Mahal v The State of New South Wales (No 4)
[2018] NSWWCCPD 38
•20 July 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Mahal v The State of New South Wales (No 4) [2018] NSWWCCPD 38 | |
| APPELLANT: | Inderjit Mahal | |
| RESPONDENT: | The State of New South Wales | |
| INSURER: | Treasury Managed Fund – Employers Mutual Limited | |
| FILE NUMBER: | A2-6377/17 | |
| ARBITRATOR: | Mr W Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 8 March 2018 | |
| DATE OF APPEAL DECISION: | 20 July 2018 | |
| DATE OF RECONSIDERATION DECISION: | 11 September 2018 | |
| SUBJECT MATTER OF DECISION: | Recusal – application of Michael Wilson & Partners Limited v Nicholls [2011] HCA 48, 244 CLR 427 and associated authorities, s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 – reconsideration, s 354 of the 1998 Act, raising fresh issues on appeal, in reply – Coulton v Holcombe [1986] HCA 33; 162 CLR 1 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | SMK Lawyers Pty Ltd | |
| ORDERS MADE ON APPEAL: | 1. Having reconsidered the decision in Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30, dated 20 July 2018, that decision is confirmed. | |
INTRODUCTION
This is an application for reconsideration by Inderjit Mahal (the appellant) of my decision on appeal in Mahal v The State of New South Wales (No 3),[1] in which her appeal failed and the orders of an Arbitrator, Mr Dalley, were confirmed. For reasons which follow, I have reconsidered that decision and confirmed it.
[1] [2018] NSWWCCPD 30 (Mahal appeal decision).
BACKGROUND
The general factual background, the procedural background and the decision of the Arbitrator are described in the Mahal appeal decision,[2] and do not need to be repeated. The issue is a confined one; whether the appellant is subject to s 39 of the Workers Compensation Act 1987 (the 1987 Act). The appellant argues that she was a ‘police officer’ within the meaning of cl 25 of Pt 19H of Sch 6 of the 1987 Act, and thus is an ‘exempt worker’, who is not subject to the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act).[3]
[2] Mahal appeal decision, [2]–[14].
[3] Mahal appeal decision, [28].
The Mahal appeal decision records an extension of time granted to the appellant, to lodge and serve her submissions in reply by 29 June 2018. It records that the appellant thereafter did not lodge submissions in reply or further approach the Commission.[4] The Mahal appeal decision was issued on 20 July 2018.
[4] Mahal appeal decision, [30].
After being contacted by the appellant, the Commission issued a Direction to the parties dated 25 July 2018. The circumstances, leading to the appellant’s submissions in reply not being taken into consideration in the Mahal appeal decision, and associated events, appear sufficiently from the “Brief Reasons” in the Direction, which reads:
“1. The parties are directed to make submissions dealing with the following:
(a)the appellant’s recusal application dated 24 July 2018, and
(b)the appellant’s reconsideration application dated 24 July 2018.
2. The respondent is to lodge and serve submissions, in response to the appellant’s applications, by 5 pm on 3 August 2018.
3. The appellant is to lodge and serve any submissions in reply, to the respondent’s submissions, by 5 pm on 10 August 2018.
4. Submissions lodged pursuant to this Direction are, if sent by email, to be forwarded to [email protected], not to individual members of the Commission’s staff.
Brief Reasons
5. On 20 July 2018, the Commission issued Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30 (the decision).
6. On 24 July 2018, Inderjit Mahal (the appellant) forwarded email correspondence to Ms Valda Taylor (an employee of the Commission) and to the Registry, which the solicitors acting for the State of NSW (the respondent) were copied in to (the reconsideration application). The correspondence noted the statement in the decision at [30], that the appellant had not lodged submissions in reply to the respondent’s Notice of Opposition, pursuant to the amended timetable allowing her to do so by 29 June 2018. The correspondence sought a reconsideration of the decision, on the basis that Acting President Snell had decided the appeal without reading the appellant’s submissions in reply. The correspondence stated that the submissions in reply were lodged on 27 June 2018, by email to Ms Clare Sampson. It stated that a Certificate of Service, relating to the submissions in reply, was also lodged in the Commission on 27 June 2018, again by email to Ms Sampson.
7. Ms Sampson was a temporary employee, whose last day of work with the Commission was on 1 June 2018. Her email address was not one for the sending of documents (see r 2.2 of the Workers Compensation Commission Rules 2011). Her email address was not attended after she ceased to be employed at the Commission.
8. Following receipt of the reconsideration application, the Commission accessed Ms Sampson’s email account. It revealed that the submissions in reply and Certificate of Service (relating to those submissions) were emailed by the appellant to Ms Sampson’s email account on 27 June 2018. The Registry, and Acting President Snell, had not, up to that point, been aware that the appellant had sought to lodge the submissions in reply, and the associated Certificate of Service, by forwarding them to Ms Sampson.
9. On 24 July 2018, the appellant forwarded email correspondence to the Registry and the Presidential Unit, addressed to the President Keating DCJ (the recusal application). There is no indication from the email that the solicitors for the respondent were copied in to it. A copy is attached to this Direction for the information of the respondent. The correspondence referred to the fact that the decision was made ‘without reading/considering’ the appellant’s submissions in reply. It described this as ‘a legal bias and technical ground for dismissing his decision’. It sought that Acting President Snell recuse himself from the matter, and that the reconsideration ‘be decided by another expert pursuant to s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)’ (the 1998 Act). The reference to s 378 is misconceived, and probably should be a reference to s 350(3) of the 1998 Act.
