Toll Pty Limited v Dean

Case •

[2004] NSWWCCPD 72

•

25 October 2004

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Toll Pty Limited v Dean

[2004] NSWWCCPD 72

APPELLANT:  Toll Pty Limited

RESPONDENT:  Raymond John Dean

INSURER:Toll Pty Limited

FILE NUMBER:  WCC 3915-04

DATE OF ARBITRATOR’S DECISION:          27 July 2004

DATE OF APPEAL DECISION:  25 October 2004

SUBJECT MATTER OF DECISION:                Refusal by the Arbitrator to issue Directions to Produce Documents

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:On the papers.

REPRESENTATION:  Appellant:  Leigh Virtue & Associates, Solicitors

Respondent:  Lamrocks Solicitors & Attorneys

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

THE APPEAL

  1. On 23 August 2004 Toll Pty Limited (the Appellant Employer) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision of an Arbitrator, dated 27 July 2004.

  1. The Respondent to the Appeal is Raymond John Dean (the Respondent Worker/Mr Dean).

  1. The appeal was referred to me for review on 20 October 2004.

ISSUES IN DISPUTE

  1. The issue in dispute in the appeal is whether the Arbitrator erred in refusing the issue of “out of time” Directions to Produce Documents, directed to the District Court and to Dr Cleary.

JURISDICTION

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

  1. In this matter I am satisfied that the appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).

  1. The Appellant Employer submits that the threshold requirements of section 352(2) of the 1998 Act do not apply:

“as the appeal is against the decision as contemplated under subsection (8) of the said section and is in the nature of a ruling and direction.  In this regard the appellant relies on the decision of the Deputy President in Fletcher International Exports Pty Limited re: Mawson…The appellant says that as the direction which constitutes the decision appealed against affects or may affect the entire amount of the claim which is the subject of the dispute, leave to appeal should be granted having regard to the authority referred to… In addition the appellant says that the total amount at issue in the proceedings exceeds $5,000.00.”

  1. The decision in Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, supports the Appellant Employer’s submission that section 352(2)(b) has no application in relation to this appeal. However, it does not support the proposition that

    the whole of section 352(2) does not apply. Section 352(2)(a) applies to all appeals to Presidential members from the decisions of Arbitrators. Appeals may not proceed without the grant of leave of the Commission constituted by a Presidential member (section 352(1) of the 1998 Act). However, in this matter, the amount in dispute exceeds the threshold of $5,000, as the claim is for weekly payments of $1,500 per week for six weeks plus medical or related expenses of $3,055. I agree that the amount of the claim in dispute between the parties is or may be affected by the decision of the Arbitrator and that the amount of compensation at issue on the appeal is the whole of the amount claimed.

  1. The definition of “decision” in section 352(8) of the 1998 Act, includes “an award, interim award, order, determination, ruling and direction.” The decision of the Arbitrator falls within that definition, for the purposes of the appeal.

  2. No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).

  3. Leave to appeal is granted.

ON THE PAPERS REVIEW

  1. Section 354(6) of the 1998 Act provides:

    “(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

  1. The Appellant Employer submits that the appeal can be determined on the papers but only if the appeal is allowed.  The Respondent Worker has no objection to the matter being determined on the papers.

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and taking into account the submissions by the parties, 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 in accordance with section 354(6) of the 1998 Act.  

ARBITRATOR’S REASONS FOR DECISION

  1. The Arbitrator’s reasons for decision are:

“The late issue of the Directions to Produce is a matter which should and could have been raised at the telephone conference since the letter of request is dated 24th June, 2004.  According to the Arbitrator’s records it was not raised.  Raising the matter at the telephone conference would have given the applicant the opportunity to express a view on this request and the matter could have been resolved there.

A repetition of the words of the appropriate rule does not constitute an argument for the late issue of the Direction.  There is insufficient information contained in the letter relating to the particular facts of this case to provide a basis for the late issue of the Direction to Produce.”

SUBMISSIONS

  1. In summary, the Appellant Employer has submitted that:

·       The Arbitrator gave the parties no opportunity to be heard in respect of the decision made.

·       The Arbitrator has left open the question of the possibility of the Directions being issued at the next telephone conference, however the Respondent Worker has been referred to an Approved Medical Specialist and the records sought under the Directions to Produce are relevant to the determinations of the Approved Medical Specialist and should be provided to him/her.

·       The decision is both an error and ultra vires.  The Arbitrator has not complied with section 355(1) and in particular, has not used her best endeavours to bring the parties to a settlement acceptable to all of them. “In this regard the appellant notes that if the Arbitrator had complied with the requirements of the said section, it is reasonable to expect that the Directions would have been issued, noting that neither the applicant worker nor his representatives have sought to object to the issuing of the Directions sought in accordance with the requirements of Rule 47(5) [Workers Compensation Commission Rules 2003 (the Rules)] or at all.”

·       The assertions included in the Arbitrator’s decision to the effect that the requirement for the issue of the Directions was not raised at the teleconference are incorrect.  It was anticipated that the application would be dealt with by the Registrar, in the normal way as required by the Rules.

·       The Respondent Worker did not avail himself of the opportunity to object to the issue of the Directions, in accordance with the Rules.

·       The Arbitrator’s assertion that the application for the issue of the Directions to Produce amounted to a repetition of the words of the relevant Rule is incorrect as the application “clearly sets out submissions in support of the issuing of the Directions in the manner specifically consistent with the requirements of Rule 47(3).”

·       The Arbitrator failed to afford the Appellant Employer “natural justice and procedural fairness” in failing to provide the Appellant Employer with an opportunity to be heard in respect of the application or in support of the submissions made, prior to making a determination, and this failure constitutes an error of law.

  1. In summary, the Respondent Worker has submitted that:

·       Pursuant to the Commission’s timetable the parties had until 1 April 2004 to issue directions for production of documentation.  The Solicitors for the Appellant Employer issued a Direction to the Respondent Worker in accordance with that timetable.

·       The Arbitrator was informed at the teleconference that there was no prospect of settlement; that it was a medical issue and that the matter would need to be referred to an Approved Medical Specialist.  Agreement was reached that the matter should be referred to Dr Jim Ellis, Orthopaedic Specialist.  Certain specific questions were directed to Dr Ellis by the Arbitrator.  There was no mention at the teleconference of the requirement or need to issue Directions out of time.

·       On 29 July 2004 a letter dated 28 July 2004 was received from the Commission enclosing a copy of the Direction dated 27 July 2004, made by the Arbitrator.  “That was the first notification that the Respondent/Worker received of any problem with Directions.”

·       The first indication of what Directions were sought by the Appellant Employer, was contained in the documents lodged with the appeal against the decision of the Arbitrator to refuse to issue those Directions.

·       The Respondent Worker has never had the opportunity to object or consent to the issue of the Directions sought.  The Respondent Worker can neither consent nor object to the issue of the Directions as he has no idea what documentation is being sought.

·       The Respondent Worker asks, “if the documentation they are seeking is relevant or important to the consideration of the AMS why did they not issue the Directions in accordance with the timetable.”

·       The Respondent Worker is anxious that the examination appointment, scheduled with Dr Ellis, should not be disturbed or delayed.

DISCUSSION AND FINDINGS

  1. Rule 47(2) provides that a proposed direction for production must be lodged within 28 days from the date of registration of the application to resolve a dispute in the proceedings.  The application to resolve the dispute in this matter was registered in the Commission on 4 March 2004.  The Directions to Produce, the subject of this appeal, were received in the Commission on 1 July 2004, under cover of a letter dated 24 June 2004, from the Solicitors for the Appellant Employer.  In that letter, the Solicitors for the Appellant Employer stated that a copy had been provided to the Solicitors for the Respondent Worker.

  1. The Respondent Worker claims that there was no mention at the teleconference about the issue or otherwise of Directions to Produce, out of time.  From the submissions made by the Respondent Worker, it seems that the letter of 24 June 2004 from the Appellant Employer, was never received by him/his Solicitors, and he is not in a position to consent or object, as he has “no idea what documentation is being sought”.

  1. The file in this matter contains a letter dated 8 July 2004 from the Solicitors for the Appellant Employer, stating that their letter of 24 June 2004 and attachments, were returned to their office “without having the Directions sealed and appointed a return date.”  The original letter and the attachments were returned to the Commission, being received on 12 July 2004.  On 19 July 2004 email contact was made with the Arbitrator by the Commission advising her of this correspondence and attachments and seeking guidance in the following terms “Can these Directions be sealed and issued?”  The Arbitrator indicated that there was no mention of these in her notes and no request had been made during relevant discussions at the teleconference, for the documents to go to the Approved Medical Specialist.  However, the Arbitrator stated that she would examine the documents to ascertain whether arguments were put that she should consider.

  1. There is no note on the Commission file to indicate why the Appellant Employer’s Solicitors’ letter of 24 June 2004 was returned to their office.  However, I note that the  letter was not received in the Commission until after the teleconference on 29 June 2004. 

  1. Neither the Arbitrator nor the Respondent Worker knew of the existence of the proposed Directions to Produce, at the time of the teleconference.  The Solicitors for the Appellant Employer did not raise the matter at the teleconference, notwithstanding that the referral to the Approved Medical Specialist was the subject of discussion between the parties and the Arbitrator.  The Appellant Employer now states that it was assumed that the application for the Directions to Produce would be dealt with by the Registrar “in the normal way”.    

  1. While there was clearly some administrative failure on the part of the Commission in the first instance, in the processing of the application for the Directions to Produce, it is difficult to understand why the Solicitors for the Appellant Employer made no mention of the matter during the relevant discussions at the teleconference, when they knew that they wanted the documents being sought, to be taken into account by the Approved Medical Specialist in the assessment of Mr Dean, on 3 November 2004.

  1. It is clear that the Arbitrator did not know of the existence of the proposed Directions to Produce at the date of the teleconference.  It first came to her notice in the email dated 19 July 2004.  Furthermore, I accept that the Respondent Worker did not receive the Appellant Employer’s letter of 24 June 2004 and consequently, he did not know of its existence either.

  1. In denying the request for the issue of the Directions to Produce, the Arbitrator left it open for the matter of the late issue of the Directions to be raised at the next teleconference, “if it is still considered necessary at that point”. 

  1. Had the Appellant Employer raised the matter at the telephone conference on 29 June 2004, it is distinctly possible that this dispute over the issue of the Directions to Produce would not have occurred.  Notwithstanding that the Appellant Employer claims that he expected that the Registrar would deal with the matter “in the normal way”, it was incumbent upon him to raise the matter at the teleconference, when the very issue of the referral to the Approved Medical Specialist and its terms, was being discussed and negotiated between the Arbitrator and the parties.  The fact that the Appellant Employer remained silent, and the matter was not raised or addressed at the teleconference, cannot be attributed to the Arbitrator or the Respondent Worker.    

  1. In terms of the process and procedure up to and including the teleconference, I can find no error on the part of the Arbitrator.

  1. However, while I agree with the Arbitrator’s statement of principle that “A repetition of the words of the appropriate rule does not constitute an argument for the late issue of the Direction”, I am unable to conclude that this is what the Appellant Employer did.  In providing an explanation to satisfy Rule 47(3), he submitted that the information regarding the document sought was only available when records were produced to the Commission by Dr Coffey and TNT, and subsequently inspected and copied; that failure to issue the Directions would cause substantial injustice to the Appellant Employer as it would be precluded from obtaining records necessary to assist in the determination of the issues raised in the claim, and that the other party to the proceedings would not be prejudiced by the issuing of the Direction, noting that the records and the information contained in them, are fully known to the Respondent Worker.

  1. The Arbitrator’s finding that “There is insufficient information contained in the letter relating to the particular facts of this case to provide a basis for the late issue of the Direction to Produce”, follows immediately after her preliminary statement of principle.  However, notwithstanding that observation of principle, the Arbitrator did not proceed to find that there was no information in the Appellant Employer’s letter (as would have been the case had it been simply a repetition of the Rule).  She found that the information that was put forward was insufficient to satisfy her as to the requirements of Rule 47(3).  I am satisfied that it was open to her to arrive at that conclusion, on what was put before her in writing, some time after the teleconference.  However, the Arbitrator has not finally rejected the proposed issue of the Directions to Produce and is prepared to consider the matter further, at the next teleconference to be held after the return of the file from the Approved Medical Specialist, following the assessment scheduled for 3 November 2004, if it is considered to be necessary at that point. 

  1. If, in the event that the substantive dispute is not settled, and the Arbitrator does agree ultimately to the issue of the Directions to Produce, a decision will need to be made as to the way in which the information obtained is used, as the Approved Medical Specialist will not have had the benefit of the information set out in the documents sought.  While this may not be entirely satisfactory to the Appellant Employer, it must be said again, that it is likely that the issue of the Directions to Produce would have been resolved at the teleconference before the Arbitrator, had this relevant matter been raised by the Appellant Employer during the discussions that took place regarding the referral to the Approved Medical Specialist.      

  1. While there have been some failures in terms of communication between the parties, and between the Commission and the parties, in this matter, I find that the Appellant Employer has failed to establish any error of law, fact or discretion in the decision of the Arbitrator.  

DECISION

  1. The appeal is unsuccessful. The decision of the Arbitrator is confirmed.

Gary Byron

Deputy President  

25 October 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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