Pacific National (NSW) Pty Ltd v York - [2012] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Pacific National (NSW) Pty Ltd v York [2012] NSWWCCPD 29
APPELLANT:		Pacific National (NSW) Pty Ltd
RESPONDENT:		Phillip York
INSURER:		Self-insured
FILE NUMBER:		A1-8306/11
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:		21 February 2012
DATE OF APPEAL DECISION:		31 May 2012
SUBJECT MATTER OF DECISION:		Notice of dispute; s 74 of the Workplace Injury Management and Workers Compensation Act 1998; previously unnotified matters; discretion to hear or otherwise deal with previously unnotified matters; s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; obligation to give reasons for decision; consequences of denial of an opportunity to fully state case; application of principles stated in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	White Barnes
ORDERS MADE ON APPEAL:		1. The orders made in Certificate of Determination dated 21 February 2012 are confirmed. 2. The appellant is to pay the respondent’s costs of the appeal.

BACKGROUND

Mr Phillip York commenced employment as a shop boy with the State Rail Authority, the predecessor of Pacific National (the appellant), in 1967. He has remained with the appellant since and has been employed as a train driver for the past 28 years.
In the course of his work as a train driver Mr York has experienced exposure to sunlight. He alleges that such exposure has caused and/or aggravated numerous skin lesions. Those lesions have been treated many times over the past years with cryotherapy. He has also had two skin cancers surgically excised from his right temple. Grafting was required at those sites. In 2010 a basal cell carcinoma was surgically excised from his left pre-auricular area. Solar keratoses are present on Mr York’s legs and he has de-pigmented areas on his forearms where treatment was carried out with liquid nitrogen.
It seems that Mr York made a claim against the appellant in respect of “skin cancer” on 31 March 2011. In response to that claim the appellant arranged for a medical examination to be conducted by Dr John Sippe in May 2011.
On 11 July 2011 Mr York completed a claim form addressed to the appellant. That claim was in respect of lump sum compensation for injury to the skin. The claim nominated the deemed date of injury as being 11 July 2011. A report from Dr S Freeman, specialist in occupational dermatology, dated 30 June 2011 was provided in support of the claim. Those documents were forwarded to the appellant under cover of correspondence dated 14 July 2011 from Mr York’s solicitors.
The appellant acknowledged Mr York’s claim in correspondence addressed to his solicitors dated 25 July 2011. The appellant took steps to clarify certain matters with Dr Freeman concerning the content of her report.
The appellant, in correspondence dated 15 August 2011 addressed to Mr York’s solicitors, made reference to the findings of Dr Sippe as recorded in his reports dated 10 May 2011 and 8 August 2011 and offered the sum of $11,000 “being for eight per cent whole person impairment”. That offer was rejected and these proceedings were commenced shortly thereafter. Mr York claimed the sum of $15,400 in respect of eleven per cent whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and a further sum of $20,000 pursuant to s 67 of that Act. The date of injury was particularised in the Application to Resolve a Dispute (the Application) as 31 March 2011 and the “body parts/systems claimed” were described as being “skin”.
A Reply to the Application was filed on behalf of the appellant by its solicitors on 11 October 2011. At Part 3 of that Reply the following appeared:
“There has been no failure to determine but [the appellant] will seek leave pursuant to s 289A(4) [of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)] to dispute liability on the basis that employment with [the appellant] is not a substantial contributing factor to injury.”
By reason of the anticipated application noted at Part 3 of the Reply, the Registrar arranged for referral of the matter to Senior Arbitrator Moore for the purpose of conduct of a telephone conference which had been appointed to take place on 24 November 2011.
At that telephone conference Mr York was represented by Mr Dougall, solicitor, and the appellant was represented by Mr Macken, solicitor. It is the appellant’s complaint that the Senior Arbitrator wrongly failed to permit it to make the relevant application. The circumstances and the particular complaints made are addressed below.
On the day of the telephone conference the Senior Arbitrator issued a Certificate of Determination – Consent Orders. That Certificate had erroneously identified the appellant. I note that the same error had earlier been made by the appellant’s solicitors when filing the Reply to Mr York’s Application. An Amended Certificate of Determination – Consent Orders issued on 25 November 2011 in the following terms:
“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:
1.The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment in respect of injury to the skin (facial disfigurement) resulting from a deemed date of injury of 31 March 2011.
2.The documents to be sent to the AMS are the ARD and the Reply.
3.Costs reserved pending the outcome of the AMS assessment.”
The Registrar referred the dispute to an Approved Medical Specialist (AMS), Dr Dolores Gillam, for assessment as specified in the Senior Arbitrator’s determination. Dr Gillam, following examination of Mr York, issued a Medical Assessment Certificate (MAC) on 17 January 2012. It was Dr Gillam’s opinion that Mr York’s facial disfigurement could not be assessed under WorkCover Guidelines, thus her assessment was made under TEMSKI (the Table for the Evaluation of Minor Skin Impairment) which is referred to in the WorkCover Guides for the Evaluation of Permanent Impairment (3^rd edition, 6 February 2009). No question had been raised, following issue of the MAC, as to the appropriateness of that approach. I note in passing that the referral to the AMS did not make any reference to skin disorders other than facial disfigurement.
The assessment made by Dr Gillam of Mr York’s facial disfigurement was five per cent whole person impairment. No deductible proportion was found by Dr Gillam.
Following the issue of Dr Gillam’s MAC a Certificate of Determination was issued on 21 February 2012. That Certificate recorded the Registrar’s orders as follows:
“The Commission orders:
1.That the Respondent pay the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act), $6875.00 in respect of 5% permanent impairment resulting from injury on 31 March 2011.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.

Brief statement of reasons
3.This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the 1998 Act.”

ISSUES IN DISPUTE

The grounds of appeal are expressed as follows:
“(a) The [Senior] Arbitrator is in error in refusing to allow the Appellant to make application for leave pursuant to Section 289A(4) of the WIM.
(b) The [Senior] Arbitrator is in error in giving no reasons for the decision.
(c) The [Senior] Arbitrator is in error in failing to afford to the Appellant procedural fairness.”
The decision challenged is that found in the Certificate of Determination dated 21 February 2012 noted at [13] above. That challenge is founded upon an assertion of relevant error or errors on the part of the Senior Arbitrator in making the orders found in Certificate of Determination – Consent Orders dated 25 November 2011 noted at [10] above.

ON THE PAPERS

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.”
Mr York submits that this appeal may be heard on the papers.
The appellant submits (at [3] of submissions):
“If the grounds of appeal are accepted and the determination of the Presidential member is that the appropriate order is for the decision to be revoked and the matter to be remitted for rehearing before a new Arbitrator then the appellant submits that an oral hearing is not required. If the Presidential member rather seeks to substitute a decision the appellant then submits that an oral hearing before a Presidential member is required”.
The appellant’s submission appears to be founded upon a misconception of the discretion granted to the Commission by s 354(6) to proceed to a determination without holding a formal hearing. The manner of exercise of that discretion is to be founded upon the Presidential member’s satisfaction or otherwise of those matters addressed by the sub-section (Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247 per Mason P at [94]). The suggestion found in the submission that the outcome of the appeal alone is to be taken into account when exercising that discretion plainly misstates those matters relevant to its exercise. Accordingly, that argument must be rejected.

Factors and events relevant to exercise of s 354(6) discretion

The circumstances giving rise to the present appeal are unusual. The error, or errors, asserted by the appellant are said to have occurred during conduct of the telephone conference on 25 November 2011 which preceded the orders made on that day. The question concerning the availability of an appeal in respect of the final orders made on 21 February 2012 founded upon alleged errors earlier committed is addressed below (at [35]). The matter that is of immediate relevance is that there is no transcript available of proceedings at the teleconference. The absence of a transcript is not surprising given that such conferences are not, in the normal course of conduct of Commission proceedings, sound recorded.
The present difficulty is that the written submissions provided by the parties on this appeal include descriptions of events during that teleconference which appear to be inconsistent. In the circumstances a telephone teleconference, which was sound recorded in accordance with the Commission’s usual practice in the conduct of appeals, was appointed for 18 May 2012.
At the telephone conference conducted on 18 May 2012 the parties were again represented by Mr Macken and Mr Dougall. Each party confirmed that a written record of proceedings at that teleconference had been made. Those matters recorded were narrated by each of the solicitors and copies of those notes made by each solicitor have, by consent, subsequently been forwarded to the Commission. Those documents are treated as being before the Commission and I note that the contents of each document confirms the matters stated during conduct of the teleconference excepting that the wordage of Mr Dougall’s narration of the note differed with respect to two words as the note was recorded. Nothing turns on that discrepancy.
Leaving aside formal matters, such as date, time and appearances, those records include the following notations:
(a) The first relevant notation made by the appellant’s solicitor is a quotation of that said by Senior Arbitrator Moore being “No well I’m not giving you leave Mr Macken”. Immediately there-under is a notation “No reasons No prelim. decision made.” Below that notation appears “No opportunity for submissions at all”.
(b) The notes made by Mr York’s solicitor, again leaving aside formal matters record:
“Brief discussion re: denial/s74
- No evidence
Late notice of denial
Not allowing leave
ARD and the reply – only docs admitted
31/3/11 – deemed date
Costs reserved pending AMS outcome”.
On 18 May 2012 the appellant’s solicitor, in response to a request to identify the application which was intended to be made before the Senior Arbitrator, stated the following matters:
(a) there were to be two applications;
(b) the first was “an intention to seek leave to agitate issues not identified in the S 74 Notice in accordance with s 289A(4)”, and
(c) those issues concerned s 9A, that is “whether or not the employment with [the appellant] was a substantial contributing factor to injury” and it was also intended “to seek leave for the issuing of directions”.
It appears from submissions made at the teleconference before me that the appellant intended that argument concerning leave to raise an unnotified dispute be presented “after first having leave to issue directions to the treating medical practitioners” (at T5). It was asserted that a report in evidence from Dr Freeman, who had been qualified by Mr York to provide an opinion, contained a history that Mr York “was undergoing treatment including surgical treatment for [Mr York’s] skin condition prior to [the appellant] ever employing him” (at T5).
The appellant’s solicitor was invited to elucidate the grounds upon which leave was intended to be sought pursuant to s 289A. The following matters were put:
(a) it was the appellant’s intention to first seek leave to “issue directions of the treating doctors”, and
(b) that “assuming that the treating doctors’ records confirm what Dr Freeman’s report indicates, [Mr York’s] condition was for all intents and purposes as it is prior to [the appellant] ever employing [Mr York] and therefore the employment with [the appellant] could not, on the evidence, be regarded as being a substantial contributing factor to the injury” (at T6).
It was accepted by the appellant that no notice had been issued in accordance with s 74; that there was no denial of liability, and that the appellant had accepted liability at an early date and had made an offer of settlement.
The appellant argued that procedural requirements had been “fully complied with in all respects” (T8). It was argued that, there being no s 74 notice “what is required is notification of leave under s 289A and that’s what’s been done and we’ve done it at the earliest time that we could which is in the Reply”.
It was further argued by the appellant that a s 74 notice had not issued at the time a decision was taken concerning denial of liability because “it’s out of time. It can’t be valid and that’s why s 289A [sic, s 289A(4)] is there”.
The arguments raised by Mr York in response are addressed below. It was made clear that no authority had been cited by the parties nor by the Senior Arbitrator during the teleconference.
Immediately before conclusion of the teleconference before me it was asserted by the appellant that there was a “further matter” being “the application of a deduction, if any, that needs to be made by reason of the provisions in Schedule 6 because work carried out prior to 1 July 1987 needs to be relevantly excluded from the calculation”. It was stated (at T12) that notice of this issue had been raised in correspondence with the Commission. No such communication is apparent upon examination of the Commission’s record. Mr York’s solicitor asserted that the subject of Sch 6 had never been raised “in any correspondence to us”.
I have reached the view that, notwithstanding the absence of a transcript of the proceedings at the teleconference conducted before the Senior Arbitrator, I have sufficient information before me to permit a determination of this appeal on the papers without the need to conduct a hearing and that such is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements of s 352(3) as to quantum have been met.
Mr York has submitted that the appellant, whose complaint concerns the orders made by the Senior Arbitrator on 25 November 2011, has failed to comply with the requirements as to time found in s 352(4). It is also asserted that the orders made on that day were interlocutory in nature and that the appellant has not sought leave pursuant to s 352(3A) of the 1998 Act to appeal against those orders. It is further argued that it is not “necessary or desirable for the proper and affected [sic, effective] determination of the dispute”, within the meaning of that subsection, to grant such leave.
Mr York’s argument is misconceived and must be rejected. Upon an acceptance that the orders made on 25 November 2011 were in fact interlocutory, the Commission has since that time determined the dispute and made final orders. The Commission on this appeal from those final orders may correct any error made by way of interlocutory order that has affected the final result (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478) (Gerlach). No argument has been advanced that the general principle considered in Gerlach has limited application to the present facts.
The appeal has been made within 28 days of the making of the final orders and thus the appellant has complied with the time requirements of s 352(4).

SUBMISSIONS

The appellant’s written submissions

The appellant asserts that the Senior Arbitrator refused to permit an application to be made on its behalf seeking leave pursuant to s 289A(4) to “dispute liability”. It is put that such refusal constitutes error on her part.
It is further argued that both the Registrar and the Senior Arbitrator erred in failing to give reasons for “the decision in this matter”.
The appellant asserts that it was not given “an opportunity of being heard” concerning an application for leave pursuant to s 289A(4) to hear or otherwise deal with the dispute in relation to a matter not previously notified. The suggested denial of that opportunity was, it is argued, a denial of procedural fairness. Reliance is placed upon the decision in Arcade Pharmacy Pty Ltd v Gauci [2009] NSWWCCPD 107 (Gauci) (at [49]).
The relief sought is that the orders made in the Certificate of Determination, including the order as to costs, be revoked and that the matter be “remitted to a new arbitrator for rehearing”.

Mr York’s written submissions

Mr York, in his submissions in opposition to the appeal, argues that the evidence establishes that at the time of commencement of these proceedings there “were no issues in dispute aside from the level of permanent impairment sustained by [Mr York]”.
Those submissions record that the appellant’s representative made application before the Senior Arbitrator “to raise a dispute with respect to injury” and that Mr York opposed “leave being granted”.
Those submissions include an assertion that the Senior Arbitrator refused “to give leave pursuant to s 289A of [the 1998 Act] and the matter [sic] being allocated a deemed date of injury of 31 March 2011”.
Reference is made in those submissions to the decision in Mateus v Zodune Pty Ltd (t/as Tempo Cleaning Services) [2007] NSWWCCPD 227. It is put that the Senior Arbitrator had “valid grounds within [sic] which to refuse leave given the appellant’s failure to act promptly, the absence of any merit or substance to the dispute notice and the prejudice which would be caused by granting leave”.

The nature of the dispute as asserted by the appellant

The Reply, as noted at [7] above, suggested that, subject to leave being granted pursuant to s 289A(4), a defence to the claim was to be raised founded upon the provisions of s 9A of the 1987 Act which provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)  the time and place of the injury,
(b)  the nature of the work performed and the particular tasks of that work,
(c)  the duration of the employment,
(d)  the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)  the worker’s state of health before the injury and the existence of any hereditary risks,
(f)  the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)  the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)  the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The appellant further suggests that an “issue” also “remains” concerning the “application of a deduction” having regard to the operation of “Schedule 6” concerning injury occurring prior to 1 July 1987. This “issue” was raised by the appellant for the first time at the telephone conference conducted before me on 18 May 2012.
It is reasonably clear that the appellant argues that the terms of Sch 6 to the 1987 Act are relevant to the question of its liability to Mr York. That Schedule, a provision of notorious complexity, concerns “Savings, Transitional and Other Provisions”. The appellant has provided little, if any, particularity concerning the suggested relevance of that Schedule. It seems to me that this “issue”, which has not been previously raised and in respect of which no argument has been advanced, has been put forward as an afterthought. The subject is not addressed in the appellant’s grounds, and may be disregarded.

The suggested errors

The question is raised as to whether the Senior Arbitrator erred in the course of conduct of the telephone conference. There appear to be two suggested errors:
(a) failure to permit the making of the application, and
(b) failure to give reasons for refusal.
Complaint is also made that there had been a failure to state reasons for the determination made on 21 February 2012.

DISCUSSION

The two provisions which have primary relevance to the present appeal are ss 74 and 289A of the 1998 Act. Those sections provide:
“74   Insurers to give notice and reasons when liability disputed
(cf former s 94A)
(1)     If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2)     The notice must contain the following:
(a)a statement of the reason the insurer disputes liability and of the issues relevant to the decision,
(a1)a statement to the effect that the worker can request a review of the claim by the insurer,
(b)unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission,
(c)if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral,
(c1)a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review,
(d)a statement to the effect that the worker can also seek advice or assistance from the worker’s trade union organisation or from a lawyer,
(e)such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers.
(2A) In the case of a claim for compensation under this Act, a statement of reasons in a notice under this section is to indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability.
(2B) A notice under this section must be expressed in plain language.
(3)     The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section.
The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.
(3A) The regulations may create offences in connection with any failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (See section 93 and the offence arising under section 94).
(4)     Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
(5)     Before giving a notice under this section, an insurer must carry out an internal review of the decision to dispute liability in respect of the claim or an aspect of the claim.”

“289A   Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if:
(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.

(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

Whilst there is some inconsistency between the records made by each party concerning the precise events at the teleconference, it is clear that the Senior Arbitrator made a ruling refusing the appellant leave to raise a dispute relating to any previously unnotified matter. It is therefore clear that the Senior Arbitrator had acknowledged the proposed application which had been foreshadowed in the Reply.
There is conflict between the parties concerning the making of such application and the provision of reasons for such refusal which I have noted at [23] above. In the absence of a transcript or any evidence concerning those events, it is not possible to reach a conclusion as to which, or indeed whether either, notation made by the parties correctly recorded those matters.
The Senior Arbitrator’s ruling had the effect of denying the appellant the opportunity to dispute the claim upon reliance of a defence founded upon the provisions of s 9A. Her ruling refusing to grant leave constitutes an exercise of the discretion granted by the statute and may be described as being interlocutory in nature. In such circumstances, having regard to that stated by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) (between 278-281) I consider that a need for the provision of reasons existed, but that such reasons need not have been “lengthy or elaborate” (Soulemezis per McHugh JA at 280).
Should the notation of events recorded by Mr Dougall be correct, it is my view that the brief observations recorded, being “no evidence” and “late notice of denial” constitute a summary of a sufficient statement of reasons for the refusal of such an application. By inference the grounds for rejection may have been that the Senior Arbitrator was not satisfied that there was any evidence in support of the suggested defence and that delay in raising the matter, being a factor relevant to the exercise of her discretion, had been established and not sufficiently explained or excused. However, as earlier stated, no conclusion can be reached concerning those events.
As will be seen below, I have concluded that, upon an acceptance that the appellant had been denied the opportunity to argue its case concerning the application, such denial does not give rise to a need to remit the matter to an Arbitrator for consideration afresh. In the circumstances, again accepting that the Senior Arbitrator failed to state reasons for refusal, that failure on her part could not possibly have affected the outcome of the application.
It may safely be assumed that the appellant’s complaint that the Senior Arbitrator had failed “to permit the making of the application” is in fact a complaint that it was denied the opportunity to properly put its case concerning the application during the teleconference. That a party is entitled to that opportunity is clear (see discussion by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (at 145) (Stead)).
Upon the assumption, for present purposes, that the appellant had in fact been denied the opportunity to fully state its case concerning the discretionary relief sought, it is necessary to consider the qualification to the general principle concerning a party’s right to be accorded natural justice as was stated by the High Court in Stead (at 145):
“That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.”
The appellant has on this appeal, in particular during the course of the telephone conference conducted on 18 May 2012, had the opportunity to elucidate the grounds upon which it intended to seek the order as foreshadowed in its Reply. The appellant’s arguments fail, in my view, to identify with any precision any evidence that would tend to suggest that Mr York’s employment was anything other than a substantial contributing factor to his injury. Further, the evidence which is annexed to the appellant’s Reply supports Mr York’s case. The memorandum dated 15 August 2011 concerning recommended settlement of the claim signed by the appellant’s Workers Compensation Administrator and which was approved by the relevant officer of the company, Mr Ralph Raymond, includes the following notation concerning the findings of Dr Sippe, to whom Mr York had been referred by the appellant:
“Dr Sippe confirms solar exposure is related to employment which would have [sic] Mr York would have obtained when outside his cabin of his train”.
The appellant’s arguments are not assisted by the clear fact that it has relied selectively upon the evidence of Dr Sippe, in that only his supplementary report is in evidence. The primary report, which followed the Doctor’s examination of Mr York in May 2011, has not been tendered in evidence.
The appellant’s imprecise reference to the evidence of Dr Freeman and its suggestion that the defence (s 9A) may be fortified by matters revealed in medical records to which it sought access may only be described as conjecture. The following argument raised on behalf of Mr York, an employee of the appellant and its predecessors since age 15, has considerable force:
“Dr Freeman makes a very brief comment about [Mr York] having had his first skin lesion treated at the age of about 40 but goes no further. So if that’s as far as it goes, I would submit that’s not a lot of evidence to raise this sort of denial at such a late stage.” (at T10)
In written submissions the appellant, as noted earlier, places reliance upon Gauci where it was stated (at [49]):
“On the face of the material which appears before the Commission it appears that the appellant has, through its insurer, failed to meet its obligations concerning notice of dispute and in a number of respects, as put by the worker in supplementary submissions dated 25 August 2009, has been somewhat dilatory in the conduct of its defence. The form of “Schedule” which appears attached to the Reply is both broad and vague in its terms and cannot be said to represent even a belated attempt to comply with the notice requirements of the legislation. Notwithstanding the manner of conduct of the defence I am of the opinion that there exists a dispute as to liability and further that the appellant has been denied procedural fairness in not being heard, at least in relation to an application pursuant to section 289A(4) to the Commission seeking an order that it be permitted to rely in its defence upon matters not previously notified. In the circumstances the determination evidenced by the COD dated 22 April 2009 must be revoked.”
The determination made in Gauci affords the appellant no comfort given that the facts of the present matter may be distinguished from those in Gauci. In Gauci the dispute was referred for an assessment by an AMS by the Registrar’s delegate without referral of the matter to an Arbitrator to permit the adjudication of matters addressed in the employer’s reply and in subsequent correspondence sent by it to the Registrar. In the present matter, a telephone conference conducted by the Senior Arbitrator was convened expressly for that purpose. The appellant’s application has been acknowledged and refused.
I have reached the view that nothing raised by the appellant concerning the suggested availability of a defence founded upon s 9A is in any way persuasive. Not only has the appellant failed to demonstrate that the evidence supports the suggested defence, but has failed to meet its obligations concerning notice of a dispute. That failure has not been explained.
The obligation to give notice of such denial of liability arises from the terms of s 74. The appellant asserts that it was “out of time” to file such a notice and, as a consequence, it was obliged to place reliance upon the provisions of s 289A(4). Whilst the manner of dealing with a claim in respect of lump sum compensation is regulated by those provisions found in Div 4 of Pt 3 in Ch 7 of the 1998 Act, there is no provision in either Act that prevents service of a s 74 notice outside those periods prescribed concerning management of a claim.
As has been seen s 74 requires that notice be given to a claimant of a dispute as to liability. Only matters previously notified as disputed may be referred for determination by the Commission (s 289A(1)). The scheme of the Acts concerning disputes about the degree of permanent impairment prevents the Commission from awarding permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an AMS (s 65(3) of the 1987 Act).
Such a referral to an AMS is not to occur in circumstances where there is a dispute as to liability (s 293(3)). Such dispute must be resolved by settlement or determined by the Commission constituted by an Arbitrator before referral by the Registrar to an AMS (Practice Direction 11, 8 September 2011).
The appellant’s failure to comply with the notice requirements of s 74 had the consequence, given its wish to belatedly raise a liability issue, that an application seeking to persuade the Commission to exercise its discretion pursuant to s 289A(4) needed to be made. The discretion granted by s 289A(4) does not provide, as suggested by the appellant, an alternative to compliance with the notice requirements of s 74. I consider that the appellant misstated its position and misconceived the legislative scheme when it was said at the telephone conference before me (at T8):
“The procedural issue, as I understand it, has been fully complied with in all respects. There is no Section 74 Notice so what is required is notification of leave under section 289A and that’s what’s been done and we’ve done it at the earliest time that we could which is in the Reply and notified it by the service of the Reply. So from the procedural point, we’ve done everything we can.”
The Arbitrator’s refusal to permit the previously unnotified matter (s 9A defence) had the inevitable consequence that the dispute was referred to an AMS in accordance with Practice Direction 11 which states:
“Where the only issue in dispute is the degree of permanent impairment, the Registrar will refer the claim for permanent impairment directly to an Approved Medical Specialist.”
There being no liability issue it was inevitable that remitter to the Registrar for referral to an AMS would occur without any order being made concerning directions for production. The appellant’s complaints which seem to be made concerning the Commission’s failure to make such directions must be rejected.
Adopting the approach of Lindgren J in Giritti v Commissioner of Taxation (1996) 70 FLR 151 (at 164-5) I conclude that the “forward-looking test” found in Stead establishes that referral of the matter to an Arbitrator to hear the application afresh would inevitably result in the making of the same order and that so remitting the matter would be a futility. Application of the “backward-looking test” identified by Lindgren J leads me to conclude that, had an opportunity been given to make submissions, such could have made “no possible difference to the result” (Stead at 146).
With respect to the appellant’s complaint that no reasons were provided concerning the determination made on 21 February 2012, I consider that the brief Statement of Reasons as appear in the Certificate of Determination are sufficient given the circumstance that the only live issue between the parties was the question of quantum of entitlement (Gauci at [50]).

CONCLUSION

For the reasons which I have attempted to outline above, I conclude that the appellant has failed to establish relevant error on the part of the Senior Arbitrator and thus the appeal fails.

Before the making of orders, it is appropriate, in my view, to draw attention to an apparent pattern in the manner of conducting defence of claims before the Commission in which Mr Macken has been retained to represent the employer. There has been repeated failure to fully comply with the notice requirements of s 74. Such failure has significant consequences, the most grave of which is that a worker has no knowledge of the employer’s grounds of denial of liability until the matter comes before the Commission. That failure gives rise to prejudice and, as has been demonstrated by this and other matters conducted by Mr Macken, has caused delay which has often been protracted (see Gauci; AUSGRID v Butler [2012] NSWWCCPD 19, and Inghams Enterprises Pty Ltd v Rachmaninoff (No2 )[2011] NSWWCCPD 61). This disregard of the notice provisions should not be repeated.

DECISION

The orders made in Certificate of Determination dated 21 February 2012 are confirmed.

COSTS

The appellant is to pay Mr York’s costs of the appeal.

Kevin O'Grady

Deputy President
31 May 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE