Tan v National Australia Bank Ltd

[2008] NSWCA 198

New South Wales

Court of Appeal

CITATION:	Tan v National Australia Bank Ltd [2008] NSWCA 198
HEARING DATE(S):	7 April 2008
JUDGMENT DATE:	21 August 2008
JUDGMENT OF:	Basten JA at 1; Bell JA at 51; Young CJ in Eq at 52
DECISION:	1. Allow the appeal with respect to the decision of the Deputy President rejecting Ms Tan's entitlement to invoke s 260(5) in relation to a claim for compensation in respect of an injury suffered on 5 April 2004. 2. Remit that matter to the Commission to be determined according to law. 3. No order as to costs.
CATCHWORDS:	APPEAL- appeal to Court against decision of Workers Compensation Commission "in point of law"- Workplace Injury Management and Workers Compensation Act 1998, s 353. - APPEAL- internal appeal "by way of review"- appeal against decision of arbitrator- whether necessary to establish error- Workplace Injury Management and Workers Compensation Act 1998, ss 352, 354. - WORDS & PHRASES- "appeal"- review"- "in point of law"- claim". - WORKERS COMPENSATION- jurisdiction of Commission to resolve dispute- whether "claim" must be made- whether failure to make claim excused- whether claim inadequate or not a claim at all- Workplace Injury Management and Workers Compensation Act 1998, s 260.
LEGISLATION CITED:	Workers Compensation Act 1987, ss 9, 11A, 15 Workplace Injury Management and Workers Compensation Act 1998, ss 4, 254, 255, 260, 261, 267, 268, 287, 288, 289, 289A, 350, 352, 353, 354
CASES CITED:	Allesch v Maunz (2000) 203 CLR 172 Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 Kurrajong Holdings v Carrette [2004] NSWWCCPD 8 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 Warren v Coombes (1979) 142 CLR 531 Western Australia v Ward (2002) 213 CLR 1
PARTIES:	Sharon Tan (A) National Australia Bank Ltd (R)
FILE NUMBER(S):	CA 40379/06
COUNSEL:	In person (A) A J Katzmann SC and B D O'Donnell (R)
SOLICITORS:	In person (A) Sparke Helmore (R)
LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	WCC 8858/04
LOWER COURT JUDICIAL OFFICER:	Fleming DP
LOWER COURT DATE OF DECISION:	8 June 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Tan v National Australia Bank Ltd [2006] NSWWCCPD 115 National Australia Bank Ltd v Tan [2006] NSWWCCPD 116

40379/06

BASTEN JA
BELL JA
YOUNG CJ in EQ

Thursday 21 August 2008

TAN v NATIONAL AUSTRALIA BANK LIMITED

Headnote

The appellant Ms Sharon Tan commenced employment with the respondent National Australia Bank Ltd as a mobile mortgage manager in May 2002. As a result of a series of workplace incidents, the appellant claims to have sustained a psychiatric disorder, variously diagnosed as a depressive illness and an adjustment disorder.

The appellant filed in the Workers Compensation Commission an application to resolve a dispute on 28 May 2004. The dispute was referred to an arbitrator who found that s 11 of the Workers Compensation Act 1987 precluded the appellant from recovering compensation in relation to her injuries suffered in July 2003. However, the arbitrator found that the appellant was entitled to compensation for the “further” injury suffered on 5 April 2004, namely the aggravation, exacerbation and/or deterioration of a psychological injury caused by the respondent’s failure to allow the appellant to return to work under suitable supervision and duties.

Both parties appealed the determination of the arbitrator.

Deputy President Fleming upheld the arbitrator’s findings in relation to the July 2003 injuries. However the Deputy President set aside the arbitrator’s findings on the 5 April 2004 injury on the basis that the Commission does not have jurisdiction to hear the matter because there was no “claim” ever pleaded or particularised for the injury. The Deputy President held that the arbitrator erred in exercising his discretion under s 260(5) of the Workplace Injury Management and Workers Compensation Act 1998, and that because the respondent was not on notice of such a claim and had no opportunity to consider its position in relation to it, the respondent has suffered procedural unfairness: [2006] NSWWCCPD 115; [2006] NSWWCCPD 116.

The appellant appealed to the Court of Appeal against the Deputy President’s decision under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998.

The issues for determination on appeal were:

(i) whether the Deputy President erred in law in addressing the operation of s 260(5) of the Workplace Injury Management and Workers Compensation Act 1998; and

(ii) whether the Deputy President erred in law when she dismissed the appeal after finding that there was a denial of procedural fairness so as to prejudice the respondent.

The Court held, allowing the appeal:

In relation to (i)
(per Basten JA, with whom Bell JA agreed)

1. The purpose, scope and operation of s 260 must be identified by reference to the language of the provision in its statutory context. Section 260 envisages that a claim may not be made as required by guidelines and may yet constitute a “claim”. Section 260(5) must be read as being capable to operate in situations where there are no claims made so as to promote the objective of the Act, that is to ensure compensation for work-related injuries: [31], [38], [42].

(per Young CJ in Eq)

2. There is no requirement that notification of a claim needs to be articulated in the statutory language of an “injury” or an “aggravation”. Lack of strict compliance with s 260 and the guidelines does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute: [79].

Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244

In relation to (ii)
(per Young CJ in Eq)

3. A reviewer must take steps to see that any procedural unfairness caused by irregularity is overcome by giving the prejudiced party time to put forward further evidence or make further submissions, or to remit the matter for a fresh hearing at first instance: [95].

40379/06

BASTEN JA
BELL JA
YOUNG CJ in EQ

Thursday 21 August 2008

TAN v NATIONAL AUSTRALIA BANK LIMITED

Judgment

1 BASTEN JA: The appellant, Ms Tan, was employed by the respondent Bank as a “mobile mortgage manager” at its Randwick office from 13 May 2002. As a result of stress and anxiety caused, as she claimed, by her immediate superior, she went on sick leave on 1 July 2003. On 21 July 2003 she lodged a claim for workers’ compensation benefits for an injury she described as “work-related stress and anxiety”. The Bank did not deny that she suffered a psychological injury, but argued that s 11A of the Workers Compensation Act 1987 (NSW) precluded liability for compensation.

2 The appellant filed in the Workers Compensation Commission an application to resolve a dispute. The application was heard by an arbitrator, who held that the Bank succeeded on its s 11A defence in relation to injuries suffered in July 2003, but that Ms Tan was entitled to succeed as a result of a “further injury” suffered on 5 April 2004, being not merely an exacerbation of her earlier condition, but a separate and new injury. Ms Tan and the Bank appealed to a Deputy President of the Commission. The Bank succeeded in setting aside the latter determination on the basis that there was no “claim” in relation to the April 2004 injury. The Deputy President also decided that the Bank had suffered procedural unfairness in the consideration by the arbitrator (and resultant finding in favour of Ms Tan) of a further injury which the Bank had not had an opportunity to investigate.

3 Before turning to the challenge to the decision of the Deputy President raised in this Court, it is convenient to note the extent of the jurisdiction of the Deputy President in exercising an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Workplace Injury Act”).

Jurisdiction of the Deputy President: s 352

4 The Deputy President handed down her determination of the internal appeal on 8 June 2006: Tan v National Australia Bank Ltd [2006] NSWWCCPD 115. At [30] she stated:

“Before considering the grounds of appeal, it is worth emphasising that the basis of an appeal to the Commission from the decision of an arbitrator is that the arbitrator erred, whether by way of law, fact or discretion ( Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCCPD 6; The King Island Company Limited v Deery [2005] NSWWCCPD 1). If such an error is established, and it is such that, but for it, a different decision would have been made then the Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator ….”

5 The Commission appears to have reached the view that a Deputy President, acting under s 352, can only interfere with the decision of an arbitrator if satisfied as to “error” by reference to Allesch and, indirectly, to other decisions of the High Court concerned with the appellate jurisdiction of various courts. The requirement that there be “some legal, factual or discretionary error” was identified in the joint judgment in Allesch at [23] as the feature which distinguished an appeal by way of rehearing from a hearing de novo. None of the authorities relied on by the Commission give proper consideration to the requirement in s 352(5) that the appeal is to be “by way of review of the decision appealed against”.

6 The Commission has tended to disregard decisions of this Court relating to statutory appeals under the Compensation Court Act 1984 (NSW) now repealed. Those decisions, including Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, should properly be treated with caution, although they undoubtedly provide some assistance with the meaning of the term “review”. However, as explained in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 261, by Mason CJ, Brennan and Toohey JJ:

“But what emerges from the judicial decisions and, for that matter, from statutes is that ‘review’ has no settled pre-determined meaning; it takes its meaning from the context in which it appears.”

7 For reasons which are not entirely clear, but may have resulted at least in part from the fact that the appellant was a litigant in person, a significant period has elapsed since the decision of the Deputy President from which the present appeal is brought. In that time, there have been a number of decisions of this Court referring to the nature of the appeal under s 352 of the Workplace Injury Act. They include Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 at [19] (Mason P, Santow and Tobias JJA agreeing); State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 at [28]-[30] (Spigelman CJ, Bryson JA agreeing) and Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 at [11]. In the last case it was stated that it was “doubtful” that the Deputy President needed to be satisfied of “error” on the part of the arbitrator, before revoking his decision: at [11]. Prior to the decision of the Deputy President, Bryson JA (Handley JA and Bell J agreeing) had suggested in Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 at [38] that there was no requirement to find error.

8 The nature of the appeal from the arbitrator to the Deputy President must be identified by reference to the statutory scheme provided by the Workplace Injury Act, in particular ss 352 and 354.

9 A primary feature of the appeal provided by s 352 is the degree of control placed in the presidential member with respect to both the availability of the appeal and the manner in which it is to be conducted. Thus the appeal only lies with leave of a presidential member: s 352(1). Leave may not be granted where the amount in issue is less than $5,000 and the proportion of the award in issue is less than 20%: s 352(2). Once those factors are established, there is no express guidance in the statute as to what other matters might affect the grant of leave and in the present case, subject to questions of timely filing of documents, leave appears to have been granted to both parties as a matter of course. The appeal is described as being “by way of review”: sub-s (5). The section further provides that other “evidence” may not be given on the appeal except with leave of the Commission: sub-s (6). The reference to “evidence” is to be understood in a broad sense, as the Commission is not bound by the rules of evidence and may inform itself in such manner as it thinks appropriate: s 354(2). Finally, the powers of the Deputy President on appeal permit the confirmation, revocation and remittal of the decision of the arbitrator and the making of a new decision in its place: s 352(7).

10 Where an appellate tribunal has power to hear further evidence, the appeal will commonly be one by way of rehearing, which requires determination of the appeal in accordance with the facts and law as they appear to the appellate tribunal. If the facts presented, or law applicable, on the appeal differ from those considered at the first hearing, it may seem inappropriate to say that the original decision-maker has erred; rather, it may be preferable to describe the decision as erroneous. An example may be found in Western Australia v Ward [2002] HCA 28; 213 CLR 1 where a particular “error” arose from statutory amendments which came into effect after the trial judgment was delivered: see [65]-[71].

11 Where the statute refers to an “appeal”, as opposed to a review, it may be intended that the appellate tribunal could vary or discharge the decision below only if satisfied that it was affected by a relevant error. However, the concept of an “appeal” does not necessarily invoke the precondition of a finding of error: an appeal may be by way of hearing de novo, where “the matter is heard afresh and a decision is given on the evidence presented at that hearing”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [13]. Furthermore, as noted in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at [64], the term “review” may connote a fresh consideration of a matter, without the need to find error before setting aside or varying the decision below. But even in a hearing de novo the appellate tribunal will not necessarily disregard conclusions reached by the original decision-maker. Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a manner similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118. Secondly, the appellate tribunal may be constrained in drawing inferences, not having seen the witnesses, but to a lesser extent, for reasons analogous to those identified in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, despite there being no need to find error. Thirdly, a similar constraint may arise in relation to the exercise of a discretionary power, again recognising that the appellate tribunal may not be required to find error: cf House v The King [1936] HCA 40; 55 CLR 499 at 505.

12 The fact that the term “appeal” may refer to a hearing de novo, the fact that the appeal is described as one “by way of review”, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a “new decision” in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the arbitrator was affected by identifiable error. There is no need to consider the constraints on the Deputy President which may arise from the circumstance that the arbitrator made findings based on credit in respect of oral testimony, where witnesses were not recalled on appeal.

13 In the present case, the Deputy President approached the appeal on the basis that it was necessary to identify error on the part of the arbitrator. This she did in three respects, summarised at [16] below. On one view, this renders it unnecessary to determine the precise nature of the appeal provided by s 352, from a decision of the arbitrator. On the other hand, if it were not necessary for the Deputy President to identify error, the appellant cannot succeed in this Court merely by showing an error in point of law with respect to a finding of the Deputy President as to error on the part of the arbitrator: it is necessary for her to show error affecting the new decision of the Deputy President.

Jurisdiction of this Court

14 The Workplace Injury Act gives a right of appeal to a party to proceedings before the Commission constituted by a presidential member who is aggrieved by a decision of the presidential member “in point of law”: s 353(1).

15 The amended notice of appeal filed by the appellant was discursive and, although it referred at some length to legal concepts, was not drafted by a lawyer. In part it sought to challenge so much of the President’s decision as rejected her appeal from the decision of the arbitrator in favour the Bank for the period 1 July 2003 to 4 April 2004. However, it was not possible to discern an error in point of law in respect of that aspect of the matter: see [21] below. Accordingly, the challenge to the dismissal of her appeal to the Deputy President from the decision of the arbitrator must be rejected.

16 The Bank’s appeal to the Deputy President was brought against the decision of the arbitrator allowing Ms Tan’s claim in respect of, amongst other things, a psychological injury identified under s 15 of the Workers Compensation Act (being a disease contracted by a gradual process) said to have occurred on 5 April 2004. The precise nature of the complaint will need to be identified in the context of the Deputy President’s findings, a matter addressed below. The Bank’s appeal was upheld by the Deputy President on three bases. First, she held that the Commission had no jurisdiction to consider such an injury, it not having been the subject of a “claim”. Secondly, she held that the Bank had been denied procedural fairness because it did not have an opportunity to investigate the alleged injury on 5 July 2004. Thirdly, the Deputy President found that the arbitrator had erred in failing to consider properly the application of s 11A to the injury identified as occurring on 5 July 2004.

17 Ms Tan challenged each of these findings and also contended that the Deputy President had demonstrated partiality and actual bias. The last claim may also involve a “point of law” vitiating the decision of the presidential member, for the purposes of the statutory appeal provision. If it does not, it would nevertheless constitute an available ground of relief under s 69 of the Supreme Court Act 1970 (NSW). However, for reasons explained by Young CJ in Eq, there is no substance in the challenge.

18 The challenge by Ms Tan to each of the findings of the Deputy President required establishment of an error in point of law for success on the statutory appeal. She also sought relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act and, indeed, under the Administrative Decisions (Judicial Review) Act 1977 (Cth), which has no application to a decision under a State enactment.

19 Decisions of the Commission are subject to a privative clause precluding challenge by way of review, quashing or calling into question, otherwise than as provided by the Workplace Injury Act itself: s 350. In accordance with established authority, that provision would not preclude challenge for jurisdictional error as it does not protect a purported, but invalid, decision: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476. However, the appeal provided under s 353, in point of law, is a sufficient basis for challenge for legal error and no further reference to review under s 69 is required.

Reasoning of Deputy President

20 There was considerable discussion at both levels in the Commission as to whether Ms Tan suffered an injury on 1 July 2003 and a psychological injury, deemed to have happened on 2 July 2003. Nothing turns on those findings for present purposes because the arbitrator was satisfied that she was not entitled to compensation for those injuries, applying s 11A of the Workers Compensation Act. That section provides in part:

“ 11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

21 Although Ms Tan challenged that finding, it involved a factual assessment of what occurred between Ms Tan and her superior officer at the Bank and a determination as to whether the conduct of the Bank officer was “reasonable action” taken with respect to “performance appraisal” or “discipline”. No legal error was identified in the finding of the arbitrator in that respect in favour of the Bank, which finding was upheld on appeal by the Deputy President.

22 Ms Tan’s first “claim” under the Workers Compensation Act was made by completing and signing the relevant form on 21 July 2003. Her application to resolve a dispute was filed on 28 May 2004 and registered on 4 June 2004. According to that application, the date of injury was identified as “[o]n or about 30 April 2003”. However, the details of the claim set out in the application identified an entitlement in respect of total incapacity dating from 5 April 2004. In seeking compensation for psychiatric treatment, the application also referred to “her recent relapse as evidenced by her certification as unfit on 5 April 2004”. Thus, although no further claim form was lodged, there was express notification of a change in circumstances (from part incapacity to total incapacity) dating from 5 April 2004.

23 In substantive terms, the significance of the arbitrator’s finding that there was a separate and independent injury on that date concerned the cause of that injury. So long as the injury arose out of or in the course of employment, it was potentially compensable. However, being a psychological injury, entitlement to compensation was subject to the defence available under s 11A. Although the defence was held to operate in relation to the psychological injury suffered on or before July 2003, a separate assessment was required if there were a further injury on 5 April 2004. The arbitrator found that the cause of the later injury was not within s 11A and hence the defence was not made out with respect to that further injury. The Bank complained that, without proper notice of the claim for a separate injury, it had not been able to investigate the cause or the possible relationship between the new injury and matters which might provide a defence. It complained of a denial of procedural fairness.

24 The Deputy President upheld the Bank’s arguments, not only in order to identify error in the decision of the arbitrator, but, consequentially, in relation to her own resolution of the dispute. She concluded that the terms of s 260(5) of the Workplace Injury Act, which would allow the recovery of compensation despite the failure to make a claim, were not engaged. The Deputy President envisaged that a new claim could still be made, investigated and if necessary adjudicated upon by the Commission.

25 The primary question raised by the appeal in point of law is whether the Deputy President erred in law in addressing the operation of s 260(5). If she had accepted that there was an evaluative finding to be made with respect to the operation of s 260(5), but declined to make such a finding, the appellant would have significant difficulty in establishing an error of law. If, however, the Deputy President made no finding because she had concluded, erroneously, that the power conferred by the section was not engaged, the appellant may well have demonstrated an error in point of law. The result would be that the matter would need to be remitted to the Commission for further consideration of the question.

26 The manner in which the Deputy President came to deal with this question in making a decision on review, commenced by asking “[w]as there an injury on 5 April 2004?”: at [116]. To have decided adversely to the Bank, that there was such an injury, would have been inconsistent with her conclusion that the Bank had been denied procedural fairness in so far as the issue was raised at all before the arbitrator. On the other hand, if the Deputy President concluded that there was no injury, it would have been inappropriate to suggest that Ms Tan was still entitled to make a claim upon the Bank in relation to such an alleged injury: at [139]. Accordingly, one might suppose that she did not make a finding in response to the question identified in the heading to [116]. At [121] the Deputy President stated:

“Whether or not Ms Tan had a further injury on 5 April 2004, she has not made a claim on the NAB for this injury. The NAB have not had the opportunity to consider liability in relation to it and there is, to date, therefore no dispute that is before the Commission in relation to a further injury on 5 April 2004.”

27 A degree of confusion arises because, in the first sentence of the next paragraph, [122], the Deputy President commenced:

“Having found that Ms Tan did not suffer a further injury it has not been necessary to determine the questions argued in relation to the NAB’s return to work obligations to Ms Tan ….”

28 The suggestion of a negative finding must be an error. Not only in the previous paragraph, and at [139], but in [122] itself, the Deputy President noted matters which would only need to be determined “if and when Ms Tan makes a claim on the NAB in relation to this injury”. Thus, despite formulating the question as a heading prior to [116] and, in the opening words of [122] appearing to assume a negative answer, the better view is that the question was not answered and there was no factual finding in respect of this possible separate injury. The approach that the Deputy President in fact took is to be gleaned from her finding of error in relation to the manner in which the arbitrator dealt with s 260(5). However, that discussion also requires resolution of apparently conflicting strands of reasoning.

29 These strands appear to have arisen because of the complaint by the Bank that the arbitrator had erred in “[e]xercising his discretion under s 260(5)”, to allow Ms Tan to claim an injury which occurred on 5 April 2004. This complaint suggested that the arbitrator had a “discretion” and that the section was, in its terms, engaged. At one point, the Deputy President appears to have found that the section was not engaged because “[i]t does not excuse a failure to make a claim at all”: at [77] (emphasis in original). Similarly, the Deputy President noted at [82] that the arbitrator “has purported to rely upon section 260(5) … to allow Ms Tan to make an application to the Commission in relation to a dispute about an injury … that has never been the subject of a ‘claim’ on the NAB (as opposed to an application in relation to a claim that does not meet the requirements of section 260 …)”. In other passages, she appears to have taken into account matters of procedural unfairness, namely that the Bank was not on notice of such a claim and had had no opportunity to consider its position in relation to it: at [82] and [121]. Similarly, she held that there was “no reason of law, fairness or otherwise, for the Arbitrator to ‘reframe’ Ms Tan’s claim in terms of three injuries”: at [83].

30 Questions of procedural fairness may be relevant only if there were a claim which the Commission could properly address. The references to “fairness” in the reasons are best understood as indicating that the Bank’s complaint was not merely technical.

Operation of s 260, Workplace Injury Act

31 The purpose, scope and operation of s 260 must be identified by reference to the language of the provision in its statutory context. The Workers Compensation Act states that a worker who has received an injury “shall receive compensation” from the worker’s employer in accordance with this Act: s 9(1). The circumstances in which compensation is payable, the amount payable and the means by which it is payable are all specified. Both the Workers Compensation Act and the Workplace Injury Act make reference in various parts to claims for compensation, but the term “claim” is not defined: cf definitions of derivative phrases in s 250(1) of the Workplace Injury Act.

32 The procedures specified for making claims are to be found in Ch 7 of the Workplace Injury Act. Those provisions commence with the requirement that “notice of the injury” be given to an employer as soon as possible after the injury happened, with the sanction that compensation is not recoverable unless such notice is given: s 254(1). There is, however, an exception for special circumstances, which are defined in s 254(3) to include:

“(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened ….”

33 A notice of injury may be given “orally or in writing”: s 255(2). Notification of an injury engages an obligation on the part of an insurer (or the Bank, as a self-insurer) to commence payments of compensation within seven days unless it has a “reasonable excuse for not commencing those weekly payments”: s 267(1). That obligation is neither dependent upon nor affected by the making of a claim for compensation: s 267. If the insurer does not commence payments, it must provide written notice to the worker of its reasonable excuse, including details of that excuse and what steps the worker may take: s 268.

34 Chapter 7, Part 2, Div 2 deals with “[m]aking a claim for compensation or damages”. It requires that a claim must be made “in accordance with the applicable requirements of the WorkCover Guidelines”: s 260(1). The relevant Guidelines are those which came into operation on 1 January 2002. The explanatory note with which they commence states that they are “primarily intended to assist WorkCover NSW Licensed Insurers”. They cannot, and do not purport to, affect the proper construction of the Act, as accepted by this Court in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244 at [32] and [41] (Mason P, Santow and Tobias JJA agreeing).

35 Subsections 260(2)-(4) provide for matters in relation to which the Guidelines may make provision and include the form and manner in which a claim “is to be made” and the means by which a claim “may be made”. Although they do not presently do so, the Guidelines may provide for waiving a requirement for the making of a claim in specified cases: s 260(4)(a). The insurer can waive a requirement of the Guidelines with respect to the making of a claim: s 260(6). The Guidelines can also require an insurer to notify a worker of a failure to comply with a requirement of the Guidelines and can provide for waiver of any such failure if the insurer fails to give the required notification: s 260(7). It is in that statutory context that s 260(5) provides:

“(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.”

36 Chapter 7, Part 4 deals with “[c]ompensation dispute determination”. It applies to a dispute “in connection with a claim for compensation”: s 287(1). Any party to a dispute about a claim may refer the dispute for determination by the Commission: s 288. Section 289 provides that a dispute about a claim for weekly payments “cannot be referred for determination by the Commission” unless the insurer disputes liability or fails to determine the claim as and when required by the Act. This provision no doubt assumes the existence of a “claim” and the existence of a “dispute” about the claim.

37 Section 289A imposes a further requirement, in relation to notification of disputes before referral for determination by the Commission. However, that provision commenced on 7 December 2005 and is not applicable to the present case.

38 A number of points of significance can be derived from these provisions. First, s 260 clearly envisages that a claim may not be made as required by the Guidelines and may yet constitute a “claim”. Secondly, it may readily be envisaged that factual disputes could arise as to whether a claim has been made and whether a dispute has arisen. Because the Commission is required to operate with as little formality and technicality as the proper consideration of matters before it permits (s 354(1)) and without regard to technicalities or legal forms (s 354(3)) the legislative scheme should be understood to confer on the Commission the power to determine whether or not a dispute has arisen or a claim has been made. That is not to say that the statute may not impose legal constraints, but the Commission is entitled to determine these matters for itself and an error will not be jurisdictional. The dicta to that effect in Fletcher at [39] should be followed.

39 The next question is whether s 260(5) operates where there has been no claim made, or only where a claim is defective or fails to comply with a requirement specified by a guideline.

40 The opening words of the provision are consistent with it operating where there has been a failure to make a claim at all. This conclusion receives support from the language of s 254(3)(b) in relation to a notice of injury. In that paragraph, the “failure” to give notice is compared with a “defect or inaccuracy” in the notice. While the language is not mirrored precisely in s 260(5), there is no reason to suppose that the more serious failure does not incorporate a lesser failure.

41 The alternative argument is that the reference to a failure to make a claim should be understood as a reference to the making of a defective claim. Section 260(5) expressly provides that a minor defect in form or style will not operate to bar recovery and, by implication nor will a substantial defect where occasioned by ignorance, mistake or other reasonable cause. However, the only textual support for reading-down the reference to a failure to make a claim to mean the making of a defective claim, is to take the subject-matter of a failure as making a “claim as required by this section”, thereby implying that a claim has indeed been made, but that it fails in some respect to comply with the requirements of the Guidelines. The difficulty with this approach is that the only formalities with respect to a claim are those specified in guidelines provided for by the section. Absent applicable guidelines, there would be no formal requirements.

42 The objectives of the Act, which are directed primarily to ensuring compensation for work-related injury, will not be promoted by a narrow reading of a provision which allows for recovery of compensation in circumstances where procedural requirements have not been followed. It was not in dispute in the present case that the Commission was bound to accord procedural fairness to each party. Accordingly, an inadequate, defective or even non-existent claim might require the adjournment of proceedings, or part thereof, and the provision of further information by the worker to the insurer. The adoption of a flexible procedure, expressly provided for by s 354, would be more conducive to the purposes of the legislative scheme than the adoption of a technical approach to a procedural requirement. It was, therefore, not correct to dismiss s 260(5) as unavailable in circumstances where there is “no claim at all”.

43 Support for that conclusion may be found in the factual circumstances of the case. What precisely did the Deputy President intend by saying that there was “no claim at all”? As the Guidelines recognise, a “claim” is a means of providing certain information: WorkCover Guidelines, Part 2, r 4. The “minimum information” is specified in r 6. It includes information about the date and time of the injury, how the injury happened, what part of the body was injured and whether the part was normal before the injury: r 6.5. The Guidelines say that the information must be in writing “on a form designed for making a claim”: r 4. They do not prescribe a form, nor a person or body to design a form, nor any specific requirements of the form otherwise than being in writing (which is inherent in the notion of a form). The application to resolve a dispute filed in the present case (and served on the respondent) contained, in Part 4, “claim details”. As already noted, those details included a claim for payment for total incapacity from 5 April 2004; and that the injury was identified as a psychological injury, which (apart from a period in late 2003) was identified as one involving part incapacity. The form also referred to medication, other forms of treatment and to the applicant’s “recent relapse as evidenced by her certification as unfit on 5 April 2004”. The application included much other formal information required to be supplied in a claim under the Guidelines. What the application clearly did not do was identify the “relapse” on 5 April 2004 as a separate and independent injury. In that sense, it was no doubt a deficient form of claim. At best it was ambiguous. Nevertheless, it is by no means clear that it did not constitute a claim at all, assuming that some clear dichotomy was required to be drawn between claims and non-claims.

44 That the Deputy President did draw such a dichotomy is clear from the fact that she did not consider the reasons for the failure to make a claim. It is clear that, had she done so, she would not have dismissed the argument peremptorily. Thus, in rejecting the Bank’s contention that the new claim was “a recent invention” she noted that it had been a submission adopted by Ms Tan at the request and encouragement of the arbitrator and “as she clearly states, was unaware of the complex legal issues that were involved”: at [119]. Had there been a “claim”, albeit inadequate in form, such a reason might well constitute ignorance or mistake of a kind constituting a reasonable cause for the failure. Whether or not it did in the particular circumstances of the case was a matter to be determined by the Commission, not by the Court.

45 If the matter is to be reconsidered, it may be helpful to note that the manner in which the Bank presented its grounds of appeal was potentially misleading. Subsection 260(5), like sub-s 254(2) in relation to a notice of injury, is not formulated in terms of a discretionary power. It is formulated upon the assumption that a failure to comply with the statutory requirements is, in each case, a bar to recovery and identifies circumstances in which that bar does not operate. The circumstances require a finding of either special circumstances (as defined) in relation to the notice of injury, or a form of reasonable cause, in relation to the failure to make a claim. In each case an evaluative finding is required and, by necessary implication, on the part of the Commission. However, once that finding has been made, the statutory bar is automatically lifted without further exercise of a discretionary power by the Commission. Accordingly, to speak of the Commission exercising a discretion in this context is apt to mislead.

Conclusion

46 For these reasons, I agree with Young CJ in Eq that there was an error of law in the manner in which the Deputy President approached the question of whether Ms Tan was able to have a claim for a separate injury arising on 5 April 2004 considered by the Commission. The matter must be remitted for determination according to law.

47 There are three further points which may be made in this respect. First, the point on which Ms Tan has succeeded is limited to the claim that she suffered a further injury on 5 April 2004. The further proceedings before the Commission should be limited to that matter.

48 Secondly, it appears that at all times it has been open to Ms Tan to file a further claim in relation to that matter which would have avoided the need for the appeal and the present remittal. At least in legal terms, it is difficult to perceive that she would be better off on a remittal than in having the Commission consider a new claim. In respect of her challenges to the findings of the Deputy President with respect to her own appeal, she has failed. In those circumstances there should be no order as to the costs of the parties in this Court.

49 Thirdly, the matter remitted to the Commission is the appeal brought by the Bank which has not been finally determined. The Bank has taken and failed on a technical point as to the existence of a relevant claim. The substance of the Bank’s complaint, however, was one of procedural unfairness. There does not appear to be any legal obstacle in the way of the Bank, now informed of the claim which is sought to be made, taking such steps as may be thought appropriate to investigate and assess the claim prior to any further hearing in the Commission. The matter should be determined on the merits as expeditiously as possible.

50 I would propose the following orders:

(1) Allow the appeal with respect to the decision of the Deputy President rejecting Ms Tan’s entitlement to invoke s 260(5) in relation to a claim for compensation in respect of an injury suffered on 5 April 2004.

(2) Remit that matter to the Commission to be determined according to law.

51 BELL JA: I agree with Basten JA.

52 YOUNG CJ in Eq: This is an appeal from a decision of a Deputy President of the Workers Compensation Commission (the Commission) made on 8 June 2006.

53 The appeal was heard on 7 April 2008. Ms Sharon Tan, the appellant appeared in person without legal representation and Ms A J Katzmann SC and Mr B D O’Donnell of counsel appeared for the respondent.

54 I will sketch briefly the background facts of the case before turning to the merits of the grounds of appeal.

55 The appellant commenced work as a mobile mortgage manager with the respondent in May 2002. From about April 2003, the appellant came under the supervision of one Ms Mary Rowland. As a result of a series of workplace incidents, the appellant claims to have sustained a psychiatric disorder, variously diagnosed as a depressive illness and an adjustment disorder.

56 The appellant made a claim for workers compensation by way of weekly benefits from 21 July 2003. The respondent made provisional payments of compensation pursuant to s 267 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) until 9 September 2003, at which point, liability was declined on the ground that s 11A of the Workers Compensation Act 1987 (the WCA) precluded payment of compensation in this case because the injury was caused by reasonable action in respect of, amongst other things, performance appraisal and discipline.

57 On 28 May 2004, the appellant filed an “Application to Resolve a Dispute” in the Commission seeking weekly benefits compensation and medical expenses under s 60 of the WCA. The dispute was then referred to an arbitrator.

58 The arbitrator delivered his reasons orally on 25 and 27 January 2005. It was found by the arbitrator that during the course of the appellant’s employment, she sustained: (i) a personal injury, namely, the psychological injury sustained on 1 July 2003; (ii) a “first disease” injury, which referred to the psychological injury deemed to have happened on 2 July 2003; and (iii) a “second disease” injury, namely the aggravation, exacerbation and/or deterioration of a psychological injury deemed to have happened on 5 April 2004.

59 The arbitrator then held that consistent with s 11A of the WCA, the appellant was not entitled to compensation in respect of her personal injury and the “first disease” injury. However, as a result of the respondent’s refusal to allow the appellant to return to suitable duties under a different manager, she suffered an exacerbation of her anxiety and depression amounting to the “second disease” injury, for which the appellant was entitled to compensation, and an award was made accordingly.

60 Both parties appealed the determination of the arbitrator under s 352 of the WIM Act. In an appeal to the Commission constituted by a presidential member from an arbitrator’s decision, the question to ask is whether the arbitrator erred, either by way of law, fact or discretion: see Allesch v Maunz (2000) 203 CLR 172 at 180. If such an error is established, and it is such that, but for it, a different decision would have been made, the presidential member determining the appeal may revoke the arbitrator’s decision and substitute a different reason for it, or may remit the matter to the arbitrator concerned or a different arbitrator for determination in accordance with any decision or directions of the Commission: see s 352(7) of the WIM Act.

61 On appeal, the Deputy President found that the proceedings before the arbitrator miscarried for a variety of reasons. In short, the Deputy President’s findings, so far as is relevant to the present appeal, can be summarised as follows:

(a) There was no personal injury suffered by the appellant on 1 July 2003 as the arbitrator had found;

(b) The appellant suffered from a psychological condition diagnosed as “anxiety and depression”, and as a result, she was incapacitated for work from 2 July 2003. However, no compensation was payable because the injury was wholly or predominantly caused by reasonable action taken by or on behalf of the respondent employer with respect to discipline within the meaning of s 11 of the WCA ; and

(c) There is no dispute before the Commission as to whether the appellant suffered a further injury on 5 April 2004, this is because the appellant has never made a claim on the respondent for this injury, and that the respondent had not had the opportunity to consider its liability in relation to it; hence as a matter of procedural fairness, it was not open to the arbitrator to decide that such an injury has occurred.

62 Accordingly, the Deputy President allowed the respondent’s appeal, and entered an award in its favour. No order as to costs was sought nor was made by the Deputy President.

63 In the instant case, the principal right of appeal relied on by the appellant is contained in s 353(1) of the WIM Act, which states:

“If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.”

64 The court is limited as to what it can do in such an appeal, as s 353(1) makes clear, unless the presidential member of the Commission erred in a point of law, the appeal must fail.

65 However, the appellant also sought to rely on prerogative relief under s 69 of the Supreme Court Act 1970, but, in view of the previous history of this litigation, that course, if it were ever open, is no longer open to her.

66 The appellant appeared in person in these proceedings. The amended notice of appeal setting out her grounds of appeal was somewhat convoluted. Some further grounds of appeal were contained in the appellant’s written submissions filed on 10 August 2007.

67 I have endeavoured to synthesise the appellant’s real and valid grounds of appeal: these seem to me to be as follows:

(a) The Deputy President erred by finding that the appellant had not made a claim on the respondent for the 5 April 2004 injury, that there was no dispute before the Commission as to this injury, and therefore no jurisdiction for the arbitrator to entertain this claim;

(b) The Deputy President erred by finding that the arbitrator’s exercise of his discretion under s 260(5) of the WIM Act miscarried to allow the appellant to claim the 5 April 2004 injury;

(c) The Deputy President erred by finding that there was a denial of procedural fairness so as to prejudice the respondent; and

(d) The Deputy President showed unacceptable bias against the appellant.

68 I will deal with each perceived ground seriatim.

(a) Whether the appellant made a valid claim for her 5 April 2004 injury

69 Ms Katzmann puts that for the Commission to have jurisdiction to consider an injury, a claim needs to have been made, and the liability for the claim needs to have been disputed, in whole or in part, by another party.

70 This is said to come about by the operation of ss 288-9 and 260 of the WIM Act. The structure is that there is a claim made, that there is a dispute about that claim and the jurisdiction of the Commission is to resolve that dispute. The whole structure collapses if there is no claim about which there can be a dispute.

71 The word “claim” is broadly defined in s 4 of the WIM Act to mean:

“a claim for compensation or work injury damages that a person has made or is entitled to make. ”

72 Section 288 of the WIM Act provides as follows:

“Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission…”

73 Section 289 of the WIM Act provides that certain things need to have occurred before the Commission has the authority to determine certain disputes. Sub-section (1) states:

“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.”

74 Section 260(1) of the WIM Act provides the following:

“(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.”

75 Section 260(2) then goes on to describe the ambit of the guidelines insofar as the guidelines may set out matters such as form, manner, means, information, specified documents and materials etc that are required in connection with the making of a claim.

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.”

78 It must be remembered too that s 354(1) of the WIM Act provides that:

“(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.”

79 There is no requirement that notification of a claim needs to be articulated in the statutory language of an “injury” or an ”aggravation”. Lack of strict compliance with s 260 and the Guidelines therefore does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.

80 However, the Deputy President and Ms Katzmann also argue for the view that there is a difference between making a claim which is defective and not making a claim at all.

81 At first blush this appears to be in the best tradition of legal reasoning, but it does not stand examination. As was put during argument, there is a very fine line between an exacerbation of an injury and a fresh injury and which side of that fine line a situation may fall may only be established after considering a large amount of technical evidence.

82 It is absurd to think that in an Act to assist workers, a worker could be left without any support at all because after a lengthy hearing his or her problem was held to be a fresh injury rather than an exacerbation and a separate piece of paper in the form of a prescribed claim had not been lodged in respect of it.

83 Furthermore, it would be surprising to those in the real world if, after an expensive hearing lasting many days, a tribunal came to the conclusion that it had never had any jurisdiction to commence as someone had omitted to serve a piece of paper.

84 I consider that the Deputy President erred in this respect and this error was probably brought about by her reliance on her previous wrong decision in Kurrajong Holdings v Carrette [2004] NSWWCCPD 8.

85 This error is clearly an error of law.

(b) Section 260(5) of the WIM Act

86 Section 260(5) of the WIM Act, which is what the arbitrator at first instance relied upon, provides the following:

“(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.”

87 At first instance, the arbitrator, exercised his discretion pursuant to s 260(5) of the WIM Act to allow the appellant to claim amongst other injuries, her injury sustained on 5 April 2004, namely the aggravation, exacerbation and/or deterioration of a psychological injury, citing the appellant’s employment as a substantial contributing factor. The arbitrator also found that the appellant’s failure to make such a claim was occasioned by ignorance, mistake and/or other reasonable cause.

88 On appeal, the Deputy President found that the arbitrator erred in “reframing” the appellant’s claim in terms of three injuries. The Deputy President said at [83]-84] of her judgment that:

“this was not a case where the evidence clearly supported this ‘reframing’ as the employer was clearly on notice of the nature of the injury because the facts and the medical evidence spoke for themselves, despite defects in the details provided on the claim form. Ms Tan’s claim was clear when it was made on the employer and when it was described in the Application to the Commission… the Arbitrator erred in exercising his discretion under section 260(5) to allow Ms Tan to claim the three injuries on 1 and 2 July 2003 and 5 April 2004 …”

89 In the present appeal, it is common ground that a claim form for the 5 April 2004 injury was not submitted in the usual manner or form pursuant to s 260 of the WIM Act or the Guidelines.

90 However, the appellant argues that the respondent received initial notification of her 5 April 2004 injury upon receipt of the appellant’s WorkCover medical certificate dated 14 April 2004 signed by Dr C Tan. The appellant argues that despite the certificate not being couched in the language of an “aggravation”, it is sufficient to constitute initial notification to the respondent which triggered certain statutory obligations on behalf of the respondent.

91 The appellant also relies on the report of Dr Lana Kossoff dated 17 September 2004 as sufficient notification to the respondent of her 5 April 2004 injury. The report states that the appellant’s condition has deteriorated, and that she felt overwhelmed because she could not return to work. Dr Kossoff said specifically:

“Ms Tan presents more depressed currently than when I assessed her in August 2003… her deterioration has been due to the protracted return to work process and part of her recovery would involve returning to work in some form…”

92 The appellant further put in oral submissions that had her 5 April 2004 injury been a mere continuation from the injury which occurred in April 2003, she would not have been entitled to weekly payments of compensation under s 36 of the WCA in respect of the 5 April 2004 injury. The arbitrator determined at first instance that the appellant was entitled to compensation pursuant to s 36 for total incapacity for the period 5 April 2004 up to and including 9 September 2004, and pursuant to s 38 for partial incapacity deemed to be total incapacity from 10 September 2004. As such, the appellant argues that the respondent is precluded from submitting that there is a no “claim”, and that the 5 April 2004 injury must be regarded as a fresh injury that is within the arbitrator’s jurisdiction to assess.

93 The respondent argues in respect of the 5 April 2004 injury, no such claim was ever pleaded or particularised, and that it was only after the arbitrator raised the question of whether there was a fresh injury in the nature of an aggravation during final submissions on 21 December 2004, that the appellant decides to embrace this “hypothesis”.

94 It is not for this court to rule or comment on those assertions. The Deputy President upheld the contention of the respondent that it was unfair to it to have to deal with the reframed allegations without having had adequate opportunity to investigate and consider the facts before meeting the reframed case.

95 What is odd, however, is that the Deputy President did not take steps to see that the procedural unfairness was overcome by giving the respondent time to put forward further evidence or to make further submission, or to remit the matter for a fresh hearing at first instance. Rather, she set aside the arbitrator’s procedural decision. It seems to me clear that she did this because of her error in considering that the Commission had no jurisdiction to consider the 5 April 2004 injury.

(c) Did the Deputy President err in considering that the respondent had been denied procedural fairness?

96 Despite the appellant’s submissions, I do not see any error of law in the Deputy President’s treatment of this issue.

(d) Did the Deputy President show unacceptable bias towards the appellant?

97 It is clear that the Deputy President considered that the arbitrator had gone too far in assisting a litigant in person and that problems had been caused at first instance because of this and because the appellant had not always followed what the arbitrator was doing.

98 It is also clear that the Deputy President was sure of her decision in Kurrajong. However, handing a copy of that judgment to an unrepresented party at the hearing and conveying the impression that that judgment was unarguably correct, was not the most helpful way to proceed.

99 However, these matters do not by any stretch of imagination constitute bias.

100 It follows from what I have said that as a result of two errors, the decision of the Deputy President must be set aside and the matter remitted for decision according to law.

101 I should add some thoughts on collateral matters.

102 First, although we were told on more than one occasion that it would be open for the appellant even now to lodge a claim for the second injury, s 261 of the WIM Act would now seem to rule that out. There was some suggestion that the respondent would not plead the section, but the question as to whether this was able to be done was not explored.

103 Secondly, the case seems to have taken 13 days before the arbitrator and with further hearing time before the Deputy President and in this court, it is most regrettable that the matter has to be remitted. However, there seems no alternative as a matter of justice. We were told that the possibility of mediation may still be open and we would encourage the parties most seriously to consider that method of terminating these proceedings.

104 In view of the reasons of Basten and Bell JJA, there should be no order as to costs.

105 I would propose the following orders:

1. Appeal allowed.

2. Orders of Deputy President Fleming be set aside.

3. Remit the proceedings to a presidential member of the Workers Compensation Commission to be dealt with according to law.

4. No order as to costs.

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