Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Preston v Randwick City Council & Ors [2012] NSWCA 178
• Hearing dates: 7 June 2012
• Decision date: 18 June 2012
• Before: Allsop P; Sackville AJA

Decision

1. Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: INTERLOCUTORY APPLICATION - Application for leave to appeal - Workers Compensation Commission dismissed appeal against consent orders made in proceedings before Commission constituted by an Arbitrator - Workplace Injury Management and Workers Compensation Act 1998, s 354(7A) - whether the Commission constituted by a Presidential member erred in law - whether applicant was denied procedural fairness - no denial of procedural fairness - leave to appeal dismissed
• Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 294, s 350(3), s 350(6), s 352(5), s 353(1), s 353(7), s 354(6), 354 (7A), s 375; Workers Compensation Commission Rules 2011 - r 15.3, r 15.9
• Cases Cited: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423; Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76; DDCR 527; Sapina v Coles Myer Ltd [2001] NSWCA 71; Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315; Spears v Department of Ageing, Disability & Homecare of NSW [2010] NSWWCCPD 35; Wickstead v Browne (1992) 30 NSWLR 1
• Category: Interlocutory applications
• Parties: Stephen Frederick Preston (Applicant); Randwick City Council (First Respondent); Allianz Australia Workers' Compensation (NSW) Ltd (Second Respondent)
• Representation: Counsel: Stephen Frederick Preston (in person) (Applicant); Larry King SC (First and Second Respondents); Solicitors: Unrepresented (Applicant); Ellison Tillyard Callanan (First and Second Respondents)
• File Number(s): 2012/43089

Decision under appeal

• Citation: Preston v Randwick City Council [2012] NSWWCCPD 1
• Date of Decision: 2012-01-10 00:00:00
• Before: Deputy President Kevin O'Grady
• File Number(s): A1 - 1686/11

Judgment

1 THE COURT: This is an application for leave to appeal from a decision of the Workers Compensation Commission ("Commission") constituted by a Presidential member (O'Grady DP). The Commission dismissed an appeal brought by the applicant against consent orders made by an Arbitrator on 22 August 2011. The orders were made by the Arbitrator in conformity with Heads of Agreement that had been signed by the applicant, his counsel and the representative of the respondent ("the Council").

2 The Commission made the order dismissing the appeal from the Arbitrator's decision under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act"). This provision empowers the Commission to dismiss proceedings before it:

"before or during the conduct of the proceedings:

...

(b) if it is satisfied that the proceedings are frivolous or otherwise misconceived or lacking in substance ..."

3 An appeal to the Commission from a decision of an Arbitrator is governed by s 352(5) of the WIM Act, which is as follows:

""An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing."

Prior to being amended in 2010, s 352(5) provided for an appeal to be by way of review of the decision appealed from. An appeal under the earlier form of s 352(5) was therefore wider in scope than under the current provision. As to the previous provision, see Sapina v Coles Myer Ltd [2009] NSWCA 71.

4 The Commission considered that the appeal from the Arbitrator's decision was misconceived because the applicant had "advanced no meaningful argument" to suggest that the Arbitrator had made an error of the kind identified by s 352(5) of the WIM Act.

5 The applicant's complaint before the Commission and on this application for leave to appeal is that, although he signed the Heads of Agreement and was present when the orders were made by the Arbitrator, he did not understand the terms of the Heads of Agreement or the import of the consent orders, particularly in relation to his entitlement to be compensated for future medical and related expenses. The applicant says that the Arbitrator should have satisfied herself that he (the applicant) understood the terms of the Heads of Agreement and that he truly consented to the orders that were to be made.

6 It is important to appreciate that the Commission did not conclude that the applicant had no means available to him to challenge the Arbitrator's orders. O'Grady DP noted that s 350(3) of the WIM Act provides that the Commission has power to:

"... reconsider any matter that has been dealt with by the Commission and [to] rescind, alter or amend any decision previously made or given by the Commission."

His Honour held that he had no power to convert the appeal into an application before the Arbitrator pursuant to s 350(3) to reconsider the consent orders. But he cast no doubt on the jurisdiction of the Arbitrator to entertain an application to reconsider the orders by reason of the applicant's alleged lack of consent: cf Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315; Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76; DDCR 527. No such doubt was raised in this Court by the respondent.

The Necessity for Leave to Appeal

7 An appeal to this Court against a decision of the Commission constituted by a Presidential member is governed by s 353 of the WIM Act. It provides as follows:

"(1)If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.

(2)The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.

(3)A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made.

(4)The following appeals under this section may be made only with leave of the Court of Appeal:

(a)an appeal from an interlocutory decision

...

(5)In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction." (Emphasis in original.)

8 The application in this Court has proceeded on the basis that the applicant (who is unrepresented) requires leave to appeal from the decision of the Commission dismissing the appeal from the Arbitrator. This would seem to be correct, as the Commission in effect summarily dismissed the appeal under s 354(7A) of the WIM Act. An order for dismissal of this kind is ordinarily regarded as an interlocutory decision: see Spears v Department of Ageing, Disability & Homecare of NSW [2010] NSWWCCPD 35, at [28]-[29], per Roche DP and authorities cited there; and cf Wickstead v Browne (1992) 30 NSWLR 1 at 11.

9 An alternative basis for regarding the Commission's decision as interlocutory is that the applicant retains (as the Commission accepted) a statutory entitlement, pursuant to s 350(3) of the WIM Act, to request the Arbitrator to reconsider her decision to make the consent orders. The decision by the Commission to dismiss the appeal from the Arbitrator's orders therefore does not finally dispose of the rights of the parties: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423.

Making of the Determination

10 The following account of the circumstances in which the Arbitrator made the consent determination is largely drawn from the judgment of the Commission. The circumstances are not contentious.

11 The applicant commenced proceedings against the Council seeking orders as to his entitlement to workers compensation benefits arising out of an alleged injury sustained in the course of his employment on 6 May 2009. The application came before the Arbitrator for conciliation and arbitration on 17 August 2011. At that time, the applicant was represented by solicitors and counsel.

12 The Arbitrator was informed by the parties' representatives that agreement had been reached concerning the claim and that orders were to be made by consent. The representatives handed to the Arbitrator a document entitled "Heads of Agreement". This document was signed by the Council's representative and by the applicant and his counsel. The Heads of Agreement formed the basis of the orders made by the Arbitrator.

13 The Arbitrator made the orders sought by the parties pursuant to r 15.9 of the Workers Compensation Commission Rules 2011 ("Rules"), which provides as follows:

"(1)Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order.

(2)An order referred to in subrule (1) may be drawn up, with the consent of each party who has agreed to the order endorsed on it and signed by the party or the party's legal representative or agent in the proceedings, and lodged.

(3)The Commission may make an order referred to in subrule (1) by signing the order as lodged under subrule (2)."

14 On 22 August 2011, the Commission issued a "Certificate of Determination Consent Orders" pursuant to s 294 of the WIM Act, as follows:

"The Applicant claimed certain benefits pursuant to the provisions of the Workers Compensation Act 1987. A conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:

By Consent:

1.Award for the Applicant pursuant to s 40 of the 1987 Act as follows:

●$396.10 per week from 7 October 2009 to 31 March 2010; then

●$403.70 per week from 1 April 2010 to 30 September 2010; and

●$409.10 per week from 1 October 2010 to 5 November 2010;

●noted the above sums agreed to total $22,500.00

2.Award for the respondent in respect of the claim for weekly benefits after 5 November 2010.

3.The Respondent to pay the Applicant's s 60 expenses up to $4,600.00 upon production of accounts/receipts and/or Medicare charge.

4.Award for the Respondent in respect of any further claim for payment of medical and related expenses.

5.The claims pursuant to s 66 and s 67 are discontinued and I dispense with the requirement to file an Agreement to Discontinued [sic].

6.The Application to Resolve a Dispute is amended to add, in Part 4, "and the nature and conditions of the Applicants employment with the Respondent as a carpenter/tradesperson" and in Part 4 "Injury Description" to add "psychiatric/psychological sequelae".

7.Respondent to pay the costs of the Applicant as agreed or assessed.

Certification as to costs

This dispute encompassed complex legal, medical and factual issues. There was a dispute in respect of incapacity and the Respondent alleged the Applicant had not complied with his obligations under an Injury Management Plan. I grant, pursuant to schedule 6 of the costs regulations, the Applicant 30% costs uplift and I grant the Respondent 30% costs uplift.

Noted

1.The parties to enter into a complying agreement in respect of 12% whole person impairment (6% WPI of the lumbar spine; 6% WPI of the left lower extremity) in the amount of $17,476.25 plus a payment, pursuant to s 67 of the Act, in the amount of $20,023.75.

