Mason v Mogila Merino Stud

[2002] NSWWCCPD 9

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Gregory Noel Mason v Mogila Merino Stud Pty Ltd [2002] WCC NSW PD 9
APPELLANT:	Mogila Merino Stud Pty Ltd
RESPONDENT:	Gregory Noel Mason
INSURER:	CGU Workers Insurance
FILE NO:	WCC711-2002
DATE OF DECISION:	20  December, 2002
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	The Respondent’s (Mogila) applications for directions to produce documents, to Dr. Benjamin, Dr. Matic, Dr. Carne, Bloomfield Hospital, Walgett District Hospital and Goodooga Health Service, refused.
DATE OF DECISION UNDER APPEAL:	27 August, 2002
HEARING:	Telephone conference hearing held on Tuesday 3 December, 2002
REPRESENTATION:	Appellant: Mr. Geoffrey Brookes, Dibbs Barker Gosling, Solicitors
Respondent: Mr. Grant Avery, Stacks – The Law Firm
ORDERS MADE ON APPEAL:	The Appeal is allowed.  The Directions to Produce the Documents are to issue.  No order is made as to costs.

THE APPEAL

1.On 5 July, 2002 the Applicant, Gregory Noel Mason, the Respondent in this appeal (“Mr. Mason”), lodged an Application to Resolve the substantive dispute between the parties. The claim is for weekly payments of compensation in respect of an injury sustained on 18 January, 2001.  The Application was served on CGU Workers Insurance, the insurer of Mogila Merino Stud Pty Ltd (“Mogila”), the Appellant in this appeal.  Mogila’s Reply was received at the Commission on 21 August, 2002.  On the same day Mogila filed Applications for Directions to Produce Documents, directed to the persons and institutions set out in the documents filed and in the Arbitrator’s Statement of Reasons for Decision, dated 27 August, 2002.  The Applications to Produce Documents were allocated by the Registrar to the Arbitrator, whose decision of 27 August, 2002, is the subject of this appeal. 

2.After due consideration of the matter, the Arbitrator decided that Mogila’s Applications were out of time and therefore, must be refused.

3.Mogila submitted an Application for Leave to Refer a Question of Law, dated 17 September, 2002 to the Commission and served a copy on Mr. Mason’s Legal Representatives by facsimile transmission, on the same day.  In the attachment headed “Grounds of Appeal” Mogila sought leave for the referral of a question of law to the President upon the five grounds there stated,  supported by sixteen points of submission.  Mr. Mason submitted a response dated 26 September, 2002 in which nine points of background, one point of additional background and eight points of submission were made.  Mr. Mason supported Mogila’s referral of the question of law to the President and requested the Commission to make orders ordering that the decision dated 27 August, 2002 be vacated and in lieu thereof, an order that directions to produce documents be issued to the persons and organisations named in Mogila’s Applications for Directions to Produce, and in addition, to Mogila Merino Stud Pty Ltd, CGU Workers Compensation (NSW) Limited and to the Bureau of Meteorology – weather records for Goodooga in January, 2001.  Mr. Mason also requested that the substantive dispute be listed for a telephone conference at a date convenient to the Commission but no earlier than six weeks after the parties have access to the documents.

4.There appears to have been broad agreement between the parties with regard to the matter of leave to refer the Question of Law to the President, save for determining the matter “on the papers”.  Mogila thought that oral submissions ought to be made while Mr. Mason was satisfied to have the matter determined on the papers.

5.The Application for Leave to Refer the Question of Law was duly considered by the President, Workers Compensation Commission.  On 1 November, 2002 the President refused leave to refer the Question of Law, but granted leave for Mogila to appeal against the decision of the Arbitrator, dated 27 August, 2002.  The President directed “That appeal is to be allocated to Deputy President Byron for hearing, and should be heard and determined at the earliest possible opportunity”.  Initially, difficulties were experienced in arranging a suitable date for a telephone conference but a telephone conference hearing was finally arranged, and proceeded on Tuesday 3 December, 2002.

