Mezrani v Idameneo (No 789) Ltd - [2013] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Mezrani v Idameneo (No 789) Ltd [2013] NSWWCCPD 21
APPELLANT:		Frank Mezrani
RESPONDENT:		Idameneo (No 789) Limited
INSURER:		Idameneo (No 789) Limited
FILE NUMBER:		A1-4698/12
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:		27 November 2012
DATE OF APPEAL DECISION:		22 April 2013
SUBJECT MATTER OF DECISION:		Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; admission of fresh or additional evidence on appeal; s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; excuse for failure to make claim within time prescribed; s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998; first awareness of injury.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:	Astridge & Murray Lawyers
ORDERS MADE ON APPEAL:		1. The determination of the Arbitrator as found in Certificate of Determination dated 27 November 2012 is confirmed. 2. No order in respect of costs of this appeal.

BACKGROUND

Mr Frank Mezrani claimed entitlement to compensation against his former employer Idameneo (No 789) Limited (the respondent) in respect of injury, being noise induced hearing loss. He alleged that his employment with the respondent as a delivery driver between 1984 and 1997 was employment to the nature of which his injury was due, within the meaning of s 17 of the Workers Compensation Act 1987 (the 1987 Act). He had been exposed to aircraft noise on a regular basis when performing his duties at Sydney Airport between 1984 and 1990 and thereafter at Bankstown Airport up until 1997.
As found by Arbitrator Kerry Haddock (at [14] of the her Reasons (Reasons)) s 17(1)(a)(ii) of the 1987 Act deems Mr Mezrani’s injury to have happened in or about 1997. Having regard to the issues raised, and Mr Mezrani’s application to adduce fresh evidence on this appeal, it is appropriate, at this point, to record events both prior to and at the hearing before the Arbitrator, as well as those non-contentious matters which were supported by the evidence then before the Commission.
A statement by Mr Mezrani dated 24 October 2012 includes the following:
“In or about 2010, I had an appointment for a hearing test at the Australian Hearing Clinic in Bankstown. My daughter, Jackie Mezrani, attended the appointment with me. At that appointment, after conducting an audiology test, I was advised that I had significant hearing loss, much of which may be attributed to exposure to noise.
I was asked numerous questions about exposure to noise during the course of my employment and any other exposure to noise during any other social, recreational or other activities. I gave the Audiologist a history of my exposure to noise during my employment with the Respondent at Bankstown Airport.
The Audiologist advised me that I may have a claim for workers compensation benefits as the hearing loss may have been caused by my exposure to noise during the employment with the Respondent. This was the first time I was aware that I may have entitlements under the Workers Compensation Act 1987 for any entitlements in relation to hearing loss.”
Mr Mezrani made a claim against the respondent on an unknown date in 2011. The undated form relating to that claim is in evidence, attached to the Reply, and bears a receipt stamp dated 5 April 2011. I note in passing that reference is made in that statement of Mr Mezrani to a “Claim Form” annexed and marked “A”. No such document is annexed. Enquiry of Mr Mezrani’s solicitor made at my direction by the Commission established that no such document had been annexed. The Commission was informed that the claim form was “now annexed to the statement of Ms Annette Mezrani in the appeal”.
On 21 April 2011 that claim was acknowledged by the respondent’s WorkCover Claims Manager, Ms Katie Jeffries in correspondence addressed to Mr Mezrani’s daughter. Mr Mezrani was at that time not legally represented.
Following inquiries concerning Mr Mezrani’s employment, some particulars of which were provided by Mr Mezrani’s daughters, the respondent arranged for Mr Mezrani to be examined by Dr G Lucchese, ear, nose and throat surgeon, on 24 October 2011. On 29 November 2011 the respondent wrote to Mr Mezrani communicating an offer of payment in the sum of $5,720, being in respect of 8.8 per cent binaural hearing loss as assessed by Dr Lucchese together with payment to enable Mr Mezrani to obtain hearing aids. A copy of a proposed complying agreement in terms of s 66A of the 1987 Act was enclosed and a suggestion was made in that correspondence that, should the offer be acceptable, “a solicitor review and sign off on [the complying agreement]”.
On 20 March 2012 Mr Mezrani was examined by Dr S C Stylis, ear, nose and throat surgeon, at the request of his solicitors. Dr Stylis provided a report in which he expressed the opinion that Mr Mezrani suffered a corrected binaural hearing impairment of 22.22 per cent “due to exposure to industrial noise”.
On 29 March 2012 Mr Mezrani, through his solicitors, wrote to the respondent claiming lump sums pursuant to ss 66 and 67 of the 1987 Act, in respect of the hearing loss as assessed by Dr Stylis, together with the cost of hearing aids.
The respondent acknowledged the solicitors’ correspondence on 4 April 2012 and advised that it was awaiting a further report from Dr Lucchese.
On 23 April 2012 the respondent again wrote to the solicitors stating that the offer made earlier remained open including an allowance of $5,720 for hearing aids subject to the provision of “quotes”. A copy of Dr Lucchese’s report was provided. That correspondence was received by Mr Mezrani’s solicitors on 4 May 2012.
On 14 May 2012 these proceedings were commenced by Mr Mezrani by the filing of an Application to Resolve a Dispute (the Application).
A Reply to the Application was filed on behalf of the respondent on 6 June 2012. That Reply incorporated an application seeking leave pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to rely upon matters, specified in a schedule, by way of defence founded upon the provisions of s 261 of the 1998 Act, relevant portions of which are as follows:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