2.The Applicant admits and the parties agree that no further hospital or medical treatment is necessary as a result of the injury incurred in the employ of the Respondent.

FAYE ROBINSON

Arbitrator

I CERTIFY THAT THIS IS A TRUE AND ACCURATE CERTIFICATE OF DETERMINATION - CONSENT ORDERS ISSUED BY FAYE ROBINSON, ARBITRATOR, WORKERS COMPENSATION COMMISSION."

The Appeal to the Commission

15 By his appeal to the Commission the applicant sought orders setting aside the consent orders made by the Arbitrator and substituting an award entitling him to continued weekly payments and to all medical and related expenses. He also sought lump sum payments in respect of whole person impairment and pain and suffering.

16 The grounds of appeal asserted that the applicant had not consented to the orders made by the Arbitrator. The errors of law identified by the applicant were as follows:

"8.The Appellant submits that the Arbitrator erred at law in relying on documents allegedly containing the consent of the Appellant which were forced onto the Appellant by duress, when the Appellant may allegedly not have had the capacity to provide such a consent given the alleged "psychiatric/psychological sequelae" stated by the Arbitrator at Item 6.

9.The Appellant submits that the Arbitrator erred at law in indicating to the Appellant that the documents allegedly containing the consent of the Appellants, that the content of those document [sic] was a 'very good outcome for the Appellant'."

17 The Council's written submissions to the Commission pointed out that an appeal to the Commission might not be the appropriate vehicle to address the applicant's allegations against his own legal representatives. In the light of these submissions, the Commission directed the parties to file submissions as to whether the appeal was competent and whether it was misconceived within the meaning of s 354(7A) of the WIM Act.

18 A teleconference was held by the Commission on 5 December 2011, at which the applicant appeared in person. The applicant indicated that he required more time to prepare submissions and he was given until 12 December 2011 to do so. He duly filed his written submissions on that date.

19 The Commission determined to proceed to a decision on the papers, as it was entitled to do under s 354(6) of the WIM Act.

The Commission's Reasons

20 In its judgment, the Commission rejected an application by the applicant to adduce fresh evidence pursuant to s 350(6) of the WIM Act. This material included medical reports which, on one view, suggested that the applicant had been unable to think clearly on the day the Heads of Agreement were signed. The Commission pointed out (at [26]) that the proffered material might have some relevance in proceedings challenging the Heads of Agreement, but such a challenge was not open on an appeal under s 352 of the WIM Act. The material was therefore irrelevant to any issue arising on the appeal.

21 The Commission recorded the applicant's submission that the Arbitrator had failed in his duty under r 15.3 of the Rules. Rule 15.3 provides as follows:

"The Commission is to take such measures as are reasonably practicable to:

(1) assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and

(2) explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and

(3) ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and

(4) ensure that the parties have the opportunity to explore settlement in the proceedings."

22 The Commission rejected the argument, for these reasons:

"45.[The applicant] has advanced no meaningful argument which suggests that the Arbitrator has made a relevant error of fact concerning the dispute between the parties ... Shortly stated, the Arbitrator has made no relevant finding of fact concerning the dispute between the parties which is open to challenge on appeal.

46.The Arbitrator, in exercise of her discretion, made an order certifying costs recoverable. That certification is not controversial ...

47.[The applicant] has argued that the Arbitrator has in some manner failed to discharge her duties which are prescribed, it is said, by the 1987 and 1998 Acts, the Code of Conduct and the Guidelines. Those allegations, if proven, may ground an argument that [the applicant] has been denied procedural fairness. Such may constitute a relevant error of law. However, those allegations are not supported by any evidence. Had such allegations been made by a legal practitioner in the absence of evidence, such conduct would, at least, be open to severe criticism. Such criticism is not appropriate in circumstances where a party is self - represented.

48.A distinction must be drawn between unsubstantiated allegations made in the course of submissions and submissions concerning improper conduct supported by evidence. The Commission is here dealing with the former. There is nothing before the Commission which suggests any relevant error of law.

49.The challenge made by [the applicant] to the orders made does not address any relevant error on the part of the Arbitrator. No such challenge could possibly be advanced in the present circumstances given that the orders made were said to have been the subject of consent and that no relevant finding of fact, ruling as to law or exercise of discretion was made by the Arbitrator. I find that the appeal is misconceived within the meaning of s 354(7A)(b)."

23 The Commission went on to refuse the applicant's request to reconsider the Arbitrator's decision pursuant to s 350(3) of the WIM Act. O'Grady DP accepted (at [52]) that in an appropriate case an Arbitrator could set aside an order made by consent, although cogent evidence would be required to ground such an application. However, the Commission could not "transfer" the proceedings to the Arbitrator. The power of remitter, conferred by s 352(7) of the WIM Act, was intended to facilitate remitter to an Arbitrator where, on appeal, relevant error had been established.

24 The Commission considered that the appeal was misconceived in the terms of s 354(7A) and, accordingly, ordered that the appeal be dismissed.

Reasoning

25 An appeal to this Court is available only where a party is "aggrieved by a decision of the Presidential member in point of law": s 353(1). Leave to appeal will ordinarily be refused if an applicant does not have reasonable prospects of demonstrating that the Commission has erred in point of law. The applicant does not have any such prospects.

26 The Commission was clearly correct to distinguish between:

• the power of the Commission constituted by an Arbitrator to reconsider any matter he or she has dealt with and to rescind or amend the earlier decisions (s 350(3)); and
• the right of a party to appeal from an Arbitrator's decision to the Commission constituted by a Presidential member, which is limited to determining whether the decision was or was not affected by any error of fact, law or discretion (s 352(5)).

27 Section 375 of the WIM Act relevantly provides as follows:

"(1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.

(2) The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.

(3) For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.

(4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar's power to exercise the functions of an Arbitrator)."

28 It follows from s 375(1) and (3) that any application to exercise the power of reconsideration conferred by s 350(3) of the WIM Act must be heard and determined by the Commission constituted by an Arbitrator. An appeal under s 352(5) to the Commission from an Arbitrator's decision is to be heard and determined by the Commission constituted by a Presidential member.

29 On appeal to the Commission constituted by a Presidential member, the Commission is limited to determining whether the impugned decision of the Arbitrator was or was not affected by a relevant error. The Commission may confirm the decision, or revoke it and make a new decision in its place: s 352(7). Alternatively, the matter may be remitted to the Arbitrator for determination in accordance with any decision or direction of the Commission: s 352(7). The Commission's powers to revoke a decision and make a new decision, or to remit the matter to the Arbitrator, are enlivened only by a determination that the Arbitrator made an error of fact, law or discretion. The Commission constituted by a Presidential member does not have a general discretion on appeal to reopen or reconsider the Arbitrator's decision.

30 In the present case, the Commission correctly observed that if the applicant could show that the Arbitrator failed to discharge her duties under the WIM Act or the Rules, she may have denied the applicant procedural fairness and thus erred in law. However, on the material before the Commission the Arbitrator simply made orders by consent in accordance with an agreement in writing between the parties, signed not only by the applicant's counsel but by the applicant himself. The applicant adduced no evidence before the Deputy President to suggest that the Arbitrator should have been alerted to the possibility that the applicant had not freely consented to the agreement that, with the advice of his counsel, he had signed, or that he did not understand its terms. There was no evidence, for example, that the applicant lacked proficiency in English or had any disabilities that would or should have been apparent to the Arbitrator. And, contrary to the applicant's submission in this Court, there is nothing in the Heads of Agreement to suggest that the terms of the settlement were clearly unfavourable to him.

31 The Commission's procedures follow published guidelines that are intended to ensure that an Arbitrator complies with the requirements of r 15.3: see Spears v Department of Ageing, at [31]-[33], where the guidelines are summarised and the "Protocol for Telephone Conference" is set out. The applicant did not adduce evidence that the Arbitrator failed to follow the guidelines or otherwise did not comply with r 15.3.

32 In these circumstances, the Commission was well entitled to conclude that the applicant had done no more than make unsubstantiated allegations and that he had therefore failed to make out an arguable case that the Arbitrator's decision was affected by an error of fact, law or discretion.

33 The applicant's written submissions in this Court asserted that he had been denied procedural fairness in the Commission. However, the Commission alerted the applicant to the difficulties he faced in his appeal from the Arbitrator's decision and gave him the opportunity to address those difficulties. There was no denial of procedural fairness.

34 The applicant has not shown that an appeal to this Court on the ground available under s 353(1) of the WIM Act has any reasonable prospects of success. Accordingly, the application for leave to appeal must be dismissed, with costs.

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Decision last updated: 18 June 2012