Narayan v Paul Segaert Pty Ltd trading as Lidco
[2006] NSWWCCPD 257
•4 October 2006
WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:Narayan v Paul Segaert Pty Ltd t/as Lidco[2006] NSWWCCPD 257
APPLICANT: Kuldip Narayan
RESPONDENT: Paul Segaert Pty Ltd t/as Lidco
INSURER:Employers Mutual Indemnity Limited
FILE NUMBER: WCC3997-05
DATE OF DECISION: 4 October 2006
SUBJECT MATTER OF QUESTION: Novel and complex; section 351 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Applicant: Taylor and Scott
Respondent: McCulloch & Buggy
ORDERS MADE: Leave to refer the Question of Law is refused.
No order as to costs of the referral of the Question of Law.
BACKGROUND
On 27 July 2005 the respondent employer in this matter, (‘Lidco’) lodged with the Workers Compensation Commission (‘the Commission’) an ‘Application for Leave to Refer a Question of Law’ (‘the Question of Law Application’) and an ‘Application Appeal Against Decisions of Arbitrator’ (‘the Appeal Application’).
In these proceedings Mr Narayan alleged he sustained injury to his wrists as a result of the nature and conditions of his employment prior to, and including 3 October 2003, whilst working for Lidco on an assembly line.
On 4 July 2005 a certificate pursuant to section 294 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) titled ‘Statement of Reasons -Extempore Orders’ (‘the Certificate’) was issued, by the Arbitrator who determined the matter at first instance, setting out the orders made at the hearing on 29 June 2005, and noting that a sound recording of the reasons given orally would be made available to the parties.
Lidco submits in the Question of Law application that during the conciliation and arbitration hearing it was denied procedural fairness as a result of the Arbitrator:
· introducing new evidence favourable to the worker Mr Narayan;
· pre-judging the matter;
· failing to disqualify himself on the basis of apprehended bias and denial of procedural fairness, and
· breaching the Arbitrator’s Code of Conduct by failing to act fairly, impartially or independently.
On 3[sic] August 2005 the Commission returned sealed copies of the Question of Law Application and issued a Direction dated 4 August 2005 directing the service of the Question of Law Application on Mr Narayan, the lodgment of a Certificate of Service, and that Mr Narayan file with the Commission and serve on Lidco submissions in reply, including submissions on whether the matter could be determined on the papers.
A copy of the transcript was forwarded to both parties on 10 August 2005.
On 5 September 2005 and 8 September 2005 the solicitors for Lidco filed a Certificate of Service, confirming service on Taylor and Scott Solicitors, of the Question of Law Application, the Appeal Application and the Directions dated 4 August 2005.
On 13 September 2005 the Commission notified the WorkCover Authority of NSW (‘the Authority’) enclosing a copy of the Question of Law Application, the transcript of Arbitration dated 29 June 2005 and a Direction dated 13 September 2005, inviting the Authority to advise if it sought to become a party in the proceedings and lodge submission on the Question of Law.
On 25 October 2005 the Commission wrote to the solicitors for Lidco requesting confirmation as to whether their client wished to proceed with the Question of Law Application noting their lodgment of the Appeal Application, which was in the same form. The letter also requested that, if the Question of Law Application was to proceed, the solicitors file with the Commission and serve on Mr Narayan information required under Rule 76(3) of the Workers Compensation Rules 2006. The Commission said “…that if the information is not provided, in accordance with Practice Direction [Number] 5 the application to refer the question of law will not be put before the President for consideration.”
On 1 November 2005 the solicitor for Lidco lodged with the Commission correspondence confirming their client wished to proceed with the Question of Law Application, enclosing submissions pursuant to Rule 76(3), and confirming that a copy had been served on Mr Narayan’s solicitors.
Mr Narayan’s solicitors have not lodged submissions on the Question of Law Application, and the Authority has not exercised its right to be joined to the proceedings pursuant to section 106 of the 1998 Act.
Mr Narayan’s solicitors have, however, lodged a Notice of Opposition to the Appeal and submissions in reply.
SUBMISSIONS
In addition to Lidco’s submissions briefly summarised in paragraph 4 above, the supplementary submissions addressing the requirements of Rule 76(3), which were lodged on 1 November 2006, may be summarised as follows:
· “The application for Leave to refer a Question of Law seeks review of a matter where an Arbitrator introduced evidence into the proceedings which supported the Respondent’s case…[and relied] upon that material in making his decision in relation to the claim.”; (emphasis added)
· “…the Arbitrator has taken this approach in a number of other matters which have proceeded to Arbitration…the Appellant submits that the question of law should be determined by the President so as to give parties a clear authority in relation to an Arbitrator’s duty to be impartial, independent, and fair.”, and
· the issue to be decided is whether the Arbitrator’s introduction of and reliance on new evidence in the proceedings “lead[s] to a reasonable apprehension of bias”.
ON THE PAPERS
It appears from paragraph 23 of the submissions annexed to the Question of Law application that Lidco does not seek a hearing, and leave to refer the Question of Law can be determined on the papers.
As noted above at paragraph 11 no submissions on the Question of Law application have been lodged on behalf of Mr Narayan.
Having regard to section 354(6) of the 1998 Act, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine leave to refer the Question of Law, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.
THRESHOLD ISSUES
Time for making the application
This Question of Law Application was made after the Certificate of Determination was issued on 4 July 2005 pursuant to section 294 of the 1998 Act.
Questions of Law are referred to the President in accordance with the provisions of section 351 of the 1998 Act, which makes no provision for the referral of a Question of Law after the arbitration proceedings have concluded, and the Arbitrator has made his/her decision, although the President’s determination on the question may be made after an award has been made by the Arbitrator (see section351 (6) (b)).
As Deputy President Byron held in the matter of Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 2 at 14:
“…It follows that the reference must be made during the course of the proceedings before the Arbitrator and not after the completion of the proceedings when the Arbitrator is functus officio. Subsection (5) allows the Arbitrator to proceed to make an award notwithstanding that the reference has been made to the President and for all practical purposes, whether the matter has or has not been dealt with by the President at that point in time. Subsection (6)(b) which must be read in the context of the section in which it is contained, makes provision for the award of the Arbitrator to be varied in circumstances where the opinion of the President on the question of law is delivered, after the award is made. This is different to the proposition put by the Applicant. There is no provision under the Act for the Application for Leave to Refer a Question of Law, to be made to the President, once the proceedings before an Arbitrator are finished and he or she has determined the matter.” (emphasis added)
Novel and Complex
Although leave to refer this Question of Law cannot be granted because the application was made after the arbitration process had concluded, the Question does not meet the threshold test that it must involve “a novel or complex question of law” (section 351(3)).
The Question of Law Application discloses no discrete Question of Law. The document contains submissions in identical form to the submissions made in support of the Appeal Application.
Lidco seeks orders that the Arbitrator’s decision be set aside, and either that the matter be remitted for arbitration before a new Arbitrator, or that a new decision be substituted on appeal. The supplementary submissions (summarised at paragraph 13 above) make some attempt at defining a question of law, but seek again an order revoking the Arbitrator’s decision.
The issues forming the basis of this application arise out of the general conduct of the proceedings at first instance, and are matters appropriate for determination on appeal, pursuant to section 352 of the 1998 Act, and Lidco has exercised its rights appropriately by lodging an appeal. The question raised in the supplementary submissions can be agitated in the appeal.
CONCLUSION
This Question of Law Application is misconceived, both as to the timing of its lodgment, being after the proceedings before the Arbitrator had concluded, and in the relief that it seeks.
DECISION
Leave to refer the Question of Law is refused.
COSTS
I make no order as to costs of the referral of the Question of Law.
Justice Terry Sheahan
President
4 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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