…

(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

The matter came before Arbitrator Haddock and a teleconference was appointed for 24 August 2012. The parties were represented at that teleconference. There is some dispute as to the outcome of that teleconference, detail of which appears below. The matter was set down for hearing on 25 October 2012.
At the hearing the respondent relied, inter alia, by way of defence that Mr Mezrani had not made his claim for compensation within the time stipulated by the provisions of s 261 of the 1998 Act. The Arbitrator upheld that defence to the claim for reasons which are addressed below. The Arbitrator’s determination had been reserved and was delivered on 27 November 2012. A Certificate of Determination of that date provided:
“The Commission determines:

1. That there is an award for the respondent.
2. That there is no order for costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

Mr Mezrani relies upon three grounds suggesting error on the part of the Arbitrator which are stated as follows:
“1. The Arbitrator erred in allowing the Respondent to place in dispute the matters raised in the Reply at the Arbitration hearing.
2. The Arbitrator erred in granting the Respondent leave pursuant to s289A(4) of the 1998 Act.
3. The Arbitrator erred in finding any delay in making the claim was not due to ignorance, mistake or other reasonable cause pursuant to s261(4) of the Act.”
It appears that grounds one and two raise the same suggestion of error. However, the submissions which are put in support of those grounds suggest that ground one was intended as an assertion that no leave to raise the defences had been granted and that, when permitting those matters raised in the Reply to be litigated, the Arbitrator had erred.
The second ground is advanced upon an assumption that, on this appeal, the Commission is satisfied that the Arbitrator had in fact granted leave pursuant to s 289A(4). It is put that such leave had erroneously been granted. I note in passing that this ground may be pursued, contrary to that which seems to be argued, without leave being granted pursuant to s 352(3A) of the 1998 Act (see discussion in Patrick Operations Pty Limited v Watson [2013] NSWWCCPD 18 (at [50])).
Submissions in support of these three grounds rely, in part, upon fresh or additional evidence in respect of which Mr Mezrani seeks leave to adduce on this appeal pursuant to s 352(6) of the 1998 Act. That application is opposed by the respondent. The merits of that application are addressed below.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements concerning time as found in s 352(4) of the 1998 Act have been met.

FRESH OR ADDITIONAL EVIDENCE

As earlier noted Mr Mezrani seeks leave to adduce on this appeal what is described in submissions as fresh evidence and new evidence pursuant to s 352(6) of the 1998 Act which provides:
“(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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The respondent opposes Mr Mezrani’s application. It is argued that Mr Mezrani has failed to provide an adequate explanation “as to why [fresh evidence] was not available prior to the hearing” and reference is made to the decision of the Commission in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7. It is also put that Mr Mezrani is attempting to “rerun” his application.
The “new evidence/fresh evidence” Mr Mezrani seeks to have admitted is described in a schedule at [2.5] of submissions as follows:
“Set out below is the new evidence/fresh evidence that the Appellant seeks leave to rely on:
1.     Photocopy of passport of the Applicant.
2.     Statement of Annette Mezrani dated 20 December 2012.
3.     Statement of Jackie Mezrani dated 21 December 2012.
4.     Statement of Jason Farah dated 21 December 2012.
5.     The Appellant puts on notice that he may seek to adduce further statements from the Appellant, Annette Mezrani, Paul Mezrani and Jackie’s daughter (if necessary).”
It must be noted that the statements of Annette Mezrani, Jackie Mezrani and Jason Farah (Mr Mezrani’s solicitor) each have a number of documents annexed which are not included in the schedule of fresh evidence. Most of those annexures were not in evidence before the Arbitrator and should have been included in the schedule as is required by Practice Direction No 6.
It is proposed to address each of the documents and any annexures in the order in which they are listed in the schedule.

