Issue 3: May 2017

Woolworths Ltd v Wagg [2017] NSWWCCPD 13

(a) in finding that cl 10(1) operates to entitle the worker 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 the appellant’s submissions that Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 (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.

Held: Leave to appeal was granted. The Arbitrator’s determination was confirmed. 

Did the Arbitrator err in finding that cl 10(1) of the 2016 Regulation (as it now is) operated to entitle the respondent worker to compensation pursuant to s 67?

1. The appellant submitted that as the worker had not made a claim for s 67 benefits before 19 June 2012, her claim must fail. It submitted 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 (Goudappel; Sukkar; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 considered) ([69]).

2. The President observed that their Honours in Goudappel 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 ([71]).

3. It followed, as the worker 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 followed that she was entitled to have her claim for s 67 benefits determined without the restrictions imposed on lump sum compensation by the amending Act. That conclusion was consistent with Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 and the parties’ acceptance that the worker 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 ([72]-[73]).

4. The President further observed that if the appellant’s submissions were 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 not, depending on whether a claim for s 66 benefits had been made before 19 June 2012 ([74]).

5. The above conclusion was not dependent on a beneficial construction of cl 10. The question of beneficial construction did 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 the appellant’s submission would be to read cl 10 as requiring a claim for compensation that specifically sought compensation under s 66 and s 67. That is not what the legislature intended. There was no justification for adding the words, urged by the appellant, into cl 10(1) (Taylor v The Owners-Strata Plan No 11564 [2014] HCA 9 applied) ([75]-[77]).

6. The President did not accept the appellant’s submission that the injury pleaded in the amended claim, being a further aggravated pathology in the right knee when the worker twisted in the course of her employment with the appellant, was a “new claim” rather than an “amended claim” ([80]).

7. The President observed that in a claim for lump sum compensation under s 66, the circumstances in which the injury was received will be relevant in determining whether it was sustained in compensable circumstances. However, the important matter is the consequence of the injury, both in terms of the pathology and in terms of the economic consequences. 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 (Wyong Shire Council v Paterson [2005] NSWCA 74; Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35 considered and applied) ([85])-[87]).

8. It was 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. Therefore, on the evidence presented before the Arbitrator he was correct to find that the 2008 incident materially contributed to the injury. It followed 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 the worker’s claim ([88]-[90]).

9. The appellant also submitted that the amended application, 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 ([91]).

10. There was no impediment to the Arbitrator permitting the amended application. 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 the appellant to decline liability. The Arbitrator merely exercised the discretion available under Pt 4 r 4.2 of the 2011 Rules, to allow the amendment which, in any event, was made by consent. No error in the exercise of that discretion was identified (House v The King [1936] HCA 40) ([94]-[97]).

11. It was immaterial that the particulars of the 2010 injurious event were provided after the 2012 amendments. The particulars in respect of the injury 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. The amendment did not constitute a new claim. That is because the claim related to the same “injury”. 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 the worker ([98]).

12. The Arbitrator was correct to find that the amendments introduced by Sch 2 of the amending Act did not apply to the worker 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 followed that ground one failed ([99]-[100]).

Having determined that the medical opinion was that loss referable to the first (2008) injury was less than 10 per cent, did the Arbitrator err in law in determining an entitlement to s 67 arose?

13. The President rejected 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 assumed that two injuries were aggregated to reach the level of loss agreed upon by the parties. The worker suffered one injury resulting in a loss sufficient to found a claim pursuant to s 67 (Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Limited [1994] HCA 68; 68 ALJR 525 applied) ([106]).

14. The Arbitrator did not err in declining to apportion an impairment level to the two injuries. The question of apportionment only arises after the entitlement to compensation has first been determined ([107]).

15. Even if the appellant’s submission that the worker 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 of the 1998 Act, such injuries were to be assessed together ([111]).

16. 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. In any event, 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, the worker was entitled to pursue the s 67 claim ([112]).

17. Ground two failed ([113]).

Did the Arbitrator fail to consider and provide reasons as to the appellant’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?

