Woolworths Ltd v Wagg - [2017] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Ltd v Wagg [2017] NSWWCCPD 13
APPELLANT:	Woolworths Ltd
RESPONDENT:	Cheryl Wagg
INSURER:	Self-insurer
FILE NUMBER:	A1-3045/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	12 October 2016
DATE OF APPEAL DECISION:	24 April 2017
SUBJECT MATTER OF DECISION:	Clause 10(1) of Sch 8 to the Workers Compensation Regulation 2016; whether claim for s 66 benefits made before the Workers Compensation Legislation Amendment Act 2012 (the amending Act), preserves a claim for compensation under s 67 of the Workers Compensation Act 1987, in respect of the same injury made after the amending Act; interlocutory decision; adequacy of reasons
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	BBW Lawyers
Respondent:	Anthony Scarcella
ORDERS MADE ON APPEAL:	1. I grant leave to appeal the Arbitrator’s determination of 12 October 2016. 2. The Arbitrator’s decision of 12 October 2016 is confirmed.

INTRODUCTION

The worker injured her right knee in the course of her employment on 28 February 2008. She made a claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act), before the Workers Compensation Legislation Amendment Act 2012 (the amending Act) was enacted. At the time that claim was made, the impairment arising from the injury did not attract an entitlement to benefits under s 67 of the 1987 Act.
The worker re-injured her knee on 1 September 2010. The parties agree that the impairment arising from both incidents amounted to 19 per cent whole person impairment. The worker has been compensated accordingly, pursuant to s 66 of the 1987 Act.
Schedule 2 of the amending Act, among other things, abolished entitlements to compensation for pain and suffering under s 67 of the 1987 Act. However, cl 10(1) of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides that amendments made by Sch 2 of the amending Act do not extend to a claim that specifically sought compensation under s 66 or s 67 of the 1987 Act.
The question arising on this appeal is whether the worker is entitled to pursue a s 67 claim in circumstances where a claim for s 66 benefits was made before the amending Act became operative on 19 June 2012, but the claim for s 67 benefits, in respect of the same injury, was not made until after that date.
For the reasons explained in this decision, the worker is entitled to pursue the s 67 claim.

BACKGROUND

From 2002 until May 2015, the respondent worker, Cheryl Wagg, worked as a delicatessen assistant for the appellant, Woolworths Ltd. On 13 January 2008, Mrs Wagg sustained an accepted injury to her right knee in the course of her employment when she was squatting to remove debris from the delicatessen drains.
On 28 February 2008, Mrs Wagg completed a “Woolworths Ltd, NSW & ACT Claim For Workers Compensation”, in respect of the injury on 13 January 2008.
Since the injury Mrs Wagg has been certified totally unfit for work and fit for suitable duties at various broken periods of time. She has undergone several radiological investigations, physiotherapy sessions, hydrotherapy sessions, and surgeries in respect of her right knee.
On 11 June 2008, Mrs Wagg underwent right knee arthroscopy, lateral release and chondroplasty at the hand of Dr Chandra Dave, orthopaedic surgeon. She continued to experience symptoms in her right knee and Dr Dave performed a right medial meniscectomy and chondroplasty on 26 February 2009.
On 29 April 2010, Mrs Wagg attended on Dr Stan Kotulski. Dr Kotulski issued a final WorkCover medical certificate certifying that she had reached maximum medical improvement and was fit for permanently modified duties from 30 April 2010.
On 10 August 2010, Dr Raymond Wallace, orthopaedic surgeon, examined Mrs Wagg. In a report dated 23 August 2010, Dr Wallace assessed Mrs Wagg to have a seven per cent whole person impairment, following a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in respect of the 13 January 2008 injury.
On 1 September 2010, Mrs Wagg sustained a further injury to her right knee. She claims that this occurred at work when she twisted her right knee whilst turning to face a different direction. Her right knee became swollen and tender and she could not put any weight on her right leg. After a period of leave, Mrs Wagg was certified fit for suitable duties.
On 17 September 2010, Mrs Wagg made a claim for lump sum compensation in respect of seven per cent whole person impairment as assessed by Dr Wallace. That claim was not pursued as Mrs Wagg required further treatment which meant that her medical condition had not reached maximum medical improvement.
Mrs Wagg subsequently underwent a further right medial meniscectomy and chrondroplasty, at the hand of Dr Dave, on 17 February 2011.
On 22 January 2014, Dr Wallace assessed Mrs Wagg again. In a report dated 29 January 2014, Dr Wallace assessed Mrs Wagg as suffering from 19 per cent whole person impairment in respect of injury to the right knee and associated scarring.
On 7 February 2014, Mrs Wagg’s solicitors advised Woolworths that Mrs Wagg had reached maximum medical improvement and served on it an Amended Permanent Impairment Claim Form dated 5 February 2014. The injury alleged Mrs Wagg suffered the following injuries:
“(a) Medial and lateral meniscal tears and consequential injury being a complete radial tear at the tibial attachment of the posterior horn of the medial meniscus of the right knee with subsequent separation.
(b) Aggravation of pre-existing asymptomatic degenerative medial compartment osteoarthritis of the right knee.
…”
The claim form identified the date of injury to be 13 January 2008 and was amended to refer to Dr Wallace’s assessment of 29 January 2014. It claimed compensation pursuant to s 66 and s 67 of the 1987 Act.
On 2 April 2014, Woolworths responded to the letter of 7 February 2014 advising that liability for the s 66 claim was declined. It also advised that maximum medical improvement had not been reached and that further surgery was required. It recommended a review one year after surgery. It relied upon the reports of Dr Wallace and Associate Professor Nigel Hope, orthopaedic surgeon, dated 29 January 2014 and 27 March 2014 respectively.
On 27 August 2014, Mrs Wagg underwent total right knee replacement at the hand of Dr Nabavi, orthopaedic surgeon.
On 3 November 2015, Dr Wallace further assessed Mrs Wagg. In a report dated 9 November 2015, Dr Wallace found that Mrs Wagg had “suffered a further twisting injury to the right knee whilst at work restocking a window” on 5 (sic, 1) September 2010. He assessed Mrs Wagg to have 20 per cent whole person impairment in respect of her right knee and scarring.
On 5 December 2015, Mrs Wagg’s solicitors again wrote to Woolworths advising that Mrs Wagg had reached maximum medical improvement and served on Woolworths a Further Amended Permanent Impairment Claim Form dated 25 November 2015. The date of injury was identified as 13 January 2008 and a claim was made for lump sum compensation in respect of ss 66 and 67 of the 1987 Act, relying upon Dr Wallace’s assessment of 3 November 2015.
On 15 February 2016, Mrs Wagg attended on Associate Professor Hope at the request of Woolworths. In a report dated 16 February 2016, Associate Professor Hope assessed Mrs Wagg to have 18 per cent whole person impairment in respect of injuries sustained on 13 January 2008 and 5 (sic, 1) September 2010, accounting for a one tenth deduction for pre-existing degenerative change. In response to a question whether the work incidents on 13 January 2008 and 5 (sic, 1) September 2010 caused the same pathology, Associate Professor Hope wrote:
“[t]he work incidents on 13 January 2008 and 5 [sic, 1] September 2010 caused the same pathology.”
He apportioned total impairment equally between the two injuries.
On 14 June 2016, Mrs Wagg lodged with the Commission an Application to Resolve a Dispute (the Application). Relying upon the assessments of Dr Wallace, Mrs Wagg claimed lump sum compensation in respect of ss 66 and 67 of the 1987 Act. The date of injury identified was 13 January 2008.
On 27 June 2016, Woolworths lodged a Reply to the Application. Woolworths sought leave to rely upon a late s 74 notice dated 27 June 2016. The s 74 notice placed in dispute the level of impairment, the aggregation of impairment for separate frank injuries and the entitlement to compensation pursuant to s 67. Woolworths relied upon the report of Dr Hope, dated 16 February 2016. It specifically claimed that Mrs Wagg suffered “separate and distinct injuries” to her right knee on 13 January 2008 and 5 September 2010. Accordingly, Woolworths claimed that Mrs Wagg did not have at least 11 per cent whole person impairment in respect of “any single injury and therefore you are not entitled to s.66 compensation”.
On 26 July 2016, the matter was listed for hearing before Arbitrator Dalley. At the hearing Mrs Wagg amended the Application to allege further “aggravation of pathology in the right knee when she twisted in the course of working in the delicatessen” on 1 September 2010. (It was agreed the reference to “5 September 2010” by Dr Wallace and Associate Professor Hope should be “1 September 2010”.). The parties agreed they would enter into a complying agreement pursuant to s 66A of the 1987 Act, in respect of 19 per cent whole person impairment arising from the injuries on 13 January 2008 and 1 September 2010. That complying agreement is not in evidence.
On 10 August 2016, the Arbitrator issued a Direction seeking the parties to file written submissions on Mrs Wagg’s entitlement to an award pursuant to s 67.
On 12 October 2016, the Arbitrator issued a Certificate of Determination in favour of Mrs Wagg. The Certificate of Determination is in the following terms:
“The Commission determines:
1. The Application to Resolve a Dispute is amended:
(a)To add to Part 4 a further allegation of injury: ‘on or about 1 September 2010 the applicant suffered a further aggravation of pathology in the right knee when she twisted in the course of working in the delicatessen’.
(b)To add to Part 5.6 a further date of injury; ‘1 September 2010’.
(c)To delete the claim pursuant to section 66 of the Workers Compensation Act 1987.
2. Leave is granted pursuant to section 289A of the Workplace Injury Management and Workers Compensation Act 1998 to the respondent to dispute that the applicant is entitled to an award pursuant to the former section 67 of the Workers Compensation Act 1987.
3. Although not an order of the Commission, it is noted that the parties have agreed to enter into an Complying Agreement pursuant to section 66A of the Workers Compensation Act 1987 pursuant to which the respondent will pay the applicant the sum of $28,600 in respect of 19 per cent whole person impairment arising from injury to the right knee in the course of employment on 13 January 2008 and 1 September 2010.
4. The Commission determines that the applicant is entitled to an award of lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987 as preserved by Clause 11 of Schedule 8 to the Workers Compensation Regulation 2010 (now Clause 10 of Schedule 8 of the Workers Compensation Regulation 2016) in respect of injury to the right knee on 13 January 2008.
5. The applicant is to file and serve written submissions as to the amount to be awarded pursuant to section 67 on or before close of business on 25 October 2016.
6. The respondent is to file and serve written submissions in reply on or before close of business on 8 November 2016.
7. The amount of the award pursuant to section 67 will then be determined on the papers.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Woolworths appeals against the Arbitrator’s determination.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements in s 352(3) and (4) of the 1998 Act have been met.

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.

