, in which the appellant sought to rely on her resolved 2003 claim as providing an exception to the 2012 amending Act, the Arbitrator referred to the Court of Appeal’s decision in in Cram Fluid Power Pty Ltd v Green.[12] Cram Fluid makes it clear that a resolved claim made prior to the 2012 amending Act does not come within the exception provided by clause 11 of the 2016 Regulations. The Arbitrator found that conclusion was sufficient to dispose of the applicant’s claim for s 67 compensation. He also noted the decision of Keating P in Woolworths Ltd v Wagg[13] did not assist the appellant. The Arbitrator further noted the appellant’s reliance on Matilda Cruises Pty Ltd v Sweeny[14] and Brewster v Proline Pumping Pty Ltd[15] was misconceived in respect of a claim for s 67 benefits.
[12] [2015] NSWCA 250 (Cram Fluid).
[13] [2017] NSWWCCPD 13 (Wagg).
[14] [2018] NSWWCCPD 37 (Matilda Cruises).
[15] [2010] NSWWCCPD 32 (Brewster).
The Arbitrator noted that if he were wrong in this respect, he agreed the parties’ position by consent was that the appellant’s s 67 entitlement would be $15,000, less the $10,650 received through the 2003 complying agreement, which would amount to a sum of $4,350 in s 67 compensation, if such entitlement existed.[16]
[16] T 29.32–30.5.
In respect of the appellant’s assertion that s 39 of the 1987 Act contravenes s 109 of the Commonwealth Constitution, the Arbitrator referred to the Court of Appeal cases of Orellana-Fuentes v Standard Kitting Mill Pty Ltd[17] and Attorney-General for New South Wales v Gatsby[18] in considering whether the Commission was a court of the state for the purposes of the Constitution and s 39 of the Judiciary Act 1903 (Cth). The Arbitrator noted the observations expressed by Leeming JA in Gatsby that a Tribunal could not form a determination on this question and only form an opinion. His Honour stated:[19]
“At best, all that NCAT could do was to form and express an opinion, in accordance with what Brennan J had said, sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 242.”
[17] [2003] NSWCA 146 (Orellana-Fuentes).
[18] [2018] NSWCA 254 (Gatsby).
[19] Gatsby at [281], Beazley P agreeing at [197].
As such, the Arbitrator confirmed that there was no merit in the applicant’s submission that the issue of constitutional invalidity could be determined by the President of the Commission. The Arbitrator therefore declined to refer this or any question of law to the President. This decision was reiterated in the 16 April 2019 COD. The Arbitrator noted the appellant’s comments in her Application that “His Hon. President may not decide the question of law by himself but to refer the constitutional issues to the Court of Appeal” and opined that this comment may be an acceptance that the President cannot decide the constitutional issue. The Arbitrator found the appellant’s application for him to refer the question of law to the President futile because the President has no power to determine the issue or otherwise refer the question to the Court of Appeal. He further declined the application having already ruled on this matter in the 18 February 2019 COD.
The Arbitrator further found that given Snell DP had determined the appellant was not a police officer and therefore was subject to the 2012 amending Act in Mahal No 3, he did not accept that the appellant’s claim for compensation pursuant to s 39 of the 1987 Act was an issue before him.
In respect of the alleged “human rights issues” raised in Mr Buttar’s 29 November 2018 email, which related to the alleged disadvantage suffered by the appellant as an unrepresented litigant, and alleged bias of Snell DP in Mahal No 3 and Mahal No 4, the Arbitrator held he had no power to review a decision of a Presidential member. The fact that the applicant was unrepresented on any appeal does not impugn the determination. The Arbitrator noted that it was clear that the appellant was seeking to relitigate issues previously determined adversely to her interests and found the submissions relating to “human rights issues” had no merit.
LEGISLATION
The appellant, as will become apparent, seeks various orders and relief in this appeal. It is necessary to set out the various statutory provisions sought to be traversed in this appeal.
Section 327(3) of the 1998 Act relevantly provides:
“The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
…”
Section 350(3) of the 1998 Act provides:
“350 Decisions of Commission
(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) A decision of or proceeding before the Commission is not:
(a)to be vitiated because of any informality or want of form, or
(b)liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(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.”