10. Accordingly, the parties are directed to make submissions dealing with the recusal application and reconsideration application.”
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Neither party, in its submissions dealing with the reconsideration application, has requested an oral hearing. Having regard to Practice Directions Nos 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
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 RECUSAL APPLICATION
The matter has, in accordance with the Commission’s usual practice dealing with applications for reconsideration, been assigned to me as the original decision maker. It is necessary that the recusal application be dealt with at the outset.
Appellant’s submissions
The appellant submits:
“As a self represented worker I had to get help from Dr Scott Calnan a member of the Public law and Human Rights Committees of the Law Society of NSW, a teaching fellow in Consitutional law at UNSW and a sessional tutor at UTS in administrative Law.
My submissions were an independent expert opinion on the subject of Administrative Law, Constitutional law and Disability discrimination.
The decision of Acting President was made without reading/considering the submissions prepared by a very expert person in the legal field. This is a legal bias and technical ground for dismissing his decision. In the determination letter in paragraphs 78–80 Acting President has expressed his opinion on the previous cases highlighted by the respondent without reading my submissions on those cases.
On the ground of fairness Acting President Snell should recuse himself from the matter.
Given the above I request you that the Determination in this matter be reconsidered and should be decided by another expert pursuant to s 378 of the [1998 Act].”[5]
[5] Appellant’s recusal application.
The appellant further dealt with the topic in her submissions in reply to the respondent’s submissions on the recusal application. She referred to the “universal human tendency to attempt to adhere to a judgment once formed even in the face of new and different information”. She referred to Ebner v Official Trustee in Bankruptcy.[6] She submits the decision was “incomplete, unfair and unlawful on the totality of the evidence”, as I “was not supplied all the submissions of the appellant prepared with the help of Dr Scott Calnan an expert in Public Law, Human Rights and Constitutional Law”.[7]
[6] [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (Ebner), [6].
[7] Appellant’s recusal application.
Respondent’s submissions
The respondent observes that the sole basis of the application appears to be that I was not supplied with the appellant’s submissions in reply. It submits the appellant has failed to articulate the “asserted connection with the possibility of departure from impartial decision making”, referring to Ebner.[8] It submits that, apart from the assertion of bias, no substantial argument has been made to establish any apprehension of bias. It submits that “[a]pparent bias cannot be shown by an adverse conclusion in itself”, referring to Zanker v Kupsch.[9] There is nothing to establish that my conclusions were “based on anything other than the totality of the evidence”, nor any basis to conclude that, in reconsidering the matter, I would do so with any bias. The respondent submits there are “no justifiable grounds” for the recusal application.[10]
[8] Ebner, [8].
[9] [2014] SASCFC 13, [76].
[10] Respondent’s submissions on recusal application, [3]–[10].
Consideration
The plurality in Ebner described it as “the ordinary, and the correct, practice” that a judicial officer to whom a matter was allocated, who was the subject of a recusal application, should him or herself decide that application.[11] I shall do so.
[11] Ebner, [74].
Neither party has sought to take issue with the factual situation, as described in the Direction dated 25 July 2018. Rule 2.2 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides:
“(1) The address of the Registry is:
…
(b) for the purpose of sending documents or correspondence:
…
(iv) by electronic communication (email):
The application gives no specific indication of whether the appellant relies on actual or apprehended bias. In the email correspondence dated 24 July 2018, making the application, the appellant identifies that the Mahal appeal decision was made without reading her submissions in reply. It seeks recusal on “the ground of fairness”. The appellant’s submissions in reply on the reconsideration application essentially repeat this, a 12 page document “was not read and considered”. Her submissions in reply suggest that apprehended bias is relied on, as she quotes a passage from Ebner that refers to a reasonable apprehension of bias on the part of a fair minded lay observer. She submits that I have already come to a conclusion on the same matter to be addressed in the reconsideration.[12]
[12] Appellant’s submissions in reply, [10]–[13].
In Michael Wilson & Partners Limited v Nicholls[13] the plurality described the test:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.”[14]
[13] [2011] HCA 48, 244 CLR 427 (Nicholls).
[14] Nicholls, [31].
Their Honours also referred to the two step nature of such an application, which had been described in Ebner, saying:
“In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.”[15]
[15] Nicholls, [63].
Regarding the first step, the basis on which it is submitted that a fair-minded lay observer might have a reasonable apprehension, that I would not bring an unprejudiced and impartial mind to the matter, is that I dealt with the Mahal appeal decision without taking account of the appellant’s submissions in reply. The reason for this was that the appellant (who was self-represented) lodged the submissions at an email address which did not constitute the Registry of the Commission, for the purpose of lodging documents. I can see no basis on which this sequence of events could give rise to a reasonable apprehension, on the part of a fair-minded lay observer, that I would not bring an impartial and unprejudiced mind to the reconsideration application. I obviously expressed views on the subject matter of the appeal in the earlier decision. Such views were expressed with no knowledge that the appellant had sought to lodge submissions in reply, and without considering the content of those submissions, which I did not know existed. There is no reason why those submissions cannot be appropriately taken into account on a reconsideration application, which is the course the appellant seeks. Even if the first step in the test of apprehended bias is taken to be present, the appellant cannot make out the second step identified in Ebner, articulation of the connection between those events and the possibility of departure from impartial decision making.
In Re JRL; Ex parte CJL[16] Mason J said:
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”[17]
[16] [1986] HCA 39; 161 CLR 342 (Re JRL; Ex parte CJL).
[17] Re JRL; Ex parte CJL, [5].
In Minister for Immigration v Jia Legeng[18] Gleeson CJ and Gummow J said:
“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”[19]
[18] [2001] HCA 17; 205 CLR 507; 75 ALJR 679 (Jia Legeng).
[19] Jia Legeng, [72].
There is no evidence that would suggest such a state of mind exists. No viable argument is made by the appellant, that I should recuse myself in the circumstances. That application is refused.
THE RECONSIDERATION APPLICATION
The appellant’s request for reconsideration is contained in email correspondence dated 24 July 2018, addressed to both a member of the clerical staff of the Commission’s Presidential Unit and to the Registry. The application is opposed by the respondent.
Appellant’s submissions on reconsideration
The email referred to above essentially sets out the fact that the Mahal appeal decision was made without the appellant’s submissions in reply being considered. It then requests that the matter be reconsidered pursuant to s 378 of the 1998 Act.
Respondent’s submissions on reconsideration
The respondent submits that the reason the appellant’s submissions were not taken into account was that she lodged them through an unmonitored email address of an individual, rather than through the email address of the Registry. This did not comply with r 2.2(1)(iv) of the 2011 Rules. The respondent submits that the fact that the appellant “failed to appropriately submit her Reply… is not a ground for reconsideration”.[20]
[20] Respondent’s submissions on reconsideration, [14]–[17].
The respondent refers to the decision in Samuel v Sebel Furniture Limited,[21] in which Roche ADP (as he then was), after reviewing the authorities, summarised the principles that govern reconsiderations. The Deputy President said:
[21] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
“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:
1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).” [22]
[22] Samuel , [58].
The respondent submits that the principles referred to in the above passage of Samuel at [4], [5], [8] and [9] militate against reconsideration. It submits the error in lodgment amounted to mistake or inadvertence, and there was an absence of reasonable diligence. Failure to adhere to the 2011 Rules does not constitute grounds for a reconsideration. There have been proceedings in the Commission for “in excess of two years”, and it is in the public interest that these not be extended further. The merits of the appellant’s case are “lacking in substance or significance”.[23]
[23] Respondent’s submissions on reconsideration, [18]–[20].
Appellant’s submissions in reply on the reconsideration application
These submissions do not draw any strict line between those going to whether the Mahal appeal decision should be reconsidered, and the merits of such a reconsideration. Dealing with whether reconsideration is appropriate (as opposed to the merits) the appellant raises the following matters. She refers to the respondent’s submission that her failure to comply with r 2.2(1) does not constitute an appropriate basis for reconsideration. She refers to s 354 of the 1998 Act. She submits that insistence on her compliance with the rule would amount to insistence on formality and technicality. She states that she had been corresponding with Ms Sampson for some time before she sought to lodge her submissions in reply. She submits that she is self-represented, and should not be held to the same standard as a legal representative, which would disadvantage her. She submits the guidelines speak of “mistake or oversight by a legal representative or agent”, not an unrepresented litigant. She submits that a reconsideration involving “the mere talking [sic, taking] into consideration of the Appellant’s Reply in the matter will not have the effect of unreasonably prolonging litigation”.[24]
[24] Appellant’s submissions in reply on reconsideration, [4], [6]–[9].
The appellant submits that the Commission’s procedures are “equally responsible” for the confusion. Some person should have communicated with the appellant or opened Ms Sampson’s mailbox. The respondent was served with the submissions in reply on time, it cannot say it is prejudiced. The appellant submits there are arguments in her submissions in reply that were not addressed in the Mahal appeal decision, such as the “presumption against invasion of significant rights” and the “constitutional arguments”.
Consideration
The appellant’s request to reconsider pursuant to s 378 of the 1998 Act is misconceived. That provision provides for review of decisions of the Registrar or of a Medical Appeal Panel. The Mahal appeal decision is one pursuant to s 352 of the 1998 Act, and is a decision of the Commission. The relevant reconsideration power is found in s 350(3) of the 1998 Act, which provides:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The authorities referred to in Samuel relate to s 350(3), or to the equivalent provisions in earlier versions of the workers compensation legislation (s 36 of the Workers’ Compensation Act1926 (the 1926 Act), s 17(4) of the Compensation Court Act1984). I will treat the application as if it were one pursuant to s 350(3). This is consistent with the approach taken by the respondent in its submissions on the reconsideration.
The respondent does not assert any form of prejudice. It does refer to the principle that there should be finality to litigation. It refers to proceedings between the parties in the Commission since 28 April 2016. This is a reference to matter no 2135/16 (referred to in the Mahal appeal decision at [4]). The current proceedings were registered on 6 December 2017.
The reconsideration power is discretionary. In Hardaker v Wright & Bruce Pty Ltd[25] Owen and Walsh JJ, discussing the equivalent provision in the 1926 Act, said:
“Such reconsideration is not necessarily limited to an examination of changed circumstances, or of fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error has been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appear to require.”[26]
[25] [1962] SR (NSW) 244 (Hardaker).
[26] Hardaker, p 249.
The power was described in that case as being “expressed in extremely wide terms” .[27] Their Honours went on to adopt principles stated in Hilliger v Hilliger[28] by Street CJ:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably.”[29]
[27] Hardaker, p 248.
[28] (1952) 52 SR (NSW) 105 (Hilliger).
[29] Hardaker, p 248 citing Hilliger, 108.
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 2011 Rules and practice of the Commission. In the circumstances of the current matter, the submissions of a 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 seeks is 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 my view, the interests of justice favour reconsidering the Mahal appeal decision, so that the appellant’s submissions in reply are considered.
LEGISLATION
Section 354 of the 1998 Act provides:
“Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Rules.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
SUBMISSIONS
It should be noted that the appellant’s email correspondence dated 27 June 2018, to which her submissions in reply are attached, refers to that document as being “written and completed by Dr Scott Calnan a member of the Public Law and Human Rights Committees of the Law Society of NSW”. The appellant wrote:
“I submit the reply may be treated as my amended submission as well as independent expert opinion on the subject of Administrative Law, Constitutional Law and Laws of Disability Discrimination.”
To the extent to which the submissions in reply raise new issues, this will be discussed below. It is not appropriate to simply treat the submissions in reply as amended submissions on the appellant’s part. The submissions, going to the applicable law to be applied by the Commission, are not, as a general proposition, a matter for expert evidence:
“The content of foreign law is an issue of fact. On the other hand, the application of foreign law to the circumstances of the case is an issue of law and is not generally a matter for expert evidence.”[30]
[30] Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Limited [2016] VSC 623, [60]; see also United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131, 146F.
The most efficacious way of dealing with the further submissions is to simply set them out and deal with them, also noting the respondent’s submissions on the relevant points, in its submissions on the reconsideration application. Many of the appellant’s submissions reiterate matters raised previously.
Appellant’s submissions
The term ‘police officer’
The appellant refers to her argument, raised previously, that she contributed to the Police Super Fund pursuant to the Police Regulation (Superannuation) Act 1906. She submits the respondent has not put on evidence that she did not contribute to this fund. If she contributed to this fund, she must have been a member of the NSW Police Force, she could only have been a ‘police officer’.[31]
[31] Appellant’s submissions in reply, [45]–[50].
The appellant submits that the definition of ‘police officer’ in the Interpretation Act 1987 (Interpretation Act) should not have been imported into cl 25 of Pt 19H of Sch 6 of the 1987 Act. The term should have been given its natural meaning. The appellant refers to the definition in the Macquarie Dictionary (“a member of a body or force of police”) and the Oxford Dictionary (“members of a police force”). If the appellant operated as a member of such a body or force, she was a ‘police officer’. The indicia identified by the Arbitrator, in his reasons at [20], are submitted to be consistent with the appellant operating as such a member.[32]
[32] Appellant’s submissions in reply, [51]–[53].
The Arbitrator, in his reasons at [33], referred to the definition of ‘police officer’ in the Interpretation Act and the Police Act 1990. He said he did not regard any part of the 1987 and 1998 Acts as demonstrating a contrary intention, so as to displace the statutory meaning of ‘police officer’ given by the Interpretation Act. The Arbitrator, at [34] of his reasons, said that there was “conflict between the beneficial nature of the 1987 Act and the 1998 Act with the [2012] Amending Act”. He referred to Project Blue Sky Inc v Australian Broadcasting Authority,[33] saying it was necessary to determine which provision must give way to the other. He referred to the maxim generalia specialibus non derogant (the general does not detract from the specific).
[33] [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (Project Blue Sky).
The appellant submits that the Arbitrator has misunderstood the applicable principles of statutory interpretation. She refers to Project Blue Sky at [69], where the plurality said “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”.[34] She submits:
“Contrary to what is stated by the Arbitrator the principle in Project Blue Sky indicates that the Amending Act provisions should have been interpreted in a way that was consistent with that remedial and beneficial purpose. If the Arbitrator had done so he would have come to the conclusion that the Appellant was a ‘police officer’ for the purposes of the [1998 Act].”[35]
[34] Appellant’s submissions in reply, [58].
[35] Appellant’s submissions in reply, [58].
The appellant further submits:
“…the maxim generalia specialibus non derogant is generally applied only to reconcile general and specific provisions in a single statute. The correct principles for reconciling an amending act and the act it amends are set out in the Interpretation Act itself. Section 10 of that Act states that words or phrases in an amending act have the same meaning that they have in the Act being amended. Given that the act being amended here was the [1998 Act] the Arbitrator should have applied the beneficial and remedial meaning of that Act to the terms of the Amending Act.”[36]
[36] Appellant’s submissions in reply, [59].
Addressing the application of D’Angelo v NSW Police Force,[37] the appellant submits that a different statutory regime applied to the appellant, compared with Mr D’Angelo, due to amendments effected (subsequent to the appellant’s employment) by the Police Legislation Amendment (Special Constables) Act 2013.[38]
[37] [2016] NSWWCC 54 (D’Angelo).
[38] Appellant’s submissions in reply, [63].
The appellant submits that the decisions in Ware v NSW Rural Fire Service[39] and The Australian Workers Union, New South Wales v Office of Environment and Heritage[40] focussed on the dictionary meaning of the term ‘firefighter’, and “found that a person would meet that description regardless of the particular duties they were undertaking at a point in time”. This is submitted to be consistent with a construction based on natural language and dictionary definitions.[41]
[39] [2014] NSWWCCPD 33 (Ware).
[40] [2012] NSWIRComm 133.
[41] Appellant’s submissions in reply, [67].
Beneficial legislation
The appellant submits the workers compensation legislation is remedial and beneficial, and any ambiguity in its interpretation should be resolved in her favour.
The appellant also refers to ADCO Constructions Pty Ltd v Goudappel.[42] The appellant submits that, because of the overall beneficial purpose of the legislation, both s 39 and cl 25 of Pt 19H of Sch 6 of the 1987 Act should be found to have a beneficial purpose.[43] The phrase ‘police officer’ in cl 25 should be interpreted in the way most favourable to the appellant.[44]
[42] [2014] HCA 18; 254 CLR 1, [29].
[43] Appellant’s submissions in reply, [12]–[16].
[44] Appellant’s submissions in reply, [8], [12]–[16].
Presumption against invasion of significant rights
The appellant refers to Buck v Comcare where Finn J said of the right to statutory compensation:
“…it is a right of sufficient significance to the individual in my view, that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual.” [45]
[45] [1996] FCA 1485; 66 FCR 359 (Buck), [20].
The appellant submits that this reasoning was applied by the Full Bench of the Federal Court in Australian Postal Corporation v Sinnaiah.[46] The appellant submits that the previous Commission decisions raised by the respondent are not binding on it, as an administrative body. It is not a court. The Commission should follow the reasoning in Buck, and apply the phrase ‘police officer’ “in the way most favourable to the [a]ppellant”.[47]
[46] [2013] FCAFC 98; 136 ALD 536, [34].
[47] Appellant’s submissions in reply, [12]–[16].
Constitutional Invalidity
The appellant argues, in the alternative, that s 39 and cl 25 of Pt 19H of Sch 6 of the 1987 Act are “invalid by virtue of s 109 of the Constitution due to their inconsistency with provisions of the Disability Discrimination Act 1992 (Cth)”. This argument is developed at [18]–[31] of the appellant’s submissions in reply, leading to the submission:
“As a result, neither s 39, nor Schedule 6, Part 19H, clause 25 of the [1998 Act] could properly be relied upon by the Arbitrator in his determination as they are constitutionally invalid and of no force or effect.”[48]
[48] Appellant’s submissions in reply, [31].
Procedural fairness
The appellant refers to the submission by the respondent, in its submissions on appeal at [25]–[26]. The respondent submits the parties agreed, at a telephone conference on 18 December 2017, that the matter would be “decided on the papers”. The respondent submits the appellant advanced no substantial argument to depart from that agreement. In reply, the appellant submits that she requested an oral hearing in her submissions dated 6 February 2018. The case was “a complex one and in such circumstances the Commission normally conducts an oral hearing”. The appellant’s request was reasonable, and deserved a written response. The appellant submits the failure to do so was an error of discretion.[49]
[49] Appellant’s submissions in reply, [41].
The appellant also submits, in reply, that the Arbitrator’s reliance on Muscat v Parramatta City Council[50], without giving notice or the opportunity to provide submissions, was a “breach of the rules of natural justice”. She refers to Kanda v Government of Malaya,[51] in which Denning LJ said:
“If the right to be heard is to be a real right which is worth anything, it must carry with it the right of the accused man to know the case which is made against him.”[52]
[50] [2014] NSWWCC 406 (Muscat).
[51] [1962] AC 322 (Kanda).
[52] Kanda, p 337.
The appellant submits she was entitled to know “the nature of the case that the Arbitrator was going to put against her”.[53] She later submits that she “should have been given a chance to fully state her case”.[54]
[53] Appellant’s submissions in reply, [43].
[54] Appellant’s submissions in reply, [54].
Respondent’s submissions
The respondent submits that the appellant’s submissions in reply at [5]–[9], [10]–[16] and [33]–[69] are comprehensively dealt with in the Mahal appeal decision, at [42]–[43], [44]–[67] and [72]–[100]. It submits the appellant “raises no further argument that has not already been considered” regarding “the definition of ‘Police Officer’, the beneficial nature of the Workers Compensation legislation, consideration of relevant case law, and procedural fairness”.[55]
[55] Respondent’s submissions on reconsideration, [21]–[22].
The respondent refers to the appellant’s submissions at [17]–[32], in which she addresses “constitutional invalidity, anti-discrimination legislation, and s 39 of the 1987 Act”. It refers to Banque Commerciale SA v Akhil Holdings Ltd[56] where Mason CJ and Gaudron J said:
“The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation). In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.”[57] (excluding citations) (emphasis in the submissions)
[56] [1990] HCA 11; 169 CLR 279 (Banque Commerciale), [18].
[57] Banque Commerciale, [18].
The respondent also quotes the following passage from Water Board v Moustakas,[58] where the plurality said:
“More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.”[59] (emphasis in the submissions)
[58] [1988] HCA 12; 180 CLR 491 (Moustakas).
[59] Moustakas, [13].
The respondent submits that the additional arguments could have been raised before the Arbitrator (when the appellant was legally represented by counsel and solicitors). It submits the appellant’s case is “limited to her pleadings that were made before the Arbitrator at first instance”, they are “inadmissible” on appeal.[60]
CONSIDERATION
[60] Respondent’s submissions on reconsideration, [27]–[29].
Section 354 of the 1998 Act and issues not previously raised
The appellant quotes s 352(5) (it is misdescribed as s 353(5)) together with s 354(1) and (3) of the 1998 Act. The appellant submits:
“…the effect of the above provisions is that the Commission is required by law not to decline jurisdiction to consider arguments put by the Appellant on technical or formal grounds, such at [sic] which stage in proceedings in the Commission they are raised, provided that such arguments address the substantial questions of whether there has been any error of fact, law or discretion by the Arbitrator.”[61]
[61] Appellant’s submissions in reply, [4].
The operation of s 354 of the 1998 Act was considered by McColl JA (Giles and Tobias JJA agreeing) in South Western Sydney Area Health Service v Edmonds.[62] Her Honour said:
“In Sue v Hill Gleeson CJ, Gummow and Hayne JJ said of s 364 of the Commonwealth Electoral Act 1918 (Cth), another ‘substantial merits - without regard to legal forms or technicalities’ clause, that ‘[such] [p]rovisions do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.’
Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bond; see also Salemi v MacKellar (No 2) per Gibbs J (as his Honour then was). He was also, accordingly, obliged ‘to observe the recognized standards of judicial fairness’ (Testro Bros Pty Ltd v Tait per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bond and Others per Deane J.”[63] (excluding references)
[62] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
[63] Edmonds, [90]–[91].
In Onesteel Reinforcing Pty Ltd v Sutton[64]McColl JA (Allsop P agreeing) said:
“It might be accepted that provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions (Minister for Immigration and Multicultural Affairs v Eshetu per Gleeson CJ and McHugh J; Southwest Sydney Area Health Service v Edmonds (at [88])) and, further, r 15.2 of the Workers Compensation Commission Rules recognises that ‘evidence before the Commission must be 'logical and probative' and 'unqualified opinions are unacceptable’: Southwest Sydney Area Health Service v Edmonds (at [131]).”[65] (excluding references)
[64] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
[65] Sutton, [59].
The sections of the appellant’s submissions in reply, headed “Presumption Against Invasion of Significant Rights” and “Constitutional Invalidity”, raise issues that were not part of the case presented at first instance before the Arbitrator (when the appellant was legally represented). They are not raised in the appellant’s grounds of appeal. The appellant’s “Constitutional Invalidity” argument leads 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 in the circumstances are being considered as part of this reconsideration application. No application has been made to amend the grounds of appeal.
The respondent, in its submissions on the reconsideration, opposes the appellant relying on these further matters. The respondent submits these further arguments are of no relevance to the issue in dispute, which is whether the appellant was a ‘police officer’. It objects to them being raised when they were not relied on in the arbitral proceedings, nor previously on the appeal.[66]
[66] Respondent’s submissions on reconsideration, [23]–[29].
The respondent’s submission is consistent with the Arbitrator’s description of the issue for determination:
“The parties agree that the preliminary issue to be decided is whether the [appellant] was a ‘police officer’ for the purposes of Schedule 6, Part 19H, clause 25 of the 1987 Act.”[67]
[67] Arbitrators reasons for decision, 8 March 2018, (Arbitral decision), [9].
This was the issue dealt with by the Arbitrator. My role on an appeal pursuant to s 352 of the 1998 Act is 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 fall outside that scope, and the respondent’s submission that they are not relevant to the issue in dispute is correct.
In University of Wollongong v Metwally (No. 2)[68] the High Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most
exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had anopportunity to do so.”[69][68] [1985] HCA 28; 59 ALJR 481 (Metwally).
[69] Metwally, at p 483.
In Coulton v Holcombe[70] the plurality, having quoted the above passage from Metwally earlier in their judgment, said:
“However, the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.” [71]
[70] [1986] HCA 33; 162 CLR 1 (Coulton).
[71] Coulton, [15].
In Scott v JR Corney and SM Morrisey t/as Digquip[72] Roche DP referred to Mamo v Surace,[73] in which McColl JA applied Metwally and Coulton. The Deputy President continued:
“The Commission has consistently applied these principles in s 352 appeals, which are restricted to the identification and correction of error and are not rehearings.”[74]
[72] [2016] NSWWCCPD 11 (Scott).
[73] [2014] NSWCA 58, [75].
[74] Scott, [104].
The passage from Banque Commerciale, quoted in the respondent’s submissions (set out at [55] above), makes it clear that it is the function of pleadings to ensure procedural fairness; a party should know the case it has to meet. I have previously applied that passage, whilst observing:
“The reference to pleadings in the above passage should be understood, in the context of the Commission, to extend to include allegations made in other ways, consistent with the Commission’s practices, as discussed in [Far West Area Health Service v Radford [2003] NSWWCCPD 10] at [23]–[25].”[75]
[75] Mascaro v Inner West Council [2018] NSWWCCPD 29, [86].
The appellant has not actually sought leave to raise these further issues, or to amend her grounds of appeal. Rather, the appellant submits that the Commission is required by law to consider any substantial argument that addresses whether there has been an error of fact, law or discretion (that is, any appealable error), regardless of what stage in the proceedings the argument is raised.
Section 3(d) of the 1998 Act includes a ‘system objective’ “to be fair, affordable and financially viable”. Section 3(f) includes a ‘system objective’ that the other objectives of that section are to be delivered “efficiently and effectively”. These objectives are not assisted by permitting a party to raise matters late in the course of an appeal, which were not raised at an appropriate time. It is necessary to have regard to the system objects in s 3 of the 1998 Act, in construing the Workers Compensation Acts: Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan Messenger.[76] It is clear, from the passages of Edmonds and Sutton quoted above, that s 354 does not “exonerate” the Commission from an obligation to apply rules of law, including those related to procedural fairness. It would be inappropriate, and contrary to authority, to permit the appellant to raise these arguments for the first time, at this stage of the proceedings.
[76] [2018] NSWCA 178, [64]–[66].
Beneficial legislation
The appellant, after referring to Goudappel, submits that s 39 of the 1987 Act and Sch 6, Pt 19H, cl 25 have a beneficial purpose. There are difficulties in characterising s 39 as beneficial; its primary purpose is to end the entitlement of injured workers to weekly compensation after 260 weeks, unless their permanent impairment is greater than 20 per cent. Be that as it may, Gleeson JA in State of New South Wales v Chapman-Davis[77] accepted that “the exemption” (referring to cl 25) attracts the principle that “workers compensation legislation is remedial in its character ‘and, like all such Acts, should be beneficially construed’.”[78] In the Mahal appeal decision, I quoted the relevant passage from the judgment of Gleeson JA, and the matter was considered on that basis,[79] that is, consistent with the appellant’s submission that cl 25 had a beneficial purpose. The construction of s 39 was not at issue in the Arbitrator’s decision.
[77] [2016] NSWCA 237 (Chapman-Davis).
[78] Chapman-Davis, [76] citing Bird v The Commonwealth [1988] HCA 23; 165 CLR 1, [9].
[79] Mahal appeal decision, [59].
Procedural fairness
The appellant raises two specific issues. The first is her unsuccessful request for an oral hearing before the Arbitrator. She submits the matter was a complex one, where the Commission would normally conduct an oral hearing. She submits there was a discretionary error, in that she did not receive a written response to the request. The second issue is whether the Arbitrator breached the rules of natural justice, by not giving the appellant notice that he was considering relying on the decision in Muscat, to decide the matter. These arguments constituted grounds nos 4 and 6 in the appeal.
The argument that the Arbitrator denied the appellant procedural fairness, in not warning her that he was considering deciding the issue before him by reference to Muscat, is dealt with sufficiently at [72]–[87] of the Mahal appeal decision. The decision of Kanda, referred to in the appellant’s submissions in reply, does not assist her. That case involved a police inspector, dismissed by the Commissioner of Police in Malaya, following an inquiry by an adjudicating officer into allegations against him. A report of a Board of Inquiry, condemnatory of the police inspector, had been furnished to the adjudicating officer before the inquiry commenced, but not to the police inspector who was its subject. There was an issue regarding whether the police inspector’s right to be heard, under the Constitution of the Federation of Malaya, was infringed. Their Lordships said:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”
And:
“It follows of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”[80]
[80] Kanda, p 337.
The appellant’s situation is completely different. There is no suggestion that there was evidence before the Arbitrator unknown to the appellant. Her complaint is that she did not know that the Arbitrator was considering applying the reasoning in a decision (Muscat). For reasons given in the Mahal appeal decision at [72]–[87], the decisions in Muscat and D’Angelo were raised between the parties in the arbitral proceedings, and the appellant had an opportunity to address them. The appellant was not denied procedural fairness.
The argument that there was a denial of procedural fairness, in the Arbitrator not holding an oral hearing, is dealt with sufficiently at [88]–[100] of the Mahal appeal decision. The appellant makes a submission that, having made a request for an oral hearing in her submissions in reply before the Arbitrator, this “deserved a written response from the Arbitrator before his determination”. She submits the Arbitrator’s failure to do so “amounts to an error of discretion”.[81] She refers to no authority in support of this proposition. The reference to a “discretionary error” gives no real guidance regarding the point the appellant seeks to make, based on this alleged deficiency. Whatever the appellant seeks to draw, from any failure by the Arbitrator to specifically deal, in writing, with the request for an oral hearing, it is a matter which was not raised until her submissions in reply. For reasons given at [65]– [70] above, it is a matter which she should not be permitted to raise now. It may be that the intention is to raise a complaint that the Arbitrator should have given reasons for not holding an oral hearing. If this is the intention, the adequacy of the Arbitrator’s reasons is not the subject of any of the appellant’s grounds of appeal. For reasons given at [65]–[70] above, it is inappropriate to permit the appellant to raise the adequacy of the Arbitrator’s reasons at this stage of the proceedings.
[81] Appellant’s submissions in reply, [41].
The term ‘police officer’
The appellant, in her submissions in reply, reiterates an argument that definitions of ‘police officer’ found in the Macquarie and Oxford Dictionaries should be applied, reflecting the “natural language understanding”.[82] In Chapman-Davis Gleeson JA (McColl JA agreeing) said:
“As his Honour correctly observed, there are limitations on the use of dictionary definitions in statutory construction. Dictionary definitions specify a range of meanings, rather than the particular meaning of the word in its context in a statute. The unhelpfulness of relying on dictionary definitions for statutory meaning has been reiterated recently in this Court: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 at [81] (Leeming JA); TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80] (Leeming JA, Beazley P and Emmett AJA agreeing).
In the present case, the appellant’s reliance upon dictionary definitions of ‘paramedic’ and ‘paramedical’ raised a false issue. As mentioned, the primary judge found, as the respondent accepted, that the position of Health Advisor involved duties different from those of an operational paramedic and the performance of work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic: at [99]–[101]. Accordingly, it was unnecessary to resort to dictionary definitions to identify the meaning of the word ‘paramedic’. It was not in dispute that the respondent’s position as Health Advisor did not answer the statutory description of a ‘paramedic’.”[83]
[82] Appellant’s submissions in reply, [52].
[83] [2016] NSWCA 237 (Chapman-Davis), [62]–[63].
His Honour’s reasons went on to make it clear that the worker’s designation or status as a “police officer, paramedic or firefighter” was crucial (see the passage quoted in the Mahal appeal decision at [47]).
The analysis, in D’Angelo, Muscat, the Arbitrator’s decision and the Mahal appeal decision, focuses on whether the appellant’s designation or status was consistent with that of a ‘police officer’. This enquiry largely goes to the statutory regime, which governs the status of police officers, and also the award (which was part of the appellant’s case) that governed her employment as a parking patrol officer. This was consistent with what was said by the Court of Appeal in Chapman-Davis and Stockwell. The appellant submits, in reply, that the Arbitrator misunderstood Project Blue Sky, and “the Arbitrator should have applied the beneficial and remedial meaning of the Act to the terms of the Amending Act”. Gleeson JA, in Chapman-Davis, approached the construction of the exemption provisions in cl 25 on the basis that they were of a beneficial nature. The construction that his Honour arrived at, in those circumstances, was that referred to above, cl 25 depends on the designation or status of the worker at the time of injury. The approach taken by the Arbitrator, and by myself in the Mahal appeal decision, was consistent with this.
The appellant’s submissions in reply refer to application by the Arbitrator of the maxim generalia specialibus non derogant. She submits that the “remedial and beneficial purpose” of the 1998 Act should have been applied to the 2012 Amending Act. This suggested approach is inconsistent with the construction by the Court of Appeal of various provisions inserted by the 2012 Amending Act, in Cram Fluid Power Pty Ltd v Green.[84] Gleeson JA (Beazley ACJ and Emmett JA agreeing) referred to conflict between provisions inserted by the 2012 Amending Act, and pre-existing provisions. His Honour said:
“Secondly, as the High Court explained in Project Blue Sky Inc v Australian Broadcasting Authority, citing Institute of Patent Agents v Lockwood (Lord Herschell LC), reconciling conflicting provisions will often require the Court to determine which is the leading provision and which the subordinate provision, and which must give way to the other. The High Court continued ‘only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme’.”[85] (omitting references)
[84] [2015] NSWCA 250; 13 DDCR 281 (Green).
[85] Green, [107].
The appellant also seeks to distinguish D’Angelo, on the basis that a different statutory regime applied to Mr D’Angelo. The appellant submits that the Police Legislation Amendment (Special Constables) Act 2013 amended the position in relation to special constables in D’Angelo, whereas the appellant retired in 2002, and was not governed by those amendments.[86] The appellant makes no submission about how this could affect the reasoning in D’Angelo, such that it did not apply to the appellant’s situation. The fundamental reasoning in D’Angelo was not dependent on the application of the Police Legislation Amendment (Special Constables) Act 2013, which commenced from 1 December 2014.
[86] Appellant’s submissions in reply, [63].
The appellant submits that the Arbitrator was not bound by the decisions in Muscat and D’Angelo, and that such decisions can be distinguished or applied on the facts.[87] This is clearly true. The Arbitrator’s reasons do not suggest that he regarded himself as bound by those decisions. Most of the Arbitrator’s reasoning proceeds by reference to the legislation. At [36] and [38] of his reasons he quotes and adopts a passage from Muscat. This did not involve error.
[87] Appellant’s submissions in reply, [56].
For these reasons, in addition to the reasons in my decision dated 20 July 2018, the appellant’s appeal does not succeed.
CONCLUSION
I have reconsidered the decision dated 20 July 2018, having regard to the appellant’s submissions in reply which she sought to lodge on 27 June 2018, and also her submissions lodged on 7 August 2018, in reply on the reconsideration application. I am not persuaded that any basis is made out by the appellant, for the rescission, alteration or amendment of the Mahal appeal decision dated 20 July 2018. Accordingly, the Mahal appeal decision is confirmed.
DECISION
Having reconsidered the decision in Mahal v The State of New South Wales (No 3) [2018] NSWWCCPD 30, dated 20 July 2018, that decision is confirmed.
Michael Snell
Deputy President
11 September 2018
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