THE LEGISLATION

Section 66 of the 1987 Act (as amended by the amending Act) provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
…”
Clause 15 of Pt 19H of Sch 6 of the 1987 Act (to which I shall refer for convenience as “cl 15”) states:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 10 of Sch 8 of the 2016 Regulation (which I shall refer to as cl 10) states:
“10    Lump sum compensation
(1)    The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2)    Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
This clause is in the same terms as cl 11 of Sch 8 of the Workers Compensation Regulation 2010, in force at the time of the hearing before the Arbitrator.

The Arbitrator’s reasons

It is common ground that s 67 of the 1987 Act, providing lump sum compensation for pain and suffering, was repealed by the operation of Sch 2 to the amending Act.
The Arbitrator held that the effect of cl 10 is engaged by the making of a claim for compensation pursuant to either s 66 or s 67 before 19 June 2012. He noted that that was consistent with the decision of Senior Arbitrator McDonald in Newbold v Bi-Lo Pty Ltd [2014] NSWWCC 310 (Newbold) and Senior Arbitrator Snell (as he then was) in Halloran v Rail Corporation NSW [2013] NSWWCC 85 (Halloran), although the Arbitrator noted that in Halloran the Senior Arbitrator did not finally decide whether the worker, having made a claim pursuant to s 66 prior to 19 June 2012, was entitled to an award pursuant to s 67.
The Arbitrator correctly identified that the matter is complicated in the present case because Mrs Wagg relies on two separate injurious events leading to the pathology which resulted in the agreed whole person impairment of 19 per cent. The Arbitrator noted that the claim in respect of the incident on 13 January 2008 was in respect of the same pathology of injury, as was alleged to have resulted from the 2010 incident.
Subsequent “amended” claims were made after 19 June 2012, pursuant to ss 66 and 67, alleging the same date of injury. He noted that a different claim was presented at the hearing. In accordance with the medical evidence the “second injurious event” on 1 September 2010 was added. Until the hearing, no claim had ever been made in respect of that injury.
The complying agreement pursuant to s 66A (in respect of 19 per cent whole person impairment) attributes the degree of whole person impairment to the injuries on 13 January 2008 and 1 September 2010.
The Arbitrator considered whether the decision in Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 (Sukkar) would stand in the way of an award for compensation pursuant to s 67 in the particular circumstances of this case. He concluded that it did not. He distinguished Sukkar on the basis that the worker in that case sought to aggregate impairments relating to a claim made before 19 June 2012, which had been resolved by the payment of compensation, with injury sustained after that date. Unlike Sukkar, in the present case the claim for lump sum compensation made before 19 June 2012 was unresolved and remained on foot.
Based on the evidence of Dr Wallace and Associate Professor Hope, the Arbitrator found that Mrs Wagg suffered ongoing impairment as a result of the 2008 injury and that impairment was present when she suffered a further injury in September 2010. The Arbitrator concluded (at [67]):
“I think it is reasonable, in light of Associate Professor Hope’s opinion as to causation, to attribute the requirement for the total knee replacement to the two injuries that were suffered.”
He further found that following the knee replacement the whole person impairment of 20 per cent was materially contributed to by the 2008 injury.
The Arbitrator held (at [69]):
“Accordingly, I am satisfied that the 2008 injury to the right knee has resulted in a degree of whole person impairment that entitles Mrs Wagg to an award pursuant to section 67 of the 1987 Act as preserved by Clause 11 of the Workers Compensation Regulation 2010 (now Clause 10 of the Workers Compensation Regulation 2016).”
The Arbitrator declined to draw an inference that the claim submitted on 17 September 2010 should have been interpreted as giving rise to an entitlement pursuant to s 67. He rejected a submission that Mrs Wagg suffered 19 per cent whole person impairment as a result of the two injuries, such that it should be inferred that half the impairment was attributable to the earlier 2008 injury. That impairment would then be assessed at 9.5 per cent which in accordance with the guidelines would be rounded up to 10 per cent giving rise to a s 67 entitlement.
The Arbitrator held that adopting this approach the 2008 and 2010 injuries would have attracted a 10 per cent impairment in respect of each injury (20 per cent impairment) and that was not what was agreed. The parties reached an agreement on 19 per cent whole person impairment.
The Arbitrator rejected Woolworths’ submission that the claim in respect of the injury on 1 September 2010 was a new claim which had failed to satisfy the requirements of s 282 of the 1998 Act, in that the required particulars about the claim had not been provided. The Arbitrator held that the claim made in September 2010, pursuant to s 66, was capable of amendment to include the allegations of impairment arising from the 2010 incident: Woolworths Ltd v Stafford [2015] NSWWCCPD 36.
The Arbitrator held that Mrs Wagg suffers a whole person impairment of 19 per cent consequential upon a total right knee replacement and additional allowance for scarring. The Arbitrator held that the injurious event in 2008 substantially contributed to the need for a knee replacement which in turn gave rise to the level of impairment. He held that the total level of impairment was attributable to both the 2008 and 2010 injurious events.
The 2008 event substantially contributed to the level of impairment so that the provisions of s 66 and s 67 as in force prior to the 2012 amendments are satisfied. The 2008 injury was a cause of the level of impairment now agreed to be present: Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Limited [1994] HCA 68; 68 ALJR 525 (Accident Compensation Commission) per Brennan J applied.

The Arbitrator concluded that Mrs Wagg was entitled to an award pursuant to s 67 and sought submissions as to the quantum of an appropriate award.

INTERLOCUTORY

Mrs Wagg submits that the decision of the Arbitrator disposed of the substantive issue in these proceedings; the only issue remaining being the quantum of the entitlement. She submits that the decision appealed against is not interlocutory, as the rights of the parties in respect of the claim before the Commission have been finally disposed of: Licul v Corney [1976] HCA 6; 180 CLR 213.
I do not accept Woolworths’ submission. Although the Arbitrator’s submission disposed of a substantive issue in the proceeding, he did not finally determine the parties’ rights. He sought further submissions before making final orders.
Both parties submitted that, in the event that the decision is considered to be interlocutory, it is more desirable for the proper and effective determination of the dispute that the appeal proceed with leave of the Commission.
The grounds of appeal identify a substantial statutory construction issue. It is not in the interests of justice to require the parties to comply with the direction in the Certificate of Determination to provide further submissions and then have the Arbitrator determine the quantum of any entitlement to compensation under s 67 before the appeal proceeds. Therefore, I agree that it is more desirable for the proper and effective determination of the dispute that the appeal proceed notwithstanding the interlocutory nature of the Arbitrator’s determination.
Therefore, I grant leave to appeal the Arbitrator’s determination of 12 October 2016.

GROUNDS OF APPEAL

Woolworths submits that the Arbitrator erred in law:
(a) in finding that cl 10(1) operates to entitle Mrs Wagg to compensation pursuant to s 67;
(b) having determined that the medical opinion was that loss referable to the first (2008) injury was less than 10 per cent, in determining an entitlement to s 67 arose, and
(c) in failing to consider and provide reasons as to Woolworths’ submissions that Sukkar and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; 88 ALJR 624 (Goudappel) required a claim to be made pursuant to s 67 prior to 19 June 2012 for such an entitlement to be saved.

SUBMISSIONS

Ground one – that the Arbitrator erred in finding that cl 10(1) of the 2016 Regulation (as it now is) operates to entitle the respondent worker to compensation pursuant to s 67

Woolworths’ submissions

Woolworths submits that Mrs Wagg has no entitlement to claim compensation pursuant to s 67, as she had not made a claim that specifically sought s 67 compensation prior to the enactment of the amending Act.
Any entitlement Mrs Wagg may have had did not crystallise until such time as she reached the necessary threshold. She did not satisfy that threshold prior to the 2012 amendments. Therefore, Mrs Wagg did not meet the threshold until which time her entitlement to s 67 benefits had been extinguished by the repeal of that section.
No claim in respect of the injury on 1 September 2010 for compensation under either s 66 or s 67 was made prior to the 2012 amendments.
To adopt the proposition put forward by Mrs Wagg, that the word “or” in cl 10(1) (as it now is) intended that a claim made for s 66 saved an entitlement to s 67, is to give the clause a beneficial construction – a construction that is not consistent with the view of the High Court in Goudappel or the NSW Court of Appeal in Sukkar.
If Mrs Wagg’s claim can be amended, Woolworths submits:
“it is not true to say that the amendment can operate to invigorate an entitlement that has been extinguished.”
In any event, in circumstances where a new injury is pleaded for a further and different entitlement (s 67 benefits), the claim is a “new” claim rather than an amended claim. Such a claim could not be made until all relevant particulars pursuant to s 282 of the 1998 Act had been provided. Such particulars had not been provided until after the 2012 amendments.
The Arbitrator erred in relying upon Accident Compensation Commission to assist in the determination of an entitlement to s 67, where the only injury for which any lump sum claim prior to 2012 was made did not reach the necessary threshold for s 67 benefits. Further, by the time any entitlement had crystallised, that section had been repealed.

Mrs Wagg’s submissions

Mrs Wagg submits that it is significant that cl 10 refers to a claim that specifically sought compensation under s 66 or s 67 benefits. The use of the disjunctive indicates that a reference to either section will exempt the claim from the operation of the 2012 amendments.
Mrs Wagg relies on a priori view expressed by Senior Arbitrator Snell (as he then was) in Halloran and the findings of Senior Arbitrator McDonald in Newbold, that is that a claim made pursuant to s 66 of the 1987 Act prior to 19 June 2012 was itself sufficient to invoke the exception provided in cl 10 to permit a claim pursuant to s 67 where the impairment of 10 per cent or more was involved, particularly where it involved an unresolved claim pursuant to s 66.
Mrs Wagg does not accept the submission that the amended claim was in substance a new claim. The impairment of 19 per cent results from Mrs Wagg’s injury on 13 January 2008, so long as that injury has materially contributed to the impairment. That fact has been conclusively determined by the complying agreement which specifically provides that the impairment of 19 per cent results in part from that injury.
It is immaterial, so it is submitted, that the subsequent injury on 1 September 2010 also contributed to the impairment. Any enquiry about the relative contributions of the two injuries is an enquiry that should be limited to apportionment issues pursuant to s 22: Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716 at 730 (Baltica); Accident Compensation Commission at 526.
All that matters is that the impairment results from the injury of the subject of the claim. In this case the injury on 13 January 2008 substantially contributed to the eventual need for the total knee replacement. The impairment of 19 per cent was, at least in part, contributed to by the injury on 13 January 2008 and all of that impairment is taken into account when determining whether the requirements of s 67 have been satisfied. It follows, so it is submitted, that Mrs Wagg is entitled to compensation for the entirety of her pain and suffering resulting from the 19 per cent impairment.