Section 351 of the 1998 Act provides:
“351 Reference of question of law on compensation claim to Commission constituted by Presidential member
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President.
(2) The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.
(3) The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.
(4) If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.
(5) Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter.
(6) On the determination of a question referred to the Commission under this section:
(a) if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or
(b) if an award has been made in the matter in which the question arose, the award must be varied in such a way as will make it consistent with the opinion of the Commission on the question.
(7) The reference of a question of law under this section may be by stating a case on a question of law.
(8) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”
Section 352(6) of the 1987 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Section 39 of the 1987 Act provides:
“39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).”
Repealed s 67 of the 1987 Act provided:
“67 Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.
(1A) (Repealed)
(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
(3A) (Repealed)
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
(4A) (Repealed)
(5) Compensation under this section is not payable after the death of the worker concerned.
(6) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.
(7) In this section:
pain and suffering means:
(a) actual pain, or
(b) distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”
The relevant transitional provisions introduced by the 2012 amending Act are cls 15 and 25 of Pt 19H of Sch 6 to the 1987 Act.
Clause 15 of Schedule 6, Pt 19H of the 1987 Act provides:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 25 of Schedule 6, Pt 19H of the 1987 Act provides:
“25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
Rules 16.1 and 16.2 of the 2011 Rules provide:
“16.1 Referral of question of law
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may be referred under section 351 of the 1998 Act for the opinion of the Commission constituted by the President only if a certificate of determination has not been issued in respect of the proceedings.
(2) A party to any proceedings applying for the reference by an Arbitrator of a question of law in the proceedings under section 351 of the 1998 Act must lodge the application and serve it on the Arbitrator, the Authority, and the other parties to the proceedings as soon as practicable.
(3) An application referred to in subrule (2) must include, or have attached, full details of the question of law and the reasons for seeking its referral, including the reasons why it is alleged that the question involves a novel or complex question of law as referred to in section 351 (3) of the 1998 Act.
(4) When a party seeks to oppose an application referred to in subrule (2) the party must, within 14 days of being served with the application, lodge and serve on the Arbitrator, the Authority, and the other parties notice of that opposition.
(5) A notice of opposition must include, or have attached, full details of the reasons for opposing the application.
(6) Where an application is lodged under subrule (2), and a party wishes to object to the matter of leave to refer the question of law being decided solely on the basis of the written application and any written notice of opposition lodged, the party must state that objection, including the reasons for the objection in full, in the application or notice of opposition lodged by the party.
(7) Where an Arbitrator, on the application of a party, seeks leave to refer a question of law under section 351 of the 1998 Act, the Arbitrator must give to the Registrar, as soon as practicable and in any case before any certificate of determination is issued in respect of the proceedings:
(a) the application served on the Arbitrator under subrule (2), and
(b) any notice of opposition served on the Arbitrator under subrule (4), and
(c) any statement of the question of law that the Arbitrator wishes to be considered by the President.
(8) Where an Arbitrator, of the Arbitrator’s own motion, decides to seek leave to refer a question of law under section 351 of the 1998 Act, the Arbitrator must, as soon as practicable, give to the Registrar a notice of that decision including, or having attached, full details of the question of law and the reasons for seeking leave to refer it, including the reasons why it is alleged that the question involves a novel or complex question of law as referred to in subsection (3) of that section.
(9) Where an Arbitrator seeks leave to refer a question of law under section 351 of the 1998 Act and decides not to make an award in the matter in which the question arose (as authorised by subsection (5) of that section), the Arbitrator must give to the Registrar a notice of that decision including, or having attached, the reasons for the decision.
(10) The Registrar must, as soon as practicable, give to the parties copies of any notice under subrule (8) or (9) received by the Registrar.
16.2 Appeal against Arbitrator’s decision
(1) A party to a dispute in connection with a claim for compensation may appeal under section 352 of the 1998 Act against a decision of an Arbitrator by application to the Registrar within 28 days after the making of the decision appealed against or within such extended time for making the appeal as may be ordered under subrule (12).
(2) For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294 (1) of the 1998 Act.
