Nelson Bay Pest Service Pty Limited v Morrison
[2007] NSWWCCPD 135
•6 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135
APPELLANT: Nelson Bay Pest Service Pty Limited
RESPONDENT: Peter John Morrison
INSURER:GIO General Limited
FILE NUMBER: WCC14713-06
DATE OF ARBITRATOR’S DECISION: 25 January 2007
DATE OF APPEAL DECISION: 6 June 2007
SUBJECT MATTER OF DECISION: Admission of late documents – explanation for non-compliance with the Workers Compensation Commission Rules 2006; failure to permit cross-examination; failure to pay a weekly award pending determination of an appeal.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: DLA Phillips Fox
Respondent: Phillip Watson
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 January 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 13 February 2007 Nelson Bay Pest Service Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 January 2007.
The Respondent to the Appeal is Peter John Morrison (‘the Respondent Worker’).
The Respondent Worker was born on 6 January 1957, and the matter ultimately was presented on the basis he had a son dependant upon him for support (T6.5). He was schooled to Year 10, worked in an assortment of jobs as a mail sorter, general hand and bank teller, and from 1986 worked in the pest control industry, sometimes self employed, and sometimes as an employee. He was employed by the Appellant Employer as a pest controller from 25 January 2002.
The Respondent Worker suffered an injury, which was not in dispute, on about 4 February 2004. Whilst carrying out a pest inspection in the roof of a residence, he reached up with his left arm to hold onto a beam, when he experienced neck and arm symptoms. He said he reported the matter to his employer a few days later. When the symptoms did not improve, he saw his general practitioner, and was put off work from 25 February 2004. He has not worked since.
The Appellant Employer made voluntary payments of weekly compensation, however those payments were reduced to a rate of $38.93 per week from 12 April 2006, on the basis of an assessment by the Appellant Employer of the Respondent Worker’s entitlement pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Respondent Worker’s Application to Resolve a Dispute, lodged 13 September 2006 (‘the Application’), sought that those payments be increased to $548.35 per week, from 12 April 2006.
The Respondent Worker had previously made a claim for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act. The Respondent Worker’s statement indicates this claim was resolved by agreement, for a total of $27,500, on the basis of ten per cent whole person impairment (being fifteen per cent, less one third representing a pre-existing injury, condition or abnormality), with a sum for pain and suffering. The Appellant Employer’s submissions on this appeal indicate an agreement pursuant to section 66A of the 1987 Act was registered on 30 March 2005.
The Reply filed on behalf of the Appellant Employer put in issue incapacity, the level of actual and probable earnings, and capacity to earn on the open labour market (including a reference to section 40(3) of the 1987 Act). The Reply did not plead any issue as regards injury, substantial contributing factor, or causation.
The Arbitrator to whom the matter was allocated, issued a Direction dated 23 November 2006, setting the matter down for hearing on 18 January 2007, and giving the parties an extension of time to 11 January 2007, to lodge documents to be the subject of any Application to Admit Late Documents. Both parties availed themselves of this extension. On 21 December 2006 documents were put on by the Respondent Worker, going to his attempts to find suitable work. On 11 January 2007 the Appellant Employer put on documents comprising a Wages Schedule, and some accompanying material in support of its contents.
The matter proceeded to an arbitration hearing on 18 January 2007. Both parties were represented by counsel. Both parties outlined the documentary material on which they relied. Counsel for the Appellant Employer then sought to utilise documents produced by the medical practice of the Respondent Worker’s general practitioner, of which Dr Bourne was a member (‘the GP documents’) (T13). These documents are identified in their entirety at T18.50. The GP documents had been produced to the Commission pursuant to a Direction for Production. There had been an order giving the Respondent Worker first access to this material, from 3 November 2006, with the Appellant Employer then having access subsequent to 17 November 2006. Notwithstanding this, counsel for the Respondent Worker indicated he had not previously seen the material (T14.30). It was common ground the Appellant Employer had not served the GP documents, nor given any notice, by way of Application to Admit Late Documents or otherwise, of the intention to use them, prior to the arbitration hearing.
After perusing the GP documents, the Respondent Worker’s counsel objected to their use, on the basis they had not previously been served or otherwise disclosed by those representing the Appellant Employer, and he apprehended the Appellant Employer would use the material to seek to make out a case different to anything disclosed on documents previously (T15.40).
Counsel for the Appellant Employer then addressed the Arbitrator regarding the use he sought to make of the GP documents. He stated the Appellant Employer did not resile from the fact there had been an injury, lump sum compensation had been paid, and the Respondent Worker suffered an incapacity on the open labour market. He said the only issue was the extent of the Respondent Worker’s capacity to perform work. He continued, “that issue raises a number of matters, namely, whether that incapacity is as a result of injury in its entirety or has some other cause” (T16.40). I observe this, on its face, potentially raises an issue as regards causation, which had not been relied upon in the Appellant Employer’s Reply.
The Arbitrator refused the Appellant Employer’s application to admit the GP documents, giving reasons at T16.45 to 18.40. As the Arbitrator’s refusal to admit these documents is the primary issue the Appellant Employer seeks to agitate on this appeal, it is desirable I shortly record the substance of the Arbitrator’s reasons for this ruling, which were:
(i)A Direction had been made giving the parties until 11 January 2007 to lodge late documents. The Appellant Employer was in possession of the GP documents from 17 November 2006, yet had put nothing before him to explain why these documents were not lodged in compliance with the Direction.
(ii)The Respondent Worker’s counsel indicated he had not previously seen the documents, had not had a chance to absorb the material, and had no instructions as to their content.
(iii)Consequently if the material were admitted, this would necessitate an adjournment for the Respondent Worker’s counsel to be fully instructed as to the contents of the documents, and their potential significance. This would be contrary to the purposes and objectives of the Commission, to provide a fast and fair system of dispute resolution.
(iv)Contemporaneously written medical notes, whilst “demonstrating more accurately than any other material the situation that pertained at the time”, are “only one of many indicia as to the final decision to be made surrounding what happened at the time those notes or histories (were) taken”. They will be subject to the sworn evidence of a worker “as to what he recalls of the various entries and notes and histories that he’s alleged to have given”.
After some further discussion regarding other documents, the Respondent Worker’s counsel made application to call the Respondent Worker to give some short evidence, going to matters relevant to an assessment of the Respondent Worker’s entitlement under section 40, including the labour market reasonably accessible to the Respondent Worker around Anna Bay, where he lived (T20.45 and 21.15). Counsel for the Appellant Employer indicated he too wished to ask questions of the Respondent Worker going to his capacity to earn, particularly having regard to the contents of the GP documents he had previously sought, unsuccessfully, to use (T20.50 to 21.55). The Arbitrator declined the Respondent Worker’s application to give oral evidence, on the basis the material before him, going to the topic referred to by the Respondent Worker’s counsel, was already sufficient, without being supplemented by further oral evidence.
The Arbitrator then invited counsel for the Appellant Employer to make any further submissions, regarding why he should be allowed to cross-examine. The Appellant Employer ultimately framed its application, at least in part, on this basis:
“(APPELLANT EMPLOYER’S COUNSEL): …What I’m really talking about is medical reasons unrelated to his injury in the course of the employment that impair his ability to find employment.
ARBITRATOR: And these are the medical reasons that you’ve discovered as a result of your directions being issued on –
(APPELLANT EMPLOYER’S COUNSEL): Medical – some medical reasons, yes, by reason of the material that has been produced by the general practitioner. There’s also in the documents that are before you evidence as to the restrictions that ultimately I will submit have little to do with the injury in the course of his employment. That, of course, is a reference to the medical certificate – I’ll just turn it up – from the unpronounceable doctor, Exhibit L.” (T22.45 to 23.5)
The Arbitrator then declined the Appellant Employer’s application to cross-examine, giving reasons at T23.5 to 23.45. He noted Exhibit L was a document which spoke of the Respondent Worker suffering from back pain. He said the statement (presumably of the Respondent Worker) clarified the matter sufficiently, the issues were clearly defined by the documents, and he was not satisfied cross-examination was required, either in the interests of justice, or the exercise of his discretion. He said it may work an injustice on the Respondent Worker, if cross-examination were permitted on the GP documents, when they had not been admitted or lodged in the normal way.
Counsel for the parties then addressed on quantification of the Respondent Worker’s section 40 entitlement. Submissions on behalf of the Appellant Employer included the following:
“So the submission I put to you is that if there is only a capacity to work part-time, that inablility to work full-time is due to a mixture of complaints, some of which are compensable, namely, the neck and left shoulder problem, and the other is not compensable, and that is the back and whatever the right shoulder problems are as referred to by Dr Christie.” (T26.5)
Counsel for the Appellant Employer then referred the Arbitrator to a history recorded in Dr Christie’s report dated 2 May 2006 (attached to the Respondent Worker’s Application), in which Dr Christie refers to having seen the Respondent Worker in June 1995 with neck pain. He contrasted this with some of the other histories recorded by doctors in the case, and made the submission:
“…you need to be very careful in accepting in its entirety the worker’s statement that first he has a capacity – sorry, that he has an incapacity to perform full-time employment and, secondly, that he’s made a genuine attempt to assert whatever retained capacity that he has…there’s material before you that would give you cause for concern in excessively linking (sic) everything the worker says in the absence of some corroboration.” (T27.40 to 27.55)
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 January 2007 records the Arbitrator’s orders as follows:
“1.There will be an award in favour of the Applicant at the maximum statutory rate for a worker and one dependant from 12 April 2006 to 1 October 2006 in the sum of $413.40, and thereafter in the sum of $421.20 to date and continuing as adjusted from time to time.
2. The Respondent is to have credit for payments made.
3. The Respondent is to pay the Applicant’s s. 60 expenses.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s decision was ex tempore, and his reasons form part of the transcript. I do not need to set these out in any detail, as the matters raised on the appeal go predominantly to procedural matters arising from the GP documents, rather than to any submissions arising from alleged deficiencies in the Arbitrator’s reasoning.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that, should the appeal be allowed, the matter cannot be finally determined on the papers, as the “new evidence” (effectively the GP documents) would require the Respondent Worker to give oral evidence, and be cross-examined. The Respondent Worker basically concurs with this view, saying if the Arbitrator’s decision is set aside, “the only order that can be made is to remit the whole matter for a further hearing”. I do not understand these submissions to agitate against the appeal being decided on the papers, but rather to make the point that if the appeal succeeds, resulting in use of the GP documents being allowed, this would necessitate a rehearing of the matter. I accept that, should the appeal succeed, the appropriate order would be one remitting the matter for rehearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties as regards the further conduct of the matter, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The quantum of weekly compensation awarded well exceeds the sum of $5,000 prescribed in section 352(2)(a) of the 1998 Act. More than 20% of the sum is in issue on the appeal, satisfying section 352(2)(b). The Respondent Worker’s submissions say nothing in opposition to the granting of leave. I grant leave to appeal.
ISSUES ON THE APPEAL
There are two nominated grounds of appeal. The first is that there was a denial of justice to the Appellant by the Arbitrator, in refusing leave to allow the introduction into evidence of the GP documents. The second is that this denial of justice led to the Arbitrator erroneously finding there was no cause for the Respondent Worker’s incapacity, other than the pleaded work injury. The second ground amounts to nothing more than an assertion the first nominated error affected the result. This is necessary if the first ground of appeal (if made out) is to constitute appealable error: South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18; Gerlach v Clifton Bricks Pty Limited [2002] 209 CLR 478 at [10]. Thus there is really a single ground of appeal, that the Arbitrator erred in failing to admit the documents.
The Appellant Employer makes the following submissions in support of the appeal:
(i)Dr Bourne, whose notes in large part comprised the GP documents, had been the Respondent Worker’s general practitioner from 1990 to 25 October 2006 (the date of the last entry in the notes). The GP documents were not the subject of an Application to Admit Late Documents because of “a forensic decision made by the Appellant’s solicitor”. The Appellant Employer’s counsel disagreed with this decision, and accordingly sought to use the GP documents on the arbitration hearing.
(ii)Had the documents been admitted, there would have been no prejudice to the Respondent Worker, who had “narrated the history taken down by Dr Bourne and was fully aware of the contents of the notes”. In addition, the Respondent Worker ought have been aware of the notes’ existence, as they had been produced pursuant to Direction, and available for inspection, since November 2006.
(iii)Contrary to the reasoning of the Arbitrator, an adjournment would not have been occasioned by use of the notes, as the Respondent Worker was aware of their contents. Issues raised by the notes could have been dealt with by the taking of oral evidence from the Respondent Worker, both in chief and through cross-examination. Alternatively, had an adjournment been necessary, any prejudice could have been dealt with through an appropriate costs order against the Appellant Employer.
(iv)There is a discretion to permit a respondent to an application to use evidence not attached to its Reply, to avoid injustice (Rule 10.3(1)).
(v)Comments made by the Arbitrator, regarding the potential for inaccuracy of the clinical notes of medical practitioners, indicate the Arbitrator had a pre-conceived view, and “was not prepared to consider any evidence with objectivity”. A party relying on the contents of clinical notes “accepts the documents as being accurate at face value”. The only way to test the accuracy of the notes would have been through cross-examination, which the Arbitrator also disallowed.
(vi)The Commission has a duty to afford parties procedural fairness, and this should not be overborne by concepts of case management. Reference is made to Sali v SPC Limited & Anor (1993) 116 ALR 625, and State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146.
(vii)The Appellant Employer then makes submissions founded in the GP documents themselves, in support of the argument the refusal to admit such documents affected the result. Reference is made to complaints of neck pain prior to the work injury, and to “a drinking problem”. The Appellant Employer specifically submits “the Respondent’s credit as a witness was never in issue in so far as the Appellant accepted that the Respondent had suffered a work injury. This submission is supported by the section 66A Agreement that was registered”.
(viii)It is submitted the material in the GP documents could have led the Arbitrator to consider whether to use his discretion pursuant to section 40.
(ix)The Appellant Employer submits the GP documents should be treated as “new evidence” for the purpose of the appeal.
The Respondent Worker opposes the use of the GP documents as “new evidence”, on the basis the material was in the hands of the Appellant Employer since November 2006, a deliberate decision had been taken not to use it prior to the arbitration hearing, and the Appellant Employer cannot now resile from that position. The Respondent Worker further submits, in opposition to the appeal:
(i)When the Appellant Employer sought to use the GP documents, no explanation was given for why the Workers Compensation Commission Rules 2006, and the previous Direction of the Arbitrator, had not been complied with. It now transpires the decision to seek to use the documents resulted from counsel’s advice around the time of the arbitration hearing, expressing a view contrary to the earlier views of the solicitors for the Appellant Employer. This is not a sufficiently good reason to grant the leave sought, to use the documents, particularly when the consequence would be an adjournment. Reference is made to the decision of the NSW Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, and the discussion there regarding the Rules, and the Objectives of the Commission.
(ii)The Appellant Employer failed to comply with the procedural requirements governing the admission of fresh evidence on an appeal.
(iii)The GP documents would probably not have affected the result, even if admitted. The significance of prior complaints of neck pain is challenged, given the Respondent Worker’s ability to carry out arduous work with the Appellant Employer, prior to the relevant work injury. It is submitted there was no evidence of incapacity prior to the work injury. The admission inherent in the consent payment of lump sum compensation pursuant to the section 66A agreement is referred to, as is the failure by the Appellant Employer to use the report it commissioned from Dr Spittaler, neurosurgeon. It is submitted any prior complaints of neck pain are, on the history overall, irrelevant to the determination by the Arbitrator of the Respondent Worker’s section 40 entitlement.
The Appellant Employer put on submissions in response, in which it sought to remedy its failure to comply with the procedural requirements governing fresh evidence on an appeal. The Appellant Employer in that document also responded to the submissions of the Respondent Worker.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
It is, to some extent, misleading to regard the GP documents as ‘new evidence’, as clearly they were available for use at the arbitration hearing, had this course been permitted by the Arbitrator in the circumstances. However they constitute evidence in addition to that received in relation to the decision, and accordingly their use on this appeal is governed by section 352(6), notwithstanding their earlier availability. It is clearly necessary that I have regard to these documents, at least for the limited purpose of considering the argument raised by the Appellant Employer on this appeal. Accordingly I grant leave to the Appellant Employer to rely upon the GP documents for the purpose of this appeal. This does not amount to an order the documents should have been admitted by the Arbitrator, which is a separate matter, and the central issue in the appeal.
DISCUSSION AND FINDINGS
The Statutory Background
Section 290 of the 1998 Act provides for the exchange of information between parties to a dispute, which has been referred for determination by the Commission. Procedures governing the lodgement and service of information and documents are contained in Rule 10.3 of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:
“(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with:
(a) the application to resolve the dispute, if the party is the applicant, or
(b) the reply required by rule 10.4 (1), if the party is a respondent, or
(c) the reply required by rule 11.1 (7), if the party is a party joined under rule 11.1 (4),
all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings.
(2) Subject to subrules (3)–(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Guideline made under that Act.
(3) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a party wishes to rely on a document produced as required by a direction issued under rule 13.4 or a notice for production served under rule 12.2, or inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), and claims that the party was:
(a) unaware of the relevant information in the document, or
(b) unable to obtain possession of the document,
at the time the party lodged the application to resolve the dispute or reply by the party in the proceedings, the party must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings:
(c) a copy of the document, or
(d) if the document was inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), a description of the document.
(5) Without limiting subrule (3), where a party complies with subrule (4) in respect of any information, the Commission may allow the party to introduce evidence of that information.”
I will assume (in its favour) the Appellant Employer was unaware of the information contained in the GP documents, or unable to obtain possession of them, prior to their production under a Direction for Production issued under Rule 13.4. In such circumstances the mandatory requirements of Rule 10.3(4) required the Appellant Employer, as soon as practicable after becoming aware of the contents of such documents, to lodge and serve a copy of the documents, in compliance with Rule 10.3(4), if it wished the Commission to exercise its discretion to permit introduction of the documents into evidence pursuant to Rule 10.3(5). This it did not do. The Appellant Employer had access to the documents pursuant to an access order, from 17 November 2006.
Rule 3.2 gives the Commission discretion to extend or abridge any time fixed by the Rules. The Arbitrator had made a Direction, extending to 11 January 2007 the time to lodge documents to be the subject of any Application to Admit Late Documents. It is conceded the GP documents were not served in compliance with the Rules, or with this Direction, as a forensic decision had been taken by the Appellant Employer’s solicitor not to do so.
Explanation for Non-Compliance With the Rules
There remained a discretion to admit the documents, when the Appellant Employer sought to use them at the arbitration hearing, pursuant to the discretion contained in Rule 10.3(3), and the discretion to reduce time contained in Rule 3.2. However given the failure by the Appellant Employer to serve the material, or give notice of an intention to use it, either in compliance with Rule 10.3(4), or with the earlier Direction of the Arbitrator, there was an obligation upon the Appellant Employer to explain the lack of compliance with the Rules. The Appellant Employer was seeking an indulgence, in seeking to use the documents in such circumstances. In Iovanescu v McDermott [2004] NSWCA 106 (‘Iovanescu’), the NSW Court of Appeal dealt with an application pursuant to the District Court Rules, to seek extension of the time in which to seek rescission of a dismissal order. Young CJ said:
“3. Mr Doherty SC almost used the phrase "merely a matter of case management" as some sort of mantra which would excuse all non-compliances with the court rules.
4. It is true, as has been said many times over, that the rules must be the servant and not the master, in litigation.
5. However, the authorities, when properly examined, do not stop there, but actually make it clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.”
In the same case, Windeyer J said:
“12. So far as prejudice is concerned the trial judge said that the relevant rule under which the statutory dismissal took place was part of the case management armoury of the court. He then set out various passages from State of Queensland & another v J L Holdings Pty Limited (1997) 189 CLR 146 which are well known and which need not be reproduced, but which in essence state that case management is not an end to itself but is an aid to the administration of justice and that case management procedures do not overcome the requirement of ensuring a fair trial. It is a mistake to regard the decision in that case as a sort of gospel in all indulgence applications; it is important to remember it was relevant to amendment.”
And:
“16. I turn now to the explanation as to whether or not there was a proper explanation for delay. Counsel for the respondent argued that as there was no statutory requirement for an explanation, no explanation was required. That is not correct. It is always a question bearing upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension of time to apply to rescind the dismissal. It cannot just be a question of prejudice and ability to have a fair trial. If that were the position and everything else could be sorted out by appropriate costs orders then the accepted requirements for case management would go out the window. Hence the principles of case management assume that the parties will comply with rules or give proper reasons for failure to do so.”
In Coles Myer Limited v Tabassum [2005] NSWWCCPD 16 Byron DP described the following as factors which might be taken into account, in considering the admission of late documents:
“-Whether there was an acceptable explanation for the delay
-Whether or not the refusal to admit the evidence will cause a substantial
prejudice to the party making the application
-The prejudice, if any, that would result to the other party
-Whether or not the delay in filing the document was attributable to the legal representative and not the party personally
-The nature of the proceedings, including the nature of the relevant statutory scheme
-General considerations of fairness and justice between the parties.”In his reasons for refusing to admit the documents, which I have paraphrased at [12] above, the Arbitrator observed nothing had been put to him at all, on the application to use the documents, to explain why they had not been lodged in compliance with his Direction. The transcript supports this observation. As an initial step in seeking to use documents in such circumstances, one would expect a satisfactory explanation for previous non-compliance with the Rules and the Arbitrator’s Direction. This was not forthcoming. It is only on this appeal the Appellant Employer proffers an explanation, which is that a deliberate decision had been taken by the Appellant Employer’s solicitors not to do so. The Arbitrator described the ignoring of his Direction by the Appellant Employer as the primary reason for his refusal of the Appellant Employer’s application to use the GP documents (T17.55 to 18.5).
The failure to supply an explanation for not putting on evidence in time, was considered in Woolsey v Pied Piper Pre-School (Wallerawang) Incorporated [2005] NSWWCCPD 77, where Fleming DP said:
“…it is apparent that the Arbitrator has not erred in refusing to allow Ms Woolsey to file the medical report of Dr Parmegiani. The parties had both been given significant time (3 months) to file further evidence following the telephone conference on 27 February 2004. Ms Woolsey failed to file her evidence in the time allowed and, I accept Pied Piper’s submission that no explanation was provided for the delay.”
Considerable assistance also may be obtained from the passages of Iovanescu quoted above. Whilst that decision dealt with the District Court Rules, and in a somewhat different context, the principle is of general application. A party seeking to abridge or extend time must explain the delay which has occurred, in discharging his onus of persuading a tribunal or court to exercise a discretion in his favour. In balancing the considerations relevant to exercising a discretion regarding admission of the GP documents, the unexplained failure to serve the documents at any time prior to the arbitration hearing, was a significant factor militating against the discretion being exercised in the Appellant Employer’s favour.
Prejudice
In considering the issue of prejudice, it is necessary to have regard to the contents of the documents, which I have read, and the use the Appellant Employer sought to make of them. It should be remembered the issues between the parties, as pleaded, fell within small scope (see [7] above). The Appellant Employer’s counsel outlined, at T16, his purpose in seeking to use the documents. He identified their use as going to the question of whether a conceded partial incapacity was a result of the work injury, in its entirety, or had some other cause. The submissions of the Appellant Employer’s counsel on the arbitration hearing suggested credit also may have been an issue potentially to be argued, on the basis of arguably inconsistent histories regarding prior neck symptoms (see T27). However this potential use is disavowed in submissions on the appeal (submissions at [20]). The other issue raised by the Appellant Employer, as one on which the GP documents would be of relevance, is an argument the Respondent Worker’s excessive drinking was an alternate cause of incapacity, which would be relevant to the issue of discretion under section 40.
The clinical notes in the GP documents contain references to periodic complaints of neck and arm pain, prior to the work injury of 4 February 2004, ranging from 10 June 1994 to 6 April 1997. They are then silent as regards such complaints, until 25 February 2004, when there is an attendance subsequent to the pleaded work injury. The entry of 10 June 1994 includes a history of a motor accident leading to whiplash. No issue as regards causation was raised in the Appellant Employer’s Reply, nor was it ever suggested causation of the neck problems was to be added as an issue. The Appellant Employer’s submissions in response, at [14] confirm causation is not an issue. If it were, particularly in the context of the entries in the clinical notes referred to above, this would have raised its own difficulties. The parties would have been entitled to obtain further medical evidence dealing with those matters of history, and their relevance (or lack of it) to the Respondent Worker’s presentation after 4 February 2004. However, given causation of the Respondent Worker’s neck complaints was not (and is not) an issue between the parties, it is difficult to see this aspect of the GP documents is of significant relevance to any issue between the parties. If the relevance of the GP documents on this point, on the pleaded issues, was marginal, there is little prejudice to the Appellant Employer, in not admitting the documents.
The notes do contain reference to the Respondent Worker “drinking a lot”, particularly at 25 January 2006, a reference to which the Appellant Employer refers at [12] to [14] of its submissions in response. However the GP documents do not contain material which would in any way identify this as a “supervening illness”, to use the language of McHugh JA in Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50 at 55A, such as to amount to a basis for reduction of an award, on the basis of discretionary factors. Overall, it is difficult to identify an issue between the parties to which the GP documents were of significant relevance. The situation may have been different if causation had been a live issue.
The Respondent Worker asserted admission of the GP documents would cause him prejudice (T15.45). This was, in part, on the basis of the Respondent Worker’s counsel’s concern as to the use to which the documents may be put in cross-examination, if this were permitted (T15.40), and also on the basis it was apprehended the Appellant Employer would seek to make a different case to that previously presented (T15.40). This may well have represented a concern the Appellant Employer would attempt to use the documents to make causation a live issue, when it had not been up to that point, although this is not spelt out. If this was, even in part, part of the use to which the documents were to be put, then prejudice to the Respondent Worker did exist. The Appellant Employer submits the Respondent Worker, having given the histories contained in the GP documents, would not be prejudiced by their introduction into evidence. This argument is excessively simplistic. It assumes the Respondent Worker will be in complete agreement with the recording of all histories in the GP documents, over a period of years. It also fails to take account of the implications of such histories. What is potentially significant is not the recording of the histories as such, but their effect upon the medical cases presented by the parties. Preparation on the Respondent Worker’s part, of a medical case on causation, taking account of the material in the GP documents, would probably have necessitated an adjournment, which of itself would have constituted potential prejudice. In Menzies & Anor v CRCI Pty Limited [2007] NSWCA 118 Hodgson JA said:
“27. It was put that, in accordance with JL Holdings, the Court should grant an amendment, unless prejudice was caused to the other side that could not be met by an adjournment and costs, and that any prejudice in this case could have been so met. However, in my opinion, where an amendment would require vacation of a hearing date which was set to take place within a few days, generally there is prejudice through prolongation of the litigation that is not entirely met by costs, and the imposition of that prejudice on the other party needs to be justified by the strength of the case made for the indulgence by the party applying for it. I do not think this was made out in this case, for the reasons I have given, especially in circumstances where no explanation was given for not complying with the terms of the previous indulgence granted.”
Providing the Appellant Employer was restricted to the issues pleaded up to that point in time, the GP documents did not much advance the Appellant Employer’s case, and as a consequence did not much hurt the case presented by the Respondent Worker. However an apprehension on the Respondent Worker’s part, that (particularly if cross-examination on the material were permitted) causation could become more of an issue than it had been, was understandable.
Nature of the Statutory Scheme
The nature of the statutory scheme was a matter relied upon by the Arbitrator in reaching the view he did, particularly given the possibility of an adjournment. This was a valid factor for the Arbitrator to consider. As was observed by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [58], section 367(2) of the 1998 Act requires members of the Commission to observe the Commission’s objectives in exercising their functions. Notwithstanding this, there is no doubt the Commission is required to apply rules of law in arriving at its decisions (Edmonds at [88]), including obligations of procedural fairness and natural justice (Edmonds at [91]).
The Appellant Employer submits the Arbitrator, in referring to the objectives of the Commission as he did, denied it justice. Reference is made to High Court authorities of Sali v SPC Limited & Anor (1993) 116 ALR 625 and State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146. The submission is that concepts of case management should not prevail to a point of denying a party natural justice. In my view it cannot be validly suggested this was what the Arbitrator did. In exercising his discretion, the Arbitrator was required to balance competing factors, of which the Commission’s objectives were but one (albeit valid) consideration. The consideration by the Arbitrator of the Commission’s objectives, was consistent with both his statutory duty (Edmonds) and matters properly to be considered at common law (Iovanescu).
In Summary
It flows from the above, that I am not persuaded the Arbitrator erred, in his refusal to admit the GP documents. He considered various matters relevant to his discretion to admit the documents. The lack of any explanation being proffered, for the failure to lodge or serve the documents at an earlier time, in compliance with the Rules or the Arbitrator’s Direction, was properly regarded as crucial. The prejudice to the Appellant Employer was not great, given the marginal relevance to the issues, at least as they were pleaded. There was potential prejudice to the Respondent Worker, if use of the documents ultimately resulted in the issues expanding, such that further medical evidence became necessary. The reference to the objectives of the Commission, and concepts of case management, was not inappropriate in the circumstances, and a matter to be properly kept in mind, in exercising the discretion.
Failing to Permit Cross-Examination
It is raised, in the arguments put by the Appellant Employer on this appeal, that one basis for exclusion of the documents constituting error, is that the Respondent Worker could have been cross-examined, about his prior neck complaints and excessive drinking, had the documents been admitted. The Arbitrator’s refusal to permit cross-examination of the Respondent Worker is not raised as a separate ground of appeal, and I will not deal with this aspect of the argument at length. The Respondent Worker, in submissions filed on his behalf, referred to the decision of the NSW Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34. In that case Bryson JA, in considering whether curtailment of cross-examination by an arbitrator amounted a denial of procedural fairness, said:
“37. An assessment of whether the Arbitrator's decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
It is clear a party does not have a right to cross-examine, and permission of cross-examination is discretionary. A number of the matters referred to above, as relevant to the exercise of the Arbitrator’s discretion to admit the GP documents, also would be relevant to whether the failure to permit cross-examination on those documents amounted to error. The material was of marginal relevance to the issues as pleaded. If a consequence of such cross-examination were to open up causation as an issue, this could well have necessitated an adjournment, which would have constituted prejudice to the Respondent Worker. Overall, permission of cross-examination on the documents was a matter in the discretion of the Arbitrator, and in my view his exercise of discretion on the point does not demonstrate error.
DECISION
The decision of the Arbitrator dated 25 January 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
FAILURE TO PAY AWARD PENDING AN APPEAL
The Respondent Worker’s solicitor wrote to the Registrar of the Commission on 11 May 2007 seeking the hearing of the appeal be expedited. The reason given was as follows:
“As you will note the matter relates to payments of weekly compensation. Mr Morrison continues to receive only $39.00 per week from the appellant insurer whilst (t)he appeal is pending notwithstanding the award for full weekly payments. As his wife is in part-time employment he is unable to obtain Centrelink benefits and they have a dependant child.
He is having extreme financial difficulties because of this and would appreciate if the matter could be dealt with as soon as possible.”
At that time the appeal was ready for allocation to a Presidential member in any event. On 23 May 2007 the President Justice Sheahan wrote to the parties, advising the matter had been allocated to a Presidential member, and that the correspondence of 11 May 2007 had been placed on file. It was not, in the circumstances, necessary to deal with the application for expedition.
The Arbitrator’s award was entered on 25 January 2007, and was payable from that time. For the guidance of parties, the printed form used by appellants, when lodging an Application to Appeal (Form 9) has printed on it, near its commencement, “This application does not operate as a stay of the order.” Because of the expedition application on the Respondent Worker’s behalf, and the reasons for it, I took the view the appropriate course was to decide this appeal as promptly as possible, rather than to issue a Direction bringing the alleged non-compliance with the award to the attention of the parties, and inviting submissions regarding whether the award was unsatisfied, and any reasons for that. Thus, I have not brought the allegation of non-compliance with the award to the attention of the Appellant Employer, and have no response to the allegation. Clearly it would be inappropriate that I express any view regarding whether the award is unsatisfied, and why.
I should note that, if the allegation is true, the Appellant Employer is in breach of an award of the Commission entered over four months ago, which would be an unsatisfactory state of affairs. I also should note that, if the allegation is true, the Respondent Worker is entitled to interest on the amount from time to time unpaid, pursuant to section 110 of the 1998 Act. This occurs pursuant to operation of that Act, and would not require any further order from me.
Michael Snell
Acting Deputy President
6 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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