Whaley v Upper Hunter Shire Council - [2016] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32
APPELLANT:	Robert Whaley
RESPONDENT:	Upper Hunter Shire Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-6522/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	1 March 2016
DATE OF APPEAL DECISION:	8 June 2016
SUBJECT MATTER OF DECISION:	Previously unnotified matter – requirement for leave under s 289A(4) Workplace Injury Management and Workers Compensation Act 1998; procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The order in paragraph [1] of the Certificate of Determination dated 1 March 2016 is revoked. 2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 1 March 2016 are confirmed. 3. The matter is remitted to another Arbitrator, for re-determination of the issue of the quantum of the appellant’s weekly entitlement, from 6 March 2015.

INTRODUCTION

This appeal raises issues going to the circumstances in which leave is required to raise a ‘previously unnotified matter’, pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and procedural fairness. The ‘previously unnotified matter’ involved the potential application of s 44D(2) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Robert Whaley (the appellant) was employed by the Upper Hunter Shire Council (the respondent) from about 2000. He was employed full-time as a stores and purchasing officer. Additionally, for about four years prior to an injury on 31 October 2014, he performed casual work with the respondent as a lifeguard, supervising a public swimming pool. He also, for about 10 years prior to the injury, worked as a “retained fire fighter”, with an entity other than the respondent. This involved, he said, receipt of a retainer, and of an “on call” rate if he was required to attend this employment.
The appellant suffered injury on 31 October 2014 when he slipped while descending steel steps on a fuel tanker. He said he “fell approximately 1.5 metres landing heavily on the right side of [his] body”. The appellant had a period off work, and returned “to light duties on 8 December 2014”. The respondent made voluntary payments of compensation to the appellant.
Prior to the appellant’s injury, changes had been foreshadowed to make his job, as stores and purchasing officer, a permanent part-time role (see his statement dated 27 July 2015 at [6]). Subsequent to his injury, the appellant was informed that this job would become one for 20 hours per week.
The respondent disputed liability to make payments as from 6 March 2015, in a s 74 notice of the same date. It raised issues going to ‘injury’, s 9A of the 1987 Act, incapacity, causation and the reasonable necessity of medical and related treatment. A review notice dated 3 September 2015 raised similar issues.

THE ARBITRAL PROCEEDINGS

Proceedings were commenced by an Application to Resolve a Dispute registered in the Commission on 18 November 2015 (the Application).
An arbitration hearing was held on 26 February 2016. Mr Gaitanos of counsel appeared for the appellant and Mr Robertson of counsel appeared for the respondent. No oral evidence was adduced. The parties made submissions and the Arbitrator dealt with the matter on the basis of the written material. The Arbitrator delivered an ex tempore decision.

THE ARBITRATOR’S DECISION

The Arbitrator noted that the s 74 notice denied liability on the basis of “advice that the insurer received from its medicolegal referees”. The Arbitrator made a number of factual findings which are not the subject of challenge in this appeal. He found that:
(a)     the appellant suffered injury on 31 October 2014, injuring his right knee, thoracic spine and right groin, in the course of his employment, and employment was the “main contributing factor” (T41.10 and T43.1);
(b)     the appellant’s injuries resulted in incapacity (T43.32);
(c)     in addition to his employment with the respondent, the appellant worked as a retained fire fighter, the weekly earnings for which were agreed at $35.12          (T44.3);
(d)     the appellant also worked as a lifeguard, the agreed weekly earnings from which, averaged over a year, were $71.11 (T44.6);
(e)     the figures in (c) and (d) above are to be taken into account in the calculation of pre-injury average weekly earnings (PIAWE), for the purposes of ss 35 to 38 inclusive of the 1987 Act (T44.7);
(f)      the appellant had already been paid weekly compensation during the first 13 weeks of incapacity, pursuant to s 36 of the 1987 Act (T45.10);
(g)     proposed surgery to the appellant’s right knee is reasonably necessary (T39.26), and
(h)     proposed surgery to repair the appellant’s right inguinal hernia is reasonably necessary and results from the employment injury (T43.7).
The Arbitrator considered the appropriate method of calculation of the weekly entitlement from 6 March 2015. He noted that the appellant lodged a wages schedule with the Application, which asserted that the PIAWE was $719.22. He observed that there was a further Wages Schedule lodged by the appellant (under cover of an Application to Admit Late Documents dated 19 February 2016) which asserted that the PIAWE was approximately $1,186 (T44.11–22).
The Arbitrator referred to the respondent’s submission, that the PIAWE should be arrived at by reference to earnings calculated on the basis of the restructure, which reduced the appellant’s hours and earnings (T44.24–32). When the appellant’s three sources of income were combined (consistent with the respondent’s submission), this yielded a figure for PIAWE of $667.03 from 6 March 2015 to 30 June 2015, 95 per cent of which was $633.68. For the period subsequent, from 1 July 2015 onwards, the figure was $682.23, 95 per cent of which was $648.12 (T45.9–19).
The Arbitrator referred to s 44D(2) of the 1987 Act, and the submissions made to him on that provision. He referred to the word “voluntarily” in the subsection, and its meaning. Construing the subsection, he said:
“In my view, ‘voluntarily’ in this context, means or includes where a worker is told that his hours are going to change, or the nature of his work will change, to the extent that his income is reduced, and accepts that situation and continues to work for the employer. In that sense, that continuation can be seen to be a voluntary continuation of work at a reduced level of income and indeed hours, in this case.
That interpretation, I think, is supported by the terms of subsection (3) which is concerned [with] where a worker is promoted and then i[s] earning more than he was at the time of his injury, in which case the assessment begins on the day on which the promotion or appointment takes effect. So the legislature is clearly dealing with one situation where a person’s income is reduced or his hours are reduced and the other where he is promoted. I think seen in that light, ‘voluntarily’ simply means an acceptance, no matter how reluctant it might be, of an altered work environment.” (T48.12–31)
The Arbitrator accepted the PIAWE figures submitted on by the respondent (see [10] above) and entered a weekly award consistent with those.

ISSUES IN DISPUTE

The grounds raised in the appeal are:
(a) That the Arbitrator erred in permitting the respondent to raise s 44D(2) of the 1987 Act. It was an ‘unnotified issue’, requiring leave pursuant to s 289A(4) of the 1998 Act, and no application for leave was made. There was no proper basis for it to be raised at the hearing. It was submitted that raising this ground in the circumstances involved “procedural unfairness”.
(b) The Arbitrator’s construction of s 44D(2) of the 1987 Act was erroneous.
(c) The Arbitrator made a factual error in finding that the appellant had “voluntarily altered his ordinary hours of work”.
(d) The Arbitrator reversed the onus of proof, in dealing with whether the appellant voluntarily altered his ordinary hours of work.

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met. I note Pt 16 r 16.2(2) of the Workers Compensation Commission Rules 2011.

DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE LEGISLATION

Section 74 of the 1998 Act provides:
“74    Insurers to give notice and reasons when liability disputed
(1)     If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2)     The notice must contain the following:
(a)a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability),
(b)such other information as the regulations may prescribe.
(3)     The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section. The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.
(4)     The regulations may create offences in connection with any failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (see section 93 and the offence arising under section 94).
(5)     Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
(6)     This section does not apply to a dispute based on a work capacity decision of an insurer under Division 2 of Part 3 of the 1987 Act.”

Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if:
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Section 44C(1) of the 1987 Act relevantly provides:
“44C Definition—pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a)the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b)any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).”
Sections 44C, 44E, 44F, 44G, and 44H, and Schedule 3, of the 1987 Act contain numerous other provisions going to calculation of PIAWE in varying specific circumstances. As the PIAWE figures (subject to the issue regarding s 44D(2)) were the subject of agreement at the arbitration hearing, it is unnecessary to consider these further for current purposes.
Section 44D of the 1987 Act provides:
“44D Definitions applying to pre-injury average weekly earnings—relevant period
(1)     Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:
(a)in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or
(b)in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.
(2)     The relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury that entitles the worker to compensation under this Act):
(a)     alters the ordinary hours of work, or
(b)     alters the nature of the work performed by the worker,
and, as a result, the worker’s ordinary earnings are reduced, does not include the period before the reduction takes effect.
(3)    If, during the period of 52 weeks immediately before the injury, a worker:
(a)is promoted, or
(b)is appointed to a different position,
(otherwise than on a temporary basis) and, as a result, the worker’s ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect.”

GROUND 1 – PERMITTING THE RESPONDENT TO CONDUCT ITS CASE ON THE BASIS OF SECTION 44D(2) OF THE 1987 ACT

The Appellant’s Submissions

The appellant submitted that the issue pursuant to s 44D(2) of the 1987 Act was not raised in the respondent’s s 74 notice, and was not raised in the respondent’s Reply. It was not raised by the respondent at the telephone conference in the matter, which was conducted on 23 December 2015, before a different Arbitrator. If the respondent had sought to raise it as a “previously unnotified matter”, at or prior to the arbitration hearing, the appropriate procedure was to seek leave pursuant to s 289A(4) of the 1998 Act. This would involve the exercise of discretion by the Arbitrator, consistent with the principles in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus). The respondent made no such application. There was no proper basis for the unnotified matter to be raised on the day of hearing.
It was submitted that permitting the respondent to raise the issue, without consideration of s 289A of the 1998 Act and the principles in Mateus, and then determining the weekly entitlement on the basis of it, was procedurally unfair. The Arbitrator said that he would not grant an adjournment to permit investigation, on the appellant’s part, of the issue.
It was submitted the Arbitrator said “There is nothing in the worker’s statement that says it [the reduction in his ordinary working hours] wasn’t voluntary”. This effectively cast the onus of proof on the appellant, in respect of a matter not previously in issue.

The Respondent’s Submissions

The respondent submitted that the denial of liability in the s 74 notice, and the review pursuant to s 287A of the 1998 Act, were on the basis of medical evidence. There was no dispute regarding the PIAWE. The appellant’s request for review pursuant to s 287A was stated by the appellant to be on the basis of “pre injury hours of 20 hours per week”. The respondent did not dispute the appellant’s wages schedule as there appeared to be “tacit agreement … as to the applicability of s 44D(2)”.
This situation continued at the time of the telephone conference. In discussions at that time, the Commission was advised that the weekly claim related to wage loss resulting from the appellant’s inability to work his additional roles as a lifeguard and a retained fire fighter. The Arbitrator at that time made orders for the supply of wage details, and lodgement by the parties of amended wages schedules.
The respondent said that the appellant’s Application to Admit Late Documents, dated 19 February 2016, included a further statement of the appellant (executed 19 February 2016), dealing with his lifeguard and fire fighter roles. An amended Wages Schedule, attached to that application, asserted, for the first time, that the PIAWE should be based on full-time earnings in the appellant’s primary clerical job. This was one week prior to the arbitration hearing, and did not comply with the Direction dated 23 December 2015, which gave the appellant leave to lodge and serve an amended Wages Schedule by 15 January 2016.
The respondent submitted that, against this background, on 24 February 2016 it served a statement of Melanie Caban (the respondent’s human resources manager) dated 24 February 2016, together with a Wages Schedule. Its wages schedule asserted that the PIAWE should be calculated on the basis of the appellant’s reduced working hours (in his primary job) of 20 per week.
At the arbitration hearing, the appellant’s counsel complained that s 44D(2) of the 1987 Act was not raised in the s 74 notice. The Arbitrator indicated that he would grant leave pursuant to s 289A(4) if the appellant insisted. The appellant did not persist with any objection to the issue pursuant to s 44D(2) being raised. “[T]he hearing proceeded on the basis that the respondent relied on s 44D(2).” There was no application to adduce oral evidence from the appellant at the hearing.

Submissions in Reply

The appellant lodged submissions in reply on 1 June 2016. Those submissions noted that the respondent’s submissions were “primarily devoted to providing an account of the history of the claim”. The appellant did not take issue with the factual background in the respondent’s submissions. The appellant submitted that “at best [the respondent’s] submissions would constitute argument for seeking leave pursuant to section 289A”.

The appellant submitted that Ground 1 concerned “an elementary matter of procedural fairness”. It was submitted that “the appellant had at no prior stage been given reason to tender evidence as to whether he had voluntarily altered his ordinary hours of work”. However, the respondent at the arbitration hearing submitted that there was “nothing in the worker’s statement that says it wasn’t voluntary”. The process was “manifestly unfair”. The appellant was “ambushed with an argument that his counsel had not come prepared to meet, and which the appellant had not had the opportunity to address by lodging evidence”.
The Arbitrator suggested to the appellant’s counsel that he “discontinue the proceedings, if he wished to avoid having the matter determined on the evidence that had been lodged”. He said to the appellant’s counsel “I won’t grant you an adjournment” without hearing from counsel.
It was submitted that, in the matter proceeding as it did at the arbitration hearing, there “was a clear breach of elementary principles of procedural fairness and indeed of the Commission’s established practice and procedure”.

Discussion

At the outset of the arbitration hearing, the Applications to Admit Late Documents of both parties were admitted without objection (T1.23–37 and T3.1–7). These included the appellant’s statement executed 19 February 2016, the appellant’s amended Wages Schedule, the statement of Ms Caban, and the respondent’s Wages Schedule.
The respondent’s counsel, early in the arbitration hearing, when he was asked to identify the issues, referred to ‘injury’ issues, and said “there’s serious issue in relation to the quantification of any entitlement he may have” (T4.24). The respondent’s counsel referred to “The consequences of the restructure” (T4.29), and “the legal ramifications that flow from the change in circumstances of his employment” (T5.10).
The appellant’s counsel then said that the appellant “suffered his injury before any proposed restructure” (T5.16). He put the appellant’s position:
“We say, you work it out on the basis of the 52 weeks immediately before the injury …” (T5.24–25)
The respondent’s counsel continued to address, on the basis that s 44D(2) of the 1987 Act had application. He submitted that “the evidence here allows you to say that this was voluntarily within the meaning of that section.” (T12.30). The appellant’s counsel interjected, saying “That is the crux of the issue.” (T13.4). The respondent’s counsel then submitted:
“Could I say this, (a) there is nothing in the worker’s statement that says it wasn’t voluntary, he just says it happened; (b) and I would have thought if the [appellant] was going to rely on that, he should have gone into evidence about it.” (T13.12–17)
The appellant’s counsel then said “Well, you haven’t raised it in the section 74 notice.” (T13.19–20). The Arbitrator at that point asked the appellant’s counsel to allow the respondent’s counsel to complete his submissions (T13.21–25). The respondent’s counsel continued his submissions, on the basis that the appellant’s PIAWE should reflect the restructure, and the reduction in the hours worked, in the appellant’s primary job, to 20 hours per week. He said:
“… we were led to believe that this approach that we’ve taken was actually agreed to by the [appellant] with their original wage schedule, which actually referred to PIAWE as being in the 700s, not in the thousands.” (T18.33–19.3)
When the appellant’s counsel commenced to address, the following exchange occurred:
“ARBITRATOR: … What do you say about how to interpret section 44D(2)?
MR GAITANIS: Arbitrator, the way that – firstly, the respondent has put that issue in their section 79 notice [sic].
MR ROBERTSON: If that’s necessary, I’ll seek leave Arbitrator.
ARBITRATOR: I would grant it Mr Gaitanis, if you’re going to insist, because [it] has come up in your later wages schedule, as I understand it.
MR GAITANIS: Yes, the only issue, Arbitrator, is that I’ve ---
ARBITRATOR: That would be a 289A issue.
MR GAITANIS: I understand that. The issue that the [appellant] has is that there’s been a statement from him and a statement from Ms Caban in relation to this issue of restructure. We’ve accepted the force of what we say on the basis of those statements. I haven’t led oral evidence from the [appellant]. During the course of his submissions Mr Robertson made much of the use of the word ‘voluntarily’[sic] in 44D(2).” (T19.32–20.25)
The appellant’s counsel then continued to address, on the merits of the respondent’s argument going to s 44D(2) of the 1987 Act. A further exchange occurred:
“ARBITRATOR: Under the old system. The way we calculated loss of earnings prior to 2012. I think I need a bit more assistance, gentlemen. For a start it is difficult to ignore Mr Robertson’s submission that if the system had changed and there was nothing that the employee could do about it, he’d be – his entitlement for weekly compensation to a job that no longer exists would not be appropriate.
MR GAITANIS: The only problem with that, Arbitrator, is that there’s no evidence of any of that, about the job not existing or – we don’t ---
ARBITRATOR: Well, there is evidence and there’s evidence of a restructure that Mr Whaley has told us about and Ms Caban has told us about. There’s no evidence, unless you ask me to draw or to speculate, I suppose that because of the injury, he was downgraded.
MR GAITANIS: We don’t know anything about that, Arbitrator. There is the chance that the [appellant] was the only one placed on reduced duties, because of the injury. If there is any danger that I am not going to satisfy the onus, then I may have to seek leave to put on further evidence, because if – it hasn’t been raised in the 79 notice. It’s been raised ---
ARBITRATOR: 74 notice.
MR GAITANIS: 74 notice. It’s been raised today. I’ve relied on the contents of his affidavit and the respondent’s affidavit, Ms Caban’s affidavit, which don’t go to any requisite degree as to what this restructure was. It may be the case that he was – his hours were reduced because of this very injury.
ARBITRATOR: I have to decide the case on the evidence that’s before me and as we all know in Watts v Rake, there’s an evidentiary burden that shifts from side to side. At the moment, you’re saying that we don’t know, but it doesn’t really lie in your mouth to say that, because you are bringing the action. So if you have instructions or if you think that what you are speculating at the moment has some factual basis and that is that this only relates to the [appellant] and you don’t have enough information about the situation, it would probably behove you to go and investigate it a bit more and maybe get some particulars from the council. I don’t know.
At the moment, you’re asking me to accept that the council is being, what is the word, careful with the evidence that it’s chosen to put on, on a selective basis and that it’s attempting to---
MR GAITANIS: And belatedly.
ARBITRATOR: Yes, well that’s what you’re asking me to do.
MR GAITANIS: Yes.
ARBITRATOR: I would have a lot of trouble doing that and accepting that from counsel, without any evidence to justify it. So if you are at all worried about that situation, then you have – you always have the right to do something about it, before I go to give my reasons. But I won’t grant you an adjournment.
MR GAITANIS: I’m not discontinuing.” (T25.7–27.7)
The Arbitrator permitted the appellant’s counsel an opportunity to take instructions. The appellant’s counsel then resumed, addressing on the merits of the s 44D(2) issue. The Arbitrator subsequently told the appellant’s counsel “I’m giving you an opportunity to get that evidence” (T28.31–32). Later, the appellant’s counsel described the s 44D(2) issue and associated evidence as a “recent phenomenon”, and said “I’m happy to help beyond today, if it assists, Arbitrator” (T 31.22–23). The Arbitrator observed “…it’s a matter that you’ve brought upon yourself since 19 February, when you lodged a second wages schedule…” (T 31.30–31). The Arbitrator again asked the appellant’s counsel “So do you make any application?” (T 32.2). The appellant’s counsel said that he did not.

Was the Section 44D(2) Issue Properly Before the Commission?

The issue pursuant to s 44D(2) of the 1987 Act was not raised in the s 74 notice. The respondent submits that there was good reason for this, the s 74 notice raised a liability issue based on the medical evidence. There was not, at that time, an issue going to the rate of weekly payments. The respondent further states that the issue did not become apparent until the applicant served an amended wages schedule, attached to the Application to Admit Late Documents dated 19 February 2016. The factual accuracy of this sequence was not challenged by the appellant. I accept it.
When the respondent addressed on the basis that s 44D(2) was relevant in the circumstances, the appellant’s counsel, quite properly, referred to the fact that it was not raised in the s 74 notice. This “matter” was not “notified as disputed” within the meaning of s 289A(2) of the 1998 Act. Consequently, s 289A(3) of the 1998 Act precluded the Commission from hearing or otherwise dealing with it.
In Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49 Roche DP at [59]–[61] said:
“59. Mr Morgan submitted that the Arbitrator erred in finding that Mr Thompson’s injuries were received in the course of and arising out of his employment, and that that employment was a substantial contributing factor to his injuries. While the Arbitrator dealt with those matters, she should not have done so.
60. The issue in dispute was expressed in clear and unequivocal terms in the s 74 notice and the Reply: the only issue was whether Mr Thompson was a worker under the legislation. No other issue was identified. In response to Mr Morgan’s submissions at the arbitration on whether the injuries were received in the course of employment, Mr Stockley rightly responded (at T7.50) that that was not one of the matters raised by the Club as being in dispute.
61. Mr Morgan made no application for leave to dispute ‘previously unnotified matters’, as he was required to do under s 289A(4) of the 1998 Act if he wished to dispute new matters. It follows that the in the course of and substantial contributing factor matters were not properly before the Commission and were not matters the Arbitrator was called upon to determine.”
Keating P expressed a similar view in University of New South Wales v Kurup [2014] NSWWCCPD 19 at [75]–[76], saying:
“75. The appellant’s essential argument is that, in accordance with the terms of s 289A(3) of the 1998 Act, because there was already a dispute in existence, that is, the initial dispute in relation to ‘maximum medical improvement’, that gave the Commission jurisdiction to deal not only with that dispute but also matters ‘subsequently arising out of such a dispute’ whenever they are raised without the need to seek leave to do so.
76. The submission is fundamentally wrong and I reject it. It completely ignores s 289A(4) which clearly states that any dispute relating to previously unnotifed matters may only be heard and dealt with by the Commission if it is of the opinion that it is in the interests of justice to do so. The issues of whether Ms Kurup had received an injury and if so whether her employment was a substantial contributing factor to that injury were previously unnotified matters. To raise them UNSW required leave under s 289A(4).”
The effect of s 289A of the 1998 Act, as explained in these decisions, is that the issue pursuant to s 44D(2) was not a matter which was properly before the Commission, in the absence of leave being granted pursuant to s 289A(4).
The difficulty was raised by the appellant’s counsel (see [40] above), to no avail. The respondent continued addressing on the basis that s 44D(2) was an issue before the Commission. There was no application pursuant to s 289A(4). When the appellant’s counsel commenced addressing, he raised the point again (see the passage quoted at [41] above). The appellant’s counsel referred inadvertently to s 79. Nothing turns on this, it is apparent from the responses of the Arbitrator and the respondent’s counsel that it was understood as a reference to s 74, and the Arbitrator was aware that the issue raised was pursuant to s 289A of the 1998 Act.
At that point, no application pursuant to s 289A(4) had been made by the respondent, and the Arbitrator had heard no submissions on the granting of leave. The respondent’s counsel indicated that he would make an application if it was necessary. The Arbitrator indicated that, if the appellant’s counsel was “going to insist”, he would grant such an application. At that time there was no application for leave pursuant to s 289A(4) before the Commission, and neither party had been heard on the topic.
Mateus contains well known principles, which are regularly applied in the Commission, going to the exercise of the discretion pursuant to s 289A(4). There had not been submissions directed to those principles, and the extent to which competing considerations favoured the granting or refusal of leave. Against that background, as was observed in the respondent’s submissions, the appellant did not insist.
The Commission’s power to “hear or otherwise deal” with the dispute about s 44D(2) of the 1987 Act was, in the circumstances, dependent on the existence of leave pursuant to s 289A(4). There was no such grant of leave. It flows from the above that the possible application of s 44D(2) to the appellant’s weekly entitlement was not a matter properly before the Commission at the arbitration hearing. It constituted error that the matter was heard, and the weekly entitlement decided, applying s 44D(2) of the 1987 Act. This is sufficient to deal with Ground 1 of the appeal, which succeeds.
For completeness, I should note that I accept that there was associated procedural unfairness. The potential application of s 44D(2) had not been an issue between the parties until at, or shortly prior to, the arbitration hearing. The appellant’s statements, in those circumstances, did not specifically deal with whether there had been a voluntary alteration of his ordinary hours of work, so as to reduce his ordinary earnings, the relevant issue pursuant to s 44D(2).
It was not as simple as leading some oral evidence from the appellant on the issue (which in any event would require leave, which is discretionary: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358). There was at least the possibility that other evidence could be relevant to the issue (see the exchanges at T25.20–26.20, T27.1–28.32).
The Arbitrator said that he would not grant the appellant an adjournment, before any adjournment application had been made or addressed on (T27.6). He said that he would grant leave pursuant to s 289A(4) of the 1998 Act if an application were made, in the absence of such an application, and without hearing submissions on the issue (T 20.5–15).

GROUNDS 2, 3 AND 4

Both parties have made submissions going to the construction of s 44D(2) of the 1987 Act, and whether it can have application in the current circumstances. I have concluded that the issue pursuant to s 44D(2) was not properly before the Commission, and that the Commission accordingly did not have jurisdiction to hear or deal with that dispute, consistent with s 289A(3) of the 1998 Act.
It follows that it is inappropriate that I, in considering this appeal, further consider the construction of s 44D(2) and its potential application to the matter.

ORDERS DISPOSING OF THE APPEAL

The various issues between the parties going to injury, causation, and entitlements pursuant to s 60 of the 1987 Act (including s 60(5)) were dealt with by the Arbitrator, in a fashion which was not the subject of challenge on appeal (see [8](a), (b), (g) and (h) above). Those issues are decided between the parties. What remains outstanding is the issue of the appellant’s weekly entitlement from 6 March 2015.
The procedural history of the matter, described above, may well have afforded the respondent an appropriate basis to seek leave, pursuant to s 289A(4) of the 1998 Act, for the dispute regarding s 44D(2) of the 1987 Act to be heard. Such an application was not ultimately made, in circumstances where the appellant did not persist with his objections, after being twice rebuffed, and the respondent was permitted to address on the issue, objection having previously been taken, in the absence of leave.
In Stead v State Government Insurance Commission[1986] HCA 54; 161 CLR 141 at [16], the High Court said:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”
In Boral Besser Masonry Limited v Jabarkhill [1999] NSWCA 476; 19 NSWCCR 227 (Priestley JA (Mason P agreeing) at [12], dealing with the consequences of error, said:
“To succeed in setting aside a judgment on the natural justice ground it will not always be sufficient for an appellant to show a denial of natural justice. Occasionally it may appear that it was highly likely that the same judgment should have been arrived at in any event, so that it would be pointless to order a new trial. When that appears sufficiently clearly the court may refuse to uphold the appeal; but that position would have to [be] very clear before the court would withhold relief.”
It could not be concluded that “a properly conducted trial could not possibly have produced a different result”. The interests of justice, in my view, favour the remitter of the matter for redetermination, by another Arbitrator, limited to the issue of the quantum of the appellant’s weekly entitlement from 6 March 2015.
I note Schedule 3 of the 1987 Act could possibly be relevant to the quantum issue. It was not addressed on by either party, at the original arbitration hearing.

DECISION

The order in paragraph [1] of the Certificate of Determination dated 1 March 2016 is revoked.
The orders in paragraphs [2] and [3] of the Certificate of Determination dated 1 March 2016 are confirmed.
The matter is remitted to another Arbitrator, for re-determination of the issue of the quantum of the appellant’s weekly entitlement, from 6 March 2015.

Michael Snell
Deputy President

8 June 2016