(3) If the Registrar is not satisfied that the requirements of section 352 of the 1998 Act, or any applicable rules, regulations and Practice Directions as to the making of the appeal, have been complied with, he or she may particularise the non-compliance in a Direction to rectify procedural deficiencies, as an alternative to refusing to accept, seal, issue or register the document. The appeal will not proceed further until the Registrar is satisfied the appeal is procedurally compliant.
(4) An application referred to in subrule (1) must have attached to it a copy of the certificate as to the determination of the dispute referred to in subrule (2), and must include, or have attached, full details of:
(a) the arguments in support of the appeal and, if necessary, arguments in support of leave to appeal an interlocutory decision, and
(b) for the purposes of section 352 (3) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and
(c) any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352 (6) of the 1998 Act, and
(d) if the party lodging the application wishes to object to the appeal being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for the objection, and
(e) an objective chronology of all key events leading up to the commencement of the proceedings. The chronology should not be a chronology only of those matters of assistance to the party preparing it.
(5) The party lodging an application referred to in subrule (1) must serve a sealed copy of the application, including any attachments, on:
(a)all other parties to the proceedings, and
(b)where any of those parties is an employer (but not a self-insurer), the employer’s insurer,
during the period of 7 days commencing on the day on which the Registrar registers the application.
(6) The appellant must lodge a certificate of service within 7 days of the date of service, certifying service of the sealed application on the other parties.
(7) Where a party seeks to oppose an application, that party must, within 28 days of being served with the application, lodge and serve on the other parties notice of that opposition.
(8) A notice of opposition referred to in subrule (7) must include, or have attached, full details of:
(a) the arguments in support of opposing the appeal and, if necessary, arguments in opposition to the granting of leave to appeal an interlocutory decision, and
(b) for the purposes of section 352 (3) of the 1998 Act, the amount of compensation alleged to be at issue in the appeal, and
(c) any new evidence in respect of which leave is to be sought, by the party lodging the notice of opposition, in accordance with section 352 (6) of the 1998 Act, and
(d) if the party lodging the notice wishes to object to the appeal being decided solely on the basis of the written application and any notice of opposition lodged, the reasons for the objection.
(9) The party opposing the application may file an alternative or supplementary chronology of events to that filed by the appellant in accordance with rule 16.2 (4) (e).
(10) The party opposing the application must lodge a certificate of service within 7 days of the date of service, certifying service of the sealed notice of opposition on the other parties.
(11) For the purposes of section 352 (4) of the 1998 Act, an appeal is made when the application is registered by the Registrar.
(12) 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.
(13) A party who seeks an extension of time as referred to in subrule (12) must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
Sections 5 and 6 of the Disability Discrimination Act provide:
“5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Section 48 of the Supreme Court Act 1970 provides:
“48 Assignment to the Court of Appeal
(1)(a) In this section:
specified tribunal means:
(i)the Land and Environment Court or a Judge of that Court,
(ia)(Repealed)
(ii)(Repealed)
(iia)the Dust Diseases Tribunal of New South Wales,
(iii)(Repealed)
(iv)the District Court or a Judge of the District Court (but not a Judicial Registrar of that Court),
(v)(Repealed)
(vi)a judge or member functioning or purporting to function under any Act giving power to a judge or member, whether as judge or member or as a designated person,
(vii)a tribunal or other body (not including the State Parole Authority) that was constituted by one or more judges or members when exercising the functions, or purporting to exercise the functions, to which the proceedings in the Court relate, or
(viii)the Civil and Administrative Tribunal when exercising functions, or purporting to exercise functions, for the purposes of the Legal Profession Uniform Law (NSW)(including as applied by the Public Notaries Act 1997).
(b) In paragraph (a) (vi) and (vii), judge or member means:
(i)a Judge or associate Judge, or
(ii)a judge or member of any body referred to in paragraph (a) (i)–(iv).
(2) There are assigned to the Court of Appeal proceedings in the Court:
…
(h)on a case stated by a specified tribunal.
…”
PRINCIPLES ON APPEAL
The appellant is a litigant in person. The appellant has re-iterated this point at a number of places in her written submissions. The appellant though has had legal assistance (at least in part) in the drafting of her submissions. The appellant acknowledges that the submissions on the constitutional question were prepared by Dr Scott Calnan, a teaching fellow in constitutional law at the University of New South Wales and a tutor in administrative law at the UTS. The appellant was also legally represented by counsel and solicitors in the proceedings before Arbitrator Harris.
It is necessary therefore to set out, in some detail, the powers of the Commission to deal with appeals. As will become evident, the appellant seeks a variety of different orders and relief in these proceedings against a background of prior litigation over her entitlement to various workers compensation benefits arising from her injuries. As described in the “Background” section (above), the appellant has conducted a number of matters before this Commission in relation to her work injuries. The appellant in these proceedings in summary advances the following arguments:
(a) five grounds of appeal (set out below); and
(b) in her documents (2 separate documents) entitled “Relief sought” (see below) the appellant seeks various relief including inter alia that a case be stated to the Supreme Court and/or the Court of Appeal; and
(c) that this appeal may be considered “as a referral” by the Arbitrator of a question of law; and
(d) that order 4 of the Certificate of Determination dated 18 February 2019 be set aside; and
(e) the appellant seeks to set aside the binding MAC determination by Dr Marsh dated 16 September 2016 and that the matter be referred to another medical appeal panel together with consequential orders revising her MAC assessment, and
(f) the appellant seeks a reconsideration of earlier Presidential appeal decisions and further seeks the re-opening of her entire matter which has, as described in the “Background” section (above) already produced the following decisions: the Registrar’s Delegate’s medical appeal determination on 30 November 2016 in Matter No M1-2135/16, the Registrar’s decision dated 5 January 2017, Mahal No 1 before ADP Parker SC dated 11 September 2017, Mahal No 2 before ADP Parker SC dated 31 October 2017, the Registrar’s Delegate’s reconsideration decision dated 4 December 2017, Mahal No 3 before Acting President Snell dated 20 July 2018, Mahal No 4 before DP Snell dated 11 September 2018 and Arbitrator Harris’ decision which is the subject of this appeal.
Therefore given the multiplicity of the grounds and relief sought on appeal, it is necessary that I set out (below) the principles of appeal. As will be seen, a number of the matters sought to be agitated on appeal were not part of the proceedings before Arbitrator Harris.
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[20] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[21] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[22]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[23]
[20] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[21] (1966) 39 ALJR 505, 506.
[22] [1996] HCA 140; 140 ALR 227.
[23] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[24] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[25]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[26]
[24] [2017] NSWWCCPD 5, [67].
[25] [2001] FCA 1833, [28].
[26] Raulston, [20].
In Northern NSW Local Health Network v Heggie[27] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[27] [2013] NSWCA 255; 12 DDCR 95, [72].
Additionally, the conduct of appeals against decisions of arbitrators is governed by Practice Direction No 6. For relevant purposes, the Practice Direction provides as follows:
“17. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a)the respects in which error of law, fact or discretion is alleged to have occurred;
(b)any material findings it is said the Arbitrator should or should not have made, and
(c)any material facts it is said the Arbitrator should or should not have found.
18. It is not acceptable to merely allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
The necessity to comply with Practice Direction No 6 has been the subject of prior Presidential decisions.[28]
[28] Kula Systems Pty Ltd v Workers Compensation NominalInsurer [2018] NSWWCCPD 10 per President Judge Keating [146]–[149].
Subject to the Commission’s power to allow “with leave” fresh evidence or additional evidence in the circumstances which are set out in s 352(6) of the 1998 Act, the parties will be bound by the presentation of their case at the arbitration hearing and on appeal neither party will be permitted to raise new issues.[29] In this regard I should remark that whilst the appellant is in the appeal proceedings a litigant in person, she was represented by solicitors and counsel in the hearing before Arbitrator Harris on 7 February 2019 which, inter alia, involved the issuing of Consent Orders on 4 December 2018 which are in the following terms:
[29] Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (Metwally).
“Orders
1. The respondent pays the applicant compensation pursuant to s 66 of the 1987 Act in accordance with the Medical Assessment Certificate of Dr Marsh dated 16 September 2016 as follows:
(a)15% loss of efficient use of the right leg at or above the knee in the sum of $11,250; and
(b)a further 10% loss of efficient use of the left leg at or above the knee in the sum of $7,500;
such sums totalling $18,750.