DISCUSSION AND FINDINGS

I will deal first with the statutory construction submission.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. The context and the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Therefore the process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 69.
The principles of statutory construction were put even more succinctly in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10] where the plurality held that the “question of construction is determined by reference to the text, context and purpose of the Act”.
In Woolworths’ submission, because Mrs Wagg had not specifically made a claim for s 67 benefits before 19 June 2012, her claim must fail. It submits that, construing the word “or” in cl 10(1) such that a claim made for s 66 benefits saved an entitlement to s 67 benefits, is to give the clause a beneficial construction which is not permitted. The amendments introduced by Sch 2 of the amending Act have been held not to be beneficial: Goudappel and Sukkar.
In Goudappel, identifying the purpose of cl 11 (as it then was), the plurality (French CJ, Crennan, Keifel and Keane JJ) held (at [29]):
“The purpose of cl 11 … was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.”
Their Honours did not limit the exclusion from the operation of cl 10 (cl 11 as it then was) to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim before 19 June 2012.
Having regard to the plurality’s view of the purpose of cl 10, it is plain enough that, as Mrs Wagg made a claim that “specifically sought” compensation under s 66 before 19 June 2012, the amendments to ss 66 and 67 made by the amending Act do not apply to her. It follows that she is entitled to have her claim for s 67 benefits determined without the restrictions imposed on lump sum compensation by the amending Act. That conclusion is consistent with the parties’ acceptance that Mrs Wagg was entitled to lump sum compensation under s 66 from the combined effects of the two pleaded injuries, as evidenced by the s 66A complying agreement.
This construction is also consistent with the decision in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield). In Caulfield the worker claimed and was paid for a 10 per cent impairment in respect of an injury in 2010. In 2012, after the amending Act came into operation, he claimed compensation for an impairment of 17 per cent in respect of the same injury due to a deterioration of the condition. Deputy President Roche held that because the worker sought s 66 benefits before 19 June 2012, he was entitled to pursue the second claim unaffected by the 2012 amendments, whether it exceeded the 10 per cent threshold or not. He held at [42]:
“The end result ‘produces the greatest harmony and the least inconsistency’ (Australian Alliance Assurance Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135 at 161 per Cooper CJ; T v T[2008] FamCAFC 4; (2008) 216 FLR 365 at 394) in the legislation overall. The interpretation construes the provisions so they are ‘consistent with the language and purpose of all the provisions of the statute’ (Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; 194 CLR 355 at [69]) and in a way that preserves rights accrued before 19 June 2012, except where the legislature has used clear language to remove those rights, as it did with respect to workers in Mr Goudappel’s situation.”
Further, if Woolworths’ submissions are accepted, cl 10 would preserve the former entitlements under s 66 but not s 67. That is not how cl 10 operates. Either the former benefits under s 66 and s 67 are preserved or they are not, depending on whether a claim for s 66 benefits had been made before 19 June 2012.
The conclusion expressed above is not dependent upon a beneficial construction of cl 10. The question of beneficial construction simply does not arise. The plain words of cl 10 are expressed to be in the alternative, that is, the 2012 amendments do not apply in respect of a claim made before 19 June 2012 that sought compensation under s 66 or s 67. To accept Woolworths’ submission would be to read cl 10 as requiring a claim for compensation that specifically sought compensation under s 66 and s 67.
In Taylor v The Owners-Strata Plan No 11564[2014] HCA 9 (Taylor), the majority (French CJ, Crennan and Bell JJ) considered the question of reading a statutory provision as if it contained additional words or omitted words. The majority said (at [38]) that such a task involves:
“a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature.’” (footnotes omitted)
It follows that caution must be exercised in interpreting cl 10(1) as though it read s 66 and s 67. Had the legislature intended that outcome it could easily have so provided, but it did not. The task of statutory interpretation is one of construction of the words the legislature has enacted (Taylor at [39]). There is no justification for adding the words, urged by Woolworths, into cl 10(1).
I would add, the construction for which Woolworths contends is inconsistent with Goudappel for the reasons explained at [70]-[72].
I now wish to turn to the submission that the s 67 claim was not an amended claim, but a “new” claim. The amendment to the Application made at the hearing alleged a further injury sustained on or about 1 September 2010 in these terms:
“The applicant further aggravated pathology in the right knee when she twisted in the course of her employment with the respondent in the delicatessen.”
The amendment was made without objection.
For the reasons that follow and in the circumstances of this case, I do not accept Woolworths’ submission that the injury pleaded in the amended claim (including the claimed s 67 benefits) was a “new claim” rather than an “amended claim”.
The test for causation for lump sum compensation is the same as for weekly compensation, namely, has the loss “resulted from” the relevant work injury: Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski (2004) 1 DDCR 648; NSWCA 267; Vivaldo v Uniting Church in Australia t/as Lucan Care [2010] NSWWCCPD 41 at [51].
In Accident Compensation Commission, Brennan J (Mason CJ, Deane, Dawson and Toohey JJ agreeing) said (at [5]):
“Similarly, liability under the Act to make weekly payments during incapacity or to pay a lump sum in redemption of that liability arises from each of the injuries which caused or materially contributed to the incapacity. Any employment in the course of which the worker sustained an injury causing or materially contributing to his incapacity attracts liability to the employer and to the insurer on risk at the time of the injury.”
In Baltica, Clarke JA (Priestley JA and Hunter AJA agreeing) after referring to the above passage from Accident Compensation Commission and referring to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 said (at 730):
“I agree with those observations but would add that in light of the judgment in [Accident Compensation Commission], I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant inquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in Morris v George [[1977] 2 NSWLR 552], which reflected the restrictions imposed by the search for a proximate or direct cause, should, in my view, no longer be regarded as sound.”
Contrary to Woolworths’ submission, the Arbitrator did not err in having regard to these authorities. A consideration of the authorities was appropriate and necessary to appreciate that the agreed level of impairment resulted from the 2008 incident.
The word “injury” in the 1987 Act can have several meanings. In a claim for lump sum compensation under s 66, the context in which a lump sum claim proceeds is for compensation for the whole person impairment that has resulted from the related pathology from the particular work incident or incidents upon which the worker has relied: Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13 (Paterson) at [38]. In Paterson, Giles JA (Hodgson JA and Brownie AJA agreeing) said (at [38]):
“In general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury. If there is an injury, whether the result of a particular incident or the result of cumulative activity, then provided it is work related s 4 of the [1987 Act] is satisfied and the next question is that thrown up by s 9A, whether the worker’s employment was a substantial contributing factor to the injury. The descriptive distinction does not dictate an answer to either of those issues.”
The cause of the injury (the injurious event) is “not the important matter” in determining the compensation payable: Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129. The circumstances in which the injury was received will of course be relevant in determining whether it was sustained in compensable circumstances, but the important matter is the consequence of the injury, both in terms of the pathology and in terms of the economic consequences.
As Deputy President Roche made clear in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 and again in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 (Barnes) at [47], in the context of a claim for permanent impairment compensation, the relevant “injury” is the pathology, even though in other contexts, injury may also include the injurious event.
It is not in issue that the combined effect of the incidents in 2008 and 2010 resulted in the pathology and the agreed level of permanent impairment. That was the injury in the relevant sense, namely in the context of a claim for permanent impairment compensation. This is consistent with the parties’ agreement to resolve the s 66 claim and the terms of the complying agreement. It is also consistent with Dr Hope’s evidence.
Therefore, on the evidence presented before the Arbitrator he was correct to find that the 2008 incident materially contributed to the injury. It follows that as the claim for s 66 benefits in respect of the injury had been made before 19 June 2012, the provisions of s 66 and s 67 as in force prior to the 2012 amendments applied to Mrs Wagg’s claim.
Woolworths’ submissions describing the entitlements under s 67 as having been “extinguished” or “reinvigorated” is not to the point. The question is whether the entitlement to permanent impairment compensation had been the subject of a claim made before 19 June 2012. As it is clear that such a claim had been made Mrs Wagg was free to pursue her claim under s 67, notwithstanding repeal of that section by the amending Act
I now turn to the subject of the amended Application. The substance of Woolworths’ complaint is that the amendment, pleading the injury in 2010 and claiming compensation under s 67, was a new claim which could not be made until the relevant particulars under s 282 of the 1998 Act had been given.
Part 4, r 4.2 of the Workers Compensation Commission Rules 2011(the 2011 Rules) deals with amendment of applications. It provides:
4.2 Amendment of documents
(1) Subject to subrule (2), the Commission may, on the application of a party to any proceedings before the Commission, give the party leave to amend any document lodged by the party in the proceedings if the Commission considers the amendment to be necessary for the avoidance of injustice.
(2) Where a party seeks leave to amend a document, and the amendment would have the effect of substantially altering the parties to the proceedings or the nature of the proceedings, the Commission must not give the leave unless the Commission considers the amendment to be necessary in the interests of justice.
(3) An amendment referred to in subrule (1) may be made at any stage of the proceedings (including the commencement or purported commencement of the proceedings), and on such terms as the Commission thinks fit.
…”
In Bonds Industries Ltd v Borg [2007] NSWWCCPD 80 Acting Deputy President Snell (as he then was) said (at [67]–[68]):
“67. Claims pursuant to both sections 66 and 67 fall within the definition of ‘lump sum compensation’ found in section 4 of the 1998 Act. Section 281 of the 1998 Act deals with such claims. It gives an employer (in the absence of agreement on quantum or determination of quantum by a MAC) two months from the claimant providing ‘all relevant particulars about the claim’, in which to either accept liability and make a reasonable offer, or dispute liability. The ‘relevant particulars’ are governed by section 282, which sets out matters that must be included, together with ‘such other matters as the Workcover guidelines may require’ (section 282(1)(g)). The Workcover guidelines make provision at Part 2 rule 6 regarding the information required to claim compensation for both permanent impairment and pain and suffering.
68. Commencement of proceedings in the Commission for recovery of lump sum compensation is then restricted by section 289(3). The dispute cannot be referred to the Commission unless liability has been wholly denied, or one month has passed after an offer of settlement was made to the claimant as and when required by the Act, or the employer failed to determine the claim as and when required by the Act. Thus, if a worker fails to supply ‘all relevant particulars’ in compliance with section 282, the consequence is that the employer is not obliged to determine liability pursuant to section 281. This, in turn, may prevent a worker commencing proceedings in the Commission, due to the operation of section 289(3).”

There is no dispute that the notification of the injury on 13 January 2008 conforms with the requirements for the giving of notice. In addition, Mrs Wagg’s solicitor, Mr Scarcella, wrote to Woolworths on 5 December 2015, (before the application was filed), providing the particulars of the claim in respect of the injuries on 1 September 2010. They included extensive particulars of the claims made under s 66 and s 67. Indeed the particulars are so comprehensive that they serve as a model to those practising in this jurisdiction. I have no hesitation in finding that those particulars complied with the requirements of s 282 of the 1998 Act.
On 27 June 2016, Woolworths’ representatives, BBW Lawyers, wrote to Mrs Wagg rejecting liability for her claim. That letter specifically noted “you suffered separate and distinct injuries to your right knee on 13 January 2008 and 5 [sic] September 2010”. The letter went on to reject liability for the reasons which have previously been set out. The dispute on liability was based upon the medical report of Dr Hope dated 16 February 2016 which also made reference to the injuries on 14 January 2008 and 1 September 2010, although he also wrongly referred to the latter incident as occurring on 5 September 2010.
I am mindful of the fact that 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: s 354(1) of the 1998 Act. The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 354(3) of the 1998 Act. The Commission is not bound by strict pleadings: Far West Area Health Service v Radford [2003] NSWWCCPD 10, approved by me in Shoalhaven City Council v Schutz [2012] NSWWCCPD 14.
For the foregoing reasons there was no impediment to the Arbitrator permitting the amendment made on the day of the hearing. The amended claim had been properly particularised pursuant to s 282 of the 1998 Act. The benefits claimed pursuant to s 66 and s 67 had been the subject of a reasoned decision by Woolworths to decline liability. Even if there was a failure to comply with s 282, which I do not accept, it was of no consequence because Woolworths responded to it. The Arbitrator merely exercised the discretion available under Pt 4 r 4.2 of the 2011 Rules. I have not been directed to any error of the kind discussed in House v The King [1936] HCA 40; 55 CLR in the exercise of that discretion. In any event, the amendment was made by consent.
It is immaterial that the particulars of the 2010 injurious event were provided after the 2012 amendments. The particulars in respect of the injury, that is the injury to the right knee, and the claim for lump sum compensation pursuant to s 66 had been validly made before 2012. Whilst the claim in respect of the 2008 injury remained unresolved, it was capable of being amended for the reasons given above. The amendment did not constitute a new claim. That is because the claim related to the same “injury”. For the reasons already stated it did not matter that the amendment also sought s 67 benefits for the first time. That was because the amendments repealing s 67 did not apply to Mrs Wagg.
I am satisfied that the Arbitrator was correct to find that the amendments introduced by Sch 2 of the amending Act do not apply to Mrs Wagg because she had made a claim specifically seeking compensation under s 66 before 19 June 2012. Therefore, it did not matter whether the threshold for s 67 benefits was reached before or after 19 June 2012. Having made a claim for s 66 benefits in respect of the injury, the benefits available under s 66 and s 67, as those benefits existed prior to the introduction of the amending Act, were preserved.
It follows that ground one must fail.

Ground two – having determined that the medical opinion was that loss referable to the first (2008) injury was less than 10 per cent, the Arbitrator erred in law in determining an entitlement to s 67 arose

Woolworths’ submissions

Woolworths submits that the Arbitrator dismissed (at [70] and [74] of reasons) the submission from Mrs Wagg that the 2008 injury of itself resulted in a loss sufficient to attract a claim for compensation pursuant to s 67.
The Arbitrator fell into error in then finding that the loss from the 2008 injury, when aggregated with the loss from the 2010 injury (for which a claim had not been made prior to 2012), was sufficient to found a claim pursuant to s 67.
There can be no entitlement to s 67 benefits flowing from the 2010 injury as “such a claim” had not been made and the 2008 claim made before 2012 did not attract a s 66 entitlement, so that in toto there can be no entitlement to the former s 67.

Mrs Wagg’s submissions

It is submitted that the Arbitrator did not err in determining an entitlement to s 67 arose having determined that the medical opinion was that the loss referable to the first (2008) injury was less than 10 per cent.
Mrs Wagg repeats and relies on her submissions with respect to ground one.

DISCUSSION AND FINDINGS

I reject the submission that the Arbitrator erred by finding that the loss from the 2008 injury “when aggregated” with the loss from the 2010 injury was sufficient to found a claim pursuant to s 67. The submission assumes that two injuries were aggregated to reach the level of loss agreed upon by the parties. For the reasons that I have already given, based on the approach discussed in Accident Compensation Commission, Mrs Wagg suffered one injury resulting in a loss sufficient to found a claim pursuant to s 67.
The Arbitrator declined to apportion an impairment level to the two injuries. He was correct not to do so. The question of apportionment will only arise after the entitlement to compensation has first been determined.
In Baltica the New South Wales Court of Appeal was concerned with the worker’s entitlement to compensation arising from various frank injuries to his back in the course of his employment with Woolworths. Clarke JA, Priestley JA and Hunter AJA held (at 732) that there is a two stage process when apportionment is sought. The initial task is to determine the liability of an employer or employers to pay compensation to a worker. If that onus is discharged in a case where there were a number of work injuries and apportionment is sought, the provisions of s 22 will then apply.
Since Baltica was decided, s 322 of the 1998 Act was enacted which provides for the assessment of permanent impairment. Section 322 provides:
“322 Assessment of impairment
(1)    The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)    Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)    Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
The operation of s 322(2) and (3) was considered by Deputy President Roche in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288. After a discussion of the different meanings of injury he said (at [27]):
“The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
Mrs Wagg has suffered only one pathology in the two incidents, as was confirmed by Dr Hope in his report of 16 February 2016 and is evidenced by the complying agreement. Therefore, the Arbitrator was correct to find that Mrs Wagg had suffered only one injury to which the incident of 13 January 2008 materially contributed. Even if Woolworths’ submission that Mrs Wagg had suffered discrete injuries was correct, it did not follow that each of the injuries must reach the 10 per cent threshold before they can be considered in her current claim under s 67. That is because, pursuant to s 322, such injuries were to be assessed together.
In any event, there was no reason to apportion the effects of the 2008 and 2010 incidents prior to determining any entitlement to benefits under s 67. There was only one employer and one insurer and therefore the question of apportionment was irrelevant. The Arbitrator was correct not to engage in that exercise. Even if apportionment was required, which I do not accept, it does not advance Woolworths’s position on this appeal. That is because such apportionment would only occur after the whole person impairment arising from the cumulative effects of the 2008 and 2010 injuries had been assessed. In this case, as the whole person assessment arising from the two incidents exceeded the s 67 threshold, Mrs Wagg was entitled to pursue the s 67 claim.
For these reasons ground two also fails.

Ground three – that the Arbitrator failed to consider and provide reasons as to the respondent’s submissions that Sukkar and Goudappel required a claim to be made pursuant to s 67 prior to 19 June 2012 for such an entitlement to be saved

Woolworths’ submissions

The Arbitrator erred by omitting to consider submissions made in writing at the arbitration hearing or at least has not given proper consideration to the submissions and has thereby fallen into error. The submissions to which Woolworths refer may briefly be summarised as follows:
(a) The word “specifically” in cl 10 requires that the pre-2012 claim be specific to a claim for s 67 benefits for it to be saved. Such a claim cannot simply ride on the back of a s 66 claim, in particular one that falls short of an entitlement under s 67.
(b) Mrs Wagg’s entitlements under s 67 had not crystallised until an impairment assessment that qualified her for such a claim had been made and no “such” claim “specifically” claiming s 67 benefits had been made, that is, until after 19 June 2012 and no such compensation was payable prior to that date: Goudappel v ADCO Constructions Pty Limited [2012] NSWWCCPD 60 at [128].
(c) In Goudappel (High Court) at [29] the plurality determined that the purpose of cl 11 (as it then was) made pursuant to cl 5(4) was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66. Its purpose was patently not beneficial.
(d) The High Court’s view was that unless a claim had been made pursuant to s 66 prior to the 2012 amendments, then “such a claim” is affected by the amendments and it follows that any entitlements pursuant to s 67 must also be the subject of a prior unresolved s 67 claim, otherwise the entitlement to s 67 has been abolished.
(e) Further the Court of Appeal found in Sukkar that, consistent with Goudappel (High Court), cl 11 (as it then was) was not beneficial. The Court of Appeal held that the same can be said of the amendments to s 66 and cl 15. The Court held that it is not possible in those circumstances to adopt a beneficial construction approach which characteristically applies to such legislation.
(f) Mrs Wagg’s submission that the use of the word “or” in cl 11 intended that a claim made for s 66 saved an entitlement to s 67 is to give the clause a beneficial construction, a construction that is not consistent with the view of the High Court in Goudappel or the Court of Appeal in Sukkar.

Mrs Wagg’s submissions

Mrs Wagg submits that Goudappel can be distinguished. In Goudappel the s 66 claim was not made before 19 June 2012. In the instant case the s 66 claim was made before 19 June 2012.
Mrs Wagg also submits that Sukkar can be distinguished. In Sukkar the Court of Appeal rejected the “aggregation argument” in so far as it concerned hearing loss claims. The reasoning in Sukkar applied to a situation where a prior claim had been made and disposed of by the payment of compensation, whereas, in the instant case, the s 66 claim dated 17 September 2010 was unresolved. Sukkar, so it is submitted, does not prevent an entitlement to s 67 where a claim remains on foot and that claim is shown to be responsible for a whole person impairment of at least 10 per cent.

DISCUSSION AND FINDINGS

Section 294(2) of the 1998 Act provides
“A brief statement is to be attached to the certificate [of determination] setting out the Commission’s reasons for the determination.”
Rule 15.6 of the 2011 Rules provides:
“15.6 Certificates of determination
(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
In NSW Police Force v Newby [2009] NSWWCCPD 75 I considered the nature of an Arbitrator’s duty to give reasons at [149]–[151]. At [149] I said:
“To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247).”
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker: Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6. When considering the adequacy of reasons a decision must be read as a whole: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at [443]–[444].
The Arbitrator dealt with Woolworths’ submissions with respect to Goudappel and Sukkar at [53]–[57] of the reasons. He concluded for the reasons stated that Sukkar did not stand in the way of an award pursuant to s 67. He distinguished Sukkar on the basis that the worker in that case sought to aggregate impairments relating to a claim made before 19 June 2012 which had been resolved, by the payment of compensation, with an injury sustained after that date. He reasoned that unlike Sukkar, in the present case the claim for lump sum compensation was made before the 19 June 2012 and was unresolved and remained on foot.
The Arbitrator recorded (at [34]) Woolworths’ submissions with respect to the Court’s decision in Goudappel. He rejected Woolworths’ submission (at [48]). The Arbitrator dealt with the statutory construction submissions at [43]–[48]. He held, agreeing with the interpretation of the effect of cl 10 in Halloran and Newbold, that cl 10 (referred to in the Arbitrator’s decision as cl 11(1)) is engaged by the making of a claim for compensation pursuant to either s 66 or s 67 before 19 June 2012.
Whilst the Arbitrator may not have considered each of Woolworths’ submissions in terms, he was not required to do so. “A judge’s [or Arbitrator’s] reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon[2003] HCA 48 at [62]). The Arbitrator’s reasons set out sufficiently the reasoning process that led to his ultimate conclusion.
Having regard to the Arbitrator’s findings and reasons, I am satisfied that his reasons conform with the legislative requirements and the standard by which the adequacy of reasons must be determined. For these reasons ground three must also fail.

ORDERS

I grant leave to appeal the Arbitrator’s determination of 12 October 2016.
The Arbitrator’s decision of 12 October 2016 is confirmed.

Judge Keating
President

24 April 2017