Speech by the President to the New South Wales Self Insurers Association AGM

President’s Address to the New South Wales Self Insurers Association Annual General Meeting

By Judge Gerard Phillips

President, Personal Injury Commission of New South Wales

26 October 2023

Intercontinental Hotel Sydney

It is great to be back with this group today. Thank you for today’s invitation.

Last year, I did briefly deal with these two subjects: our IT platform and a proposed rule change to limit material being filed. I am very pleased to be able to update you on both. Once I have done that, I want to run through some principles relating to appeals in workers compensation matters.

Before dealing with these issues, let me give you a few numbers.

In the past 12 months 2022-23, we finalised over 17,000 applications across both Divisions. We published over 1,300 decisions across all areas of practice. We also held 8,458 medical assessments. I am very pleased with these numbers given we returned to more normal, post-pandemic operations from about August 2022. Full details of our year’s performance will soon be available in our 2022-23 Annual Review once it is tabled in the Parliament, so keep an eye out for that publication.

Firstly, I want to deal with our new IT platform, “Pathway”. This system was deployed in the Motor Accidents Division in June of this year. It has been a successful project and has been very well received by users. Development work is now taking place in the Workers Compensation Division and the intention is to deploy this new program in workers compensation matters in mid-2024.

A big part of the success of the deployment earlier this year in motor accidents was the significant program of training and instruction that we undertook with all external users and stakeholders. We will be repeating this training program in workers compensation in the new year. There will be classroom sessions held at the Commission and we will have e-learning modules on our website. One of the things that really helped when we deployed this platform in motor accidents was our dedicated helpline, which of course we will repeat when we deploy Pathway in workers compensation.

The big take-out for everybody in this room is to follow our public announcements in the Personal Injury Commission News and when the training is organised, make sure members of your organisation book spots. This platform will only work at its best for you and your organisation if you learn how to use it.

Secondly, last year I flagged that we were looking at changes to the rules to limit page numbers of the material filed in cases. The Rule Committee has resolved to impose a 500 page limit in applications and responses. The rule itself is currently being drafted by the Parliamentary Counsel. As you know the rules of evidence do not apply to Commission proceedings. If either an applicant or respondent needs to file more material over and above this limit, there will be a relatively swift hearing before a Member who will decide whether to receive the additional material or not. The key will be identifying how the documents sought to be relied upon relate to the real issues in dispute, in accordance with the Commission’s statutory mandate (s 3 of the Personal Injury Commission Act 2020) and guiding principle (s 42).

The takeaway is we are not going to have long arguments about relevance or other matters normally associated with the rules of evidence. As I said, the rules of evidence do not apply, we are not introducing them through this rule. The aim is to get parties to focus on the material and stop the practice of filing many thousands of pages of material which is simply never referred to.

This rule is also an aspect of our approach to cyber security - as you all know, the world has become a very dangerous place for cyber-attacks and cyber-crime.

The very best protection you can have is to adopt this approach:

Hold only such material or information that you absolutely need and no more.

I do not want to have people filing, for example, thousands of pages of clinical notes detailing treatment for things which are very private, but which are completely unrelated to the issues in the case. This practice must stop. It is not in keeping with the Act and it is a large cyber risk for claimants.

If this material is not filed, it cannot be unlawfully accessed.

I think that every organisation dealing with private information must become far better at managing this risk.

I should say that in the development of our new IT platform, cyber security has been a big focus. Page limits are an aspect of our approach to cyber-security, which must have multiple elements.

We will also be clamping down on the practice where multiple copies of the same documents are filed. This practice will simply have to cease because we will be rejecting bundles of material affected by this practice. Do not be surprised if a Member makes some burdensome orders requiring such poorly presented bundles to be fixed. If the applicant has attached to their ARD copies of documents you wish to rely on in your Reply, please note these and the ARD page number in your Schedule of Documents, but do not reattach them.

In terms of timing, this rule change will not commence until after the deployment of the Pathway system in the Workers Compensation Division has taken place and its operation has settled down. It is simply not advisable to have two significant changes like this taking place at the same time. The rule change will not be commenced until the 2^nd half of 2024.

Finally, I want to say a few things to you all about appeals. Each year, members of this self-insurance group pursue a reasonable number of appeals from first instance members’ decisions. The estimate is that this group is a party, either as appellant or respondent, to approximately 25% of the appeal list. So this should matter to you all.

These appeals are decided by either myself or one of the Deputy Presidents. In 2022, we saw a spike in appeal numbers, which I simply think is a by-product of a significant increase in first instance filings. This year we are on track to issue at least 80 appeal decisions. The Presidential Unit is working through its matters in the list as fairly and equitably as possible to get through these significant filings. Where appropriate, it may consider expediting matters which may benefit from early consideration or hearing, say for interlocutory matters which pause the proceedings before a Member below. Further, matters on appeal where a medical assessment has been paused are given priority assessments, should the referral to a medical assessment be confirmed on appeal.

If you’re going to appeal a matter the starting point is Procedural Direction WC 3. Your appeal papers must comply with that Direction or the appeal will be rejected. The same goes for Notices of Opposition you lodge in response to appeals made against you. But bare compliance with WC3 is not enough if you want to give your appeal the best chance of success.

I will run through a small cheat sheet of matters you must be aware of when pursuing an appeal. If you want to do well and maximise your chances of a successful appeal, either as appellant or respondent, keep the following principles in mind.

An appeal is not a review. It is not an opportunity for a re-run of arguments that failed. It is not an opportunity to try to overturn factual findings you do not like.

Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 makes it very clear that a Presidential member only has power to intervene on appeal if the decision is affected by error of fact, law or discretion. I hope everyone here is familiar with Deputy President Roche’s decision in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19], which sets out in very clear terms what you must do to show error.

In a nutshell, you must show how the Member was wrong. Not merely mistaken, not just making a factual finding that was open on the evidence, the Member must be stone cold wrong on the particular issue you are challenging.

I would consider this group to be sophisticated users of legal services – press your lawyer on this question, what is the error you say was made? Show it to me. Why is it wrong?

When drafting a ground of appeal, it must in a meaningful way identify what the error is. Identify the precise words in the decision and then say why it is an error of fact, law or discretion. This is NOT achieved by leaving the reader to speculate upon where the error is. At the end of this speech, I will read some comments made by the Full Federal Court on 11 October 2023 in CFMMEU v Quirk on this subject which in very stark terms identify what appellants must do.

I am sometimes referred to mere paragraph numbers and the submission is that the error appears somewhere in there. This is insufficient (see Kowalski v Repatriation Commission per Full Federal Court [2011] FCAFC 43). It is not the role of the Presidential member to locate the error for the appellant.

When pursuing an appeal, the following principles ought guide your thinking.

This is not an exhaustive list but they are a good starter:

1. The statutory mandate is for the Member to give a brief statement of reasons – s 294 (4) of the 1998 Act. The Member does not have to produce “War and Peace” in terms of a comprehensive treatise on every issue in the case.
2. Rule 78(2) of the PIC Rules sets out what the reasons are to include – namely the findings on material questions of fact by reference to the evidence or other material on which the decision was based. A statement of the applicable law and an outline of the reasoning process to the conclusions reached.
3. This statutory mandate to give reasons does not require lengthy or elaborate reasons. The essential grounds must however be articulated (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA).
4. It is not necessary for a member to refer to every piece of evidence (Yates Property Corporation Pty Ltd (in Liq) v Darling Harbour Authority (1991) 24 NSW LR 156).
5. Please understand that the decision must be read as a whole (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at [444]). I often see one section of a decision impugned as being in error, because various points have not been considered. And yet one finds that this aspect of the decision is usually a small sub-set of a wider discussion on the issue covering many paragraphs of the decision. Stand back and read the decision as a whole and ask yourself was the issue covered?
6. It is trite to say that it is not an error to fail to deal with an argument that was not put! It amazes me that this statement of principle is not more widely known (Brambles Industries Ltd v Bell [2010] NSWCA 162 [22] and [30]). I recall there is a remark in this case stating that a busy tribunal (like the Commission) does rely upon the parties’ submissions and so parties must bring the real issues to the Member’s attention. In short, you are bound by the way the case was conducted (Coulton v Holcombe [1986] HCA 33 at [15]).
7. One often sees the following argument – that the Member failed to respond to a substantial, clearly articulated argument relying on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26). Few things about this line of country - very few submissions based on Dranichnikov ever point to an established fact as this authority requires. Either no fact is referred to OR there is a related argument about a factual error, which makes a Dranichnikov argument very hard to establish as there was no relevant, established fact before the Member. Further, this decision is NOT authority for the proposition that any failure to refer to any argument put to the Member is ipso facto an error (Wang v State of NSW [2019] NSWCA 263). So long as the nature and materiality of the argument has been dealt with in the context of the proceedings, that is sufficient.
8. Even if you do succeed in establishing error, you must show how that error affected the result (Walshe v Prest [2005] NSWCA 333 at [27], Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [17] and [20] per Basten JA). Not all errors are created equal – if an error does not affect the result, the appeal ground will fail.
9. We get lots of challenges to factual findings. A finding of fact will not normally be disturbed if there is rational support for that finding in the evidence (Fox v Percy [2003] HCA 22). As I said above in terms of Raulston – you must show why the finding was wrong. Often a Member will have a choice on the evidence to decide one way or another on a factual issue. Deciding one way, if there is rational support in the evidence, is not an error.
10. I will end with the rather pithy set of remarks from a recent Full Bench decision of the Federal Court. The Court was dealing with an appeal comprised of multiple grounds and arguments and they said this: “There must be a limit upon how far this Court is required to go in dealing with every contention that is floated into the air. Manifesting ingenuity in marshalling as many arguments as possible is no proper aspiration for a barrister. Counsel have a duty to assist the court by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner. When it comes to performing the barrister’s forensic duty in the context of an appeal, there is a further responsibility to identify with precision the alleged error, understanding its significance in the overall scheme of the controversy between the parties.” (CFMMEU v Quirk and anor [2023] FCAFC 163 at [441] and [442]).
11. We often see appeal grounds numbering 10–15 grounds. The risk you run is that the good points are obscured by multiple bad ones. But as the Federal Court said, this is not a sound practice and should be avoided. Identifying the error with precision is the key.
12. Our appeal jurisdiction is a very important aspect of our work. It ensures that the law across the workers compensation jurisprudence is applied consistently and that it remains within mainstream legal thought. We are not an island in the legal system. We are very appreciative of the assistance we get from parties in the performance of this important work and I hope these brief remarks are of assistance to your work in this area.