2. The respondent pays the Applicant’s s 60 expenses on the basis of a general order.
Directions – Outstanding Issues
3. The applicant’s written submissions on her entitlement to s 67 compensation are to be filed and served by close of business on 24 December 2018. The respondent asserts that the current s 66 claim was made by letter dated 16 July 2015 (Application, page 375) and there is no entitlement to s 67 compensation.
4. The applicant asserts that she is entitled is s 39 compensation in accordance with the email from Mr Buttar dated 29 November 2018. The respondent relies on the Medical Assessment Certificate of Dr Marsh dated 16 September 2016.
5. The other four issues are identified as (a) to (d) in Mr Buttar’s email dated 29 November 2018. The Respondent submits that these issues were either determined on Appeal or are otherwise not a matter for me.
6. The parties agree that directions 3 – 5 contain the six remaining issues for determination and there are no other issues for determination.
7. The matter listed for hearing on 7 February 2019 at 10 am at Sydney.”
As is evident from consent order no 7, on 4 December 2018, the matter was listed for hearing with respect to the outstanding issues, orders 3, 4, 5 and 6.
The email from Mr Buttar, solicitor, referred to in Direction 4 and 5 above relevantly provides as follows:
“Email from Mr Pervaiz Buttar to the Workers Compensation Commission dated 29 November 2018 at 1.20 pm
We note there are additional substantive issues which exist and which further complicate the matter before the Commission.
Firstly, our client raised an issue relating to her entitlement to weekly payments. Dr Khan in his report dated 9 July 2015 assessed Ms Mahal as having WPI of 26% on the basis on four different injuries. Ms Mahal had previously been advised she was not entitled to a further assessment of the degree of permanent impairment resulting from the aggregation of these injuries, for the purposes of Section 66 of the Workers Compensation Act (WCA). We submit the facts and issues raised in this matter fall parallel to those raised in the recent decision of Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37. Therefore in this regard we similarly conclude Section 39 will no longer operate to exclude Ms Mahal from entitlement to weekly payments and that weekly payments may continue after 260 weeks based on Dr Khan's assessment of 26% WPI.
Secondly, there are a number of human rights issues which have been also been [sic] raised in our appeal submissions filed with the Commission. These are particularised as follows:
(a) the worker was an unrepresented litigant who should not suffer unfair disadvantage;
(b) the issue with Deputy President bringing an impartial mind to this matter given he had already previously arrived to a conclusion on the very same matter;
(c) that the amendments made in the 2012 Amending Act to section 39 of the WCA amount to direct and indirect disability discrimination within the meanings of sections 5 and 6 of the Disability Discrimination Act; and
(d) issues relating to statutory provisions and statutory interpretation with respect to the definition of ‘police officer’.” (emphasis added)
These paragraphs [(a)–(d)] in the email of 29 November 2018 were thus identified by the Arbitrator as being issues to be dealt with at the hearing. I would remark however that paragraph (a) of Mr Buttar’s email of 29 November 2018 was a misrepresentation of the true state of affairs regarding the appellant’s representation. It was made in circumstances where Mr Buttar was plainly aware that he was the appellant’s legal representative, having signed the ARD on her behalf and the email described the appellant as “our client”. He was clearly acting as the appellant’s lawyer. This assertion ought not to have been made, although nothing more turns on this.
It has been necessary to set out at length the principles on appeal and in particular to once again draw attention to that which an appeal must be concerned with. Namely the correction of an error of fact, law or discretion. Specifically, having regard to the multiplicity of matters that the appellant seeks to agitate on appeal which I set out below beneath the heading “Grounds of Appeal”, I repeat the phrase contained in s 352(5) of the 1998 Act, “the appeal is not a review or new hearing.” What I am concerned with on appeal is the correction of, if any, error which has been identified below.
APPELLANT’S GROUNDS OF APPEAL
The Application to Appeal Against the Decision of Arbitrator Harris has been completed by the appellant in handwriting and has annexed to it a number of typewritten pages and documents. In terms of the grounds of appeal, at Part B, paragraph [2.8], the grounds of appeal are identified by the appellant in the following manner:
“Separate attachment (pages 10–12)”.
The submissions in support of those grounds are then, at paragraph [2.9], listed as follows:
“Separate attachment (pages 12–34)”.
Consistent with the format of the Application, the attached document is entitled:
“Part B: Grounds of Appeal and Submissions in Support”.