18. The Arbitrator dealt with the appellant’s submissions with respect to Goudappel and Sukkar. Whilst the Arbitrator may not have considered each of the appellant’s submissions in terms, he was not required to do so (Whisprun Pty Ltd v Dixon [2003] HCA 48). The President found that the Arbitrator’s reasons sufficiently set out the reasoning process that led to his ultimate conclusion. He was satisfied that his reasons conformed with the legislative requirements and the standard by which the adequacy of reasons must be determined. For these reasons ground three also failed (s 294(2) of the 1998 Act; r 15.6 of the 2011 Rules; NSW Police Force v Newby [2009] NSWWCCPD 75; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 considered and applied) ([117]-[124]).

(a) failed to make findings regarding the respondent’s credit (Ground No 1).

(b) displayed apprehended bias in the following aspects (Ground No 2):

i. not properly engaging with the evidence;

ii. constructive failure to exercise jurisdiction;

iii. not properly engaging with the appellant’s submissions, and

iv. not giving adequate or sufficient reasons.

(c) failed to give adequate or sufficient reasons (Ground No 3).

(d) erred in preferring the opinions of the respondent’s medical experts to those of the appellant (Ground No 4).

(e) failed to determine the nature of any injury to the neck (Ground No 5).

1. Deputy President Snell considered a line of authorities, including Livesey. He observed that:

(a) In determining whether a judge is disqualified by reason of the appearance of bias (prejudgment), the test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the relevant question (Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 (Nicholls));

(b) The establishment of apprehended bias requires two steps. First is the identification of what was said that might lead the judge to decide a case other than on its legal and factual merits; second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Nicholls; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) cited and applied).

(c) It is equally important that judicial officers do not too readily accede to suggestions of the appearance of bias (Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342).

(d) In determining the test, whether a ‘fair-mined lay observer’ might reasonably apprehend that the judge might not determine a question with an impartial and unprejudiced mind, the ‘fair minded observer’ is assumed to understand that the expression of tentative views by a judge does not amount to a pre-judgment of any outcome (Pollard v Wilson [2010] NSWCA 68 (Pollard); Johnson v Johnson [2000] HCA 48 cited and applied).

(e) In considering the question of fairness in relation to a tribunal, the whole circumstances in the field of the inquiry, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise, are important (Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, cited in Duncan v Ipp [2013] NSWCA 189; 304 ALR 359) ([32]-[39]).

2. In the current case, Deputy President Snell observed that the ‘fair-minded lay observer’ would be taken to be aware that a teleconference is a preliminary step in the proceedings. Applying the test in Ebner, the Deputy President did not think that it was appropriate to disqualify himself. The statement that was attributed to him at the teleconference as a Senior Arbitrator was only a ‘tentative view’. Even if the statement was identified as something that might indicate prejudgment, the statement was made in 2014. By the time of the below proceedings, there was additional evidence. The Deputy President was not acting as the primary decision maker in the current proceedings. The connection required by the second limb of the test in Ebner could not be made out. The recusal application was refused ([31], [40]-[48]).

Ground No 1 – Failure to Make Credit Findings 

3. Ground No 1 concerned inconsistencies between objectively proved facts (predominantly from medical notes) and the histories on which medical opinion was based, regarding the respondent’s failure to disclose previous symptoms in 2006. It was argued that the extent of the correlation between proven facts, and assumed histories in medical evidence, went to the weight to be afforded to the medical opinion: Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell) at [19], Hancock v East Coast Timber Products Pty Limited [2001] NSWCA 305; 52 NSWLR 705 (Hancock) at [82]-[83], Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [64] (Makita), Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric) at 509B-510B ([101]).

4. Deputy President Snell found it “understandable” that the Arbitrator did not deal with the respondent’s credit. Credit was not specifically raised in the proceedings before the Arbitrator, save obliquely. Although an Arbitrator may make a credit finding without any oral evidence or cross-examination (JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17), the extent and appropriateness of such a finding depends on the facts and circumstances of each individual case, and obligations of procedural fairness (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [91]) ([110]-[112]).

5. The Deputy President said that some factors cast doubt on the availability and nature of a credit finding in the current case. The respondent formally disclosed his 2006 symptoms by service of a statement dated 23 August 2012. Non-disclosure of the 2006 symptoms, in a medico-legal consultation in 2014, was raised at the arbitration hearing. This was years after the earlier symptoms had been formally disclosed. The appellant did not identify any specific credit finding that was appropriate, what findings should have been made, what consequences should flow from any ‘credit’ finding, or how that would affect the outcome of the case. The Arbitrator did not err in not making a finding of credit. Ground No 1 failed ([113]-[115]).

Ground No 2 – Apprehended Bias

6. The question whether a judicial officer (or juror) might not bring an impartial mind is one of possibility (real and not remote), not probability. The test requires no conclusion about what factors actually influenced the outcome (Ebner; Nicholls). Asking whether a judge had in fact prejudged an issue, on the basis of the reasons for judgment delivered after trial of the action, runs a serious risk of inverting the proper order of inquiry (Nicholls) ([130]-[131]).

7. Applying the principles in Ebner and Nicholls, Deputy President Snell found that the appellant’s submissions in Ground No 2 were misconceived, demonstrated confusion on the distinction between an allegation of actual (as opposed to apprehended) bias, and were contrary to the decision of the High Court in Nicholls ([129]).

8. The appellant, responding to a Direction seeking submissions on Nicholls, argued that the Arbitrator failed to properly exercise jurisdiction, as an alleged error in support of the ‘apprehended bias’ ground. Deputy President Snell found that the appellant was effectively seeking to conduct the appeal on the basis of a new ground. The appellant had not sought leave to amend its grounds of appeal. The Deputy President observed that the appellant should not be permitted to add a further ground in this fashion ([132]-[134]).

9. As the appellant’s argument was contrary to binding High Court authority, Deputy President Snell was not satisfied that Ground No 2 could be maintained. He considered the argument on reasons in Ground 3 ([135]-[136]).

Ground No 3 – Adequacy of the Reasons

10. The appellant relied on the Court of Appeal decision in Pollard. The Deputy President observed that, in Pollard, the trial judge had failed to make independent factual findings that were urged in submissions. Unlike Pollard, the Arbitrator made her factual findings independently. Reading her reasons as a whole (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444), the Deputy President rejected the proposition that a typographical error in the reasons amounted to an appealable error. Acknowledging that a failure to engage with the case presented by a party and a failure to refer to “evidence that was important and indeed critical”, can amount to error, Deputy President Snell said that the Arbitrator’s incorporation of a summary of evidence in the earlier Presidential decision, into her reasons, did not constitute an error ([150]-[156]).

11. With respect to the argument that that the Arbitrator summarised the appellant’s submissions incorrectly, Deputy President Snell found that the summary was consistent with the appellant’s submissions. He commented that the Arbitrator was not required to set out the submissions in a formal way ([157]-[160]).

12. The Arbitrator’s comments going to the weight of the medical opinion were consistent with settled authorities, such as Makita, Hancock and Paric. It was open to the Arbitrator to give weight to the treating surgeon’s opinion. The Arbitrator provided reasons to justify her view. Considering the Arbitrator’s reasons as a whole, the Deputy President was satisfied that those reasons were adequate ([161]-[166]).

13. Ground No 3 failed ([167]).

Ground No 4 – The Arbitrator’s Preference for the Respondent’s Medical Case

14. In considering the respondent’s submissions, Deputy President Snell looked at the authorities regarding the application of s 352(5) of the 1998 Act. He observed:

(a) Section 352(5) limited the scope of an appeal to the determination and correction of any error of fact, law or discretion, rather than a broad form of internal merit review (Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 13 DDCR 139 (Sok));

(b) The mere preference of a different outcome does not give an appellant tribunal the right to interfere with the primary decision (Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95);

(c) The preference of a medical opinion only amounts to an error in law if there is a failure ‘to act according to equity, good conscience and the substantial merits of the case’. such a failure might be found if the preferred expert opinion was devoid of foundation and if, the conclusion was unavailable (CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501);

(d) Such error will be made out where “... material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong.” (Sok; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 cited and applied) ([170]-[173]).

15. As regards the appellant’s submissions, the Deputy President summarised three issues: the weight given to the respondent’s medical case, in the presence of deficiencies in the histories recorded by those doctors; the basis on which the Arbitrator rejected the medical views in the appellant’s medical case, and the Arbitrator’s preference for the medical evidence in the respondent’s case ([176]).

16. The current case involved degenerative changes that pre-existed the incident at work. The appellant argued that its medical case should be preferred, attributing the cervical spine condition to the constitutional condition. Deputy President Snell noted the competing view, that the work incident was at least a major aggravating factor of the appellant’s condition. Referring to Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648, Bindah v Carter Holt Harvey Woodproducts Pty Ltd [2014] NSWCA 264; 13 DDCR 156, and NSW Police Force v Kearns [2008] NSWWCCPD 29, the Deputy President found that the pleading of the injury as a frank incident was not inconsistent with a case that there was an aggravation of an underlying disease. The appellant’s argument in this regard was rejected ([177]-[179]).

17. With respect to the deficiencies in the respondent’s medical experts’ reports, the Deputy President referred to Paric, noting that precise correlation between the facts accepted and a doctor’s recorded history was not required. The Arbitrator, dealing with entries in clinical records, referred to the proximity of the trapezius muscle to the neck. The Deputy President said this was consistent with the Arbitrator’s status as a member of a specialist tribunal, in understanding the medical evidence and drawing appropriate inferences (Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37; 10 DDCR 230, ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) v The WorkCover Authority of New South Wales [2004] NSWCA 55). The Arbitrator considered discrepancies between the history assumed by the respondent’s medical experts, and other facts. The Deputy President found that the Arbitrator had explained why the discrepancies did not deprive the respondent’s medical opinion of all weight; the Arbitrator’s analysis of those matters was consistent with authority and the evidence ([180]-[192]).

18. Deputy President Snell then analysed the medical evidence in the appellant’s case, the Arbitrator’s approach to that evidence and her reasons for rejecting it. He noted that the evidence the Arbitrator accepted on the neck injury was supported by a number of experts. The Arbitrator gave weight to the status of treating experts who had seen the respondent “on multiple occasions over a lengthy period”, which, in the Deputy President’s view, was “legitimate”. The specialist relied upon by the appellant, by contrast, had seen the respondent once and in circumstances which were difficult. Overall, the Deputy President concluded the approach taken by the Arbitrator was consistent with authority and the evidence, and was well open to her. The Arbitrator’s findings were not affected by error; the appellant’s preference of a different outcome was not a basis to interfere with the Arbitrator’s decision ([193]-[211]).

Ground No 5 – The Nature of the Injury to the Neck

19. Relying on the decision in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, the appellant proposed that, as injury refers to both the injurious event and the pathology so caused, the Arbitrator should have made findings as to the nature of the injury to the neck (including pathology) before making a referral to the AMS [213].

20. Deputy President Snell said, “Applying the reasoning in Jaffarie, the Commission (in the bifurcated system) has jurisdiction to determine whether a worker suffered injury, and the nature of the injury. The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case”. He referred to Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104, in which it was held that “it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker”. In the current matter, the Deputy President observed, neither party had requested that a finding in respect of the nature of injury be made by the Arbitrator. The issue was not pursued in the arbitration hearing. In such circumstances, it was not an error of law not to deal with a matter that was not raised (Watson v Qantas Airways Limited [2009] NSWCA 322; 7 DDCR 113 at [13], Bell at [30] applied). Ground No 5 failed ([221]-[227]).

Held: The Senior Arbitrator’s determination was confirmed. 

Decision

1. Contrary to the worker’s submissions, the question of reasonableness of the worker’s conduct is not measured by an objective view of the worker’s mindset. It is measured objectively in light of every circumstance in the case relevant to showing why the failure occurred (Garratt v Tooheys Ltd (1949) WCR 80 applied) ([82]).

2. On the facts, as submitted by the respondent, the Senior Arbitrator was open to find that the worker not only held an erroneous belief as to the effects of hearing aids but:

(a) knew he had a hearing loss;

(b) believed it was a consequence of his noisy employment;

(c) was aware that others had successfully claimed compensation;

(d) elected not to pursue compensation because he was thankful to his employer and he did not believe in claiming “left, right and centre”;

(e) was qualified and practised in law so would have been aware of time limitations generally, and

(f) could have acted on that knowledge without undue delay ([89]-[90]).

3. As s 261(6) was not pleaded, the President rejected the worker’s submission based on s 261(6) and the reliance upon Unilever Australia Ltd v Petrevska [2013] NSWCA 373 that the worker should not be barred from claiming compensation on the basis that he did not become aware of the injury until many years after leaving the respondent (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 applied) ([93]).

4. The President also rejected the submission that the Senior Arbitrator erred by not construing s 261 beneficially in light of the fact that the worker acted promptly after his mistaken belief in relation to the benefits to be derived from the use of the hearing aids was corrected upon receipt of medical advice. That submission was without merit. There was no question of beneficial construction arising on the facts of the case (Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32 considered and applied) ([94]-[96]).

