Shams v Venue Services Group Pty Ltd
[2013] NSWWCCPD 57
•4 November 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57 | ||
| APPELLANT: | Naimollah Shams | ||
| RESPONDENT: | Venue Services Group Pty Ltd | ||
| INSURER: | Allianz Australia Workers’ Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-16411/12 | ||
| ARBITRATOR: | Mr J Wynyard | ||
| DATE OF ARBITRATOR’S DECISION: | 25 July 2013 | ||
| DATE OF APPEAL DECISION: | 4 November 2013 | ||
| SUBJECT MATTER OF DECISION: | Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; whether dispute existed for referral to the Commission; whether proceedings a nullity; ss 289 and 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; improper submissions by appellant’s solicitor on appeal | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Buttar, Caldwell & Co | |
| Respondent: | DLA Piper Australia | ||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is refused. 2. Each party is to pay his or its own costs of the appeal. | ||
INTRODUCTION
In this matter, the Arbitrator determined that the appellant worker had not “made a claim” and, as a result, the insurer was “unable to carry out its function” under ss 274, 279 and 289 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Arbitrator was therefore satisfied that the proceedings were a nullity and he struck the matter out. The worker has appealed.
BACKGROUND
This matter has a most unsatisfactory history. While both sides have filed chronologies, those chronologies are deficient in several key respects and neither complied with Practice Direction No 6. The worker’s chronology has referred to only one (potentially) relevant date and the employer’s chronology, though more detailed, has referred to numerous matters that are not dealt with in the evidence and has omitted other matters that are. The relevant history appears to be as follows.
The appellant worker, Naimollah Shams, suffered a fracture to his left orbit and soft tissue injuries to his neck when he was assaulted while allegedly working as a security guard for the respondent employer, Venue Services Group Pty Ltd (the respondent), at a nightclub on 24 August 2008.
According to the chronology filed by the respondent’s solicitor, Ms Jenne Tzavaras, which is largely based on material that is not in evidence, Mr Shams’ solicitors, presumably Buttar, Caldwell & Co, wrote to a person named Henry Robertson on 22 October 2008 seeking particulars of Mr Shams’ injury and employment.
On 3 December 2008, Buttar, Caldwell & Co allegedly wrote to the WorkCover Authority of NSW (WorkCover) and confirmed that Mr Robertson did not have workers compensation insurance for the period of risk.
On 11 December 2008, Buttar, Caldwell & Co made a claim for compensation on WorkCover. That document is not in evidence and the nature of the claim is not disclosed in the evidence.
On 23 December 2008, WorkCover wrote to Buttar, Caldwell & Co acknowledging receipt of the claim of 11 December 2008 and stating, as a reasonable excuse for not accepting liability, that there was no proof of employment and the injury had been notified two months after it occurred.
On 23 February 2009, WorkCover allegedly disputed liability in a s 74 notice on the ground that there was no proof of employment. This document is not in evidence.
On 17 March 2009, Taking No Risks Security Services Pty Ltd allegedly identified Mr Shams as an employee of the Venue Security Group (Aust) Pty Ltd, a subcontractor whose “legal name” is said to be Venue Services Group Pty Ltd, that is, the respondent, who was insured with Allianz Australia Workers Compensation (NSW) Ltd (Allianz). There are documents in evidence to support this allegation.
Also on 17 March 2009, WorkCover allegedly wrote to Buttar, Caldwell & Co accepting liability and advising that the respondent was the employer and that Allianz was the insurer. It also wrote to Allianz confirming that it was on risk for “Mr Henry Robertson”. Neither of these letters is in evidence.
On 31 March 2009, Allianz wrote to Mr Shams stating that liability was accepted for a closed period from 16 October 2008 to 16 November 2008 and that the employer, identified as the respondent, had been authorised to pay the claim for weekly benefits.
On 6 April 2009, Buttar, Caldwell & Co wrote to Allianz claiming medical expenses of $271.93 and seeking approval to change his treating doctor from Dr Nashed to Dr Khalid Qidwai.
On 1 May 2009, Buttar, Caldwell & Co wrote to Allianz enclosing medical certificates from Dr Nashed dated 16 October 2008, 23 October 2008, 18 November 2008, and 14 January 2009 and requesting payment of weekly compensation from 14 August 2008 up to and including 14 January 2009.
The only medical certificate in evidence from Dr Nashed is the certificate of 23 October 2008, which certified Mr Shams unfit from 16 October to 16 November 2008 because of dizziness and headaches caused by a soft tissue injury to the neck and head. Particulars of the employer, and how the injury occurred, were blank save for the words “as Before”.
The only other medical certificate in evidence is from Dr Qidwai, dated 10 December 2012, in which Mr Shams was certified unfit from 10 December 2012 to 10 January 2013 because of a head injury and soft tissue neck injury caused when he was trying to stop a fight and was “bashed by the fighting boys” on 24 August 2008. In that certificate, the employer was described as Pacific Risk Management.
On 24 June 2009, Allianz wrote to Mr Shams in the following terms:
“We refer to the above claim for workers compensation benefits.
A recent review of your claim has revealed that:
You have achieved a favourable return to health and a successful return to work.
All payments of your outstanding entitlements to workers compensation benefits have been made.
You currently have no ongoing entitlements to workers compensation benefits.
In these circumstances we intend finalising your claim on 9/7/09.
Should you have any outstanding claim reimbursements please forward copies of the invoices and/or receipts to Allianz Australia Workers Compensation (NSW) Limited prior to 9/7/09 by:
Postal box: GPO Box 5429
Sydney NSW 2001Facsimile: 1300 190 665
Should the above circumstances change your claim may be re-opened on receipt of sufficient reasons.
Please feel free to contact Allianz should you wish to discuss this matter further.”
There is no evidence that Mr Shams replied to this letter.
On 27 July 2009, Venue Services Group Pty (Aust) Pty Ltd (presumably the respondent, though the name is not identical) wrote to Allianz’s recovery department stating that Mr Shams had never worked for it and the claim (presumably a claim for recovery of the excess by Allianz, which is not in evidence) was rejected.
On 4 July 2012, Buttar, Caldwell & Co lodged an Application to Resolve a Dispute (the first Application – No 7713 of 2012) with the Commission claiming from the respondent weekly compensation from 14 August 2008 to date and continuing, plus medical expenses of $363.50.
It was alleged that Mr Shams suffered a fracture of the anterior aspect of the left orbital floor, injury to his left eye, a head injury and soft tissue damage to his neck as a result of being assaulted by a group of males while performing his duties as a security guard. The place of injury is described as “workplace” and the respondent’s contact person is identified as Mr Henry Robertson.
The respondent filed a Reply on 8 August 2012 in which it purported to raise 23 issues. It alleged that, as Mr Shams had not sought to re-open his claim, or made any further claim for benefits since 24 June 2009, he had lodged the claim prematurely and it ought be discontinued or struck out.
The Commission listed the matter for teleconference on 12 October 2012 when each side was legally represented. Though there is no transcript of the teleconference, Ms Tzavaras has submitted that Arbitrator Glenn Capel said that the claim was deficient, the Commission did not have jurisdiction to deal with it, and that Mr Shams should make a further claim, supported by medical evidence, certificates and a statement, as soon as possible. Buttar, Caldwell & Co discontinued the Application and the Arbitrator made no order as to costs.
On 11 December 2012, Buttar, Caldwell & Co lodged with the Commission an Application to Resolve a Dispute (the second Application – No 16411 of 2012) which is in the same terms as the first Application, save that the second Application has attached to it a brief (and unsatisfactory) statement from Mr Shams. The Commission registered this matter on 18 December 2012.
By letter addressed to Allianz on 10 January 2013, Buttar, Caldwell & Co claimed lump sum compensation of $10,106 in respect of a seven per cent whole person impairment due the injury to Mr Shams’ neck, unspecified medical and related expenses under s 60, and unspecified weekly benefits pursuant to s 40. This claim was supported by a report from Dr Qidwai dated 8 January 2013. The letter and the report were attached to separate Applications to Admit Late Documents lodged on 11 January 2013.
On 18 January 2013, the respondent lodged a Reply in which it purported to raise 30 issues. The first issue was that, as Mr Shams had not complied with ss 289 and 289A of the 1998 Act, the dispute could not be referred to the Commission and the Commission had no jurisdiction to deal with it.
The Commission listed the matter for teleconference before Arbitrator Wynyard on 19 July 2013. Both parties were legally represented. In his Reasons, given extempore and attached to the Certificate of Determination issued on 25 July 2013, the Arbitrator noted that the respondent had pleaded ss 289 and 289A and maintained that the Commission did not have any jurisdiction. The Arbitrator set out the relevant provisions of the legislation and noted that s 74 of the 1998 Act “contains a mechanism by which insurers are required to give notice when disputing liability”.
He added:
“7. In this case the applicant did make a claim, but not until a month after he had lodged the ARD, on 10 January 2013. The claim was made by way of a letter from the applicant’s solicitors to the respondent’s insurer. It purported to make claims pursuant to s 66, s 60 and for weekly benefits pursuant to s 40. The insurer, Allianz Australia Workers Compensation (NSW) Ltd, has not taken any steps with regard to that claim, pending the disposition of this case, Mr Ainsworth (who appeared for the respondent) indicated at teleconference.
8. I note in passing that no claim was made in the Application to Resolve a Dispute for s 66 compensation.
9. I assume the applicant made the claim in the hope of regularising the deficiencies in its Application to Resolve a Dispute. Unfortunately it does not. The applicant has not made a claim and therefore the insurer has been unable to carry out its function as referred to above. Section 289(1) prevents the matter from being determined in the absence of a dispute. Mr Ahmed for the applicant did not wish to make any submissions as to the issue at the teleconference.
10. The Commission is accordingly without jurisdiction.
11. I am satisfied therefore that the proceedings are a nullity and the matter is struck out accordingly.”
On 25 July 2013, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:-
1. This matter is struck out.
2. There will be no order as to costs.”
Mr Shams has appealed the Arbitrator’s order.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions 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.
Is the Arbitrator’s decision an interlocutory decision?
Legislation
Section 352(3A) provides that there is no appeal under s 352 against an interlocutory decision except with the leave of the Commission. The Commission “is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”.
Submissions
Ms Tzavaras submitted that the Arbitrator’s decision is interlocutory because it did not finally determine Mr Shams’ rights and he still has the opportunity to make a claim for weekly benefits, which must “thereafter be determined by the Respondent”. If the insurer disputes liability, the Commission would have jurisdiction to determine the dispute.
In submissions filed in response, Mr Shams’ solicitor, Mr Pervaiz Buttar, submitted that the “finality of determination of rights” argument applies “to lack of jurisdiction by [sic] WCC on weekly payments and costs or a fresh application forced to be filed by the applicant as a consequence of the impugned decision”.
Mr Buttar added, on the interlocutory issue, that:
(a) the dismissal of any proceedings are final in nature and interlocutory orders relate only to interim decisions of a court or tribunal while the main proceedings are allowed to continue and are not terminated, and
(b) the order was final in respect of the jurisdiction “bestowed upon [sic] WCC to grant costs in appropriate circumstances, which has now [sic] withdrawn forever, effective April 2013.”
Discussion
The submissions by Ms Tzavaras on whether the orders are interlocutory are correct.
Gibbs J (as his Honour then was) stated the test for whether an order is interlocutory or final in Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439 at 443-444. His Honour said that the established view in Australia was that what is interlocutory:
“...depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”
The authorities of Little v State of Victoria (1998) 4 VR 596 (Little) and Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1 at 11 (Wickstead) provide clear statements of principle that are applicable to the present matter. In Little, an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory. In Wickstead, an order for summary dismissal under Part 13 Rule 5 of the NSW Supreme Court Rules was also held to be interlocutory.
Based on these authorities, the order made by the Arbitrator was clearly an interlocutory order because it has not finally determined the parties’ rights. If Mr Shams provides proper particulars of his claim, and the insurer either disputes or fails to determine the claim within the time limits in the legislation, he is free to lodge a fresh application and to have that claim determined on its merits. Mr Buttar’s submissions have ignored the fact that an order dismissing proceedings, without a hearing on the merits, involves no determination of the parties’ rights.
On the issue of costs, there are three points to note. First, costs are not compensation and there is therefore no right of appeal against a costs order (Sorbello v Yellamo Pty Ltd [2006] NSWWCCPD 91). Second, even if costs are compensation, the Arbitrator made no “final” order about costs. Last, Mr Shams has a right to apply for legal aid to pursue his claim and nothing done by the Arbitrator has affected that right.
Should leave to appeal be granted?
Submissions
Mr Buttar made extensive submissions on a range of matters that have little relevance to the issue before me. His main points were:
(a) the balance of inconvenience and prejudice goes in favour of Mr Shams;
(b) the proceedings cannot be a nullity;
(c) the Arbitrator “took a narrow and extreme view against the objectives of [sic] WCC as contained in section 367 of [sic] 1998 Act and formalised the proceedings when he was required by the statute to be informal and fair”;
(d) the Arbitrator ignored the words of s 354, which require the Commission to act with as little formality and technicality as the proper consideration of the matter permits and to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms;
(e) the Arbitrator was excessively technical and looked at the legal form rather than applying the principles of equity and good conscience and the substantial merits of the case;
(f) workers compensation legislation is to be construed beneficially and the 1998 Act should be construed “more as a shield than a sword”;
(g) without leave, Mr Shams is “thrown out of [sic] WCC and cannot pursue his rights and remedies in [sic] WCC since the rights relating to weekly payments have been repealed firstly from 1 January 2013 (the reason the application was filed in December 2012) and thereafter on 2 April 2013 due to the 2012 amendments being applied with consequences [sic] finality applied to such rights”;
(h) the Arbitrator’s use of his discretion was unreasonable, and
(i) “it is either necessary or desirable for the determination of the dispute or [sic] the impugned decision to be reversed and [sic] matter to be remitted to another Arbitrator since a fresh application cannot be filed anymore”.
Mr Buttar also submitted:
“WorkCover’s involvement in decision making, through WIRO, with pecuniary interest makes the process subject to such Wednesbury’s [sic] unreasonable proportion, and leads to legitimate invocation of the doctrine of proportionality as held in Minister for Immigration and Citizenship v Li [2013] HCA 18 [Li]. WorkCover’s powers or assumed role to distribute its funds while effectively being a party to all proceedings, to selected legal practitioners compromises the independence of the legal profession and renders such exercise unreasonable and absurd.” (emphasis included in original)
(The reference to WorkCover in the above passage was a reference to the WorkCover Authority of NSW (WorkCover) and the reference to WIRO was a reference to WorkCover Independent Review Officer (WIRO).)
Mr Buttar said that WorkCover had issued “Guidelines under the statutory powers and effectively makes laws, albeit the statute does not state Guidelines are binding upon the members of [sic] WCC”. He said that there were a number of “WCC Guidelines which claim to take direction from WorkCover Guidelines” and WorkCover Guidelines “which establish directions to the WCC without citing legislation. Thus the WCC is under the dictates of WorkCover, and the issue of bias is prevalent” (emphasis included in original).
After referring to Tan v National Australia Bank Ltd [2008] NSWCA 198 at [34] (Tan), where it was observed that the Guidelines are “primarily intended to assist WorkCover NSW Licensed Insurers” and “cannot, and do not purport to, affect the proper construction of the Act”, Mr Buttar said that the expectation:
“by [sic] WCC that workers abide by the Guidelines is therefore misguided, and the WCC Guidelines which take direction from WorkCover Guidelines and vice versa therefore carry little weight toward anyone but insurers”.
He said that WorkCover Guidelines are not binding “on [sic] WCC.”
Returning to the question of bias, Mr Buttar added that “WorkCover is a party to every proceedings [sic] and any interference by WorkCover in the procedures of [sic] WCC raises a potential argument of bias and interfering with the functions and jurisdiction of [sic] WCC being [sic] independent, impartial and unbiased judicial Tribunal” (emphasis included in original). He said that “[t]he actual or ostensible bias is patent and obvious” (emphasis included in original). (Whether this was bias by WorkCover, WIRO or the Commission is unclear.)
On a topic that might be relevant to the current appeal, Mr Buttar said, “a dichotomous outcome is resulting from each Arbitrator taking inconsistent decision [sic] when met with an argument of either adjourning the matter at teleconference for a further teleconference or to terminate the proceedings to be filed fresh”. Before April 2010, it was immaterial and a fresh application could be lodged immediately after termination, but that can no longer happen and further delay is expected of more than three months before an application for a grant of legal aid is filed, processed and the outcome known. He said that most Arbitrators “are taking a more charitable view in favour of injured workers with limited means, allowing them to adjourn for a further teleconference either at the behest of the applicant or the respondent.” A grant of such an adjournment is “a right under the circumstances of every worker in light of the High Court decision in Li”.
In the alternative, Mr Buttar submitted that:
“if the Registrar is of the view the Appeal is unlikely to succeed … we advise the Registrar may reconsider the decision if the Registrar is of the view the decision is of [sic] interlocutory nature and substitute his own decision by appointing another Arbitrator and setting the matter down for further teleconference.”
Discussion
As noted above, s 352(3A) states that the Commission is not to grant leave to appeal unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. Mr Buttar’s submissions have failed to address that issue in any meaningful way and are untenable.
Section 352(3A) does not involve the “balance of inconvenience and prejudice”. In any event, there is no prejudice to Mr Shams. He is free to issue a further application.
Whether the Arbitrator took a “narrow and extreme” view “against the objectives of the” Commission is not to the point. The statute does not require an Arbitrator to be “informal”. The requirement in s 354(1) that proceedings be conducted with as little formality and technicality as the proper consideration of the matter permits does not permit an Arbitrator to ignore the terms of the legislation. However, the Commission is bound to apply “legal principle” and “the terms of the legislation” (and substantive law), but has a wide scope in respect of procedure (Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [10]; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-30 and 40-41).
The submission that Mr Shams was “thrown out” of the Commission “and cannot pursue his rights” was incorrect. Mr Shams’ has the same rights now as he had before the Arbitrator dismissed the proceedings. His right to weekly compensation has not been “repealed” from 1 January 2013, but has been substantially amended by the provisions introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act). Those amendments will apply to any fresh application, just as they would have applied to the second Application, had it not been dismissed.
Whether the Arbitrator’s actions were unreasonable does not assist in determining if leave to appeal should be granted. The question is whether the granting of leave is necessary or desirable for the proper and effective determination of the dispute.
It follows that I am not of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. That is because the Arbitrator made no findings on the merits of the claim and no order made on appeal, if leave were granted, will advance the determination of the dispute. It will merely remit an inadequately prepared matter to another Arbitrator. That step can be achieved by the issuing of a fresh application, after first obtaining legal aid.
The above comments dispose of the appeal. However, Mr Buttar’s other submissions require comment.
The principles in Li have no application in the present matter. That case concerned the scope and purpose of the power to adjourn in s 363(1)(b) in the Migration Act 1958 (Cth), as connected to the purpose in s 360(1). The purpose of s 360(1) is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The High Court held that, in the circumstances, the Migration Review Tribunal’s decision to “conclude the review”, without giving the applicant the opportunity to present further evidence, was an error.
The present case concerns the dismissal of proceedings because of alleged non-compliance with the legislation. Nothing about it is analogous to Li and nothing in that decision assists Mr Shams. The question of “Wednesbury unreasonableness”, which the High Court considered, does not arise.
Mr Buttar’s reference to “such exercise”, presumably by WIRO and WorkCover, being “unreasonable and absurd” was unhelpful and did not advance Mr Shams’ position on appeal because it did not address the terms of the legislation. Similarly, the submission that the Commission is under the “dictates of WorkCover”, and the issue of bias is “prevalent”, was not only not relevant to the issue but was grossly and gratuitously offensive. It should not have been made.
The submission that the Guidelines are not binding on the Commission, and carry little weight for anyone but insurers, was incorrect. It is accepted that the normal meaning of “guideline” is guidance; something that is not binding or mandatory (Norbis v Norbis [1986] HCA 17; 161 CLR 513; Riddell v Secretary, Department of Social Security [1993] FCA 261; 42 FCR 443 at 450; Smoker v Pharmacy Restructuring Authority [1994] FCA 1487; 53 FCR 287; 125 ALR 577).
It is also accepted that, in the event of inconsistency between the Act and the guidelines, the Act prevails. However, as a matter of construction, care should be taken to construe the legislation in a way that promotes the operation of the statutory scheme and, if possible, give efficacy to the Guidelines (Galluzzo and Galluzzo t/as Riverwood Chemworld Chemist v Little [2011] NSWSC 1581 at [66], citing Thiering v Daly [2011] NSWSC 1345 at [50]). Further, it is clear that s 260 envisages that a claim may not be made as required by the Guidelines and may yet constitute a “claim” (Basten JA (Bell JA agreeing) in Tan at [38]).
However, none of the above authorities provides any support for Mr Buttar’s surprising submissions. The issue before the Arbitrator did not concern the Guidelines but concerned alleged non-compliance with the legislation. Therefore, Mr Buttar’s submissions are of no assistance.
The suggestion by Mr Buttar of “interference by WorkCover in proceedings” of the Commission, and that that raised a potential argument of bias and “interfering with the functions and jurisdiction” of the Commission was scurrilous and insulting to the staff of WorkCover and the Commission. It was not relevant to the issues on appeal and did not advance Mr Shams’ position. It should not have been made.
Dealing with the submission that Arbitrators are taking different approaches when met with an argument of either adjourning matters to another teleconference or terminating the proceedings, it may well be that that is so. However, questions of practice and procedure always involve the exercise of a discretion and will depend on the circumstances in each case. That is therefore not a ground for granting leave to appeal against the present interlocutory order. As noted above, Mr Shams is free to re-issue his application without penalty.
The submission that the granting of an adjournment is “a right under the circumstances of every worker in light of the High Court decision in Li” was incorrect. A decision to grant or refuse an adjournment depends on the particular legislative regime involved and calls for the exercise of a discretion. Appellate courts will be reluctant to interfere with such a discretionary decision (Hamod v State of New South Wales [2011] NSWCA 375 at [131] – [147]; Manpower Pty Ltd v Harris [2011] NSWWCCPD 10 from [114]).
However, and more importantly in the present case, the solicitor appearing for Mr Shams at the teleconference before the Arbitrator on 19 July 2013 “did not wish to make any submissions as to the issue at the teleconference” and presumably did not do so. It follows that the argument that the Arbitrator erred in failing to grant an adjournment is completely lacking in substance because Mr Shams did not seek an adjournment.
Last, Mr Buttar’s submission that the “Registrar may reconsider the decision if the Registrar is of the view the decision” is interlocutory and may substitute his (or her) own decision was misconceived and inappropriate. The matter before me is an appeal to a Presidential member (not the Registrar) under s 352 of the 1998 Act and it falls to be determined under that section. It is not open to treat a s 352 appeal as an application for a reconsideration (Preston v Randwick City Council [2012] NSWWCCPD 1; Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 at [93]-[100]). Moreover, there is no ground for the matter to be reconsidered in any event.
ALTERNATIVE FINDING
If I am wrong in the above conclusion, I make the following observations about the merits of the proposed appeal.
The proposed grounds of appeal are that the Arbitrator erred in:
(a) finding that Mr Shams had not made a claim;
(b) finding there was an absence of a dispute pursuant to s 289(1) of the 1998 Act;
(c) finding that the proceedings were a nullity, and
(d) in striking out the proceedings when he had no power to do so, or, in the alternative, when no proper grounds existed to dismiss the proceedings under s 354 of the 1998 Act.
In support of these grounds, counsel for Mr Shams, Mr Campbell, submitted that a claim had been made on 11 December 2008 and that the totality of the evidence entitled Mr Shams to believe a dispute about his claim in respect to liability was alive and accordingly the proceedings were not a nullity, nor did they enliven s 354 of the 1998 Act.
Mr Campbell relied on Tan, where Young CJ in Eq said:
“76 Despite the prescription of the statutory regime, the ambit of s 289 does not go so far as to remove the jurisdiction of the Commission to exercise its statutory powers with respect to a dispute if the claim was not made in exact accordance with s 260 of the WIM Act or guidelines such as the WorkCover Provisional Liability and Claims Guidelines dated December 2001 (the Guideline).
77 Mason P in Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244 at [39] said that:
‘... nowhere within s 289 does one find any clear toehold for an argument that... the Commission lacks ‘jurisdiction’ to exercise its statutory power with respect to a dispute if the disputed claim was not in accordance with the Guidelines. These provisions do not state that any or all failures to comply with the Guidelines might preclude the Commission from embarking on its task, in accordance with the statutory regime.’”
Mr Campbell then referred to the Arbitrators’ Code of Conduct, which requires Arbitrators to conduct proceedings according to the law, with due regard to equity, good conscience and the substantial merits of the case, and to abide by the principles of procedural fairness.
He then set out s 354(7A) of the 1998 Act, which provides:
“The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.”
He submitted that the Arbitrator did not abide the principles of procedural fairness in failing to give reasons in accordance with s 354(7A) as to why the matter was struck out.
I do not accept these submissions.
Tan concerned a claim for compensation as a result of an injury suffered in July 2003 and, by way of aggravation, on 5 April 2004. The claim for the July 2003 injury failed because of s 11A of the Workers Compensation Act 1987 (the 1987 Act), but the Arbitrator found in favour of the worker for the 5 April 2004 injury. Both sides appealed. The Deputy President dismissed the worker’s appeal with respect to the July 2003 injury, but upheld the employer’s appeal with regard to the second injury on the ground that the Commission did not have jurisdiction to hear the matter because there was no “claim” ever pleaded or particularised for the injury and the Arbitrator erred in exercising his discretion under s 260(5) of the 1998 Act.
The worker successfully appealed. As noted earlier, Basten JA (Bell JA agreeing) held that s 260 envisages that a claim may not be made as required by the WorkCover Guidelines and may yet constitute a “claim”. Young CJ in Eq stated that there is no requirement that notification of a claim (under s 260) needs to be articulated in the statutory language of an “injury” or an “aggravation”. It was in this context that his Honour made his observations reproduced at [69] above.
The issue in Tan was quite different to the issue before me. It concerned whether a claim under s 260 that did not comply with the WorkCover Guidelines may yet constitute a “claim”.
In the present matter, there is no dispute that Mr Shams had made a “claim” under s 260. The issue was the effect of ss 289 and 289A.
Those provisions provide:
“289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)disputes liability for the claim (wholly or in part), or
(b)fails to determine the claim as and when required by this Act.
Note: The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)disputes liability for the claim (wholly or in part), or
(b)fails to determine the claim as and when required by this Act.
(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.
Note: Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)wholly disputes liability for the claim, or
(b)made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c)fails to determine the claim as and when required by this Act.
Note: The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until:
(a)28 days after the claim for compensation is made, or
(b)the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.
289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if:
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
In Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244, Mason P acknowledged (at [39]) that “[o]ne can conceive how s289 may generate an issue as to the Commission’s authority to determine certain disputes unless certain matters have occurred” but nowhere within s 289 did one find “any clear toehold for an argument” to the effect that the Commission lacks “jurisdiction” to exercise its statutory powers with respect to a dispute “if the disputed claim was not in accordance with the Guidelines” (emphasis included in original).
Again, however, these comments were in the context of an argument that the Commission had no jurisdiction to entertain the worker’s application because it was not in accordance with the WorkCover Guidelines, as required by s 260. The ratio of the decision is that non-compliance with the WorkCover Guidelines with regard to the notice of claim provisions in s 260 does not affect the jurisdiction of the Commission.
Mason P added (at [39]) that:
“One would think that in most cases, like the present, there would be no question about a dispute having arisen, although there may well be some confusion as to its parameters. The Commission has ample powers to resolve that confusion.”
In Mr Shams’ case, there is a question “about a dispute having arisen”. That is because, prior to filing either the first Application or the second Application, Mr Shams did not particularise a claim. As a result, the insurer has neither disputed liability for it nor failed to determine it. It follows that the matter cannot be referred for determination by the Commission and the Commission may not hear or otherwise deal with any dispute where s 289 provides that the dispute cannot be referred for determination by the Commission (s 289(5)). (I leave to one side whether the filing of the first Application and Reply provided a basis for the second Application, which is discussed at [90] below).
The submission that the totality of the evidence entitled Mr Shams to believe that a dispute about his claim was “alive” was specious. Mr Shams gave no evidence to that effect. The submission is presumably based on the letter from the respondent to Allianz dated 27 July 2009, which was attached to the Reply. However, there is no evidence that Mr Shams ever saw that letter prior to the filing of the Application on 11 December 2012. Therefore, it could not have played any role in his belief at the time he filed the Applications.
More importantly, s 289 is not satisfied by a worker’s subjective belief that a dispute exists. The section operates on the presumption that the worker gave particulars of the compensation claimed and that the insurer has either disputed liability or failed to determine the claim as and when required by the 1998 Act. Arguably, neither of those conditions was satisfied in this case.
Mr Shams’ initial claim was finalised in July 2009. If he intended making a further claim, he had to particularise that claim to give the insurer the opportunity to accept it (as it did with the first claim) or reject it. This approach is consistent with the clear wording of ss 289 and 289A. As no further claim was particularised, no dispute arose and ss 289(5) and 289A prevent the Commission from hearing or otherwise dealing with the matter.
This interpretation of ss 289(5) and 289A is consistent with the second reading speech on 29 November 2005 when the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Bill, which introduced these provisions, was before Parliament. The Hon David Campbell, Minister for Regional Development, said:
“On early settlement of claims, the bill contains a number of measures aimed at facilitating earlier settlement of claims and ensuring that matters referred to the commission are genuinely in dispute. These measures provide for the exchange of all relevant documents and identification of all relevant issues as part of the claim and dispute process. This up-front exchange of information is key to the success of the commission. The bill requires an insurer to review a decision to dispute a claim and give to the worker the option of seeking a further review before the dispute is referred to the commission. This will make sure insurers are acting in the scheme's best interests—that they are making appropriate decisions about claims and, where they are going to dispute a claim, they can back it up.”
The Minister added that it was not about accepting every claim made on an insurer, it was “about making sure matters that go before the [C]ommission are genuinely in dispute”. No dispute can arise if it has not been preceded by a claim and the insurer has not had an opportunity to either accept it or dispute it. That did not happen in this matter. It follows that, because of non-compliance with ss 289 and 289A, the second Application was “lacking in substance” and the Arbitrator was entitled to dismiss it under s 354(7A).
The Arbitrator was wrong, however, to say that the proceedings were a nullity (Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364). While Pt 1 r 1.6(4) of the Workers Compensation Commission Rules 2011 (the Rules) provides that the Commission may determine that the proceedings, or any step taken in them, are a nullity, and strike out the proceedings, or any step taken in them, the Arbitrator did not rely on any non-compliance with the Rules. He relied on non-compliance with the 1998 Act and that brought into play s 354(7A).
It follows that, had leave to appeal been granted, on the arguments presented, the appeal would have failed.
OTHER MATTERS
There may well be cases where it is appropriate to find that, where an earlier claim has been filed in the Commission, and disputed in a reply filed by an employer, that earlier application and reply might, depending on the circumstances, provide the basis for compliance with s 289. As that issue was not argued, either before the Arbitrator or on appeal, it is not necessary to express any concluded view about it. Had this point been argued on appeal, it would not have affected the outcome because I have refused leave to appeal on the ground that the Arbitrator’s decision was interlocutory.
I observe in passing, that the taking of every conceivable point, as the respondent has done in the Reply filed in this case, is unacceptable and is a practice the Commission has criticised in the past. It should not be repeated. Insurers are reminded that where there is a clear issue in dispute, that dispute should, whenever it is reasonably practicable within the terms of the legislation, be determined on its merits without unnecessary and pedantic point scoring.
Mr Buttar’s submissions in reply were unhelpful and unsatisfactory. They appear to have been prepared to vent his apparent frustration with the amendments introduced by the 2012 amending Act. A s 352 appeal is not the appropriate vehicle for such complaints. His submissions were misguided, ill-considered and, with respect to the bias allegation, improper.
CONCLUSION
The Arbitrator’s decision to dismiss the second Application was an interlocutory decision that did not determine the parties’ rights. Leave to appeal that decision is refused because I am not of the opinion that determining the appeal will determine the dispute between the parties. It is therefore not necessary or desirable for the proper and effective determination of the dispute that leave to appeal be granted.
DECISION
Leave to appeal is refused.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
4 November 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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