6.The parties had been advised formally of the President’s decision of 1 November, 2002.  However,  at the telephone conference hearing the history of developments to that date, were put to Mr. Brookes for Mogila and Mr. Avery for Mr. Mason.  Mr. Brookes indicated that the summary fairly succinctly set out the history and said that the decision of the Arbitrator, dated 27 August, 2002, is fundamental to the appeal, as was the fact that the matter was even referred to an arbitrator.  Mr. Avery had no particular comment to make.  Both agreed that the matter could proceed to be dealt with as an appeal against the decision of the Arbitrator, dated 27 August, 2002.

THE ISSUES IN DISPUTE

7.While the substantive dispute between the parties is still on foot, there is no dispute between the parties as to the decision of the Arbitrator, dated 27 August, 2002, that decision being the subject of this appeal.  Both parties disagree with the decision.  Both parties confirmed this at the telephone conference hearing and each indicated that they wanted the documents, the subject of the Applications to Produce Documents submitted by Mogila, to be produced.  Mr. Avery further requested that the Commission should make an order for production to include additional documents referred to above.  Both submitted that this appeal against the decision of the Arbitrator dated 27 August, 2002, should be allowed.

8.A number of legal and other issues were raised in the documents submitted   in the first instance, as an Application for Leave to Refer a Question of Law.  That application having been refused by the President, the issues that were raised are addressed herein in the context of and to the extent that this is necessary, relevant and appropriate to determine this appeal against the decision of the Arbitrator, dated 27 August, 2002.

JURISDICTION TO HEAR THE APPEAL

9.The Workplace Injury Management and Workers Compensation Act 1988  (“the Act”) makes provision for an appeal against the decision of the Commission constituted by an Arbitrator.  Section 352 provides:

(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on appeal is both:

(a)      at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b)      at least 20% of the amount awarded in the decision appealed against.

(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

(4)An appeal can only be made within 28 days after the making of the decision appealed against.

(5)An appeal under this section is to be by way of review of the decision appealed against.

(6)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.

(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.

10.On 1 November, 2002 the President granted leave pursuant to section 352 of the Act to appeal against the decision of the Arbitrator, dated 27 August, 2002.

SUBMISSIONS

11.Both parties submitted that the production of the documents referred to in t          he Applications for Production of Documents lodged by Mogila, is critical to the resolution of the substantive dispute before the Commission, and in particular, is required in order to explore any possibility of an early resolution, or otherwise, to take the matter forward.

12.Mr. Avery for Mr. Mason submitted that the decision of the Arbitrator should be vacated; that directions requiring the production of the documents should be made, and such directions should also include directions to Mogila Merino Stud Pty Ltd, CGU Workers Compensation (NSW) Limited, and the Bureau of Meteorology – weather records for Goodooga in January, 2001.

13.In the document “Grounds of Appeal” attached to the Application for Leave to Refer a Question of Law, Mogila submitted at paragraph 14, in relation to the  filing of the Applications for Directions to Produce Documents, out of time, “that as the Reply was filed and sealed by the Commission then so too should the directions be accepted. The applications for the directions were filed on the same day in accordance with the Rules. If the Reply is allowed to be filed it should follow that the directions be filed. Once the Reply was filed by the Commission, this vitiated the need for compliance with rule 31(b).” Mogila further submitted at paragraph 15 that “The Arbitrator erred in her decision with respect to rule 5(2).”   Mogila further submitted at paragraph 16 that “The Arbitrator erred in her decision not to request further information from the parties.  In Paragraph 7 of the statement of reasons, the Arbitrator notes there was no explanation in the documents for the late filing of the respondent’s Reply.  The Arbitrator did not make any attempts to find out why the respondent’s Reply was filed late.”

