Mawson v Fletchers International Exports Pty Limited - [2002] NSWWCCPD 5

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5

APPELLANT: Fletchers International Exports Pty Limited
RESPONDENT: Bradley Mawson

EMPLOYER:Fletchers International Exports Pty Limited

FILE NO: WCC500-2002

DATE OF DECISION: 23 October 2002

PRESIDENTIAL MEMBER: Deputy President Gary Byron

DECISION UNDER APPEAL: The Applicant’s application that a Direction to Produce be issued to the Respondent is granted.
The Respondent’s application that a Direction to Produce be issued to the Commissioner of Police is refused.
That the Respondent pay the Applicant’s costs of lodging the objection.

DATE OF DECISION UNDER APPEAL: 16 July 2002

HEARING: 24 September 2002

REPRESENTATION: Appellant:

Mr. Paul Macken, Leigh Virtue & Associates
Respondent:
Mr. Ian Furnell, White Barnes

ORDERS MADE ON APPEAL: Leave to Appeal is granted.
The Appeal is allowed.
No order is made as to costs.

THE APPEAL

This is an appeal by the Appellant/Employer (“Fletchers”), the Respondent in the substantive dispute, against a decision made by the Commission constituted by an Arbitrator in relation to the objection by Fletchers to the Application by the Employee/Respondent (“Mr. Mawson”), the Applicant in the substantive dispute, for a Direction to Produce documents to Fletchers, and in relation to Mr. Mawson’s objection to Fletchers’ Application for a Direction to Produce documents, to the Commissioner of Police. The Commission so constituted decided on 16 July, 2002, that Mr. Mawson’s application that a Direction to Produce issued to Fletchers should be granted; that Fletchers’ application that a Direction to Produce issued to the Commissioner of Police, should be refused, and that Fletchers are to pay Mr. Mawson’s costs of lodging the objection to the Direction to Produce, to the Commissioner of Police.
An application for appeal against the decision of the Arbitrator, dated 31 July, 2002, was lodged by Fletchers. In that document it is certified that a copy of the application including attachments, was served on the Solicitor for Mr. Mawson on 31 July, 2002 by DX. The attachments consisted of a copy of the certified statement of reasons for the Arbitrator’s decision, a certificate of determination and a copy of a document headed Grounds and Submissions for Appeal. By letter dated 8 August, 2002 the Solicitors for Mr. Mawson lodged a response to this application submitting that the appeal lodged was not in accordance with the procedure set out under legislation and in the President’s Direction number 6 of 2002, but in the alternative other submissions are put in resistance to the appeal. The written submissions contained in these documents submitted by the parties are supported and supplemented by oral submissions made at the hearing.
It is not necessary to canvass the detail of the substantive claim in dispute between the parties nor the history of the matter, except insofar as reference is required herein for the purpose of dealing with the issues in dispute in this particular appeal.

THE ISSUES IN DISPUTE

The issues in dispute are whether leave to appeal should be granted and in particular, having regard to the provisions of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”); whether there has been sufficient compliance by Fletchers with the provisions of the Act and President’s Direction Number 6 of 2002 (“The Direction”) in lodging the appeal; whether the Application for Directions to Produce, to Fletchers was made in accordance with the Interim Workers Compensation Commission Rules 2001 (“the Interim Rules”); whether the documents sought to be produced pursuant to the Application for Directions to Produce, to Fletchers, are relevant; whether the Application for Directions to Produce, to the Commissioner of Police would produce documents that are relevant, with probative value and not solely prejudicial to Mr. Mawson; whether there has been in the proceedings before the Arbitrator, a denial of natural justice, and whether certain findings of the Arbitrator are supported by the evidence.

JURISDICTION TO HEAR THE APPEAL

Section 357 of the Act empowers the Commission to require information, whether at the request of any of the parties to the dispute or of its own motion. The direction in writing may be given to a party to the dispute before the Commission or to a person who is not a party to a dispute before the Commission. The direction may require documents to be produced or information to be furnished. A person who fails without reasonable excuse to comply with a direction given under this section is guilty of an offence.
The Commission constituted by an Arbitrator made a decision in relation to Applications for Directions to Produce filed by each of the parties. In due course, an appeal was lodged by Fletchers against the decision of the Arbitrator, pursuant to section 352 (1) of the Act which 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.
There is no dispute between the parties as to the jurisdiction of the Commission constituted by a Presidential member to hear the appeal, subject to the determination of the question of leave to appeal pursuant to section 352 of the Act.