The passport

The first item, the passport, is in a fact a copy of two pages of what is said to be Mr Mezrani’s passport. The first is the identifying page which includes a photograph and relevant particulars including date of birth of Mr Mezrani. The second page appears to be a copy of the passport opened which has been endorsed with two stamps, one dated “10 Juin 2010” and the other dated “09 Fev. 2011”. It is clear that Mr Mezrani relies upon these documents as evidence corroborating Ms Jackie Mezrani’s evidence found in her statement dated 21 December 2012 that Mr Mezrani “travelled overseas for a period of approximately eight months from June 2010 until February 2011”.
It is self-evident that the passport existed at the time of the hearing before the Arbitrator. In such circumstances Mr Mezrani fails to establish, as is required by s 352(6), that it was not available to him and could not reasonably have been obtained by him before the proceedings before the Arbitrator. It remains to be determined if the demands of justice require that the document be admitted.
Mr Mezrani has provided no argument specifically directed to the question as to whether failure to admit the passport would cause substantial injustice in this matter. It seems from the statement of Mr Mezrani’s solicitor, Mr Farah, dated 21 December 2012, that Mr Mezrani’s daughters had recalled that their father had been overseas during that eight month period only after the Arbitrator delivered her determination and once the daughters were informed by Mr Farah that failure to “lodge” a claim within relevant time limits may be excused if “such failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause”.
Argument is advanced on this appeal founded upon the provisions of s 261(4) that Mr Mezrani’s failure to comply with the requirements of s 261 does not constitute a bar to the recovery of compensation, given that such failure was occasioned by his absence from the state. That argument is put upon the assumption that the passport is admitted as fresh evidence.
There are several difficulties concerning Mr Mezrani’s apparent argument concerning the relevance of his absence overseas, which include:
(a)     no reliance was placed by Mr Mezrani upon the relevance of his absence from the state at the hearing before the Arbitrator. The general principle, founded upon public policy, concerning finality of litigation is thus raised (see discussion in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7);
(b)     no reason is advanced on this appeal as to why such argument was not raised before the Arbitrator, other than that no instructions had been conveyed to his solicitor of relevant matters until after the Arbitrator’s decision, and
(c)     there is no evidence from Mr Mezrani concerning the suggested relevance of his apparent absence from the state to his failure to comply with the section.
Guidance as to the Commission’s approach to this leave application may be gained by consideration of the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 (CDJ). In that case the Court was dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth) which, in terms arguably wider than those of s 352(6) of the 1998 Act, granted power to the Family Court of Australia to receive further evidence upon questions of fact. With respect to the exercise of the discretion granted by that provision, it was stated in a joint judgment of the majority (McHugh, Gummow and Callinan JJ):
“The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
In submissions Mr Mezrani suggests that “the documents are crucial to the proper determination of the issues in dispute”. Reference is also made to the terms of r 10.3(3) of the Workers Compensation Commission Rules 2011 (the Rules) (wrongly cited as those repealed rules made in 2006).
No reasoned argument is advanced in support of the suggestion that the documents, including the passport, are “crucial”. Furthermore, the rule referred to relates, not to the admission of fresh evidence on appeal, but to the Commission’s power to admit late documents in proceedings commenced by way of application to the Commission.
In the absence of any argument concerning the relevance of Mr Mezrani’s absence from the state it is not possible to reach a conclusion that the evidence, being his passport, would have produced a different result if tendered before the Arbitrator. In the circumstances, I am not satisfied that failure to grant leave would cause substantial injustice in this matter.
The application seeking leave to admit the passport as new or fresh evidence on appeal is without merit and is refused.

Fresh evidence of Ms Annette Mezrani

The second document which Mr Mezrani seeks leave to have admitted on appeal is the statement of his daughter Annette Mezrani dated 20 December 2012. There was no evidence from Ms Mezrani, to whom I shall, without disrespect, refer to as Annette, before the Arbitrator. It is clear from that statement that Annette was actively involved in investigating her father’s entitlement, or otherwise, to compensation. Her investigations, communications and attendances at relevant medical examinations are set forth in that statement. Of significance, Annette states that a “file” had been maintained by her and her sister, Jackie, in relation to her father’s industrial deafness. That file, it is stated, could not be located “previously to provide to my father’s solicitor when the arbitration of this matter was heard”. The file, it is stated, was found “in the boot of [her sister’s] daughter’s car”. Annette states that she does not know how the file came to be located there.
There are a number of documents, which may reasonably be inferred had been kept on the subject file, annexed to Annette’s statement identified as being:
(a)     a copy of some information downloaded by Annette from the WorkCover website said to have been read to assist her father to “lodge his workers compensation claim”. That document is not dated;
(b)     a copy of Tone Audiometer relating to a hearing test conducted at National Hearing Care Centre on 20 May 2010;
(c)     a copy of a faxed document signed by Mr Mezrani, sent by Annette to Legal Provider Services of WorkCover, seeking information concerning the identity of the insurer of Mr Mezrani’s employer named as being “Mayne Nickless ACN 004073410” between 1984 and 1997. That document is not dated;
(d)     a copy of reply, dated 4 June 2010, to the last mentioned fax from WorkCover with an attached document which identified the insurer as “GIO” and the policy number as “Group Self-Insurer”. The “Name Found” was “Idameneo (no 789) Ltd (formerly Mayne Nickless Ltd then Mayne Group Ltd then Symbion Health Ltd)”;
(e)     a copy of an industrial deafness workers notice of injury being a “GIO” form naming the employer as “Security Express”. That document is signed by Mr Mezrani, witnessed by Annette, and is dated 14 February 2011;
(f)      a copy of an industrial deafness employers notice of injury being a GIO form which does not name Mr Mezrani’s employer. It is endorsed with the words “attention Haley” and is stamped as having been transmitted by fax on 15 February 2011;
(g) a copy of a fax document dated 1 April 2011, sent by Annette to Ms Jeffries which purportedly enclosed copies of a permanent impairment claim form dated 1 April 2011 signed by Mr Mezrani; a workers injury claim form, undated; hearing audiogram, and copy of WorkCover insurance policy record. That last document is not included in the documents annexed but it is reasonable to infer that it is the document referred to at (d) above. The worker’s injury claim form is identical to the document attached to the respondent’s Reply referred to at [4] above which has the date of receipt endorsed as being 5 April 2011;
(h)     a copy of correspondence dated 21 April 2011 from Ms Jeffries, the respondent’s WorkCover claims manager NSW to Annette, in which receipt of Mr Mezrani’s permanent impairment claim for industrial deafness is acknowledged. That correspondence includes a request for “payslips or further employer details” and records that Ms Jeffries had been “unsuccessful in locating Mr Mezrani’s employment records”, and
(i)      a copy of Mr Mezrani’s taxation return for the year ending June 1997 which had attached a PPS Payment Summary issued by the respondent named as Mayne Nickless t/as Security Express Country Couriers.

As earlier noted, Annette did not give evidence before the Arbitrator. No explanation is found in her statement for the absence of her evidence at that hearing. Nothing stated by Annette suggests that she had limited recollection of relevant matters in the absence of the file which had been located after the Arbitrator’s determination.
Upon the assumption that a number of the annexures to Annette’s statement form part of the file which has been located, it becomes necessary to examine the circumstances to determine whether those documents were not available to Mr Mezrani, and could not reasonably have been obtained by him, before the hearing conducted by the Arbitrator.
There is no argument advanced that the taxation return was not available and could not reasonably have been obtained. With respect to the other annexures, there is no evidence before the Commission which suggests that the file from which the documents have evidently been extracted could not reasonably have been obtained before the hearing. The only explanation given is that stated by Annette and her sister Jackie that the file was in the boot of a family member’s car and had been located after the Arbitrator’s determination. There is no evidence as to what, if any, efforts to locate this file were made before the arbitration hearing. No explanation as to how or, with precision, when the file was located after the determination of the Arbitrator had been delivered. I note that the file had been located, by inference, within a very short time after Mr Farah had communicated with Annette and her sister as noted at [29] above. Mr Farah has in his statement, which is also the subject of this application, stated that he had asked that efforts be made to locate the file both before and after the Arbitrator’s determination. The evidence is otherwise silent concerning attempts to locate it and the time of its discovery.
I am not satisfied that Mr Mezrani has established that the evidence of Annette, including those documents annexed to her statement dated 20 December 2012, was not available or could not reasonably have been obtained before the hearing before the Arbitrator. The question as to whether failure to grant leave to admit that evidence would cause substantial injustice is addressed below between [53]-[59].

Fresh evidence of Ms Jackie Mezrani

Ms Jackie Mezrani’s statement which is the subject of this application includes an assertion that her father could not find the physical file that had been compiled in relation to the hearing loss claim. It is stated that “this file has now been located. It was in the boot of my daughter’s car. I do not know how it got there”. The statement also addresses confusion as to the identity of a clinic which had been attended by Mr Mezrani and which had been the subject of mistaken evidence given before the Arbitrator. Ms Mezrani further stated that she recalled that her father “actually travelled overseas for a period of approximately eight months from June 2010 until February 2011”. Annexed to that statement is a handwritten note which records “my numbers and websites in relation to my father being able to bring workers compensation claim”.
It is apparent that the corrections to earlier evidence concerning an examination which occurred in 2009 are founded upon documents which comprise the missing file. For the reasons I have expressed earlier when considering the admissibility of Annette’s fresh evidence and the documents annexed to her statement, I conclude that Mr Mezrani has failed to establish that the additional evidence of his daughter Jackie is evidence that was not available to him and could not reasonably have been obtained by him before the hearing before the Arbitrator. The question as to whether the demands of justice require that this evidence be admitted on appeal is addressed below.

Fresh evidence of Mr Jason Farah

In his statement dated 21 December 2012, which is the subject of this application, Mr Farah addresses a number of issues. Mr Farah makes reference to his submissions made before the Arbitrator at the teleconference which included an assertion then made that, by reason of the making of the respondent’s offer to settle Mr Mezrani’s claim, “there was an issue estoppel”. In particular it is stated that a submission was put that the respondent was estopped from “raising the issues that it has disputed or raised in its Reply”. Mr Farah also makes mention of his submission concerning the failure by the respondent to serve a s 74 notice in reply to the letter of claim made by him on behalf of his client. That failure would, it was put to the Arbitrator, prevent the respondent from raising the issues as found in the Reply. It is further stated that the Arbitrator expressed views that there was no estoppel; that leave may be granted to the respondent to rely on the issues raised in the reply notwithstanding its failure to have served a s 74 notice, and that “we can deal with these issues at the conciliation/arbitration”.
Mr Farah’s statement also deals with the confusion as to the identity of the audiologist who had examined Mr Mezrani. Mr Farah further states that, having considered the issues raised in the Reply he asked Mr Mezrani’s daughters to provide documentation in relation to efforts concerning notification of claim that had been made. He was informed by Jackie Mezrani that she and her sister had maintained a file, but that they were unable to locate it. Mr Farah advised that they make efforts to locate the file. Mr Farah was advised that the file could not be located “up to and including the date of the conciliation/arbitration”.
Mr Farah’s statement deals with circumstances which occurred following the determination made by the Arbitrator in November 2012. Following a consultation with Mr Mezrani’s daughters, at which time the matters mentioned at [29] above were raised, he was advised, on 19 December 2012, that the file in question had been located.
It seems by inference that Mr Farah relied upon the contents of that file to make enquiries of certain parties mentioned in his statement including the Australian Hearing Centre. Annexed to his statement is a copy of the file relevant to Mr Mezrani’s consultation at that centre. Those documents indicate that Mr Mezrani consulted the centre on 26 October 2009 and 7 December 2009 and, it seems, hearing aids were provided.
Mr Farah’s statement records consultation with Annette which occurred on 20 December 2012 at which time he was advised that Mr Mezrani had “actually seen a second audiologist/hearing centre, also in Bankstown”. Mr Farah states that this was “the first instructions that I had that [Mr Mezrani] had actually seen two different audiologists”. The file located earlier included material identifying the National Hearing Care Centre in Kitchener Parade Bankstown. Mr Mezrani, it is stated, consulted that centre on 20 May 2010.
Mr Farah’s statement contains details of his efforts to obtain information from the National Hearing Care Centre. Annexed to his statement is a copy of an email received by Mr Farah from Ms Sheeja Govindan, Senior Audiologist of the National Hearing Care Centre dated 20 December 2012. That document included the following:
“Mr Frank Mezrani attended an assessment appt [sic] with his daughter, Annette on the 20^th of May 2010 at our clinic in Bankstown. Mr Mezrani reported that he was fitted with Siemens Hearing aids in Dec 2009 by Australian Hearing. He came in to our clinic to have Assessment for workcover to provide percentage of loss to insurance company as advised when Annette got details off the Work Cover website. Client reported that he used to work for Security Express at Bankstown Airport for 13 yrs and stopped working in 1997. Used to hear airplanes going over tin roof without hearing protection whenever he worked at the airport for a few hours each day during his employment. He was advised by a Doctor after his employment to consider Hearing aids but client wasn’t interested at the time. He reported that he cannot hear anyone speaking unless they are facing him, preferably within a close distance. Hard to hear at family gatherings with other noises around and sometimes neighbors [sic] complain that they could hear his TV due to very loud volume. Annette also commented that she has been aware of having to repeat or speak louder on phone to her father. Client was observed to rely quite heavily on visual cues during appt [sic] today or several repeats were needed.
Otoscopy showed clear canals. PTA results showed a moderate to severe Sensorineural hearing loss in the Right ear and a moderate to profound sensorineural loss in the Left ear. Explained results. NAL-PLH showed binaural percentage of loss as 29.7% at 2‑kHz. Annette said that she WCU for further details/info re work cover if once able to proceed.
Discussed and counseled [sic] client regarding benefit of HAs and early rehab. Encouraged client to wear existing HAs fitted regularly for acclimatization and also explained re limitations of HAs in different listening conditions and auditory deprivation. Mr Mezrani said he has an appt [sic] with Australian Hearing regarding his hearing aids As [sic] in near future.”
I have reached the conclusion that that portion of Mr Farah’s statement which concerns the tenor of his submissions put before the Arbitrator may be accepted on this appeal as a submission put concerning the merits of the appeal generally. That is not to say that the material is to be treated as evidence in the appeal but, given the absence of a transcript of the teleconference, I consider it appropriate to accept Mr Farah’s statement of events as being in accordance with his recollection and may be taken into account concerning the merits of the appeal generally.
As to the balance of his statement, it is clear that Mr Farah’s subsequent investigations were founded upon the material belatedly produced by Mr Mezrani’s daughters following location of the file. I have earlier dealt with the absence of evidence in relation to the question as to whether that evidence might reasonably have been obtained prior to the hearing and for those reasons, I conclude that Mr Farah’s evidence concerning the detail of examinations and the identity of those conducting those examinations may not be admitted as fresh evidence. The outstanding question as to whether the demands of justice require that that evidence be admitted is addressed below.

Would failure to grant leave cause substantial injustice in this matter?

I have earlier, in the context of considering whether leave should be granted to admit Mr Mezrani’s passport, referred to the High Court decision in CDJ (at [32] above). To succeed in his application concerning the admission of the statements of his daughters and Mr Farah, together with those documents annexed to each statement, it needs to be established that that material would have led to a different result, if it had been presented at the arbitration. The Arbitrator in her Reasons accepted that Mr Mezrani first became aware of his injury when he was told by the audiologist at Bankstown that he may be entitled to compensation for hearing loss as a result of exposure to noise during the course of his employment. The Arbitrator further found that the evidence did not establish exactly when that occurred (at [84] of Reasons). Mr Mezrani failed in his application before the Arbitrator, given that his failure to establish the date of his first awareness of injury prevented reliance upon the provisions of s 261(6) of the 1998 Act which provides:
“If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
Mr Mezrani also encountered difficulty establishing with certainty the date upon which he made a claim. It is clear that the Arbitrator treated the claim received by the “Symbion Health Group WorkCover” on 5 April 2011 as being the relevant communication of the claim. Those circumstances led the Arbitrator to conclude that “the date stamp on the claim form and the letter from Ms Jeffries suggest that the claim was lodged on or about 5 April 2011” (at [92] of Reasons). As determined by the Arbitrator, in such circumstances the relevant six month period within which Mr Mezrani was required to make the claim commenced in early October 2010.
The evidence which Mr Mezrani seeks to adduce on this appeal concerning the examination he underwent at the National Hearing Centre would, if admitted, tend to establish that he had relevant awareness of his injury on 20 May 2010. It may be seen that the delay between becoming so aware and the lodgment of the relevant claim was for a period approaching 12 months. In the circumstances, the fresh evidence concerning Mr Mezrani’s attendance at that hearing centre would not have led to a result concerning his reliance upon s 261(6) any different to that as determined by the Arbitrator.
So far as Mr Mezrani’s reliance upon s 261(4) is concerned, that is that his failure to comply with the time requirements as to making of claim may be excused by reason of ignorance, mistake or other reasonable cause, the Arbitrator stated (at [94] and[95] of Reasons):
“The applicant submits that he may rely on the excuse of ignorance, as he was unaware until he was advised by the audiologist at Bankstown in 2010 that he could make a claim for compensation as a result of his hearing loss. The ignorance referred to in section 261(4) is “ignorance of the rights deriving from the Act and the obligations imposed by it” (Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520). The applicant was aware of his rights once he was advised by the audiologist, and once he became aware, he was required to make the claim within six months, unless he is able to establish an excuse not to have done so. He submits that once he became so aware, he made a claim “shortly thereafter”, which does not suggest ignorance of his rights.

The applicant has given no evidence as to mistake or other reasonable cause for his failure to make the claim within six months of becoming aware of the injury.”

Having regard to the evidence then before the Commission, which was summarised between [96] and [98] of Reasons, the Arbitrator concluded (at [99]):
“The applicant has adduced insufficient evidence to satisfy the onus that the delay in submitting the claim was due to ignorance, mistake or other reasonable cause. I therefore determine that the claim has not been made within the time specified in section 261 of the 1998 Act.”
I am of the opinion that admission of the fresh evidence would not permit Mr Mezrani to raise, by way of excuse, ignorance of his rights and obligations. As noted by the Arbitrator, Mr Mezrani, once he became relevantly aware, made a claim, as stated by him, “shortly thereafter”. The fresh evidence would tend to establish, as surmised by the Arbitrator, that such claim was made on or about 5 April 2011. There is nothing put on this appeal suggesting that the fresh evidence supports the contention that ignorance of his rights had given rise to the delay concerning compliance with the requirement of making a claim within six months of that awareness.
There is no suggestion made in submissions that delay in making the claim is shown by the fresh evidence to have been occasioned by mistake. Nor is there any argument advanced, founded upon that material, which identifies any other reasonable cause for such delay. I am not satisfied that failure to grant leave to adduce the fresh evidence would cause substantial injustice in this matter. The application to adduce that evidentiary material is refused.

THE MERITS OF THE APPEAL

I have recited the grounds relied upon by Mr Mezrani in this appeal at [15] above and have attempted to distinguish between the matters raised by the first and second grounds at [16] and [17].

Ground one

In so far as Mr Mezrani asserts that the Arbitrator did not grant leave to the respondent to rely upon the defences enumerated in the reply filed on its behalf, such assertion must be rejected. The Commission’s file relating to this claim contains two documents which constitute a record of what transpired at the teleconference. There is a standard document which is headed “teleconference outcomes” relating to the occasion in question. Under the heading “Any other comments” the following is noted in that document:
“Leave granted to R to raise issues in Reply. R was still within time to issue section 74 notice when ARD filed. R has made offer, rejected by A. A says this raises “estoppel” issues. I advise that I cannot see how.
A will need to file evidence to address the notice and claim issues. R says does not think employment in issue but will contact A if it arises. R made offer, so I assume it satisfied itself that A was employed although last d.o.e was 1997.
R seeks to issue Directions v GP, audiologist and ENT (A had h/aids 3 years ago). A cannot recall their names. Will need to provide those part’s.
R to request part’s of treating drs from A and A to respond within 7 days. I will give leave to R to issue Directions on receipt of those particulars.”
The second document forming part of the Commission’s record relevant to this issue is a copy of the Direction made by the Arbitrator at that teleconference which was issued pursuant to the Rules and forwarded to each of the parties’ solicitors, on 24 August 2012. That Direction is in the following form:
“1. Leave is granted to the respondent pursuant to section 289A (4) of the Workplace Injury Management and Workers Compensation Act 1998 to rely on the issues referred to in the Schedule of Issues in Dispute attached to the Reply.
2.      The applicant is to respond within seven days of receipt to the respondent’s request for particulars of the applicant’s treating medical practitioners.
3.       Leave is granted to the respondent to issue Directions for Production to the applicant’s relevant treating medical practitioners, including general practitioner/s, audiologist/s, and ear, nose and throat specialist/s.
4.       The matter is listed for conciliation/arbitration hearing on 25 October 2012 at 2pm.”

It is clear, having regard to the Commission’s record, that leave had been granted by the Arbitrator pursuant to s 289A(4) permitting the matters of dispute raised in the respondent’s Reply to be agitated at the hearing of the dispute. It follows that, Mr Mezrani’s submission that the Arbitrator erred in permitting those issues raised in the Reply to be litigated must be rejected.

Ground two

As earlier noted this ground is advanced upon the assumption that the Commission is satisfied that leave had in fact been granted by the Arbitrator to litigate the matters raised in defence of the claim. It is put that such leave had been granted in error.
It is correct as submitted by Mr Mezrani that the respondent had not, since the claim was made by his solicitors on 29 March 2012, provided a notice concerning matters in dispute as is required by the provisions of s 74 of the 1998 Act. The absence of such a notice, of itself, does not negate the respondent’s entitlement, in appropriate circumstances, to a grant of leave to rely on defences particularised in the Reply. The history of the claim, as earlier mentioned, includes a renewal of the earlier offer which was communicated on 23 April 2012 in respect of which there is no evidence that Mr Mezrani responded by rejection or otherwise. All that is known is that on 14 May 2012 the application seeking resolution of the dispute was filed with the Commission. As is recorded on the Commission’s record, the respondent was, at that time, within time to file a s 74 Notice: s 281(2)(b) of the 1998 Act. It is also known that the respondent, having been served with that application, promptly filed a Reply in which the defences were particularised and leave pursuant to s 289A to rely upon those matters was sought therein. It is clear, whilst there is no transcript available of the teleconference, that those circumstances were taken into account by the Arbitrator when such leave was granted. It is important, having regard to the arguments advanced on this appeal, to note that this subject was briefly addressed during the course of the hearing before the Arbitrator when the following exchange between counsel and the Arbitrator took place (at T18):
“MR TANEVSKI: There's also another issue which I should have mentioned earlier and that is the 74 Notice. There was never a 74 Notice issued.
MR SAUL: We've dealt with that at the teleconference - dealt with that.
ARBITRATOR: We dealt with that at the teleconference. I was told at the teleconference that the ARD was actually issued before the period for issuing the Section 74 Notice had expired.
MR TANEVSKI: Oh so you've dealt with that?
ARBITRATOR: I dealt with that.
MR TANEVSKI: I wasn't aware of that, sorry.
ARBITRATOR: That's okay.
MR SAUL: And all the - no, that's okay but I'm instructed that all the issues that are in our Reply ‑‑
MR TANEVSKI: Yes.
MR SAUL: ‑‑ were admitted, if you like, as issues at the teleconference.
ARBITRATOR: I gave leave for the Respondent to raise those issues and said at the time ‑‑
MR TANEVSKI: That's fine. It's not an issue, in that case today.
ARBITRATOR: No, but I did say that the Applicant ‑‑
MR TANEVSKI: No, that's fine.
ARBITRATOR: ‑‑ would need to put on some evidence about notice of claim in response to those issues.
MR TANEVSKI: Yeah, right. Thank you, I just wanted to clarify that ‑‑
ARBITRATOR: That's okay.”

It may be seen that no argument was advanced before the Arbitrator that there had been a denial of natural justice or denial of procedural fairness concerning the manner in which the Arbitrator considered the respondent’s application seeking leave. It is clear that counsel appearing on behalf of Mr Mezrani accepted the Arbitrator’s statement that leave had been granted and, in particular, proceeded in submissions to deal with the defence raised concerning failure to comply with the notice provisions. Given the manner in which Mr Mezrani conducted his case before the Arbitrator it is not, in my opinion, open to him to seek to challenge on this appeal the leave granted by the Arbitrator. Accordingly the authorities upon which Mr Mezrani relies, which include the decision of the Commission in Rinker Group Ltd v Mackell [2008] NSWWCCPD 100 and Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227, can have no relevance to any permissible argument on this appeal.
Mr Mezrani’s submissions include assertions concerning an “impression” in his mind and that of his solicitors “that leave still had not been granted to the respondent to rely on matters placed in dispute in the respondent’s Reply” (at [12] of submissions in support of this ground of appeal). It is significant that such misunderstanding, if that be the circumstance, was not raised by counsel when the subject was raised at the hearing. In the circumstances, it is not open to Mr Mezrani to raise complaint founded upon suggested earlier misunderstanding leading to prejudice. I note in passing that there is no evidence before the Commission as to the precise nature of the misunderstanding, if there be one, nor as to how such misunderstanding came about. Ground two is not made out.

Ground three

This ground suggests error on the part of the Arbitrator in finding that “any delay in making a claim was not due to ignorance, mistake or other reasonable cause pursuant to s 261(4) [of the 1998 Act]”. It is put in submissions that Mr Mezrani relies on the new evidence as providing an explanation “for the delay in making of the claim”. Having regard to my earlier ruling concerning the admissibility of that fresh evidence any argument raised on appeal which is founded upon that material must necessarily be disregarded.
It is further argued that the Arbitrator erred, having regard to the state of the evidence as presented at the hearing, in concluding that Mr Mezrani had not made out a case that his delay in bringing the claim had been occasioned by ignorance, mistake or other reasonable cause. Particular emphasis is placed upon the evidence of Ms Jackie Mezrani concerning “the difficulties in locating the correct employer and relevant workers compensation insurer”. It seems to be argued that such evidence was sufficient to establish that any delay occasioned was “due to other reasonable causes”. That argument suggests an error of fact on the part of the Arbitrator. The difficulty confronting Mr Mezrani, in so arguing, is that no such argument founded upon Ms Mezrani’s evidence was advanced before the Arbitrator. Submissions relevant to Mr Mezrani’s reliance upon the provisions of s 261(4) are to be found at pp 25 and 26 of the transcript. The focus of argument as presented before the Arbitrator was upon that evidence concerning Mr Mezrani’s first awareness of relevant injury. Such argument was advanced with a view to placing reliance upon the terms of s 261(6) which, as earlier noted, provide:
“If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
The submissions advanced by Mr Mezrani pay little, if any, attention to the reasoning as expressed by the Arbitrator when rejecting his argument which suggests that he might be excused from the notice requirements as prescribed by s 261. Having regard to the fact that leave has been refused in respect of the fresh evidence application, it is important that close attention be given to those reasons expressed by the Arbitrator for rejection of this argument which could only be founded upon the evidence before her. That reasoning was, in part, earlier referred to and is to be found between [94] and [99] of Reasons as follows:
“94. The applicant submits that he may rely on the excuse of ignorance, as he was unaware until he was advised by the audiologist at Bankstown in 2010 that he could make a claim for compensation as a result of his hearing loss. The ignorance referred to in section 261(4) is ‘ignorance of the rights deriving from the Act and the obligations imposed by it’ (Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520). The applicant was aware of his rights once he was advised by the audiologist, and once he became aware, he was required to make the claim within six months, unless he is able to establish an excuse not to have done so. He submits that once he became so aware, he made a claim ‘shortly thereafter’, which does not suggest ignorance of his rights.

95.    The applicant has given no evidence as to mistake or other reasonable cause for his failure to make the claim within six months of becoming aware of the injury.
96.    Ms Jackie Mezrani has given evidence that her father asked for her assistance in lodging a claim, but not as to when the request was made. She ‘made the enquiries’ as to the relevant workers’ compensation insurer as at the date of the applicant’s employment, but there is no evidence as to when or of whom the enquiries were made, or how long it took to obtain a response.
97.    Ms Mezrani also states that when she contacted the respondent, it could not locate the applicant’s employment records, and she then provided his employment number and pay slips to assist in locating the insurer. Her evidence is that ‘We were eventually successful in locating the insurer’, and she helped her father lodge a claim in early 2011. The use of the word ‘eventually’ suggests that there was a delay in identifying the insurer, but there is no evidence as to how long the process took. Again, the applicant’s submission is that he made the claim shortly after becoming aware that he may have an entitlement to compensation.
98.    It would appear from the documentary evidence that the sequence of events is that the applicant, or Ms Annette Mezrani, submitted the claim form to the respondent on or about 5 April 2011, and that the respondent acknowledged its receipt by letter dated 21 April 2011, when it requested further details of the applicant’s employment. It appears that the applicant had by April 2011 identified the insurer, but the employer was unsure as to whether, and when, he was employed.
99.    The applicant has adduced insufficient evidence to satisfy the onus that the delay in submitting the claim was due to ignorance, mistake or other reasonable cause. I therefore determine that the claim has not been made within the time specified in section 261 of the 1998 Act.”

The Arbitrator’s conclusion that Mr Mezrani had failed to discharge the burden of proof concerning those matters which may excuse non-compliance with the notice requirements was, in my opinion, open to her on the evidence presented at the hearing. The Arbitrator’s reasoning concerning that evidence has been plainly stated and has not been the subject of any submissions on this appeal. The thrust of the arguments advanced have placed reliance upon the fresh evidence which has not been admitted on this appeal for the reasons earlier stated. It is important to note, in my view, that the reasoning of the Arbitrator as expressed led to a result concerning the operation of s 261 which, as I have earlier concluded, would have been no different had the fresh evidence been before her. That fact represents the fundamental reason for the rejection of the fresh evidence which Mr Mezrani wished to adduce on this appeal. Ground three is not made out.
Each of the grounds relied upon by Mr Mezrani have been rejected and the determination made by the Arbitrator must, on this appeal, be confirmed. Appropriate orders appear below.

DECISION

The determination of the Arbitrator as found in Certificate of Determination dated 27 November 2012 is confirmed.

COSTS

No order in respect of costs of this appeal.

Kevin O'Grady

Deputy President
22 April 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE