Samuel v Sebel Furniture Limited
[2006] NSWWCCPD 141
•7 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: Samuel v Sebel Furniture Limited (2006) 5 DDCR 482
CITATION:Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141
APPELLANT: Emad Samuel
RESPONDENT: Sebel Furniture Limited
INSURER:NRMA Workers Compensation (NSW) (No 2) Pty Ltd
FILE NUMBERS: WCC2378-05 & WCC5282-02
DATE OF ARBITRATOR’S DECISION: 29 June 2005
DATE OF APPEAL DECISION: 7 July 2006
SUBJECT MATTER OF DECISION: Reconsideration; section 350(3) Workplace Injury Management and Workers Compensation Act 1998; Anshun Estoppel
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Watson Stafford
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: The decision of the Arbitrator of 29 June 2005 is revoked and the following orders are made in its place:
“1. Pursuant to reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 the order made in Certificate of Determination dated 29 November 2003 is rescinded.
2. The Commission finds that on 7 January 2002 the Appellant Worker suffered injury to his lower abdomen in the nature of bilateral hernias in the course of his employment with the Respondent Employer and to which his employment was a substantial contributing factor.
3. The matter is remitted to a different Arbitrator to determine the Appellant Worker’s entitlement to compensation in accordance with this decision.
4.The evidence in matter 5285 of 2002 is to be evidence in matter 2378 of 2005.
5.The Respondent Employer is to pay the Appellant Worker’s costs.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 26 July 2005 Emad Samuel (‘the Appellant Worker/Mr Samuel’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 June 2005.
The Respondent to the Appeal is Sebel Furniture Limited (‘the Respondent Employer/Sebel’).
Mr Samuel alleges that on 7 January 2002 he suffered a strain injury to his left abdomen and groin whilst lifting a table and other objects in the course of his employment with Sebel. He attended that morning at Sebel’s first aid office complaining of groin pain and later that day at Bankstown Hospital but did not receive any treatment. He then attended Fairfield Hospital where he was admitted and came under the care of Dr Durmush, consultant surgeon. He remained in Fairfield Hospital from 7 January 2002 until 11 January 2002. The hospital notes record that Mr Samuel presented with a one day history of “LIF pain + lump in Lt groin”. The diagnosis was balanitis (inflammation of the glans penis) with left inguinal lymphadenitis. He was treated with bed rest and antibiotics. His groin pain continued and his attempted return to work late January 2002 was unsuccessful.
On 16 December 2002 Mr Samuel filed an Application to Resolve a Dispute (Application 5282-02) (‘the First Application’) in the Commission seeking weekly compensation and medical expenses. That application was opposed by Sebel. The issue between the parties was whether the Appellant Worker had suffered a hernia or any other work related injury on 7 January 2002 in the course of his employment with Sebel. That issue was referred to an Approved Medical Specialist (‘AMS’), Dr Endrey-Walder, pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The AMS examined Mr Samuel on 9 October 2003 and prepared his Medical Assessment Certificate (‘MAC’) on 30 October 2003. In the MAC Dr Endrey-Walder concluded that Mr Samuel did not have a hernia or any other work related injury or condition.
After receiving the MAC a teleconference was held between the parties on 18 November 2003 and the following order was made in a Certificate of Determination dated 24 November 2003 (‘the Consent Award’):
“1. The parties having agreed to be bound by the opinion of the AMS and Dr Endrey-Walder being of the opinion that Mr Samuel’s condition was not work related, an award for the Respondent is made.”
The Appellant Worker’s condition continued to trouble him and he sought further treatment from Dr Sanki on 29 January 2004 and underwent surgery at the hands of Dr Sanki on 6 May 2004. At surgery Mr Samuel was found to have bilateral direct inguinal hernia and a mesh repair was performed on each side. Dr Sanki prepared a report on 8 October 2004 setting out his history and findings at surgery.
A further Application to Resolve a Dispute (matter 2378-05) (‘the Second Application’) was filed in the Commission on 17 February 2005 seeking the same relief as the First Application based on the same alleged injury on 7 January 2002. In its Reply to Application to Resolve a Dispute the Respondent Employer noted that the dispute had already been determined in its favour and Mr Samuel was estopped from claiming compensation in respect of the 7 January 2002 injury. It also put injury, incapacity, nexus and the need for medical treatment in issue.
By letter dated 16 May 2005 addressed to the Commission the Appellant Worker’s solicitors requested the Commission “to reconsider matter number 5282/02 in order to determine whether or not to rescind, alter or amend its previous decision/determination of 24 November 2002 [sic]”. The request was made pursuant to section 350 of the 1998 Act and was supported by submissions from S Hickey dated 12 May 2005, a statement from Mr Samuel dated 10 February 2005 and a copy of Dr Sanki’s report of 8 October 2004.
The parties agreed to the matter being determined on the papers without a conciliation conference or Arbitration hearing. To that end both parties made written submissions and those submissions are before me on appeal. Counsel for the Appellant Worker submitted that section 350 of the 1998 Act allows the Commission to “rescind the previous orders made including the determination, and refer the worker’s matter to an approved medical specialist for further assessment pursuant to section 329 of the said Act”.
The Arbitrator found in favour of the Respondent Employer and Mr Samuel now seeks leave to appeal the decision of 29 June 2005 and the Consent Award made on 24 November 2003.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 June 2005 records the Arbitrator’s orders as follows:
“1.The Certificate of Determination in Matter 5282-2002 and dated 24 November 2003 is confirmed.
2.Award for the Respondent with respect to the Applicant’s claim for weekly payments of compensation.
3.Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
4.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)not giving sufficient weight to the findings at surgery made by Dr Sanki;
(b)not giving sufficient weight to the findings in the histopathology report prepared by Dr Bowen on 7 May 2004;
(c)not giving sufficient weight to findings of Dr Sanki and Dr Bowen having regard to the Appellant Worker’s consistent complaints of groin pain from January 2002 and having regard to the medical evidence and investigations available in 2002 and 2003 which pointed to the presence of a hernia;
(d)preferring the opinion of the AMS;
(e)preferring the opinion of Dr McKessar;
(f)rejecting the Second Application because it was filed nine months after the surgery performed by Dr Sanki;
(g)misdirecting himself that section 327(7) of the 1998 Act prohibited reconsideration under section 350 of the 1998 Act, and
(h)finding that the grounds for reconsideration under section 350 of the 1998 Act had not been made out.
ORDERS SOUGHT BY THE APPELLANT
The Appellant Worker seeks the following orders:
1.that the determination by the Commission on 29 June 2005 in matter 2378 of 2005 be set aside;
2.that the determination of the Commission on 24 November 2003 in matter 5285 of 2002 be set aside;
3.that matter 2378 of 2005 be consolidated with matter 5285 of 2002 for the purpose of review and or appeal of the decisions in those respective proceedings;
4.that for the purposes of the review of the decision in matter 5258 of 2002 the Appellant Worker be granted leave to admit into evidence fresh evidence being evidence that was not available or able to be obtained by the Appellant Worker before the determination in matter 5285 of 2002;
5.that leave be granted to the Appellant Worker to extend the time for filing of the application for review and/or appeal of the determination in matter 5285 of 2002;
6.that in respect of the whole of the proceedings an award be entered for the Appellant Worker in relation to findings of injury and the relationship of the Appellant Worker’s work as being a substantial contributing factor in the causation of such injury;
7.that consequential upon the granting of order six the matter be referred for a further conciliation and arbitration before an Arbitrator for the assessment of compensation entitlements arising from the work related injury;
8.that in the alternative to the granting of orders six and seven that the consolidated proceedings be referred for a further conciliation and arbitration hearing before an Arbitrator on all issues;
9.that should the Commission see fit the Appellant Worker be referred for further medical assessment;
10.such directions as to the further conduct of the matter as the Commission deems fit, and
11.that the Respondent Employer pay the Appellant Worker’s costs.
It is not necessary or appropriate that the First Application be consolidated with the Second Application. The evidence in both matters was before the Arbitrator and is before me and will be considered on appeal. That being the case it is not necessary for the Appellant Worker to be given leave to rely on ‘fresh evidence’ on appeal.
It is not necessary or appropriate to seek to extend the time to appeal from the orders made in the First Application. The Appellant Worker’s entitlement to compensation is squarely raised in the Second Application and in this appeal. For that issue to be determined it will be necessary to decide the legal effect of the order made by the Commission on 24 November 2003. There may well be cases where it will be appropriate to appeal a decision under section 352 of the 1998 Act on the basis of fresh evidence in lieu of seeking reconsideration under section 350 of the 1998 Act. Deciding which course to adopt will depend on the circumstances in each case. In the present matter the Appellant Worker’s legal advisers have chosen to seek reconsideration under section 350 by issuing a new Application. Therefore, the issue of the Appellant Worker’s entitlement to compensation and the legal effect of the orders made in the First Application are now before the Commission and will be determined on appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the applications meet the requirements of section 352 of the 1998 Act.
The First Application
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The First Application was determined on 24 November 2003 and the appeal was lodged on 26 July 2005, 18 months outside the 28 day time limit in section 352(4) of the 1998 Act.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) provides that:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In determining whether time to appeal should be extended in the First Application it is relevant to consider the role of a Presidential Member on appeal. In Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 it was noted that:
“The ‘review’ on appeal, before the Commission, is by way of rehearing, where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesch v Maunz (2000) 203 CLR 172).”
There has been no legal, factual or discretionary error by the Arbitrator in the First Application. She was asked to make an order by consent and she did that. An appeal under section 352 is therefore not the appropriate avenue through which to seek redress.
In addition, the Second Application raised all relevant issues between the parties. The evidence from the First Application was before the Arbitrator who heard and determined the Second Application. Therefore the appropriate way to now proceed is by way of an appeal against the Arbitrator’s decision in the Second Application.
Considering the above matters, I am not satisfied there will be a demonstrable and substantial injustice to the Appellant Worker if time to appeal is not extended in the First Application. I therefore refuse to extend time to appeal the Consent Award of 24 November 2003.
The Second Application
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
The Appellant Worker seeks to introduce ‘fresh evidence’ in the appeal in the First Application. As leave to appeal in that application has been refused it is not strictly necessary to deal with this application. However, it should by noted that a ‘review’ under section 352 of the 1998 Act is not intended to be a ‘full second hearing’ (McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimbel II” [2003] NSWWCCPD 22).
If the application to introduce ‘fresh evidence’ on appeal from the First Application was allowed it would amount to embarking on a full second hearing. The history in these matters shows that a second hearing was conducted in the Second Application. The appropriate course is to then appeal from the orders made in the Second Application. This is what has happened. Adopting this course has allowed all issues of liability to be argued on appeal. This involves no prejudice to the Respondent Employer who has proceeded on the basis that “the appeal relate(s) to both proceedings” (Respondent Employer submissions paragraph two).
Therefore, the application to admit ‘fresh evidence’ on appeal is refused.
SUBMISSIONS AND FINDINGS
Review Under Section 352 of the 1998 Act
The Appellant Worker has made submissions on the nature of a ‘review’ “contemplated by the Compensation Court Act 1984, section 36(1)” (‘the Court Act’) (Appellant Worker’s submissions paragraph two). The Court Act was repealed on 1 January 2004. The current appeal is under section 352 of the 1998 Act. The meaning of a ‘review’ under section 352 has been the subject of several cases in the Commission over the last few years. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 (‘Sandford’) the Commission held at [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “... some legal, factual or discretionary error” (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
A Presidential Member’s powers on a ‘review’ are set out in section 352(7) which provides:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The Appellant Worker has referred to Boston Clothing Pty Ltd v Margaronis (1992) 27 NSWLR 580 where the Court of Appeal considered the nature of a ‘review’ in the context of the Court Act. In that case Kirby P confirmed the view his Honour had expressed in Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 at 205 that on ‘review’ an aggrieved party must “provide some proper basis for disturbing the decision under challenge”. In a later case of Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114 at 124 Justice Clarke held that:
“In that context, I would understand the word ‘review’ to involve an examination or reconsideration of the decision made by the court officer followed by a consequential order of the Court. If the judge who hears the review considers that the decision is correct then no doubt the order will be one of confirmation. If, on the other hand, the decision is fundamentally flawed or is marred by one or more errors, the judge would, according to the circumstances of the case, either vary or discharge the order made and make an appropriate order in place thereof.
The section does not, however, call for a hearing de novo and therefore there is no requirement for the judge to start afresh and rehear the case completely.”
I do not understand the decision of Clarke JA to be significantly different in emphasis or effect from the Commission’s decision in Sandford. To invoke the powers in section 352(7) the Appellant Worker must show that the Arbitrator has made an error of fact, law or discretion. In a review under the Court Act it was necessary to show that the decision was fundamentally flawed or was marred by one or more errors.
In the circumstances of this case I intend to apply the principles set out in Sandford.
The Power to Reconsider Under Section 350(3) of the 1998 Act
Whilst the argument presented before the Arbitrator was that under section 350(3) of the 1998 Act the Commission may rescind, alter or amend its previous decisions (Appellant Worker’s submissions 12 May 2005), no submissions on appeal have been directed to the circumstances in which such a ‘reconsideration’ should be conducted. The applicability of section 350(3) is dealt with by the Respondent Employer in its submissions and I believe that the issue is properly before me.
Section 350 provides:
“350 Decisions of Commission
(1)Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(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.”
The wording of subsections (2) and (3) of section 350 are almost identical to the wording of subsections (3) and (4) of section 17 the Court Act which provided:
“(3) Subject to Part 4 of this Act, a decision or proceeding of the Court shall not:
(a) be vitiated by reason of any informality or want of form; or
(b) be liable to be challenged, appealed against, reviewed, quashed or called in question by any court.
(4) Nothing in subsection (3) shall prevent the Court from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court, all of which the Court shall have the authority to do.”
The predecessor to section 17 of the Court Act was section 36 of the Workers Compensation Act 1926 (‘the 1926 Act’). That section provided in subsection (2):
“Nothing in subsection (1) shall prevent the Commission from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision or order previously made, all of which the Commission shall have authority to do.”
I can see no relevant difference in the wording of section 350(3) of the 1998 Act and the wording of section 17(4) of the Court Act or section 36 of the 1926 Act. Each section provided power to the respective tribunal to reconsider previous decisions or orders.
Sections 17 of the Court Act, section 36 of the 1926 Act and similar provisions of other Acts have been the subject of judicial consideration in numerous cases. In Hilliger v Hilliger (1952) 52 SR (NSW) 105 (‘Hilliger’) Street CJ considered a similar provision of the Landlord and Tenant (Amendment) Act 1948. At page 108 his Honour said:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.” (emphasis added)
The above passage from Hilliger was applied by the Court of Appeal in Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 (‘Hardaker’), a case involving section 36 of the 1926 Act. In Hardaker the court noted that section 36 conferred a discretion on the Commission which was expressed in “extremely wide terms” (at 248). However, the discretion has been held not to be so wide as to allow reconsideration of an award because counsel failed to refer to relevant authorities (Selfe v A Cook & Sons Pty Ltd [1965] WCR 88) or because of mistake or inadvertence by a party’s solicitor (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 (‘Hurst’)).
The factors relevant to the exercise of the discretion in section 36 of the 1926 Act were considered by the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413 (‘Schipp’). The court noted the following factors were relevant in deciding whether the discretion should be exercised in favour of the moving party:
1.delay;
2.whether the worker had a right of appeal from the first decision but failed to exercise that right;
3.waiver or estoppel issues, and
4.rescinding an earlier award will allow a worker to bring fresh proceedings.
In considering section 17(4) of the Court Act Judge O’Meally noted in Galea v Ralph Symonds Oty Ltd (1989) 5 NSWCCR 192 (‘Galea’) at 201 that:
“There is a distinction between fresh evidence and more evidence. The evidence of Dr Ellis is that degenerative changes have progressed with the effluxion of time. His initial opinion was that they were aggravated by her work; later that they were caused by it. Degenerative changes inevitably and inexorably progress and Dr Ellis’ opinion cannot accurately be described as fresh evidence; it is more evidence.
Even if it could properly be said that fresh evidence were now available the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing before Williams J and that if believed would be at least a determining factor in the outcome of the case.”
In Galea the court was asked to reconsider an earlier award on the grounds of ‘fresh evidence’ about the nature and conditions of the worker’s employment. The evidence was available at the time of the first hearing and could have been placed before the judge who heard the original claim. O’Meally J considered, consistent with Hardaker, that the power to reconsider an earlier award may extend to considering whether an error of fact or law has been made and to making a new or altered award as the circumstances appear to require. Given the powers of ‘review’ vested in the Commission by section 352 of the 1998 Act, a power not provided in the 1926 Act, I doubt that the power to reconsider an award under section 350 of the 1998 Act extends to correcting errors of fact or law. Such errors can and should be corrected by an appeal under section 352 where the review process allows for errors of fact, law or discretion to be corrected.
In Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642 (‘Maksoudian’) Judge Bishop considered a reconsideration application under section 17(4) of the Court Act. His Honour stated at 645:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
In Maksoudian the worker failed in his application for a reconsideration because there was an unexplained delay of over three years in bringing the application before the court and, more importantly, the new evidence would not if it had been put before the court at the original hearing have been likely to materially affect the outcome.
It is also relevant to consider the NSW Court of Appeal decision in CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 (‘Bouwhuis’) where the court considered the provisions of section 13(6) of the Dust Diseases Tribunal Act 1998 (‘the Dust Diseases Act’). That subsection provides:
“Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made.”
In that case Justice Kirby noted the terms of section 36 of the 1926 Act and the “like terms” of section 17(4) of the Court Act and, after referring to Hardaker and Hilliger and other cases where section 36 had been considered and applied, said at 235:
“In the present Act, there are particular reasons why an even more stringent approach by the Tribunal to an application for reconsideration is appropriate. The section appears in a statute which establishes a Tribunal with a particular jurisdiction for a specially vulnerable group of litigants. So much appears on the face of the Act when regard is had to the nature of some of the prescribed dust diseases mentioned in section 3 and Schedule 1. The urgency of disposing of many cases involving dust diseases is clearly one of the reasons for removing such case from the ordinary courts and placing them in the jurisdiction of a special tribunal.”
At page 236 his Honour noted that the Dust Diseases Tribunal does not award continuing compensation but “provides a lump sum of damages”. As a result “the power to reconsider and to deal with a matter contained in such a judgment, as provided by section 13(6), is therefore wholly exceptional”.
In the same case Justice Priestly said at 247:
“Section 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context subsection (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal’s jurisdiction needs to de dealt with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance.
On this approach it would be very rare for the power under subsection 6 to be properly exercisable by the Tribunal.”
The Court of Appeal in Bouwhuis was clearly distinguishing the terms and context of section 13(6) of the Dust Diseases Act from section 17(4) of the Court Act. In my view nothing in Bouwhuis should be taken as requiring a similarly restrictive approach to section 350(3) of the 1998 Act.
In considering the scope and operation of section 350(3) I think it is appropriate to keep in mind the words of Justice Mahoney in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, at 18:
“Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities.”
The above passage is in my view consistent with subsections (1), (2) and (3) of section 354 of the 1998 Act which provide:
“354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
It is also consistent with objectives of the Commission which include the objective to provide a “fair and cost effective system for the resolution of disputes” (section 367(1)(a) of the 1998)
Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).
Given the above principles the question remains: should the power to reconsider the decision of 24 November 2003 be exercised in the present case? In my opinion that question in the particular circumstances of this case is ‘yes’. The Appellant Worker has consistently complained of groin pain since 7 January 2002 and has sought treatment from various appropriate experts. Faced with an unfavourable MAC in 2003 he agreed to be bound by the terms of that MAC with the consequential order that was made on 24 November 2003. Since then he continued to experience significant groin pain and sought further medical advice which culminated in surgery being performed on 6 May 2004. That surgery revealed certain pathology which is discussed in detail below. Once a report was obtained from the treating surgeon a further application was filed in the Commission within a reasonable time. No question of prejudice has been raised by the Respondent Employer. I can see no reason of public policy that would in these circumstances prevent the Commission from conducting a reconsideration of the 24 November 2003 award under section 350(3) of the 1998 Act. The Respondent Employer’s main opposition to the reconsideration is based on estoppel and this issue is considered in detail below.
Medical Evidence
The Appellant Worker felt pain in his groin whilst engaging in heavy lifting at work for the Respondent Employer on 7 January 2002. As a result he was admitted to Fairfield Hospital where he came under the care of Dr Durmush, consultant surgeon. In his report of 4 June 2002 Dr Durmush noted Mr Samuel’s history of lifting at work and the development of left groin pain as a result. The initial diagnosis was of balanitis and possible lymphadenitis. He was treated with bed rest ant intravenous antibiotics. His balanitis settled and he was discharged from hospital after four days. The groin pain did not resolve. Dr Durmush noted the painful area to be “lateral to the inguinal hernial orifices and was spreading to his thigh which was associated with paraesthesia” (report 4 June 2002). His clinical diagnosis was “entrapped lateral femoral cutaneous nerve”. An ultrasound was performed on 8 January 2002 which showed “small lymph nodes” but no further pathology. A herniogram was performed on 11 March 2002 which showed no hernia or other abnormality. Dr Durmush prescribed celebrex and endep to help with the entrapped nerve problem. Dr Durmush’s conclusion was that as a result of his injury at work the Appellant Worker suffered from an entrapped femoral cutaneous nerve and a small muscular tear in the left groin. He thought Mr Samuel was fit for work. Dr Durmush added that:
“The patient is likely to develop further weakness in the left groin which might manifest itself as a hernia in the future. He may then require surgical treatment but at this stage there is no such evidence.”
The Appellant Worker’s general practitioner is Dr Atto who he saw on 21 January 2002. On examination the doctor found a “slight impulse in both inguinal canal right more than left”. His opinion was “? Inguinal lymphadenitis - ? muscular strain”. He records that Mr Samuel returned to work in late January 2002 but in the three days up to 1 February 2002 his pain became worse, radiating to the left hip and upper medial thigh. On examination on this occasion he found tenderness over the left inguinal area, left hip and left upper medial thigh adductors. His opinion was “muscular strain”. On 19 March 2002 Mr Samuel said that his left inguinal pain was worse, especially if he had intercourse which caused swelling of the foreskin. It should be noted that other evidence states that Mr Samuel was circumcised when he was four years old. On this occasion the examination revealed “tenderness over the left inguinal area” and “mild oedema of foreskin with tenderness”. The doctor’s opinion was “muscular strain with ? nerve and lymphatic entrapment”. On 23 March 2002 Mr Samuel’s inguinal pain was worse and was radiating to the lower abdomen and left upper thigh with swelling of the foreskin.
Dr Atto referred Mr Samuel to Dr Gabrael who saw him on 15 April 2002. On examination the doctor found inflammation and oedema of the penile skin on the left side and tenderness over the site of the genitofemoral nerve area. The doctor arranged for a repeat ultrasound on 17 April 2002 which showed slight bulging of the muscular structures medially in the inguinal region but no “frank hernia”. The bulging area was infiltrated with depo medrol which gave great relief of Mr Samuel’s pain.
In a further report dated 2 September 2003 Dr Durmush states that he continued to see Mr Samuel every few months. At each examination Mr Samuel complained of pain in the left groin which was worse with straining and lifting.
A further ultrasound was performed on 4 February 2003 which stated:
“No focal abnormality was seen on the right side. On the left side an indirect hernia was demonstrated. The hernial sac containing fat only. No bowel could be identified in the hernial sac.”
A CT scan was performed on 5 February 2003 which reads:
“There is only slight distortion of the soft tissue in the left groin region on Valsalva [straining while holding ones breath] and this [sic] considered to be due to the hernial sac containing only fat. No bowel could be identified in the left groin region. It appears clinical evaluation in conjunction with the ultrasound finding would help assessment. No other abnormality is seen.”
After reviewing the above investigations Dr Durmush stated at page one of his 2 September 2003 report:
“…my diagnosis is now, as we suspected previously, that the patient has a left inguinal hernia and this is due to heavy lifting the patient was doing during his work as a process worker and machine operator which he performed 5 days per week from 7.00am until 3.00pm. I am quite positive that his injury and disability in his left groin is directly related to the work described by Mr Samuel.
I suggested the hernia should be surgically repaired, ideally laparoscopically.”
Further in the same report Dr Durmush said:
“…the patient has a symptomatic left inguinal hernia which was also proven by the ultrasound examination as well as CT scan and this is going to require repair. At his young age it is not unusual to see muscular tears in the groin which are basically secondary to constant excessive increase in pressure in the abdomen which happens during heavy lifting at work and sporting activities. This might also happen in weight lifters. Since the patient is not a sporting person, I would suggest that the weakness and muscular tear in the left groin happened gradually and manifests itself in months, hence this could not be detected as mentioned in my previous report, initially. Now the patient has a full blown left inguinal hernia and his groin injury is going to require meshplasty. Hence the patient should be given approval by the insurance company to go ahead with surgery.”
The medical case for the Respondent Employer was that Mr Samuel never had a hernia. Dr Hagan examined Mr Samuel on 4 March 2002 but was unable to provide a diagnosis but he felt that the history he received was consistent with “some infection having arisen in the penis with inflamed lymph nodes in the left groin and this would be constitutional and not related to his employment” (report 4 March 2002 page three). On examination he found no hernia. After examining the reports from Dr Atto and the herniogram Dr Hagan provided a further report on 17 July 2002. His opinion was that Mr Samuel’s symptoms in his left groin were secondary to a foreskin infection and were unrelated to his employment. He added that any left inguinal strain had resolved.
Dr McKessar examined Mr Samuel on 18 June 2003 and reported on 25 June 2003. He took a history of Mr Samuel’s symptoms fluctuating over time with four or five recurrences of left groin swelling between January 2002 and mid 2003. In his opinion the February 2003 ultrasound and CT scan did not show a definite hernia but he referred them to Dr Korber for a further opinion. On examination he found no hernia. He concluded that Mr Samuel’s problems in January 2003 were due to an inflammatory process unrelated to work.
On 30 September 2003 Dr McKessar prepared a report responding to Dr Durmush’s report of 2 September 2003. Nothing in that report changed his opinion. However, Dr McKessar makes the comment that:
“…it would certainly be appropriate that if Dr Durmush believes a hernia is present for him to admit the patient under his care at Fairfield Hospital where he is clearly a visiting medical officer and if needs be, this surgery which he proposes, could be performed for the patient as a hospital patient.”
I interpret the above comment to mean that Dr McKessar felt that the proposed surgery was “appropriate” if Dr Durmush believed a hernia to be present.
After reviewing the February 2003 ultrasound and CT scan Dr Korber reported on 25 June 2003. He firstly concedes that it is extremely difficult to review other peoples ultrasound examinations as “one is left entirely in the hands of the operator”. Nevertheless his opinion was that neither investigation showed a hernia.
The issue of whether the Appellant Worker had a hernia was referred to an AMS (Dr Endrey-Walder) who examined Mr Samuel on 9 October 2003. On examination Dr Endrey-Walder could find no hernia. The AMS agreed that the description of developing pain in the left groin following lifting at work was “theoretically” consistent with the possible development of an acute inguinal hernia or the enlargement of a pre existing small asymptomatic inguinal hernia (MAC page five). His conclusion was that the Appellant Worker was not suffering from a hernia, work related or otherwise.
At a teleconference on 18 November 2003 the Appellant Worker consented to an award for the Respondent Employer being entered and a Certificate of Determination to that effect was issued on 24 November 2003.
Because of his continuing groin symptoms Mr Samuel was referred to Dr Sanki, general surgeon, who examined him on 9 February 2004. On examination the right and left inguinal regions were swollen with a “definite impulse in the right external ring” and “query impulse in the examination of the left groin which showed some swelling” (report Dr Sanki 8 October 2004 page two). Dr Sanki’s provisional diagnosis was that Mr Samuel had bilateral inguinal hernias. At a review on 16 February 2004 Dr Sanki could not detect any hernia. At further examination on 23 February 2004 Mr Samuel complained of painful swelling of both groins and examination confirmed the presence of a large external ring and a definite impulse on both sides. His diagnosis was that Mr Samuel had bilateral inguinal hernias. As a result surgical repair was carried out on 6 May 2004.
Dr Sanki’s operative findings were that Mr Samuel had bilateral direct inguinal hernias and a mesh repair was performed on each side. The doctor found a “lipoma of the spermatic cord” and “a layer of tissue next to the lipoma”. Both the lipoma and the layer of tissue were sent to a histopathologist (Dr Bowen) for examination. The histopathology report dated 7 May 2004 confirmed inguinal tissue consistent with lipoma and left inguinal tissue consistent with inguinal hernia. Dr Sanki felt that the findings at surgery were consistent with Dr Atto’s findings noted in his report of 3 June 2002 of impulses in both groins.
At review on 19 May 2004 Dr Sanki recorded that Mr Samuel felt much better and the sensations in the skin at the region of the surgery were quite normal. At review on 6 September 2004 Mr Samuel was complaining of pain on both sides but there was no evidence of swelling and the testes and sensations were normal. A further review was conducted on 8 October 2004 after Mr Samuel experienced pain while gardening two weeks earlier. On examination there was no swelling and no localised tenderness.
Dr Sanki’s opinion was that the Appellant Worker’s presentation and history were consistent with left and right inguinal hernias “subsequent to him carrying the heavy weights at work”. He also notes that the presence of balanitis and lymphadenitis in January 2002 was a coincidence and unrelated to work activities.
Since the surgery Dr McKessar was provided with a copy of Dr Sanki’s report of 8 October 2004 together with the MAC. In his further report of 5 April 2005 Dr McKessar agrees with the opinion and conclusions of the AMS. Dr McKessar notes that a circumcised man can still suffer from balanitis or inflammation around the base of the glans penis associated with some redundancy of tissue post circumcision. In respect of the hernia he makes the point that if Mr Samuel had a direct inguinal hernia (as found by Dr Sanki) it would always be present when the patient is examined in a standing position. As the above review of the medical evidence shows, that was not the case with Mr Samuel. In respect of lipoma found at surgery he notes that such a finding is not unusual in a patient being operated upon for a hernia and is often removed at surgery. In respect of the tissue found next to the lipoma Dr McKessar states that this tissue is always seen at operation and:
“… just represents the very proximal end of the unfused processus vaginalis, which processus represents the extension of the peritoneal lining which is taken down with the testis in its descent to the inguinal canal and into the scrotum. The top end of this represents the small amount of tissue which can be seen at any surgical operation for a direct hernia and which I believe was removed. This does not represent in any way a [sic] indirect hernia.”
Dr McKessar concluded by adding:
“In summary, I find no difficulty in accepting that this patient did have a balanitis which created secondary groin glands and this was the cause of his left groin pain, but not the presence of any minor posterior wall weakness, which incidentally was found to be larger on the right or asymptomatic side at surgery.
I find no reason to alter my opinion as a result of the information forwarded.
I believe on the balance of probabilities that this patient’s posterior wall weakness as found surgically was not work related.”
It is clear from the above that Dr McKessar concedes that there was a “posterior wall weakness” found at surgery by Dr Sanki. That being so the question that arises is: what caused that weakness? The Appellant Worker engaged in heavy lifting at work on 7 January 2002 and complained of groin pain to the Respondent Employer’s first aid officer on that day. He complained regularly and consistently of groin pain ever since January 2002. Dr Atto found a “slight impulse in both inguinal canal right more than left” (emphasis added) at his examination on 21 January 2002. Dr Sanki noted Mr Samuel’s symptoms to be bilateral at his examination on 9 February 2004. Therefore, whilst Mr Samuel’s complaints have been mostly related to his left side, Dr McKessar was not completely accurate if he was saying that the right side has always been asymptomatic. Dr Sanki refers Dr Atto’s findings being consistent with his findings at surgery.
Given Dr Korber’s caveat that it is “extremely difficult” to review other people’s ultrasounds, I do not believe his opinion should be allowed to over ride the treating surgeons direct observations at surgery. Such investigations are a diagnostic guide only and the ultimate diagnosis is often more accurate after surgery.
After seeing the ultrasound and CT scan of February 2003 Dr Durmush felt that a hernia was present and that it had been caused by heavy lifting at work with the Respondent Employer. He thought that surgery was necessary. Dr McKessar stated in his 30 September 2003 report that if Dr Durmush believed a hernia was present, surgery would be “appropriate”.
Dr McKessar’s comments about the findings at surgery do raise an issue as to exactly what was found at surgery but without the benefit of oral evidence from a medical expert that is an issue I am unable to resolve. However, it is not a question that has to be resolved because the evidence establishes that:
(a)the Appellant Worker was asymptomatic before he developed pain in his groin at work on 7 January 2002;
(b)he did engage in lifting activities at work on 7 January 2002;
(c)as a consequence of those lifting activities he developed groin pain which was reported at work on the morning of 7 January 2002;
(d)he has presented with consistent complaints of groin pain ever since;
(e)his complaints of groin pain have been found to be consistent with the findings at surgery performed by Dr Sanki, and
(f)since undergoing surgery his symptoms appear to have deceased though have not been eliminated completely.
In these circumstances I believe the Appellant Worker is entitled to a finding in his favour that his employment was a substantial contributing factor to the development of his condition and he is entitled to be compensated accordingly.
The Arbitrator’s Findings
The Arbitrator found that to “imbue s350(3) with a completely unfettered range would be to make a mockery of the appeal provisions within the legislation” (Statement of Reasons for Decision at paragraph 26 (‘Reasons’).
The Arbitrator felt that the report of Dr Sanki did “contain material that invites consideration of the exercise of s350(3), however I am not persuaded that it is warranted on this occasion” (Reasons paragraph 30). He gave five reasons for refusing to set aside the previous award:
(b)the Second Application was not received until nine months after the surgery;
(c)there was strong medical evidence from Dr McKessar which “suggests that the post operative conclusions are not inconsistent with the AMS assessment;
(d)caution should attend any use of section 350(3) because of the provisions of section 352 and 327;
(e)to allow the prior award to be set aside under section 350(3) would be to allow the prohibition in section 327(7) to be defeated, and
(f)the medical evidence was not strong enough.
The operation was performed on 6 May 2004 and Dr Sanki’s report is dated 8 October 2004. The Second Application was filed on 17 February 2005. In determining whether the delay involved was excessive, it is necessary to consider whether the Respondent Employer has suffered any prejudice. In the present case Dr McKessar was able to provide further evidence to the Respondent Employer and he did not feel a further examination was necessary. Where there is no prejudice to the Respondent Employer (and none has been argued in this case) I do not believe the delay of four months from the date of Dr Sanki’s report to the date of filing the Second Application was so unreasonable that the Appellant Worker should be prevented from seeking a reconsideration.
I have dealt with the medical evidence extensively above. In my view the Arbitrator was in error in failing to consider the full medical history and all of the relevant medical evidence. That failure amounted to a misuse of his discretion in that he failed to take into account relevant material.
Section 327 of the 1998 Act provides:
“327 Appeal against medical assessment
(1)A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3)The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4)An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.
(5)If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6)If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.
(7)There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
Subsection (2) states that a medical assessment is only appealable if it is a matter in which the assessment given by the AMS is conclusively presumed to be correct. The matters conclusively presumed to be correct are only those set out in section 326(1)(a) to (e). None of those mattes were touched on by the AMS in the present MAC. Therefore, the current MAC is not one to which section 327 applies and the Arbitrator was in error in declining to reconsider the earlier award because of concern that section 350(3) would make a “mockery of the appeal provisions”. Whilst there may be some cases where it will be necessary to consider section 327(7) if a party seeks to reconsider an award made pursuant to a MAC that is conclusively presumed to be correct, that does not arise in the present case because the MAC did not touch on matters set out in section 326(1)(a) to (e) inclusive.
I agree with the Arbitrator that the appeal provisions in section 352 are a relevant consideration in determining whether to allow a reconsideration under section 350(3). If the reconsideration seeks to rectify an error of law or fact made in the first determination an appeal will usually be the proper procedure to follow. However, in the present case there is no error of fact or law involved in the Certificate of Determination of 24 November 2003. What is alleged is that new evidence that could not have been obtained at the time of the first award and would have had a material effect on the outcome is now available and the first award should therefore, in the interests of justice, be reconsidered in the light of that evidence. For the reasons outlined above I agree with that submission.
Estoppel
The Respondent Employer argues that there should be no reconsideration because the first award creates an estoppel. Reliance is placed on the decision of Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 (‘Quarmby’). That case concerned a claim for lump sum compensation in the Commission in respect of a 40% permanent impairment of the worker’s sexual organs. In earlier proceedings the worker sought lump sum compensation in respect of a 90% loss of use of his sexual organs. The earlier claim was brought in the Compensation Court of NSW and was heard before Judge O’Meally. After a contested hearing his Honour found that “the applicant has failed to satisfy me that he has a loss of the use of his sexual organs”. In the later proceedings in the Commission the Arbitrator held the findings of Judge O’Meally created an estoppel which prevented the recovery of compensation for the same body part in the later proceedings in the Commission. An appeal from that decision was dismissed.
In the course of Quarmby the Acting Deputy President referred to a number of decisions where it has been held that prior ‘adjudications’ can give rise to an issue estoppel in the Compensation Court of NSW (Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370 and Lambidis v Commissioner of Police (1995) 12 NSWCCR 225). However, in the present case there was no prior ‘adjudication’. All we have is the prior award that was made by consent. Left unchallenged the prior award will prevent the Appellant Worker recovering compensation for any period up to 24 November 2003. However, a consent award does not create an ‘issue estoppel’ because no ‘issues’ were litigated or ‘adjudicated’ (see generally Anderson v Charles Sturt University (2000) 25 NSWCCR 407 and Rail Services Australia v Dimovski & Anor [2004] NSWCA 267).
The question of whether res judicata estoppel prevented reconsideration under section 17(4) of the Court Act was considered by Neilson J in Bruce v Grocon Ltd (1995) 11 NSWCCR 247 at 264 where his Honour said:
“Of course the doctrine of res judicata, meaning cause of action estoppel, and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to section 17(4). It is to overcome such principles that the power of reconsideration exists. That is what Rainbow J was referring to in Humphreys v. Shell Co of Australia Ltd. However, in my view, absent an application under section 17(4) of the Compensation Court Act, any determination made by this Court does create an issue estoppel: see Somodaj v. Australian Iron & Steel (1963) 109 CLR 285. Therefore, there is no reason in principle why a determination of this Court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).”
The question of ‘Anshun Estoppel’ (an extended form of res judicata estoppel) is still relevant. This doctrine was considered by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 597 (‘Anshun’) where Gibbs CJ, Mason and Aickin JJ said:
“The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”
In Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) (‘Henderson’) the Vice-Chancellor expressed the principle in these terms:
“…where a given matter becomes the subject of litigation in, and of
adjudication by, a Court of competent jurisdiction, the Court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the
same subject of litigation in respect of matter which might have been
brought forward as part of the subject in contest, but which was not brought
forward, only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata applies,
except in special cases, not only to points upon which the Court was
actually required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might
have brought forward at the time.”
The first thing to note about Henderson is that it refers to ‘adjudication by a court’. In the present matter there was no ‘adjudication’ by any tribunal in respect of the Consent Award. Nevertheless the question remains whether the general principles set out in Henderson, as explained and applied in Anshun (‘Anshun Estoppel’), apply to the matter before me.
In considering these principles the High Court said at page 603 of Anshun:
“In this situation we would prefer to say that there will be no estoppel
unless it appears that the matter relied upon as a defence in the second
action was so relevant to the subject matter of the first action that it would
have been unreasonable not to rely on it. Generally speaking, it would be
unreasonable not to plead a defence if, having regard to the nature of the
plaintiff's claim, and its subject matter it would be expected that the
defendant would raise the defence and thereby enable the relevant issues to be
determined in the one proceeding. In this respect, we need to recall that
there are a variety of circumstances, some referred to in the earlier cases,
why a party may justifiably refrain from litigating an issue in one proceeding
yet wish to litigate the issue in other proceedings e.g. expense, importance
of the particular issue, motives extraneous to the actual litigation, to
mention but a few.” (emphasis added)
Anshun Estoppel was explained by Justice Kirby in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 322 (‘Lambidis’) where his Honour said that such an estoppel:
“…prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised?” (emphasis added)
Anshun Estoppel depends on “considerations of public policy and the reasonableness of the conduct of litigants” (per Justice Kirby in Lambidis at 325). In the present case the Appellant Worker chose not to litigate to conclusion his claim in the First Application but agreed to be bound by the MAC. As a result an award for the Respondent Employer was entered by consent. In my opinion the earlier award amounted to no more than an admission by the Appellant Worker that as at 24 November 2003 he had no entitlement to compensation. Consistent with Lambidis what is required is for the Commission to now consider whether there are any reasons of ‘public policy’ or anything about the ‘reasonableness of the conduct of the litigants’ which would prevent reconsideration of the earlier consent award under section 350(3).
The Appellant Worker chose not to fully contest the First Application because of the contents of the MAC. There was nothing unreasonable about that decision in the circumstances he faced. Subsequently, Mr Samuel continued to experience pain and discomfort in his groin. The operation by Dr Sanki provided strong evidence that was not available on 24 November 2003 that his groin pain had been caused by his work activities on 7 January 2002. Armed with that additional evidence the Appellant Worker then asked the Commission to reconsider the Consent Award. I can see no reason of public policy that would prevent the Appellant Worker from having the Consent Award reconsidered. I can see nothing in the Appellant Worker’s conduct that would prevent him from having his claim determined on its merits. In my view where there has been no excessive delay in bringing the claim under section 350 and, where there is no prejudice to the Respondent Employer, the interests of justice require that the claim be reconsidered and determined according to its merits.
It is true that section 350 was discussed in Quarmby but held not to apply to the facts in that case. There the earlier award was an award of the Compensation Court of NSW. Section 350(3) only empowers the Commission to reconsider prior decisions made by the Commission, not prior decisions of the Compensation Court. There is nothing in Quarmby that would prevent reconsideration under section 350(3) in the present case.
PROCEDURAL MATTERS
As can be seen the ultimate findings in this case are that the Appellant Worker sustained injury to his lower abdomen in the nature of bilateral hernias. The Second Application only alleged injury to the “left abdomen and groin”. However, I believe my findings are appropriate in light of the evidence from Dr Atto referred to above and the findings by Dr Sanki at surgery. I do not believe any prejudice is suffered by the Respondent Employer because Dr McKessar has commented on Dr Sanki’s findings in general and on the findings in respect of the right side in particular. In addition, I note that the Commission in not a court and is not bound by strict pleadings. In my view the issues raised as a result of Dr Sanki’s findings at surgery were fairly placed before the Respondent Employer who had its expert comment on them. Further, my decision is consistent with the approach set out in section 354(3) of the 1998 Act which requires that cases be decided according to their substantial merits without regard to technicalities or legal form. In the remitted hearing it should be noted that the finding of injury I have made relates to both right and left hernias.
As noted above the MAC issued in this case does not deal with matters that are “conclusively presumed to be correct”. Therefore, there is no need for the MAC to be set aside or to order a new medical assessment under section 329. The matters to be determined in the remitted hearing are the Appellant Worker’s entitlement to weekly compensation and to hospital and medical expenses under section 60 of the 1987 Act.
DECISION
The decision of the Arbitrator of 29 June 2005 is revoked and the following orders made in its place:
“1.Pursuant to reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act the order made in Certificate of Determination dated 29 November 2003 is rescinded.
2.The Commission finds that on 7 January 2002 the Appellant Worker suffered injury to his lower abdomen in the nature of bilateral hernias in the course of his employment with the Respondent Employer and to which his employment was a substantial contributing factor.
3.The matter is remitted to a different Arbitrator to determine the Appellant Worker’s entitlement to compensation in accordance with this decision.
4.The evidence in matter 5285 of 2002 is to be evidence in matter 2378 of 2005.
5.The Respondent Employer is to pay the Appellant Worker’s costs.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
7 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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