Secretary, Department of Communities and Justice v Miller (No 7)
[2020] NSWWCCPD 57
•17 June 2020
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |
| CITATION: | Secretary, Department of Communities and Justice v Miller and anor (No 7) [2020] NSWWCCPD 57 |
| APPELLANT: | Secretary, Department of Communities and Justice |
| FIRST RESPONDENT: | David Miller |
| SECOND RESPONDENT: | Terren Tuhi |
| APPLICANTS FOR RECONSIDERATION: | David Miller and Terren Tuhi |
| INSURER: | QBE TMF |
| FILE NUMBER: | A1-2472/19 |
| DATE OF ARBITRATOR’S DECISION: | 11 October 2019 |
| DATE OF APPEAL DECISION: | 17 June 2020 |
| DATE OF RECONSIDERATION DECISION: | 8 September 2020 |
| SUBJECT MATTER OF DECISION: | Application of reconsideration principles, s 350(3) of the Workplace Injury Management and Workers Compensation Act 1988; Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr L Morgan, counsel | |
| Moray & Agnew Solicitors | |
| Respondents: | |
| Mr D Hooke SC and Mr J Wilson, counsel | |
| Stacks Law Firm | |
| ORDERS MADE ON APPEAL: | 1. The decision of Secretary, Department of Communities and Justice v Miller and anor (No 5) [2020] NSWWCCPD 38 is reconsidered pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. Order [3] of that decision is amended that it now reads as follows: “3. The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons, and limited to determining the appellant’s claims in respect of: (a) issue estoppel (b) Anshun estoppel.” |
BACKGROUND
This matter has a long history. This history is set out at length in Secretary, Department of Communities and Justicev Miller and anor (No 5),[1] a decision of 17 June 2020. In Miller No 5, I made the following orders:
“1. The name of the appellant, wherever it appears, is amended to read ‘Secretary, Department of Communities and Justice’.
2. The Certificate of Determination dated 11 October 2019 is revoked.
3. The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons.”
[1] [2020] NSWWCCPD 38 (Miller No 5).
Upon remitter, there was a disagreement between the parties as to the effect of the orders made in Miller No 5. Orders were made on 1 July 2020 (Miller No 6) which were to the following effect:
“The determination of the Commission in this matter is as follows:
Notations/Orders
1. The parties do not agree on the effect of the orders made in Secretary, Department of Communities & Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller (No 5)). It is not agreed whether the issues of s 4(a) and s 9A of the Workers Compensation Act 1987 have been decided or whether that remains an issue for determination on the remittal.
2. Give this dispute and the potential ambiguity between orders 2 and 3 in Miller (No 5), the applicant has indicated that an application for reconsideration is being filed.
3. It is appropriate that the reconsideration application be determined prior to the matter proceeding further. In these circumstances, this application is stood over pending the determination of the reconsideration application.
4. Either party has liberty to restore this application.”
As a result of the orders made in Miller No 6, an application for reconsideration was filed on 12 August 2020 on behalf of David Miller and Terren Tuhi.
RECONSIDERATION SUBMISSIONS – DAVID MILLER AND TERREN TUHI
The dispute between the parties upon remitter related to whether the remitter was limited to those matters in respect of which the appeal had been allowed or whether, as submitted by the respondent, Secretary, Department of Communities and Justice, the entire matter at large had been subject to remitter.
In Miller No 5, the employer had advanced three grounds of appeal. The appeal failed on the res judicata point (part of Ground One) and on Ground Two regarding the Arbitrator’s finding that compensation for death of a worker was payable. However the second part of Ground One, issue estoppel, and Ground Three, Anshun estoppel, were both upheld and were remitted to another arbitrator to be dealt with in accordance with the reasons set out in Miller No 5.
The applicants for the reconsideration assert the desirability of this litigation being brought to an end, and that the only matters remaining to be relitigated were those which were upheld in Miller No 5. The applicants for a reconsideration allege that it is an anathema to the principles of finality that the employer, having failed in its appeal in part, should be permitted to relitigate all issues.
RESPONDENT’S RECONSIDERATION SUBMISSIONS
The respondent to the reconsideration has submitted as follows in an email dated 3 September 2020:
“I am instructed to indicate the respondent acknowledges the tension between orders 2 and 3 made by the President on 17 June 2020 and submits the parties would benefit from the ambit of the remitter being clarified by the President.
The respondent otherwise submits to any order the President proposes to make on the reconsideration application and also proposes to make no further submission regarding the reconsideration application (beyond this email).”
PRINCIPLES
The principles regarding the Commission’s power of reconsideration are well settled. In Samuel v Sebel Furniture Limited[2] Acting Deputy President Roche made the following observations about the power of reconsideration:
[2] [2006] NSWWCCPD 141 (Samuel).
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’)[[3]];
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]];
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]];
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]};
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[[7]] (‘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’)[[8]], 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).”[9]
[3] Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244.
[4] Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413.
[5] Hilliger v Hilliger (1952) 52 SR (NSW) 105.
[6] Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642.
[7] [1981] HCA 45; 147 CLR 589 (Anshun).
[8] Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29.
[9] Samuel, [58].
Notwithstanding an amendment to s 352 of the 1998 Act after Samuel was decided, the Commission has indicated that the observations set out above in Samuel remain relevant.[10]
[10] Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61, [11].
CONSIDERATION
In Miller No 5, I set out at length the history of the litigation arising from the tragic death of Ms Moori Miller on 15 April 2011. This history of litigation commences at [18] of Miller No 5 and goes to [103]. The matter has been subject to two first instance hearings, two Presidential appeals and one appeal to the Court of Appeal. At [212] of Miller No 5, I said as follows:
“I would remark, without drawing any particular conclusion, that the issue as to whether or not particular estoppels might apply to Mr Miller (if they apply at all) and not to Mr Tuhi might require consideration regarding whether or not their separate rights require separate representation. I make these remarks having regard to the history of the litigation arising from Ms Miller’s unfortunate and tragic death, with a view to ensuring that all issues and all relevant parties are present so as to ensure that the proceedings arising from the events of 15 April 2011 might be finally determined.” (emphasis added)
In terms of the Samuel principles outlined above, in considering this application for reconsideration I am having particular regard to principles 1, 3, 4 and 9. For the reasons that I have referred to above, and in particular the subject matter of this litigation and its lengthy history, principle 4 from Samuel figures highly in my consideration of this application. The respondent has taken what I consider to be a very responsible view to this application and has not identified any prejudice or unfairness to it should the orders sought by Mr Miller and Mr Tuhi be made.
In my view, it is in the interests of justice for the remaining issues in dispute, as identified by me in Miller No 5, to be dealt with in accordance with the reasons that I gave in that decision.
Given the dispute between the parties regarding the effect of the orders that I made in Miller No 5 and the need to bring this long running litigation to a conclusion, I grant the application for reconsideration. In order to make the effect of my orders in Miller No 5 abundantly clear, I amend Order 3 made on 17 June 2020 in accordance with the submission made by Mr Miller and Mr Tuhi so that it now reads as follows:
“3. The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons, and limited to determining the appellant’s claims in respect of:
(a)issue estoppel
(b)Anshun estoppel.”
Judge Phillips
PRESIDENT
8 September 2020
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