Nicolaides v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nicolaides v Blacktown City Council [2022] NSWPIC 216
APPLICANT:	George Nicolaides
RESPONDENT:	Blacktown City Council
MEMBER:	Brett Batchelor
DATE OF DECISION:	16 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Application by the respondent for admission of documents and material that should have been disclosed to the applicant in support of the respondent’s defence to the applicant’s claim pursuant to section 11A of the Workers Compensation Act 1987 (1987 Act) and attached or referred to in section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notices; consideration of Procedural Direction PIC3, regulations 38(1) and 41(1) of the Workers Compensation Regulation 2016; Held- finding that the applicant was prejudiced by the non-disclosure of the documents and material and failure of the respondent to refer to or attach such documents and material to the section 78 of the 1998 Act notices, which was not cured by a direction for lodgement of evidence at the telephone conference; respondent’s application for admission of the documents and material refused.
DETERMINATIONS MADE:	1. The respondent’s application to have admitted into evidence the documents and material attached to the Application to Admit Late Documents dated 8 March 2022 with the exception of: (a) [1]-[2] and [11]-[13] of the Jones statement, and (b) [1], [6] and [12] of the Watts statement, and annexures “B” and “C” to the Watts statement, is rejected. 2. The parties have leave to approach the Personal Injury Commission for a further telephone conference.

STATEMENT OF REASONS
BACKGROUND

George Nicolaides (the applicant/Mr Nicolaides) claims weekly benefits compensation from 24 May 2021 and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of his employment as a maintenance assistant with Blacktown City Council (the respondent). The deemed date of injury claimed in the Application to Resolve a Dispute
(ARD) commencing the proceedings is 1 April 2021.
The respondent relies on a defence to the applicant’s claim pursuant to ss 11A(1), 33 and 60 of the 1987 Act.
On 26 April 2021 the applicant attended a meeting with Kevin Jones, employed by the respondent as Manager, Key Venues, and Kristy Watts, employed by the respondent as Executive Manager, Customer Experience. At that meeting Mr Nicolaides was advised by
Ms Watts that he would be stood down with full pay effective 27 April 2021 while allegations made against him that he may have breached the respondent’s “Code of Conduct”, “Prevention of sexual harassment in the workplace”, and “Respectful behaviour” policies, were investigated.
On 20 September 2021 the respondent issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[1] following an independent medical examination of the applicant by Dr Doron Samuell, psychiatrist, on 17 August 2021 and production of a report by Dr Samuell dated 13 September 2021[2]. Dr Samuell diagnosed the applicant as suffering from a panic disorder, and said that his suspension from employment was the substantial cause of his condition.
[1] ARD p 9.
[2] Reply p 2.
In the s 78 notice, the respondent asserted that the action it took to suspend the applicant from his employment and investigate the allegations was lawful and reasonable in the circumstances. The respondent declined liability for the applicant’s claim on the basis that his injury was wholly or predominantly caused by reasonable action taken or proposed by it with regard to discipline. The respondent identified the following reports and documents relevant to the claim or aspect of the claim to which its decision related:
(a)    claim form dated 4 June 2021;
(b)    SIRA (State Insurance Regulation Authority) Certificate dated 24 May 2021;
(c)    report of Dr Samuell dated 13 September 2021, and
identified reports and documents submitted by Mr Nicolaides in making his claim as
(d)    claim form dated 4 June 2021, and
(e)    SIRA Certificate dated 24 May 2021.
A further notice pursuant to ss 78 and 287A of the 1998 Act was issued by the respondent to the applicant on 21 December 2021[3], in which the respondent relied on the same grounds for declining the applicant’s claim and the same documents referred in [5] above, with the following additions submitted by the applicant:
(a)    statement of evidence dated 13 October 2021[4];
(b)    report of Dr Chow dated 29 November 2021[5], and
(c)    receipts for treatment.
[3] ARD p 15.
[4] ARD p 6.
[5] ARD p 19.
The ARD was lodged with the Personal Injury Commission (the Commission) on 25 January 2022 and the Reply thereto on 16 February 2022. Attached to the Reply were the following:
(a)    medical report of Dr Samuell dated 13 September 2021;
(b) s 78 notice dated 20 September 2021;
(c)    ss 78/287A notice dated 21 December 2021;
(d)    Notice for Production requested by Sparke Helmore Lawyers dated 4 February 2022;
(e)    Code of Conduct - 11^th Edition of the respondent, undated;
(f)    Respectful Behaviours Procedure of the respondent dated 1 July 2015;
(g)    Prevention of Sexual Harassment in the Workplace of the respondent, undated, and
(h)    Communications Devices Policy of the respondent dated August 2019.
The proceedings were the subject of a telephone conference before me on 22 February 2022. A record of what was discussed at that conference and recorded by me in the Teleconference Outcomes and Appearances sheet was read onto the transcript at the arbitration hearing on 13 April 2022 referred to hereunder. That record is in the following terms:
“See Directions and Notations issued following the TC. No offers at the TC. The further evidence anticipated by the respondent is the outcome of an investigation by the workplace section of Sparke Helmore, and will not include a statement from Kate Williamson, who has left the respondent’s employ and is apparently not able to be contacted. The solicitor for the applicant indicates a probable objection to any further evidence lodged by the respondent.”
The following Direction and Notations were issued at the telephone conference:
“The Commission directs:
1.    The respondent is to lodge and serve by 8 March 2022 any further evidence on which it seeks to rely.
2.    The applicant is to lodge and serve by 22 March 2022 any further evidence in reply to the respondent’s further evidence referred to in [1] above on which he seeks to rely.
3.    The matter is stood over for conciliation/arbitration to 10.00 am on Wednesday 13 April 2022 via telephone conference.
Notations
A.    The parties anticipate agreement on the applicant’s pre-injury average weekly earnings.
B. The respondent relies on ‘discipline’ in its defence of the applicant’s claim pursuant to s 11A(1) of the Workers Compensation Act 1987.”
On 8 March 2022 the respondent lodged with the Commission an Application to Admit Late Documents dated 8 March 2022 (AALD) with the following attachments:
(a) statement and annexures of Kevin James [sic, Jones] dated 8 March 2022 (the Jones statement), and
(b) statement and annexures of Kristy Watts dated 8 March 2022 (the Watts statement).
The matter was listed for conciliation/arbitration before me on 13 April 2022 via telephone conference. It did not resolve at conciliation and proceeded to arbitration hearing. The applicant objected to parts of the statements of Kevin Jones and annexures thereto, and of Kristy Watts and annexures thereto. The hearing time was taken up with submissions from the applicant and respondent on the applicant’s objections to evidence, at the conclusion of which the following Direction was issued:
“The Commission directs:
1.     The applicant is to lodge and serve by 27 April 2022:
(a)list of the evidence attached to the Application to Admit Late Documents dated 8 March 2022 to which no objection is taken by the applicant, and
(b)statement addressing the evidence to which no objection is taken, if so advised.
2.     Reserve decision on the matters of procedure the subject of arbitration hearing on 13 April 2022.
3.     The matter is to be the subject of a further telephone conference after issue of a Certificate of Determination in respect of the matters of procedure the subject of arbitration hearing on 13 April 2022.”
Pursuant to Direction [1] of 13 April 2022 the Commission received:
(a) Applicant’s Outline of Objections, which included submissions addressing s 73(3) of the 1998 Act, of Mr Parker dated 21 April 2022 (Outline 21 April 2022), and
(b) supplementary statement of the applicant dated 22 April 2022.
The following further submissions were received from the parties:
(a) respondent’s Response to Applicant’s Outline of Objections dated 28 April 2022 (Response 28 April 2022), and
(b) applicant’s Reply dated 5 May 2022 (Reply 5 May 2022).

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) should the respondent be allowed to rely on the evidence of Kevin Jones and Kristy Watts attached to the AALD to which objection is taken by the applicant?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing on 13 April 2022 Mr A Parker of counsel appeared for the applicant briefed by Mr Dougall. The applicant attended on a separate line. Mr Dodd of counsel appeared for the respondent briefed by Ms Palamara.

EVIDENCE

Documentary evidence and submissions

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attachments;
(c)    Outline 21 April 2022;
(d)    supplementary statement of the applicant dated 22 April 2022;
(e)    Response 28 April 2022, and
(f)    Reply 5 May 2022.
The applicant’s objections to the material attached to the AALD referred to in [10] above are summarised as follows.

The Jones statement

The applicant does not object to [1]-[2] and [11]-13] in which Mr Jones:
(a)    at [1] sets out his employment with the respondent and to whom he reports;
(b)    at [11]-[13] gives details of the meeting dated 26 April 2021 referred to in [3] above, and
(c)    at [13], the last clause in the statement, states that Mr Nicolaides was visibly upset by the allegations and his suspension, was encouraged by Ms Watts to contact the Employee Assistance Programme (EAP), and then left the meeting.
The applicant objects to the remainder of the Jones statement, namely [3]-[10], and annexures “A”- “D” thereto.
At [3]-[5], Mr Jones deals with advice he received in April 2021 of allegations by four female staff members of inappropriate behaviour on the part of the applicant, his request for statements from those persons, and the receipt thereof which are annexure “A” to his statement. At [6]-[7] Mr Jones refers to two other witness statements which are annexures “B” and “C” to his statement. At [8]-[9] Mr Jones refers to his review of the statement evidence having regard to the respondent’s policy for “Prevention of Sexual Harassment in the Workplace” and “Respectful Behaviour”. At [10] Mr Jones refers to a memo he drafted to Kristy Watts “...through Deb O’Sullivan...” dated 23 April 2021 which is annexure “D” to his statement.

The Watts statement

The applicant does not object to [1], [6] or [12] in which Ms Watts:
(a)    at [1] sets out her employment with the respondent;
(b)    at [6] refers to a formal letter dated 26 April 2021 provided to the applicant which outlined details of his stand down, and advises of the attachment of such letter as annexure “B”, and
(c)    at [12] states that the respondent had engaged Sparke Helmore Lawyers to undertake “...the confidential investigation”, and states that on 19 May 2021
Mr Nicolaides was advised of the investigation and invited to attend a meeting on 21 or 24 May 2021 so as to be afforded the opportunity to provide his version of events. A copy of letter dated 19 May 2021 from Sparke Helmore Lawyers to the applicant is annexure “C” to the statement.
The applicant objects to the remainder of the Watts statement, namely [2]-[5], [7]-[11] and [13]- [15].
At [2]-[5] Ms Watts deals with receipt by her of allegations of inappropriate behaviour on the part of the applicant, the nature of the allegations, the determination to stand down the applicant and the meeting of 26 April 2021. At [7]-[11] Ms Watts deals with what took place at the meeting of 26 April 2021. At [13]-[15] Ms Watts deals with delay in completion of the investigation due to the applicant being certified unfit to participate in the investigation until early 2022.
The applicant objects to annexure “A” to the Watts statement, but does not object to annexures “B” or “C”. In respect of annexure “D”, at the hearing on 13 April 2022 the applicant stated that it also objected to this annexure, but confirmed in the Outline 21 April 2022 that no objection was taken to Annexure “D”. This is a letter from the Senior Coordinator Human Resources of the respondent dated 6 January 2022 noting, inter alia, that the applicant was then medically fit to participate in an interview and seeking his availability for such interview via video conference in the week commencing 10 January 2022.

SUBMISSIONS

The submissions of the parties made at the hearing are recorded and a transcript (T) has been prepared, a copy of which can be obtained on request. They will not be referred to in detail, but are summarised hereunder. The further submissions and evidence listed at [17(c)-(f)] above are also summarised.

Applicant

The applicant relies on:
(a) Practice Direction No 9 – Applications to admit late documents dated 30 October 2018 (PD9). This Practice Direction was issued pursuant to the Workers Compensation Commission Rules 2011 and commenced on 30 October 2018. Although this was relied upon by counsel for the applicant and not queried by counsel for the respondent, it has been replaced by Procedural Direction PIC3 – Documents and late documents, which commenced on 1 March 2021 with the commencement of the Personal Injury Commission Act 2020 (the PIC Act). It is referred to hereunder as PD PIC3, and
(b) Regulations 38(1) and 41(1) of the Workers Compensation Regulation 2016 (the Regulation).
The applicant submits that the reasons listed in the AALD in support thereof are proforma paragraphs only, and do not state why the documents attached to the AALD are now relied upon as opposed to any previous stage of the proceedings. This is in breach of PD9 [sic, PD PIC3]. The respondent has given no explanation as to why leave should be granted to rely on the documents attached to the AALD. The applicant submits that this is notwithstanding the Direction of Member Batchelor, referred to in [7] of the reasons listed in the AALD, that the respondent file an AALD to include any additional evidence by 8 March 2022.
The applicant submits that what was anticipated at the teleconference was the investigation outcome, which wasn’t available when the s 78 notice was issued, and is still not provided by the respondent.
The applicant submits that the material at [3] in the Jones statement to which objection is taken was clearly something that Mr Jones could have said at the time the s 78 notices were drafted, on 20 September 2012 and 21 December 2021. It was material that was provided in April 2021. The same submission is made in respect of the material referred to in [6]-[10] of the Jones statement. Similarly, the annexures to the Jones statement, although containing redactions, all bear dates in April 2021.
In respect of the Watts statement, the applicant submits that the clauses therein up to [11] to which objection is taken, all refer to what occurred in April 2021. Annexure “A”, to which objection is taken, is dated 23 April 2021. This is material which was available to the respondent and should have been supplied to the applicant in support of the s 11A defence, and referred to in the s 78 notices.
The applicant relies on the decisions in Chown v Tony Madden Refrigeration Transport Limited[6], Beale v Walgett District Hospital & Anor[7] and RSL (QLD) War Veterans’ Homes Ltd v Watkins[8]. In this case, the applicant submits that the respondent had material available to it which should have been supplied to the applicant and referred to in the s 78 notices, but made a decision not to make available to the applicant.
[6] [2005] NSWWCCPD 159.
[7] [2009] NSWWCCOD 60.
[8] [2013] NSWWCCPD 44 (Watkins).
The applicant submits that in essence, there are two categories of documents and material to which objection is taken. The first category is the material that was available from April 2021, before the s 78 notices were issued, and which should have been revealed to the applicant and included in the s 78 notices. The second category is later material, the admission of which at this stage of the proceedings will prejudice the applicant, and is material that he will not be able to meet should it be admitted.
The applicant makes submissions in respect of the requirements of PD9, which will be referred to hereunder where relevant.

Outline 21 April 2022

In the Outline 21 April 2022, the applicant quotes s 73(3) of the 1998 Act which may not have been referred to by either party at the hearing. The applicant seeks to rely on the subsection in addition to the previous sections/regulations on which he relies, notes that the subsection should be brought to the Member’s attention, and is “potentially mandatory”.
The applicant consents to the respondent having an opportunity of being heard on the issue, and/or otherwise requests an urgent telephone conference so that the parties can make further submissions on the point.
In the Reply dated 5 May 2022 the applicant notes he does not wish to make any further submissions in addition to those comprehensively made at the arbitration hearing and in the Outline 21 April 2022.

Respondent

The respondent submits that, in respect of the requirement of [41(1)] of the Regulation, the reference is to medical reports and investigator’s reports, and not what is now sought to be tendered by it with the AALD. It refers to reports obtained by or provided to an employer.
With reference to the exercise of discretion that must be exercised when considering what material should be admitted, the respondent refers to a recent decision of Member Perry of Thornton v Coles Supermarkets Australia Pty Ltd[9], and the discussion therein of what was said by Roche DP in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[10].
[9] [2022] NSWPIC 74 (Thornton).
[10] [2007] NSWWCCPD 227 (Mateus).
The respondent accepts the applicant’s submissions in respect of PD9 and [38(1)] and [41(1)] of the Regulation, and concedes that the documents that were in existence in April 2021 should have been provided to the applicant. However, consistent with legislation and, in particular, s 3 of the PIC Act which sets out the objects of that Act, the Personal Injury Commission Rules 2021 (the Rules) allow for late documents to be submitted and relied upon, that is, documents that were not part of the s 78 notice. Pursuant to [6] and [9] of PD9, the Commission can grant leave to rely on late documents and for their admission in the proceedings. The matters to be considered are set out in [12] of PD9.
The respondent submits that the applicant has known since the issue of the s 78 notices of the allegations against him. In those notices there is reference to what he told Dr Samuell, that is, that he was confronted with complaints against him and suspended from work. There is also reference in the notices that Mr Nicolaides told Dr Samuell that he refused to respond to the allegations. The author of the notices states that the applicant’s claim appears to be based on his suspension from work due to allegations of misconduct, and asserts that the action taken to suspend Mr Nicolaides from work and investigate the allegations was lawful and reasonable.

The respondent also submits that the applicant was aware of the allegations against him by virtue of the contents of annexure “B” to the Watts statement, to which no objection is taken by the applicant. The applicant also does not object to annexure “C” to the Watts statement, the letter to him from Sparke Helmore Lawyers dated 19 May 2021 inviting him to a meeting on 21 or 24 May 2021 and attaching thereto allegations of fact. The applicant knew, as at May and September 2021, of the allegations of fact against him.
The respondent then relies on what occurred in the proceedings and the Direction and Notations issued at the telephone conference, referred to at [9] above. The respondent submits that the Commission gave leave to the respondent to file further documents in accordance with the timetable set, and that any allegation of prejudice on the part of the applicant is refuted by the fact that he was given until 22 March 2022 to file any documents or evidence in response which he did not avail himself of.
The respondent submits that redactions in the documents which it now seeks to have admitted into evidence are in respect of another employee of the respondent.
The respondent deals with the clauses on the Jones statement to which objection is taken by the applicant, noting that they are a narrative of what Mr Jones did by way of investigation after he was informed of the allegations against the applicant, including obtaining statements and preparing a memo to Ms Watts. The respondent then submits that the contents of annexure “A” to the Jones statement, with the references therein to victims A, B, C, and D (although this last victim is not relevant as the completely redacted document relates to another employee of the respondent), can be tied up with the allegations of fact in the attachment to the letter from Sparke Helmore Lawyers dated 19 May 2021.
The respondent refers to the evidence in the applicant’s statement at [10] where he acknowledges receipt of the letter from the respondent dated 26 April 2021 handed to him by Kristy Watts, which is annexure “B” to her statement, and to which the applicant does not object. The respondent also notes that the applicant told Dr Chow, psychiatrist to whom he was referred by his solicitor and who saw Mr Nicolaides via Telehealth on 15 November 2021, of the allegations against him and the fact that he had been stood down in April 2021.[11].
[11] ARD p 19.
The respondent submits that any prejudice alleged by the applicant could have been cured by the applicant putting on evidence by 22 March 2022 in accordance with the Direction and Notations issued following the teleconference.
The respondent submits that what has now been produced and lodged by it as late documents are the source documents in respect of the allegations of which the applicant had knowledge in April 2021. However the respondent submits that that is the reason telephone conferences are held to address, inter alia, questions of admission of late evidence so that they can be addressed and dealt with. That is what happened in this case.

Response 28 April 2022

In the Response 28 April 2022 the respondent makes no objection to the applicant relying on his supplementary statement dated 27 [sic, 22] April 2022, but submits that the applicant has “expended” [sic, expanded] the scope of objections from those made at the hearing to add objections to annexures “A” to “D” to the Jones statement. The respondent submits that this expansion of the objections should not be allowed because:
(a) it is illogical, and
(b) it does not accord with the objects of the Commission in the PIC Act in that the Commission should resolve real issues justly.
The respondent submits that annexures “A”-“D” to the Jones statement provide the reason that the applicant was called to the meeting of 26 April 2021 and handed the letter dated 26 April 2021, which the applicant has acknowledged he received and caused him to become “worried and anxious and concerned about what was going to happen and the process involved” in accordance with what he said in his supplementary statement dated 22 April 2022 and evidence in his principal statement.
The respondent submits that the applicant acknowledged receipt of the letter of 19 May 2021 from the solicitors for the respondent (annexure “A” [sic, “C”] to the Watts statement), which detailed the recitations of the contents of the statements by staff and witness statements. The respondent submits that it is illogical to object to annexures “A”-“C” to the Jones statement, as the material matters are set out in the letter of 19 May 2021 in any event.
The respondent also submits that the Commission should have access to the “best evidence”, which is the actual complaints made, rather than their summation in the letter of 19 May 2021.
The respondent submits that there is no doubt that the statements existed, and their existence was made known to the applicant in April and May 2021, and that the way that the respondent dealt with the complaints vis a vis the applicant is the fundamental basis of the applicant’s claim.
In relation to s 73 of the 1998 Act, the respondent submits that section 73(1) makes provision for regulations to provide for reports to be given to a worker in relation to a claim by a worker (emphasis in submissions), and that the section deals with reports obtained after a worker has made a claim, as logically a report can only be obtained in relation to a claim after the claim has been made. The respondent submits that the section and Regulations made thereunder have no application to the documents annexed to the AALD of 8 March 2022 in any event, as they all precede the applicant’s claim for compensation benefits.
The respondent repeats its submission in respect of Regulation 41 referred to in [37] above.
The respondent submits that Regulation 38 only applies to insurers, and that the decision in this case was made by the employer. Therefore the Regulation does not apply. This is so even taking into account the extended definition of “insurer” by Regulation 58. The respondent does not fall within any of the extended definitions. The difference between actions of employers and insurers is exemplified by the use of “insurer” in Regulation 38, and the use of “employer or insurer” in Regulation 41.
The respondent submits that even if Regulation 38 was relevant to the employer in this case, the ambit of Regulation 41 is imported into the provision of Regulation 38(1)(b) and (c). The respondent submits that if the documents are not within the ambit of Regulation 41, they are not within the ambit of Regulation 38.
The respondent submits that Regulation 38(1)(a) is also not relevant as it refers to documents submitted by the employer, which implies documents were submitted by the employer to an insurer, which did not occur in this case.
The respondent submits that in any event the ambit of Regulation 38(1)(a) is to documents submitted by the employer in connection with the claim (emphasis in submissions). The respondent submits that the documents came into existence before any claim was made by the worker and are documents generated in connection with the discipline of the applicant.
The respondent submits that s 73(3) of the 1998 Act is not applicable in this case for the reasons previously set out.

Applicant in response

The applicant submits that the respondent has not done what it said it would at the telephone conference, that is, provided the investigation report, and notes that the respondent now acknowledges that material should have been provided to him in April 2021.
The applicant again emphasises the requirements of PD9, and the fact that no explanation in accordance therewith has been provided as to why information was not provided when it was available to the respondent. The applicant notes that the respondent had the same law firm acting for it in April 2021 as is acting in the current proceedings, and that the only explanation that can be drawn is that the respondent intentionally decided not to put the material in with the s 78 notice, or attach it to the Reply, but wait until 8 March 2022 when statements were obtained from Mr Jones and Ms Watts. One of those statements, that of Ms Watts, was prepared following “...counsel from a lawyer”. The applicant here appears to be referring to the respondent’s corporate counsel, Ms Mary Macken.
The applicant acknowledges that he knew about the general allegations against him, as set out in the medical reports. What he does not have is the source material, and it cannot be seriously suggested that the applicant is not prejudiced by having second hand information put in through two witnesses. In support of this submission, the applicant refers to the “...Briginshaw standard in these type of cases”. The applicant submits that one would expect that statements sought to be relied upon by the respondent would be in proper form so that the deponents are available for cross-examination. The applicant foreshadows that if the material now sought to be relied upon by the respondent is admitted, the applicant will want to cross-examine the authors of the source documents as well as Mr Jones and Ms Watts.
In terms of the applicant consenting to the admission of annexures “B” and “C” to the Watts statement, the applicant submits that this consent was given on the basis that the matter would proceed to hearing on 13 April 2022, that is, the applicant wanted his case heard and run on that day. Now that that has not occurred, and if annexures “B” and “C” are admitted, the applicant submits that he should have a chance to respond to that evidence. He should also have the opportunity to deal with any other evidence otherwise admitted.
The applicant submits that by the very nature of the respondent’s application to admit late documents and evidence, he lost the opportunity to have his case heard on the day fixed, and this was something that should not have occurred. Without an explanation as to why the evidence was not put on at the time it was known to the respondent, the applicant submits that the Commission does not have a discretion to admit the evidence. The applicant submits that the concession not to object to annexures “B” and “C” to the Watts statement should not be taken as a concession that he is not otherwise prejudiced by the other material.
The applicant submits that the respondent has provided redacted versions of the document that it now seeks to rely upon, and has conceded that the applicant can have access to the unredacted documents. The applicant notes that the purpose of the redaction may be out of concern for the people making the allegations against him, but emphasises that he is facing “...quite heinous allegations made against him” and his situation must also be considered.

FINDINGS AND REASONS

Procedural Direction PIC3 – documents and late documents

As noted in [26(a)] above, PD9 was replaced by PD PIC3 with effect from 1 March 2021. The admission of late documents in the workers compensation division of the Commission is dealt with in [25]-[29] thereof, as follows:
“Proceedings in the workers compensation division
25.   An application to admit late documents must be lodged with the Commission no later than three working days prior to a telephone conference, arbitration hearing or medical assessment and must be served on the parties as soon as practicable.
Admission of late documents
26.   Parties are expected to comply with the timeframe requirements set out in the legislation and rules. The lodgment and registration of the appropriate form does not mean that the document attached is admitted as evidence in the proceedings.
27.   In the case of late documents lodged prior to a medical assessment by a medical assessor, the President will provide the other party with an opportunity to lodge written submissions in response to the application. If the other party objects to admission of the late documents the matter will be listed for telephone conference before a member for determination.
28.   In determining an application for leave to admit late documents, the following matters will be considered:
(a)    the interests of justice;
(b)    the requirements of the workers compensation legislation and the PIC Rules;
(c)    the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;
(d)    any prejudice that would result from granting or refusing leave to admit the documents;
(e)    the effect, if any, on the timely resolution of the dispute, and
(f) the objects of the Commission under sections 3 and 42 of the PIC Act.
Documents tendered during conciliation/arbitration
29.   Where a party seeks leave to admit a document during a conciliation/arbitration hearing, admission of the document will be determined by the member with conduct of the matter, in accordance with the principles set out above.”
Clause [28] in PID PIC3 replicates [12] of PD9 with the exception of [12(f)] therein, which is a reference to the former Workers Compensation Commission.
Section 3 of the PIC Act sets out the objects of that Act, relevant subsections of which are as follows:
“(c) to enable the Commission to resolve the real issues in proceedings justly,
quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commissionare timely, fair, consistent and of a high quality,”
In s 42(1) of the PIC Act the “guiding principle” for the PIC Act and the Rules is defined as follows:
“(1) The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”

Workplace Injury Management and Workers Compensation Act 1998

Section 73 of this Act is as follows:
“73   Insurer to provide copies of reports to worker
(1)    The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker’s legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.
(2)     Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.
(3)     If an insurer fails to provide a copy of a report as required by the regulations under this section—
(a)the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and
(b)the report is not admissible in proceedings on such a dispute before the Commission, and
(c)the report may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.”

Workers Compensation Regulation 2016

Regulation 38(1) is as follows:
“(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a)a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b)a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c)a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d)details of the procedure for requesting a review of the decision,
(e)a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f)the contact details for the Independent Review Officer,
(g)the street address and the email address of the President,
(h)a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute.”
Regulation 41(1) is as follows:
“(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession—
(a)medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b) certificates of capacity,
(c)clinical notes,
(d)investigators’ reports,
(e)workplace rehabilitation providers’ reports,
(f)health service providers’ reports,
(g)reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.”
The respondent submits that what it now seeks to have admitted into evidence with the AALD is not the type of material to which [41(1)] of the Regulation applies, but is a reference to medical reports and investigator’s reports. I do not agree for two reasons:
(a) investigators’ reports are often tendered and admitted in proceedings before the Commission and its predecessors to which are attached witness statements. The fact that a witness statement forms part of such a report does not for that reason make it inadmissible. If the investigators’ report was attached to a s 78 notice, prima facie it would be admissible, subject to any objection in respect of the contents of the report or attachments thereto on a ground other than it was not attached to a s 78 notice, and
(b) Regulation [41(1)(g)] would in any event apply in this case to annexures “A”-“D” to the Jones statement, and to annexure “A” to the Watts statement which is the same document as annexure “D” to the Jones statement.
Annexure “A” to the Jones statement contains four statements from each of the victims A-D (although the victim D statement is conceded by the respondent not to be relevant to the current proceedings – see [44] above). The statements are redacted so as to de-identify the victims. However they are reports obtained by the employer (the respondent). The statements of victims A and C are dated in April 2021; victim B’s statement is not dated, but the inference is open that it was obtained at about the same time as the other two statements.
The same comments apply to annexures “B” and “C” to the Jones statement. They are both statements dated 14 April 2021 and contain information relevant to the applicant’s claim on which a decision was made by the respondent to dispute liability. The same comment applies to annexures “D” to the Jones statement and “A” to the Watts statement.
At [125] in Watkins, Roche DP noted:
“The obligation to provide a copy of a report to a worker applies to any report that is relevant to the claim or any aspect of the claim to which the decision (to dispute the claim) relates, ‘whether or not the report supports the reasons for the decision’ (cl 46(4) of the Regulation).”
The Deputy President in that case was referring to a medical report and to the Regulation in the Workers Compensation Regulation 2010 which is in the same terms as the current Regulation 41(1). He refers to any (my emphasis) report that is relevant to the claim to which the decision to dispute the claim relates. My finding is that the Regulation extends to the statements and documents now sought to be relied upon by the respondent.

This finding that the foregoing documents do fall within the documentation referred to in Regulation 41 means that pursuant to Regulation 38(1)(b), they should have been referred to in the s 78 notices issued by the respondent.
The respondent at the hearing on 13 April 2022 accepted the applicant’s submission that documents that were in existence in April 2021 should have been provided to the applicant. After referring to Mateus, referred to in the recent decision of Member Perry in Thornton, counsel for the respondent said:
“MR DODD: And so that sets out the reasons for exercise of discretion, and that’s what we’re talking about here. So, all of the Regulations and the sections, and the like, to which my learned friend refers to, he is dead on point. He’s completely correct that the documents should have been provided. That is, at least, the documents that were in existence back in April of 2021. However, the legislation and the Rules and the objects of the Personal Injury Commission allow for late documents to be submitted and late documents to be, and for documents to be relied upon that weren’t part of the section 78 notice, et cetera. That’s consistent with section 3 of the Personal Injury Commission Act, which sets out the, in terms of resolving real issues in proceedings justly, quickly and cost effectively with as little formality, et cetera and it’s consistent, sir, with the Rules and Regulations, which allow for late documents to be put before the Commission.”[12]
Mr Dodd then went on to make submissions as to why the late documents sought to be relied upon by the respondent should be admitted in the interests of justice, and any prejudice that would result from the granting of or refusing leave.
[12] T pp 34.25 – 35.05.
In making this concession, the respondent accepted that Regulations 38 and 41, and s 73 of the 1998 Act, apply to the respondent in this case.
The respondent changes its position in the Response 28 April 2022. It submits that Regulation 38 only applies to decisions by insurers, and that the decision in this case was made by the employer, and that therefore Regulation 38 does not apply. The respondent refers to the extended definition of “insurer” by Regulation 58, and that the difference between actions by employers and insurers is exemplified by the use of “insurer” in Regulation 38 and the use of “employer” and “insurer” in Regulation 41.
Regulation 58 provides:
“58   References to ‘insurer’
(1)    Sections 43, 44, 45, 47 and 52 of the 1998 Act are to be read as if—
(a)a reference to insurer were, in the case of a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme, a reference to the Self Insurance Corporation, and
(b)a reference to insurer were, in the case of a self-insurer for whom there is a designated insurer, a reference to that designated insurer, and
(c)the Self Insurance Corporation were the insurer of each employer who is a Government employer covered for the time being by the Government’s managed fund scheme, and
(d)the designated insurer for a group self-insurer were the insurer of the group self-insurer.
(2)     A reference in sections 50 and 58 of the 1998 Act to insurer is to be read as including a reference—
(a)to the Self Insurance Corporation, when the insurer is a Government employer covered for the time being by the Government’s managed fund scheme, and
(b)  when the insurer is a group self-insurer for whom there is a designated insurer, to that designated insurer.”
That Regulation does not refer to s 73 of the 1998 Act, and in my view does not assist the respondent. Part 11 of the Regulation deals with “Modification of provisions applying to self-insurers”, and there is no reference in that Part to s 73 of the 1998 Act.
The respondent in this case is a self-insurer. In the s 78 notices it issued to the applicant on 20 September 2021 and 21 December 2021, the “IMPORTANT NOTICE” under “Summary of the Decision” is in the following terms:
“This notice sets out an important decision by the insurer about your workers compensation claim.”
It is quite clear that the decision is made by the respondent as insurer.
I do not accept the respondent’s submissions that s 73 of the 1998 Act and Regulations 38 and 41 do not apply to the respondent in this case.
I do not accept the respondent’s submission that the ambit of Regulation 38(1) does not cover the documents sought to be relied upon by the respondent because the documents annexed to the AALD dated 8 March 2022 came into existence before any claim was made by the applicant, and are documents generated in connection with discipline of the applicant.
Deputy President Roche in Watkins, referred to at [74] above, makes it quite clear that the obligation to provide a copy of a report to a worker applies to any report that is relevant to the claim or any aspect of the claim to which the decision (to dispute the claim) relates. There is no temporal restriction as to when any such report came into existence. If the respondent’s submission is accepted, it would mean that for example in any case where an employer was pleading a defence under s 11A of the 1987 Act in which it relied upon reasonable action taken or proposed to be taken in respect of discipline, correspondence, reports, emails or other material produced in respect of disciplinary action put in place by the employer leading up to the worker becoming unfit for work because of such process and then making a claim, could not be relied upon by the employer. Such material would clearly be relevant to the worker’s claim and should be made available to him or her at or before the employer denies liability for the worker’s claim.

Explanation of delay and prejudice

As noted above at [78] and [79] the respondent originally accepted the applicant’s submission that it had not complied with the requirement to give notice to the applicant of relevant documentation, which should have been attached to, or referred to in, the s 78 notice(s). It then dealt with the issue of prejudice. The respondent submits that in the circumstances the applicant has not suffered prejudice because of his knowledge of the allegations against him since April or May 2021, and because of the opportunity afforded to him to put on evidence in response to the allegations by 22 March 2022. The applicant rejects those submissions, claiming he would suffer significant prejudice if the material now tendered by the respondent was admitted.
I accept the applicant’s submission that the reasons given by the respondent in the AALD in support of such application are proforma paragraphs only and do not provide a reason for the respondent’s delay in lodging the documents. The respondent has not complied with PD PIC3 in this regard. I do not agree that, as submitted by the respondent at [6] of the reasons in support, that the admission of the documents would not affect or delay the outcome of the proceedings.
The requirements of PD PIC3 are analogous to the matters relevant to the exercise of the discretion under s 289A(4) of the 1998 Act to refer a matter to the Commission for determination that has not been previously notified as disputed. The matters relevant to the exercise of the discretion are set out by Roche DP at [48] in Mateus. The respondent refers to these in its submissions. Relevantly it is quite clear that the respondent has not explained the delay in now seeking to have the late documents admitted, and that the applicant was first made aware of the documents now sought to be relied upon when the AALD dated 8 March 2022 was served. The applicant was aware of the detailed allegations against him by virtue of the letter dated 19 May 2021 he received from Sparke Helmore Lawyers. However, at that time he declined to respond to the allegations on the advice of his doctor, and it appears from Annexure “D” to the Watts statement that it was not until 6 January 2022 that the respondent advised the applicant that it was in receipt of a certificate provided on 4 January 2022 which stated that he was medically fit to participate in an interview.
The respondent indicated at the telephone conference on 22 February 2022 that it anticipated further evidence to be lodged in the form of an outcome of an investigation by Sparke Helmore Lawyers which would not include a statement by Kate Williamson. The respondent has not done what it indicated, but lodged documents in the form of statements, redacted to de identify the makers thereof, which are source documents in respect of the allegations outlined in the letter from Sparke Helmore Lawyers dated 19 May 2021. It is understandable that the applicant would want to respond to these statements and possibly cross-examine the persons who made them.
The applicant may have deduced the persons who made the statements by a comparison of them with the Sparke Helmore Lawyers letter. However, the statements should have been referred to in the s 78 notices and supplied to the applicant to allow him to respond to them in a timely manner. It was unreasonable to expect a response in the time allowed in the Direction made on 22 February 2022 and the applicant has been thereby prejudiced. He has also been prejudiced in the finalisation of his case.
Prejudice to the respondent must also be considered. Although the respondent made no submissions as to the prejudice it would suffer if the material attached to the AALD is not admitted, it clearly wishes to rely on the evidence in support of its s 11A defence. I must also consider the interests of justice along with the other matters referred to in [28] of PD PIC3. The allegations raised by the witnesses whose statements are in annexure “A” the Jones statement are serious complaints of sexual impropriety on the part of the applicant, and the respondent reacted promptly to them. The applicant was visibly upset by the allegations and his suspension on 26 April 2021. If the statements had been supplied to the applicant at the appropriate time, with the first s 78 notice, he would have had a chance to respond to them in a timely manner. The respondent engaged Sparke Helmore Lawyers at an early stage to investigate the allegations against the applicant. It chose not to put the evidence now sought to be relied upon until very late, on 8 March 2022, in the context of an impending hearing om 13 April 2022.
Mr Jones in his memo dated 23 April 2021 to Ms Watts, annexure “D” to his statement which is one of the documents objected to by the applicant, acknowledges that given the victims wish to remain anonymous, the accusations cannot be put to the accused without revealing who is the accuser, and that protecting the victims has to be paramount. That may be a reason for not revealing the documents earlier. However, the prejudice in adopting that course and the interests of justice to both parties, must be considered.
In my view the prejudice to the applicant outweighs any prejudice that the respondent may suffer by not having the disputed material admitted into evidence. The interests of justice would not be served in this case by allowing admission of the evidence.
Allowing the admission of the evidence would not be in accordance with the objects of the PIC Act and guiding principle thereof referred to in [68] and [69] above.

SUMMARY

The respondent’s application to have admitted into evidence the documents and material attached to the AALD with the exception of:
(a) [1]-[2] and [11]-[13] of the Jones statement, and
(b) [1], [6] and [12] of the Watts statement, and annexures “B” and “C” to the Watts statement,
is rejected.

The parties have leave to approach the Commission for a further telephone conference.

[2022] NSWPIC 216

16 May 2022