Paragraph [2.8] at page 10 of the attachment is entitled “Grounds of appeal” and then set out below are five numbered paragraphs. The grounds of appeal as pleaded are as follows:
“2.8Grounds of appeal
1. (a) As a special tribunal set up for the resolution of Workers Compensation disputes, the arbitrator being a member of WCC, has wrongly and unfairly accepted the respondent’s submissions in relation to appellant’s entitlements under s 67 (Submissions paragraphs [3(b), 13(a-c), 14(d) and 21-28)] and constitutional invalidity of s 39 from the operation of 2012 Amending Act by the operation of clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 under section 5 and 6 of “DDA” (Cth) (Submissions at paragraphs [2, 6, 12, 17 and 29 to 38)]).
(b) The Arbitrator’s decision in relation to the Applicant’s claim under s 67 was an error both in terms of law and as to quantum.
(c) The Arbitrator erred in not forming an opinion as to the constitutional validity of clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 and, therefore, not properly establishing that he had the jurisdiction to come to the determination that he did.
(d) Alternatively to the above Ground of Appeal, the Arbitrator erred in finding that the President was not a court that had the authority to determine in law whether clause 25, Schedule 6, Part 19H of the Workers Compensation Act 1987 was constitutionally valid.
2. (a) The arbitrator’s decision not to use his discretion of statutory criteria reasonably under s 351 of the WIM Act and Rule 16.1 of the WCC Rules 2011 to refer the issues on constitutional invalidity of section 39 of Amending Act 2012 under s 5 and s 6 of the Disability Discrimination Act 1992 (Cth) to the Honourable President of WCC is unreasonable (submissions at Paragraphs [1, 4, 5, 7 to 11 and 18]).
(b) The arbitrator has in error exercised the power of the President to decide the novel and complex issues including the constitutional invalidity issues raised by the appellant only reserved for the President, either as a Judge of the District Court, being a Specified Tribunal for the purposes of section 48(2)(h) of the Supreme Court Act 1970, by refusing to refer such issues under section 251 of the WIM Act.[30]
(c) The conduct of the arbitrator in failing to exercise his discretion under s 351 of the WIM Act and Rule 16.2 of the WCC Rules to refer the proceedings to the President of the Commission was in error and was unreasonable within the meaning of the High Court’s decision in Minister for Immigration and Citizenship vLi [2013] 249 CLR 332.
3. (a) The arbitrator erred in declining to invite, involve or hear SIRA in the proceedings as his conduct in so declining amounts to unreasonableness as stated by the High Court in Minister for Immigration and Citizenship vLi [2013] 249 CLR 332.
(b) The arbitrator’s decision without providing any reasons to decline to invite, involve and hear SIRA in spite of both the parties consented SIRA should be involved and should represent in those constitutional issues is an error of justice and law (submissions at paragraphs [3(a)(d-o), 6, 15 and 17]).
4. The impugned decision of the arbitrator is illogical, non transparent, without evidence and intelligible justification based upon Minister of Immigration and Citizenship v Li [2013] 249 CLR 332 decided by the High Court, submission at paragraphs [3(p)(q)], since the reasoning is adopted in a Workers Compensation matter by the High Court of appeal in a comment of Sackville J in Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 (submissions at paragraphs [8(c-e)])
5. (a) The arbitrator’s order No. 4 in the Certificate of Determination declining to grant any further relief sought by applicant is unjust and unfair without determination and referral to an AMS for a second MAC on the issues of fresh evidence on the injuries submitted since August 2017 in the proceedings paragraph [3, 16 and 19] of under heading submissions the impugned decision of the arbitrator, and also under submissions at section 2.5 ‘New Evidence’ (page 4) - Submissions on fresh evidence under sections 327(a) and (b) of 1998 Act paragraphs [(d) 1-15].
(b) The arbitrator’s failure to address the Applicant’s request in submissions for referral to AMS for a second MAC caused him to fall into errors of law and fact.”
[30] I assume that this latter reference to s 251 should in fact be to s 351 of the 1998 Act.
This ground is not made out and as a result is dismissed.
DECISION
The Certificate of Determination dated 18 February 2019 is confirmed.
Judge Phillips
PRESIDENT
20 August 2019
7
19
0