Rasia v University of Sydney (No 3)
[2012] NSWWCCPD 21
•2 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |||||
| CITATION: | Rasia v University of Sydney (No 3) [2012] NSWWCCPD 21 | ||||
| APPELLANT: | Jerome Rasia | ||||
| RESPONDENT: | University of Sydney | ||||
APPLICANT FOR RECONSIDERATION: | Jerome Rasia | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-4821/10 | ||||
| ARBITRATOR DATE OF ARBITRATOR’S DECISION: | Mr Paul Sweeney 8 October 2010 | ||||
| DATE OF APPEAL DECISION: | 2 February 2011 | ||||
| DATE OF FIRST RECONSIDERATION DECISION: | 27 May 2011 | ||||
| DATE OF SECOND RECONSIDERATION DECISION: | 4 April 2012 | ||||
| SUBJECT MATTER OF DECISION: | Reconsideration; s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Self–Represented | |||
| Respondent: | Moray & Agnew Solicitors | ||||
ORDERS MADE ON RECONSIDERATION: | 1. Application for reconsideration is refused. 2. No order as to costs of this reconsideration. | ||||
BACKGROUND
Mr Jerome Rasia, who appears on his own behalf, has filed with the Registry a document which is headed “Request to Amend/Rescind Previous Decision Sec. 329, 350 and 378”. The Registrar accepted that document for registration on 23 December 2011 and it has been treated as an application by Mr Rasia seeking reconsideration of my decision made on 27 May 2011 (Rasia v University of Sydney (No 2) [2011] NSWWCCPD 29).
In that decision an order was made dismissing Mr Rasia’s earlier application seeking reconsideration of my decision made on appeal on 2 February 2011 (Rasia v University of Sydney [2011] NSWWCCPD 5).
The appeal decision concerned Mr Rasia’s challenge to the decision of Arbitrator Sweeney made on 8 October 2010 in proceedings commenced by Mr Rasia against his former employer, the University of Sydney (the respondent). An award entered by the Arbitrator in favour of the respondent was confirmed on that appeal.
The factual background concerning Mr Rasia’s claim for compensation was fully described by the Arbitrator in the course of his reasons for decision and were summarised by me in the course of my decision made on appeal. Those matters need not be repeated.
Mr Rasia’s present application must be treated as one seeking revocation of my order dismissing his earlier application seeking reconsideration. He relies upon additional evidence in support of his suggestions that the Arbitrator had erred in his decision and that the decision on appeal should be reconsidered. The relief sought is not expressly stated; however, it has been made clear that Mr Rasia is seeking justice and, as sought on the appeal, is seeking an order that the Arbitrator’s decision be revoked and that the matter be remitted for hearing afresh before a different Arbitrator.
The respondent has presented written submissions seeking an order that Mr Rasia’s present application for reconsideration be dismissed.
PRELIMINARY MATTER
At [v] of Mr Rasia’s application the following appears:
“The applicant humbly requests the Commission for [sic] the submission be reviewed by another Presidential member”.
It is clear that Mr Rasia’s application is that the matter not be heard by me. There is no formal recusal application made nor are any reasons given for Mr Rasia’s request. The Commission’s power to reconsider a decision, as noted at [11] of my reasons for decision in the first reconsideration application, is expressed in broad terms in s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and the section contains no provision limiting that power. It is clear that a decision need not be reconsidered only by the member of the Commission who made the original order. That fact is well established by past practice both of the Commission and the former Court. However, in the present matter, as with many such matters which come before the Commission, it makes much sense that the maker of the decision which is the subject of the application is assigned such task. That is so in the present matter given the very voluminous documentary evidence relied upon by the parties before the Arbitrator and the lengthy history of the proceedings.
In the circumstances, I conclude that the application should properly be determined by me and that the Registrar’s assignment of the matter for determination by me should not be disturbed.
RECONSIDERATION ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“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.”
The respondent submits that the matter should be heard “on the papers” without the need to conduct a formal conference or hearing. Mr Rasia has made no submission concerning the manner in which the application should be heard.
I am satisfied that I have sufficient information to proceed on the papers and that this is the appropriate course to adopt in dealing with the application.
THE POWER TO RECONSIDER
The power to reconsider a decision is granted to the Commission by the provisions of s 350(3) of the 1998 Act which provides:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
That power has been considered by me between [11] and [13] of my reasons for decision in the first reconsideration application and those matters need not be restated.
ADMISSION OF ADDITIONAL EVIDENCE
The present application is made upon the suggested basis “of new evidence that [Mr Rasia] has come across unexpectedly” (at [ii] of Application dated 23 December 2011). Mr Rasia also refers to that “new evidence” in his “edited and updated submissions” received by the Commission under cover of correspondence dated 21 March 2012. At page one of those submissions and elsewhere the evidence relied upon is identified as follows:
(a) letter from Professor Götz, 19 March 2012;
(b) annual leave approval by Professor Hickie, 1 March 2006;
(c) email from Mr Rasia to Professor Hickie, with subject line: budget deficits, 10 November 2005;
(d) email exchange between Mr Rasia, Professor Hickie and Edith Pitman, with subject line: Account, 14, 25 and 26 July 2006;
(e) email from Mr Rasia to Professor Hickie, with subject line: change to the working days at BMRI, 24 February 2006;
(f) email exchange between Mr Rasia and Yamini Sindoba Sandiran, with subject line: projects set up – CCRE and NYMHF, 2 and15 May 2006;
(g) email from Mr Rasia to Professor Bennett, with subject line: annual report, Brain and Mind Research Institute, 31 March 2006;
(h) letter from Ms Harrison, student co-ordinator, 15 August 2005;
(i) letter from Ms Cumarasingam, 18 October 2011, and
(j) letter from Dr Chapanis, clinical psychologist, 7 November 2011.
It is asserted by Mr Rasia in his second edited submissions on this reconsideration, that the “new evidence” relied upon was:
“not available [to him] previously. [Mr Rasia] did not have access to them and these were found by coincidence. [Mr Rasia] could not function as a normal thinking person, as he is still suffering from sickness. [Mr Rasia] believes the evidence would change the view of the Presidential member, as they further substantiate that the statements by witnesses made in 2010 were not correct but were fabricated.”
The question as to whether the documents should be admitted must be addressed in accordance with those principles and authorities which I have attempted to summarise in the first reconsideration determination (at [16]) and need not be repeated here.
The letter from Ms Harrison dated 15 August 2005, the letter from Ms Cumarasingam dated 18 October 2011 and the letter from Professor Götz dated 19 March 2012 may be described as character references. Whilst Mr Rasia persists in his challenge of the Arbitrator’s findings as to credit, I consider that those documents can have no relevance to the present application and should not be admitted into evidence.
The annual leave approval signed by Professor Hickie relates to annual leave in 2006. That document cannot be characterised as “fresh evidence”. No explanation as to why it was not available at the time of the arbitral hearing is given other than the generalised statements noted above. An inference, it is said, may be drawn that Professor Hickie was Mr Rasia’s supervisor and “managed” him. I conclude that the document, not being fresh evidence and not being relevant to any issue concerning the reconsideration, should not be admitted into evidence.
The letter from Dr Chapanis dated 7 November 2011 is addressed “To whom it may concern”. That document confirms that Dr Chapanis continues to treat Mr Rasia on a regular basis. The only other matters addressed in that document are the work history of Mr Rasia, suggested harassment and humiliation of Mr Rasia by Mr Dodson, causation of his psychological injury and suggested flaws in the performance review which features prominently in evidence. Putting aside the matters of causation and diagnosis, none of those other matters addressed are within Dr Chapanis’s field of expertise. In the first reconsideration determination I had occasion to consider Dr Chapanis’s earlier evidence and the relevance of the decision of Gleeson CJ in HG v the Queen [1999] HCA 2; 197 CLR 414 (between [31] and [39]) to the admission of that evidentiary material. I found then as follows (at [38]):
“Much of what is stated by Dr Chapanis appears to be expressed as an advocate, a role expressly eschewed by Dr Canaris (see report dated 22 June 2009 at page 4), and is unhelpful. Many of the conclusions stated concern disputed facts which required adjudication in accordance with law by the Arbitrator. His findings have been confirmed on appeal.”
I conclude that the statements of Dr Chapanis in the report now relied upon fall into the same category as the earlier material. In the circumstances I conclude that nothing found in that report would in any way provide a basis for reconsideration of my earlier determination or my conclusions concerning the correctness of the Arbitrator’s decision. I reject the tender of that report.
The balance of the documents are each dated 2005 or 2006. No meaningful explanation for Mr Rasia’s failure to tender those documents before the Arbitrator is given. Those documents, again, have no relevance to any matter which may be raised concerning the present reconsideration application and I reject their tender.
SUBMISSIONS
I have had regard to the “edited” submissions which were accompanied by Mr Rasia’s correspondence dated 21 March 2012. It must be said that nothing addressed by Mr Rasia appears to raise any issue as to the correctness or otherwise of the reasoning expressed for the decision made concerning the earlier application for reconsideration.
Emphasis throughout the 13 page document is placed upon suggested error on the part of the Arbitrator and the manner of his adjudication of the dispute. Much attention is given to the evidence before the Arbitrator and little, if any, attention is directed to the evidence which Mr Rasia has unsuccessfully attempted to tender on this application. The submissions appear to treat the present proceedings as an appeal against the Arbitrator’s findings. Such arguments are not appropriate in the context of an application brought pursuant to s 350(3).
The appeal in this matter was conducted by way of review as provided by s 352(5) as it stood before amendment by the Workers Compensation Legislation Amendment Act 2010. In considering the submissions put on the present application I have had regard to the recent decision of Bathurst CJ (with whom McColl JA agreed) in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 which (at [50]) concerns the breadth of a Presidential member’s power of “review” in respect of an Arbitrator’s findings based wholly or in part on credit. Nothing stated by the majority gives rise to a need to reconsider my earlier conclusions.
There is no evidentiary material or submission before the Commission upon which any reconsideration of the first reconsideration application may be founded. In those circumstances the application should be refused.
DECISION
The application for reconsideration brought pursuant to s 350(3) of the 1998 Act with respect to the Commission’s decision in Rasia v University of Sydney (No 2) [2011] NSWWCCPD 29 is refused. The rulings and orders in that matter are confirmed and the present application is dismissed.
COSTS
The respondent, relying upon the provisions of s 341(4) of the 1998 Act, has submitted that the present application is frivolous, vexatious and made without proper justification and seeks a costs order against Mr Rasia.
I am not satisfied that the conduct of this application is frivolous, vexatious or made without proper justification. It is apparent that Mr Rasia has to some extent misconceived his rights under the Workers Compensation legislation. I so conclude having regard to his correspondence to the Registrar dated 21 March 2012 where it is stated:
“I am submitting here an updated and edited document that presents the key facts for consideration, referring to my unfair dismissal from the Administrative staff of the University of Sydney”.
In the circumstances I decline to make an order as to costs as sought by the respondent. I make no order as to costs.
Kevin O’Grady
Deputy President 4 April 2012
I, CATHRINE LOREN, 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.
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