PCR Plaster Settings Pty Ltd v De Brito (No 3)
[2008] NSWWCCPD 82
•7 August 2008
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR STATUS: Reported Decision: PCR Plaster Settings Pty Ltd v De Brito (No 3) (2008) 7 DDCR 143 CITATION: PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82 APPELLANT: PCR Plaster Settings Pty Ltd RESPONDENT: Manuel De Brito INSURER: Employers Mutual NSW Ltd FILE NUMBER: WCC15597-06 DATE OF ARBITRATOR’S DECISION: 26 March 2008 DATE OF APPEAL HEARING: 29 July 2008 DATE OF APPEAL DECISION: 7 August 2008 SUBJECT MATTER OF DECISION: Sections 54, 52A and 38A of the Workers Compensation Act 1987; whether the worker was seeking suitable employment; discretion to admit additional evidence on appeal under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998. PRESIDENTIAL MEMBER: Deputy President Bill Roche HEARING: Oral REPRESENTATION: Appellant: Mr Wardell, solicitor, employed by Edwards Michael Lawyers Respondent: Mr Pluznyk, instructed by Joseph G Capogreco & Associates ORDERS MADE ON APPEAL: For the reasons given in this decision, paragraph one of the Arbitrator’s determination dated 26 March 2008 is revoked and I make the following orders:
“1. The Employer is to pay the Worker weekly compensation at the rate of $150.00 per week from 2 June 2005 until 5 June 2005 inclusive.
1A. Subject to order 1 above, the Worker’s Application for the restoration of weekly compensation payments in respect of his partial incapacity is dismissed, his right to such compensation having been abrogated by operation of section 52A(1)(a) of the Workers Compensation Act 1987.”
Paragraphs two, three, four and five of the Arbitrator’s determination of 26 March 2008 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal, certified in the sum of $2,200, plus GST.
INTRODUCTION
1.This case raises two main issues. First, whether the employer’s insurer validly served a notice under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’) terminating Mr De Brito’s weekly compensation from 1 June 2005 on the grounds that he had received weekly compensation for over 104 weeks and, being partially incapacitated, was not suitably employed and was not seeking suitable employment (section 52A of the 1987 Act). Second, if the notice was validly served, whether the worker was seeking suitable employment at the time the notice was given (section 38A of the 1987 Act).
2.The case is complicated because at the time Mr De Brito first claimed compensation he lived at 72 Gallipoli Street, Lidcombe, but by the time his case was determined by Judge O’Toole on 4 February 2004, he lived in Portugal. By letter dated 7 June 2004, his solicitor advised the insurer’s solicitor that his weekly entitlements were to be sent “C/- 19 D’arcy Avenue LIDCOMBE NSW 2141” (‘the Lidcombe address’). It is the insurer’s contention that it validly served the section 54 notice by mailing it to the Lidcombe address.
BACKGROUND
3.This is the third appeal in this matter. The background has been succinctly set out by Acting Deputy President Handley in the second appeal (PCR Plaster Setting Pty Ltd [No 2] v De Brito [2008] NSWWCCPD 7 (‘De Brito No 2’)) and I adopt and reproduce his summary (at [3] to [6]):
“3. On 4 February 2004, Judge O’Toole of the District Court of NSW, exercising the residual jurisdiction of the Compensation Court, made an award in favour of Mr De Brito ordering: (1) the payment of $7,500 compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of a 10% permanent loss of efficient use of the left leg at or above the knee; (2) the payment of weekly compensation of $150 pursuant to section 40 of the 1987 Act in respect of partial incapacity from 12 September 2002 to date and continuing; and (3) the payment of medical and related expenses pursuant to section 60 of the 1987 Act. Her Honour also made a determination pursuant to section 53 of the 1987 Act that Mr De Brito’s ‘incapacity resulting from his employment is likely to be of a permanent nature’, and he was therefore entitled to receive weekly compensation notwithstanding that he had left Australia to live in Portugal.
4. On 20 April 2005, EMI served a Notice of Discontinuance of weekly compensation payments on Mr De Brito, pursuant to section 54 of the 1987 Act, addressed to 19 D’Arcy Avenue, Lidcombe, stating two grounds for discontinuing payment of weekly compensation from 1 June 2005: (1) that Mr De Brito had received weekly compensation for partial incapacity for more than 104 weeks, and (2) that he was not currently suitably employed nor seeking suitable employment.
5. On 3 October 2006, the Commission registered Mr De Brito’s ‘Application to Resolve a Dispute’ seeking reinstatement of his weekly compensation. On 1 February 2007, an arbitrator conducted a conciliation/arbitration hearing with the parties, following which, on 23 February 2007, she made a determination ordering reinstatement of the payment of weekly compensation to Mr De Brito and ordering PCR to pay Mr De Brito’s costs as agreed or assessed.
6. On 22 March 2007, PCR appealed against this decision. In an appeal decision dated 18 July 2007 (PCR Plaster Setting Pty Ltd v De Brito [2007] NSWWCCPD 159), Acting Deputy President Moore found that section 52A of the 1987 Act was applicable (discontinuation of weekly payments for partial incapacity after two years where, relevantly, the worker is not suitably employed and not seeking suitable employment) and could be invoked where an award of compensation is being paid to a worker who resides outside Australia pursuant to section 53 of the 1987 Act. However, the Acting Deputy President found that the arbitrator had failed to determine relevant issues raised in the proceedings, for example, the validity of the notice given by EMI pursuant to section 54 of the 1987 Act and whether Mr De Brito was in fact seeking suitable employment at the relevant time within the meaning of section 52A. The Acting Deputy President therefore revoked the arbitrator’s decision and remitted the matter to another arbitrator for redetermination in accordance with her reasons. She made no order as to the costs of the appeal.”
4.On remittal after the first appeal a Commission Arbitrator re-determined the matter and found that the notice of discontinuance of compensation payments dated 20 April 2005 had not been served on Mr De Brito (Certificate of Determination 24 September 2007). He ordered the employer to resume payments of weekly compensation from 1 June 2005 to date and continuing, in accordance with the judgment of Judge O’Toole of 4 February 2004.
5.The employer filed a second appeal. It argued that service of the section 54 notice at 19 D’arcy Avenue, Lidcombe was effective service on Mr De Brito. Mr De Brito’s solicitor gave that address to the insurer’s solicitor by letter dated 7 June 2004. That letter stated:
“RE: De Brito v Plaster Setting Pty Ltd
We refer to the above and enclose the Tax File Number Declaration.
Kindly send all further weekly entitlements to:C/- 19 D’arcy Avenue
LIDCOMBE NSW 2141.
We thank you and apologise for the delay in returning the above form.”
6.The employer relied on section 76 of the Interpretation Act 1987 (NSW), which states:
“76 (1) If an Act or instrument authorises or requires any document to be served by post (whether the word ‘serve’, ‘give’ or ‘send’ or any other word is used), service of the document:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.
