Newby v NSW Police Force

[2009] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:		Newby v NSW Police Force [2009] NSWWCCPD 100
APPLICANT FOR RECONSIDERATION:		Jason Newby
RESPONDENT FOR RECONSIDERATION:		NSW Police Force
INSURER:		Allianz Workers Compensation (NSW) Ltd-Treasury Managed Funds
FILE NUMBER:		A1-8532/08
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:		24 February 2009
DATE OF APPEAL DECISION:		7 July 2009
DATE OF RECONSIDERATION DECISION:		14 August 2009
SUBJECT MATTER OF DECISION:		Costs reconsideration; section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Keating P
HEARING:		On the papers
REPRESENTATION:		Applicant:	Harris Wheeler Lawyers
Respondent:	DLA Phillips Fox Lawyers
ORDERS MADE:		1. The Application for Reconsideration brought pursuant to section 350(3) of the 1998 Act with respect to the costs order in NSW Police Force v Newby [2009] NSWWCCPD 75 is refused. The findings and orders in that matter are confirmed and the Application for Reconsideration is dismissed. 2.  No order as to costs of the Application for Reconsideration.

BACKGROUND

1. On 16 July 2009, Mr Jason Newby (‘the applicant’) filed with the Workers Compensation Commission (‘the Commission’), a letter seeking reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), of the cost order made in NSW Police Force v Newby [2009] NSWWCCPD 75.

1. The respondent to the reconsideration application is the NSW Police Force (‘the Police Force/the respondent’).

1. In NSW Police Force v Newby [2009] NSWWCCPD 75, the Police Force was successful on appeal and I made the following order in respect of costs of the appeal:

“Each party pay its or his own costs of the appeal.” 

1. It is this decision that Mr Newby seeks that I reconsider under section 350(3) of the 1998 Act.

RECONSIDERATION ON THE PAPERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Neither party has made any submission concerning the appropriateness or otherwise of dealing with the present Application on the papers without holding any conference or formal hearing.  Having regard to the written material which is before me I am satisfied I have sufficient information to proceed on the papers and that this is the appropriate course to adopt in dealing with the Application for Reconsideration.

1. Section 350(3) of the 1998 Act provides:

“(3)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.”

1. The Registrar’s Guideline dated 22 October 2007 provides guidance to parties and their legal representatives with respect to appropriate procedure concerning requests for reconsideration. It is there stated:

“APPLICATIONS FOR RECONSIDERATION

There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378.  Parties may make application by way of letter that includes the following information:

·The matter that is the subject of the application for reconsideration;

·The basis upon which a reconsideration is sought;

·Where relevant, the special circumstances which justify any delay in the making of the application for reconsideration;

·Where relevant, submissions addressing why the decision should be the subject of reconsideration rather than appeal;

·The date of service of the application on any other party to the proceedings.

The application for reconsideration should be made as soon as practicable after the party making the application becomes aware of the basis for seeking reconsideration.  It should be served on the other parties prior to lodgement with the Commission, together with a notification to the parties served that they have 21 days in which to reply.”

1. Whilst the applicant’s letter dated 16 July 2009 confirmed that a copy was forwarded to the solicitors previously engaged by the respondent, the letter was silent in respect of whether the applicant had notified the respondent that it had 21 days in which to make submissions in reply (as per the Registrar’s Guideline referred to above). 

1. On 27 July 2009, I therefore issued a Direction to the parties in the following form:

   “The Commission has received a letter dated 16 July 2009, under section 350 of the Workplace Injury Management and Workers Compensation Act 1998, seeking reconsideration of the costs order in NSW Police Force v Newby [2009] NSWWCCPD 75.

   The applicant, Mr Newby, is directed to serve the letter dated 16 July 2009 on the respondent, NSW Police Force, by 4pm 29 July 2009.

   The respondent is directed to file with the Commission and serve on the applicant any submissions on the application by 4pm 13 August 2009.”

APPLICANT’S SUBMISSIONS

1. The applicant’s submissions in support of its application are as follows:

(a)Mr Newby did not lodge the appeal and “was dragged into the appeal”;

(b)     Mr Newby was largely correct in his assertions “as enclosed in its [sic-his] opposition filed in response to the appeal”;

(c)     the Police Force was only successful on one ground of appeal, and failed in its attempt to admit fresh evidence on appeal;

(d)     it is in the interests of justice that Mr Newby is awarded costs for responding to the appeal, which involved numerous grounds of appeal, of which only one was successful, and

(e)     it is not Mr Newby’s fault that the Arbitrator did not calculate the weekly benefits entitlements correctly.

RESPONDENT’S SUBMISSIONS

1. The Police Force submits that costs follow the event and rely on Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’).

2. A successful party should not be ordered to pay costs of an unsuccessful party unless exceptional circumstances exist. No exceptional circumstances exist in the current case.

1. In a primary claim for compensation the worker bears the legal and evidentiary burden of proof (Dickson v Olympic Aluminum Co Pty Limited [2007] NSWWCCPD 96). Mr Newby’s failure to submit evidence in support of his section 40 claim was, at least in part, responsible for the Arbitrator’s decision being erroneous and the matter not able to be re-determined on appeal.

1. The costs order that “each party pay his or its own costs of the appeal” should be confirmed.

DISCUSSION AND FINDINGS

1. Acting Deputy President Roche (as he then was), in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141, considered the Commission’s power to reconsider under section 350(3) of the 1998 Act. At [58] he held that the following principles were applicable:

1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);

2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;

3.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’);

4.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’);

5.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’);

6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;

7.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’);

8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and

9.the Commission has a duty to due justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).

1. I agree with, and adopt the principles stated in Samuel. In the present case, there is no material produced in support of the Reconsideration Application, which could be described as “new evidence”. There has been no change in the law such as to favour or require the exercise of power under section 350(3) (see Bluescope Logistics Co Pty Limited (formerly BHP Transport & Logistics Pty Limited) v Finlow [2006] NSWWCCPD 338R). Therefore Mr Newby has advanced no basis to justify the use of the reconsideration powers in section 350(3).

1. In the alternative, if I am wrong, I am not minded to alter the costs orders I made. The appeal from the Arbitrator’s decision, filed by the Police Force was successful.  I was unfortunately unable to finalise the matter on appeal due to deficiencies in the evidence.  As I noted at [176]-[178]:

“176.Unfortunately, despite identifying this suitable employment option, Mr Newby did not lead any evidence as to earnings in such employment.  Counsel for Mr Newby submitted that the earnings in this work would be in the vicinity of $700.00 in lawn mowing or labouring work.  No evidence was lead or relied on by the worker to support this submission.  I have found that very little if any weight can be place on the EVA report for the reasons already given.  Therefore it is most unfortunate that neither party has adduced any evidence upon which to assess what Mr Newby could earn in the suitable employment.

177.Although I suspect that the Arbitrator’s assessment of Mr Newby’s ability to earn at $20.00 per hour is appropriate, I am in the invidious position of having insufficient evidence on review to confirm that finding.

178.Whilst it is regrettable, the deficiencies in the evidence necessitate that this matter be remitted for re-determination of Mr Newby’s ability to earn in suitable employment, in accordance with the reasons in this decision.  At the rehearing both parties should be given the opportunity to adduce further evidence.” (emphasis added)

1. I am therefore not persuaded to exercise my discretion to depart from the usual costs order (see McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72) and to rescind the costs order made.

DECISION

1. The Application for Reconsideration brought pursuant to section 350(3) of the 1998 Act with respect to the costs order in NSW Police Force v Newby [2009] NSWWCCPD 75 is refused. The findings and orders in that matter are confirmed and the application for reconsideration is dismissed.

COSTS

1. No order as to costs of the Application for Reconsideration.

His Hon. Judge Keating

President

14 August 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION HIS HON JUDGE KEATING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE