New South Wales Police Force v Winter

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	New South Wales Police Force v Winter [2014] NSWWCCPD 70
APPELLANT:	New South Wales Police Force
RESPONDENT:	Gregory Winter
INSURER:	Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:	A2-438/10
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	14 April 2014 15 September 2014 24 October 2014
SUBJECT MATTER OF DECISION:	Interlocutory determination; s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; discretion to reconsider order of the Commission; fresh evidence; consideration of public interest in finality of litigation; delay in bringing reconsideration application
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Stanton, instructed by SMK Lawyers
Respondent:	Mr I Latham, instructed by Baker & Edmunds Solicitors
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Senior Arbitrator’s determination and orders made on 14 April 2014 are confirmed. 3. The Appellant is to pay Mr Winter’s costs of the appeal in any event.

BACKGROUND

This matter concerns an appeal against an interlocutory determination made by Senior Arbitrator Snell on 14 April 2014. The application before the Senior Arbitrator was one seeking reconsideration of an award made by Arbitrator Margaret Dalley (the original Arbitrator) on 18 May 2010. The proceedings heard by the original Arbitrator were commenced by Mr Gregory Winter against his former employer, New South Wales Police Force (the appellant). Mr Winter had alleged that he received a psychological injury arising out of or in the course of his employment as a police officer.
The reasoning of the original Arbitrator is thoroughly summarised by the Senior Arbitrator between [58] and [67] of his Reasons. The ultimate findings in those proceedings were that Mr Winter had failed to prove the existence of a “psychological injury” (s 11A(3) of the Workers Compensation Act (the 1987 Act)) or that he had received injury (s 4 of the 1987 Act). The award made by the original Arbitrator was in favour of the appellant.
It is relevant to note that Mr Winter brought an appeal against the decision of the original Arbitrator. That appeal was heard by Roche DP (Winter v NSW Police Force [2010] NSWWCCPD 121). On that appeal orders were made, on 16 November 2010, which provided for the revocation of the original Arbitrator’s determination. A further order was made that the matter be remitted to a different Arbitrator for redetermination.
That decision of Roche DP was the subject of an appeal by the appellant to the Court of Appeal. That appeal was upheld and orders were made on 28 October 2011 which provided for the restoration of the original Arbitrator’s determination (NSW Police Force v Winter [2011] NSWCA 330). An application made by Mr Winter seeking special leave to appeal to the High Court was dismissed on 10 May 2012 (Winter v NSW Police Force [2012] HCASL 78).
On 22 March 2013 Mr Winter made application to the Registrar seeking reconsideration of the original Arbitrator’s determination. That application was brought pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). That application came before Senior Arbitrator Snell on 13 March 2014. The procedure adopted by Senior Arbitrator Snell, with the consent of the parties, provided for the determination of two preliminary issues raised in argument: firstly, a jurisdictional argument and, secondly, the question as to whether, having regard to the material relied upon by Mr Winter and all relevant circumstances, the discretion granted to the Commission by the provisions of s 350(3) was enlivened.
Those preliminary matters were determined by Senior Arbitrator Snell and a Certificate of Determination accompanied by a Statement of Reasons was issued on 14 April 2014. The argument raised on behalf of the appellant, which suggested an absence of jurisdiction to entertain Mr Winter’s application, was rejected by the Senior Arbitrator (Reasons at [32]–[49]). The Certificate of Determination recorded the following matters:
“The Commission determines:
1. There is a finding that the Commission’s discretion pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 is enlivened.
2. Liberty to the parties to apply, with a view to listing the matter for further hearing, on the merits of the application.
3. Costs are reserved.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Thresholds

There is no dispute between the parties that the thresholds as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met.

Hearing

The appellant did not consent to the appeal being determined “on the papers”, as is permitted by s 354(6) of the 1998 Act. Mr Winter had submitted that it is appropriate that the appeal be dealt with on the papers.
Having regard to the issues raised in argument, I reached the view that conduct of a hearing was the appropriate course in the circumstances. A hearing was conducted on 15 September 2014 at which time both the appellant and Mr Winter were represented by counsel. A transcript (TA) of that hearing has been produced.

Interlocutory

As noted above, the procedure adopted by the Senior Arbitrator concerned the determination of preliminary matters including the resolution of an argument as to jurisdiction as well as the question as to “enlivenment” of the Commission’s discretion granted by the provisions of s 350(3) of the 1998 Act. Determination of the merits of Mr Winter’s application for reconsideration was deferred pending application by the parties seeking listing of the matter for further hearing. It is thus the position that no final order concerning the rights and liabilities of the parties to the application has yet been finally determined. It follows that the orders made by the Senior Arbitrator are interlocutory (see Licul v Corney [1976] HCA 6; 180 CLR 213 at 225). That the orders are interlocutory in nature is acknowledged by each party. The appellant seeks leave to proceed with this appeal as is required by the terms of s 352(3A) of the 1998 Act. The granting of leave is opposed by Mr Winter.
Having regard to the issues raised on this appeal, and the arguments as advanced on behalf of each party, I am of the opinion, as indicated during the course of the hearing of the appeal, that determination of the appeal is necessary or desirable for the proper and effective determination of the dispute and that leave as sought should be granted. I so order.