(2) In this section: ‘working day’ means a day that is not:
(a) a Saturday or Sunday, or
(b) a public holiday or a bank holiday in the place to which the letter was addressed.” (emphasis added)
7.The employer argued that section 76 creates a rebuttable presumption that unless evidence sufficient to raise doubt is adduced to the contrary, service is taken to have been effected on the fourth working day after the letter was posted.
8.It also relied on Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 (‘Fancourt’) where the Court held (at [21]):
“As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.” (emphasis added)
9.In Fancourt, a notice sent to a person “C/- Post Office, Sapphire, Q” was held to be addressed to the person’s place of abode. The Court held (at [17]) that, in such instances where;
“the only means of reaching those persons at their abode by the use of postal services may be through the post office ... a letter addressed to a person at the appropriate post office may be said to be addressed to him at his abode because that is his appropriate postal address in the sense that a letter so addressed may be expected to reach him at his place of abode in the ordinary course of post. A letter addressed to ‘Blackacre’ care of a post office or a post office box is none the less addressed to Blackacre if that is the postal address which Blackacre has, notwithstanding that the physical location of the property and of the post office are different.”
10.Mr De Brito relied on the decision of Hughston v Hughston & Sons Ltd (1999) 18 NSWCCR 312 (‘Hughston’) where Curtis CCJ held that service of a notice on a solicitor purporting to act for the worker in relation to a claim under sections 66 and 67 of the 1987 Act, when no originating process or document had been issued, was not good service. He also submitted that there was no evidence that correspondence sent to the Lidcombe address was being received and disputed that it was reasonable for the insurer to assume that the address provided was an appropriate one for correspondence.
11.Acting Deputy President Handley upheld the employer’s second appeal and said, at [31] and [32]:
“31. The issue to be determined is whether the Arbitrator erred in fact or law in deciding that the section 54 notice dated 20 April 2005 was not properly served. I find EMI’s submissions on this issue persuasive. Relevantly, section 54(4) requires that a section 54 notice shall ‘be given to the worker personally or by post’. There is no reference to where a notice should be sent by post to a worker. Section 76(1) of the Interpretation Act 1987, set out above, which clearly applies, is concerned with when service is deemed to be effective. Service by post must be (a) by properly addressing, prepaying and posting a letter containing the document, and (b) where service is in Australia or an external Territory, it is taken to have been effected on the fourth day after posting, or (c) where service is in another place, it is taken to have been effected at the time when the letter would have been delivered in the ordinary course of the post, unless, in both cases, evidence sufficient to raise doubt is adduced to the contrary.
32. The High Court decision in Fancourt (see above) distinguished between service of a document, deemed to have been effected, for example, in accordance with section 76(1) above, and actual receipt of the document. I agree with EMI’s submission that the High Court took a pragmatic approach in recognising that a person’s postal address does not necessarily coincide with where the person is physically residing. It is a matter of using an appropriate postal address where the letter addressed to the person can be expected to reach him/her.” (emphasis included)
12.He also distinguished Hughston on its facts. He then posed the question of whether the section 54 notice had been properly served, and said (at [34]):
“My reasoning is as follows. If there is evidence (1) that EMI had no other address for Mr De Brito, and (2) that EMI had been sending weekly compensation cheques to the Lidcombe address as a result of which those cheques had been cashed, then (3) in the absence of evidence of Mr De Brito having notified EMI of another address to which other correspondence should be sent, in my view it was reasonable, in these circumstances, for EMI to assume that the address in Lidcombe was an appropriate place to which letters for Mr De Brito, containing notices issued pursuant to the workers compensation legislation, could be addressed. Thus (4), if there is evidence establishing that EMI’s letter to Mr De Brito dated 20 April 2005, containing the section 54 notice, was properly addressed, pre-paid and posted, then (5) in the absence of evidence from Mr De Brito raising doubt that the letter containing the notice had been served, service of the notice is taken to have been effected on the fourth working day after the letter was posted (section 76(1) Interpretation Act 1987).”
13.Because of the lack of evidence, or lack of clarity in the evidence, the Acting Deputy President remitted the matter for a further arbitration. That arbitration was heard on 17 March 2008. The Arbitrator heard lengthy submissions from both parties, through their respective counsel, and delivered a reserved decision on 26 March 2008 in which she found against the employer on the basis the there was no evidence that the section 54 notice had been served at the Lidcombe address.
14.By an appeal filed on 22 April 2008, the employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
15.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
16.There is no issue that the thresholds in section 352(2)(a) are satisfied.
17.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
18.I grant leave to appeal.
THE DECISION UNDER REVIEW
19.The ‘Certificate of Determination’, dated 26 March 2008, records the Arbitrator’s orders as follows:
“1.That the Respondent resume payments of weekly compensation in accordance with the judgment of O’Toole J of 4 February 2004 from 1 June 2005 to date and continuing.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.
3.I certify an uplift in the Applicant’s costs of 30%.
4.I certify an uplift in the Respondent’s costs of 30%.
5.In relation to the resolution of the Arbitrations on 17 March 2008, 19 September 2007 and 22 February 2007 I order that pursuant to Schedule 6 Clause 9(2)(b) of the Workers Compensation Regulation 2003 these resolutions are to be treated as separate resolutions for the purpose of the calculation of assessment costs.”
ISSUES IN DISPUTE
20.The issues in dispute in the appeal are whether the employer should be permitted to rely on additional evidence on appeal and whether the Arbitrator erred:
(a)in finding that the section 54 notice was not sent;
(b)in finding that there was no evidence that the letter and notice of 20 April 2005 was not served;
(c)in declining to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) arising from the worker not having put on any evidence regarding the issue of whether the section 54 notice had been sent to the Lidcombe address, and
(d)failing to have any proper regard to the provisions of section 354(1) and (3) when dealing with the issues raised under points (b) and (c) above.
21.It is conceded that point (a) above is dependent upon leave being granted for the admission of additional evidence on appeal.
ADDITIONAL EVIDENCE
Background
22.At the third arbitration the employer tendered a statement from Saime Koseoglu, senior claims and injury assessor employed by the insurer, dated 14 March 2008. This statement essentially stated that:
(a)she had the conduct of Mr De Brito’s file since early 2005;
(b)following a written request from Mr De Brito’s solicitor, all weekly compensation payments to Mr De Brito were forwarded to him care of “19 Darcy [sic] Street, Lidcombe”;
(c)all of those cheques were presented and she had not been advised that cheques for payment of weekly compensation had not been received and banked;
(d)notices to Mr De Brito dated 16 August 2004, 17 February 2005, 23 February 2005 and 30 March 2005, advising him of the terms of section 52A of the 1987 Act were mailed, in accordance with the insurer’s usual mailing procedure, to Mr De Brito at the Lidcombe address, and
(e)at no stage were any letters that had been “referred to” the Lidcombe address returned undelivered.
23.Ms Koseoglu gave no evidence as to the service of the critical notice, namely, the section 54 notice and covering letter dated 20 April 2005. The Arbitrator identified this omission (T25.38), and the potential problem it posed, but the employer’s counsel made no application for an adjournment to rectify the omission.
24.The employer now seeks leave to rely on additional evidence in the form of a statement from Timothy Macarthur Wardell, solicitor, dated 14 April 2008, and an additional statement from Saime Koseoglu, dated 17 April 2008.
