Nicolaou v Nicholas Nicolaou t/as Scarborough Park Auto Care

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nicolaou v Nicholas Nicolaou t/as Scarborough Park Auto Care [2024] NSWPIC 678
APPLICANT:	Theodoros Nicolaou
RESPONDENT:	Nicholas Nicolaou t/as Scarborough Park Auto Care
MEMBER:	Parnel McAdam
DATE OF DECISION:	6 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Application for reconsideration of a Certificate of Determination (COD) to allow worker to pursue medical appeal; mistake of solicitor meant COD was issued without review of Medical Assessment Certificate; Samuel v Sebel Furniture Limited and Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd considered; applicant blameless for conduct of solicitor; justice according to substantial merits of the case meant COD should be set aside; Held – COD rescinded.
DETERMINATIONS MADE:	1. The Certificate of Determination dated 6 August 2024 is set aside.

STATEMENT OF REASONS

BACKGROUND

The dispute before me is an application for reconsideration of a Certificate of Determination (Certificate) issued by the Commission on 6 August 2024. The background to the dispute before the Personal Injury Commission (Commission) leading to that decision, including the injury suffered by Mr Nicolaou and his dispute with the respondent are not particularly relevant to the issue before me.
The procedural history, however, is relevant. On 8 May 2024, Mr Nicolaou commenced proceedings in the Commission, claiming lump sum compensation only. The matter was referred for assessment by a delegate of the President on 30 May 2024. The date of injury was as claimed in the Application to Resolve a Dispute, being 19 May 2018.
Dr Ross Mellick, a Medical Assessor, issued a Medical Assessment Certificate (MAC) on 2 July 2024. That MAC assessed Mr Nicolaou as suffering from 7% whole person impairment, which is below all of the relevant thresholds under the Workers Compensation Act 1987 (the 1987 Act) and therefore does not entitle Mr Nicolaou to any compensation. It was also below the impairment claimed in the Application, being for 30%.
By virtue of s 327(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the parties had 28 days to appeal against that MAC. Neither party appealed (understandably from the point of view of the respondent) and accordingly the Certificate was issued on 6 August 2024.
On 3 September 2024, Mr Nicolaou sought to appeal against that decision (noting that I do not have that specific application before me – this history is taken from a letter rejecting the appeal). That application was rejected on 4 September 2024. Reference was made in that correspondence to a reconsideration application being the preferred pathway. This is because there can be no appeal against a MAC once the dispute has been the subject of a determination by the Commission, pursuant to s 327(7) of the 1998 Act.
An application for reconsideration was then served on the respondent and lodged in the Commission on 5 September 2024. The respondent provided submissions in opposition to the application on 26 September 2024. The matter came before me for a teleconference before me on 16 October 2024. I set down a timetable for further submissions to be provided, from the applicant on 29 October 2024 and the respondent on 12 November 2024.
The applicant provided further submissions on 29 October 2024 (including a statement from the applicant’s solicitor, as well as grounds for an appeal against the MAC, prepared by the applicant’s solicitors) and 30 October 2024 (being submissions of substance going to the question of reconsideration, prepared by the applicant’s counsel).
On 14 November 2024, the respondent lodged submissions in reply, addressing both sets of submissions (albeit separately).

ISSUES FOR DETERMINATION

The only issue before me is whether I should exercise my discretion under s 57 of the Personal Injury Commission Act 2020 (the PIC Act) to set aside the Certificate. If that does not occur, the applicant cannot appeal against the MAC. If I set aside the Certificate, the applicant may appeal the MAC, but will still need to satisfy the delegate of the President that a ground of appeal is made out, and the relevant extension of time test under s 327(5) of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

As set out in my procedural summary above, this matter has proceeded largely on the basis of written submissions, supplemented by a teleconference.
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.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
The parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    The MAC dated 2 July 2024;
(d)    The Certificate dated 6 August 2024, and
(e)    The written submissions provided by both parties at various points.

SUBMISSIONS

The applicant’s first set of submissions addressing the issue of substance are succinct and suggest that the MAC was not given the opportunity to review the MAC prior to the Certificate being issued. This is clearly incorrect, given later submissions and evidence provided by the respondent, which shows an email indicating that the MAC was available on the Commission’s portal on 2 July 2024. As also noted in the respondent’s first set of submissions in response, there are no grounds particularised in respect of any appeal, making it difficult to accept the application.
The applicant’s solicitor provided a statement, in response to my Direction, on 29 October 2024. The statement was provided by the solicitor with the day-to-day conduct of the matter. She explains that at the time the previous submissions were made, she was of the genuine belief that the applicant had not received notification that a MAC had been issued. The submissions go on to explain that the email of 2 July 2024 had not be forwarded due to inadvertence on behalf of the administration team of the applicant’s solicitors. The submissions then go on to explain the surrounding personal issues that led to the slip. Also attached are the grounds of appeal the applicant would propose to rely upon in any appeal.
On 30 October 2024, the applicant’s counsel provided submissions going to the issue of substance, being whether I should exercise my discretion to set aside the Certificate. In summary, the applicant submits:
(a) The jurisdiction of the Commission does not extend to determine the merits of the medical appeal, but rather the threshold as to whether there is an arguable case. This extends to the question under s 327(5);
(b) The relevant law on the application of s 57 of the PIC Act is Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel);
(c)    The reference in Samuel to a mistake or oversight not giving rise to a ground for reconsideration is a reference to Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 (Hurst);
(d)    In that case there were other matters relevant. The reference to “mistake or inadvertence” was just one of a multitude of issues. The comment was in obiter;
(e)    The conclusion that mistake or oversight is not ground for relief sought is incongruent with the general law’s approach to the conduct of solicitors involving procedural non-compliance, with reference to Robertson v Registrar of the Workers Compensation Commission (Robertson) [2008] NSWSC 918;
(f)    The authority in Hurst must be addressed to the particular facts of each case, and
(g)    The Commission should exercise its discretion to set aside the Certificate, as there has been minimal delay, the error was of an administrative nature and did not involve culpability of the applicant, Hurst should be confined to its own facts, the appeal has merit, and the failure to extend time would cause a substantial injustice to the applicant.
On 14 November 2024, the respondent lodged submissions in response. These submissions are divided into two parts, noting the two separate documents lodged by the applicant. In respect of the statement provided by the applicant’s solicitor and the first set of submissions, the respondent submits:
(a) The statement does not refer to s 57 of the PIC Act or Practice Direction 17 (a submission repeated from the respondent’s earlier submissions, which should in fact be a reference to Procedural Direction WC7 – Reconsideration of decisions of the Commission. Practice Directions were issued by the now repealed Workers Compensation Commission. It makes no difference in substance);
(b)    There is no statement from the member of the administration team or explain what inquiries were made by the applicant’s solicitor, explanation of the administrative proceedings, or who was in charge of matters whilst the solicitor was away. In short, the Commission has not been given any reason for the delay;
(c)    The Commission must take account of the public interest of the finality of litigation, but those grounds are absent in this application;
(d)    In respect of the appeal, there is no readily apparent error, and three of the identified grounds are non-compliant with Practice Direction 15 (I again repeat what is said above. I also note that I believe the relevant Practice Direction was Practice Direction 16. The relevant Procedural Direction is Procedural Direction PIC7- Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes);
(e)    The appeal does not demonstrate any prospects of success, and
(f)    The Medical Assessor was entitled to exclude the impairment that did not result from the referred injury. Whilst it may have been inappropriate for the Medical Assessor to refer to s 323 of the 1998 Act, that deduction had to be made. In any event, the incorrect reference did not affect the outcome.
In respect of the submissions provided by counsel, the respondent submits;
(a)    There is no explanation as to the absence of evidence relating to the administrative and other practices of the applicant’s solicitor, as set out above;
(b)    The construction of Hurst is rejected. It provides authority that inadvertence on behalf of a legal advisor is insufficient ground to exercise discretion for reconsideration. Neither Tedeschi or Robertson diminish that proposition;
(c)    There is no ground for the exercise of discretion other than inadvertence on behalf of legal advisors, and
(d)    In respect of the merits of the appeal, little time is spent on that submission, and it is obligatory that the Commission be satisfied that there is utility in the exercise of discretion.

FINDINGS AND REASONS

The narrow scope of the issue in this matter has proved difficult to untangle. The position the parties have taken in approaching this application for reconsideration are understandable. On one hand, the applicant has been denied an opportunity to appeal against a MAC due to the mistake of his solicitors. That mistake was compounded by personal factors outside of the applicant’s control. No doubt he perceives that the assessment of impairment made by the Medical Assessor was incorrect; whether that is correct at law is another question. His legal advisors are of the view that he has reasonable prospects of success on appeal.
On the other hand, the respondent has the benefit of a binding Certificate which ends any entitlement the applicant might have to permanent impairment compensation (and appropriately associated thresholds for other benefits). There is, as the respondent pointed out, a general public interest that litigation not continue indefinitely.
The power to reconsider a Certificate is contained in s 57 of the PIC Act. It is in essence the same as the power previously exercised under s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). As such, authorities that interpreted the now-repealed section are of assistance to the present circumstances. Referred to by both parties is Samuel and the commonly cited summary of principles at [58]:
“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 section 350(3) of the 1998 Act:
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 do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).” (with full citations omitted).
The major issue arising out of the principles set out above is point 8, with reference to Hurst. It is appropriate that I deal with all issues in order to exercise my discretion, however.
The first point to make is that the discretion is broad but not unlimited. The power sought to be exercised is the appropriate one; as the applicant points out, the jurisdiction of the Commission does not extend to a finding as to whether a ground of appeal is made out. That is a matter for the President, through his delegate. However, in exercising my discretion the merits of the appeal are a relevant consideration. I accept that if it were futile to set aside the Certificate, then it would not be appropriate to do so. This goes to the wide, but not unlimited discretion that I can exercise.

Delay

Delay in this case is minimal. The applicant sought to Appeal the decision of the division head through a Presidential appeal process. True, the process initially adopted was misinformed, and the submissions initially made about procedural fairness, based on lack of communication about the MAC having been issued, were incorrect.
Upon identifying the appropriate pathway (as informed by the Commission in correspondence of 4 September) the applicant’s solicitors took the immediate and appropriate steps to rectify their mistake.
I am otherwise satisfied that the applicant took all reasonable steps to pursue the application as soon as possible. This is not some case where years down the track reconsideration is sought.

The public interest test

The above criterion as set out in Samuel arises from Hilliger v Hilliger (1952) 52 SR (NSW) 105, in which Street CJ stated:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.”
Here we have litigation that has resolved through the issue of the Certificate. Setting aside that Certificate would reopen the litigation, and the resolution of the litigation may take some time. It is, however, a defined period – the applicant is only entitled to bring one appeal (Sleiman v Gadalla Pty Ltd [2021] NSWCA 236). The application is not for the purposes of relitigating a point already decided – it is to allow the applicant to pursue a right that he has been denied, through no fault of his own.
This factor does weigh against the applicant, but not heavily.

Mistake or oversight of legal advisor

This consideration outlined in Samuel is the real substance of the dispute between the parties. Both have provided extensive submissions dealing with the issue. The majority of the applicant’s submissions concern this point.
I accept the applicant’s general contention that in considering relevant authorities, attention must be paid to the circumstances of the case cited and what the actual authority is purportedly authority for. Samuel refers to Hurst, but the original authority must be considered.
In Tedeschi, DP Roche explained the factual circumstances in Hurst that led to the relevant question about whether mistake of a legal advisor could be the basis for reconsideration. Those facts are set out at [49]-[51] and are vastly different from the circumstances before me. There were multiple failures to properly prosecute a claim in the original Workers Compensation Commission, and a great delay in properly bringing that claim.
DP Roche clarified the context of the statement made in Hurst:
“In the present case, the Arbitrator’s statement (at [14]) that a mistake or oversight by a legal adviser would not give rise to a ground for reconsideration failed to have regard to the context in which that statement was made in Hurst. In that case, the issue was not one concerning a settlement that went beyond counsel’s instructions, but concerned a failure in the preparation and presentation of a case, and a lengthy delay in bringing subsequent proceedings for relief.”
I accept that the present case is not factually similar to Tedeschi as it does not concern a settlement that went beyond instructions. However, the commentary about the failure to properly prepare and present a case, and the lengthy delay, are relevant to set out the factual circumstances of the principle in Hurst as set out in Samuel.

The present case cannot be said to be on all fours with Hurst. As I have already pointed out, there was no significant delay in the bringing of the present application. The applicant’s solicitor’s conduct does not amount to a failure to properly prepare or present the case, but rather an administrative mistake that was compounded by personal and professional factors. The applicant is also personally blameless in that regard.
The applicant’s submissions rely upon the “general law” position in respect of the fault of solicitors and the blamelessness of the plaintiff, with reference to Robertson. Robertson is of particular relevance to the present application. Although it concerned the test in s 327(5), it arose out of proceedings in the Commission and the failure of an applicant’s solicitor to bring an appeal in time.
Whilst the general authority referred to in Samuel that a mistake of a legal advisor is not a ground for reconsideration, that must be considered in context. This factor does not defeat the applicant’s claim as contended by the respondent. Indeed, the applicant’s blamelessness in that regard weighs heavily against accepting the proposition in Samuel as plainly stated, without properly considering the context in which Hurst was decided, and the clarifying remarks of DP Roche in Tedeschi.

The duty to do justice between the parties according to the substantial merits of the case

Based on my above analysis, this is really the critical factor that will determine whether I should exercise my discretion to set aside the Certificate.
The applicant has attached submissions addressing the grounds for appeal on which it would rely on any application to appeal. This is appropriate and consistent with my direction. The substantial merits of the case require consideration of whether the appeal itself has merit, or is reasonably arguable. There are four grounds:
(a)    The MAC does not set out the basis on which the applicant was categorised in class 1 of Table 13-11 of AMA 5. Reference is made to the assessments of Drs Darveniza and Granot, as well as other treating evidence;
(b)    The Medical Assessor misdirected himself by referring to only the first injury and not the second, and did not bring this to the attention of the parties;
(c)    The Medical Assessor minimises the results of an MRI dated 31 October 2020, and instead focusses on an MRI from November 2018, and
(d)    The Medical Assessor erred in applying a deduction pursuant to s 323 due to the second injury on 4 December 2019, and its effect on the left-sided symptoms.
Without determining the grounds for appeal, which I agree are outside of my jurisdiction, I would make the following commentary on the above grounds.
It is not clear what ground 1 is alleging to be in error in the MAC. Reference is made to the assessments provided by the independent medical experts, including Dr Darveniza on which the claim for lump sum compensation is based. It is noted that both experts assessed the applicant in class 3 under Table 13-11 of AMA 5, but a difference of opinion is not a ground for appeal, even an arguable one. The applicant must show that the assessment was made on the basis of incorrect criteria or the MAC contains a demonstrable error. This ground does not identify either with particularity.
Ground 2 is not only incorrect it is inarguable. The claim was brought to the Commission for a date of injury of 19 May 2018. The referral was made on that basis. The Medical Assessor assessed in accordance with the referral consistent with Skates v Hills Industries Ltd [2021] NSWCA 142. If there was issue with the referral, that goes back to the way the claim was framed in the Commission. The applicant had the opportunity to respond to the referral when it was first issued. There has been no denial of procedural fairness as the Medical Assessor has completed his task as required.
Ground 3 is again confusing. The Medical Assessor clearly describes the MRI of 10 October 2020 as “the most significant”. The applicant’s submissions refer to part 10 of the MAC, but no specific quotes are provided as to where the Medical Assessor might have focussed on the MRI of November 2018. It may be in the commentary on the reports of Dr Darveniza, but that is not clear.
Ground 4, however, has substance. The Medical Assessor has erroneously applied s 323 of the 1998 Act to a subsequent injury. He explains this at part 10a:
“I am clearly directed to address the injury that occurred on 19 May 2018 and I follow that directive, but take into account the effect of the second injury on 4 December 2019 on the left-sided symptoms. I therefore make a 1/10th deduction because of the increase in left sided symptoms resulting from the later right sided injury.”
And again, at part 11:
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
There is a 1/10th deduction.”
And finally, in the certificate itself, where the assessment of impairment of 8% is reduced by 1/10^th to 7%, when rounded.
As the respondent points out, this erroneous assessment has not made a difference to the outcome in terms of the applicant’s entitlement, as both assessments (of 8% and 7%) are below the relevant threshold for an award of lump sum compensation pursuant to s 66 of the 1987 Act. This would argue against me exercising my power to reconsider the Certificate, on the basis that to do so would be futile.
There are, however, factors that give me pause in reaching that conclusion.
The first is that whilst the other grounds of appeal do not appear to be persuasive, it is only ground 2 that can be described as inarguable. It may be that an Appeal Panel, with the assistance of medical expertise, could reach the conclusion ultimately argued for by the applicant in ground 1. That is that the assessment under Table 13-11 of AMA 5 is incorrect and in fact should be higher.
The second is that when error is identified in the application of s 323, the “starting point” must be considered (per Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 (Pombinho) at [86]). I accept that the Medical Assessor has erred in a different way here, in that s 323 is not the appropriate section to apply. However, it may be that Pombinho provides relevant authority to open upon the door to for an Appeal Panel to consider the “starting point”, being the assessment under Table 13-11.
Finally, there is consideration that the ultimate question is one for an Appeal Panel (should the President’s delegate be satisfied of the specific statutory requirements as set out in s 327 of the 1998 Act). As I have said, an arguable ground of appeal has been identified by the applicant. To deny him then opportunity to pursue an appeal would not be just, when he is blameless for the circumstances in which he finds himself.
I appreciate that I am required to do justice between the parties. Any decision to set aside the Certificate affects the respondent in that they are no longer entitled to the conclusive effect of the certificate. Based on my analysis of the above, the substantial merits of the case, although minor, dictate that I must set aside the Certificate. It may be that the appeal is unsuccessful and the Certificate is confirmed, which is ultimately the same outcome. That would not make this decision otiose as it is important that justice is seen to be done as much as being done in practice.

CONCLUSION

For the reasons set out above, the Certificate dated 6 August 2024 is set aside.
The applicant should lodge the Appeal in accordance with Procedural Direction PIC7 and the merits of that appeal should be determined in accordance with the legislation.

[2024] NSWPIC 678

6 December 2024