The contention that Mr Jones has a serious and permanent disablement

5. The respondent submitted that the question of serious disablement must be considered in the context of the claim, the degree of pathology causing the disablement, the worker’s age and its impact on the likelihood of his remaining in full time employment, all compared to the severity of impairment of other types of injuries and impairments. It submitted that in the context of the case, the worker’s disablement could not be considered as “serious” when compared to more serious disabling injuries, particularly when the provision of hearing aids would remove the employment disability ([68]-[69]).

6. The President found that the Senior Arbitrator gave adequate reasons for accepting the opinion of the worker’s forensic medical expert that the worker had 12 per cent binaural hearing loss before deduction for presbyacusis. The Senior Arbitrator held that that constituted a disability that was both serious and permanent. It had caused the worker to change the nature of his legal practice in the last three years and had prevented him from appearing in criminal trials. It had also caused him to refocus his career away from trial work to mediation work. The President found it was open to the Senior Arbitrator to make those findings (Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 considered and applied) ([99]).

7. The President observed that, in any event, the Senior Arbitrator’s finding on serious and permanent disablement did not assist in the resolution of the dispute in the worker’s favour because he had not been able to establish that the delay in prosecuting his claim was due to other reasonable cause ([100]).

1. The President observed that the challenge relating to the admission of the forensic medical report, to be included in the material to be referred to the AMS, was an interlocutory decision. That is because no final orders would be made in that regard until the receipt of the MAC by the AMS (Licul v Corney [1976] HCA 6; 180 CLR 213; 8 ALR 437 and s 352(3A) of the 1998 Act considered and applied) ([36]-[37], [41]).

2. The President also observed that irrespective of whether the worker was successful in the appeal on this interlocutory point, the matter would still need to be referred to an AMS. Once final orders are made by the Arbitrator, the worker’s rights of appeal under s 352 of the 1998 Act would be available to him, subject to the identification of legal, factual or discretionary error. It followed that, even if the appeal could proceed, notwithstanding the procedural deficiencies, the President was disinclined to grant leave to appeal the interlocutory orders ([42]-[43]).

The award of interest 

3. The President observed that the power to award interest pursuant to s 109 of the 1998 Act is discretionary, subject only to the limitations set out in subsections (2) and (3). He found that the worker had not demonstrated that the Arbitrator had erred in exercising his discretion and there was nothing in the material before him to demonstrate error (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 and House v The King [1936] HCA 40; 55 CLR 499 considered and applied) ([44]-[47]).

The disposition of the appeal

4. The President dismissed the appeal pursuant to s 354(7A)(c) of the 1998 Act, on the basis that the worker failed to prosecute the proceedings with due despatch (r 15.8 of the 2011 Rules), for the following reasons:

(a) The Appeal Application was procedurally deficient in that no submissions in support of the grounds of appeal were lodged.

(b) The Registrar’s Direction of 27 January 2017 with respect to the filing of an Amended Appeal Application was not complied with.

(c) The worker was on notice from the Direction issued by the Registrar on 3 March 2017 that continued failure to comply with Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator may result in the dismissal of proceedings for “want of due despatch”.

(d) The worker’s premature termination of the telephone conference, before the President to discuss the future conduct of the matter, was self-indulgent and unsatisfactory.

(e) The Direction issued by the President on 9 March 2017, again warning the worker of the prospect of an order dismissing the appeal, was again not complied with.

(f) More than three months had elapsed since the deficient Appeal Application was filed.

(g) The worker’s claimed incapacity to comply with the Commission’s directions was unsupported by any medical evidence.

(h) The limited prospects of success of the appeal.

(i) The worker’s rights to appeal under s 352 of the 1998 Act would be enlivened following the entry of final orders by the Arbitrator, subject to the identification of legal, factual or discretionary error ([48]).

5. The President accepted that the worker was self-represented on the appeal. However, having regard to the reasons for delay, he considered that the worker had had sufficient opportunity to rectify the procedural deficiencies in the Appeal Application ([49]).

1. Subject to s 352(4) of the 1998 Act, Pt 16, r 16.2(12) of the 2011 Rules allows a Presidential member to extend the time for appeal in ‘exceptional circumstances’. What constitutes ‘exceptional circumstances’ is considered in Bryce v Department of Corrective Services [2009] NSWCA 188 and Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310 (Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 cited and applied). In exercising the discretion to extend time for Presidential appeals, the Commission frequently applies the test in Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 ([12]-[16]).

2. According to the appellant, ILARS funding for the appeal was granted on 30 November 2016. Counsel for the appellant was not available to attend to the appeal from 30 November 2016 to 15 December 2016. The appellant submitted that the period of delay was minor. The prejudice on the respondent was minor should the appeal period be extended. However, there would be demonstrable and substantial injustice if leave was not granted to extend time to appeal. The extension was opposed. The respondent submitted that the appellant’s reasons did not adequately explain the delay, and the appeal had no real prospects on its merits ([17]).

3. Deputy President Snell found that the appellant had not specifically addressed what constituted ‘exceptional circumstances’. The delay in ILARS funding approval and the unavailability of counsel, considered individually, or viewed together as a sequence, did not amount to ‘exceptional circumstances’. There were 13 days left prior to the last day for appeal after the ILARS funding was granted. The appellant did not account for the reason why some other counsel was not retained, if the original counsel was unavailable. On the application form, the appellant’s solicitor signed as the person that had drafted the submissions for the appeal, not counsel. The appellant did not provide a satisfactory explanation why the appeal was not brought in time ([19]-[20]).

4. The Deputy President then proceeded to consider the prospect of success of the proposed appeal, another matter of primary consideration on an application for leave to extend time (Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34; Allen v Roads and Maritime Services [2015] NSWWCCPD 39) ([21]-[22]).

5. The only ground of appeal was that the Arbitrator’s decision was contrary to the evidence. Having reviewed the evidence and the Arbitrator’s determination, Deputy President Snell found that the ground of the appeal was “completely unsustainable”. Apart from the facial injury, injuries to other body parts were all in dispute. The appellant carried the onus to prove the occurrence of those injuries. The Arbitrator specifically considered when those injuries were initially reported to the treating medical practitioner. No evidence was produced from any witness of the incident. The Arbitrator found that the appellant’s statement was inadequate to explain injuries to those body parts. Consistent with the Arbitrator’s finding, the expert opinion attributed the neck and a vestibular condition to the incident, but discounted the back injury. The Deputy President was satisfied that the Arbitrator’s conclusion that the evidence fell short of proving the mechanism of the injuries was available on the evidence ([23]-[31]).

6. In respect of the Arbitrator’s comments about a failure to call witnesses, Deputy President Snell noted that the appellant did not argue that the Arbitrator was drawing a Jones v Dunkel inference (Jones v Dunkel [1959] HCA; 101 CLR 298; Manly Council v Byrne and Anor [2004] NSWCA 123 at [44]- [55] [Byrne]). Deputy President Snell observed that the Arbitrator did not draw a Jones v Dunkel inference (Byrne). The Arbitrator was not satisfied with the status of the evidence involving the mechanism of injury and its adequacy as a cause of the injuries claimed. He did not, as the appellant submitted, apply “a higher onus of proof” to the appellant’s case, when he criticised the lack of evidence from witnesses or co-workers ([32]-[34]).

7. The Arbitrator found the appellant’s evidence to be “totally inadequate to explain the basis of the injuries that are now claimed”, but did not reject the appellant’s evidence. Even if the appellant’s evidence had been rejected, this could be appropriately done in the context of the Commission, without cross-examination of the appellant, subject to the principles in New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69. The issue of the connection between the mechanism of injury and the injuries claimed was raised and addressed by both parties in the Arbitration hearing ([35]-[36]).

8. The appellant did not identify an appealable error for the purpose of s 352(5) (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156). The appeal did not have reasonable prospects of success ([37]).

9. In the current matter, the appellant’s loss of chance to bring the appeal, the period of delay which was slight, and the respondent’s silence as to any relevant prejudice, favoured the extension of time. On the other hand, lack of a satisfactory explanation for the reasons for the delay, absence of ‘exceptional circumstances’ and the poor prospects of success of the appeal went against the extension of time. Deputy President Snell was not satisfied that refusing the application would work any injustice on the appellant. The application to extend time for appeal was refused ([38]-[40]).

Thiansawang (formerly Klugt) v The Salvation Army (NSW) Property Trust ATF The Social Work [2017] NSWWCCPD 12