THE APPLICATION BEFORE THE SENIOR ARBITRATOR

The Application for reconsideration of the original Arbitrator’s award was brought pursuant to s 350(3) of the 1998 Act which provides:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The terms of s 350(3) are in substantially similar terms to its legislative predecessors, being s 17(4) of the Compensation Court Act 1984 (the Court Act) and s 36(2) of the Workers Compensation Act 1926 (the 1926 Act). Among the authorities which were cited in argument, some of which appear in the course of discussion below, a number concern the proper construction and application of those earlier provisions.
The determination which is the subject of the reconsideration application is found in Certificate of Determination, dated 18 May 2010, which is in the following terms:
“The Commission determines:

1. That there be an award for the Respondent in respect off the Applicant’s claim for weekly compensation payments from the 8/09/07 to date.
2. That there be an award for the Respondent in respect of the Applicant’s claim for section 60 of the Workers Compensation Act 1987 expenses.
3. No order as to costs.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The manner in which the reconsideration application was presented was noted by the Senior Arbitrator at [57] of his Reasons where it was recorded:
“As ultimately presented, the reconsideration application relied on the third of the grounds set out in the correspondence dated 22 March 2013. That ground was described as follows:
‘Since the previous Arbitration further evidence is available that suggests the Arbitrator’s decision was in error including:
a)The respondent has medically discharged the applicant due to a psychiatric condition as at December 2012.
b)A report of Dr Selwyn Smith dated 7 October 2010.
c)A report of Dr Abeya dated 8 September 2012 [sic, 8 November 2012].
d)Lay evidence as to the applicant’s inability to return to any form of Police work since October 2011 and difficulties performing suitable duty work prior to that date.’”
The appellant provided particulars of its opposition to the reconsideration application in correspondence addressed to the Registrar. Those matters were amplified by counsel at the hearing before the Senior Arbitrator. Counsel’s submissions are recorded in a transcript which has been produced (T). In summary the appellant argued that, by reason of the orders made by the Court of Appeal, which had the effect of restoring the original Arbitrator’s decision, the Commission lacked jurisdiction to reconsider the original Arbitrator’s determination. That argument was rejected by the Senior Arbitrator. The matter of jurisdiction is not pressed on this appeal.
The appellant also argued that the evidentiary material relied upon by Mr Winter, which is discussed below, did not constitute “fresh evidence”, but rather should be characterised as “more evidence”. In such circumstances the material should not be taken into account as a basis upon which the original Arbitrator’s decision should be reopened.
The appellant further argued that the nature of the discretion granted by s 350(3) is, notwithstanding the terms of that subsection, not an unfettered discretion. It was argued that the Commission should only exercise such discretion in exceptional circumstances.
The appellant raised a number of other arguments including the contention that any power to reconsider is tempered by public interest in the finality of litigation. Questions of delay were addressed in the course of submissions before the Senior Arbitrator, and argument was advanced that, given an acceptance that the original Arbitrator founded her conclusions in part upon a credit finding adverse to Mr Winter, the Commission should not interfere with those conclusions by way of reconsideration.

THE EVIDENCE

The documentary evidence relied upon by the parties before the original Arbitrator has been the subject of careful summary both by Roche DP (between [27] and [169] of his Reasons) and by Campbell JA, in his leading judgment (between [30] and [52]). Those summaries are not controversial, thus it is not intended to again attempt to summarise that material.
Mr Winter gave very brief oral evidence before the original Arbitrator following a grant of leave permitting the appellant to cross-examine. That evidence is recorded between pages five and seven of the transcript of evidence before the original Arbitrator.
The evidence before the Senior Arbitrator included that documentary material referred to in correspondence from Mr Winter’s solicitor to the Registrar, dated 22 March 2013, making application for reconsideration. That material included the following documents:
(a) report of Dr Himalee Abeya, consultant psychiatrist, dated 8 November 2012, and
(b) a number of WorkCover NSW medical certificates issued by Dr Selwyn Smith, consultant psychiatrist, the first dated 9 June 2010 and the latest dated 30 January 2013.
Mr Winter’s application also had a statement made by him dated 21 March 2013 attached in which he stated that, following the entry of the award by the original Arbitrator, he returned to Gladesville Local Area Command on full duties. He was “totally unable to function, terrified of being back on full duties”. It was further stated that in September 2010, Mr Winter was placed on secondment to the Customer Service Unit, working part time while in receipt of Special Sick Leave. He was unable, as required, to increase his hours of work in that position. That position came to an end after eight weeks. Between October 2010 and 14 February 2011, Mr Winter was placed on secondment at Major Events and Incident Group. Mr Winter worked in that position for two days per week and was able to perform that work. At that time Mr Winter’s entitlement to Special Sick Leave was reassessed. He was informed that, unless he returned to Gladesville immediately, he would not be paid. As from 14 February 2011, Mr Winter was put on sick leave without pay. Between March 2011 and October 2011, Mr Winter performed suitable duties working at State Crime Command Drug Unit on secondment. During that period Mr Winter was the subject of an internal investigation which, as stated by him, resulted in his demotion to the incremental rank of Constable Level 5 for twelve months. The investigation caused Mr Winter extreme distress and anxiety and he states that ultimately caused him to “completely decompensate”. From October 2011 to the date of Mr Winter’s medical discharge, he was certified unfit to work by Dr Selwyn Smith.
Mr Winter further stated that he commenced proceedings to exit the police service through the Crown Employees Police Officers Death and Disability Award 2005. He was examined in November 2012 by Dr Abeya. Mr Winter obtained certificates and reports from other practitioners including Dr Smith and his general practitioner, Dr Richard Gordon. On 6 December 2012 Mr Winter was medically discharged from the NSW Police Force.
A report by Dr Smith, dated 7 October 2010, was attached to Mr Winter’s application. Dr Smith was first consulted by Mr Winter on 9 June 2010, that is subsequent to the original Arbitrator’s determination. Dr Smith is Mr Winter’s treating psychiatrist. Dr Smith recorded in that report that he had access to a large number of documents relating to Mr Winter’s claim. Following a summary of reports prepared by other practitioners, Dr Smith stated:
“I am in agreement with the opinions expressed by his family physician, Dr Canaris, and Mr Ronnie Zuessman. His clinical presentation is consistent with an Adjustment Disorder with Depressed and Anxious Mood. His symptomatologies are compounded by a rather rigid, obsessional and pedantic personality structure that has rendered him more liable to emotional decompensation given the nature of his work.”
Dr Smith attributed Mr Winter’s psychological condition to the work performed by him when serving as a police officer. Dr Smith expressed the view that Mr Winter was incapacitated concerning performance of fully operational police duties.
A report of Dr Abeya, dated 8 November 2012, was attached to Mr Winter’s application. Dr Abeya examined Mr Winter on 2 November 2012 at the request of the appellant. Following a summary of history and clinical examination of Mr Winter, she expressed the view that Mr Winter:
“… would qualify for a diagnosis of chronic adjustment disorder with mixed anxiety and depression… It would appear that [Mr Winter’s] symptomology has become quite chronic at this point.”
Dr Abeya expressed the view that Mr Winter was not fit to return to the NSW Police Force.
Dr Abeya under the heading “Recommendations” stated:
“In relation to the above named Constable Winter for [sic] NSW Police Force, their [sic] fitness for work is as follows:
☒Constable Winter is permanently unfit to carry out the inherent requirements and demands of the substantive position with their [sic] employer.”
At the hearing before the Senior Arbitrator, Mr Winter sought leave to tender a number of documents attached to an Application to Admit Late Documents filed with the Commission on 7 March 2014. Following argument concerning the admissibility of that material, the Senior Arbitrator ruled that a report of Dr Smith dated 30 January 2014 was to be admitted. Mr Winter’s leave report concerning his employment with the appellant was admitted by consent. I note in passing that the tender of a late report of Dr Abeya dated 18 March 2013 was rejected by the Senior Arbitrator. I record this fact given that some confusion arose at the hearing of this appeal concerning the state of Dr Abeya’s evidence. The transcript demonstrates plainly that Dr Abeya’s last report from 2013 was excluded from evidence by order of the Senior Arbitrator. None of the other documents which were the subject of the Application to Admit Late Documents were admitted.

THE SENIOR ARBITRATOR’S DECISION

The Senior Arbitrator noted the evidence which was before the Commission and proceeded to summarise submissions which were put on behalf of the parties. As earlier noted (at [6]), the appellant’s argument asserting an absence of jurisdiction to entertain a reconsideration application was rejected.
The Senior Arbitrator proceeded to consider the nature of the discretion to reconsider granted by the terms of s 350(3). It had been argued on behalf of the appellant that such discretion, notwithstanding the terms of the section, should only be exercised in “highly unusual circumstances” involving “manifest injustice”. The Senior Arbitrator considered the authorities raised concerning this submission and reached the conclusion that statements made by Walker J in Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235 (Solomon) concerning the nature of the discretion and circumstances of its exercise were “unduly restrictive”. The Senior Arbitrator found that the matters stated by his Honour in Solomon, as well as matters stated by Fleming DP in Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 (Comensoli) were inconsistent with the statements of principle to be found in the decision of Roche ADP (as the Deputy President then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel), a decision previously followed by the Senior Arbitrator. The appellant’s argument that the Commission should approach the application for consideration in the light of those matters stated in Solomon was rejected.
The Senior Arbitrator proceeded to consider questions raised concerning exercise of the discretion. Following a summary of the findings made by the original Arbitrator which led to the entry of the award in favour of the appellant, the Senior Arbitrator summarised her approach as follows (at [67]):
“In summary, Arbitrator Dalley found the evidence did not support a finding of the existence of a ‘psychological injury’ (section 11A(3) of the 1987 Act) or ‘injury’ (section 4 of the 1987 Act). The applicant found himself in a stressful situation, and was unhappy, but his symptoms were insufficient to constitute ‘injury’. She further found that the applicant had not discharged his onus of proving incapacity.”
The further evidence admitted on the reconsideration application was then summarised and considered by the Senior Arbitrator. The question as to proof of the occurrence of psychological injury as defined in s 11A(3) of the 1987 Act was addressed and the following observations and findings were made:
“92. The finding in the arbitral decision at [48] was that [Mr Winter] was distressed and upset, but that his condition did not constitute a ‘psychological injury’. Dr Smith, subsequent to the arbitral decision, became the applicant’s long term treating psychiatrist. He is firmly of the view that the applicant has suffered from a diagnosable psychiatric condition, being chronic Adjustment Disorder with mixed Depressed and Anxious Mood.
93. Dr Abeya assessed the applicant and reported to the respondent, subsequent to the arbitral decision. He effectively arrived at the same diagnosis as Dr Smith. His view was that [Mr Winter’s] psychiatric condition had become chronic, at least in part, due to events that post-dated the arbitral decision (see the passage quoted at [80] above). Both of these psychiatrists were of the view that the diagnosed psychiatric disorder resulted from [Mr Winter’s] experiences in the employ of the respondent. The respondent’s action, in medically discharging the applicant within about four weeks of the date of Dr Abeya’s report, is consistent with an acceptance of the substance of that report.
94.     Arbitrator Dalley, at [50], additionally decided that the evidence was insufficient to conclude [Mr Winter] had ongoing incapacity that resulted from psychological injury.
95.     The further psychiatric evidence from Dr Smith and Dr Abeya is persuasive. Had it been put before the arbitrator in the first hearing, in my view it would have been likely to lead to a different result on the issue of whether the applicant suffered from a psychological injury. A combination of the further psychiatric evidence, and the history of the applicant’s attempts to return to work with the respondent since the earlier arbitral decision, also are such that it is likely they would have led to a different result at the first arbitration hearing, on the issue of incapacity.
96.     None of this evidence could, with reasonable diligence, have been available at the first arbitration. The further evidence from [Mr Winter] related to attempts to resume duties with the respondent subsequent to the first arbitration hearing. Dr Smith’s treatment of [Mr Winter] post-dated the first arbitration hearing. Dr Abeya’s assessment of [Mr Winter], and [Mr Winter’s] medical discharge, post-dated the first arbitration hearing.”

The Senior Arbitrator proceeded to consider argument advanced concerning public interest in the finality of litigation, the question of delay, and argument raised by the appellant which suggested that the original Arbitrator’s decision had been, in part, founded upon an adverse credit finding concerning Mr Winter’s evidence and should thus not be disturbed.
The Senior Arbitrator acknowledged that the question of finality of litigation “is a legitimate matter to consider in the circumstances”. The relevant circumstances included the procedural history concerning the numerous appeals. The Senior Arbitrator concluded that the delay in seeking to rely on the evidence of Dr Smith found in his report of 9 June 2010, having regard to all relevant circumstances, did not constitute delay of any significance, nor did it militate against exercise of the discretion.
The Senior Arbitrator rejected the appellant’s argument that the original Arbitrator’s view as to the credit of Mr Winter had affected the result in her decision. The Senior Arbitrator proceeded to state the following conclusions (between [109] and [112] of Reasons):
“109. The further evidence is highly relevant to the two issues on which the applicant failed in the arbitral decision, being whether he had suffered a psychological injury, and if so, whether there was resultant incapacity. I am persuaded that the further evidence is such that, if it had been in evidence at the first arbitration, it is likely it would have led to a different result. It is not evidence which, with reasonable diligence, could have been available at the first arbitration.

110. Militating against exercise of the discretion in section 350(3) of the 1998 Act is the legitimate public interest in the finality of litigation.

111. On balance, the interests of justice favour exercise of the discretion pursuant to section 350(3) of the 1998 Act to reconsider the decision of Arbitrator Dalley dated 12 May 2010. This is consistent with doing justice between the parties on the substantial merits of the case.
112. I find the discretion pursuant to section 350(3) of the 1998 Act is enlivened.”

SUBMISSIONS, DISCUSSION AND FINDINGS

Before addressing the grounds relied upon by the appellant it is important, in my view, to bear in mind the nature of the determination made by the Senior Arbitrator which is challenged on this appeal. As earlier noted, the appellant challenges the determination, or finding, made that “the discretion pursuant to s 350(3) of the 1998 Act is enlivened”.
In finding that the discretion had been enlivened, it is clear that the Senior Arbitrator, having rejected the jurisdictional argument, had determined a preliminary, or threshold question concerning s 350(3), being whether there had been demonstrated a sufficient basis to reopen the decision of the original Arbitrator. In so determining the Senior Arbitrator had, in part, exercised the discretion granted by the sub-section. The Senior Arbitrator had also made findings in Mr Winter’s favour concerning the issues of delay, public interest (finality of litigation) and the relevance of any credit issue in the original proceedings.
The Senior Arbitrator had further determined that the evidentiary material relied upon could not, with due diligence, have been obtained for presentation before the original Arbitrator. A finding was made (at [95] of Reasons, noted at [32] above), that the evidence of Dr Smith and Dr Abeya was “persuasive” and that the evidence, if presented to the original Arbitrator, “would have been likely to lead to a different result” concerning the issue of psychological injury, and that it was “likely [the further evidence] would have led to a different result” on the issue of incapacity. The Senior Arbitrator restated those findings at [109] of Reasons (noted at [35] above).
As was discussed briefly at the hearing of this appeal, the manner in which the Senior Arbitrator expressed his view as to the character of the further evidence and its persuasive force may be perceived, as stated by Mr Stanton, counsel appearing on behalf of the appellant, as going “beyond the question that [the Senior Arbitrator] was asked to consider”. Mr Stanton fairly and properly conceded that the Senior Arbitrator’s observations “should be seen only in the context of the exercise of the discretion” and no point was taken suggesting relevant error.
It is, none the less, important to note before addressing the merits of the appeal, that the question of the acceptance of the further evidence, that is its probative value and whether it should be believed, are questions which remain outstanding. Those questions, as is made clear by the terms of the Senior Arbitrator’s Order, will be determined separately when the merits of the application are fully canvassed in argument. Such procedure would lead to a decision as to the manner of the exercise of the discretion granted by the sub-section. That exercise, as a whole, was described by Kirby P (with respect to s 36(2) of the 1926 Act) in CSR Limited v Bouwhuis (1991) 7 NSWCCR 223 at 234–235 (Bouwhuis):
“Within the former Workers Compensation Commission it was usually required that some change of circumstances should be shown to warrant the exercise of the discretion to rescind or amend a decision previously made. See e.g. Humphreys v. Shell Co of Australia Ltd [1947] 21 WCR (NSW) 134. The discovery of fresh evidence was the most common ground for applications to reopen such decisions. Yet, from the start, the Workers Compensation Commission adopted an approach that, only if the new evidence was such that, if believed, it would probably have an important influence on the result, would it be admitted and an earlier decision rescinded or amended. See e.g. Gosper v. Bulwinkle [1931] 5 WCR (NSW) 204: cf Meredith v. Innes (1931) 31 SR (NSW) 104; Diegman v. State Coal Mines [1956] 30 WCR (NSW) 169.” (emphasis added)

The grounds of appeal

Ground (a)

There are three grounds of appeal relied upon by the appellant which are found at [8] of submissions which accompany the application made with respect to this appeal. The first of those grounds is expressed as follows:
“Ground (a):
The Commission erred at law in determining the power to reconsider a matter under s 350 of [the 1998 Act] in failing to determine that the power to exercise reconsideration under s 350 of [the 1998 Act] should be exercised in exceptional circumstances or highly unusual circumstances involving manifest injustice.”
The appellant, as earlier noted, had placed reliance in submissions before the Senior Arbitrator upon the decision of Walker J in Solomon in support of an argument that the discretion granted by s 350(3) was not unfettered. Particular reliance was placed upon His Honour’s statement (at [26.2]) that:
“The powers are wide but their use discretionary. The practice of the Court is such that only in highly unusual circumstances where there is some manifest injustice to be remedied will the Court’s discretion be exercised to set aside a prior judgment of the Court.”
The appellant had also placed reliance upon the decision of Fleming DP in Comensoli in which matter the Deputy President adopted the views expressed by Walker J in Solomon noted immediately above.
The Senior Arbitrator expressed his acceptance of the reasoning concerning the nature of the s 350(3) discretion as expressed by the Commission in Samuel. In Samuel it was noted that reliance had been place by Walker J in Solomon upon that which was said by the Court in Bouwhuis, where the subject of discussion was a reconsideration power found in s 13(6) of the Dust Diseases Tribunal Act 1998 (the Dust Diseases Act). It was in Bouwhuis that the Court determined that s 13(6) would be exercised in “wholly exceptional” circumstances.
As was emphasised in Samuel, the Court in Bouwhuis drew a distinction between the reconsideration powers as found in s 13(6) of the Dust Diseases Act and s 17(4) of the Court Act. As stated by Kirby P, immediately following the statement noted at [40] above, (at 235):
“In the [Dust Diseases Tribunal Act], there are particular reasons why an even more stringent approach by the Tribunal to an application for reconsideration is appropriate. The section appears in a statute which establishes a Tribunal with a particular
jurisdiction for a specially vulnerable group of litigants. So much appears on of the face of the Act when regard is had to the nature of some of the prescribed dust diseases mentioned in section 3 and Schedule 1. The urgency of disposing of many cases involving dust diseases is clearly one of the reasons for removing such cases from the ordinary courts and placing them in the jurisdiction of a special tribunal.”
A similar distinction was drawn between the provisions by Priestley JA in Bouwhuis (at 247). It was this distinction which led the Commission in Samuel (at [54]) to conclude as follows:
“The Court of Appeal in Bouwhuis was clearly distinguishing the terms and context of section 13(6) of the Dust Diseases Act from section 17(4) of the Court Act. In my view nothing in Bouwhuis should be taken as requiring a similarly restrictive approach to section 350(3) of the 1998 Act.”
In the present case the Senior Arbitrator’s preference for the views expressed in Samuel extended to that which was stated by Roche ADP in that matter at [58] as follows:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under s 350(3) of the 1998 Act:
(a)the section gives the Commission a wide discretion to reconsider its previous decisions [Hardaker v Wright & Bruce Pty Ltd [1062] SR (NSW) 244];
(b)whilst the word ‘decision’ is not defined in s 350, it is defined for the purposes of s 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in s 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(c)whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration [Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413];
(d)one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely [Hilliger v. Hilliger (1952) 52 SR (NSW) 105 (Hilliger)];
(e)reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result [Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642];
(f)given the broad power of ‘review’ in s 352 (which was not universally available in the Compensation Court of (NSW) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
(g)depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 [(Anshun)] may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (Anshun);
(h)a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration [Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29], and
(i)the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and s 354(3) of the 1998 Act).”
The Senior Arbitrator, correctly in my view, noted that [58(f)] set out above “must now be read subject to amendment, since Samuel, of s 352 of the 1998 Act”. Such had no relevance, in the Senior Arbitrator’s view, to the questions raised in the present matter. That is a view with which I respectfully agree.
The appellant accepts that the principles outlined in Samuel “are proper considerations when exercising the discretion under s 350…” (submissions at [19]). It is, however, argued that the Senior Arbitrator erred in “failing to adopt the principle identified in [Solomon and Comensoli]”. The appellant effectively reiterates the argument advanced before the Senior Arbitrator. It is put that the reconsideration power “ought to be considered as the exception rather than the rule”. It is suggested that “to consider [s 350(3)] in any other way would be to render s 350(1) [finality of decisions] otiose”.
The appellant’s submissions must be rejected. I have in the past expressed my acceptance of the correctness of that which was started in Samuel. I remain of that view. The principles enunciated in Samuel, properly considered, demonstrate that the exercise of the wide discretion is tempered by the need to take into account those matters noted at sub paragraphs (c) (d) (g) (h) and (i) of [58]. Those matters, in my view, represent the substance of any constraint that must be exercised when the provision is invoked.
The argument raised concerning s 350(1) must be rejected. That sub section, in its terms, is expressed so as to be read subject to provisions of the Acts. It provides:
“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”
Ground (a) is not made out.

Ground (b)

The second ground of appeal is expressed as follows:
“Ground (b):
The Commission erred in finding that the further evidence was new evidence that would have been likely to lead to a different result.”
The appellant’s submissions in support of this ground make it clear that the error suggested is founded upon an assertion that, in treating the further evidence as having the result of “enlivening the discretion”, the Senior Arbitrator had erred in the exercise of discretion, given that the evidence was not “fresh” evidence, but rather “more” evidence. It is clear that the argument suggests that the Senior Arbitrator has taken into account irrelevant matters.
The appellant, correctly in my view, submits that in the present circumstances any fresh evidence may only be taken into account if it is directed to the question which is the subject of the reconsideration application, namely the receipt by Mr Winter of relevant injury.
It is argued that evidence of medical discharge from the police force “says nothing about whether [Mr Winter received relevant injury]”. My view is that the evidence of medical discharge was assessed by the Senior Arbitrator in conjunction with the expert medical evidence. That evidence is considered below.
The further expert evidence which led to the Senior Arbitrator’s conclusion that the discretion had been enlivened was that of Dr Smith and of Dr Abeya.
With respect to Dr Smith’s evidence, the appellant suggests the Senior Arbitrator has erroneously taken that material into account, given that Dr Smith’s evidence as to psychological injury is not any different to the evidence on that subject which was before the original Arbitrator. The argument proceeds that Dr Smith’s evidence is “more” evidence not, as is required for the proper exercise of the discretion, “fresh” evidence.
The evidence which was before the original Arbitrator to which the appellant refers is that of Mr Zuessman and Dr Canaris. Mr Zuessman, a clinical and forensic psychologist, prepared a report dated 30 July 2009 at the request of Mr Winter’s solicitors. That report was, as stated by Mr Zeussman, “based on five clinical interviews occurring between September and November 2008.” That report was in evidence.
Following consideration of Mr Winter’s mental status and relevant history which concerned “repeated exposure to stressors typically associated with policing”, Mr Zeussman was of the opinion that:
“The cumulative effects of Mr Winter’s policing experience thus developed into symptoms which met the criteria for an Adjustment Disorder, With Mixed Anxiety and Depressed Mood, in accordance with the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition, Text Revision.”
With respect to prognosis, Mr Zuessman stated:
“It is understood that operational duties of a Member of the Police Force can involve exposure to a range of emergencies, violence and effects of traumatic events, as well as the invocation of the full range of powers including coercive force. As these were associated with development of Mr Winter’s distress, it would be appropriate to maintain these in consideration when selecting work assignments. With adequate structure accompanying a work role appropriate to his experience, skills, interests and which he would consider challenging, as well as the availability of supportive counselling, Mr Winter should be able to return to work.”
The evidence of Dr Canaris appears in his report dated 23 November 2009, which was prepared at the request of Mr Winter’s solicitors for the purposes of this litigation. Dr Canaris recorded a history of stressful experiences occurring in the course of Mr Winter’s service as a police officer. Following a summary of an examination of Mr Winter’s mental state, Dr Canaris stated:
“[Mr Winter’s] presentation is not straightforward. However, from his account, he certainly suffers from a psychiatric illness best classified as mixed anxiety depression, a condition not formally incorporated into the DSM-IV-TR, but one recognised by the ICD-10 classification used by the World Health Organization and the NSW Department of Health. I sometimes use this diagnosis to describe patients suffering from what I regard as a forme fruste of posttraumatic [sic] stress disorder in which not all the features of the condition are apparent. Nevertheless, he clearly has been exposed over the course of his career to his fair share of traumatic incidents and his growing sense of unease about working in general duties seems to me to be a form of phobic avoidance behaviour. I note Dr Zeussman made a diagnosis of adjustment disorder with mixed anxiety and depressed mood, which is fundamentally the same diagnosis.”
The further evidence, that of Dr Smith found in his report dated 7 October 2010, is summarised at [24] and [25] above.
The second report of Dr Smith dated 30 January 2014 which was admitted into evidence by the Senior Arbitrator includes the following statement:
“Mr Winter continues to demonstrate diagnostic criteria for a chronic Adjustment Disorder with Mixed Depressed and Anxious Mood.”
Dr Smith attributed a deterioration of Mr Winter’s psychiatric condition to his employment with the appellant. The opinion was expressed that Mr Winter “has been assessed as displaying criteria for a partial disability”. Dr Smith further opined that Mr Winter “does not have the capacity because of his psychiatric impairments to undertake work outside the NSW Police Force”.
It may be seen that the only point of differentiation between the opinions of the medical experts whose evidence was before the original Arbitrator and that of Dr Smith is that Dr Smith concluded, in his later report, that Mr Winter’s condition had become “chronic”. As stated by Dr Smith himself, the diagnosis he made corresponded to that made by Dr Canaris and Mr Zuessman. In such circumstances the question is raised by the appellant as to whether Dr Smith’s evidence constitutes “fresh evidence of such character that it should have been taken into account by the Senior Arbitrator when determining whether the s 350(3) discretion was found to have been enlivened”.
The appellant’s challenge is to the Senior Arbitrator’s determination stated at [95] of his Reasons (noted at [32] above) that Dr Smith’s evidence was relevantly “persuasive” and that, had it been before the original Arbitrator, it “would have been likely to lead to a different result…”.

The evidence of Dr Abeya is summarised at [26] and [27] above. Dr Abeya’s examination of Mr Winter was arranged by the appellant given Mr Winter’s commencement of the process to exit the police service earlier mentioned (at [23] above). Dr Abeya’s diagnosis is expressed in terms similar to that stated by Mr Zuessman and Dr Canaris, except that Dr Abeya was of the opinion that Mr Winter suffered a chronic disorder. In that respect Dr Abeya’s opinion corresponds to that expressed by Dr Smith.
Following Dr Abeya’s examination, the appellant, in correspondence to Mr Winter dated 7 December 2012, confirmed that following “advice received in respect of [Mr Winter’s] medical retirement” Mr Winter’s last day of service was 6 December 2012. As earlier noted the Senior Arbitrator stated in the course of his Reasons (at [93]) that the appellant’s action “in medically discharging [Mr Winter] within about four weeks of the date of Dr Abeya’s report, is consistent with an acceptance of the substance of that report”.
The appellant’s argument that the evidence of Dr Smith and Dr Abeya is more evidence, not fresh evidence, given the similarity of the various diagnoses, has considerable appeal. However it is clear that the disorder suffered by Mr Winter, in the opinion of those experts, had, since the original Arbitrator’s decision, become chronic and that such circumstance was relevant to his inability to perform police duties. Dr Smith, in his 2014 report, stated that Mr Winter’s condition is a formal psychiatric disorder defined in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) of the American Psychiatric Association. I reject the submission that the evidence of those experts is not fresh evidence.
The appellant’s argument that events subsequent to the original Arbitrator’s decision should not be taken into account must be rejected. The nature of the condition or disorder suffered by Mr Winter has, in the experts’ views, remained consistent, albeit it has become chronic. It is that condition which, on Mr Winter’s case, constitutes relevant injury. I am not persuaded that the appellant has established error on the Senior Arbitrator’s part in taking into account the evidence of Dr Smith and Dr Abeya when determining the question of “enlivenment of discretion” under s 350(3). In the context of Dr Smith’s evidence, the question of delay is addressed below. Ground (b) fails.

Ground (c)

The third ground is expressed as follows:
“Ground (c):
The Commission’s exercise of discretion miscarried as the Arbitrator:
i.Failed to give appropriate weight to the ‘lack of frankness of the applicant’ contrary to the decision of Arbitrator Dalley (confirmed on appeal to the Court of Appeal by decision dated 28 October 2011);
ii.Failed to give any or any proper consideration to the delay by the applicant in bringing the application for reconsideration;
iii.Failed to give any or any proper consideration to the public interest that litigation should not proceed indefinitely;

iv.Failed to give any or any proper consideration to the applicant’s decision to exercise a right of appeal (unsuccessfully) rather than seek a reconsideration;
v.Failed to give any or any proper consideration to justice between the parties according to the substantial merits of the case.” (emphasis in original)

It is submitted that the Senior Arbitrator “erred in failing to provide due weight to the credit finding made by [the original Arbitrator]”. The appellant records in submissions the Senior Arbitrator’s acknowledgement that “it would be more difficult to conclude that the fresh evidence would probably have affected the result, if the result was based upon a finding rejecting [Mr Winter’s] credit”. The complaint concerns the Senior Arbitrator’s determination that no such credit finding had been made by the original Arbitrator. The appellant argues, in effect, that the Senior Arbitrator has failed to take into account a relevant consideration.
The Senior Arbitrator addressed the credit issue between [100] and [108] of his Reasons. Whilst it is clear that the original Arbitrator expressed the view that Mr Winter had been “less than frank” in his statement concerning timing of diagnosis of post traumatic stress disorder by his general practitioner, the Senior Arbitrator noted (at [104] of Reasons) that the original Arbitrator did not say that she relied on Mr Winter’s “credit (or lack of it) in reaching her decision”.
It is correct, as argued by the appellant, that the original Arbitrator made numerous observations (between [42] and [45] of her Reasons) as to the state of the evidence concerning Mr Winter’s presentation to Dr Canaris, his aversion to returning to work and entries in Mr Zuessman’s notes concerning the possibility of a large monetary payment (if he left the police force). It also appears that the original Arbitrator accepted that Mr Winter was “distressed and emotionally upset at his present situation”. Notwithstanding that finding the original Arbitrator was not satisfied that Mr Winter had suffered a psychological injury. That conclusion was reached, as was observed by the Senior Arbitrator, without reference by the original Arbitrator to any persuasion founded upon credit. In the circumstances I am not persuaded that the Senior Arbitrator has failed to take into account a relevant matter, namely absence of credibility, when exercising the discretion under s 350(3).
The appellant makes complaint that the Senior Arbitrator failed to take into account the delay in bringing the reconsideration application. It is put that this complaint is of particular relevance in the case of Dr Smith’s evidence.
Dr Smith has treated Mr Winter since 9 June 2010, that is after the decision of the original Arbitrator, and the first report of Dr Smith is dated 7 October 2010. The reconsideration application was made in March 2013. As put in supplementary submissions, an application to admit Dr Smith’s evidence as late evidence before Roche DP was withdrawn in the appeal proceedings conducted in 2010. That withdrawal, it is argued, is relevant to the question of delay. The appellant made reference to the decision of Conybeare J, Chairman of the former Workers Compensation Commission of New South Wales, in Napoli v Arthur H. Stephens (N.S.W) Pty Ltd [1970] WCR 109 (Napoli). It was made clear in Napoli that failure to bring prompt application in respect of reconsideration founded upon fresh or additional evidence and an election to proceed with appeal might lead to the exercise of the very wide discretion granted by s 36(2) of the 1926 Act against the party seeking reconsideration.
In the present case I consider that, had Mr Winter placed reliance solely upon the evidence of Dr Smith, those arguments raised by the appellant would have been persuasive and delay would have weighed heavily against exercising the discretion in his favour. However that, as was stated by the Senior Arbitrator, is not the only material relied upon by Mr Winter. Dr Abeya’s assessment occurred in November 2012 and Mr Winter ceased employment with the appellant in December 2012. I agree with the Senior Arbitrator’s conclusion that commencement of this application in March 2013 does not, in all the circumstances, constitute “delay of any significance” (Reasons at [99]). I reach that conclusion notwithstanding the availability of Dr Smith’s evidence in 2010. In reaching that view I have taken into account Mr Winter’s submission put on this appeal that it could not be said with certainty that Dr Smith’s evidence found in his 2010 report, alone, could, at an earlier time, have founded a successful application seeking reconsideration. I am not persuaded that the Senior Arbitrator has erred in failing to take such delay into account when exercising the discretion.
The appellant complains that the Senior Arbitrator has failed to take into account the “public interest that litigation should not proceed indefinitely”. The Senior Arbitrator’s acceptance (at [97] of Reasons) that the procedural history of this litigation “militates against exercise of the discretion to reconsider” is characterised in argument as being “mere lip service” to public interest. That submission is rejected. The Senior Arbitrator, in my view, was correct in concluding as he did (at [111] of Reasons) that:
“On balance, the interests of justice favour exercise of the discretion… to reconsider the decision of [the original Arbitrator] dated 12 May 2010. This is consistent with doing justice between the parties on the substantial merits of the case.”
That conclusion was reached following a consideration of all relevant matters and argument advanced. The Senior Arbitrator was correct, in my view, to take into account the demands of justice when considering the question of public interest. As was stated by the Court in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314 at [8]:
“Ultimately, the question is whether, notwithstanding the public interest in finality of litigation, the interests of justice would justify reopening the appeal.”
The final complaints made concern, firstly, suggested failure by the Senior Arbitrator to properly consider Mr Winter’s decision “to exercise a right of appeal (unsuccessfully) rather than seek a reconsideration” and, secondly, suggested “failure to give any or any proper consideration to justice between the parties according to the substantial merits of the case”.
These complaints appear to revive earlier argument. No submissions are provided in support of these contentions. It must be accepted, having regard to that which was said in Napoli, that an election to proceed with appeals to the superior courts is a matter that might militate against reconsideration of the original award. I consider that the Senior Arbitrator has taken into account both the procedural history and the substantial merits of the case as I have attempted to summarise above. No error is made out. Ground (c) fails.

CONCLUSION

Each ground has been rejected and the appeal must fail. Appropriate orders appear below. It remains for the parties to take steps to relist the matter before the Senior Arbitrator for further hearing. At such time the outstanding matter of the appellant’s s 11A defence, discussed briefly at the hearing of the appeal (at T27) will, no doubt, be addressed.

DECISION

The Senior Arbitrator’s determination and orders made on 14 April 2014 are confirmed.

COSTS

The Appellant is to pay Mr Winter’s costs of the appeal in any event.

Kevin O'Grady
Deputy President

24 October 2014

I, JACQUELINE HAGGER, 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

[2014] NSWWCCPD 70

14 April 2014 15 September 2014 24 October 2014