14.During the telephone conference hearing Mr. Brookes for Mogila, further submitted that the bulk of any delay can be attributed to the need to provide comprehensive advice to CGU within a tight timeframe; the difficulties in communicating with Mogila Stud (by reason of its remote location and the complex medical issues involved); the need to develop an understanding on the part of CGU and Mogila, within a tight timeframe, as to how properly to  represent their interests; the complexity and unique features of the medical issues that are integral to the substantive dispute between the parties, and in consideration of all of that, the tight requirements of the new system of dealing with workers compensation disputes while at the same time, delivering justice to the parties.  Mr. Brookes said that in attending to all of that, the date slipped by.   Mr. Avery for Mr. Mason, generally supported Mr. Brookes’ submission on these points.

15.Both parties stated that they did not know that the Applications for Directions to Produce Documents had been referred to an Arbitrator and were surprised to receive the decision of the Arbitrator.

16.The balance of Mogila’s submissions attached to the Application for Leave to Refer a Question of Law may be summarised as generally querying and seeking clarification of the power of the Registrar to refer Applications for Directions to Produce Documents to an Arbitrator and whether the Arbitrator in this matter, then complied with the Act and the relevant Interim Workers Compensation Commission Rules 2001 (“the Rules”) in proceeding to deal with the matter. It is not necessary to reproduce in full, the written submissions made. In the written response to the Application for Leave to Refer a Question of Law, Mr. Avery for Mr. Mason, provided a good deal of background and comment regarding the substantive dispute. He supported Mogila’s Application for the production of the documents set out in the Applications (in addition to other directions that he considered should be made), and generally agreed with Mogila’s submissions, stating that the Commission “ought to have realised that input from the parties and guidance from the parties as to the relative status of the matter would have been of benefit and should have been recognized by the Arbitrator.”  He supported the appeal and requested that the Arbitrator’s decision be vacated.  Again, it is not necessary to reproduce in full, the written submissions made.

DETERMINATION OF LEAVE TO APPEAL

17.Leave to appeal was granted by the President, Workers Compensation Commission, on 1 November, 2002 and the question of leave does not need to be considered again.

DECISION

18.Pursuant to section 357(1) of the Act, the Commission may give a direction in writing to any person (whether or not a party to a dispute before the Commission) requiring the person to produce documents or furnish specified information.  Subsection (6) provides that the Registrar has and may exercise any power of the Commission under this section.  Section 375 provides:

(1)For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.

(2)The Registrar may give directions as to which arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.

(3)For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.

19.The powers under section 357 are those of the Commission but may be exercised by the Registrar.  It seems that the wording in subsection (6) is on the face of it, permissive and discretionary and may not necessarily impose an obligation on the Registrar to exercise those powers.   The High Court in Ward v Williams (1955) CLR 496 at 505, expressed the view that “…it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning”.  However, circumstances can exist where a person upon whom a discretion is conferred, may be obliged to exercise her/his discretion.  It depends upon the intention of the legislature and the circumstances. In Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106, Windeyer J said at 134-5, “This does not depend on the abstract meaning of the word ‘may’ but whether the particular context of words and circumstances make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the ‘may’ becomes a ‘must’”.  The Registrar did not in this matter exercise the powers of the Commission conferred on her by and for the purposes of this particular section, but gave the directions pursuant to section 375(2) as to the Arbitrator who should constitute the Commission for the purpose of these proceedings, so that the matter could be determined.  The Legislature intended that the power to give directions to produce documents or provide specific information is a power of the Commission and that the Registrar “has and may exercise any power of the Commission under this section”.  On and from 19 August, 2002 the Interim Workers Compensation Commission Rules 2001 (“the Rules”) actually provide for a clearer role for the Registrar in terms of directions for production and related matters, than had hitherto been the case (see Rule 31A – N).

20.In summary then, while the Registrar may (and in some circumstances may be obliged to) exercise the power as conferred on her by section 357(6), if she allocates any proceedings to an Arbitrator she is required to invoke section 375(2) as to which particular Arbitrator should constitute the Commission for the purposes of dealing with those proceedings.

21.At the time that the Registrar gave the direction for the Arbitrator to constitute the Commission for the purpose of dealing with the Applications for Directions to Produce Documents, there was no dispute between the parties as to the making of the Directions.  There was no suggestion that there was a dispute between them as to the giving of such Directions at the time that the Arbitrator made her decision and determination.  There was still no dispute between the parties as to the giving of the Directions, at the time of the telephone conference hearing in this appeal.  Rule 28 enables the Registrar to allocate a dispute to an Arbitrator, or deal with a dispute in relation to expedited assessments, or refer a matter for medical assessment, or

(d)take any other action that the Registrar considers appropriate in the circumstances in accordance with the Registrar’s powers.

22.The Arbitrator then proceeded to deal with the Applications having satisfied herself pursuant to section 354(6) that she had sufficient information and that she could exercise her functions under the Act without holding any conference or formal hearing, that is to say, she could deal with the matter “on the papers”.  It has been submitted that the Arbitrator should have consulted the parties about, amongst other things, the delay in submitting the Reply and the Application documents to the Commission.  In particular it was submitted that the Arbitrator failed to comply with section 355(1) which provides:

(1)The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.

23.The fact is that this Arbitrator was not dealing with the substantive dispute and the issues involved in it, nor indeed, any dispute.  There was no dispute between the parties as to the Applications for Directions to Produce Documents.  There was therefore, no requirement for this Arbitrator to attempt to use her best endeavours to settle the substantive (or any) dispute.   

24.It was further submitted that the Arbitrator was in breach of section 354(3) of the Act, which provides:

(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.

The principal basis of this submission seems to be that the Arbitrator should have made contact with Mogila to ascertain the reason for the late filing of the Reply and the Applications for Directions to Produce Documents.  While the Arbitrator did not do so, I see no reason in the circumstances why she was not entitled to proceed on the papers.  As the Arbitrator pointed out, specific   reference was made to the delay in the Reply and the opportunity clearly existed for Mogila to make a more fulsome explanation in that document.  It was reasonable for the Arbitrator to conclude that she had all of the information that was to be provided, and therefore, that was required for her to proceed “on the papers” pursuant to section 354(6).  There is in my view, no evidence to support the proposition that the Arbitrator was in breach of section 354(3).

25.The Arbitrator decided that the Applications for Directions for Production of Documents were made out of time and therefore, the applications were refused.

26.In the Statement of Reasons for Decision the Arbitrator said: “Whilst the Rules have been amended as at 19 August, 2002, this Application was filed before that date and should be determined under the rules existing at that time. This means that the provisions in rule 31(1)(d) and (e) must be complied with”. The substantive Application to Resolve a Dispute was filed before 19 August, 2002 that is, on 5 July, 2002. However, the Applications for Directions to Produce Documents that were considered by the Arbitrator, were filed on 21 August, 2002 (the same day that the Reply was received by the Commission), two days after the relevant, amended Interim Rules came into operation. Consequently, the new Part 5A – Directions for Production and Related Matters, applies.

27.Having regard to the foregoing, two questions arise.  First, what is the effect of (new) rule 31A in terms of dealing with these Applications for Directions to Produce Documents?  Second, should the refusal of the Arbitrator to issue Directions to Produce Documents out of time, stand?

28.      Section 371 of the Act provides:

(1)The Registrar has and may exercise all the functions of an Arbitrator.

(2)The Registrar can delegate to any member or members of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.

Rule 31A (1) – (5) provides:

(1)A party to proceedings may request the issue under section 357 of the 1998 Act of a direction for the production of documents by lodging a proposed direction for production with the Registrar.

(2)A proposed direction for production must be lodged in the approved form.

(3)The proposed direction for production must be lodged:

(a)if the party is the applicant – with the application for dispute resolution or within 5 days after being served with the respondent’s reply, or

(b)if the party is the respondent – with the reply by the respondent to the application for dispute resolution, or

(c)if the party has been joined – with the reply by the party to the application for dispute resolution.