SUBMISSIONS ON LEAVE TO APPEAL

Mr. Macken for Fletchers submitted that the amounts specified in section 352(2) (a) and (b) mean that the amount of compensation at issue is the totality of the compensation claimed in the proceedings and while on the face of the application it purports to be a closed period claim, the actual claim made and the demand made is a continuing claim for compensation. He went on to say:
“The amount in the application has been calculated by reference to what would be payable if the applicant was successful in obtaining an award for the amount of weekly compensation claimed on a continuing basis to age 66 which is the entitlement under the Act. It’s not precise but it’s approximately $949,000 in total if that application was successful and the appeal relates to the totality of that compensation in issue because it deals with preliminary issues as to what information or documentation we’ll be entitled to, having regard to the decision on the directions to produce documents.”
Mr. Macken further submitted that subsection (8) of the section must be read with subsection (2); that the Commission constituted by the Presidential member was not precluded from hearing the appeal, and it was not the intention of the Legislature to exclude an appeal such as this to a Presidential member, by the inclusion of the threshold provisions. He submitted that if the interlocutory decision could not be dealt with by a Presidential member (if his interpretation is rejected) it would be necessary to seek administrative review in the Supreme Court in every case because there is no “amount awarded”. This would make a nonsense of the section.
Mr. Furnell for Mr. Mawson submitted that like the Compensation Court, the Commission is a creature of statute and powers can only be derived from its statute. He drew to notice NSW State Brickworks v Abi-Arraj (1995) 12 NSWCCR at 397 where Meagher J. said that its (the Compensation Court’s) jurisdiction, powers and functions must be discovered in the express or implied terms of the workers compensation legislation. Mr. Furnell argued that section 352(2) contains a threshold requirement that must be met before leave can be granted and that the threshold level has not been overcome in this instance. He said that no monetary amount has been awarded at all and that the appeal cannot jurisdictionally proceed having regard to the ordinary English meaning of the words used in the legislation. In terms of the threshold requirements in section 352(2), he submitted that (a) and (b) stand together and that subsection (8) of the section cannot read down subsection (2) (a) and (b).
Mr. Furnell further submitted that the Appellant could have utilised the provisions of section 351 to refer the matter of law to a Presidential member to correct or cure an interlocutory error or apprehended error.
Mr. Macken further submitted that the decision of the Arbitrator is fundamentally flawed as the Arbitrator failed to comply with the requirements of section 355(1) of the Act, which provides that an Arbitrator cannot make an award or otherwise determine a dispute without first using his or her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. He submitted that no opportunity of any kind was afforded to Fletchers to be heard or to make submissions on objections lodged in respect of the Directions to Produce. He submited that notwithstanding section 354(6) which allows the Commission to proceed if it is satisfied that it has sufficient information in connection with the proceedings, the Arbitrator may not “deny natural justice to the parties and in particular to deny the parties the right to be heard or to make submissions on or in respect of any matter being determined by an Arbitrator.” Mr. Furnell for Mr. Mawson, refutes these propositions and said “…where the matters to be considered by the Arbitrator are in the nature of the form of Directions to Produce Documents or similar procedural matters, then the convening of a conference could reasonably be seen not to advance the resolution of the matter.” In his written submission Mr. Furnell stated that section 355(1) of the Act “confers upon the Arbitrator a value judgement as to what constitutes ‘best endeavours.”’
Mr. Furnell further submitted that there was appropriate written material before the Commission to allow the Arbitrator to come to the decision that she did; that there has been no denial of natural justice and that the Arbitrator acted appropriately and within the powers that are provided under the legislation. He referred specifically to section 354(6) of the Act which provides:
“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.”
Mr. Furnell submitted that it was not a flaw on the part of the Arbitrator not to have anticipated matters which had not occurred at the time of making the decision, and that the matters before the Arbitrator at that stage were documents being sought to be produced at a time when there had not been a denial of liability.

DETERMINATION OF LEAVE TO APPEAL

Section 352 of the Act makes provision for an appeal against a decision of the Commission constituted by an Arbitrator. The section 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 the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(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 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.
Mr. Mawson’s Application to Resolve Dispute dated 17 June, 2002 indicated that a period of weekly compensation from 1 December, 2001 to 30 May, 2002 is in dispute. A copy letter to Fletchers International Exports Pty. Limited dated 22 May, 2002, annexed to the Application to Resolve Dispute states that a loss off income of $500 per week is asserted. Mr Macken for Fletchers submitted at the hearing that “…on the face of the application it purports to be a closed period claim when the actual claim made and the demand made is a continuing claim for compensation.” Whatever the merits of this assertion it is not in dispute that the amount of compensation at issue on the appeal is at least $5,000. Subsection (2)(a) of section 352 is satisfied.
The Commission is a creation of statute and its powers are derived from the statute. As previously stated, Mr. Furnell drew the Commission’s attention to NSW State Brickworks v Abi-Arraj (1995) 12 NSWCCR and the words of Meagher J at page 397, on this point. The point itself is not disputed. As indicated, Mr. Macken’s point is that “…the appeal relates to the totality of that compensation in issue because it deals with preliminary issues as to what information or documentation we’ll be entitled to having regard to the decision on the directions to produce documents.” He maintains that the amount claimed is not precise but is approximately $949,000 in total if the applicant is successful in obtaining an award for the amounty of weekly compensation claimed on a continuing basis to age 66 which is the entitlement under the Act.
Before dealing with the quantum of 20% prescribed in subsection (2)(b), it is necessary to consider the way in which the subsection is intended to apply. Further, what is the effect of subsection (8) and is it intended that the Commission constituted by a Presidential member may or may not hear appeals againt the decision of Arbitrators where no amount has been awarded in the decision appealed against?
A reading of subsection (8) of section 352 defines decision for the purposes of that section, more widely than an award, to include an interim award, order, determination, ruling and direction. Morever, section 353 in turn makes provision for an appeal against a decision of the Commission constituted by a Presidential member, to the Court of Appeal. Subsection (5) of that section defines decision for the purposes of that section, to include an award, interim award, order, determination, ruling, opinion and direction. There is therefore, a schema incorporated in the Act to allow for appeals from decisions of both Arbitrators and Presidential members, and those decisions by definition, may include matters as well as or other than, an award.
Words are to be interpreted in accordance with their ordinary and current meaning, unless otherwise provided. In NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at page 514 Kitto J. stated in the High Court “…the conclusion must depend on one’s own understanding of the sense in which the words are currently used.” An Act may provide for a departure from the established general principle: Smoker v Pharmacy Restructuring Authority (1994) 36 ALD 1 where the word “guidelines” was held not to be simply a guide but were binding because that was the intention of the relevant legislation. There appears to be no intention in section 352(2) of the Act to depart from the general principle.
The words of a statute are to be read in context. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 Mason J said: “Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”
Generally, all words in a section have some meaning or effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 510 per McHugh, Gummow, Kirby and Hayne JJ. In Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at page 63 Gummow J said that where there are two provisions in a single piece of legislation which initially appear to be in conflict, it is “…improbable that the framers of legislation would have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.”
In section 352(2)(b) the words “of the amount awarded in the decision” do not appear to have an extraordinary meaning nor does any ambiguity appear to arise, in the context in which they are used. The same may be said of the definition of “decision” in subsection (8) of that section. Looking more broadly at sections 352 and 353 it is clear that there is an intention that the Commission constituted by a Presidential member can hear an appeal from a decision of the Commission constituted by an Arbitrator and in certain circumstances, a further appeal lies to the Court of Appeal. Sections 352(8) and 353(5) clearly state what is meant by or at least what is included in a “decision” for the purposes of each of those sections. The “decision” in each instance is not restricted to an “award”. It is highly improbable that the legislature intended that subsection (8) of section 352 should have no practical effect, thus a more “meaningful result” should be explored.
No amount was awarded in the decision appealed against. An award was not an appropriate outcome given that the dispute before the Arbitrator was entirely related to applications for directions and not to the merits or other aspects of the substantive claim made by Mr. Mawson, and which is in dispute before the Commission, but not yet dealt with. While a reference to the Second Reading Speech was not helpful on the particular point, a “meaningful result” is not achieved by merely ignoring the provisions of subsection (8) of section 352. It seems that “20%” in subsection (2)(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.
Following on from the foregoing and having regard to the further submissions made on the question of leave to appeal, I consider that there exists a reasonably arguable case and I therefore grant leave to appeal in this matter.

SUBMISSIONS ON GROUNDS OF APPEAL

Mr. Macken for Fletchers made both written and oral submissions, which may be paraphrased as follows:
1.The purported decision of the Arbitrator is fundamentally flawed in that the dispute could not be determined by reason of the Arbitrator having failed to comply with section 355(1) of the Act. No conference of any kind was held and no attempt was made by the Arbitrator to comply with the section.
2.The purported decision of the Arbitrator is in error by reason of a denial of natural justice by reason of the following:
(a)No notification or any objection to the direction to produce referred to in paragraph 4 on page 2 of the Arbitrator’s Statement of Reasons for Decision (“Reasons”) was provided to Fletchers who were therefore deprived of the opportunity of considering the basis of any objection and of making submissions or representations in regard to same and, as at the date of lodging the appeal, the objection had still not been provided;
(b)No opportunity of any kind was afforded to Fletchers to be heard or to make submissions on the objections lodged in respect of Directions to Produce, and in particular section 354(6) of the Act does not allow an Arbitrator to deny natural justice to the parties and to deny the parties the right to be heard or to make submissions on or in respect of any matter being determined by the Arbitrator;
(c)The Arbitrator failed to comply with section 355(1) of the Act in that she did not use her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them, before proceeding to determine the dispute.
3.No authority exists to support the contentions in paragraphs 9 and 10 of the Reasons, which are: that the form of Direction adopted by the Commission is similar to a subpoena to produce documents and the law with respect to subpoenas provides guidance in dealing with these objections; that in essence these objections are different, and further in the context of a non-party, a subpoena will be regarded as oppressive where locating and collating documents imposes an onerous task on a stranger to collate and produce documents which can have no relevance to the litigation.
4.No evidence has been adduced to support what appear to be findings of facts set out in the Arbitrator’s Statement of Reasons.
5.Mr. Mawson’s purported application for a direction has been filed in contravention of the Interim Workers Compensation Rules 2001 and in particular Rule 31(1)(a), therefore the purported application cannot be made and the purported direction to produce to Mr. Mawson, cannot be made.
6.The statements by the Arbitrator (concerning relevance of the documents as between the parties) that the Reply broadly attempts to place the whole of the claim in issue; that the Reply specifically does not state that the injury nor Mr. Mawson’s credit are in issue, and therefore that the Direction to Produce, to the Commissioner of Police does not relate to any documents relevant to the dispute between the parties, are not findings of fact available to the Arbitrator on the material before her.

Mr. Furnell for Mr. Mawson made both written and oral submissions that may be paraphrased as follows:
1.Fletchers have not complied with President’s Direction Number 6 of 2002 in that the Application for Leave to Appeal Against a Decision of the Arbitrator did not address the threshold requirements set out in section 352(2) of the Act.
2.Section 354(6) gives ample power to the Arbitrator to make a decision without holding a conference. Section 355 confers upon the Arbitrator a value judgment as to what constitutes “best endeavours”. Where the matters to be considered by the Arbitrator are in the nature of the form of Directions to Produce documents or similar procedural matters, the convening of a conference could reasonably be seen not to advance the resolution of the matter.
3.There is no denial of natural justice on the part of the Arbitrator as Fletchers were afforded ample opportunity to put its propositions in relation to the provision of the documents.
4.The contents of paragraphs 9 and 10 of the Reasons are non contentious. There is no misdirection on the part of the Arbitrator in considering case law which has previously considered appropriate form and content of subpoenas, albeit not under the current legislation. The nature of a subpoena is similar to the device under the Act which is not a document seeking anything extraordinarily exceptional in this instance.
5.The evidence before the Arbitrator was in written form. Fletchers do not specify the findings of fact that it disputes in paragraph 4 of the Grounds and Submissions for Appeal lodged by Fletchers, and this therefore, is not a viable ground of appeal.
6.The Application for Directions to Produce was expeditiously made on behalf of Mr. Mawson and it is submitted that the Reply of Fletchers cures any alleged procedural deficiency.
7.In relation to the Directions to Produce Documents, to the Commissioner of Police it is submitted that the only documents that can be appropriately sought would be matters going to questions of injury or incapacity. At the time of the issue of the document by Fletchers there had been no denial of liability. The irrelevant nature of the documents sought from the Police outweighs any possible probative value they might have and would solely be prejudicial to Mr. Mawson without any constructive purpose. Mr. Furnell referred to Woods v. Hanolt 11 NSWCCR 161 at page 171 per Clarke JA: “The novelty of the present circumstances probably lies in the fact that evidentiary material unconnected with the litigation in questions would, in general, be totally irrelevant to, and inadmissable in, the litigation. Accordingly, there would be no occasion to require the production of documents of the category of those the subject of the present subpoena. Any attempt to subpoena them would probably be rebuffed, initially at least, on the grounds of obvious irrelevance.” This refers to an analogous situation in another jurisdiction and is put forward as a guide to the Commission in its deliberations as to the way in which section 357 of the Act is to operate, by reference to similar devices and procedures in other jurisdictions and statutes.
8.The Arbitrator has made an appropriate decision based upon the materials that were presented to the Arbitrator. Fletchers should not at the stage of filing an appeal against the decision of the Arbitrator then suggest what matters are in issue between the parties.
9.Given the procedural deficiencies in Fletcher’s documents the appeal should not be allowed. The Arbitrator appropriately determined the matter and there is no want of appropriate consideration and application of relevant statute law.
10.Fletchers should be liable for Mr. Mawson’s costs in responding to the appeal.

DECISION

Section 354 makes provision for the procedure before the Commission. It provides:
(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.
(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 admissable unless the person who made the statement agrees to the evidence being admitted.
Section 355 of the Act requires the Arbitrator to attempt conciliation. It 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.
(2)No objection may be taken to the making of an award of the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.
Rules 31, 32 and 33 of the Interim Workers Compensation Rules 2001 (“the Rules”) apply. Rule 31 makes provision for application for direction requiring production of documents. It provides:
(1)An application to the Commission by a party to proceedings before the Commission for a direction under section 357 requiring the production of documents or the provision of information may only be made:
(a)If the party is the applicant – within 7 days after being served with the respondent’s reply in accordance with Rule 26, or
(b)If the party is a respondent – with the reply by the respondent to the Registrar’s notice of registration of the application for dispute resolution in accordance with Rule 26, or
(c)If the party has been joined – with the reply by the party to the Registrar in accordance with Rule 29,
unless the Commission is satisfied that:
(d)the party 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 that the application was required to be made under paragraph (a), (b) or (c), and
(e)failure to make the direction would result in a substantial injustice to the applicant for the direction, and that the making of the order will not prejudice the other party or parties to the proceedings.
(2)When a party to proceedings makes an application for an order under section 357, the Commission is to give the parties to the proceedings at least 2 days notice of its intention to give the direction. A party may object to the proposed order.
A direction under section 357 must not require production of documents or the furnishing of information unless an amount sufficient to meet the reasonable expenses of complying with the direction is paid or tendered to that person at the time of service of the direction or not later than a reasonable time before the time by which the person must comply with the direction.
Rule 32 makes provision for the form of direction to produce documents or furnish information. It provides:
(1)A direction by the Commission to a person requiring the production of documents or the furnishing of information in accordance with section 357 is to be in the approved form.
(2)The direction is to specify the time and manner in which the person must comply with it.
Rule 33 makes provision for the Commission providing documents or information to another party. It provides:
(1)When documents or information relevant to proceedings before the Commission are produced or furnished to the Commission by a person pursuant to a direction by the Commission and the Commission intends to produce or furnish the documents or information to another party to the proceedings, that party’s legal representative or a medical practitioner, the Commission is to give to the parties and to the person who produced the documents or furnished the information to the Commission not less than 2 days notice of its intention to do so.
(2)A person required by a direction of the Commission to produce documents or furnish information may at the time of complying with the direction notify the Commission that it objects to the production of those documents or the furnishing of that information to another party to the proceedings, that party’s legal representative or a medical practitioner and the grounds on which the objection is raised.
(3)The Commission must take any such objection into account and the views of the parties in determining whether to produce the documents or furnish the information to another party to the procedings, that party’s legal representative or a medical practitioner.
President’s Practice Direction Number 6 of 2002 which applied at the time sets out the practice and procedure that is to be adopted by the Commission when a party to a dispute that is determined by an Arbitrator, seeks leave to appeal against that decision, to a Presidential member.
Issue was taken by Mr. Furnell for Mr. Mawson that Fletchers did not comply with President’s Direction Number 6 of 2002 in that the Application for Leave to Appeal Against the Decision of the Arbitrator did not address the threshold requirements set out in section 352(2) of the Act. This is so in terms of detail, but paragraph 7 of the document “Grounds and Submissions for Appeal” specifically requested the Commission to grant leave to appeal “in accordance with s.352(2)” of the Act, being the “threshold” subsection of that particular section. In paragraph 8 of that document a formal hearing of the appeal was requested in the context of circumstances there set out. Moreover, Mr. Macken for Fletchers made oral submissions on the threshold requirements and generally as to the question of leave to appeal, at the hearing. While it would have been preferable for a more expansive written submission on the point to have been submitted on lodging the appeal, I do not think that Mr. Mawson has been taken unawares nor that any injustice has been done. Both parties came to the hearing and were obviously prepared to and did in fact, argue the threshold issue. Having regard to this and generally to section 354(1), (2) and (3) of the Act, I am satisfied that there has been no disadvantage by reason of the way in which the threshold issue emerged and proceeded, and that what occurred in this regard, is not fatal to the appeal.
Fletchers claim that Mr. Mawson’s purported Application for Directions to Produce Documents was filed in contravention of the Interim Workers Compensation Rules 2001 and in particular Rule 31(1)(a). According to that Rule the Application may only be made by the “applicant” (Mr. Mawson), within 7 days after being served with the respondent’s reply in accordance with Rule 26. The Application was dated 19 June, 2002 and received at the Commission on 20 June, 2002. The Reply from Fletchers to which the Rule applies, was dated 28 June, 2002 and received at the Commission on 1 July, 2002. The Application for Directions to Produce Documents therefore actually preceded in time, the date of issue and service of the Reply. The Application was not made strictly “within 7 days after being served with the respondent’s reply in accordance with Rule 26”. Issues with regard to time limits invariably arise when things to be done allegedly occur after the time for doing them has elapsed. In this case, the thing to be done, that is, the making of the Application, occurred before the time started to run. Rule 31(1)(e) substantially provides that the time requirements of Rule 31(1)(a) apply unless the Commission is satisfied that:
(1)Failure to make the direction would result in a substantial injustice to the application for the direction, and that the making of the order will not prejudice the other party or parties to the proceedings.
The intention of the rule is to ensure that action is taken in a timely way and that there is no undue delay. This is one of the principles upon which the legislation as a whole, is predicated. As stated previously, words are to be interpreted in accordance with their ordinary and current usage: NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509, and they must be read in context: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509. Having regard to the objectives of the Commission set out in section 367 of the Act; generally, section 354 (3) referred to previously, and Rule 31(1)(e) (which must be read in the context of and for the purposes of the rule as a whole), I am of the view that the premature making of the Application per se is not fatal. I am satisfied that discounting the Application would result in substantial injustice to Mr. Mawson by precluding him from access to an important and integral part of the dispute resolution process simply because he “jumped too early”. Moreover, I am satisfied that prematurely making the Application per se did not prejudice Fletchers and indeed, no prejudice has been alleged.
Fletchers submitted that the Arbitrator was in error by reason of a denial of natural justice on the grounds that no notification or any objection to the Direction to Produce, to the Commissioner of Police was provided to Fletchers who had no opportunity to consider the basis of any objections nor to make representations or submissions; that the operation of section 346(6) that allows an Arbitrator to exercise functions without holding a conference or formal hearing, does not permit the Arbitrator to deny a party the right to be heard or to make submissions, and that the Arbitrator failed to comply with section 355 which requires an Arbitrator not to make an award or determine a dispute without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
In addition, President’s Practice Direction Number 1 of 2002 states:
“Each matter referred to an Arbitrator will be the subject of a preliminary telephone conference. At this conference the Arbitrator will address a number of procedural issues including whether, in the particular circumstances of the case, to proceed to determine the matter on the papers. The Arbitrator will consider any objections raised by the parties. The Arbitrator will then advise the parties as to whether the matter is to be determined on the papers or whether the conciliation conference and arbitration hearing will proceed as scheduled.”
The Arbitrator did not conduct a preliminary telephone conference to address procedural issues including “…whether in the particular circumstances of the case, to proceed to determine the matter on the papers.” The Arbitrator did not use her best endeavours pursuant to section 355(1) of the Act, to bring the parties to the dispute to a settlement acceptable to all of them. However, the Arbitrator did decide pursuant to section 354(6) of the Act, to proceed to a determination without holding a conference or formal hearing, “…being satisfied that there is sufficient information in the material provided to reveal the parties’ objections…”. There is no indication in the statement of reasons as to how the Arbitrator arrived at that conclusion.
Fletchers objected on 26 June, 2002 to the Application for Directions to Produce Documents lodged by Mr. Mawson with the exception of paragraphs (a), (b) and (c) of the schedule attached to the Application. The schedule of items range from paragraph (a) to paragraph (t) and the items are detailed and substantial. The basis of Fletcher’s objection “is that the schedule is otherwise clearly oppressive and amounts to a ‘fishing expedition’ and does not presently relate to any issue to be determined by the Commission. If further information is required in regard to the objection, please list this matter for hearing on that issue.” A telephone conference as required by President’s Practice Direction Number 1 of 2002 may have enabled Fletchers to elaborate and clarify the substance of the objection.
Mr. Mawson objected by letter from his Solicitor dated 2 July, 2002 to the Application for Directions to Produce Documents, to the Commissioner of Police lodged by Fletchers and received at the Commission on 1 July, 2002. That Application sought a direction to produce “All criminal records relating to Bradley Mawson (DOB: 9 July, 1972) of last known address 1/69 Bultje Street, Dubbo NSW 2830.” The basis of Mr. Mawson’s objections are set out in the letter thus: “We note that the respondent has sought a Direction to the Commissioner of Police to produce documents seeking to obtain any criminal record in relation to the Applicant. The Applicant submits that this Direction is not relevant to the present proceedings as it does not go to the question of the Applicant’s incapacity during the relevant period. We note that injury in the course of employment is not in issue. We would accordingly seek that the Direction to Produce Documents directed to the Commissioner of Police in this matter not be granted.” Fletchers submitted that Mr. Mawson’s objection to the Application for Directions to Produce Documents, to the Commissioner of Police were never served on or otherwise drawn to their attention; that they had no opportunity to consider or address the matter, and that this was still the case at the date of lodging the appeal against the decision of the Arbitrator.
A close examination of the file reveals that there is no evidence or indication in the material that was before the Arbitrator that this objection was in fact ever brought to the notice of or was within the knowledge of Fletchers. It is apparent from the file that nothing more happened in relation to the objection once it was received in the Commission. Moreover, nothing has been put by Mr. Furnell for Mr. Mawson to assert that a copy of this objection was in fact, served on Fletchers. On these bases, Fletchers’ submission on the point must be accepted.
In the circumstances it is difficult to appreciate how the Arbitrator satisfied herself pursuant to section 354(6) of the Act that there was sufficient material provided in connection with the proceedings, to exercise her functions and make a decision on the basis of that material, without at the very least consulting with the parties in accordance with the President’s Practice Direction Number 1 of 2002. In the absence of any evidence that Fletchers knew about or had any opportunity to respond to, the objection submitted by Mr. Mawson, there was in my view, insufficient material before the Arbitrator to be satisifed that the matter should proceed on the papers at that point.

As to the objection lodged by Fletchers against the Application to Produce Documents, to Mr. Mawson and having regard to the range and detail of the items involved, the Arbitrator did not take the course provided by sections 355(1) and President’s Practice Direction 1 of 2002 to attempt to bring about a settlement or at least to clarify the issues at telephone conference before proceeding to deal with the matter on the papers pursuant to section 354(6) of the Act.
There exists a general rule of last resort that if there is a conflict between two sections in an Act, the latter section prevails: Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471. However, sections 354(6) and 355(1) are not in conflict and can be read together. President’s Practice Direction Number 1 of 2002 is an integral part of the process and facilitates a proper consideration by the Arbitrator of the requirements of these sections.
Two issues arise from the foregoing. First, the condition precedent to the exercise of the jurisdiction of the Commission constituted by the Arbitrator is not satisfied, as already discussed. The second issue is one of procedural fairness in that Fletchers had no opportunity to consider, deal with or respond to Mr. Mawson’s objection to the Application for Directions to Produce, to the Commissioner of Police, and were not consulted at least by means of a telephone conference on the substance of their objection to Mr. Mawson’s Application to Produce Documents, to Fletchers International Exports Pty Ltd.
The Arbitrator was required by section 355(1) and President’s Practice Direction Number 1 of 2002 to take the steps stipulated. Had she undertaken either or both of these steps the information upon which she based her decision to proceed on the papers pursuant to section 354(6) could have been rendered sufficient, had she subsequently needed to make a decision on the papers.
Dealing with the first issue: before being able to proceed to a hearing on the papers an Arbitrator is required by section 354(6) to be satisfied that sufficient information has been supplied to her or him. In Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577 Gummow J said that where a decision maker was required to be “satisfied” as to a precondition to the substantive decision’s validity, such a precondition might be a mixture of opinion and fact or just opinion. He said that the “satisfaction” arrived at is to be reasonable but may be contradicted by evidence. In that case the High Court said at par 131: “A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision maker…” The Court referred to R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR at 432 where the Chief Justice in that case said: “It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”
In the matter before the Arbitrator, there was insufficient information for the Arbitrator to be satisfied that she could proceed without any consultation with the parties, and in particular upon an examination of the materials available to her it was not evident that Fletchers knew about Mr. Mawson’s objection (by reason of not having been served with or notified about the objection to the Application to Produce Documents, to the Commissioner of Police), and the Arbitrator made no inquiry about this deficiency.
It is often necessary to give a good deal of weight to the finding of a tribunal (in this instance the Workers Compensation Commission constituted by the Arbitrator) in cases such as this, particularly where the factual material before the Arbitrator and the Presidential member is the same or substantially the same: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 at 45-49. However, the Presidential member is required to make his or her own finding on the issue. In this case the High Court said that the challenger must have the opportunity to adduce evidence to contradict the determination without first having to satisfy a threshold test of the likelihood of the challenge being successful. Fletchers have made submissions on appeal but in any event, an examination of the materials that were available to the Arbitrator at all relevant times, reveals that insufficient information was present in order to be satisfied that the matter could proceed on the papers. While there is a requirement that the applicant must not unreasonably withhold evidence which they then rely upon to support their application: R v Blakeley; Ex parte Association of Architects of Australia (1950) 82 CLR 54 at 91-92, Fletchers never had any opportunity to make any submissions or comments on Mr. Mawson’s objection, but could have done so had the telephone conference been held and/or had the Arbitrator used her best endeavours to settle the dispute pursuant to section 355(1) of the Act.
In the circumstances, the Arbitrator could not be “satisfied” that there was sufficient information supplied to her to enable her to exercise her functions without holding a conference or formal hearing, in accordance with section 354(6), and therefore that opinion was not “formed”. This “satisfaction” was a condition precedent to the Arbitrator exercising her functions, that is to proceed to determine the matter on the papers. The condition not having been satisfied, the Arbitrator lacked the jurisdiction to make the decision, the subject of this appeal. The decision is therefore, a nullity.
The second issue of procedural fairness [44] is closely linked to and overlaps, this issue. The circumstances surrounding the second issue are set out above and require no more elaboration, except to say that if a breach of the hearing rule was found, absent the jurisdictional fact circumstances upon which findings have now been made, it may have been possible to cure that “…by a full and fair rehearing by an appeal tribunal, and that no theory of absolute nullity should stand in the tribunal’s way of taking that appeal” : Calvin v Carr [1980] AC 574. However, it seems to be unnecessary to make further formal findings on the second issue, and on other issues arising from the remaining submissions made by the parties, as the decision of the Arbitrator is a nullity, in any event.
The appeal is allowed.

COSTS

I make no order as to costs.

OTHER ISSUES

Section 352(7) provides:
On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
The section contemplates that a decision appealed against is a decision of the Commission constituted by an Arbitrator. There is no provision in the Act that provides for an outcome in which no decision has been made because the purported decision is a nullity.
Section 350(3) 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 Registrar may wish to refer the dispute to an Arbitrator for reconsideration. That the “satisfaction” of the Arbitrator pursuant to section 354(6) was flawed and the precondition to dealing with the matter on the papers was not met, and rendered the subsequent decision a nullity, it seems that it is a nullity in the context of the Arbitrator’s exercise of her functions and not so as to preclude a reconsideration under section 350(3).

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: 23 October 2002