25.Mr Wardell’s statement sets out his understanding that prior to Acting Deputy President Handley’s decision on 18 January 2008, there had never been an issue as to whether the section 54 notice had been delivered by post to the address in Lidcombe nominated by Mr De Brito’s solicitor in the letter of 7 June 2004. He based his understanding on:
(a)Part 3 of the Application to Resolve a Dispute (‘the Application’) filed by Mr De Brito in the Commission on 3 October 2006, which only raised the issue of whether Mr De Brito had been seeking suitable employment at the relevant time within the meaning of section 52A;
(b)the section 54 notice dated 20 April 2005 had been annexed to the Application;
(c)Mr De Brito put on no evidence from himself or anyone resident at the Lidcombe address to the effect that the section 54 notice had not been received;
(d)the point taken by Mr De Brito at the first arbitration was that an insurer could not issue a section 54 notice and terminate payments while an award was on foot, and
(e)the point taken by Mr De Brito at the second arbitration was that the section 54 notice had not been delivered to his place of residence in Portugal.
26.Mr Wardell’s initial view was that, having regard to the matters set out at [25] above, there was evidence of the notice having been sent to the Lidcombe address. For more abundant caution, however, he raised at the teleconference on 21 February 2008 (prior to the third arbitration) the question of whether Mr De Brito conceded that the section 54 notice had been delivered to the Lidcombe address. As a result of discussions at that teleconference (not recorded or transcribed) Mr Wardell wrote to Mr De Brito’s solicitor on 21 February 2008 (wrongly dated 21 January 2008). That letter states:
“We refer to the Teleconference which took place in this matter on 21 February 2008.
We confirm that you are to advise us within 7 days as to whether it is conceded that the s54 Notice was delivered by post to the Lidcombe address.
As agreed, we enclose herewith a copy of the Transcript of the arbitration hearing before Mr Wynard.
We look forward to hearing from you.
Please do not hesitate to contact our office should you have any queries.” (emphasis added)
27.Mr De Brito’s solicitor responded by letter dated 28 February 2008 as follows:
“We refer to the above and the teleconference held on the 21 February 2008.
In accordance with the directions made by the arbitrator we hereby advise, we are instructed that the applicant did not receive the documents sent by your client, referred to in your client’s reply.”
28.The letter of 28 February 2008 did not answer the enquiry made. It did not identify the document or documents Mr De Brito had not received. The documents “referred to” in the employer’s Reply (filed on 25 October 2006) included a wide range of documents, not just the section 54 notice. The Reply was served on Mr De Brito’s solicitor, not on Mr De Brito. Mr Wardell considered that the letter did not affect the operation of the rebuttable presumption in section 76 of the Interpretation Act 1987. He assumed that if Mr De Brito’s instructions were that he had never received the section 54 notice, or any of the other documents the insurer claims to have sent to the Lidcombe address, he would have put on evidence to that effect. Mr De Brito put on no evidence about whether he had received any documents from the insurer or if any documents had ever been received at the Lidcombe address.
29.The difficulty with this assumption is that the presumption under section 76 only arises after it is established that the notice was in fact sent in the manner stated in the section 76(1)(a). It was for the purpose of determining if the notice had in fact been sent to the Lidcombe address that Acting Deputy President Handley set out the steps at [34] of his decision (reproduced at [12] above).
30.Nevertheless, Mr Wardell did, at the last minute, obtain and file the statement from Ms Koseoglu dated 14 March 2008, setting out the insurer’s procedure in relation to the sending of letters and notices. Due to an oversight, that statement did not refer to the section 54 notice. I accept the explanation for that oversight, as set out in Mr Wardell’s statement of 14 April 2008.
31.Mr Wardell first became aware of the mistake on 18 March 2008 (the day after the arbitration) when counsel phoned him and informed him that the Arbitrator had noted the omission. The Arbitrator made her determination on 26 March 2008 in which she found against the employer on the basis that Ms Koseoglu’s statement did not include any reference to service of the section 54 notice and, therefore, there was no evidence that the notice had been served at the Lidcombe address.
Legislation and Authorities
32.The admission of fresh evidence, or additional evidence, on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
33.The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
34.However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
35.In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
Submissions
36.The employer submits that:
(a)the additional evidence was ‘obtained’ prior to the arbitration but was not tendered by reason of inadvertent oversight by the solicitor with the carriage of the matter;
(b)the additional evidence is credible;
(c)there is no doubt there would have been a different outcome, or at least a different determination on the issue of whether the section 54 notice had been sent to the Lidcombe address, had the evidence been tendered at the arbitration. The Arbitrator based her determination on the lack of evidence of service (Statement of Reasons for Decision (‘Reasons’) 26 March 2008, paragraphs 32 and 33);
(d)not to admit the evidence would produce a miscarriage of justice in the sense that the case would have been determined on the basis of a factual error resulting from an inadvertent omission having nothing to do with the real merits of the case itself;
(e)effect must be given to section 354(1) and (3) of the 1998 Act;
(f)the paramount measure of ‘justice’ in the context of proceedings in the Commission is the determination of disputes according to their substantial merits;
(g)no particular prejudice flows to the worker from admitting the new evidence save for the delay occasioned by the appeal. Such delay would probably have occurred in any event as the employer would have (and has) appealed on other grounds, and
(h)no other prejudice could be said to flow to the worker given that he has elected not to put on any evidence in three arbitration hearings and has never positively asserted that the section 54 notice was not delivered to the Lidcombe address.
37.In opposition to the application to rely on additional evidence, Mr De Brito submits:
(a)the employer always carried the burden of proof of service of the section 54 notice and failed to adduce such evidence at any of the arbitrations;
(b)the Arbitrator gave the employer leave to adduce such evidence at the third arbitration via Ms Koseoglu’s statement of 14 March 2008, but that statement was silent as to service of the section 54 notice;
(c)the basis of the present application to rely on additional evidence on appeal is “an inadvertent oversight by the solicitor having the carriage of the matter”. That “oversight” has now occurred at three separate arbitrations. It cannot be contended that an “oversight” existed, particularly in view of the employer’s conduct (through its counsel) of the third arbitration;
(d)Acting Deputy President Handley’s decision (at [34]) effectively provided the employer with an advice on evidence;
(e)the employer was further put on notice that Mr De Brito did not receive the section 54 notice by his solicitor’s letter of 28 February 2008 (see paragraph [27] above);
(f)at the third arbitration, counsel was on notice that there was no evidence of the service of the section 54 notice, but he made no application for an adjournment or for leave to adduce further evidence;
(g)reliance is placed on the decision of Naidu v Able Manufacturing [2007] NSWWCCPD 237 (‘Naidu’) where it was said (at [33]) that “it is only in exceptional circumstances, in order to do justice between the parties, that fresh evidence or additional evidence will be allowed on appeal”;
(h)justice between the parties is not served by allowing one party multiple opportunities to properly present its case, while an innocent party has had compensation cut off from 1 June 2005 and has had to endure three arbitrations and two appeals;
(i)it is significant that the employer’s counsel is not called to give evidence. He conceded that the employer was fully aware of its difficulty, but elected to proceed without making the appropriate application. At T35.6, counsel said, in response to a suggestion by the Arbitrator that it would not be difficult to put on evidence of service, “I’d like to have some further material, but what I’ve got to do is deal with what I have”. Counsel also said at T26.21, “Oh, I’m just doing my job. In due course it will be reviewed doubtless by somebody else”;
(j)these statements by counsel transform the appeal into an abuse of process and such conduct of itself disentitles the employer to leave to adduce further evidence;
(k)the evidence sought to be adduced was available at the time each arbitration was conducted;
(l)the fresh evidence will have no impact of the outcome of the case because the employer has not established the first point at paragraph [34] of Acting Deputy President Handley’s decision, namely, that the insurer had no other address for Mr De Brito. The evidence before Judge O’Toole established an address for Mr De Brito in Portugal and the section 54 notice could have been served in Portugal;
(m)there is no injustice to the employer if the evidence is not admitted as the fresh evidence will not impact on the outcome and the employer rejected the opportunity to adduce fresh evidence at the third arbitration;
(n)Mr De Brito had his compensation terminated on 1 June 2005, and
(o)the new evidence is indirect evidence and has not been tested in cross-examination.
Discussion and Findings
38.A number of factors weigh heavily against the introduction of the additional evidence on appeal. The evidence was available at the time of the each of the arbitrations. It was not called at the first two arbitrations because, it is argued, it was not thought that the question of service at the Lidcombe address was an issue. Considering the history of the proceedings, I do not accept that submission. Whilst the Application did not put in issue the service of the notice, counsel for Mr De Brito submitted at the first arbitration that there was no evidence of service (T7.31 of the first arbitration on 1 February 2007). The matter was not decided on that issue and the Arbitrator made no finding about it save to note that that there was an issue as to whether the notice was “properly served” (first Arbitrator’s decision, 23 February 2007, paragraph eight). The question of whether the notice had been posted to the Lidcombe address was not an issue in the first appeal, before Acting Deputy President Moore. That appeal concerned the adequacy of the Arbitrator’s reasons, whether the fact that Mr De Brito was in receipt of weekly compensation under an award of the Court precluded the issuing of a notice and the termination of payments under section 52A, and whether the fact that a declaration had been made by Judge O’Toole under section 53 precluded the insurer from issuing a section 52A notice. The employer succeeded on all issues and the matter was remitted to a different Arbitrator for re-determination.
39.The second arbitration seems to have proceeded and been decided on the basis that the notice had not been “served properly” (T6.38 of the second arbitration on 19 September 2007), not on the basis that it had not been served at all. So much was implicit in Mr De Brito’s reliance on Hughston. In support of that point, Mr De Brito submitted “a notice under section 52A can’t be given by post in Australia to somebody living overseas in Portugal” (T7.52 of the second arbitration). However, he then submitted, at T22.56:
“And one final point is that the insurer has not established the day of service of the notice. There’s no affidavit of service. At the highest, assuming the letter was posted ‑ and this is only an assumption ‑ on 20 April 2005, under the Interpretation Act, it’s deemed to have been served four days thereafter.”
40.This point was raised again at T23.26 where counsel submitted:
“Yes. But it’s always the insurer’s onus to establish when that notice was served, and there is no evidence at all. In the absence of the service of the notice, the relevant time can’t be established, and if the relevant time can’t be established the section 52A provisions can’t be waived by way of section 54. That’s not sufficient.”
41.Counsel for the employer took no objection to that submission. Without identifying the issues in dispute, the second Arbitrator determined that the letter of 7 June 2004 did no more than authorise the forwarding of cheques to the Lidcombe address (T27.58 – T28.1) and, therefore, Mr De Brito had not been served with the section 54 notice (T28.12).
42.Whilst it is clear that the Commission is not a court (Orellana-Fuentes v Standard Knitting Mills Pty Ltd and anor [2003] NSWCA 146; (2003) 57 NSWLR 282), and that it does not have formal pleadings, the issues at the time this Application was filed (3 October 2006) should have been clearly identified in the Application and/or Reply. It is correct that the Application did not identify “service” at the Lidcombe address as an issue, but, as the matter unfolded at the arbitrations, counsel for Mr De Brito clearly identified it as an issue without objection from the employer.
43.In the second appeal, Mr De Brito’s written submissions again made the point that “the Appellant [employer] has never proved service, even though the issue was raised”. Whilst the employer successfully challenged the second Arbitrator’s decision, Acting Deputy President Handley declined to re-determine the matter because of the inadequacy of the evidence on the issue of service. His opinion as to whether the notice had been validly served depended on certain matters being proved (see [34] of his decision, set out at [12] above). Considering the conduct of the arbitrations, it is clear that, though the initial Application did not raise an issue as to service of the notice, subsequent submissions did and the employer was on notice that it had to prove service of the notice.
44.With that issue in mind, Mr Wardell wrote to Mr De Brito’s solicitor on 21 February 2008 and received the reply of 28 February 2008 (see [27] above). Whilst the reply was most unsatisfactory (in that it did not answer the question asked) it did not make the concession Mr Wardell sought and should have alerted him to the fact that proof was required that the notice had been served at the Lidcombe address.
45.Ultimately, the employer tendered evidence on that issue from Ms Koseoglu but, through inadvertence, her evidence failed to mention service of the section 54 notice. When the Arbitrator identified the omission, counsel made no attempt to rectify the problem by seeking instructions or an adjournment. Given this highly unusual background, the question remains: should I, in the exercise of the discretion in section 352(6), allow the employer to tender additional evidence on appeal?
46.I regard the conduct by counsel for the employer at the third arbitration as highly irregular and unsatisfactory. The submission that “In due course it will be reviewed” seems to have assumed that regardless of the evidentiary problems faced at arbitration, those problems could automatically be overcome in a section 352 appeal. That is not correct. A review is not a hearing de novo (per Clarke JA in Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114 at 124 and Gleeson CJ (Handley JA agreeing) in Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 (‘Litynski’) at 292F). The admission of fresh evidence or additional evidence on review is only by leave and therefore calls for the exercise of a discretion in a manner consistent with the principles discussed in the authorities referred to above. A Presidential member will always be very reluctant to exercise that discretion in favour of a party where the conduct of the arbitration has shown complete contempt for the conciliation and arbitration process.
47.On appeal before me, Mr Wardell essentially agreed that the problem could have been remedied at the arbitration stage, but he was unaware of the problem until the day after the arbitration, when counsel telephoned him. It was then decided to await the Arbitrator’s decision before taking any further steps. The employer should have contacted the Arbitrator before she delivered her decision and made an application to re-open the case rather than waiting for the decision and then filing an appeal.
48.Dealing with the other matters raised by Mr De Brito and adopting the paragraph numbering at [37] above, I find:
(a)it is accepted that where a worker is in receipt of compensation under an award of the Court, the employer carries the onus of proof that the pre-conditions for the termination of payments under section 52A have been satisfied (Goundar v Warren’s Motor Village Ltd t/as Warren Toyota (2002) 24 NSWCCR 593, James Kirby Pty Ltd v Pennell (2000) 19 NSWCCR 339 (‘Pennell’), and Camilleri v Western Sydney Area Health Service (2000) 20 NSWCCR 499 (‘Camilleri’));
(b)it is accepted that Ms Koseoglu’s statement of 14 March 2008 was silent as to the service of the section 54 notice;
(c)the oversight relied on is the failure to include, in Ms Koseoglu’s first statement, evidence of service of the section 54 notice. To the extent there was an oversight at the first two arbitrations, it was not decisive because, in the end, those cases turned on different issues. Mr Wardell has explained the oversight in respect of Ms Koseoglu’s evidence and I accept his explanation;
(d)I agree that Acting Deputy President Handley’s decision effectively provided the employer with an advice on evidence. An attempt was made to obtain the relevant evidence in the first statement from Ms Koseoglu. The fact that that statement was deficient and how it came to be deficient has been explained;
(e)I do not accept that the letter of 28 February 2008 put the employer on notice that Mr De Brito had not received the section 54 notice. As noted above, the letter did not answer the question asked;
(f)I accept that counsel for the employer was on notice that Ms Koseoglu’s statement was deficient. The fact that he did not seek an adjournment is a factor strongly in favour of refusing the application to tender additional evidence on appeal;
(g)consistent with Naidu, and the authorities discussed above, I believe that exceptional circumstances exist in the present matter that justify the admission of additional evidence so as to do justice between the parties;
(h)the employer succeeded in the first two appeals and Mr De Brito has not appealed those decisions to the Court of Appeal. The long delay in the resolution of this matter is unfortunate, but Mr De Brito has partly contributed to the delay because he did not file his Application until 3 October 2006. The relevant chronology is as follows:
(i)the notice was forwarded to the Lidcombe address on 20 April 2005;
(ii)a copy of the notice was apparently sent by the insurer to Mr De Brito’s solicitor by facsimile on 14 July 2005, and
(iii)Mr De Brito’s solicitor first wrote to the insurer on 3 July 2006 (over one year after compensation payments stopped) concerning the termination of weekly compensation payments that took effect on 1 June 2005. In that letter the solicitor did not dispute the service of the notice, but provided evidence of “job seeking” by Mr De Brito and requested that weekly compensation recommence.
(i)I do not regard it as significant that the employer’s counsel was not called to give evidence. I have already commented on his handling of the matter, which is in favour of refusing the application to rely on the additional evidence;
(j)the general conduct of the third arbitration is a relevant factor in the exercise of the discretion and is one that is in favour of refusing to allow the additional evidence to be tendered, and one I have carefully weighed in reaching my decision;
(k)it is agreed that the evidence was available at the time of the arbitration;
(l)I do not agree that the additional evidence would have no impact on the outcome of the case. The insurer clearly did have another address for Mr De Brito, namely, 72 Gallipoli Street, Lidcombe. It did not send the section 54 notice to that address because it was requested to send his compensation cheques to 19 D’arcy Avenue, Lidcombe. The evidence before Judge O’Toole did not establish a postal “address” for Mr De Brito. That evidence was that as at 22 July 2003, Mr De Brito was residing in Portugal and “The address of that place” was Sendim De Vaix and a “further address” was Castel Do Nevia and/or Viana Do Castelo (T1.33-36). I do not accept that the insurer should have sent the section 54 notice to any of those “addresses” in Portugal. The evidence establishes that it sent the notice to the address where it was most likely to come to the attention of Mr De Brito. In these circumstances, the insurer did not have to provide any further evidence that it had no other address for Mr De Brito;
(m)I do not agree that the rejection of the additional evidence will result in no injustice, because it will not impact on the result. Further, the matter cannot be determined on its merits unless the additional evidence is admitted;
(n)it is agreed that Mr De Brito’s compensation was terminated on 1 June 2005, but that fact is not determinative of the current application to adduce additional evidence, and
(o)the additional evidence is direct evidence of the insurer’s mailing system and that no mail was returned unclaimed from the Lidcombe address. That it has not been tested in cross-examination is of no consequence. Cross-examination is not normally allowed in the Commission and Mr De Brito has advanced no reason why it should be allowed in the present application. I reject the application to cross-examine Mr Wardell and Ms Koseoglu. Though it was not pressed at the oral hearing on appeal, I also reject the application to examine the insurer’s file. Mr De Brito made no application to inspect the insurer’s file at the arbitration and has advanced no reason as to why an inspection should be allowed in respect of the application to rely on additional evidence.
49.Taking into account the above matters I have concluded, not without considerable reluctance, that it is in the interests of justice to allow the additional evidence on appeal. In addition to the reasons stated above, my reasons are:
(a)the admission of the additional evidence will enable the matter to be decided on its merits and it is in the interests of justice that it be decided on its merits;
(b)I accept the employer’s submission that the matter would have been the subject of an appeal in any event and, therefore, no additional delay is occasioned by allowing the new evidence;
(c)the additional evidence does not represent a new or different approach to the presentation of the employer’s case compared to that presented at the arbitration (which would not be permissible (see Litynski above)), but is evidence relating to service of the notice at the Lidcombe address, which was thought (wrongly) not to be in issue;
(d)significantly, Mr De Brito has identified no prejudice and, in particular, has not sought to introduce evidence in response to the employer’s additional evidence, and
(e)the employer has agreed to pay Mr De Brito’s costs in the event that the appeal is successful on the basis of the additional evidence.
50.I admit into evidence on appeal, the evidence of Mr Wardell in his statement dated 14 April 2008 and Ms Koseoglu dated 18 April 2008.
NATURE OF A REVIEW
51.The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
52.This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
53.The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
54.I intend to apply the above principles in the matter before me.
SUBMISSIONS, DISCUSSION AND FINDINGS ON REVIEW
55.I have spent considerable time on the “Additional Evidence” issue because of its importance to the outcome of the appeal. In view of my ruling on that issue, it is not necessary to deal with the other grounds of appeal in any detail except to say that I do not accept them. Without the additional evidence tendered on appeal there is no evidence that the section 54 notice was served and I would not draw the inferences the employer urges.
56.The relevant additional evidence in Ms Koseoglu’s statement of 17 April 2008 is in paragraphs six, seven and eight, which read:
“6.I verily believe that, in accordance with the usual practice and procedures of our company, the letter dated 20 April 2005 enclosing the s. 54 Notice was properly addressed, stamped and sent to the Lidcombe address.
7. That letter was never returned to me as undelivered and in subsequent correspondence the worker’s solicitors sought a review of the decision to terminate payments on the basis that the worker had been seeking suitable employment. At no time was it asserted that the letter serving the s. 54 notice had not been delivered to the Lidcombe address.
8.I fully appreciate that the service of a s. 54 notice is essential in order to activate s.52A of the 1987 Act and would not have ceased making weekly payments of compensation pursuant to that section had I been in any doubt as to the letter having been sent and/or delivered.”
57.Dealing with the merits of the appeal, the employer submits:
(a)the evidence from Ms Koseoglu establishes that the insurer sent the section 54 notice in the ordinary course of its business to the Lidcombe address on 20 April 2005;
(b)evidence that a letter was written and signed in the usual course of business and put in the regular place for mailing will usually be admitted to prove that it was mailed (McCormick on Evidence 4th edition (1992) at 350);
(c)the additional evidence (dealing with the mailing of the notice) can more readily be accepted in circumstances where it has never been positively asserted by Mr De Brito that the section 54 notice was not delivered to the Lidcombe address;
(d)to determine if a worker is seeking suitable duties one must look to section 38A of the 1987 Act, which creates a presumption that a worker is not seeking suitable duties unless he complies with the four sub-sections in section 38A(2). It accepts that it carries the overall onus of proof (Pennell and Camilleri), but an evidentiary onus rests on the worker in this case and he has tendered no evidence;
(e)before Judge O’Toole on 22 July 2003, Mr De Brito gave evidence (at T5.45-47 and T6.12) that he had not made any attempt to find any suitable work;
(f)of the four “Declarations” attached to the Application, only one deals with “the relevant period” in section 52A. That document (dated 14 January 2005) states that Mr Manuel De Sa Brito (not disputed to be the Respondent Worker in the present matter):
“requested admission as [a] workman and possible integration in the staff of this company.
Given the nature of this company’s operations, namely PRINTING AND FINISHING, the condition and physical capacity necessary to carry out the duties did not suit Mr Munuel [sic] Brito, as was justified by the medical certificate that was requested.
Therefore, no consideration was given to his candidature.” (emphasis added)
(g)as this job was not suitable for Mr De Brito, it was not an application for suitable employment within the meaning of the legislation.
58.Mr De Brito submits:
(a)the insurer has tendered no evidence that it had no address for Mr De Brito other than the Lidcombe address;
(b)for a person such as Mr De Brito who resides outside NSW, there has to be service on him where he resides, namely, Portugal;
(c)there is no evidence that the insurer complied with section 54(8), which requires that before giving notice under section 54 an insurer must carry out an internal review of the decision to give the notice;
(d)the section 54 notice is flawed because it did not comply with sub-clauses (a), (b), (c), (d), (f) and (j) of clause 15(1) of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’);
(e)sub-sections 38A(2)(a), (b) and (c) cannot operate (because the employer is no longer in existence) and, as a result, section 38A cannot operate. Therefore, the Commission cannot find that Mr De Brito is not seeking suitable duties;
(f)there is no evidence that at the relevant time, Mr De Brito was not suitably employed or not seeking suitable employment, and
(g)if the notice was posted on 20 April 2005, under the Interpretation Act 1987 it is deemed to have been served four days later. Mr De Brito’s payments stopped on 1 June 2005, four days inside the six weeks notice required by section 54(3)(b).
The Legislation
59.As at 20 April 2005, section 54 provided:
“54 Notice required before termination or reduction of payment of weekly compensation
(1) If a worker:
(a) has received weekly payments of compensation for a continuous period of at least 12 weeks, and
(b) has provided the worker’s employer, or the employer’s insurer, with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity,
the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation. Maximum penalty: 50 penalty units.
(2) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that:(a) if no period of notice has been given—is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or
(b) if less than the prescribed period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.
(3) The prescribed period of notice referred to in this section is:
(a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year—2 weeks, or
(b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more—6 weeks.
(4) The notice referred to in this section shall:
(a) be given to the worker personally or by post, and
(b) if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations.
(5) This section is subject to section 58.
(6) This section does not apply to a reduction in weekly compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable (whether under section 38 or otherwise).
(7) The notice referred to in this section is to include information about the possible entitlements of the injured worker under section 38 and the requirements for the worker to obtain those entitlements if:(a) the notice relates to a reduction in the amount of the worker’s weekly compensation as a result of the application of section 40, and
(b) the injured worker is not in receipt of earnings, and
(c) the information has not been supplied to the worker under section 40A.
The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.”
60.Section 52A provides:
“52A Discontinuation of weekly payments for partial incapacity after 2 years
(1) Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as ‘grounds for discontinuation’) applies to the worker at the ‘relevant time’:
(a) the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b) the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40 (2B)),
(c) the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).
(2) The ‘relevant time’ for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.
(3) A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.
(4) The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.
(5) The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.
(6) This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.
(7) A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.
(8) If:(a) a claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or
(b) proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,
the notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.
(9) …”
61.Section 38A provides:
“38A Determination of whether worker seeking suitable employment
(1) Application This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.
Such a notice:
(a) must be given in writing by the insurer or self-insurer concerned, and
(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and
(c) may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and
(d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and
(e) does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.
(4) Notice not applicable when proceedings pending etc If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:
(a) a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and
(b) particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court orders An order of the Commission relating to the weekly payment of compensation:
(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and
(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7) Definitions In this section:
‘employer’ of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
‘refusal’ of an offer or to do a thing includes a failure to accept the offer or to do the thing.
‘rehabilitation training’ means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.
‘suitable employment’ means suitable employment within the meaning of section 43A.”
Service of the Section 54 Notice
62.Section 54(4) requires that the notice referred to in that section shall “be given to the worker personally or by post”. Significantly, the section does not require that the notice be given by post at the worker’s residential address, as is required in certain circumstances in Part 10 Rule 5 of the Uniform Civil Procedure Rules 2005. Acting Deputy President Handley held that service on the Lidcombe address would be effective service of the notice if certain matters were established. That decision has not been appealed or challenged and I intend to apply it in the present appeal. It follows that, for the reasons given by Acting Deputy President Handley in De Brito No 2, I do not accept Mr De Brito’s submission that the notices had to be served on him in Portugal.
63.In the absence of any evidence from Mr De Brito that the notice/s were not received at the Lidcombe address, I accept Ms Koseoglu’s evidence that in accordance with the insurer’s usual practice and procedures, the letter dated 20 April 2005 enclosing the section 54 notice, together with the notices dated 16 August 2004, 17 February 2005, 23 February 2005 and 30 March 2005, were properly addressed, stamped and mailed to the Lidcombe address. I also find, for the reasons given in De Brito No 2, that the relevant notices were served on or “given” to Mr De Brito by post at the Lidcombe address.
64.Whilst the insurer did not tender evidence that it had no other address for Mr De Brito, I do not believe that is of any consequence in the circumstances of the present matter (see [48(l)] above). The address at Gallipoli Street Lidcombe was no longer current and the “addresses” in Portugal were unarguably not postal addresses. The insurer sent the notices to the address Mr De Brito’s solicitor provided as the address at which his weekly compensation payments were to be sent. In the absence of evidence from Mr De Brito to the contrary, I am comfortably satisfied that the Lidcombe address was an address at which mail would be “expected to reach him” (per Fancourt, quoted at [9] above) and that the insurer had no other address that it could or should have used in preference to the Lidcombe address.
Section 52A
65.The findings at [62] – [64] above establish the “relevant time” under section 52A(2) to be 20 April 2005. The authorities establish, and it has not been challenged, that the “relevant time” means a period of time leading up to the giving of the notice (Goundar v Warren’s Motor Village Ltd t/as Warren Toyota (2002) 24 NSWCCR 593 at [42] and Hughston).
66.I do not understand Mr De Brito to dispute that as a result of his injury he remains partially incapacitated. If that is in issue, I find that to be the case on the basis of the finding to that effect by Judge O’Toole in her decision of 4 February 2004, which has not been challenged. There is no up-to-date medical evidence from a New South Wales medical practitioner to suggest that that situation has changed. Mr De Brito’s applications for employment suggest that his incapacity is partial and the medical certificate dated 23 March 2005 from Dr M Pilar Diaz attached to the Application confirms this view.
67.I do not understand Mr De Brito to dispute that as at 20 April 2005, he had been in receipt of weekly compensation in respect of partial incapacity for work for at least 104 weeks and I make that finding.
68.That Mr De Brito has not been suitably employed since 4 February 2004 was conceded at the first arbitration on 1 February 2007 (T1.32), but it seems that counsel took a different approach at the second arbitration (T22.28 of the second arbitration on 19 September 2007). If Mr De Brito had obtained suitable employment he had an obligation to inform the insurer (section 57 of the 1987 Act) and he was advised of that obligation in the notices served at the Lidcombe address on 16 August 2004, 17 February 2005 and 23 February 2005. There is no direct evidence that he did so. Nevertheless, he conducted his case on the basis that section 52A did not apply because he had been seeking suitable employment, not on the basis that he had already obtained suitable employment. Therefore, the only reasonable inference is that Mr De Brito was not suitably employed at the relevant time and I make that finding.
Section 54(8)
69.I do not accept Mr De Brito’s submission that the insurer was required to carry out “an internal review of the decision to give the notice” before giving notice under section 54. The provision requiring an internal review was inserted in section 54 by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 No. 113 and took effect on 1 November 2006 and has no application to the present matter.
Clause 15(1) of the Workers Compensation Regulation 2003
70.Mr De Brito argues that the section 54 notice is flawed because it did not comply with sub-clauses (a), (b), (c), (d) and (j) of clause 15(1) of the 2003 Regulation. I do not accept this submission.
71.As at 20 April 2005, clause 15(1) of the 2003 Regulation provided:
“15 Notice of intention to discontinue or reduce weekly payments
(1) The notice referred to in section 54 of the 1987 Act must:
(a) include a statement of the reason for the decision to discontinue payment, or reduce the amount, of weekly payments of compensation, and
(b) include a statement of the particulars that support the reason for the decision, including the required details for each report (if any) that is relied on to support that reason, and
(c) include a statement advising that the worker may request a copy of a report specified in the statement of particulars from the person paying compensation, and
(d) include a statement advising that the worker may request the person paying the compensation to review the decision and advising of the procedure for making such a request, and
(e) include a statement advising that if the worker disputes the discontinuation or reduction of weekly payments:(i) in the case of a dispute about a coal miner matter, the worker may apply to the District Court for determination of the dispute, or
(ii) in the case of a dispute about a claim (other than a coal miner matter) that is a new claim within the meaning of Chapter 7 of the 1998 Act, the worker may refer the dispute to the Registrar for determination by the Commission, and
(f) include the address and fax number for the registrar of the District Court or the Registrar of the Commission, as appropriate.
(2) If:
(a) the notice referred to in section 54 of the 1987 Act relates to a reduction in the amount of weekly payments of compensation as a result of the application of section 40 of the 1987 Act, and
(b) the worker is not in receipt of earnings (or the compensation is otherwise calculated on the basis of the worker’s ability to earn after the injury, rather than on the worker’s actual earnings after the injury),the notice must also include a statement of how the compensation (to be so reduced) has been calculated.
(3) In this clause:
required details, in relation to a report, means the subject matter of the report, the name and relevant professional qualifications of the person who wrote the report and the date of the report.”
72.The section 54 notice served on Mr De Brito provided:
“NOTICE OF DISCONTINUANCE OF COMPENSATION PAYMENTS
PURSUANT TO SECTION 52A
(Section 54, Workers Compensation Act 1987)
(Clause 15, Workers Compensation (General) Regulation 1995)
TO:Mr Manuel De Brito
OF:c/- 19 D’Arcy Avenue LIDCOMBE NSW 2141
Take Notice that weekly payments of compensation paid to you in respect of an injury sustained by you on 02/09/2000 to your left thigh will be discontinued as from 01/06/2005, being six weeks from the date of this Notice.
Following a review of the available evidence retained on our claim file, weekly payments of compensation made to you are being discontinued pursuant to section 52A of the Workers Compensation Act 1987. The decision to discontinue weekly payments of compensation was made for the following reasons:
(a)you have received weekly payments of compensation in respect of partial incapacity for over the first 104 weeks of your partial incapacity for work; and
(b)you are not suitably employed (within the meaning of section 43A) and are not seeking suitable employment (as determined in accordance with section 38A) as at the time this Notice is given.
In making a decision to discontinue weekly payments of compensation to you, we rely on the following documents:
1.Employers Mutual correspondence sent to you dated 16/08/2004, 23/02/2005 and 30/03/2005.
2.Employers Mutual Injury Management Plan dated 23/02/2005.
You may request us to provide you with a copy of all or any of the documents.
You may also request that we review our decision to discontinue weekly payments of compensation. Such a request should be forwarded in writing, with any supporting documentary evidence to:
Employers Mutual Indemnity (Workers Compensation) Limited
GPO Box 4243
SYDNEY NSW 2001
Attn: Saime Keseoglu
Claim No: 115170
If you dispute the discontinuation of weekly payments of compensation, you may refer the dispute to the Registrar for Determination by the Workers Compensation Commission.
The address and contact details for the Registrar of the Workers Compensation Commission are:
The Registrar
Workers Compensation Commission
Level 21, 1 Oxford Street
DARLINHURST NSW 2010
Telephone: 1300 368 040
Facsimile: 1300 368 018
OR
PO Box 594
DARLINHURST NSW 1300
DATED: 20th April 2005
……………………………
Saime Koseoglu”
73.Sub-clause (a) of clause 15(1) required that the notice include a statement of the reason for the decision to discontinue payments. The notice included such a statement. The reason for the discontinuance of weekly compensation was because of the operation of section 52A of the 1987 Act.
74.Sub-clause (b) of clause 15(1) required that the notice include a statement of particulars that support the reason for the decision. The particulars relied on in the notice included:
(a)Mr De Brito had received weekly payments of compensation in respect of partial incapacity for over the first 104 weeks of his partial incapacity for work, and
(b)he was not suitably employed and not seeking suitable employment as at the time the notice was given.
75.Thus, the notice provided Mr De Brito with a clear statement of particulars in support of the decision. As no medical reports were relied upon, it was not possible or necessary for any further particulars to be provided. To the extent that the notice relied upon the correspondence sent to Mr De Brito on 16 August 2004, 23 February 2005 and 30 March 2005, and the injury management plan dated 23 February 2005, those documents were referred to in the notice.
76.Sub-clause (c) of clause 15(1) required that the notice include a statement advising that the worker may request a copy of a report specified in the statement of particulars. To the extent that the notice relied upon the correspondence sent to Mr De Brito on 16 August 2004, 23 February 2005 and 30 March 2005, and the injury management plan dated 23 February 2005, Mr De Brito was advised that he could request a copy of all or any of those documents.
77.Sub-clause (d) of clause 15(1) required that the notice include a statement advising the worker that he or she may request the person paying the compensation to review the decision and advise of the procedure for making such a request. The notice provided such a statement and provided the insurer’s address, the claim number and the name of the appropriate contact person (Ms Koseoglu).
78.As at April 2005, sub-clause (j) was not part of clause 15(1) of the 2003 Regulation. That sub-clause was only included in an amendment to clause 15(1) that took effect on 1 November 2006. In any event, the covering letter with the notice included a statement to the effect of sub-clause (j). It said, “You may also seek advice from your trade union or a solicitor”.
Section 38A
79.I find that the insurer served notices on Mr De Brito at the Lidcombe address on 16 August 2004, 17 February 2005 and 23 February 2005 notifying him in writing of his obligation to actively seek suitable employment and advising him of the terms of section 52A, and that those notices satisfied the requirements of section 38A(3) of the 1987 Act.
80.Mr De Brito’s submits that section 38A(2) requires sub-sections (a), (b), (c) and (d) to exist cumulatively rather than alternately (T22.12 of the second arbitration on 19 September 2007) and, because (a), (b) and (c) cannot apply, as the employer is no longer in existence, the section cannot apply. No authority is cited in support of this submission. If this submission is correct, the employer responds, then no worker whose employer has gone out of business could be regarded as seeking suitable employment.
81.I do not accept Mr De Brito’s argument. Section 38A requires a worker to seek suitable employment from his employer “or insurer”. It follows from this provision, and from established authority, that the obligation on an employer to provide, and on a worker to seek, suitable employment continues even though the employer may have ceased to carry on business (Palmer v J & A Brown & Abermain Seaham Colliery Ltd [1958] WCR 148). The evidence before Judge O’Toole (at T5.45-47 and T6.12) was that Mr De Brito had not sought suitable employment from any source.
82.The four Declarations (dated 22 January 2004, 15 July 2004, 14 January 2005 and 25 October 2005) attached to the Application, relate to requests for employment made by Mr De Brito on the dates noted. The first states that, given the nature of the company’s operations, printing and finishing, “the condition and physical capacity necessary to carry out the duties did not suit” Mr De Brito. The second said that Mr De Brito did not have appropriate physical capacity and availability to carry out the required duties in the company’s business of processing granite. The third, involving work with a printing and finishing company, said that the “condition and physical capacity necessary to carry out the duties did not suit” Mr De Brito. The fourth (dated after the “relevant time”) is irrelevant because the terms of section 52A(2) mean that a discontinuation of payments under the section has effect even if, after the relevant time, none of the grounds for discontinuation apply to the worker. Nevertheless, it said “given the nature of the operations – CARPENTRY – and the obvious, total condition and physical capacity necessary for the potential undertaking of the functions, it was not possible” to consider Mr De Brito’s “candidature”.
83.The evidence in the Declarations establishes, and I find, that none of the jobs Mr De Brito sought could be regarded as “suitable employment”, having regard to the terms of section 43A of the 1987 Act. Either Mr De Brito did not have the physical capacity for the work (the second application) or the physical capacity to carry out the work “did not suit” Mr De Brito (the first and third applications). Rather than advancing Mr De Brito’s case, the Declarations confirm that at the relevant time (the period of time up to 20 April 2005) Mr De Brito was not seeking “suitable employment”.
84.The employer also submits that section 38A acts as a ‘deeming provision’ in that a worker will be deemed to be not seeking suitable employment if he or she has not done certain things. This submission is supported Judge Burke’s decision in Camilleri where his Honour said at [15]:
“15 Both subsections [section 38A(2) and (5)] require that a worker be ‘regarded’ as or ‘treated’ as not seeking suitable employment in the adumbrated circumstances. Both those words as used, in my view, are synonymous with the more old-fashioned ‘deemed’. The worker will be deemed to be not seeking suitable employment.”
85.His Honour added, at [36]:
“36 The statutory fictions of s 38A(2) and s 38A(5) are not as fictitious as might at first appear. The defects of action upon which the deeming provisions operate are, factually, indicative of the very facts they are deemed to confirm. If, as required by s 38A(2)(d), a worker is not seeking work elsewhere than with the employer at the time of injury that certainly raises a question of whether the particular worker is really seeking suitable work at all and that without resort to any statutory fiction.”
86.Having regard to the above authority and the unequivocal evidence Mr De Brito gave before Judge O’Toole that he was not looking for suitable employment, together with the evidence in the Declarations attached to the Application, I am satisfied that, at relevant time (the period leading up to 20 April 2005), Mr De Brito was not seeking suitable employment within the meaning of section 38A.
Other Matters
87.Having found that the insurer sent the section 54 notice on 20 April 2005, I accept Mr De Brito’s submission, conceded by the employer, that because of the provisions of the Interpretation Act 1987 the six week period in section 54(3) did not expire until 5 June 2005, and that he is entitled to compensation for an additional four days.
CONCLUSION
88.It follows that Mr De Brito is entitled to be paid weekly compensation from 2 June 2005 until 5 June 2005 inclusive, but his application is otherwise unsuccessful because of the provisions of section 52A. In view of this limited success, it is appropriate that the employer pay Mr De Brito’s costs of the previous arbitrations.
89.Whilst the employer has ultimately succeeded in having its position upheld, my decision in its favour is based on the unique factual circumstances of this case. An arbitration is not a practice run or a preliminary round where deficiencies in the evidence can be ignored on the assumption that they can automatically be remedied on appeal. The present case should not be regarded as establishing a precedent whereby a party (either an applicant or a respondent) can refrain from calling relevant evidence at an arbitration in the expectation that the evidence will be admitted on appeal. The parties’ general conduct in, and preparation of, this matter should not be adopted as a model to be followed in matters of this kind in the future.
DECISION
90.For the reasons given in this decision, paragraph one of the Arbitrator’s determination dated 26 March 2008 is revoked and I make the following orders:
“1.The Employer is to pay the Worker weekly compensation at the rate of $150.00 per week from 2 June 2005 until 5 June 2005 inclusive.
1A.Subject to order 1 above, the Worker’s Application for the restoration of weekly compensation payments in respect of his partial incapacity is dismissed, his right to such compensation having been abrogated by operation of section 52A(1)(a) of the Workers Compensation Act 1987.”
91.Paragraphs two, three, four and five of the Arbitrator’s determination of 26 March 2008 are confirmed.
COSTS
92.As the employer has succeeded on the basis of the additional evidence tendered on appeal, the Appellant Employer is to pay the Respondent Worker’s costs of the appeal, certified in the sum of $2,200, plus GST.
Bill Roche
Deputy President7 August 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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