(4)If a request for a direction for production is lodged otherwise than in accordance with subrule (3), the direction must not be issued unless the Registrar is satisfied that:

(a)the party requesting the direction was not aware, and could not reasonably have become aware through the exercise of due diligence, of the existence of the requested material at the time the direction was required to be lodged under subrule (3), and

(b)failure to issue the direction would result in a substantial injustice to the party requesting the direction, and

(c)the other party or parties to the proceedings will not be prejudiced by the issuing of the direction.

(5)If a direction for production is requested other than in accordance with subrule (3), the party requesting the direction must serve the Registrar and the other party or parties to the proceedings with written submissions as to the criteria set out in subrule (4).

Rule 31B provides:

The Registrar may issue a direction for production where a request is made in accordance with rule 31A.

Rule 31N provides:

When proceedings are before any other member of the Commission, any function or power of the Registrar under this Part may be exercised by that member.

29.The statutory power to give directions for the production of documents resides in the Commission (section 357(1)). The Registrar may exercise the powers of the Commission under section 357 (section 357(6)). The Registrar may issue a direction for production where a request is made in accordance with rule 31A (rule 31B). Where proceedings are before any other member of the Commission, any function or power of the Registrar under Part 5A of the Rules, may be exercised by that member (rule 31N). The Act and Rules allow for the Registrar to deal with an Application for Directions to Produce Documents or for the Commission constituted by an Arbitrator to do so. Circumstances could arise that will compel the Registrar to deal with such an Application herself, rather than allocating it to an Arbitrator, but there is no evidence before me that points to that conclusion in this matter.

30.The Reply by the Respondent to an application for dispute resolution must be lodged within 14 days of the Respondent being served with a sealed copy of the application by the applicant (rule 26(1)).  A proposed direction for production must be lodged by a party – if the party is the Respondent – with the Reply by the Respondent to the application for dispute resolution (rule 31A(3)).  The Applications for Directions to Produce Documents in this matter were lodged on the same day as the Reply was lodged.  Notwithstanding that they were submitted separately in a physical sense, there is no dispute that lodgement substantially complies with the requirements of rule 31A(3)).  The lodgement of the Reply is the critical issue.

31.As the Arbitrator stated, the Respondent’s Reply was to be lodged by 1 August, 2002 but was not received in the Commission until 21 August, 2002.

In his submission at the telephone conference hearing Mr. Brookes, for Mogila, expanded on the reasons for the delay to which he had alluded in the Reply.  In outlining the difficulties with which he was confronted, Mr. Brookes basically submitted that despite his best efforts, what he was required to do could not be done in the tight timeframe allowed if he were to properly represent the interests of Mogila and CGU Workers Insurance in what is a particularly complex matter.  Mr. Avery for Mr. Mason did not take issue with this submission.  It is appropriate to take the (expanded) reasons for the delay in lodging the Reply into account and in particular, in light of the Arbitrator’s observation (with which I agree) that “…the documents would clearly appear to be relevant to the Commission’s consideration of the claim”.   

32.      Rule 5(2) provides:

(2)The Commission may, if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.

Having regard to all of the circumstances the requirement pursuant to rule 26 to lodge the Reply by 1 August, 2002 should be dispensed with; the time for lodgement of the Reply by Mogila should be extended to 21 August, 2002 and I so direct.  It follows that the Applications for Directions to Produce Documents lodged by Mogila are lodged in accordance with rule 31A and are in time.

33.Mr. Mason has requested that additional directions for production of documents be given to Mogila Merino Stud Pty Limited, CGU Workers Compensation (NSW) Limited and Bureau of Meteorology – weather records for Goodooga in January, 2001.  These matters were not before the Arbitrator and were not and could not be, considered in arriving at her decision of 27 August, 2002.  Consequently, no decision has been made in relation to these matters and they are not the subject of this appeal.

34.The appeal is allowed.  The Directions to Produce Documents in the Applications lodged by Mogila on 21 August, 2002, are to issue. 

COSTS

35.      I make no order as to costs.

OTHER ISSUES

36.If the related issue of the production of the further documents required by Mr. Mason, and raised in this appeal, is to proceed, it should proceed in accordance with the Act and Rules.

Gary Byron
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar

Date: