University of New South Wales v Lee
[2020] NSWWCCPD 33
•28 May 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | University of New South Wales v Lee [2020] NSWWCCPD 33 |
| APPELLANT: | University of New South Wales |
| RESPONDENT: | Ida Lee |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-1340/20 |
| ARBITRATOR: | Ms C Rimmer |
| DATE OF ARBITRATOR’S DECISION: | 8 April 2020 |
| DATE OF APPEAL DECISION: | 28 May 2020 |
| SUBJECT MATTER OF DECISION: | Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal interlocutory decisions – certification by legal practitioner of reasonable prospects of success |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr C Tanner, counsel | |
| McNally Jones Staff | |
| ORDERS MADE ON APPEAL: | 1. The name of the appellant (the respondent in the proceedings below) wherever it appears is amended to read “University of New South Wales”. 2. Leave to appeal is refused. 3. The matter is remitted to the same Arbitrator for determination of the dispute. |
INTRODUCTION AND BACKGROUND
In this matter, Ms Ida Lee claimed weekly payments and treatment expenses in respect of an alleged psychological injury in the course of her employment with the University of New South Wales (UNSW). The injury was deemed to have occurred on 8 January 2020. UNSW accepted liability on a provisional basis pursuant to s 267 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 10 February 2020, UNSW notified Ms Lee that an Independent Medical Examination (IME) had been arranged for her to be examined by Dr Deepinder Miller, psychiatrist, on 18 March 2020. The reason put forward by the appellant for the medical examination was that clinical notes had been requested from Ms Lee’s general practitioner, Dr John Cosgriff of the Broadway General Practice, but had not been received.[1]
[1] Miscellaneous Application (Application), pp 4–6.
By email dated 10 February 2020, Ms Lee’s legal representative, Mr Richard Brennan, objected to the examination on the basis that Dr Cosgriff had only received the request the week before and had forwarded a tax invoice to the appellant for payment for the provision of the notes. Mr Brennan referred to s 119 of the 1998 Act, which required that any medical examination must be arranged in accordance with the Workers Compensation Guidelines.[2]
[2] Application, p 7.
On 17 February 2020, UNSW responded to Mr Brennan, asserting that the examination was in accordance with the Guidelines, and if Ms Lee did not attend, her payments would be suspended.[3]
[3] Application, p 9.
Thereafter a “stand-off’ ensued, in which Ms Lee refused to attend the medical examination and UNSW insisted that the respondent’s payments would cease.[4]
[4] Application, pp 10–12.
On 2 March 2020, Dr Cosgriff confirmed that the tax invoice he had sent for the provision of his notes had not yet been paid.[5]
[5] Application, p 13.
UNSW suspended Ms Lee’s payments on 18 March 2020.
Ms Lee commenced proceedings in the Commission. Ms Lee sought an order that the proposed IME with Dr Miller on 18 March 2020 did not comply with s 119 of the 1998 Act or the Workers Compensation Guidelines and pursuant to s 119(4) of the 1998 Act, she was not required to the attend the IME.
A telephone conference was held by Arbitrator Rimmer on 7 April 2020, in which Mr Brennan appeared for Ms Lee and Mr Michael Taylor from Leigh Virtue & Associates appeared for the appellant. The Arbitrator heard oral submissions from Ms Lee. On 8 April 2020, the Arbitrator issued a direction in the following terms:
“1. The respondent is to lodge and serve by 9 April 2020 written submissions.
2. At the conclusion of the time allowed for submissions, the dispute will be determined ‘on the papers’.”
Following the telephone conference, Mr Paul Macken of Leigh Virtue & Associates, applied to the Commission for a transcript of the telephone conference and was advised that the telephone conference had not been recorded.
On 9 April 2020, the appellant lodged an Application – Appeal Against Decision of Arbitrator, which was rejected as it did not comply with Practice Direction No 6.
On 14 April 2020, Arbitrator Rimmer issued a further direction in the following terms:
“In the telephone conference on 7 April 2020 I directed the respondent is to lodge and serve written submissions by 9 April 2020. I note that the respondent was represented by Mr Michael Taylor from Leigh Virtue & Associates in the telephone conference. Following the telephone conference Mr Makin [sic, Macken] of Leigh Virtue & Associates requested a transcript of the telephone conference proceedings. It appeared that Mr Makin, rather than Mr Taylor, was now to make submissions on behalf of the respondent. The telephone conference was not recorded and a transcript is not available. Mr Makin advised the Registry that the lack of a transcript made it ‘essentially impossible to comply with the order’ made on 7 April 2020. Mr Makin then lodged an Application - Appeal Against Decision of Arbitrator on 9 April 2020, which was rejected by the Registrar on 9 April 2020. To enable this matter to be determined in a timely manner, I will determine this matter on the papers and make the following directions:
1. Applicant to file and serve written submissions by 17 April 2020.
2. Respondent to file submissions in reply by 22 April 2020.
3. The matter will then be determined on the papers.”
Ms Lee filed her submissions on 15 April 2020. UNSW filed its submissions on 22 April 2020.
In the meantime, on 14 April 2020, UNSW filed a fresh Application – Appeal Against Decision of Arbitrator identifying the decision appealed against as that of Arbitrator Rimmer dated 8 April 2020, which is the appeal herein considered. A delegate of the Registrar considered that, in the circumstances, the matter should be expedited and on 17 April 2020 issued an expedited timetable. After being granted two extensions of the timetable because of non-compliance, Ms Lee finally filed her Notice of Opposition to Appeal Against Decision of Arbitrator (opposition) on 18 May 2020.
ON THE PAPERS
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.”
Both parties have indicated that the appeal can be determined on the basis of the documents before me.
I have had 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 those 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NAME OF THE APPELLANT
The name of the appellant in these proceedings and the respondent in the proceedings before the Arbitrator appears as “UNSW Sydney,” which is not a legal entity and is inconsistent with s 5 of the University of New South Wales Act 1989. Section 5 describes the correct legal entity as “University of New South Wales.” In response to a Direction issued by a delegate of the Registrar, the appellant confirmed that the correct name of the entity was “University of New South Wales.” The respondent (the applicant in the proceedings below) consents to the name of the appellant (the respondent in the proceedings below) being amended. Accordingly, the name of the appellant (the respondent in the proceedings below) wherever it appears is amended to read “University of New South Wales.”
FRESH EVIDENCE
Ms Lee seeks to adduce fresh or new evidence on appeal in the form of an affidavit from Mr Brennan sworn 15 May 2020, in which Mr Brennan set out the procedural background of the matter and his recollection of what had transpired at the telephone conference. UNSW opposes the admission of Mr Brennan’s affidavit. The substance of Mr Brennan’s affidavit was as follows:
“1. I am the solicitor for the respondent herein.
2. I appeared for the worker, by telephone, at the hearing before Arbitrator Rimmer on 7 April 2020.
3. Mr Michael Taylor appeared for the employer/appellant.
4. I recall that when the Arbitrator stated that she proposed to deal with the matter as an Expedited Assessment and hear submissions that day.
5. Mr Taylor stated that he was not ready to make submissions because Mr Macken had carriage of the matter.
6. I recall that the Arbitrator stated that she considered the matter to be urgent, and that she would hear submissions on behalf of the worker, and give the appellant leave to lodge written submissions by 9 April 2020.
7. I have no recollection of any application for an adjournment. I can state that had Mr Taylor applied for an adjournment, I would have opposed it, and would recall that contest. The fact that I have no recollection of any contending arguments regarding adjournment of the matter indicates that there was no such application.
8. I have no recollection of Mr Taylor asking the Arbitrator to issue Directions. Had he done so, I would have opposed any such application on the basis that there was sufficient material before the Arbitrator, and that no further material could have any bearing on the issues to be determined. The fact that I have no recollection of any contending arguments regarding the issue of Directions for Production indicates that there was no such application.
9. I do recall that Mr Taylor did not indicate that he had any instructions to resolve the dispute by settlement.
10. It will be noted that Mr Macken wrote to the Commission on 8 April requesting a transcript so that he could ‘prepare submissions’ (Annexure A). He plainly intended to resist the worker's application, and had no interest in engaging in settlement discussions (which could have been conducted before, at, and after the hearing before the Arbitrator).”
Subsection 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
UNSW opposes the admission of the document on the following bases:
(a) Mr Brennan’s assertions are disputed;
(b) the appropriate way to determine what occurred at the telephone conference is by reference to the transcript which is not available;
(c) the absence of a transcript is a basis for revoking the Arbitrator’s determinations;
(d) it is obvious from the schedule of directions that those directions were sought at the telephone conference, and
(e) Mr Taylor specifically made application for the matter to be stood over and Mr Brennan’s failure to recall that does not mean that it did not happen.
Consideration
Section 352(6) of the 1998 Act allows the Commission to grant leave to adduce fresh or additional evidence if satisfied of one of the two alternative threshold conditions specified in the sub-section. That is, whether the evidence sought to be adduced was not available to the party and could not reasonably have been obtained by the party, before the proceedings concerned, or alternatively, whether the failure to admit the evidence would cause a substantial injustice in the case.[6]
[6] CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 per Barrett JA (Macfarlan JA agreeing), [27].
The document clearly could not have come into existence until after the telephone conference, so that it could not have been relied upon at that stage and accordingly constitutes fresh evidence.
Apart from UNSW’s submission that a transcript is the appropriate way to determine what had occurred in the telephone conference, the submissions made in objecting to the document do not address the matters referred to in s 352(6) of the 1998 Act and are, in effect, an attempted reply to that evidence.
In the absence of a transcript (the effect of which will be discussed below), the only avenues available to ascertain what decisions were made by the Arbitrator are the recollection of the parties who were present, and the directions issued by the Arbitrator. The document is therefore relevant to the question of whether or not UNSW’s appeal grounds are made out.
UNSW had the opportunity to seek leave to file a response to the evidence by way of affidavit from Mr Taylor at the time it filed its Reply to the Opposition, or at some later stage, which it chose not to do. Having had that opportunity to address the evidence, there is therefore no prejudice to UNSW if the document is admitted.
The affidavit of Mr Richard Brennan dated 15 May 2020 is admitted for the purpose of this appeal.
GROUNDS OF APPEAL
UNSW contends that the Arbitrator erred in respect of:
(a) Ground A: error of law in denying UNSW procedural fairness;
(b) Ground B: error of law by failing to give any reasons;
(c) Ground C: error of discretion in failing to deal with the application for leave to issue directions, and
(d) Ground D: error of law in that the Arbitrator failed to use her best endeavours to bring the parties to the dispute to a resolution in accordance with her obligations under s 355 of the 1998 Act.
INTERLOCUTORY DECISION
UNSW seeks leave to appeal from alleged decisions made by the Arbitrator which are procedural matters. UNSW concedes that the alleged decisions are interlocutory in nature. The relief sought by UNSW is to have the alleged decisions revoked and the matter remitted to another arbitrator.
The dispute before the Arbitrator is limited to the question of whether UNSW was entitled to suspend Ms Lee’s compensation payments which she was receiving in respect of her psychological condition. The issue is part heard before the Arbitrator.
Section 352(3A) of the 1998 Act provides that there is no appeal under this section 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. It is therefore necessary to consider the nature of the dispute and the orders sought on appeal. It is appropriate to take into account the merits (if any) of the grounds of appeal.
Submissions
Ms Lee filed lengthy submissions which largely consisted of a detailed recital of the procedural history, the submissions made to the Arbitrator on the merits of the substantive matter and a scathing attack on the behaviour of Mr Macken and UNSW. Suffice it to say that the submissions relevant to the issues on appeal consisted of an adoption of the evidence of Mr Brennan and the submission that the grounds of appeal are without foundation.
The submissions made by UNSW are considered in the context of the merits of each ground of appeal.
Consideration of the merits
Ground A: denial of procedural fairness
UNSW’s first contention is that it has been denied procedural fairness because the Arbitrator proceeded to arbitration at the telephone conference without notice when UNSW was not in a position to proceed. The Arbitrator clearly took into account UNSW’s unreadiness by hearing submissions from Ms Lee and standing the matter over in order to provide UNSW with the opportunity to prepare submissions in reply.[7] The Arbitrator then issued a further direction that Ms Lee provide submissions in writing and UNSW have the opportunity to reply, in order to address the absence of the transcript of Ms Lee’s submissions.[8] I cannot see how UNSW has been denied procedural fairness in that process. Both parties have filed submissions and the Arbitrator is, but for this appeal, in a position to fairly determine the matter.
[7] Arbitrator’s Direction dated 8 April 2020
[8] Arbitrator’s Direction dated 14 April 2020.
Given the decision by the Arbitrator recorded in the Directions dated 8 April and 14 April 2020, I am not satisfied that the Arbitrator proceeded to arbitration without adequate notice, and the absence of a transcript of her reasons is therefore immaterial.
Secondly, UNSW contends that the Arbitrator failed to consider or deal with its application for leave to issue directions for production, which was also procedurally unfair.
A party may appeal to a Presidential member against a decision by the Commission constituted by an Arbitrator.[9] A “decision” is defined in subs (8) of s 352 to include an award, interim award, order, determination, ruling and direction. I must therefore be satisfied that the Arbitrator made the “decision” about which UNSW complains.
[9] Section 352(1) of the 1998 Act.
I am not satisfied that there is evidence to establish that UNSW made an application to the Arbitrator to issue directions for production. The submissions on behalf of UNSW made on the appeal were prepared by Mr Macken who was not present in the telephone conference. Mr Macken’s assertion that such an application was made is not supported by any evidence, such as affidavit evidence from Mr Taylor that he did in fact make the application, a contemporaneous file note made by Mr Taylor of having made the application, or any evidence from Mr Macken as to how he was aware such an application was made.
In that context, Mr Brennan gave evidence in the form of an affidavit that he had no recollection of such an application being made and that if it had, it would have been opposed by him. He provided reasons why he would have opposed such an application had it been made and said that his failure to recollect such an application indicated that it was not made. Further, the Arbitrator’s Direction issued on 8 April 2020 was silent of any reference to the alleged application being made or refused, as was the Direction dated 14 April 2020, which incorporated a procedural history of the matter. The evidence of Mr Brennan, while not persuasive of itself, tends to indicate that no application was actually made.
In the absence of evidence to establish that the application was made, which could have been adduced by UNSW and was not, I cannot be satisfied that the Arbitrator made a “decision,” or failed to consider or make a “decision,” against which UNSW has a right to seek leave to appeal.
Consequently, I am not satisfied that this appeal ground has merit and I refuse leave to appeal in respect of Ground A.
Ground B: failure to give reasons
UNSW contends that the Arbitrator failed to give reasons for:
(a) refusing its application for adjournment;
(b) refusing or failing to consider its application for leave to issue Directions, and
(c) proceeding with an arbitration of the matter, contrary to the Notice issued by the Commission that it was to be a telephone conference.
The basis of the alleged failure to give reasons is the absence of a transcript of the proceedings and a statement of reasons by the Arbitrator.
The failure to record matters discussed at the telephone conference is not unusual. It is a matter of practice and consistent with the Commission’s policy that telephone conferences in the Commission are not recorded so that the parties may feel free to engage in a frank exchange of views.[10] A party may request for the telephone conference to be recorded in part or in whole. It is the obligation of the legal representative to ensure that matters relevant to a dispute are argued “on the record.”[11] It is apparent that Mr Taylor did not do so. There is also an obligation that the parties take sufficient notes of what transpires, including the elements of their arguments put to the decision maker.[12] No such record of what transpired has been produced by UNSW.
[10] Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 (Mokohar), [41].
[11] Mokohar, [42].
[12] Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287, [14]–[16].
UNSW maintains that if there is an absence of transcript it amounts to a failure to give reasons and a denial of procedural fairness which can only be remedied by a re-determination. This is not automatically the case, particularly in respect of interlocutory decisions made at a telephone conference. Where it is possible to ascertain what transpired by agreement between the parties, cogent evidence from the parties, or contemporaneous documentary evidence, it is not necessary to remit the issue for re-determination.[13]
[13] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26.
UNSW was in a position to apply to have fresh evidence admitted to establish that Mr Taylor in fact made an application for an adjournment which was refused and/or sought leave to issue directions and counter the evidence of Mr Brennan that it was unlikely those applications were made.
In the above circumstances, the absence of a transcript does not amount to a failure to provide reasons or a denial of procedural fairness.
In this case, I do not accept that:
(a) the Arbitrator refused to adjourn the matter;
(b) the Arbitrator proceeded to arbitration without giving UNSW adequate notice, and
(c) UNSW made an application for leave to issue directions for production of documents.
Consequently, I am not satisfied that there was an absence of reasons on the part of the Arbitrator in relation to those matters. Again, the absence of the transcript is immaterial.
Leave to appeal in respect of the purported failure to give reasons as described is refused.
Ground C: error of discretion in failing to deal with the application for leave to issue directions
I have discussed the purported application for leave to issue Directions under Grounds A and B of this appeal. I do not accept that there is evidence to establish such an application was made.
Leave to appeal the alleged error in Ground C is refused.
Ground D: the Arbitrator failing to use her best endeavours to bring the parties to the dispute to a resolution in accordance with her obligations under s 355 of the 1998 Act
Section 355 of the 1998 Act provides:
“355 Arbitrator to attempt conciliation
(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.”
It is not contentious that following the arrangement for Ms Lee to attend an IME, Ms Lee refused to attend and UNSW suspended Ms Lee’s compensation payments. Thereafter a “stand-off’ ensued, in which Ms Lee refused to attend the medical examination and UNSW insisted that it was entitled to suspend Ms Lee’s payments.
Ms Lee filed proceedings in which she asserted her position. UNSW filed a reply to those proceedings, maintaining that its position was correct. In response to the Arbitrator’s direction, both parties filed written submissions strongly asserting that they were entitled to maintain their respective ground.
In fact, in submissions in this appeal the parties have continued to act in a confrontational manner, rigidly asserting their position.
Mr Brennan’s evidence, which is uncontroverted, is that in his recollection, Mr Taylor did not indicate that he had any instructions to resolve the dispute by settlement.[14]
[14] Mr Brennan’s affidavit, [9].
The issue which the Arbitrator was required to determine was narrow in concept and considered by her to be urgent. Neither party has given any indication that they were, or are, prepared to move from their fixed positions.
In the context of this case, whether the Arbitrator did or did not make a vigorous attempt to resolve the matter, the Arbitrator was entitled to rely on her own experience and move swiftly into the arbitration phase on the basis that “a settlement acceptable to all” was not even a remote possibility.
It is of course open to the parties to enter into negotiations to resolve the matter of their own accord. This has not happened to date.
More importantly, the Arbitrator is not in breach of s 355 of the 1998 Act because she has not “ma[d]e an award or otherwise determine[d]” the dispute as required.
I therefore refuse leave to appeal the Arbitrator’s interlocutory decision to proceed to arbitration.
CONCLUSION
The reasons for refusing to grant leave to appeal in respect of each of the grounds is discussed. I add that, in order to grant leave to appeal the Arbitrator’s decision, I need to be of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. Given the status of the matter, remitting the matter to a different Arbitrator would not assist in the proper and effective determination of the matter. Both parties have had the opportunity to put their case, neither party has indicated a resolution is possible, any documents sought by UNSW from Ms Lee’s treatment providers could not be probative of the matters in dispute and the Arbitrator is in a position to fairly determine the dispute.
Leave to appeal the alleged interlocutory decisions is refused.
OTHER MATTERS
In her opposition to the appeal, Ms Lee makes lengthy submissions about the conduct of Mr Macken and UNSW and urges the Presidential member to take certain referral action that is outside of the ambit of determining the appeal. Those submissions are inappropriate, particularly when the issue is yet to be determined by the Arbitrator at first instance. I note that if the matter is determined in Ms Lee’s favour, it is open for her legal representatives to pursue such action on her behalf on their own account if they choose to do so.
I also take this opportunity to note that in lodging this appeal, Mr Macken, a legal practitioner, certified that on the basis of provable facts and a reasonably arguable view of the law, this appeal has reasonable prospects of success. Section 352(7A) of the 1998 Act provides:
“(7A) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note. Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.”
Mr Macken, and indeed the profession generally, are reminded that the pursuit of an action that is without reasonable prospects of success is capable of being unsatisfactory professional conduct or professional misconduct by the legal practitioner who is responsible for the provision of the service.[15] Such a certification should not be made lightly.
[15] Clause 4 of Sch 2 of the Legal Profession Uniform Law Application Act 2014.
DECISION
Leave to appeal is refused.
The matter is remitted to the same Arbitrator for determination of the dispute.
Elizabeth Wood
DEPUTY PRESIDENT
28 May 2020
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